Lagueux v. Canada (Attorney General), 2005 FC 180

                                                                                                                                  Date: 20050207

                                                                                                                             Docket: T-2026-03

Citation: 2005 FC 180

Ottawa, Ontario, February 7, 2005

PRESENT:      THE HONOURABLE MR JUSTICE BLANCHARD

BETWEEN:

LIEUTENANT-COLONEL JEAN-PIERRE LAGUEUX

Applicant

- and -

ATTORNEY GENERAL OF CANADA

Respondents

REASONS FOR ORDER AND ORDER

Introduction

[1]         The applicant is seeking judicial review of the decision of General Hénault, Chief of the Defence Staff (CDS), dated September 25, 2003, denying redress of his grievance and accepting the findings and recommendations made by the Canadian Forces Grievance Board (Board).

The Facts

[2]         The Applicant enrolled in the Canadian Forces on June 1, 1979, within the Cadet Instructor Cadre. On June 14, 1996, he was appointed commanding officer of the Cap-Chat Army Cadet Summer Training Centre (Centre).

[3]         On July 20, 1997, during the senior staff officers' mess, some acts constituting sexual harassment were allegedly committed by the applicant in relation to Deyna L'Heureux (the complainant), a nurse at the Centre. The complainant filed a complaint of harassment with the military police against the applicant on the night of the incident and, on July 25, 1997, with her superiors.

[4]         On July 29, 1997, Lieutenant-Colonel (LCol) Chartrand, the deputy chief of staff of the Cadets (DCOS Cad), ordered that an inquiry be held concerning this complaint.

[5]         In his report filed August 5, 1997, the investigating officer noted the applicant's lack of judgment in conversing at length during the mess with the complainant, a female member of the staff. However, he found that it was hard to determine which version of the events underlying the complaint was correct given the lack of witnesses. The investigating officer recommended awaiting the results of the concurrent police investigation before deciding whether the complaint was founded or not.

[6]         The police investigation ended with the filing of a report on August 15, 1997. We are informed that the Crown Prosecutors' Office at the Quebec City Courthouse decided not to file any charges for lack of evidence. In light of this, the DCOS Cad declared the file closed on August 15, 1997.

[7]         On October 17, 1997, the decision was disclosed in the media and it was not until October 30, 1997 that the applicant was informed that the complaint had been dismissed.

[8]         The complainant sent two letters to Major-General (MGen) Forand, the Commander Land Force Quebec Area (Comd LFQA), dated September 3 and October 28, 1997. She questioned the treatment reserved for the sexual harassment complaints process within the Canadian Forces and said she wished [translation] "to appeal" the decision on the investigation.

[9]         On January 28, 1998, the Comd LFQA ordered that a summary investigation be held to shed light on the situation.

[10]       On February 25, 1998, the investigating officer assigned to the matter filed his report. He stated that the summary investigation had been unable to produce any new facts and that the conclusion in the initial inquiry should be upheld. However, he found that the applicant's behaviour indisposed the female members of the camp. The investigating officer recommended that the applicant be formally notified that his social behaviour was improper and that he should take a course in prevention of harassment and racism.

[11]       On March 23, 1998, the Comd LFQA concluded that the complaint was founded and that the applicant's social behaviour and leadership in relation to female staff were inappropriate. It was ordered that the applicant be placed on counselling and probation. The complainant was informed of this decision that same day and on March 30, 1998, a press release so informed the media.

[12]       A Notice of intention to adopt counselling and probation measures (Notice) was presented to the applicant by the DCOS Cad on April 21, 1998. On April 24 and 30, 1998, the applicant demanded that this measure be cancelled. He said he was not informed in writing of the result of the investigation and did not know the reasons why there was a review, which prevented him from submitting his observations. Following a substantial exchange of correspondence, both internal and between the applicant and his superiors, a second Notice was issued on June 9, 1998.

[13]       Meanwhile, the applicant filed a claim for redress of injustice and took steps externally to obtain a copy of the documents appearing in his record. On December 22, 1999, the Privacy Commissioner ruled that his request for records had merit and had them sent to him on January 22, 2000.

[14]       On February 4, 2000, the new Comd LFQA reviewed the applicant's file, concluded that his conduct was inappropriate and ordered the counselling and probation measure. The applicant was so informed on March 17, 2000.

[15]       The applicant's claim for redress of injustice made its way to the Board, the office of which sent the applicant a copy of his file on November 21, 2000.

[16]       On December 23, 2002, the Board presented its recommendations. On September 25, 2003, the CDS accepted them and denied the applicant redress of his grievance.

