Docket:
A-272-14
Citation: 2015 FCA 87
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CORAM:
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RYER J.A.
WEBB J.A.
NEAR J.A.
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BETWEEN:
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ANTHONY MOODIE
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Appellant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
NEAR J.A.
I.
Introduction
[1]
The appellant, Anthony
Moodie, served in the Canadian Forces (CF) from 1995 to 2005. In September
2003, he began the Common Army Phase (CAP) course 0309 at the Infantry School
Combat Training Centre in Gagetown, New Brunswick. In November 2003, a Progress
Review Board (PRB) at the School returned the appellant to his unit as a “training failure”. The PRB deemed the appellant a “training failure” because the appellant was unable to
complete the performance objectives (PO) of the course.
[2]
The appellant filed a number
of complaints with the CF concerning his failure of the CAP course. He
ultimately submitted these complaints, in the form of a formal grievance, to
the Chief of the Defence Staff (CDS) for determination.
[3]
On November 23, 2010, the
CDS dismissed the appellant’s grievance. The appellant subsequently applied to
the Federal Court for judicial review of this decision. In a decision issued
May 6, 2014, Justice Boivin dismissed the application (2014 FC 433). This is an
appeal of that decision.
[4]
For the reasons that follow,
I would dismiss the appeal.
II.
Facts and Judicial History
A.
Facts
[5]
The issues in this appeal
mainly concern the appellant’s failure of PO 103, “Conduct
a Reconnaissance Patrol”. However, the appellant also had difficulty
with PO 102 (“Conduct Defensive Operations”), PO
109 (“Supervise Army Physical Fitness Training”),
and PO 118 (“Instruct Personnel”).
[6]
The appellant failed his
first and second attempts of PO 103 on November 15, 2003 and November 20, 2003,
respectively. After the appellant’s second failed attempt, a PRB was convened.
The PRB granted the appellant a third attempt, which he undertook on November
24. However, logistical problems occurred such that the attempt could not be
considered legitimate. In light of these circumstances, which were beyond the
appellant’s control, the PRB granted the appellant a fourth attempt. Again the
appellant failed. As a result, on November 25, 2003, the PRB decided to return
the appellant to his unit as a “training failure”.
[7]
On December 3, 2003, the
appellant filed a complaint with the Infantry School Commandant, Lieutenant
Colonel Pearson. In this complaint, the appellant alleged: that he had been
assessed differently than other students, that staff actively sought to have
him fail, and that he should have passed PO 103. The Commandant considered the
appellant’s complaint to be a formal redress of grievance and asked the
School’s Chief Standards Officer (CSO) to investigate.
[8]
On December 4, 2003, the
appellant filed a second complaint, in which he alleged that members of the
Directing Staff (DS) had harassed him. However, the appellant withdrew this
complaint after being informed that it did not meet the necessary criteria for
a complaint of harassment.
[9]
On December 10, 2003, the
Commandant denied the appellant’s redress of grievance. The report of the CSO
was issued two days later, on December 12, 2003. In his report, the CSO
outlined the results of the investigation that he conducted on December 4 and
5, 2003, and recommended that the appellant’s redress of grievance be denied.
[10]
In March 2004, the appellant
filed an official application for redress of grievance with the CDS. The first
level in the CDS grievance process is a determination by an Initial Authority
(IA). However, the appropriate IA – the Commander of the Combat Training Centre
– did not receive the appellant’s redress of grievance until October 5, 2004.
The delay in transferring the appellant’s grievance to the IA occurred because
the first IA that had been appointed was perceived as having a conflict of
interest.
[11]
On October 12, 2004, the IA
sent the appellant a disclosure package containing all of the documents that he
would consider in coming to his decision. The appellant made written
submissions in response on November 15, 2004.
[12]
On December 3, 2004, the IA
denied the appellant’s redress of grievance. In his decision, the IA focused on
the appellant’s main argument, which concerned the failure of PO 103. The IA
determined that the appellant had, in fact, failed all of his attempts.
