Docket: T-987-22
Citation: 2024 FC 142
[ENGLISH TRANSLATION]
Ottawa, Ontario, January 30, 2024
PRESENT: Madam Justice Walker
BETWEEN:
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ADAM ALLDOWELL
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I. Background and Facts
[1] The applicant, Second Lieutenant (Retired) Adam Alldowell, joined the Canadian Armed Forces (CAF) in August 2007. He was released in 2011 and re-enrolled on November 6, 2013, in the occupation of Communications and Electronics Engineering. In 2017, he was reassigned to Aerospace Engineering (AERE).
[2] On October 16, 2017, the applicant began the AERE Officer Basic Course (AERE course) at the Canadian Forces School of Aerospace Technology and Engineering (CFSATE). However, the CFSATE Commandant decided to cease his training in February 2018 and the applicant was assigned to Canadian Forces Base (CFB) Trenton for an on-the-job training period.
[3] On October 22, 2018, the applicant began a second attempt at the AERE course. Unfortunately, between November 2018 and May 2019, several instructors/observers assessed his performance as substandard and showing a deficiency in professional qualities. As a result, the applicant was the subject of an independent review, which recommended that a Progress Review Board (PRB) be convened.
[4] The PRB was held in April 2019. The PRB subsequently unanimously recommended the cessation of the applicant’s training, and the CFSATE Commandant, Lieutenant-Colonel Rhéaume, accepted the recommendation. Considering the nature of the applicant’s shortcomings with regard to professional qualities for a second consecutive year, the Commandant considered that the applicant had ample opportunity to meet the standard and the expectations of a graduate of the course. On May 13, 2019, the decision was made to cease training because it was determined that he [translation] “did not have the Professional Skills and Attributes expected of an AERE officer, hence the cessation of your training.”
The Commandant referred the applicant to the Personnel Selection Office so he could choose another military occupation.
[5] On June 7, 2019, the instructor who had assessed the interview practices for performance objective (PO) 406 informed all the candidates that following a review, nobody had failed the interview sessions.
[6] On July 19, 2019, the applicant was transferred to CFB Trenton.
[7] On August 12, 2019, the applicant filed a grievance (the Grievance) challenging the CFSATE Commandant’s decision to cease his training.
[8] In January 2020, the Deputy Personnel Services Officer at CFB Trenton indicated that the applicant was offered three different occupations that he could transfer to, but he refused.
[9] On July 15, 202, the applicant filed grievances for harassment against two majors/instructors responsible for his AERE training (Major M and Major A).
[10] The applicant was released from the CAF on May 4, 2021, having reached the compulsory retirement age.
[11] On March 3 2022, the Commander of the Royal Canadian Air Force, Lieutenant-General A.D. Meinzinger, as the final authority (FA) in the CAF grievance process, dismissed the Grievance. The FA concluded that the applicant was treated fairly in accordance with the applicable regulations and policies and that he could not grant the remedies sought.
[12] The applicant is now seeking judicial review of the FA’s decision. He submits that the decision was based on false information and that his training was not conducted within the required standards of fairness and equality. The applicant submits that he was targeted by the instructor Major M, which he feels significantly reduced his chances of successfully completing his AERE officer basic training.
[13] After having carefully considered the parties’ written and oral arguments, I cannot find that the FA rendered an unreasonable decision with regard to the applicant’s grievance, or that the reasons for his findings were inadequate. The decision takes into consideration the evidence and represents a defensible outcome based on the facts and the law.
[14] For the detailed reasons below, the application for judicial review will therefore be dismissed.
II. The Grievance
[15] The applicant alleges that the decision by the CFSATE Commandant to cease his training was unfair considering it was based on false information and did not follow the established procedure. With regard to the false information, he explains that the Commandant partially based his decision on the alleged failure of PO 406, but he did not fail this course. As for the procedures, the applicant submits that the PRB was held because his performance while presenting a summary in English during an end of stage simulation exercise (ESE2) did not meet the required standard. However, he submits that the exercise was conducted entirely in English, in violation of his language rights, and he had much more to process than his peers, which made the exercise more difficult than usual. The applicant adds that an essential part of the material for the end of term was only taught after the ESE2 exercise.
