Date: 20091026
Docket: T-443-09
Citation:
2009 FC 1092
Ottawa, Ontario, October 26, 2009
PRESENT: The Honourable Mr.
Justice Boivin
BETWEEN:
CHARLES HUDON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1] This is an application for
judicial review of the decision by the Director General of the Canadian Forces
Grievance Administration (“Grievance Authority”), on behalf of the Chief of the
Defence Staff (“CDS”), dated February 16, 2009, refusing to consider the applicant's
grievance at the second and final level on the basis that the grievance was
filed out of time without reasonable cause.
Factual background
[2] The
applicant is a member of the Canadian Forces. He filed a grievance under
section 29 of the National Defence Act, R.S.C. 1985, c. N-5 (the Act)
in 2006 (see
also article 7.01 of the Queen’s Regulations and Orders for the
Canadian Forces (QR&O)). The initial authority did not grant him the
redress sought at the first level of the grievance consideration procedure, and
the applicant received notice of that determination on June 24, 2008.
[3] The
applicant then had 90 days from receipt of the determination of the initial
authority (QR&O at paragraph 7.10(2)), that is, until September 22, 2008,
to submit his grievance to the CDS, the final authority on grievances under section 29.11
of the Act.
[4] Section 29.14 of the
Act gives the CDS the authority to delegate any of the CDS’s powers, duties or
functions as final authority in the grievance process to the Grievance
Authority, except in respect of grievances that are referred to the Canadian
Forces Grievance Board in accordance with the QR&O, Volume 1, Chapter 7.
[5] The
Grievance Authority received the applicant’s grievance on November 21, 2008,
nearly two months after the prescribed time limit had expired, and it was of
the opinion that the applicant’s arguments did not contain any new explanations
that might persuade the CDS that it would be in the interests of justice to
consider the out-of-time grievance under paragraph 7.10(4) of the QR&O. The
Grievance Authority notified the applicant of the reasons for the determination
in a letter dated February 16, 2009. Unhappy with the Grievance Authority’s
determination, the applicant applied for judicial review of that decision.
Impugned decision
[6] In a determination dated February 16, 2009,
the Grievance Authority states that it considered the applicant’s grievance
dated June 20, 2006, concerning
administrative and police investigations of him.
[7] The
Grievance Authority then noted that on
September 16, 2008, and October 22, 2008, counsel for the applicant requested extensions of
the time limit prescribed under paragraph 7.10(2) of the QR&O. It explained that there was no authority to
extend the time limits prescribed by regulation (QR&O at paragraphs 7.02(1) and (2)) before they expired and that there was no
discretion in this regard.
[8] It should be noted that the initial authority’s
determination, rendered by Lieutenant-General Leslie on June 14, 2008, was received by the applicant on June 24, 2008.
Consequently, the applicant’s right to submit his grievance to the CDS expired
on September 22, 2008. The
applicant’s grievance was submitted to the CDS on November 17, 2008, nearly two
months after the 90-day period expired. The authority responsible for handling
the grievance must therefore consider the reasons given by the applicant to
explain the delay and determine if it is in the interests of justice to accept
the out-of-time grievance (QR&O at paragraph
7.10(4)).
[9] The
reason given by counsel for the applicant to justify the delay in submitting
said grievance is related to the workload at the law firm representing the
applicant. The Grievance Authority concluded that a careful reading of the file
did not allow it to identify any exceptional circumstances that would have
prevented the applicant from filing his submissions within the prescribed time
limits.
[10] The
applicant’s application for redress was therefore rejected, since the grievance
was submitted to the CDS out of time without reasonable cause.
Issues
[11] The
applicant submitted a series of questions that the respondent recast. In my
view, the relevant questions in this case are the following:
1. Which standard of review is applicable to the Grievance
Authority’s determination?
2. Was the Grievance Authority’s determination capricious,
perverse or unsupported by the evidence?