[13]
Meanwhile, on December 1,
2004, the appellant had re-submitted a complaint of harassment. The appellant
made two allegations in this complaint. The appellant alleged that a DS told
him that he failed PO 118 because of his “thick heavy
accent”. The appellant also alleged that the same DS assessed him in a
manner inconsistent with the course standards in an effort to ensure his
failure of PO 103. On December 14, 2004, the Responsible Officer (RO), the acting
Commandant of the Infantry School, rejected this complaint.
[14]
On March 31, 2005, the
appellant submitted his redress of grievance for final adjudication before the
CDS, who is deemed to be the final authority (FA). The appellant included in
his grievance new complaints – namely, complaints about the procedures followed
by the other decision-makers who had assessed his grievance.
[15]
The first step at the FA
level requires assessment of the complaint by the Canadian Forces Grievance
Board (CFGB), an independent body established to impartially review grievances
referred to the CDS.
[16]
The appellant’s grievance
was sent to the CFGB on July 6, 2005. On August 5, 2005, the CFGB informed the
appellant that his grievance was being processed, and included a copy of the
complete grievance file.
[17]
On October 25, 2005, the
appellant was released from the CF. The appellant disputes the CDS’ finding
that the grounds for the appellant’s release were unrelated to his failure of
the CAP course.
[18]
By way of letter dated June
20, 2007, the CFGB informed the appellant that his grievance had been
investigated by a Grievance Officer at the CFGB, and disclosed to the appellant
all of the information that it would consider in completing its report for the
CDS. The appellant made written submissions in response on July 20, 2007.
[19]
On September 25, 2007, the
CFGB issued its report recommending that the CDS dismiss the appellant’s
grievance. The CFGB’s findings and recommendations were forwarded to the
appellant two days later, on September 27, 2007.
[20]
Meanwhile, on July 6, 2007,
the appellant had initiated an action in damages in the Federal Court based
upon the same set of facts (Court file no. T-1248-07). On May 27, 2008,
Prothonotary Milczynski dismissed the action on the ground that the National
Defence Act, R.S.C. 1985, c. N-5 (NDA) and the Queen’s
Regulations and Orders for the Canadian Forces (QR&O) establish
an exclusive statutory scheme for the resolution of service-related disputes.
[21]
On August 12, 2008, the
appellant sent the CDS written submissions in response to the report of the
CFGB. On September 16, 2008, the Director General of the Canadian Forces
Grievance Authority (CFGA) informed the appellant that the processing of his
grievance was being suspended until the final resolution of his Federal Court
action, pursuant to QR&O 7.16.
[22]
The Prothonotary’s decision
to dismiss the appellant’s action was ultimately upheld by both the Federal
Court (2008 FC 1233, [2008] F.C.J. No. 1601 (QL)) and this Court (2010 FCA 6,
399 N.R. 14).
[23]
In the interim, on March
31, 2009, the CFGA provided additional disclosure to the appellant pursuant to Canadian
Forces Administration Orders (CFOA) 19-32. CFOA 19-32
requires the FA to disclose to the complainant all information not already in
the complainant’s possession prior to the determination of a grievance.
B.
Decision of the CDS
[24]
On November 23, 2010, the
CDS dismissed the appellant’s grievance.
[25]
The CDS’ decision addresses
four main issues: the appellant’s failure of PO 103; the appellant’s alleged
failure or incompletion of other POs; the appellant’s harassment claims; and
the appellant’s procedural fairness concerns.
(1)
Failure of PO 103
[26]
The CDS first addressed the
appellant’s failure of PO 103. He agreed with the CFGB that the appellant had
been accurately and fairly assessed. The CDS did not agree with the appellant,
who had argued that he should have passed on his third and fourth attempts.