III. Legislative and Regulatory Framework for CAF Grievances
[16] The principles and procedures of the CAF grievance process are established in sections 29 to 29.15 of the National Defence Act, RSC 1985, c N-5 (the NDA). Pursuant to subsection 29(1) of the NDA, an officer who has been aggrieved by any decision in the affairs of the CAF is entitled to submit a grievance when no other process for redress is provided under the NDA. The CAF grievance procedure generally includes two levels: the Initial Authority (IA) and the Final Authority (FA) (Beddows v Canada (Attorney General), 2019 FC 671 at para 3). The Chief of the Defence Staff (CDS) or his or her delegated authority acts as FA (sections 29.11 and 29.14(1) of the NDA). In this case, the powers, duties and responsibilities of the CDS as FA were delegated to the Commander of the Royal Canadian Air Force.
[17] Pursuant to section 29.12, a grievance can be subject to a discretionary referral to a Military Grievances External Review Committee (the Committee). The Committee is responsible for conducting an independent analysis of the grievance and presenting non-binding findings and recommendations to the FA (section 29.13 of the NDA).
[18] The Defence Administrative Orders and Directives or “DAODs”
are orders to CAF members (Walsh v Canada (Attorney General), 2015 FC 775 at para 33) and DAOD 5039-6 governs the delivery of training and education in both official languages. Among other standards and directives that apply to training for CAF members, Volume 5 of the Canadian Air Division Orders (CADO) applies to the CFSATE. Pursuant to Order 5-213 of Volume 5, a PRB can be held in the case of failure when a candidate shows insufficient progress that was not corrected by previous revisions, including shortcomings with expected professional qualities. The authority to withdraw a student from a course for this reason lies with the CFSATE Commandant.
IV. The IA Decision
[19] On March 11, 2020, the Commander of 16 Wing, Colonel Godbout, acting as initial authority (IA), concluded that the decision by the CFSATE Commandant to cease the applicant’s training was justified and that the items identified in the Grievance were not the main causes of the cessation.
[20] The IA acknowledged that the applicant had not failed PO 406 and ordered that the course report be corrected, but still considered that this alleged failure was not a determinative factor in the Commandant’s decision. The IA also agreed with the applicant that the ESE2 exercise was not conducted in compliance with DAOD 5039-6 (Delivery of Training and Education in Both Official Languages). However, he noted that the School had offered the applicant individual tutoring, an observer whose first official language was French, and the opportunity to express himself in the official language of his choice. The IA explained that neither the failure of the applicant’s exercise nor the sequence of the instruction of the exercise were the main grounds for ceasing his AERE course.
[21] The IA proceeded with a detailed analysis of all the applicant’s performance evaluations during his training and all of the standards that apply to the PRB and the Commandant. The IA concluded that the main cause of the cessation of the applicant’s training was his repeated breaches of professional qualities and not his academic performance. It noted that the CFSATE Commandant had the authority to withdraw a student from the course for this reason and that the justification for the decision was clear.
[22] As for the remedies the applicant requested, the IA encouraged him to visit the CAF Health Services Centre and enquire about the services available after his release. The IA noted that the applicant had refused all the career choices offered by the 8 Wing Personnel Selection Officer in October 2019, and that the applicant could not re-take the AERE course in 2020–2021 because he would reach the mandatory retirement age on May 4, 2021, before the end of the course.
V. Findings and Recommendations of the Military Grievances External Review Committee (the Committee)
[23] The Grievance was referred on a discretionary basis to the Committee pursuant to section 29.12 of the NDA.
[24] On September 14, 2021, the Committee completed its independent analysis of the Grievance and presented its detailed findings and recommendations for the FA to review. The Committee’s report was shared with the applicant, who provided written comments to follow-up on the report. Ultimately, the Committee recommended that the Grievance be denied.
[25] The Committee began its analysis of the Grievance by noting the harassment complaints filed by the applicant. The Committee explained that these complaints were being reviewed by the CAF and it would therefore be premature for the Committee to review the applicant’s allegations.
