Date: 20100727
Docket: T-1789-09
Citation: 2010 FC 785
Ottawa, Ontario, July 27,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
CAPTAIN
FRANCOIS LEBLANC
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Captain François Leblanc seeks to
overturn a decision of the Director General (DG) of the Canadian Forces
Grievance Authority, in which the DG had found that it was not in the interests
of justice to extend a 90-day deadline. Under the Queen’s
Regulations and Orders for the Canadian Forces (QR&O), a grievance must
ordinarily be referred to the Final Authority (FA) within 90 days of receiving
the decision of the Initial Authority (IA) (s. 7.10). Here, the DG was acting
as the FA on Capt. Leblanc’s grievance. The FA can extend the 90-day deadline
where it would be in the interests of justice to do so. Capt. Leblanc provided
reasons for being late with his request, but the FA concluded that he did not
show that the interests of justice lay in his favour.
[2]
A DG’s decision relating to a request for an
extension of time is reviewable on a reasonableness standard (Hudon v. Canada
(A.G.), 2009 FC 1092). Therefore, the sole issue before me is
whether the DG’s decision was unreasonable.
II.
Factual Background
[3]
In February 2007, Capt. Leblanc filed a
grievance alleging abuse of authority by his Commandant. In January 2008, the
IA found that there was insufficient evidence to support Capt. Leblanc’s
allegation. Capt. Leblanc had 90 days from the date he received the IA’s
decision to forward his grievance to the FA. He says he received it on February
28, 2008. However, he did not refer his grievance until July 18, 2008, almost
five months later.
[4]
In February 2009, the FA forwarded Capt.
Leblanc’s grievance to the Canadian Forces Grievance Board (CFGB). The CFGB
asked Capt. Leblanc to explain the delay in referring his grievance to the FA.
Capt. Leblanc responded by stating that he had been involved in an intensive
Army Operations Course (until June 26, 2008). In addition, he had been awaiting
further disclosure of documents relating to his grievance.
[5]
In July 2009, the CFGB submitted its findings to
the DG (acting as the FA). The CFGB found that Capt. Leblanc’s reasons for
having referred his grievance to the FA out of time were not valid. In turn,
the DG considered Capt. Leblanc’s reasons and, on September 14, 2009, concluded
that they did not justify an extension. It is this decision that Capt. Leblanc
asks the Court to review.
III.
The DG’s Decision
[6]
The DG noted that time limits should not be
departed from lightly. One must consider the particular circumstances of the
griever and the overall interests of fairness.
[7]
The DG found that the Army Operations Course,
while intensive, did not preclude Capt. Leblanc from pursuing his grievance in
a timely manner. Students have time to attend to personal matters while on the
course. In addition, inadequate disclosure did not prevent Capt. Leblanc from
pursuing the remedies available to him. In fact, he did so anyway before
receiving the disclosure he had sought.
(1)
Was the DG’s Decision Unreasonable?
[8]
Capt. Leblanc maintains that the DG’s decision
was unreasonable because it failed to take account of the realities of the
training course he was pursuing at the relevant time and the problems he was
having in obtaining disclosure of necessary information. In effect, he says,
the delay was partly caused by the failure of the Canadian Forces to respect
their disclosure obligations. Capt. Leblanc also contends that the DG did not
appear to understand that his grievance related to a fundamental issue
affecting the integrity of the Canadian Forces: an alleged abuse of authority
by a senior officer.
[9]
The burden fell on Capt. Leblanc to persuade the
DG that the interests of justice justified an extension of time. However, Capt.
Leblanc merely stated that he was busy on his Army Operations Course and was
awaiting further disclosure. In light of the insubstantial submissions before
him, I can find nothing unreasonable in the DG’s decision that Capt. Leblanc
had not demonstrated that the interests of justice warranted an extension of
time.
[10]
At the heart of Capt. Leblanc’s grievance and
his application for judicial review lies a genuine concern and respect for the
Canadian Forces and the Government of Canada. To his credit, Capt. Leblanc has
tried to ensure that the letter and spirit of the laws and regulations
applicable to the Canadian Forces are scrupulously observed. He suggests that
the DG should have recognized and taken account of the gravity of his grievance
before deciding that the interests of justice did not justify an extension.
[11]
The DG was clearly aware of the substance of
Capt. Leblanc’s complaint. But the DG rightly observed that an extension of
time is “not an instrument to be used lightly”. As Justice Richard Boivin
stated, if extensions are granted too easily, the referral remedy “would be
quickly short-circuited and rendered meaningless” (Hudon, above, para. 27).
Such an outcome would run counter to the objectives Capt. Leblanc has sought to
achieve.
[12]
Accordingly, I cannot find that the DG’s
decision was unreasonable.
IV. Conclusion and Disposition
[13]
Based on the submissions before him, I cannot
conclude that the DG’s decision - that it was not in the interests of justice
to extend the deadline for referring a grievance to the FA - was unreasonable.
It fell within “a range of possible, acceptable outcomes which are defensible
in respect of the facts and the law” (Dunsmuir v. New Brunswick, 2008 SCC 9, para. 47). I
must, therefore, dismiss this application for judicial review.
JUDGMENT
THIS COURT’S JUDGMENT is
that:
1. The application for judicial
review is dismissed.
“James
W. O’Reilly”
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