Date: 19980612
Docket: T-2524-93
OTTAWA, Ontario, this 12th day of June, 1998.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
V89 703 722 LEADING SEAMAN McCLENNAN, L.W.
Applicant
- and -
MINISTER OF NATIONAL DEFENCE, CHIEF OF DEFENCE STAFF,
COMMANDING OFFICER, HER MAJESTY"S CANADIAN SHIP FRASER, CAREER REVIEW BOARD which reviewed
the Notice to Compulsorily Release the Applicant
Respondents
UPON application by the applicant for judicial review and for an order setting aside the decision of the Career Review Board which approved the decision to release the applicant, a similar order in relation to the decision of the Commanding Officer of Her Majesty's Canadian Ship Fraser, made September 27, 1993, whereby it was determined that the applicant should be released, involuntarily from the Armed Forces;
UPON hearing counsel for the parties at Halifax on December 8, 1997, when argument related only to the decision of the Commanding Officer, and upon hearing further submissions of counsel on March 9, 1998 at Halifax, when decision was reserved, and upon consideration of submissions then made;
O R D E R
IT IS HEREBY ORDERED THAT:
| 1. The application is allowed. |
| 2. The decision of the Commanding Officer, Her Majesty's Canadian Ship Fraser, dated September 27, 1993 concerning the applicant is set aside, and the matter of the recommendation of the Divisional Officer dated September 24, 1993 about the applicant is referred back for reconsideration. |
| 3. No order is made in relation to costs which were not requested and were not the subject of submissions. |
W. Andrew MacKay
Judge
Date: 19980612
Docket: T-2524-93
BETWEEN:
V89 703 722 LEADING SEAMAN McCLENNAN, L.W.
Applicant
- and -
MINISTER OF NATIONAL DEFENCE, CHIEF OF DEFENCE STAFF,
COMMANDING OFFICER, HER MAJESTY"S CANADIAN SHIP FRASER,
CAREER REVIEW BOARD which reviewed
the Notice to Compulsorily Release the Applicant
Respondents
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review under s.18.1 of the Federal Court Act, R.S.C. 1985, c.F-7, as amended. In his Originating Notice of Motion, dated October 27, 1993, the applicant seeks relief in various forms: certiorari quashing the decision of the Career Review Board approving the decision to release him from service, an order setting aside the decision of the Career Review Board to compulsorily release him from the Armed Forces, and an order setting aside the decision of the Commanding Officer of the HMCS Fraser recommending and effecting his compulsory release, and an order reinstating him in the Armed Forces. In his memorandum of fact and argument and in argument before me, the applicant merely challenged the decision of his Commanding Officer, alleging that the Commanding Officer of HMCS Fraser failed to observe principles of fairness in the applicant"s dismissal from the Forces.
[2] There was agreement between the parties that this decision, by the Captain of the Fraser was, in the circumstances, the key decision effecting the applicant"s involuntary release. These reasons concern the Court"s decision to grant the application to quash the decision of the Commanding Officer.
Background
[3] The applicant entered the Armed Forces in July 1986. As of September 27, 1993, he held the rank of Leading Seaman and was a member of the crew of HMCS Fraser. Over the course of his military service, the applicant was given a number of recorded warnings and poor performance comments, and he was assigned to counselling and probation. Specifically, the applicant was accused and sometimes charged with, and counselled on, infractions and shortcomings ranging from liquor offences, inadequate progress in skills upgrading courses, absence from his place of duty, attitude problems, lack of motivation and tardiness.
[4] There is no doubt that throughout his service his deficiencies in attitude, conduct and training were brought to his attention by his supervisors, both as they were noticed and in annual assessments made within the Divisional system of naval organization and operations. The Divisional system is an arrangement of senior and junior personnel for communication and interaction, that includes leadership, training, counselling and monitoring of motivation and morale.
[5] The most recent incident of concern prior to the applicant"s release was his tardiness, for some 30 minutes, in attending at his assigned post aboard ship for a sea training bomb threat drill involving the entire ship"s company. That incident occurred on August 24, 1993. The failure to attend to his duties on time would ordinarily lead to a recorded warning on his record, and one was issued to him but was subsequently rescinded since regulations directed that for a second occurrence of such an offence, which the applicant apparently acknowledged this was, a recorded warning need not be issued.
