Date: 20000324
Docket: T-1257-98
BETWEEN:
STEPHEN JOSEPH GLAVINE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant in this case, Mr. Glavine, seeks judicial review of a decision of a Canadian Forces Career Review Board (Medical) ("the Board"), communicated to the applicant on May 20, 1998, by which the applicant's release from the armed forces was amended from item 5(f) "Unsuitable for further service" to item 3(b) "Medical" under the Queen's Regulations and Orders. At the same time he was advised that his release date remained August 24, 1989.
[2] The application seeks declaratory relief for reinstatement, as well as for lost pension benefits, following Mr. Glavine's release from the Forces on August 24, 1989 and his largely unsuccessful grievance proceedings after he was released. He alleges that he was treated unjustly, that he was not provided the treatment to which he was entitled, and as a result he was dismissed when he should have been retained as a member of the Forces.
Background
[3] The applicant entered the Forces on May 20, 1976. He was promoted to the rank of Corporal in September of 1980. His career was proceeding without any negative assessment until 1989. At all relevant times, he was assigned to Canadian Forces Base Moose Jaw as an Aero Engine Technician. He had consistently received favourable reviews from his superiors, up to and including his review of December 2, 1988.
[4] In September of 1988, the applicant was admitted to the National Defence Medical Centre ("NDMC") in Ottawa, for psychiatric treatment under the care of Major L.J. Bérard, the head of psychiatric outpatient services at NDMC. Upon his release, following a month of inpatient treatment, in October 1988 Major Bérard made the following report:
| While he doesn't suffer from any serious psychiatric disorder, he nevertheless has a type of personality which makes it difficult for him to handle adequately the kind of chronic stressor that constitute [sic] a tense close relationship. |
| That having been said, one must remember that his personality certainly has some assets. For instance he was able to maintain his sobriety for a prolonged period of time, even through those last difficult months and, as I could judge from his personal file, he has given a generally satisfying performance at work for several years. |
| I am of the opinion that if he is posted away from Moose Jaw and provided with regular psychotherapy for a few months at least, he will be able to overcome his present difficulties. |
| This is why I strongly recommend a compassionate posting for him. |
| I do not see any reason for occupational restriction but I recommend G5(T6) to ensure continuity of psychotherapy. |
[5] A note to file, written by the Base Surgeon (Major J. Kotlarz), dated October 28, 1988, when the applicant returned to CFB Moose Jaw following treatment at NDMC, indicates that the applicant's admission diagnosis at NDMC was "acute psychosis and depression". Upon his release, the final diagnosis made was "adjustment disorder, depressed mood, personality disorder, alcohol abuse in remission". After his return to Moose Jaw, an effort was made to have psychotherapy provided to the applicant, and the Base Surgeon wrote to a Moose Jaw psychiatrist making an urgent request that the applicant receive "some form of psychotherapy". That led to a first appointment in early April 1989, but in effect psychotherapy was not arranged on a continuing basis after Mr. Glavine left NDMC. Further, despite Major Bérard's recommendation a compassionate posting was not arranged for Mr. Glavine.
[6] After his return to Moose Jaw, the applicant's job performance apparently deteriorated. He was cautioned about poor work performance on a number of occasions in February, March and April 1989. Then he was arrested in February 1989, for assault causing bodily harm, and he had two other civilian charges brought against him in April of that year. He was convicted of assault. As a result, he was incarcerated in civilian prison for forty-two days, from April 12 to May 24, and he was sentenced to serve further time on probation. A job performance memorandum dated May 31, 1989 reviewing his work over several weeks with an engine installation crew says that the applicant's work was unacceptable, and was deeply affected by being picked up in a barrack inspection for dirty laundry. In the seventh week of his evaluation, just before being arrested in late February, the applicant
| became very moody at work and he required numerous pep talks so he could keep working. He became depressed, got sick and broke down crying on five (5) different occasions. |
[7] On June 14, 1989, the applicant was notified that he was to be released from the Canadian Forces as "unsuitable for further service", pursuant to release item 5(f) of Article 15.01 of the Queen's Regulations and Orders.1 Cpl. Glavine made a written objection to notice of his compulsory release, to his commanding officer. This was responded to in writing, but the release was approved by that officer on July 6, 1989. He was ultimately released on August 24, 1989.
[8] Under Article 19.26 of the Queen's Regulations and Orders, the grievance procedure available in such circumstances is clearly prescribed. The applicant grieved the decision to his commanding officer, who denied redress on August 17, 1989. Thereafter, the grievance was consistently denied in turn by the Base Commander of CFB Moose Jaw, the Commander of Air Command, the Chief of the Defence Staff, and finally the Minister of National Defence.