IMPUGNED DECISION

[17]       In his decision dated September 25, 2003, the CDS rules in these words on the applicant's request:

In light of all the facts on file, I have concluded that you were treated fairly and equitably, and did not suffer any injustice, personal oppression or other ill-treatment, and I am denying redress of your grievance.

[18]       Essentially, the CDS adopted the findings of the Board. He ruled that the Comd LFQA was entitled to order the holding of a summary investigation to clarify the circumstances surrounding the complaint. He acknowledged that the applicant should have had an opportunity to respond to the allegations against him, but, because the applicant had not availed himself of numerous opportunities to provide his own comments, procedural fairness had not been compromised in this case.

[19]       Concerning the powers of the Comd LFQA, the CDS adopted the Board's finding that article 21.01 of the Queen's Regulations and Orders for the Canadian Forces (QR & O) allows the commander to order a summary investigation for the purpose of clarifying any matter, even if it is a second investigation on the same subject. In this case, the commanding officer had acted in accordance with the responsibilities imposed on him by QR & O 3.22 concerning personnel who are subordinate to him and it is clear that if he had not ordered this second investigation, he could have been held responsible for failing to act.

[20]       The CDS also approved the Board's finding that the notions of functus officio and res judicata were inapplicable in this case since they do not apply in the context of administrative decisions.

[21]       On the issue of procedural fairness, the CDS acknowledged that the applicant should have had an opportunity to respond to the allegations under article 54, Canadian Forces Administrative Orders (CFAO) 19-39. Similarly, the applicant should have been given relevant information during his meeting on April 21, 1998, with the DCOS Cad. It was the CDS's opinion, however, like that of the Board, that the applicant could have argued his objections on many occasions but did not seize the opportunity to do so.

[22]       Finally, the CDS adopted the Board's decision concerning the notion of "sexual harassment". The Board concluded that under the provisions of article 3, CFAO 19-39, sexual harassment may include conduct that occurs either once or repeatedly. Furthermore, according to the Board, there may be sexual harassment within the meaning of CFAO 19-36 even absent any such finding under the Criminal Code, R.S.C. 1985, c. C-46.

Issues

[23]       The applicant raises four issues. For the reasons developed below, I think the following question settles the outcome of the application for judicial review: Does the record in this case disclose that the applicant was aggrieved by some breaches of the principles of procedural fairness resulting from a violation of natural justice, and did the CDS err in not recognizing them?

Analysis

[24]       Assuming, but without deciding, that the Comd LFQA was authorized to order a new investigation, as he did in this case, I must allow the application for judicial review. I am persuaded that the CDS's decision is invalid since he did not recognize the violations of the principles of natural justice and procedural equity with which this case is riddled.

[25]       The applicable standard in determining the result of a breach of the rules of procedural fairness and natural justice is clear: the decision made by the administrative authorities is invalid, as Mr. Justice Le Dain held in Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643:

. . . I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. [para. 23]

The principles of procedural fairness and natural justice

[26]       It is trite law that public officials and agencies must, in their decision-making, adhere to an appropriate procedure, the extent of which is defined by the statutory context and the circumstances of the case.

[27]       Certain fundamental rules exist to ensure that the procedures followed are fair to the parties. Among those rules we note, inter alia, the right to receive a notice of hearing, to be represented by counsel, to adduce evidence, to cross-examine witnesses, to be informed of the nature of the admissible evidence. These rules are the product of the doctrines of natural justice and procedural fairness.

[28]       Although a distinction was once drawn between these two doctrines, it has dwindled constantly until it is now a distinction without difference. Chief Justice Dickson noted this in Martineau v. Matsqui Institution, [1980]1 S.C.R. 602:

In general, courts ought not to seek to distinguish between the two concepts, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework. [p. 629]

[29]       I am of the opinion that the objectives underlying these two doctrines show that they are similar. Natural justice means principles intended to ensure that no one suffers the negative consequences of a decision without having been given an opportunity to be heard and that any decision having an impact on an individual will be made by an impartial tribunal: Re Therrien, [2001] 2 S.C.R. 3. As for procedural fairness, it guarantees that the parties have an opportunity to bring to the decision-maker's attention any fact, information or argument that the decision-maker should know about in order to be able to make an enlightened, rational and appropriate decision.

[30]       Furthermore, it has been determined that procedural fairness applies to investigative and consultative functions: Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 2 S.C.R. 407; Re Abel and Advisory Review Board (1980), 31 O.R. (2d) 520 (C.A.). The duty to act fairly exists whenever an administrative decision may affect the rights, interests, property or liberties of any person who is the subject of an investigation that might result in that person's being penalized or adversely affected as a result of the investigation or report.