[6] On September 24, 1993, the applicant's Divisional Officer prepared a memorandum to the Commanding Officer, HMCS Fraser, on the applicant's performance record, recommending the compulsory release of LS McClennan from the Armed Forces. That was forwarded to the Commanding Officer who indicated his concurrence. The Divisional Officer"s notes include an entry: "24 Sept. 93. CO approved release for mbr. [McClennan]...Also spoke with career manager about process. CO wants to land him before sailing Tues.".
[7] On September 27, at about 8 a.m., the applicant was called to his Divisional Officer's cabin and was advised that the Divisional Officer had initiated action to have the applicant released from the Armed Forces. The applicant was shown a paper, the Divisional Officer"s recommendation, listing accusations made against him, but he was not provided with a copy. By affidavit his Divisional Officer states that the applicant did not ask for a copy of the memorandum or of any other document, although in cross-examination the applicant stated that he did ask for a copy and the officer indicated he would inquire whether a copy could be provided. When he subsequently requested a copy, in October after consulting counsel, it was not provided to him for some time. The Divisional Officer"s memorandum lists a number of shortcomings, or infractions by, and disciplinary actions taken against, the applicant between October 1992 and August 1993. It was this document he was shown on the morning of September 27, 1993. It subsequently was attached to the Commanding Officer"s Recommendation for Compulsory Release signed later that morning.
[8] Just after being shown the paper, the applicant was advised he would be meeting with the Commanding Officer later that day to discuss the recommendation for his release and he was told to commence doing a clearance routine for removal from HMCS Fraser, which was scheduled to sail the following day. He then told the Divisional Officer that he wished to file a grievance and requested that an Assisting Officer be appointed to aid him. The applicant was informed that to obtain the services of an Assisting Officer, he should fill out a form available at CFB Halifax, where the ship was berthed, since the vessel was soon to sail. He filled out the form that same morning of September 27, incorrectly the first time but then, with the assistance of the Petty Officer, correctly the second time, completing that before 9:30 am.
[9] Roughly a half an hour after completing the form and approximately two hours after the initial meeting with his Divisional Officer, the applicant was called to the quarters of the Commanding Officer of HMCS Fraser and he was advised that the latter was recommending the applicant's release, because of his extended record of poor performance and his unsatisfactory conduct and attitude. The Commanding Officer reviewed the incidents recorded in the memorandum of the Divisional Officer, incidents of which he was satisfied the applicant was aware. The applicant objected to the compulsory release but he was told that the Commanding Officer's mind was made up. It is said by the applicant that the decision was effectively made before his meeting with the Commanding Officer, as appears from a message sent from HMCS Fraser to RCEOCFA/MARLANTHQ Halifax, which I understand is Headquarters Maritime Atlantic, at "271225Z Sep 93" which I understand to be September 27, 1993 at 1225 hrs Zulu [Greenwich mean time] or 0925 hrs, i.e. 9:25 am local time on the morning of these events, before the applicant"s meeting with his Commanding Officer. The message concerned compulsory release of the applicant and advised he "is being compulsory released under QR and O 15.01 item 5F", for reasons summarized in the message.
[10] The Recommendation for Compulsory Release, was subsequently signed by the Commanding Officer and the recommendation of the Divisional Officer was appended to it. The effect of this was to release the applicant from the Armed Forces under Queen's Regulations and Orders Article 15.01 Item 5(f), where provision is made for discharge on the basis of personal weaknesses or impairing behaviour. Article 15.01 provides as follows:
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Q.R. & O 15.01(1) An officer or non-commissioned member may be released, during his service, only in accordance with this article and table hereto |
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(3) ...the authority to approve a release is: |
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(b) the Chief of the Defence Staff, or such officer as he may designate, in the case of a subordinate officer or non commissioned member. |
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Canadian Forces Administrative Order 15-2 elaborates Article 15.01 and provides, inter alia, that the release authority for a person with the rank and service of the applicant is his commanding officer.
[11] In the early afternoon of September 27, 1993, the applicant left HMCS Fraser and went to CFB Halifax Release Centre. There he was presented with documentation relating to his release. He did not return to the Fraser.
