Docket: T-1824-24
Citation: 2025 FC 1612
Toronto, Ontario, October 1, 2025
PRESENT: The Honourable Mr. Justice A. Grant
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BETWEEN: |
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CAPTAIN JOHN FUNELAS |
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Applicant |
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and |
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ATTORNEY GENERAL OF CANADA |
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Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] This matter relates to a series of events that took place in early 2020 at the Canadian Forces Base in Trenton, Ontario.
[2] The Applicant, Captain John Funelas, believes that he was treated both unreasonably and unfairly in relation to those events. However, for the following reasons, I have concluded that the decision under review was both procedurally fair and reasonable. As such, I will dismiss this application for judicial review.
II. BACKGROUND
A. Facts
[3] The Applicant, Captain John Funelas, is a chaplain in the Royal Canadian Chaplain Services [RCChS] with the Canadian Armed Forces [CAF]. Between December 27, 2019 and January 6, 2020, Captain Funelas was designated as the Duty Chaplain [DC] for 8 Wing Trenton, the base where he was stationed. As DC, he was responsible for responding to any emergencies that arose during that period.
(a) Role of the Chaplain
[4] Chaplains play a unique role in the CAF. They are intended to facilitate a sense of community, to provide support and care to the CAF members and their families, and to provide advice to the military chain of command [CoC]. They are responsible for providing comprehensive religious and spiritual support, advice, and care to soldiers and their families, including pastoral care for the physical and moral well-being of CAF members and their families.
[5] However, chaplains are also officers in the CAF and are subject to the authority of their Commanding Officer [CO], who is not a chaplain. This is because chaplains have no command authority, pursuant to the Queen’s Regulation and Orders for the Canadian Armed Forces [QR&O] 3.31. Therefore, the imposition of remedial measures in relation to conduct and performance deficiencies is properly undertaken by a CO under the Defence Administrative Order and Directive [DAOD] 5019-4.
[6] In practice, there is also a Supervising Chaplain—normally a major—who is responsible for supervising chaplains on a day-to-day basis. The Supervising Chaplain is the “Tactical CoC”
for operational purposes, which is separate from the “Military CoC”
(i.e., the chaplain’s CO). The military CoC is responsible for conduct, performance, and disciplinary matters.
(b) Relevant Policies
[7] In October 2018, after chaplaincy training, the Applicant signed Part 1 of his Personnel Development Review, which listed critical tasks and expected results related to military duties. These include maintaining a working knowledge of the QR&O 33.03 and the RCChS policies and directives, completing significant incident reports [SIRs], following up on emerging issues, and performing secondary duties as directed by the Supervising Chaplain.
[8] Under a protocol issued by the Director of Chaplain Operations, a significant incident report [SIR] is required for “significant incidents,”
which include those involving the death or serious injury of a CAF member in Canada. These are designed to ensure that “pastoral care has been offered and that chaplains are working with local teams to ensure ongoing support to the affected members, their families and unit members, as required.”
[9] Similarly, the 8 Wing Standing Operating Procedure [SOP] requires DCs to notify the CO of an affected soldier’s unit when responding to an emergency.
[10] The Applicant and all other chaplains of 8 Wing Trenton were reminded of these policies, particularly regarding SOPs, at a meeting in December 2019. Specifically, they were reminded that chaplains must provide timely notice to the relevant CO any time they provide services to a CAF member.
(c) January 2, 2020 Incident
[11] Early on January 2, 2020, a soldier suffered a medical emergency and was hospitalized for the second time that day. The soldier’s spouse requested “any form of support.”
First responders, the Duty Watch Officer [DWO], and the Emergency Response Team [ERT] called Captain Funelas at 12:24a.m. to request his assistance, as DC. The DWO explained that the spouse needed help finding childcare for her three children so that she could be with her husband at the hospital. Captain Funelas refused to attend in person and did not offer support because according to reports in the record, he “wasn’t a babysitter.”
[12] The ERT called Captain Funelas again at 12:35a.m. and 12:43a.m. In the first call, Captain Funelas stated he “doesn’t understand what [the spouse] wants,”
and declined to attend the scene, because he interpreted the request for support as being a request for baby-sitting or substitute decision-making at the hospital. He also inquired about whether the soldier’s spouse was military, as that would impact his ability to help her. After the second phone call, he agreed to call the soldier’s spouse, but again declined to attend the scene.