[9] While the applicant's grievance was under consideration within the chain of command, after his release from the Forces, an internal memorandum of November 30, 1993, from a military medical officer, recognized that by then Mr. Glavine had developed paranoid schizophrenia and that his behaviour in 1988-89 was as a result of early stages of that disease. On this basis it was suggested that his item of release might be reviewed. The memorandum stated:
| Based on the information presented in a more complete form at reference B, and in discussion with the chief of psychiatry at NDMC, DHTS accepts that former Cpl Glavine does indeed now have full blown paranoid schizophrenia and also that, with the advantage of hindsight, the behaviour he was presenting in 1988-89 was as a result of the early stages of his disease. That being said however, it is believed that the medical care that was provided while Glavine was in the CF was of an acceptable standard and that the differential diagnosis of personality disorder was reasonable based on the evidence then available. |
| It is therefore suggested that, as former Cpl Glavine's behaviour may not have been within his control, consideration be given to changing his item of release from 5f to 5d. Had his disease been overt prior to or at the time of his release, medical limitations and resultant medical category would have been appropriate. That cumulative evidence however was not available to the CF at the time of the release.2 |
[10] It is the applicant's position that he should not have been released at all. He maintains that if he had been provided with the treatment that was recommended in October 1988 by the psychiatrist at NDMC, none of the subsequent events would have happened and he would not have been released. In his grievance up the chain of command, he sought full reinstatement with back pay to August 24, 1989. In the alternative, he sought to have a full medical examination to determine his fitness for duty, followed by reinstatement and back pay if he were to be found fit. The third alternative put before the Chief of the Defence Staff was a change of his release item from 5(f) to 3(b) with a full medical pension retroactive to August 24, 1989. The Chief of the Defence Staff denied redress and the grievance then went to the Minister.
[11] On October 29, 1997 the Minister of National Defence communicated to the applicant that he would direct a Career Review Board (Medical) to determine if item 3(b) would have been more appropriate for the applicant's release. The minister's letter concluded that he had found that the applicant had been treated
| fairly and correctly and that you have not suffered any personal oppression, injustice or other ill-treatment. Therefore, I deny further redress. |
[12] The Career Review Board (Medical) met to consider the applicant's case and recommended that his release item be changed to 3(b) - Medical discharge. The Board did not consider and did not recommend changing his release date.
[13] Following the meeting of the Board, the Director of Personnel Career Administration 5 wrote on April 30, 1998 to counsel for Mr. Glavine to advise that the Board had met to consider whether the applicant should have been released under item 3(b) of Article 15.01 and to formulate a recommendation to the approving authority. The letter reported that the Board did recommend Mr. Glavine's release item be changed to 3(b), a recommendation approved by the approving authority on April 21, 1998. Thereafter, on May 20, 1998, the Director Personnel Administration and Services 3 advised Mr. Glavine by letter that as a result of the decision of the Career Review Board (Medical) his item of release had been changed from 5(f) to 3(b), that his suitability factor remained at "C" and his release date remained August 24, 1989.
[14] It is this decision in toto conveyed by the letter of May 20, 1998, including advice that there was to be no change in his release date, that the applicant here seeks to challenge by judicial review. In his application he seeks declaratory relief, that
| a) he is entitled to lost wages from the date of his release on August 24, 1989 to his normal retirement date, not earlier than May 1997 when he would have served for 20 years; |
| b) he is entitled to lost pension benefits which would have accrued over service of a minimum of 20 years; |
| c) he is entitled to costs incurred in pursuing his grievance and for the judicial review proceeding. |
Issues
[15] The applicant raises the following issues in his memorandum of fact and law and at the hearing:
| 1. Did the Career Review Board (Medical) err in failing to appreciate that it had the jurisdiction to consider whether Mr. Glavine's release date should be changed? |
| 2. Did the Career Review Board (Medical) err in failing to exercise its jurisdiction to consider whether Mr. Glavine's release date should be changed? |
| 3. Did the Career Review Board (Medical)'s failure to consider the issue of Mr. Glavine's release date constitute a denial of natural justice, and hence a reviewable error? |
Analysis
[16] It is imperative for the consideration of the issues as presented to determine the actual grant of jurisdiction to the CRB(M). Counsel for the applicant indicated in both written and oral submissions that the Board is not referred to in the National Defence Act3, or in the Queen's Regulations and Orders. It is referred to in various Canadian Forces Administrative Orders, issued pursuant to the Act by the Governor in Council or the Minister pursuant to s. 12, or by the Chief of the Defence Staff under s-s. 18(2).
[17] Canadian Forces Administrative Order 34-26 provides for a Career Medical Review Board which is to "consider all cases in which a medical board has been approved which permanently lowers the medical category of a member below the acceptable minimum for his classification, trade or area of employment".4 The authority of the Board is stated5 as:
| 5. The CMRB will recommend: |
| a. continued employment in present capacity with career limitations; |
| b. continued employment in present capacity without career limitations; |
| c. transfer, remuster or posting; or |
[18] The decision to release a non-commissioned officer, as Mr. Glavine was, is vested in the Chief of the Defence Staff or his designate.6 The authority is delegated by the Chief of the Defence Staff to various officers depending upon the release item applicable, and in this case, for the release under item 3(b) the authority was the "DPCA [Director Personnel Career Administration] upon recommendation from Career Review Board (Medical)".7
[19] In this case, as we have noted, the Director Personnel Career Administration 5 wrote to counsel for the applicant on April 30, 1998 and advised of the decision of the Review Board and its approval. Mr. Glavine was later advised by letter from the Director Personnel Administration and Services 3, confirming the amendment of his release item on recommendation of the Review Board, and that his "suitability factor" and his release date remained as they had been originally determined.