[12] On October 26, 1993, the applicant returned to the Release Centre and there requested from a Chief Petty Officer copies of information from his personnel file. He was advised that all his file, other than his medical file, had been forwarded to DND Headquarters in Ottawa and none remained at CFB Halifax. The applicant eventually received copies of the papers relating to his release under the Privacy Act, in February 1994, after this application for judicial review of the matter had been filed.
[13] The applicant submits that he did not have fair notice of the reasons for his release or of the hearing before the Commanding Officer and that he was unable to properly prepare for such a hearing. In addition, at the hearing of this application it was urged that the applicant was denied a fair hearing since on the evidence the decision that he be released was made before he had an opportunity to appear before, or to make any submissions to, the Commanding Officer. It is accepted that in the circumstances of this case the Commanding Officer of HMCS Fraser is a federal board, commission or other tribunal as described in s.18(1) of the Federal Court Act because he exercises the jurisdiction or powers conferred by National Defence Act, R.S.C. 1985, c.N-5 or in accordance with the Queen's Regulations and Orders.
[14] It is trite law that a duty of procedural fairness rests on every public authority making administrative decisions that are not of a legislative nature and that affect an individual's rights, privileges or interests, and that the extent and nature of the duty of procedural fairness depends on the nature and function of the particular tribunal or public authority whose decision is in issue.
[15] The applicant submits that in the circumstances of the case, procedural fairness required that he be entitled to know, with certainty, the case against him that was submitted to the Commanding Officer, HMCS Fraser. It is also urged that fairness demanded that the applicant be given time to prepare to make representations to the Commanding Officer. He had made known his intent to grieve the recommendation. His request, for which he had completed the necessary documentation, to have an Assisting Officer was completed before he was paraded to the Commanding Officer, but then the request was effectively ignored. It is urged that the Commanding Officer appears to have made up his mind prior to any representation by the applicant, perhaps in part because the Fraser was scheduled to leave on sea duty soon after these events. It is urged that in a case like this one, the denial of procedural fairness warrants an order setting aside the decision.
[16] The respondent submits that the applicant was well aware of the reasons for his recommended release, he had opportunity to respond to the reasons, and he did so respond to the Commanding Officer. It is urged that procedural fairness was afforded through the Divisional system and, periodic performance assessments. The applicant knew of prior incidents leading to the recommendation for his release, through periodic meetings and performance reviews undertaken within the Divisional system. The Divisional Officer's memorandum to the Commanding Officer was shown to the applicant on the morning of the decision that he be released, and thereafter he had an opportunity to, and did, make oral representations to the Commanding Officer before whom he appeared.
[17] When this matter was heard in December 1997, there was little discussion of the appropriateness of judicial review proceedings when the internal grievance process available to members of the Forces1 had not been exhausted. At the time these proceedings commenced in 1993, decisions of this Court, reflecting the circumstances in each case, had considered judicial review, or had declined to proceed with judicial review, even if the grievance process had not been completed. In Anderson v. Canada1, decided in October 1996 but not reported until 1997, the Federal Court of Appeal found the internal grievance process was an adequate alternative process to deal with the broad range of possible grievances of members of the Forces and that in the circumstances where the process is not completed, the Court should not proceed with judicial review. In view of that decision, counsel were invited to make further submissions on the significance of Anderson for this case. Written submissions were made and counsel were heard in March 1998 in regard to this matter.
Analysis
[18] This application raises two issues. The first is whether the application should be considered in circumstances where the applicant did not pursue to completion the internal grievance process to deal with his concerns about his involuntary release. The second issue, if judicial review is to be considered, is whether the process here followed met the requirements of procedural fairness.
[19] In regard to the first issue, it is my view that when this application was commenced, in 1993, it was not clear from previous decisions that the principle applied in Anderson by the Court of Appeal should be followed in cases where the applicant had access to, but had not exhausted, the grievance process within the armed forces.