[26] The Committee then presented an overview of the applicable qualification standards for the AERE course, in particular the professional qualities that the candidates must show and the methodology for assessing these professional qualities. The Committee observed that the course report stated that the AERE course was the last phase of the basic officer training for this occupation and that to complete the course, candidates must meet both the academic and professional quality standards.
[27] The course report indicates that the applicant was withdrawn from the course for breaches of the professional qualities required for an AERE officer. The applicant successfully completed the academic phase for PO 402, 406 and 411 and reached the standard for written communication and, with difficulty, for supervision, initiative, ethical accountability and military values. On the other hand, his professional qualities shown during the course were considered to be substandard with regard to his ability to develop team spirit and work with others; problem solving and decision making; efficiency; verbal communication; application of professional knowledge and skills; resource management; and reliability.
[28] The Committee reviewed the applicant’s alleged conduct:
Biographical essay: The applicant was assessed as having a substandard performance because he essentially submitted the same biographical essay as the previous year, with the same grammatical and structural errors for which he had received feedback. The applicant replied that he had made some modifications to the 2017 essay and submitted it, explaining that his motivation to become an AERE officer had not changed from 2017 to 2018. According to the Committee, it was appropriate for the instructor to consider the applicant’s lack of effort. The training plan indicated that candidates should apply the knowledge learned and the applicant received feedback that he did not take into consideration.
Late arrival at gymnasium: The applicant arrived late for a physical training session, without letting the chain of command know in advance. The instructor noted that this was a substandard performance based on the professional quality (reliability). The Committee stated that being late is a criterion noted in the instruction plan that indicates a substandard performance.
End of Stage Exercise 1 (ESE1) evaluation: The applicant was evaluated as having a substandard performance for the first end of stage exercise, ESE1. After having identified the applicant’s strong points as an editor, the instructor then explained that an interview led by the applicant did not go well. Although the applicant completed some aspects of the exercise, the Committee concluded that he had not shown all the expected professional qualities.
ESE2 evaluation: Twice, the applicant’s performance was assessed as substandard for ESE2. While the applicant was team leader of a group during the exercise, the first instructor determined he had assigned tasks [translation] “inconsistently”
and had not assigned all of them as required. A second instructor noted that during another part of the exercise, the applicant and his team failed by submitting work that was of poor quality or incomplete for 35% of the deliverables. The Committee was of the opinion that the evaluation of his performance corresponded to a substandard performance.
[29] The Committee concluded that the decision of the CFSATE Commandant to cease the applicant’s AERE officer basic training was justified. His student record showed that he did not meet the standard established for certain professional qualities sought and that he had received sufficient and clear targeted feedback over several months:
[translation]
These breaches were reasonably considered to be incompatible with the military occupation of Aerospace Engineering Officer. As a result, a PRB was duly called in accordance with the applicable policies. Although the complainant was successful academically, candidates in the course must also show that they have the required professional qualities. The training plan indicates that failures in terms of professional qualities could justify the cessation of the training. I also note that the complainant remained a member of the CAF until the mandatory retirement age as he requested. Without having reviewed the allegations of harassment, discrimination and official languages breaches that are the subject of other complaints being reviewed, I conclude that the complainant was treated fairly and in accordance with the relevant policies regarding the decision to cease his training.
[30] The Committee recommended that the FA not grant the applicant redress.
VI. The Impugned Decision: The FA’s Decision
[31] The FA reviewed the applicant’s Grievance and case de novo, explaining that [translation] “any previous decision has been set aside”
and that it considered the issues raised in the Grievance again.
[32] The FA began the assessment of the Grievance by noting the relevant evaluations of the applicant during his 2018–2019 AERE officer basic training:
October 3, 2018: The applicant was evaluated as having a substandard performance for a biographical essay submitted in preparation for the AERE course.
November 14, 2018: An instructor evaluated the applicant’s performance as substandard because he arrived late for the group physical training session without permission and without informing anyone.
January 27, 2019: An instructor evaluated the applicant’s performance in ESE1 as substandard because he was not well prepared to lead an interview.
February 14, 2019: The applicant received Personnel Development Review and was advised to improve his time management and ability to act independently.
April 10, 2019: During ESE2, an instructor evaluated the applicant’s performance as substandard because his team’s tasks were considered to be poorly executed, late or incomplete.
April 15, 2019: Also during ESE2, a second instructor considered his performance as substandard because he had trouble with the work load and delegating to his team members.
May 6, 2019: The applicant was evaluated on his work as a team member for the third end of stage exercise. The instructor concluded [translation of French translation; original not found], “His overall performance in the exercise was good with some room to improve. He should be considered for a future leadership role.”
[33] To render his decision, the FA had to consider whether the breaches of professional qualities described above justified the withdrawal of the applicant from the AERE course. To this end, he reviewed the Committee’s findings and recommendations and stated that he agreed with its analysis.
[34] At the start of his analysis, the FA referred to the harassment complaints the applicant filed in July 2020 against two of his instructors. In these complaints, the applicant alleges unfair treatment because of suspected ageism, racism, discrimination and abuse of authority. Since these two complaints were sent to the Committee for its recommendations, independently of the Grievance referral, the FA did not deal with them.
[35] I will address the FA’s analysis regarding the merits of the applicant’s allegations in depth during my analysis, as the applicant raises the same allegations and arguments in support of his application for judicial review. As an overview, the arguments the applicant presented to the FA were (a) the role of false information in the decision to cease his training; (b) the deviation from the instruction standards during the ESE2 exercise (lack of instruction and evaluation in French, increased level of difficulty and order of delivery); (c) absence of progression in the administrative measures justifying the calling of a PRB and the CFSATE Commandant’s decision.
[36] The FA concluded that the CFSATE Commandant justified his decision clearly and reasonably. According to the FA, that decision was not based solely on the applicant’s academic results. The decision was instead made on the basis of the nature and quantity of the applicant’s breaches of professional qualities:
[translation]
The PRB correctly explained that the main reason for their recommendation to cease your training was the breaches of professional qualities and not your academic performance. I agree: you had several opportunities to improve your professional qualities during your years with the CAF and the PRB was called in accordance with the CADO [Canadian Air Division Orders]. As a result, I consider, as the Committee did, that the decision to cease your training was justified and reasonable in the circumstances.
VII. Preliminary Statements
[37] In his submissions for this judicial review, the applicant raised several arguments that involve mainly his complaints of harassment and abuse of power. His arguments show his strong conviction that deliberate acts by the two majors named in his complaints irreparably removed any possibility for him to receive a positive result in the AERE course. I do not doubt the sincerity of the applicant’s convictions. However, this application addresses only the FA’s decision to dismiss the Grievance and confirm the CFSATE Commandant’s decision to cease the applicant’s training. The Court will examine the FA’s reasons justifying his decision, the relevant constraints and regulations, the evidence in the Certified Tribunal Record (CTR) and the arguments of both parties. As the Committee and the FA noted, the two harassment complaints are being processed under a distinct and independent examination process. The applicant’s arguments underlying his harassment complaints are outside the scope of the present application for judicial review and I will not consider them.
[38] Moreover, the respondent submits that several paragraphs of the applicant’s affidavit dated November 7, 2022, contain arguments, opinions and speculations instead of factual statements, contrary to subsection 81(1) of the Federal Courts Rules, SOR/98‑106 (the Rules). The respondent also submits that some of these paragraphs are outside the scope of an application for judicial review as they are linked to allegations and complaints of harassment and that the applicant is attempting to introduce new facts that were not included in the CTR.
[39] I agree with the respondent. The applicant is seeking to introduce new facts and evidence that were not presented to the FA as well as his opinions on certain aspects of the way the AERE course was conducted. I do not grant any weight or probative value to these passages, opinions, and/or new facts (Richard v Canada (Attorney General), 2023 FC 311 at paras 21, 24 (Richard)).
VIII. Standard of Review
[40] The FA’s decision, a decision by the final authority in the CAF grievance process, is reviewed under the reasonableness standard (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 25 (Vavilov); François v Canada (Attorney General), 2017 FC 154 at para 32; Filizola v Canada (Attorney General), 2021 FC 1368 at paras 42–49 (Filizola); Richard at para 26).
[41] When the applicable standard is reasonableness, the role of a reviewing court is to assess the administrative decision maker’s reasons and determine whether the decision is based on “an internally coherent and rational chain of analysis”
and is “justified in relation to the facts and law that constrain the decision maker”
(Vavilov at para 85). I must ask “whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility”
(Vavilov at para 99). I also recognize this Court’s case law, which requires that “a wide margin of appreciation must be accorded to the FA in exercising its grievance jurisdiction”
(Filizola at para 45, citing Bond‑Castelli v Canada (Attorney General), 2020 FC 1155 at para 31).
IX. Analysis
[42] The applicant submits that the CFSATE Commandant’s decision was unfair. In his opinion, the breaches of professional qualities identified by his instructors were not serious enough to justify ceasing his training as an AERE officer. The applicant feels that the FA should not have considered the evaluation of his biographical essay and that his alleged failure of PO 406 challenges the findings of his instructors with regard to his breaches of professional qualities. Moreover, the applicant submits that the manner in which the training was provided did not meet the required standards of fairness and equity, as certain activities and evaluations, including ESE2, were only offered in English and in an order that was disadvantageous to the students.
[43] The applicant’s arguments have not convinced me. In fact, the applicant has not shown any reviewable error in the FA’s reasons and findings. He instead repeats the same arguments used to challenge the CFSATE Commandant’s decision that he raised in his Grievance. These arguments were reviewed and dismissed by the CFSATE Commandant, the IA, the Committee and the FA, in accordance with the NDA and the relevant standards and directives. Essentially, the applicant is asking the Court to reassess the evidence that was before the FA and to overstep its judicial review role (Vavilov at para 125; Richard at paras 32–33). The FA has the responsibility to analyze the evidence and is owed deference.
[44] The FA’s decision was made after an extensive analysis of the applicant’s file, including the Committee’s findings and recommendations. The FA addressed the applicant’s main arguments in detail, one at a time, and referred to the observations and evaluations the instructors had completed throughout the course. The FA noted that the applicant had received feedback several times with regard to his breaches and that he had several occasions to improve his performance with regard to his professional qualities.
[45] The applicant raises the following arguments with regard to the FA’s findings.
[46] First, the applicant submits that the FA should ignore the negative evaluation of his biographical essay because the essay delivery date preceded the start of the AERE course. Although the essay is an introductory element of the course, it was nonetheless mandatory and subject to a formal evaluation. In my opinion, the FA did not err by considering it in his list of problematic evaluations.
[47] Second, the applicant submits that the CFSATE Commandant’s decision was based on false information, in particular the failure of PO 406. However, the applicant’s argument regarding the significance of this error and the alleged dishonest conduct of his instructors has no relevance to the FA’s decision. The FA noted the error and stated that the IA ordered the modification of the course report and the applicant signed the modified course report on June 9, 2020. The FA concluded as follows:
[translation]
That said, I feel that this alleged failure was not a determining factor in the decision to cease your training, considering the PRB was called because you did not reach the required standard of professional qualities during the course.
[48] In short, the applicant’s argument regarding PO 406 does not take into consideration the IA’s decision, the correction of the error and the FA’s analysis and finding. The FA did not base his decision on false information and he found that the error was not a significant factor in the decision to call the PRB or in the CFSATE Commandant’s decision. It was reasonable for the FA to not rely on the applicant’s suspicions about his instructors.
[49] Third, the FA addressed the applicant’s argument that the instructors’ deviating from the instruction standards led to the cessation of his training. The applicant submits that the majority of the ESE 2 end of stage exercise was in English, thereby violating DAOD 5039-6 and the principles of fairness and equity for Francophone students.
[50] In his decision, the FA recognized that certain parts of the instruction and end of stage evaluation were not conducted in accordance with DAOD 5039-6, but he concluded that the language difficulties were not a factor linked to the CFSATE Commandant’s decision to cease the applicant’s training. Additionally, the FA noted that language aids were available to provide the applicant with instruction in both official languages, including access to qualified teachers in both official languages, simultaneous interpretation and the possibility of doing his written and oral work in the language of his choice. The FA was convinced that the language resources made available to the applicant were sufficient to support instruction in both official languages.
[51] The FA’s reasons explain why the applicant’s language concerns do not undermine the CFSATE Commandant’s decision. The applicant is asking the Court to intervene because the instruction and evaluation of ESE2 were not in compliance with DAOD 5039-6, but he did not dispute the availability of the language aids listed by the FA. He also did not show any reviewable error in the FA’s finding that the language difficulties were not a factor in the cessation of his training, given his performance evaluations that were provided during the AERE course.
[52] In his arguments before the FA, the applicant submitted that the instructor increased the level of difficulty of ESE2 and that most of the lessons had not been taught at the time of the evaluation of the exercise. The FA concluded that there was nothing to indicate that the level of difficulty of the exercise exceeded the acceptable instruction standards, and that all the teams received the same input for the exercise. According to the FA, the purpose of ESE2 is to strengthen the fundamental skills [translation] “such that the students can resolve problems by adopting the correct approach and applying the knowledge they have acquired to unfamiliar situations.”
The FA was of the opinion that the applicant showed some shortcomings in the exercise because he was unable to understand the situation, prioritize tasks and recognize the strengths of his team. The order of lessons was not a significant factor in the CFSATE Commandant’s decision. The FA intelligibly expressed his disagreement with the applicant’s concerns regarding the way ESE2 was conducted.
[53] Lastly, the FA addressed the issue of the progression of administrative measures to justify calling a PRB and ceasing the applicant’s training. After having reviewed the applicant’s file, the FA noted that in light of the quantity of feedback he received, the applicant was aware of these evaluations. Additionally, an independent review was held on April 17, 2019, which led to the PRB. According to the FA, the PRB was called in accordance with the orders and qualification standards applicable to the AERE course:
[translation]
Indeed, a PRB can be held if there are shortcomings in expected professional qualities and, throughout the training, you were required to positively show the professional qualities of an officer regarding both attitude and attributes. The CFSATE Commandant clearly and reasonably justified his decision and it was not based solely on your academic results as you seem to be aware.
[54] Instructors assess the professional qualities of the candidates throughout the course. In this case with the applicant, there were repeated shortcomings that led to the independent review by the PRB. The PRB then provided the CFSATE Commandant with a recommendation to cease his participation in the AERE course. The FA noted that the Commandant’s decision to cease the applicant’s training was based on the nature and quantity of his breaches of professional qualities and not his academic performance. I do not see any error in the FA’s analysis in this context.
[55] The performance results to which the FA refers in his decision are part of the CTR. I recognize both the applicant’s argument that the breaches were not serious and the positive mentions of his performance interspersed through his file, but it was open to the FA to conclude that a series of substandard performance results justified the cessation of his training by the CFSATE Commandant.
[56] In other words, the FA’s analysis and decision are within the range of possible and acceptable outcomes in the circumstances of this file. The FA clearly and unambiguously explained the reasons for which he affirmed the denial of the Grievance and the cessation of the applicant’s AERE officer basic training. The FA considered all of the applicant’s arguments. His analysis of the evidence on record that underlies his findings was “based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrain [him]”
(Vavilov at para 85). Therefore, I conclude that the decision more than meets the Supreme Court of Canada’s requirements that for an administrative decision to be reasonable it must be transparent, intelligible and justified (Vavilov at paras 15, 99). The applicant did not meet his burden of proving that the FA’s decision was unreasonable.
X. Conclusion and costs
[57] The applicant’s application for judicial review will be dismissed.
[58] In accordance with subsection 303(1) of the Rules, the style of cause is amended such that the Attorney General of Canada is named as the respondent.
[59] Although the usual practice is to award costs in favour of the successful party, under section 400 of the Rules, the Court has full discretionary power in this matter. Exercising this discretion, I am of the opinion that the applicant should not be ordered to pay costs and none will be awarded.
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