Ouellet v. Canada (Attorney General), 2005 FC 947

                                                                                                                                  Date: 20050708

                                                                                                                             Docket: T-2302-04

Citation: 2005 FC 947

BETWEEN:

BENOIT OUELLET

Applicant

- and -

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER

PINARD J.

[1]        This is an application for judicial review of a decision, dated November 29, 2004, by the Chief of the Defence Staff (CDS), the final authority in the grievance process under section 29.11 of the National Defence Act, R.S.C. 1985, c. N-5 (the Act), dismissing the application for redress of grievance of Mr. Ouellet.

[2]        The applicant, a member of the Canadian Forces working at the Valcartier military base, was transferred to the 202^nd Workshop Depot in Montréal on July 21, 1999. The applicant had to establish his residence in the Montréal service area, since the Canadian Forces policy is to require members, when they are not living on a military base, to reside in a defined geographic area in proximity to their workplace. The applicant asked for a derogation from the policy in question in order to live in Blainville, in the Lower Laurentians. He explained that his wife was working in that region. This derogation was granted, and the applicant was authorized to establish his residence at Blainville, a municipality outside the Montréal service area.

[3]        The Canadian Forces instituted a policy whereby a so-called “Post Living Differential” (PLD) was granted to soldiers who have to live in certain service areas. This compensation policy came into effect on April 1, 2000.

[4]        On July 31, 2000, the Canadian Forces issued a guideline asking commanding officers to reassess the geographic boundaries of the service areas. The commanding officer responsible for the Montréal service area reassessed the boundaries of this service area according to the criteria in the guideline and, on October 30, 2000, concluded that the Montréal service area should be maintained within the boundaries it already had. As a result of this reassessment, the City of Blainville was henceforth located in the Mirabel service area and the Canadian Forces policy does not provide for payment of the PLD to soldiers who live in this service area (DOA 5^th GSS 8001-14).

[5]        On April 2, 2001, the applicant filed an application for redress to have the Montréal geographic boundaries revised.

[6]        On July 4, 2001, the commanding officer, Col. Daniel Benjamin, dismissed the grievance on the ground that he was satisfied with the existing geographic boundaries.

[7]        On September 5, 2001, the applicant filed an application for appeal of grievance with the Canadian Forces Grievance Board (CFGB). On July 29, 2004, the CFGB submitted its report to the CDS mentioning the lack of consistency in the applicable rules for determining the Montréal area boundaries and recommending to the CDS that the geographic boundaries of the Montréal area be revised to include the City of Blainville for the purposes of the PLD.

[8]        On November 29, 2004, the CDS issued his decision and dismissed the applicant’s grievance appeal. It is this decision that is the subject matter of this application for judicial review.

                                                                * * * * * * * * * * * *

[9]        The following are the relevant provisions of the Act:

[10]      The appropriated standard of review on judicial review of a decision of the CDS when he is responding to an application for redress of grievance is the patently unreasonable decision (Doyle v. Canada (Chief of Defence Staff), [2004] F.C.J. No. 1563 (F.C.) (QL)).

[11]      The determination of the service area for PLD entitlement pertains essentially to the exercise of a commanding officer’s discretion and is immune from judicial review unless the CDS failed to exercise his discretionary authority in good faith or the decision was made unlawfully or is based on irrelevant considerations (Kohl v. Canada (Department of Agriculture), [1995] F.C.J. No. 1076 (F.C.A.) (QL)).

[12]      I am of the opinion that the CDS did not err in dismissing the applicant’s grievance. The applicant submits that the CDS should have followed the recommendations of the CFGB, but subsection 29.13(1) of the Act provides that the CDS is not bound by any finding or recommendation of the CFGB.

[13]      Although the CFGB recommended that the CDS allow the applicant’s grievance, I think the CDS correctly justified his decision in accordance with subsection 29.13(2) of the Act. The guideline of July 31, 2000 sets out criteria for the exercise of the commanding officer’s discretion in setting the boundaries of the geographic areas (Review of Geographic Boundaries Places of Duty Within Canada, Respondent’s Record, at pages 62 and 63); it is important to note the language of paragraph 2 of this guideline, which underlines the discretionary nature of the boundaries:

To ensure some consistency of approach, the following guidelines are provided, recognizing that command discretion will prevail and local situations may warrant a deviation from the guidelines:

. . .

[14]      The applicant argues that Blainville should be included in the Montréal area since it takes 35 minutes to travel between his home and his place of work. Although the MapQuest printouts of record indicate a travel time from his residence to his place of work of 35 minutes to cover 46.73 km, on July 4, 2001, Col. Daniel Benjamin estimated that it took an average of 75 minutes to cover this distance on a typical weekday morning. It is true that this assessment was conducted only once, but the time factor is not the only criterion that must be considered in the creation of areas. The guideline of July 31, 2000 also provides that “boundaries should be described in terms of dominant physical features (e.g. major highways, rivers, lakes) and/or existing defined boundaries. . . .”

[15]      The commanding officer correctly used highway 640 as a boundary. The evidence indicates that the centre of the City of Blainville is located 6 km north of highway 640. The urban planner for the City of Blainville stated that only 0.5 to 0.6 percent of the city of Blainville lies to the south of highway 640, that this sector is rural and includes two or three houses and a garden centre. There are no plans to develop the area south of highway 640. I am of the opinion that, in view of all of these factors, it is warranted to keep the areas in issue as they currently are and that the CDS did not err in not allowing the applicant’s grievance.

[16]      Incidentally, the applicant was not authorized, in this application for judicial review, to file additional evidence that, he alleged, could establish that some municipalities located to the north of highway 640 were nevertheless part of the Montréal area. His motion to that effect was dismissed by Prothonotary Morneau on the primary ground that this evidence was not before the CDS. This decision of the prothonotary was not appealed and the time for doing so has expired.

[17]      In the circumstances, I see nothing that is patently unreasonable or clearly irrational in the exercise by the Chief of Defence Staff of the discretionary authority given to him by the Act. On the contrary, the reasons for his choice, required by subsection 29.13(2) of the Act, seem completely reasonable to me. Accordingly, the application for judicial review is dismissed, with costs.

                                Judge

OTTAWA, ONTARIO

July 8, 2005

Certified true translation

François Brunet, LLB, BCL

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                           T-2302-04

STYLE:                                               BENOIT OUELLET v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                     Montréal, Quebec

DATE OF HEARING:                       June 7, 2005

REASONS FOR ORDER:               Pinard J.

DATE OF REASONS:                       July 8, 2005

APPEARANCES:

Benoit Ouellet                                                   ON HIS OWN BEHALF

Mariève Sirois-Vaillancourt                                           FOR THE RESPONDENT

SOLICITORS OF RECORD:

Benoit Ouellet                                                   ON HIS OWN BEHALF

Blainville, Quebec

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

Deputy Attorney General of Canada