[20] For the respondent, in reliance on Anderson and supporting cases, it is urged that the Court should dismiss the application for judicial review since the applicant did not exhaust the internal grievance process. While he is now out of time to pursue his grievance as of right, counsel for the respondent advises that the applicant might still pursue the grievance process and that National Defence Headquarters would be prepared to designate a responsible officer, in place of his Commanding Officer, to consider within that officer's discretion whether, in the interests of justice, he should deal with any grievance the applicant might now seek to pursue. For the applicant, it is urged that denying judicial review without considering the merits of the application, dismissing it on the preliminary ground that the grievance process was not fully pursued, would be prejudicial to the applicant. The issue was not directly raised earlier in the years since the original application was filed in 1993. Moreover, there is no assurance of any review of the situation if the applicant were to seek to re-institute a grievance, since it would be a matter of discretion whether a grievance, out of time to be pursued without approval, should now be considered.
[21] In this case the applicant had requested the aid of an Assisting Officer when he was advised by his Divisional Officer, before meeting with the Commanding Officer, about the recommendation that he be released. Q.R. & O., article 19.27, concerning Rules for Stating Grievances, provides inter alia, that "where a complainant requests assistance in the preparation of a complaint the Commanding Officer shall detail an officer or non-commissioned member to assist in its preparation". The applicant's evidence, not disputed, is that when he requested assistance of an Assisting Officer, after being informed by the Divisional Officer of the latter"s recommendation, he was told to complete a form requesting an Assisting Officer from CFB Halifax and that form was completed.
[22] No Assisting Officer was appointed before he met with the Commanding Officer and, it appears, one was only appointed to assist the applicant some days after he was transferred off the Fraser to CFB Halifax. In cross-examination on his affidavit the applicant stated that while the officer appointed advised that he saw no reason to pursue a grievance, the applicant and the Assisting Officer did complete a form indicating that he was proceeding with a formal grievance and that details would be forwarded at a later date. That was not done, perhaps in part because at that stage, the applicant had not obtained access to his file and had no written record of the recommendation or the decision that he be released. There is no doubt also that a factor in not pursuing the matter by the grievance process was because the applicant, after consulting counsel, opted to proceed by this application for judicial review.
[23] In my view, failure to pursue the internal grievance process is hardly attributable entirely to the applicant, except in the most formal sense. He did seek to initiate the process and so indicated with a request, for an Assisting Officer to aid him, almost immediately after he was informed of the recommendation that he be released. He did so again by filing a form after an Assisting Officer was named some days after his transfer to CFB Halifax. It seems to me that those who ought to have been concerned with facilitating the process for dealing with his grievance, his Divisional Officer, and his Commanding Officer before the ship sailed, and the Assisting Officer ultimately named to assist him, failed to take seriously their responsibility to ensure that if he had a grievance, regardless of their perception of its merits, he had a right to have that considered by a process that met standards of fairness. Here there is no doubt the internal grievance process is provided for by the Act and regulations, and there is no doubt that the applicant"s initial efforts to access that process met with no success.
[24] In these circumstances, I am not prepared to dismiss this application on the basis that an alternative remedy existed. It is nearly five years since the application was filed. In the interest of justice to the parties the most expeditious disposition of the matter at this stage, in my opinion, is to consider the application on its merits. If the application is allowed, the matter would be referred for reconsideration on its merits. That is essentially the objective of pursuing the applicant's concerns through the grievance process. If the application is not allowed that decision has no bearing on the merits of the applicant's complaint about his involuntary release, and those may still be reviewed if the grievance process were to be accessed again.
[25] Turning to the merits, there are several authorities relating to the duty of fairness owed in the context of decisions concerning releases from the military. In Diotte v. Canada1, the applicant had been advised that his behaviour would lead to "career action" and he was given notice of the grounds supporting the release recommendation and of his right to grieve the decision. Yet, his release was a "fait accompli" before he was given an opportunity to respond to the evidence against him and before he had any opportunity to be heard. In finding that procedural fairness had not been met, Mr. Justice Cullen wrote:
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Here, a man's career and livelihood were at stake. Justice and fairness demand that the applicant know the case against him and that he have full opportunity to make a reply, including the opportunity to correct any relevant information that he feels is incorrect. In this case, the applicant needed the opportunity to explain himself before the final decision was made. |
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Mr. Justice Walsh, later rehearing Diotte, agreed with this point of view, holding that
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Despite there appearing to be very good grounds for the release, and the likelihood that the result would have been the same even if applicant and his assisting Officer had had an opportunity to make further representations to Col. DeQuetteville before he completed his decision, Applicant must succeed in the present proceedings on this issue of procedural fairness. |
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[26] In Lee v. Cairns et al.1, Mr. Justice Cullen again had occasion to discuss procedural fairness in the context of a dismissal from the military. In allowing the application in that case, His Lordship wrote:
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Fairness requires, at a minimum, notice of the accusations against one and an opportunity to respond BEFORE a decision is made. This includes being provided with information so that the applicant can respond in a meaningful and informed manner. |
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[27] In my opinion, in the case at bar the decision to release the applicant was made before the time the applicant had an opportunity to make submissions to the decision-maker, his Commanding Officer. While he was able to make representations to the Commanding Officer, this was done in a fashion suggesting that Officer had already made up his mind, after the applicant was told to prepare to leave HMCS Fraser, and after the message to Maritime Atlantic Headquarters that he was being released. In this respect, the decision appears to have been something of a "fait accompli", as it was in Diotte . He was transferred from the ship within hours of being informed of the recommendation for his release, without being given a copy of the allegations made against him, though earlier he had been given a chance to read those allegations.