3. Did the Grievance Authority breach a principle of
natural justice or procedural fairness? More specifically, did the decision-maker
give reasons for the decision, and did the applicant have a legitimate
expectation that the decision-maker was going to extend the time limit?
Relevant legislation
[12] The following sections of the National Defence Act, R.S.C. 1985, c. N-5,
are relevant:
Right to grieve
29. (1) An officer or non- commissioned member who has
been aggrieved by any decision, act or omission in the
administration of the affairs of the
Canadian Forces for which
no other process for redress is
provided under
this Act is
entitled to submit a grievance.
Final authority
29.11 The Chief of the Defence
Staff is the final authority in the
grievance process.
Delegation
29.14 The Chief of the Defence
Staff may delegate to any officer any of the Chief of the
Defence Staff’s powers, duties or functions as final authority in
the grievance process, except
(a) the duty to act as final authority in respect of a grievance that must be referred
to the Grievance Board; and
(b) the power
to delegate under
this section.
Decision is final
29.15 A decision of a final
authority in the grievance
process is final
and binding and, except for judicial review under the Federal Courts Act, is not
subject to appeal
or to review by any court.
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Droit de déposer des griefs
29. (1) Tout officier ou militaire
du rang qui s’estime lésé par une
décision, un acte ou une omission dans les affaires des Forces canadiennes a le droit
de déposer un grief dans le cas où aucun autre recours de
réparation ne lui est ouvert sous
le régime de la présente loi.
Dernier ressort
29.11 Le chef d’état-major de la
défense est l’autorité de
dernière instance en matière de griefs.
Délégation
29.14 Le chef d’état-major de la
défense peut déléguer
à tout officier le pouvoir
de décision
définitive que lui confère l’article 29.11, sauf pour les griefs qui doivent
être soumis
au Comité des griefs; il ne peut toutefois déléguer le pouvoir de
délégation que lui confère le présent article.
Décision définitive
29.15 Les décisions du chef
d’état-major de la défense ou de son
délégataire sont définitives
et exécutoires et, sous réserve
du contrôle judiciaire
prévu par
la Loi sur les Cours fédérales, ne sont pas susceptibles d’appel ou de révision en justice.
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[13] The following articles of the Queen’s Regulations and
Orders are also relevant:
7.01 RIGHT TO GRIEVE
(1) Subsections 29(1) and (2) of
the National Defence Act provide:
“29. (1) An officer or non-
commissioned
member who has
been aggrieved by any decision, act or omission in the
administration of the affairs of the
Canadian Forces for which
no other process for redress is
provided under
this Act is
entitled to submit a grievance.
(2) There is no right to grieve in
respect of
(a) a decision of a court martial
or the Court Martial Appeal
Court;
(b) a decision of a board, commission, court or tribunal
established other
than under this
Act; or
(c) a matter
or case prescribed
by the Governor in Council
in regulations.”
(2) There is no right to grieve in
respect of a decision made
under the Code of Service
Discipline.
(3) The right to grieve does not
preclude a member from
making an oral complaint to the
commanding officer prior to submitting a grievance.
7.10 – SUBMISSION TO CHIEF OF THE DEFENCE
STAFF
(1) Where a member has
submitted a grievance under article 7.01 (Right
to Grieve) and the decision of the initial
authority does not afford
the redress that, in the opinion of
the member,
is warranted, the member may submit the grievance to the Chief of the
Defence Staff
for consideration and determination.
(2) The grievance must be in
writing, signed
by the grievor
and submitted
to the Chief of Defence Staff within 90 days of
receipt by the grievor of the
determination of the initial
authority.
(3) A member who submits
a grievance after the expiration of
the period referred to in paragraph
(2) must submit
reasons for the delay.
(4) The Chief of the Defence Staff or an officer to whom final authority has been
delegated may consider a
grievance that is submitted after
the expiration of the period
referred to in paragraph (2) if
satisfied that
it would be in the
interests of justice to do so. If not satisfied, the Chief of the Defence Staff, or the officer to whom final authority has been delegated, shall provide reasons in writing to the grievor.