[13] At 12:48a.m., Captain Funelas called the soldier’s spouse and provided support. At 1:28a.m., he told the spouse he would provide contact numbers for the Military Family Resource Centre [MFRC] childcare services. At 3:17a.m., he texted the spouse with phone numbers for childcare providers so that she could arrange her own childcare in the morning. At or around 1:52a.m., the Applicant emailed the MFRC for emergency childcare. However, the MFRC was closed for the holiday break, meaning that Captain Funelas did not get a response to his email. As the DC, he remained the point person for emergency childcare. Nonetheless, he did not utilize the personal and/or emergency numbers for possible childcare providers. He remained in contact with the spouse via text message throughout this time.
[14] On January 4, 2020, Captain Funelas visited the soldier in the hospital and provided him with a $100 grocery store gift card. He did not complete a SIR or notify the soldier’s CO, as required by the SIR protocol and 8 Wing SOPs. On January 6, the soldier’s CO asked the chaplaincy of 8 Wing why he was not notified that his soldier had been hospitalized. The same day, the Supervising Chaplain, Major Leclerc, requested a SIR and additional information. At this point, the Applicant complied and prepared a SIR.
(d) Interventions that Followed the January 2, 2020 Incident
[15] When the above came to the attention of the Applicant’s superiors, he was referred for a Personnel Development Review [PDR] action plan that required him to write letters of apology to the family, to the CO of the soldier’s unit, and to the chaplaincy; and to take on extra DC shifts. While the Applicant was initially remorseful and agreed to the PDR, he eventually refused to sign it or complete the action plan, stating that he had been informed by privacy law experts that the unwritten SOPs were not in line with privacy law insofar as they required chaplains to share members’ medical information with the CoC.
[16] As a result of these events, a Unit Disciplinary Investigation [UDI] was conducted to investigate whether the Applicant’s conduct resulted in the commission of service offences contrary to the National Defence Act [NDA]. However, because Major Emond, the investigating officer, concluded that Captain Funelas had not been intentionally deficient in the performance of his duties, no charges were laid against him and the matter was converted from a disciplinary investigation to an administrative one.
[17] At the conclusion of this process, an “Initial Counselling”
[IC] remedial measure was imposed because the Applicant’s response as a DC was found to have fallen below the expected standard for a chaplain. The deficiency was identified as:
While tasked as the 8 Wing Trenton Duty Chaplain on 2 January 2020, Capt Funelas failed to provide adequate pastoral care in that he did not provide moral support to a spouse of a hospitalized CAF member until prompted to do so and did not connect her with other support providers in a timely manner. He failed to follow 8 WG Chaplain SOPs and D Chap Ops SIR reporting when he failed to advise both his immediate chain of command and the member’s chain of command in a timely manner so that further support could be provided to the member and family. His actions were contrary to CAF Chaplains Orders in providing support to members and their families and 8Wg chaplain SOPs. His actions negatively reflected on the 436 Sqn chain of command and trust in the chaplain services by the CAF family member and other first responders that were present at the CAF member’s home.
[18] The IC also set out various remedial measures, including (but not limited to) the following: that Captain Funelas review applicable manuals and SOPs; that he prepare a list of helping professionals available at the base to assist him in providing support to members and their families; that he attend one of the 8 Wing Balance and Wellness meetings; and that he be shadowed for a period of time by a Wing Chaplain or another designated chaplain.
(e) Grievance
[19] The Applicant filed a CAF grievance pursuant to s.29 of the NDA, requesting that the IC be rescinded and all related documentation removed from his personnel file. Captain Funelas argued that:
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a)The Deputy Wing Commander failed to adequately confer with the Chaplain General when imposing the IC;
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b)The IC was imposed in an unreasonable fashion;
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c)The IC purports to hold him responsible for matters that were not within his scope of responsibility. Specifically, to attend to tasks beyond his areas of competence, expertise, and training, such as baby-sitting, providing childcare, or being a substitute decision maker for the hospitalized soldier; and
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d)The IC fails to identify the relevant standard of performance, and the imposed standard was arbitrary and unspecified.