[27]
The CDS determined that the
appellant’s third attempt could not be considered a legitimate attempt due to
the logistical problems that had occurred, particularly the lack of an “occupied objective”, which is required under the CAP
training plan. In addition, the CDS was satisfied that the appellant would have
failed his third attempt even if the logistical problems had not occurred. The
CDS noted that the appellant had failed to meet five of the PO’s ten “leadership” requirements, when a score of eight is
required to obtain a pass. The CDS was nevertheless satisfied that the PRB’s
decision to grant the appellant a fourth attempt was warranted.
[28]
The CDS was not satisfied,
however, that the appellant met the standard for PO 103 on his fourth attempt. The
CDS remarked that many of the appellant’s complaints regarding the alleged
unfairness of his assessment were simply disagreements with the assessor as to
the effectiveness of the appellant’s behaviour. The CDS explained that,
according to the assessor’s notes, the appellant made poor strategic and
navigational choices. Furthermore, while the appellant did ultimately reach the
objective, he was discovered by the “enemy”
troops and was unable to complete the required activities at the objective,
despite a reset from the assessor. The appellant also failed seven of the ten
leadership requirements.
[29]
The CDS determined that the
appellant’s allegation that his evaluation form was fraudulently altered to
change his “pass” to a “fail”
was lacking in both credibility and corroborating evidence. As a result, the
CDS was satisfied that the “pass” notation was a
simple clerical error that was later corrected to a “fail”.
[30]
The CDS rejected the
appellant’s contention that there were no demonstrations or DS-led patrols for
PO 103. The CDS found that the appellant had not adduced enough evidence to
support this contention. Furthermore, even if he had, this would not have
resulted in an automatic pass.
(2)
Failure or Incompletion of
other POs
[31]
Next, the CDS addressed the
appellant’s alleged failure or incompletion of other POs. The CDS found that it
was unnecessary to determine whether the appellant had successfully completed
POs 102, 109, or 118, because the appellant was returned to his unit solely as
a result of failing PO 103. Since the CDS was satisfied that the appellant had,
in fact, failed PO 103, the outcome of the other POs was irrelevant.
[32]
The CDS also acknowledged
that the appellant’s Member’s Personnel Record Resume (MPRR) erroneously
indicated that he passed the CAP course. However, the CDS refused to
investigate the reason for this clerical error. Instead, he simply agreed with
the CFGB that this entry should be corrected.
(3)
Harassment Claims
[33]
The CDS then addressed the
appellant’s harassment claims.
[34]
According to Defence
Administrative Orders and Directive (DOAD) 5012-0:
Harassment is any
improper conduct by an individual that is directed at and offensive to another
person or persons in the workplace, and that the individual knew or ought
reasonably to have known would cause offence or harm.
…
Conduct involving the
proper exercise of responsibilities or authority related to the provision of
advice, the assignment of work, counseling, performance evaluation, discipline,
and other supervisory/leadership functions does not constitute harassment.
(emphasis in original)
[35]
The CDS canvassed the three
allegations of harassment made by the appellant and found that two of these
allegations did not meet the above definition of harassment.
[36]
The first allegation was
that the assessor for PO 118 stated that the other candidates could not
understand the appellant due to his “thick heavy
accent”. The CDS first noted that no evidence of this statement was
found in the course record. He nevertheless determined that even if this
statement had been made, it would not have constituted harassment because
noting communication deficiencies is part of a proper evaluation.
[37]
The second allegation was
that the assessor for the appellant’s third attempt of PO 103 had set him up to
fail. The CDS concluded that the concerns pertaining to this patrol had largely
been resolved by the granting of a fourth attempt, and that any specific concerns
about the platoon commander had not been particularized enough to warrant further
investigation by the RO.
[38]
The CDS found that the
appellant’s third allegation, that he was held to higher assessment standards
than other students and was given unfavourable leadership chits without
justification, could have met the definition of harassment. However, the CDS
agreed with the RO that the appellant had provided insufficient information on
which to base further investigation or a finding of harassment.