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7.01 – DROIT DE DÉPOSER
DES GRIEFS
(1) Les paragraphes 29(1)
et (2) de la Loi sur la défense
nationale
prescrivent :
« 29. (1) Tout officier ou
militaire du rang qui s’estime
lésé par une décision, un acte
ou une omission dans
les affaires des Forces canadiennes
a le droit de déposer
un grief dans le cas où aucun autre
recours de réparation ne lui est ouvert sous le régime de la
présente loi.
(2) Ne peuvent toutefois
faire l’objet d’un grief :
a) les décisions d’une cour
martiale ou de la Cour d’appel de
la cour martiale ;
b) les décisions d’un tribunal,
office ou organisme créé en
vertu d’une
autre loi;
c) les questions
ou les cas exclus par règlement du
gouverneur en conseil.
»
(2) Ne peuvent faire l’objet
d’un grief les décisions prises
aux termes du code de discipline militaire.
(3) Rien n’empêche un militaire
de se plaindre verbalement à son commandant avant
d’exercer son droit
de déposer un grief.
7.10 – DÉPÔT
DU GRIEF
DEVANT LE CHEF D’ÉTAT- MAJOR DE LA DÉFENSE
(1) Si un militaire qui a déposé un grief aux termes de l’article
7.01 (Droit de déposer
des griefs) est d’avis que la décision
de l’autorité initiale ne lui
accorde pas le redressement qui semble justifié, il peut porter
son grief devant le chef d’état-major de la défense pour qu’il l’étudie et en décide.
(2) Le grief est fait par écrit
et signé par le plaignant, puis déposé devant le chef d’état-
major de la défense dans les 90 jours qui suivent la réception de
la décision de l’autorité initiale.
(3) Le militaire qui dépose son
grief après l’expiration de ce
délai doit soumettre par écrit les
raisons du retard.
(4) Le chef d’état-major de la défense ou l’officier ayant le
pouvoir de décision définitive peut connaître d’un grief déposé
en retard s’il est dans l’intérêt de la justice de le faire.
Il doit toutefois motiver par écrit son refus au militaire.
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Analysis
1. Which standard of review is applicable to the Grievance
Authority’s determination?
[14] This
application raises the question of whether the manner in which the Grievance
Authority’s determination was made is acceptable under the acts and regulations
in force.
[15] In
the case at bar, the Court is of the opinion that the Grievance Authority’s
determination is a question of mixed law and fact and that the applicable
standard of review is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190). In Chainnigh
v. Canada (Attorney General), 2008 FC 69, 322 F.T.R. 302 at paragraph 21, this Court noted that a
certain degree of deference was owed with respect to factual determinations and the exercise of discretion by the CDS. In Armstrong v. Canada (Attorney General) 2006 FC 505, 291
F.T.R. 49 at paragraph 37, Justice
Layden-Stevenson noted the following:
Balancing the factors, I
conclude that for findings of fact, the applicable standard of review is that
set out in the Federal Courts Act, that is, they are reviewable only if
they are erroneous, made in a perverse or capricious manner or without regard
to the evidence. This is equivalent to patent unreasonableness. In all other
respects, the decision of the CDS (in this case the Grievance Authority) is
subject to review on a standard of reasonableness. See: McManus v. Canada (Attorney General), [2005] F.C.J. No. 1571, 2005 FC 1281 at paras. 14-20.
[16] Furthermore,
questions relating to procedural fairness are questions of law and therefore
subject to the correctness standard of review
(Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at paragraph 100;
Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001]
1 S.C.R. 221 at paragraph 65).
2. Was the Grievance Authority’s
determination capricious, perverse or unsupported by the evidence?
[17] Under
subsection 29(1) of the Act, any officer or non-commissioned
member is entitled to submit a grievance if no other process of redress is open
to him or her. As part of his duties, the Act and the QR&O give the CDS the
power to dispose of a grievance and any other relevant issue. Section 29.11 of
the Act provides that the CDS is the final authority in the grievance process. The
decision of the CDS is final and binding (section 29.15 of the Act). The CDS is
the Canadian Forces officer who is
“charged with the control and administration of the Canadian Forces” (subsection
18(1) of the Act).
[18] The
applicant submits that the Grievance Authority’s determination prevented the
CDS from exercising his powers, given that the applicant was deprived of his
right to have his grievance considered and reviewed by the CDS. The applicant also takes the view that
the Grievance Authority’s determination was made in an arbitrary manner and is
abusive and contrary to the spirit and to its responsibility to the members of
the Canadian Forces.
[19] Furthermore,
the applicant submits that the extension request was filed before the original
time limit expired in order to preserve the applicant’s rights, and he points
out that his counsel contacted the office of the Grievance Authority in that
regard, again to preserve the applicant’s rights.
[20] The
respondent, on the other hand, submits that the CDS does not have jurisdiction
to determine a member’s grievance submitted out of time, unless the CDS is of
the opinion that it is in the interests of justice to do so. The respondent
points out that the applicant submitted his grievance to the CDS approximately
two months after the expiration of the relevant time limit. In the respondent’s
view, the applicant’s reason for his delay, a heavy workload, cannot in itself
excuse the applicant’s failure to comply with the time limit.
[21] At
the hearing, it clearly emerged that this issue centres on an interpretation of
paragraph 7.10(4)
of the QR&O. Paragraph 7.10(4) reads
as follows:
7.10 – SUBMISSION TO THE
CHIEF OF DEFENCE
STAFF (4) The Chief of the Defence Staff or an officer to whom final authority has been
delegated may consider a grievance that is submitted after
the expiration of the period
referred to in paragraph (2) if
satisfied that
it would be in the
interests of justice to do so. If not satisfied, the Chief of the Defence Staff, or the officer to whom final authority has been delegated, shall provide reasons in writing to the grievor.
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7.10 – DÉPÔT DU GRIEF
DEVANT LE CHEF D’ÉTAT-
MAJOR DE LA DÉFENSE
(4) Le chef d’état-major de la défense ou l’officier ayant le
pouvoir de décision définitive peut connaître d’un grief déposé
en retard s’il est dans l’intérêt de la justice de le faire.
Il doit toutefois motiver par écrit son refus au militaire.
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[22] This
provision clearly indicates that the Grievance Authority may accept a grievance
submitted after the expiration of the time limit if it is of the opinion that
it is in the interests of justice to do so. As noted above, the applicant
raised the heavy workload of his counsel’s law firm as the reason for his
lateness.
[23] On
September 16, 2008, about a week before the applicant’s time limit for
submitting his grievance to the CDS was set to expire, Michel Drapeau, one of
the applicant’s lawyers in this file, wrote
to the CDS to have the time limit extended to October 24, 2008. The letter did not give any reasons for the need
to extend the time limit.
[24] On October 17, 2008, a representative of the Director General Canadian
Forces Grievance Authority, Major
Marc Cormier, had a telephone conversation with Ms. Zorica Guzina,
another lawyer acting for the
applicant in this file; during this conversation, the issue of allowing the
grievance to be submitted after the expiration of the time limit was discussed.
[25] Ms. Guzina then
wrote to the CDS on October 22, 2008,
to ask for another extension of the time limit for submitting her client’s
grievance, this time to November 17, 2008. This
letter, unlike the letter dated September 16, 2008, contained
an explanation to the effect that
the firm’s workload would prevent it from submitting the grievance before
October 22, 2008.
[26] The
sole reason given by the applicant for his delay is therefore the heavy
workload of his counsel’s law firm. However, counsel was well aware of the
90-day time limit under paragraph 7.10(4) of
the QR&O. Moreover, in the letter to the CDS dated September 16, 2008, Mr.
Drapeau, one
of the applicant’s lawyers, stated the following: [translation] “However, as you know, we have 90 days from the
date of receipt to submit our application to you, which allows us up until September 22, 2008,
to submit our answer”.