[20] While the CO of a unit would typically be the initial authority [IA] to consider a grievance, the Commander of 8 Wing recused himself to avoid any perception of bias due to an ongoing and unrelated complaint against him by the Applicant.
[21] In September 2021, the designated IA denied the grievance on the basis that:
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a)The CO is not required to confer with the Chaplain General when imposing an IC;
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b)The IC was not imposed unreasonably as the short delay was due to the UDI and the COVID-19 pandemic;
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c)The IC did not hold the Applicant responsible for duties outside his scope of responsibility. It only focused on the policy and procedures that were not followed during the Applicant’s time as a DC (i.e., failure to complete a SIR and report to the CO according to 8 Wing SOPs); and
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d)The IC adequately identified the standard of performance that the Applicant failed to meet by noting that the Applicant failed to provide pastoral care until prompted to do so.
[22] The grievance process continued. In December 2022, the Military Grievance External Review Committee [MGERC] recommended denying the grievance. The MGERC found that the Applicant had not claimed that he promptly followed reporting duties as required in the SOPs, but rather suggested reasons why he did not see the need to do so. The MGERC concluded that because the Applicant’s deficiencies were largely military or administrative and had little to do with religious ministrations, it was not necessary to refer to pastoral care in the IC.
III. DECISION UNDER REVIEW
[23] The Final Authority [FA], led by Captain Cotton, conducted a de novo review and in June 2024 provided detailed reasons for denying the Applicant’s grievance.
[24] In arriving at this conclusion, the FA observed that chaplain services within the military are not restricted to faith-based or ecclesiastical issues: when responding to a crisis, chaplains must consider services beyond the normal ministration of religious services, which CAF chaplains are trained to do. The concerns in this case related to the Applicant’s performance as it related to those “non-ministration”
services.
[25] The FA also noted that, since COs are responsible for the wellness of members under their command, they rely on chaplains and other organizations for support. This, the FA explained, is why chaplains are required to advise the CoC when spiritual or physical services may be required for CAF members experiencing a personal crisis.
[26] The FA concluded, as follows:
In this instant I have concerns with your understanding of your professional performance requirement as it pertains to chaplain services that you are required to administer other than the ministration of religious services. This responsibility is a chain of command and a chaplain chain of command issues and responsibility. CAF chaplains are required to consider various chaplain services (pastoral care) in the context of CAF emergency crisis management. Chaplains are responsible to their chain of command for chaplain services they provide as identified in various orders and policies SOPs, QR&O, RCChC. I find that the IC identified a deficiency that was within the scope of your responsibilities as a DC and the actions required to correct the deficiency. I find that the IC as presented is factually correct, justified, and it will remain on your personnel file.
IV. ISSUES
[27] As a preliminary issue, the Respondent submits that certain portions of the Applicant’s affidavit should be struck because they are irrelevant, or contain opinion, argument, or legal conclusions.
[28] The Applicant raises a number of issues. He submits, first, that the UDI was improperly conducted, and that it was the Office of the Chaplain General [OCG] that ought to have been the investigating authority, given that the issue was a deficiency in pastoral care.
[29] The Applicant additionally argues that his right to procedural fairness was breached in the following ways:
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a)there was a reasonable apprehension of bias on the part of the FA;
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b)he had a legitimate expectation that the Chaplain General would be the investigating authority, given the allegations related to pastoral care;
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c)there was a failure to provide adequate disclosure of the case to be met on a timely basis; and
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d)the Applicant was denied his right to legal counsel during the UDI investigation interview.
[30] The Applicant also makes a number of arguments related to the reasonableness of the decision. In essence, however, he contends that the FA decision is not responsive to the relevant factual and legal constraints, and that the FA did not properly assess the evidence before him.
[31] I am inclined to agree with the Respondent’s formulation of the issues, which is:
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1)Whether the decision was procedurally fair, including:
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Whether the decision was tainted by procedural breaches in the process below;
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Whether there was a reasonable apprehension of bias in the decision;
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Whether the Applicant had a legitimate expectation that the Chaplain General would be involved; and
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2)Whether the decision was reasonable, including:
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Whether it was undertaken by the appropriate authority; and
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Whether it was justified in relation to the relevant facts and law.