[28] The respondent cites Miller v. Director General Posting and Career Officers et al.1, as authority for the proposition that an oral hearing is not required for the standards of procedural fairness to be met in the release process. Here, the applicant was given an oral hearing by his Commanding Officer, and was, at that time, aware of the circumstances upon which his release was recommended. It is urged that the release decision was made properly, in keeping with the principle of fairness. With respect, in my view, the issue in the case at bar is not whether the applicant had an opportunity to make representations. He was clearly able to do so. Rather, the issue is whether the requirements of procedural fairness can be said to be met where these representations are made after a de facto decision has been made. It is my opinion that procedural fairness is lacking in these circumstances. If procedural fairness requires an opportunity for submissions to be made and to be considered, as is the case in these circumstances, that standard is not met where the evidence supports the conclusion that the decision was made before the opportunity was given for submissions to be made.
[29] In the case at bar, the record suggests that the Commanding Officer merely elicited comments from the applicant in a pro forma manner, having already indicated that his mind was made up. In my view, this behaviour is highly suggestive of a decision-maker who has prejudged a matter to the point that any representation is futile. Where there has been a failure to accord essential fairness in a hearing before a decision is made, even an administrative decision, that decision is to be set aside. It is not for the Court to speculate on whether the outcome might have been similar or different had there been a proper hearing.1
[30] For these reasons, even if there were good grounds for the release of the applicant, a matter not considered or determined here, and whether or not the result might have been the same if the applicant, and his not-yet assigned Assisting Officer, had had an opportunity to make representations to the Commanding Officer, the decision was made to release the applicant in circumstances which did not meet the requirements of procedural fairness.
[31] In these circumstances, this application for judicial review is allowed insofar as the applicant seeks to set aside the decision of the Commanding Officer of the Fraser. An order issues quashing the decision of the Commanding Officer, HMCS Fraser, made September 27, 1993, to release the applicant, involuntarily, from the Armed Forces pursuant to Q.R. & O, 15.01, Item 5(f).
[32] I note that in allowing this application the result should be that the merits of the involuntary release of the applicant would be reviewed by reconsideration of the recommendations of the Divisional Officer that was completed on September 24, 1993. That is the same result as would follow from pursuit of a grievance, if permitted within the discretion of the officer concerned. By allowing this application, a review on the merits is mandatory, presuming the recommendation of the Divisional Officer is to be acted upon.
W. Andrew MacKay
Judge
OTTAWA, Ontario
June 12, 1998
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That process is provided for under s.29 of the National Defence Act, and Article 19.26 of the Queen"s Regulations & Orders (Q.R. & O.).
(1996), 141 D.L.R. (4th) 54 (F.C.A.).
(1989), 31 F.T.R. 185 at 186, per Cullen J., reversed on unrelated grounds, [1991] 1 F.C. 731 (F.C.A.), reheard (1992), 54 F.T.R. 276 at 287, per Walsh J.
(1992), 51 F.T.R. 136 at 156.
(1994), 76 F.T.R. 15.
6 See Newfoundland Telephone v. Newfoundland (Public Utilities Board) [1992] 1 S.C.R. 623 and Le Dain J. in Cardinal and Oswald v. Kent Institution (1985), 63 N.R. 353 at 362 (S.C.C.).
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