[20] Under Article 19.26 of the Queen's Regulations and Orders, the Minister of National Defence is the ultimate administrative decision-maker when a member of the Canadian Forces seeks redress of a grievance. Members follow the chain of command, as was done by the applicant, from the member's immediate supervisor, up to the Chief of the Defence Staff and, ultimately, to the Minister. As Article 19.26 provides, in part:
| (9) Where an officer or non-commissioned member has submitted a complaint in writing to the Chief of the Defence Staff and the decision of the Chief of the Defence Staff does not afford the redress that, in the opinion of the member, is warranted, the member may submit a complaint in writing to the Minister.
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(9) Si un officier ou militaire du rang qui a présenté une plainte écrite au chef d"état-major de la défense est d"avis que la décision de ce dernier ne lui accorde pas le redressement qui, de l"avis du militaire, semble justifié, il peut présenter une plainte écrite au ministre.
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| (10) Every redress authority who receives a complaint in writing shall:
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(10) Toute autorité de redressement qui reçoit une plainte écrite doit :
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| (a) where it is within that authority"s power to afford redress, |
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| a) lorsqu"elle a le pouvoir d"accorder le redressement demandé |
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| (i) take the necessary action, if the redress authority is personally satisfied of the justice of the complaint, or |
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| (i) soit prendre les mesures nécessaires, si elle est personnellement convaincue du bien-fondé de la plainte, |
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[21] The decision on the applicant's grievance was the Minister's, to whom the grievance was addressed. He decided to convene a Career Review Board (Medical) to review whether item 3(b) - Medical would be a more appropriate release item for the applicant's release, but he denied any further redress. It is not argued, and there is no basis for finding that the Minister's decision was not within his discretion.
[22] For the applicant it is urged that the Career Review Board (Medical) failed to exercise its jurisdiction when it neglected to reconsider the release date of the applicant. I am not persuaded that the Board failed as suggested, or indeed that it had authority to consider the matter of the suitability factor earlier assigned to the applicant on his release. Clearly, it had no such general authority under CFAO 34-26; its authority was simply to recommend, on medical grounds, continuation of a member in his present capacity, with or without career limitations, or the transfer or posting, or release of the member. Insofar as the Minister may have authority in dealing with a grievance to consider the effective date for any redress, he obviously did not exercise any such discretion himself nor did he invite the Career Review Board (Medical) to make any recommendation about that. The matter may have been put before the Board by submissions on behalf of the applicant, but without authority under the CFAO orders which constitute the Board, it did not err in not addressing, in its recommendation, any change in the applicant's release date.
[23] While it was urged for the respondent that the application for judicial review was filed out of time and without an application for extension of time, I am not persuaded that this is the case. The application was filed within 30 days of the receipt of the letter of May 20, 1998 which conveyed the final and full response to the applicant's grievance to the Minister. There was earlier advice about the recommendation of the Board and approval of that, but only the letter of May 20 responded fully to the applicant's grievance which had sought reinstatement, or salary and pension entitlement beyond the date originally set for his release from the Canadian Forces.
Conclusion
[24] In terms of the issues raised by the applicant, I find that the Career Review Board (Medical) did not err in not considering whether Mr. Glavine's release date should be changed and thus it did not err in not recommending such a change. By not considering a change in his release date the Board did not deny him natural justice. In my opinion it was not within the jurisdiction of the Board to consider his release date.
[25] In the result, I dismiss the application for judicial review on its merits. The relief sought, in the form of declarations as to entitlement to wages beyond the date originally fixed for Mr. Glavine's release and to pension benefits beyond those related to his service up to that date, is not warranted, where there is no error in the exercise of its proper discretion by the Career Review Board (Medical).
[26] The respondent asks for costs. These I fix and order, in the amount of $1200.00 to be paid upon written request by counsel to the respondent to counsel for the applicant.
OTTAWA, Ontario
March 24, 2000.
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1 Article 15.01(1) provides:
An officer or non-commissioned member may be released during his service, only in accordance with this article and the table hereto.
The Table to Article 15.01 includes the following entry:
Item 5 - Service Completed
(f) Unsuitable for Further Service - Applies to the release of an officer or non-commissioned member who, either wholly or chiefly because of factors within his control, develops personal weakness or behaviour or has domestic or other personal problems that seriously impair his usefulness to or impose an excessive administrative burden on the Canadian Forces.
2 Memorandum of Col. MacKenzie, 30 November 1993. Exhibit 2 to Applicant's Affidavit, sworn on July 8, 1998.
3 R.S.C. 1985, c. N-5, as am.
4 CFAO 34-26, para. 4.
5 CFAO 34-26, para. 5.
6 QR & O, Chapter 15, Article 15.01(3).
7 CFAO, 15-2, para 10, and Table 2.
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