V. STANDARD OF REVIEW
[32] On questions of procedural fairness, the standard is akin is correctness (see Mission Institution v Khela, 2014 SCC 24 at para 79; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35). This requires the Court to assess whether the procedure followed was fair, having regard to all the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54).
[33] With regard to the substance of the decision, the parties do not dispute that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23 [Vavilov]. In conducting a reasonableness review, a court “must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”
(Vavilov at para 15). It is a deferential standard, but remains a robust form of review and is not a “rubber-stamping”
process or a means of sheltering administrative decision makers from accountability (Vavilov at para 13).
VI. ANALYSIS
A. Preliminary Issue I: Should Portions of the Applicant’s Affidavit be Struck?
[34] The Respondent argues that much of the Applicant’s affidavit is improper because it contains irrelevant information, or impermissible opinion, argument, and legal conclusions. As such, the Respondent contends that many paragraphs of the affidavit should be struck, either entirely or in part.
[35] While I agree that the Applicant’s affidavit does contain language that is perhaps “over the line”
in terms of what is properly included in an affidavit, in my view, little turns on this issue. As will be set out below, this application must be dismissed irrespective of whether the Applicant’s affidavit veers at times into improper opinion or legal assertions. That said, I will also point out that I found the Respondent’s arguments in this regard to have been well considered, and thoroughly advanced.
B. Preliminary Issue II: Was the Respondent’s Affiant the Proper Affiant for this Application?
[36] The Applicant notes that the Respondent’s affiant, Colonel Lisa Pacarynuk, was inadequately aware of the context of this case, and that her lack of knowledge about important details “raises major procedural fairness issues.”
[37] However, I agree with the Respondent that Colonel Pacarynuk’s affidavit was intended to provide context to the Court in responding to the Applicant’s allegation that the Chaplain General possessed the authority to impose a remedial measure or that there was a requirement for the Chaplain General to be involved in the process. This being the case, I also agree with the Respondent that Colonel Pacarynuk was not required to familiarize herself with the particulars of the Applicant’s grievance. As the Respondent notes, the scope of the Applicant’s cross-examination of Colonel Pacarynuk was, or ought to have been, limited to the facts sworn in her affidavit or collateral questions that arose from her answers.
C. Preliminary Issue III: Proposed Redactions to the Record
[38] Both during and after the hearing into this matter, potential privacy concerns arose with respect to parts of the record that identify the military member involved in the January 2 incident. Following the hearing, the Applicant provided a list of proposed redactions to his record that would remedy this situation. I agree that there is no need to reveal the identity of the third-party military member in this matter. However, the redactions subsequently proposed by the Applicant do not only pertain to the identity of the military member and his family. I do not agree that the other proposed redactions, which relate to the Applicant’s own family, should be redacted from the record. This information was volunteered by the Applicant, presumably to help support his case. It is not for the Court to now go back and revise the Applicant’s own record in this context. As such, prior to my decision in this matter, I directed the Applicant to provide a revised record, with the accepted redactions. I will include in this decision an order that this revised and redacted record be accepted for filing.
D. The Decision was Procedurally Fair
[39] The Applicant argues that the FA decision was reached in a procedurally unfair manner, due to the animus underlying the UDI process on the part of his Supervising Chaplain, Major Leclerc, who was responsible for instigating the disciplinary investigation. It is important to note that neither Major Leclerc nor Lieutenant Colonel Kennedy, who ultimately prepared the IC, were involved in the UDI, which was undertaken by Major Emond.
(1) Decision Not Tainted
[40] The crux of the Applicant’s submission is that the entire FA decision was tainted by unfairness that began at the level of the UDI investigation. He argues that the UDI undertaken by Major Emond, which resulted in the IC, was biased because the investigation was instigated by the Applicant’s Supervising Chaplain, Major Leclerc, who was the subject of an ongoing concurrent investigation for harassment of Captain Funelas related to an incident at a Christmas party in 2019. The Applicant claims that the UDI, and therefore its results, were nothing more than a retaliatory measure undertaken by Major Leclerc in response to Captain Funelas’ outstanding grievance against him. Therefore, the FA decision, which was based on the findings of the UDI, was made in a procedurally unfair manner. Respectfully, I cannot agree.
[41] It is clear from the record that Captain Funelas has had a fraught relationship with his colleagues, and that he genuinely feels that he has been treated unfairly. I do not discount the possibility that the Applicant has indeed been treated poorly by his superiors. However, I do not see an indication that these difficult dynamics resulted in a procedurally unfair FA decision. Recall that the FA decision was a de novo decision, not an appeal, and not a review.
[42] While a de novo review may not always be a cure-all for procedural defects in an investigation process, in my view, the Applicant has failed to establish that the decision under review was tainted by the difficulties that defined his relationship with his superiors. The FA decision was not contingent upon the findings of the UDI. The UDI was one piece of the process, which generated evidence that was objectively relevant to the matter at hand. This evidence was accompanied by a fulsome body of evidence and submissions provided by the Applicant. In my view, this evidence was considered thoroughly and fairly in the FA’s decision-making process.
[43] It is important to note that, aside from his own suspicions, the Applicant has failed to point to any specific evidence in the record indicating any unfairness in the UDI process, or that any perceived unfairness tainted the FA decision. At the hearing into this matter, the Applicant referred to the ‘fruit of the poisonous tree’ principle, arguing that since, in his view, the investigation was tainted from the outset due to Major Leclerc’s involvement, the product of that investigation, the FA decision under review, must equally be tainted.
[44] That argument, however, must be supported by some indication that: a) the initial investigation was unfair, as alleged; and b) that the ensuing de novo FA process was tainted by the unfairness.
[45] Captain Funelas submits that Lieutenant Colonel Kennedy, who, recall, handled the IC process, acknowledged a bias issue with the investigation. However, it appears from the record that this correspondence was a reference to the presumption of partiality resulting from a concurrent investigation of a grievance filed by Captain Funelas against the Commander of 8 Wing Trenton. Accordingly, the Commander subsequently recused himself to avoid perceptions of bias.
[46] I am prepared to accept that there may have been some minor participatory shortcomings over the course of the UDI investigation related, for example, to Mr. Funelas’ right to full disclosure and his right to counsel. However, it is also clear from the record that these irregularities were substantively and meaningfully resolved by the time of the FA process. Indeed, the IC and grievance processes afforded Mr. Funelas ample opportunities for participation and legal representation, and he made extensive use of these participatory rights.
[47] Further, as noted above, the FA decision was a de novo review that took into account the recommendations of an external review committee, the MGERC. In these circumstances, the question is whether, given the circumstances as a whole, the procedure was fair: McBride v Canada (National Defence), 2012 FCA 181 at para 44 [McBride]. As in McBride, which involved a somewhat analogous procedural background, I have no hesitation in concluding that the process leading to the de novo FA decision was fair.
(2) No Reasonable Apprehension of Bias
[48] The Applicant further submits that the FA’s decision not to remove the IC as a remedial measure from his personnel file betrayed a reasonable apprehension of bias. However, as touched on above, the Applicant has been unable to indicate any conduct or reasoning on the part of the FA decision maker that would displace the strong presumption of adjudicative impartiality. Despite the Applicant’s assertion to the contrary, the mere fact that the FA did not accept his version of events does not establish a reasonable apprehension of bias.
[49] The test for a reasonable apprehension of bias was first articulated by the Supreme Court of Canada in Committee for Justice and Liberty v National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at page 394 [Committee for Justice and Liberty]:
What would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would [they] think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly.
[50] This test – of what a reasonable, informed person would think – has been applied extensively in the jurisprudence: Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 at paras 20-21 [Yukon]; Wewaykum Indian Band v Canada, 2003 SCC 45 at para 60 [Wewaykum]; CUPE v Ontario (Minister of Labour), 2003 SCC 29 at para 199; Miglin v Miglin, 2003 SCC 24 at para 26; Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para 46; R v S (RD), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para 11.
[51] The strong presumption of adjudicative impartiality, particularly in quasi-judicial decisions such as the one at issue, places a high burden of proof on the party alleging bias: Yukon at para 26; Wewaykum at para 77. The Federal Court of Appeal held in Beno v Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia) (CA), 1997 CanLII 6346 (FCA), [1997] 2 FC 527, citing Committee for Justice and Liberty, that “more than a mere suspicion, or the reservations of a ‘very sensitive or scrupulous conscience’ is required to displace the presumption of impartiality.”
[52] Here, the Applicant has failed to discharge his burden of proof. As the Respondent submits, Captain Funelas has not pointed to any conduct on the part of the FA decision maker, nor to any portion of his reasons, that grounds his allegations of bias. The Applicant’s contention stems entirely from the fact that the FA declined to vacate the IC from Captain Funelas’ personnel file—an IC that was imposed as a result of a disciplinary investigation turned administrative measure instigated on Major Leclerc’s recommendation. Essentially, the Applicant’s only support for his allegation of bias is that the FA did not accept that the UDI and subsequent IC were imposed as retaliatory measures against Captain Funelas for his complaint against Major Leclerc and were therefore inappropriately and unfairly imposed. I will discuss in greater detail below the reasonableness of the FA decision. For present purposes, I would conclude this point by underscoring that neither the Applicant’s disagreement with the FA’s conclusion, nor his past problems with Major Leclerc establishes that the FA process was unfair.
[53] It is clear that the Applicant had a poisoned relationship with at least some of his colleagues and superiors. This said, there is simply no indication in the record that these personal dynamics seeped into the decision-making process with regard to his grievance. Indeed, it appears that the opposite happened, and the multi-level grievance review process fulfilled its purpose. The FA, as the de novo decision maker, reviewed a number of differing accounts of the relevant events, including Captain Funelas’ account, and the account of first responders who had attended at the scene and had no prior relationship with Captain Funelas. Having done so, the FA then came to an independent conclusion, informed by the opinion of the MGERC, that the Applicant had been treated fairly and correctly.
(3) No Legitimate Expectations
[54] The Applicant also contends that he had a legitimate expectation that the Chaplain General and the OCG would be the investigating authority, given that the performance deficiencies at issue were related to pastoral care, an area in the exclusive domain of the Chaplaincy. With respect, this argument has no merit. As the Respondent submits, there is simply nothing in the relevant policy directives to support a legitimate expectation that the Chaplain General would investigate and decide Captain Funelas’ remedial measure.
[55] Indeed, the regulations and directions in the RCChS Service Manual confirm the opposite:
In all instances where a determination has been made to pursue administrative or disciplinary action with a chaplain, or where a supervising chaplain has been made aware that a military investigation has been initiated in relation to the performance or conduct of a chaplain the Office of the Chap Gen (OCG) is to be advised.
[56] It is clear from the above passage that there is no requirement, or legitimate expectation that the OCG would be involved in the investigation. While it does require that the OCG be “advised”
of administrative or disciplinary action, this fact only serves to affirm that the OCG is not the required investigative body in matters related to chaplain conduct and performance.
[57] Further, according to the QR&O 3.31, chaplains have no command authority – including the Chaplain General. It is therefore antithetical to the military CoC, and contrary to DAOD 5019-4, to assert an expectation that the OCG would be involved in, much less responsible for, disciplinary proceedings related to CAF duties. This remains true despite the Applicant’s assertion that the Chaplaincy is the subject matter expert on matters of pastoral care and therefore possesses the requisite expertise to adjudicate on performance deficiencies in pastoral care.
[58] A legitimate expectation can only arise where, amongst other things, there is a “clear and unequivocal”
representation that a particular procedure will be followed: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 94-95. Here, the Applicant has pointed to no clear and unequivocal representation that the OCG would conduct the investigation into the relevant events; in fact, the opposite appears to be contemplated in the applicable authorities.
E. The Decision was Reasonable
[59] The Applicant further submits that the FA decision was unreasonable. However, for the reasons set out below, I have concluded that he has failed to raise a reviewable error in the substance of the decision. The FA was the appropriate authority to make the decision, and the decision was intelligible, transparent, and justified in light of the factual and legal constraints.