[31]       However, it must be specified that this duty to act fairly and to comply with the principles of natural justice in the decision-making process is circumscribed to a large extent by the factual situation of each case. These principles and the extent to which they apply are consequently a function of the facts and the applicable statutory scheme: Knight v. Indian Head School Division No. 9, [1990] 1 S.C.R. 653. Certain tests developed in the cases favour in this instance a rigorous application of the principles of procedural fairness and natural justice by the decision-making authorities: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker); [1979] 1 S.C.R. 495">Minister of National Revenue v. Coopers & Lybrand, [1979] 1 S.C.R. 495. Indeed, the investigation conducted in this case is more judicial than administrative, the allegations are serious, the decision is of particular importance to the persons affected since it can entail serious repercussions, and the applicant is legitimately entitled to expect that a certain procedure will be followed: Baker; [1980] 1 S.C.R. 1105">Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105.

[32]       In light of the comments by Madam Justice L'Heureux-Dubé in Baker, I am of the opinion that the facts in this case suggest an obvious violation of the most fundamental principles of natural justice in that the decision-making authorities acted in such a way that the procedure was unfair to the applicant.

The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. [para. 28]

[33]       In order to rule on the grievance in the case at bar, the CDS had to determine, pursuant to subsection 29(1) of the National Defence Act, R.S.C. 1985, c. N-5 (NDA), whether the applicant had been aggrieved in the process of the investigation and the imposition of the counselling and probation.

The violations of these fundamental principles in this case

[34]       It is clear to me that in this case the applicant did not have an opportunity to be heard and to make a full presentation of his position. There are a number of procedural requirements in the right to a hearing and they vary according to the facts of each case. The more serious the implications of the process for the applicant, the broader the scope of the right: Moreau-Bérubé v. New Brunswick, [2002] 1 S.C.R. 249. I think that in this case the violation of the applicant's right to be heard took the form of a failure to disclose to him the information in the file so that he could be genuinely able to present his observations.

[35]       The right to disclosure is one of the principal components of a fair procedure. As Mr. Justice Iacobucci held in Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, the issue is not whether the facts disclosed were sufficient but whether disclosure was sufficient for the applicant's meaningful participation in the hearing.

[36]       I note that the disclosure of the documents in support of the complaint was especially important in this case, since the applicant had to answer to serious allegations that were clearly contrary to his interests: Cardinal.

[37]       Furthermore, it appears that the procedures in this case should have been taken under the aegis of article 7.18 of the Civilian Personnel Administrative Orders (CPAOs) since the complainant was a civilian nurse, although they were proceeded with under the provisions of CFAO 19-39, used where the harassment victim is also a member of the Canadian Forces. These orders have been replaced by the Defence Administrative Orders and Directives (DAOD) 5012-0. I will not rule on this question since, irrespective of which orders are applicable, the relevant provisions are virtually identical and support my conclusion that the authorities had a duty to disclose and that their failure to comply with that duty in the case at bar contravenes the principles of procedural fairness and natural justice.

[38]       In this regard, articles 16, CPAO 7.18 and 54, CFAO 19-39 indicate that anyone against whom a complaint is filed has the right, inter alia, to receive a written statement of the allegations and to be given an opportunity to respond thereto. I note as well that articles 25, CPAO 7.18 and 55, CFAO 19-39 inform us that the decision-making authority must ensure that the investigation is conducted fairly and that the alleged harasser obtains the text of the allegations as well as information concerning his rights and obligations.

[39]       I accept the applicant's submission that he was deprived of the disclosure of documents of crucial importance, such as the complainant's letters seeking review of the case and the investigation reports. Although the new investigation was assigned on January 28, 1998, and the Comd LFQA issued his opinion on March 23, 1998, the applicant had to wait until November 21, 2000 to obtain a copy thereof. Meanwhile, his application to the Privacy Commissioner had been allowed and that authority had disclosed some documents. This clearly contravenes the obligations incumbent on the decision-making authorities in this case. Clearly, without the benefit of adequate and timely disclosure the applicant was unable to present any observations in the context of the investigation and the imposition of the counselling and probation measure. The CDS's failure to recognize these violations is an error that invalidates his decision.

[40]       Insofar as the counselling and probation is concerned, I must find that the applicant was deprived of his right to a hearing. He was asked to present his observations on April 21, 1998, when the first Notice was delivered. I accept his submission that it was then too late to present his observations since the decision had effectively been taken on March 23, 1998. In order to preserve his right to be heard, the applicant should have been able to present his observations before the measure was determined.

[41]       In this regard, I note the remarks of Mr. Justice Mackay in Gayler v. Canada (Director Personnel Careers Administration Other Ranks), [1995] 1 F.C. 801, in which a counselling and probation measure had been imposed after the decision had been made.