(4)
Procedural Fairness
[39]
Finally, the CDS addressed
the appellant’s procedural fairness concerns.
[40]
With respect to delay, the
CDS acknowledged that the seven-year delay between the events in question and
the final adjudication of the appellant’s grievance was unusually long. The CDS
also acknowledged that the delay of approximately six months to transmit the
appellant’s grievance to the proper IA was not in accordance with the ten-day
period stipulated by QR&O 7.05.
[41]
The CDS determined, however,
that the need to find an IA without a conflict of interest explained the
initial delay, and that the appellant had failed to demonstrate that he had
experienced any prejudice as a result. The CDS also observed that all
subsequent decisions were rendered within the required time limits, where such
limits existed, and that the delay between 2008 and 2010 was caused by the
appellant’s Federal Court action. The CDS therefore concluded that there had
been no unreasonable or unexplained delays in the processing of the appellant’s
grievance.
[42]
With respect to disclosure,
the CDS agreed with the appellant that a redress authority is required to
disclose all documents put before it prior to making a decision. The CDS did
not agree with the appellant, however, that this process had not been followed.
Having reviewed the entire grievance file, the CDS was satisfied that the
appellant had obtained disclosure of all documents that were, in fact, used to
adjudicate the grievance at both the IA and FA levels. He was also satisfied
that the appellant had been granted sufficient opportunities to make
submissions on these documents.
[43]
The CDS also addressed the
appellant’s argument that it was unfair for the IA and the CFGB to have focused
only on the “crux” of the grievance. The CDS noted that he had attempted to be
as complete as possible in his review of the appellant’s lengthy and complex
grievance, but agreed with the CFGB that it is sometimes necessary to narrow
the scope of a grievance. The CDS further noted that the appellant had failed
to specify any major issue that the CFGB had neglected. The CDS also remarked
that further investigation into certain issues, such as how or why certain
clerical errors occurred, would have no impact on his ultimate finding on the
grievance.
C.
Federal Court Decision
[44]
The Federal Court judge
dismissed the appellant’s application for judicial review. The Judge concluded
that there was no breach of procedural fairness in the processing of the
appellant’s grievance, and that it was reasonable for the CDS to dismiss the
grievance.
III.
Positions of the Parties
[45]
The appellant submits that
the Federal Court judge erred in concluding that procedural fairness was
respected during the grievance process and that the decision of the CDS was
reasonable.
[46]
In his Memorandum of Fact
and Law, the appellant also asserted that the Judge displayed a reasonable
apprehension of bias in his conduct of the judicial review hearing. At the
hearing of this appeal, however, the appellant withdrew this submission and
conceded that there was no basis upon which to assert bias against the Judge. I
agree.
[47]
The respondent submits that
the appellant’s procedural entitlements were respected during the grievance
process and that the decision of the CDS was reasonable.
IV.
Issues
[48]
The issues in this appeal
are:
- Was
the appellant denied procedural fairness during the grievance process?
- Did the CDS determine the substance of the appellant’s
grievance appropriately?
V.
Standard of Review
[49]
Sitting in appeal from a
decision of the Federal Court on an application for judicial review, this Court
must ask whether the Judge correctly chose and properly applied the standard(s)
of review. This has been described as “stepping into
the shoes” of the Federal Court (Agraira v. Canada (Public Safety and
Emergency Preparedness), 2013 SCC 36 at paras. 46-47, [2013] 2 S.C.R. 559).
[50]
Issues of procedural
fairness are reviewable on the correctness standard (Mission Institution v.
Khela, 2014 SCC 24 at para. 79, [2014] 1 S.C.R. 502). Correctness is
therefore the standard of review applicable to the first issue in this case.
[51]
The standard of review
applicable to the second issue is reasonableness. The issues raised in the
appellant’s grievance required the CDS to consider questions of mixed fact and
law and questions of fact. As such, the standard of review is presumed to be
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 51,
[2008] 1 S.C.R. 190 [Dunsmuir]). Moreover, this Court has previously
held that decisions of the CDS concerning grievances are reviewable on the
reasonableness standard (Zimmerman v. Canada (Attorney General), 2011
FCA 43 at para. 21, 415 N.R. 13).
[52]
The Judge correctly selected
the standards of review applicable to the issues before him: he held that
correctness was the standard applicable to issues of procedural fairness (at para.
43), and that the substantive decision of the CDS was reviewable on the
standard of reasonableness (at para. 44).
VI.
Analysis
A.
Procedural Fairness
[53]
The appellant submits that
he was denied procedural fairness in five respects. The Federal Court judge
considered and rejected each of these arguments in the appellant’s application
for judicial review. I agree with the Judge’s disposition of these issues, and
will address each argument in turn.
(1)
Terms of Reference
[54]
The appellant submits that
it was a breach of procedural fairness for the investigations into his
complaints to have proceeded without terms of reference, despite the
requirement under DOAD 7002-2 that such terms be established. In the
appellant’s view, this failure caused the investigation by the first IA and the
re-investigation by the second IA to lack direction and transparency, and
prevented him from knowing whether his complaints were being properly
addressed.
[55]
The respondent submits that
the appellant’s concerns pre-date the actual decision under review, which is
the decision of the CDS on the formal grievance submitted to him in March 2004.
The respondent also submits that the procedures set out in DOAD 7002-2
do not apply to the CF grievance process. Rather, this process is governed by
the NDA and the QR&O.
[56]
The Judge was not convinced
that DOAD 7002-2 applied to the appellant’s complaints, which were, from
the beginning, treated as grievances. He also found that, even if DOAD
7002-2 did apply, the appellant had not explained how the lack of terms of
reference impaired his ability to know the case that he had to meet, or
impacted the fairness of his grievance.
[57]
I agree with the Judge’s
alternative conclusion. The appellant has only made bald assertions about the
impact of this alleged procedural flaw on the fairness of the grievance
process. There is therefore no basis upon which I can conclude that there was
procedural unfairness in this respect.
(2)
Timing of the Investigation
Decision
[58]
The appellant submits that
the timing of the investigation decision reveals a breach of procedural
fairness. The appellant argues that the investigation into his complaint by the
Chief Standards Officer was not complete until December 12, 2003, which was two
days after the Commandant issued his decision dismissing the appellant’s
complaint. The appellant alleges that this discrepancy demonstrates a
reasonable apprehension of bias on the part of the Commandant. He also alleges
that his right to procedural fairness was breached because he was not given an
opportunity to respond to the investigation report.
[59]
There is no merit to this
argument. First, the alleged discrepancy does not exist. Although the
investigation report is dated December 12, 2003, the report indicates that the
investigation took place on December 4 and 5, 2003 (at p. 235, Appeal Book,
Vol. II). Second, even if such a discrepancy existed, it is of no import
because the appellant’s complaint was referred for re-investigation. I do not
accept the appellant’s argument that this alleged discrepancy still amounts to a
breach of procedural fairness even though the matter was referred for
re-investigation because the CDS, in coming to his decision, relied on all of
the reports connected to the complaint.
(3)
Disclosure
[60]
The appellant submits that
procedural fairness was not respected during the grievance process because he
did not receive proper disclosure. The appellant claims that the respondent
breached paragraph 13 of CFOA 19-32, which requires a redress authority
to provide a complainant with copies of “any
correspondence or any other documents to be reviewed” before considering
a complaint.
[61]
The appellant submits that
the disclosure made to him on October 12, 2004 and March 31, 2009 was
insufficient. The appellant claims that he cannot be sure that the October 12,
2004 disclosure was complete, as it did not include a list of documentation.
The appellant also claims that the March 31, 2009 disclosure did not contain
the evidence that had been previously disclosed to him, or evidence that had
been requested of a certain Captain Niles.
[62]
The appellant submits that
it was improper for the CDS to have determined that the disclosure requirements
had been met on the basis that it was not clear that the IA had used
information not disclosed to the appellant in coming to its decision.
[63]
The appellant also submits
that the issue of disclosure has persisted since the issuance of the CDS’
decision. The appellant alleges that the respondent has improperly refused
disclosure on the basis that the documents that the appellant was seeking were not
referenced in the decision of the CDS.
[64]
The respondent submits that
its disclosure to the appellant was more than adequate. The respondent notes
that the CDS addressed this issue in his decision, and found that there were no
documents used by the IA that had not been disclosed to the appellant (at p.
614, Appeal Book, Vol. III).
[65]
I agree with the respondent.
The appellant does not point to any specific documents that were not disclosed
to him but were relied upon during the grievance process. I cannot see any
reason for finding that the CDS’ conclusion on this issue was incorrect.
Furthermore, this Court can only consider whether the CDS’ decision on
disclosure was correct. Events subsequent to the decision of the CDS are beyond
the scope of this appeal.
(4)
Witnesses
[66]
The appellant submits that
he was denied procedural fairness because he was unable to collect the evidence
necessary to support his claim – namely, witness statements from others taking
the CAP course – and that this impacted his right to a fair hearing.
[67]
The appellant states that he
was unable to collect such statements himself because the Commandant separated
students at the CAP course who had failed from the others, and because the
Commandant did not assist the appellant in collecting such statements. The
appellant argues that he was entitled to such assistance according to Chapter 7
of the QR&O, CFOA 19-32, section 29.21 of the NDA, and
the CF Grievance Manual.
[68]
The Judge concluded that,
based on the record and based on the speculative nature of the appellant’s
allegations, the appellant had failed to demonstrate how the respondent’s
disclosure or use of witness evidence was inadequate. He held that the
respondent did not have to disclose to the appellant every document remotely
relevant to the grievance. Rather, the respondent had to disclose the
information that it was going to consider in making its decision so that the
appellant could know the case against him.
[69]
Again, I agree with the
Judge. I cannot see any basis upon which this Court should intervene with the
CDS’ decision in this respect.
(5)
Delay
[70]
Finally, the appellant
submits that he was denied procedural fairness due to the delay he experienced
during the grievance proceedings.
[71]
The appellant submits that
the decision of the IA, dated December 3, 2004, was issued ten months after the
deadline required under the QR&O. The appellant notes that it also
took over two years for the chairperson of the CFGB to provide its findings and
recommendations to the CDS and assign the file to the CDS for review. The
appellant further notes that, in his submissions to the respondent on March 31,
2005, he discussed the impact that the delays in processing his grievance were
causing, including the stagnation of his career in the CF and his future
employment prospects.
[72]
The appellant submits that
the CDS’ analysis on the issue of delay is flawed in two respects.
[73]
First, the appellant argues
that the CDS erred in finding that the appellant’s grievance was filed in 2004.
[74]
In my view, this is not an
error. Although the appellant launched his original complaint regarding the CAP
course in December 2003, he filed his official application for redress of
grievance with the CDS in March 2004. Moreover, even if this Court were to
consider this to be an error, the appellant has not explained how this error
affected the fairness of the CDS’ decision. I cannot see how the CDS’ analysis
of the delay in the appellant’s case would have been substantially different
had the CDS considered the timeline to have begun four months earlier, at the
time of the appellant’s original complaint.
[75]
Second, the appellant argues
that the CDS erred in finding that the appellant was not prejudiced by the
delay because the IA made its decision before the appellant was released from
the CF. The appellant acknowledges that consideration of his grievance was
suspended due to his action in the Federal Court. Nonetheless, he submits that
the delay from the date he launched his initial complaint to the final decision
of the CDS is a breach of procedural fairness because the recollection of
witnesses who should have been interviewed has been significantly impaired, and
because the relief he was originally seeking is no longer available to him,
given his release from the CF.
[76]
I also cannot accept this
argument. I agree with the Judge that the appellant has not demonstrated that
the delay in processing his grievance was “so
oppressive as to taint the proceedings” (at para. 70, Federal Court
decision). This is the appropriate test to determine whether delay incurred in administrative
proceedings amounts to a breach of procedural fairness, as set out in Blencoe
v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R.
307:
[115] I would be
prepared to recognize that unacceptable delay may amount to an abuse of process
in certain circumstances even where the fairness of the hearing has not been
compromised. … It must however be emphasized that few lengthy delays will meet
this threshold. I caution that in cases where there is no prejudice to hearing
fairness, the delay must be clearly unacceptable and have directly caused a
significant prejudice to amount to an abuse of process.
…
[121] To constitute a
breach of the duty of fairness, the delay must have been unreasonable or
inordinate (Brown and Evans, supra, at p. 9-68). There is no abuse of
process by delay per se. The respondent must demonstrate that the delay
was unacceptable to the point of being so oppressive as to taint the
proceedings.
B.
Reasonableness of the CDS’
Decision
[77]
The appellant challenges the
substantive decision of the CDS in two respects.
[78]
First, the appellant submits
that the decision is unreasonable given that questions still remain as to how
and why his grade on PO 103 was changed from a pass to a fail. The appellant
argues that, based on the facts, it was unreasonable for the CDS to conclude
that this was simply a clerical error.
[79]
In making this submission,
the appellant has asked this Court to re-weigh the evidence that was before the
CDS. That is beyond the scope of this Court’s role on judicial review, which is
to assess the reasonableness of the CDS’ decision. The CDS considered this
issue and came to the conclusion that the “pass”
originally indicated on the appellant’s evaluation form was a clerical error
(at p. 608, Appeal Book, Vol. III). This conclusion was reasonably open to the
CDS based on the record before him. It was also reasonable for the CDS to
decline any further investigation into the details surrounding this clerical
error, given his conclusion that the appellant had in fact failed PO 103.
[80]
Second, the appellant
submits that the CDS’ conclusion on the issue of harassment is unreasonable.
The appellant contends that the CDS acknowledged that the elements of
harassment were present but concluded that there was inadequate evidence to
find that harassment had in fact occurred. The appellant argues that the RO
should have conducted a proper investigation, and that the CDS erred in
adopting the RO’s conclusion notwithstanding the lack of proper investigation.
[81]
The appellant has again
asked this Court to reconsider a heavily fact-dependent conclusion. Moreover,
the appellant has mischaracterized the CDS’ decision. As discussed above, the
CDS canvassed all three allegations of harassment made by the appellant. The
CDS concluded that two of the three allegations did not meet the definition of
harassment, but found that the appellant’s third allegation – that he was held
to higher assessment standards than other students and was given unfavourable
leadership chits without justification – may have met the definition of
harassment. However, the CDS agreed with the RO that the appellant had not
provided sufficient information on which to base a finding of harassment. This
was a conclusion reasonably open to the CDS.
[82]
In my view, the decision of
the CDS is reasonable. The decision to dismiss the appellant’s grievance falls
within the range of reasonable outcomes, defensible in respect of the facts and
the law, and the reasons given by the CDS for doing so are justifiable,
transparent, and intelligible (Dunsmuir, supra at para. 47).
VII.
Conclusion
[83]
The Federal Court judge did
not err in his selection or application of the standards of review to the
decision of the CDS. The appellant’s procedural entitlements were respected
during the grievance process, and the decision of the CDS to dismiss the
grievance was reasonable. I would therefore dismiss the appeal, with costs.
"David G. Near"
“I agree
C. Michael Ryer J.A.”
“I agree
Wyman W. Webb J.A.”
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