(1) Appropriate Authority
[60] As noted above, the Applicant argues that the FA’s decision was unreasonable, because Lieutenant Colonel Kennedy, the Deputy Wing Commander and Captain Funelas’ CO, was not the appropriate authority to impose the IC remedial measure. He contends that the appropriate authority is the Chaplain General, because the alleged performance deficiency related to pastoral care. Again, I cannot conclude that this argument has any merit, for several reasons. First, as noted above, the RCChS Manual stipulates that, where administrative or disciplinary actions have been taken against a chaplain, the OCG is only to be “advised”
[emphasis added]. This has a distinct meaning from the Applicant’s suggestion that the OCG is to be “consulted”
regarding administrative or disciplinary actions against chaplains.
[61] I accept that the subsequent paragraph of the RCChS Manual does introduce some ambiguity in terms of the authority to discipline chaplains, when it states that:
There may be circumstances when Faith Group authorities become aware of a situation or circumstances that contravene their own policy or doctrine, involving one of their credentialed chaplains serving in the CAF. Each Faith Group has the absolute lawful right and authority to exercise professional religious discipline over their own CAF chaplains.
[62] However, read holistically and in conjunction with the QR&O 33.05, it is clear that the process contemplated in the above paragraph refers to a possible concurrent procedure whereby, once the Chaplain General is aware of alleged performance deficiencies, the chaplain in question can also be disciplined by their Faith Group, which might include the removal of the chaplain’s religious mandate by the Chaplain General. This is a distinct process from the CAF disciplinary proceedings. As touched on previously, according to the QR&O 3.31, chaplains have no command authority. That includes the Chaplain General. Because, under DAOD 5019-4, CAF disciplinary measures can only be imposed by an officer with command authority, and the performance deficiency occurred in the course of the Applicant’s duties as a CAF chaplain at a CAF base, there are no grounds for the Applicant’s assertion that the OCG was the appropriate authority to impose the IC, rather than his CO.
[63] While the Chaplain General would have been the correct authority to revoke Captain Funelas’ mandate as a chaplain, this entity is not the appropriate authority to impose military disciplinary or administrative proceedings. That is particularly the case given that a significant portion of the alleged performance deficiencies concerned CAF policies, such as the failure to follow the Trenton SOPs and the failure to appropriately complete a SIR.
[64] The evidence confirms this. In communications with the IA who reviewed the Applicant’s grievance, the Deputy Director Chaplaincy Operations in the OCG stated that:
The CAF RCChS Manual is chaplain policy and doctrine. There is no responsibility for the CoC to “confer” with the Chaplain General before, during, or after the consideration of administrative or disciplinary action. This would imply that the Chaplain General or the Office of the Chaplain General had a right/obligation to provide input, which could be seen as interfering in the process. The exact opposite is desired. The expectation is that chaplains will be treated the same as any other CAF member. When conduct or deficiencies warrant, the expectation is that the chaplain will be held accountable.
…
In the manual … there is no mention of the requirement of the CoC to confer with the Chaplain General in matters of administrative or disciplinary action, rather the policy indicates that the supervising chaplain is to advise the Office of the Chaplain General that such events are occurring. This is expected to occur through the chaplain technical chain of command….
[65] In the same communication, the OCG communicated that they had been sufficiently advised throughout the Applicant’s disciplinary process.
(2) Pastoral Care Standard
[66] The Applicant also submits that the FA’s decision was unreasonable because it was not justified according to the relevant factual constraints. Specifically, he submits that the finding of performance deficiencies was unreasonable because DAOD 5019-4 does not establish performance standards. I respectfully disagree. The record indicates that performance standards for DCs are established in the SOPs and the SIR policies, both of which Captain Funelas was trained on and yet failed to follow. These documents create, if not a formal standard of performance, a set of expectations for chaplains acting as DCs against which an individual DC’s performance can be assessed. In this case, the FA considered the Applicant’s response to the events of January 2 and reasonably found, based on the available evidence, that Captain Funelas did not meet the expectations set out in the documents.
[67] Captain Funelas contends that he should not be faulted for failing to follow the Trenton SOP, which includes the requirement to inform an injured soldier’s CO, because it was not in the “duty bag”
provided to DCs when on-call. Instead, he claims that the duty bag contained a copy of a previous SOP that did not include that reporting requirement. I do not accept this argument. It is clear from the record that the Applicant had received training on the updated SOP, and that it was accessible on a drive shared by relevant personnel. In fact, this information had been communicated to all the 8 Wing Trenton chaplains, including the Applicant, at a meeting in December 2019, just before the incident in question.
[68] Additionally, the Applicant submits that he did not follow the SOP because of his concerns about its compliance with privacy laws. With respect, this argument lacks any merit. First, it is undermined by the fact that Captain Funelas appears to have asked the DWO to inform the injured soldier’s CO of the incident. This being the case, it seems that Captain Funelas’ preoccupation with privacy concerns arose at some point after the events in question. More importantly, his concerns are completely misplaced. It is far from established in the record before me that the applicable SOP, which was reviewed by the Judge Advocate General, violated the Privacy Act. It was also not for the Applicant, who is not legally trained, to selectively decide to follow, or not follow, SOPs, based on his own understanding of privacy law. For this reason, it is not particularly relevant that the SOP has now changed, in part based on concerns raised by the Applicant.
[69] Similarly, although Captain Funelas is of the opinion that the incident in question did not require a SIR, his own understanding of the SIR policies does not render the FA’s decision unreasonable. Put differently, I see nothing unreasonable in the FA’s conclusion that the Applicant’s performance on the dates in question raised concerns about his understanding of his performance obligations.
[70] Further, the Applicant contends that the FA decision failed to grapple with the exculpatory evidence provided by Captain Funelas regarding his conduct during the January 2 incident. This evidence included Captain Funelas’ accounts of what transpired during the events in question. Once again, I cannot agree.
[71] As noted, the FA decision engaged extensively with the Applicant’s evidence, listing each of the key facts collected during the UDI investigation and the Applicant’s position in relation to them. It is clear from the record and submissions that there are differing accounts as to what was communicated to and by the Applicant over the course of his phone calls with the first responders and the soldier’s spouse. Both parties agree that there was a back-and-forth with the ERT and that there was some passage of time, and multiple calls, before Captain Funelas called the spouse to begin pastoral care. The parties disagree as to whether this constituted a lack of timely pastoral care.
[72] I find, in these circumstances, that the FA decision was reasonable. The FA clearly considered the Applicant’s version of events and concluded that the IC as a remedial measure had been fairly imposed. Given that the FA did, in fact, grapple with the Applicant’s evidence and submissions, there is no unreasonableness in his decision not to agree with Captain Funelas’ version of events. The Applicant’s submissions to the contrary are fundamentally a request to reweigh the evidence duly considered by the underlying decision maker, which is not the role of the court in a judicial review: Morrisey v Canada (Attorney General), 2017 FC 345; Vavilov at para 125.
[73] As a result of the above, I have concluded that the Applicant has failed to establish that the FA’s decision was unreasonable.
VII. CONCLUSION
[74] For the foregoing reasons, I would dismiss this application for judicial review. The Applicant has failed to establish any procedural unfairness in the process that led to the FA decision. The Applicant has similarly failed to establish that the decision under review was unreasonable.
[75] Before concluding, I will provide one final remark. I have no doubt that Captain Funelas is a dedicated individual, and that he is deeply committed to his pastoral work. While I have concluded that the FA decision under review was reasonable, I can also understand that this will be a disappointing outcome for Captain Funelas. However, I would remind Captain Funelas that, in the end, this matter ended with a comparatively straightforward set of remedial measures that he was required to undertake. No one, including the undersigned, is at their best in all moments – there is no shame in this. As such, I would encourage Captain Funelas to consider the IC measures simply as an opportunity to enhance his capacity to serve members of the military whose well-being, I have no doubt, are of great concern to him.
VIII. COSTS
[76] As the successful party, the Respondent is entitled to costs. The Respondent did not request a particular quantum, but asked that costs be awarded pursuant to Column III of Tariff B of the Federal Courts Rules. In my discretion, I shall fix costs in the amount of $1,000, inclusive.
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