The respondents failed to provide the applicant with notice of the case against her. Even if the applicant was not entitled to an oral hearing since the decision was one of an administrative nature, she should have had a fair opportunity to respond to the case against her, including correcting or explaining any relevant information, before the decision was made on October 6, 1992. The applicant was not afforded any opportunity to make representations to either her Commanding Officer in advance of his recommendation, or to Col. Brown, the decision-maker in advance of his decision. . . . Thus, I conclude that the respondents have denied the applicant an opportunity to make representations in regard to the allegations against her, an opportunity which on principles of fairness and of natural justice was owed to her in the circumstances of this case. [paras. 35-36]

[42]       I must note some further shortcomings in the processing of the complaint and consider the underlying reasons.

[43]       In the case at bar, the authorities decided on August 15, 1997, to close the file. On or about October 17, 1997, this decision was disclosed in the media. It was not until October 30, 1997 that the DCOS Cad sent a letter to the applicant informing him officially that the complaint was dismissed. The complainant sent an initial letter, dated September 3, 1997, to the Comd LFQA to demand his intervention in the case. A memorandum, dated September 26, 1997, circulated internally, recommending the complaint be allowed. The complainant sent the Comd LFQA a second letter dated October 28, 1997 in which she challenged the treatment of sexual harassment complaints and informed him that she wanted [translation] "to appeal" the decision on the investigation.

[44]       The new investigation was granted on January 28, 1998. On March 23, 1998, the Comd LFQA concluded, in contrast to the report of the investigating officer filed February 25, 1998, that the complaint was justified. He announced his decision to the complainant that very day. On March 30, 1998, a news release informed the media that the new investigation had found that the complaint was justified and that the applicant would be put on counselling and probation. The first Notice of this measure reached the applicant on April 21, 1998.

[45]       This portion of the sequence of events reveals, prima facie, that the decision-making authorities took a considerable amount of time before officially informing the applicant of the result of both the first investigation and the second. The information was even sent to the media before it was communicated to the applicant, the presumed perpetrator of the harassment.

[46]       Secondly, the internal memorandum, dated September 26, 1997, of Gi Mil Enq 2, Capt. Lecompte, leads me to question the true motives behind the holding of the new investigation that was eventually ordered. It reads:

[translation] If the decision of the DCOS Cad [that the complaint is unfounded] is not altered, this would in my humble opinion prove to be an error and an injustice. Considering the approaches made by [the complainant] to MGen Forand, the DND, the Prime Minster and the media, we can expect an uproar and we will be unable to justify the position of the "Department". [Respondent's record, p. 193]

[47]       Finally, I must note a breach of the obligation to provide sufficient notice to the parties affected by a proceeding: Canadian Union of Public Employees v. Canadian Broadcasting Corp., [1992] 2 S.C.R. 7. According to the affidavit filed by the applicant in this judicial review proceeding, and the affidavit of his lawyer, which is in the materials that the CDS had in his possession when making his decision, some misrepresentations were made to the applicant concerning the reason why a second meeting was necessary. The applicant submits that on April 5, 1998 he was informed that LCol Gagnon would be appointed an investigating officer with instructions to gather the information that MGen Forand would use to respond to the complainant and not to conduct a new investigation. The applicant therefore cooperated with the authorities, answering their questions and providing them with information, but without knowing the real objective of the proceeding.

Conclusion

[48]       For all of these reasons, I find that the CDS's decision that the record in this case disclosed no irregularities in terms of procedural fairness and natural justice is invalid. He accepted the findings of the Board, which acknowledged the breaches in regard to the investigation and the counselling and probation, but did not intervene. Those breaches are, in my opinion, too serious and egregious to be ignored.

[49]       Having found that one of the grounds invoked, the violation of the principles of natural justice and procedural fairness, is sufficient to decide this matter, I will not examine the other issues that are raised.

[50]       For all of these reasons, I allow the application for judicial review and order that the matter be returned to the respondent for redetermination.

ORDER

THE COURT ORDERS that:

1.          the application for judicial review be allowed and orders that the matter be returned to the respondent for redetermination.

                  "Edmond P. Blanchard"

                                Judge

Certified true translation

K.A. Harvey

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            T-2026-03

STYLE:                                                Lieutenant-Colonel Jean-Pierre Lagueux v. General R.R. Henault et al.

PLACE OF HEARING:                      Québec, Quebec

DATE OF HEARING:                        October 25 and 26, 2004

REASONS:                                         The Honourable Mr. Justice Blanchard

DATED:                                              February 7, 2005

APPEARANCES:

Daniel Lagueux                                                              FOR THE APPLICANT

Anne-Marie Desgens                                                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

Daniel Lagueux                                                              FOR THE APPLICANT

153 Guyon Street

Beauport, Quebec G1B 3N2

John H. Sims, Q.C.                                                                   FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec