Murphy v. Canada (Attorney General), docket T-2377-94

     T-2377-94

BEFORE:      THE HONOURABLE MR. JUSTICE ROTHSTEIN

BETWEEN:

     ROBERT MURPHY,

     Applicant,

     - and -

     THE ATTORNEY GENERAL OF CANADA,

     Respondent.

     REASONS FOR ORDER

Rothstein, J.

     This is a judicial review of a September 7, 1994 decision of the Chief of the Defence Staff (CDS) approving the release the applicant from employment with the Canadian Armed Forces.

     The applicant was a Petty Officer Second Class in the Navy. In 1989 he took and failed the Qualification 6 level (QL6) course for the Marine Engineering Trade. Again in February 1992 he failed the QL6 test. As a result of the second failure, a Career Review Board (CRB) reviewed his case. In September 1992 the CRB recommended recoursing the applicant with a period of academic upgrading before his being tested again. In July 1993 the applicant failed a QL5 test and did not complete other requirements. A second CRB reviewed his case and in July 1993 recommended his release. A Notice of Intention to Release was forwarded to the applicant in September 1993. On December 7, 1993 the applicant filed an Objection to Release consisting of over fifty pages of submissions and attachments. On December 14, 1993 an occupational transfer was considered for the applicant but rejected. On December 22, 1993 the Director Personnel Career Other Ranks (DPCOR) approved the applicant's release. Because the applicant was not medically fit, his release was postponed by decisions made from time to time until July 10, 1994

     On July 20,1994 counsel for the applicant wrote to the Office of the Chief of the Defence Staff submitting that the DPCOR did not have power to make the decision to approve the applicant's release and that action must be taken to reinstate the applicant and that he must be given the opportunity for a fair hearing before the proper decision maker.

     As a result of the letter from applicant's counsel, the Chief of the Defence Staff (CDS), the proper decision maker in this case, reviewed the matter. From his memo of August 2, 1994 to the Assistant Deputy Minister Personnel (ADMPers) it appears he was concerned that the applicant was to be released because he did not qualify for a promotion which he thought "severe". The ADMPers responded by memo dated August 10, 1994 advising that the applicant was being released because of his failure to attain technical qualifications integral to his employment and not because he did not qualify for promotion to the next rank. The memo states:

     This explanation appears to have satisfied the CDS which lead to his approval on September 7, 1994 of the applicant's release as of July 10, 1994, the date on which the applicant's various postponements of his release came to an end. In that decision the CDS acknowledged that the earlier approval of release by the DPCOR did not constitute approval of release by the appropriate approving authority. The decision states:

     The decision continues:

     The applicant relies on the decisions of this Court in Diotte v. Canada et al [1992] 54 FTR 276 and Duncan v. Canada (Minister of National Defence) [1990] 3 F.C. 560 to say that he has not been given direct access to the decision maker, in this case the CDS. However the applicant did file an Objection to Release with extensive submissions and attachments. The CDS says he examined the material concerning the applicant's release. The applicant says he was not given an opportunity for submissions to the second CRB but the recommendation of that board is not the decision under judicial review. The applicant has not demonstrated that his submissions were not considered by the CDS. On the contrary it is clear that the CDS had the applicant's material before him. By his memo to the ADMPers it is apparent he considered the reason for the applicant's release on its merits. This case is unlike Duncan as in the present circumstances the applicant has not been denied direct access to the decision maker. Nor in my view are the present circumstances similar to those in Diotte in which the decision of the decision maker was held to be a "fait accompli" before the applicant was given an opportunity to make representations.

     The applicant says he did not have an opportunity to respond to the ADMPers's advice to the CDS as to the reason for the applicant's release. It is correct that he did not see the ADMPers's memo. However the reason given for release by the ADMPers was in other material which the applicant did see and to which he had the opportunity to respond. For example in a memo dated October 2, 1992 the Commander of the Canadian Forces Fleet School at Halifax states:

     On this point the case is similar to Miller v. Director General Posting and Career Officers et al 1994, 76 FTR 15 (T.D.) in which the failure to provide a briefing note was not fatal because the information contained in it had already been disclosed. I am satisfied there is no prejudice to the applicant by not being shown the memo of the ADMPers. While I have doubt that advice received from the staff of the CDS need be disclosed in any event, it is not necessary to address this issue in this case.

     The applicant's medical condition was referred to numerous times in the material before the CDS. In particular it was noted that the applicant was given the opportunity for recourse because of his medical condition. To the extent the medical condition was relevant it was before the CDS. The applicant says that various positive assessments and commendations were not put before the CDS but indeed the applicant's Objection to Release with attachments bring these facts to the attention of the CDS. Nonetheless, it was the applicant's failure to attain the QL6 qualification level that was crucial and that was the basis for his release.

     The reference in the decision of the CDS to "other regulations and orders" pertains to the improper procedure followed when the DPCOR acted as approving authority. The applicant was successful before the CDS on this point and cannot now complain that he was not given information that was used against him

     The applicant represented himself. Before the hearing commenced the applicant requested an adjournment to retain counsel. However, the applicant had earlier retained counsel who was no longer acting. His application for legal aid was refused. While an appeal of that decision was possible, on questioning the applicant, I was not satisfied there were grounds for an appeal. Within the bounds of propriety counsel for the respondent has assisted the applicant. This matter had been adjourned once already and has been in progress for over two and one half years. I therefore declined the application for adjournment.

     The submissions of the applicant were measured and coherent. He did a creditable job of putting forth his case. There is material to which he referred that is very complimentary of his military service. However, the Court does not have jurisdiction to substitute its discretion for that of the CDS with respect to the applicant's release. The Court's jurisdiction is prescribed by Section 18.1 of the Federal Court Act. Within these bounds I am unable to conclude that there has been any error by the CDS in his decision to approve release of the applicant or any failure of natural justice.

     The application for Judicial Review is dismissed.

                 "Marshall Rothstein"                          Judge

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     Names of Counsel and Solicitors of Record

COURT NUMBER:      T-2377-94

STYLE OF CAUSE:      Robert Murphy

                     v.

             The Attorney General of Canada

PLACE OF HEARING:      Halifax, Nova Scotia

DATE OF HEARING:      May 12, 13, 1997.

REASONS FOR ORDER BY: Rothstein, J.

DATE OF REASONS FOR ORDER:      May 14, 1997.

APPEARANCES:

Mr. Robert Murphy

     for Applicant

Mr. A. Pringle

     for Respondent

SOLICITORS OF RECORD

Robert Murphy

Dartmouth, NS

     for Applicant

George Thompson

Deputy Attorney General of Canada

Ottawa, Ontario

     for Respondent