[27] The evidence on record shows that this nearly two-month delay
did not result from an event that was unforeseen, unexpected or beyond their
control. In this Court’s opinion, granting an extension of time solely on the
ground that the firm’s heavy workload caused the delay in question, without
any other explanation, is not in the interests of justice. If extensions
were to be granted for this reason alone, the mechanism under article 7.10 of the QR&O would be quickly short-circuited
and rendered meaningless.
[28] It
is certainly conceivable that a heavy workload combined with other factors that
could not be foreseen or were beyond counsel’s control could be taken into
account, but such is not the case here. Indeed, more often than not, factors
that are beyond counsel’s ability to foresee or control will result in an
excessive workload, not the other way around.
[29] In
this respect, the Court is in full agreement with the words of Justice Reed on
this issue in Chin v. Canada (M.E.I.), (1993), 69 F.T.R. 77, 43 A.C.W.S. (3d) 1141 at paragraph 10:
It is too easy a
justification for non-compliance with the rules for counsel to say the delay
was not in any way caused by my client and if an extension is not granted my
client will be prejudiced. I come back again to the question of fairness. It is
unfair for some counsel to be proceeding on the basis that barring unforseen [sic]
events the time limits must be met and for others to be assuming that all they
need do is plead overwork, or some other controllable event, and they will be
granted at least one extension of time. In the absence of an explicit rule
providing for the latter I proceed on the basis that the former is what is
required.
[30] Furthermore,
under subsection 29(3) of the Act, Parliament granted the Governor in
Council the power to set the conditions for submitting a grievance. To ensure that the system works effectively, the Governor in Council chose to subject Forces
members to a set time limit for submitting their grievances to the CDS (QR&O at paragraph 7.10(2)). Similarly,
the Governor in Council determined that the CDS would not have jurisdiction to
consider grievances submitted after the expiration of the prescribed period (QR&O at paragraphs 7.10(1),
(2) and (4)).
However, the Governor in Council did provide for an exception, such that the
CDS may consider a grievance submitted after the expiration of the prescribed
period if the member can satisfy the CDS that it is in the interests of justice
to do so (QR&O at paragraphs 7.10(3) and (4)). In the case at bar, the burden was therefore on the applicant to
satisfy the Grievance Authority of this.
[31] This
Court is of the opinion that the applicant has not discharged his burden and has not offered any valid reason to support
his request for an extension of the time limit. The Grievance Authority’s
decision was reasonable in the circumstances, and this Court’s intervention is
unwarranted.
[32] Before
concluding on this issue, the Court notes that at the hearing, the applicant
made submissions to the Court that did not appear in the written submissions.
The respondent objected to these new submissions. The Court heard the
applicant’s arguments in part and took them under advisement, given the
important issues facing the applicant.
[33] The
applicant thus tried to make a connection between the time elapsed between the
grievance at the first level and the refusal to accept the grievance at the
second level because of the delay, arguing that the time that the military
authorities spent processing the grievance justified granting an extension in
exchange. The applicant also made a
technical argument to the effect that his intention to ask for an extension was
sufficient to preserve his rights and allowed him to make submissions at a
later date. Finally, the applicant stated that his grievance had been submitted
and that it was therefore unnecessary to resubmit it. After hearing the applicant, and in light of the
circumstances, the Court cannot agree with this complementary argument and
rejects it entirely. On the one hand, the Court’s reading of article 7.10 of
the QR&O, as described above, is at odds with the applicant’s convoluted
interpretation of that provision; on the other hand, the evidence on record,
more specifically, the letter dated September 16, 2008, clearly indicates that
the applicant understood that the entire grievance had to be submitted within
the 90-day time limit prescribed by article
7.10 of the QR&O. He did not
do so and gave no reasonable explanation for the delay.
3. Did the Grievance Authority breach a principle of
natural justice or procedural fairness? More specifically, did the decision-maker
give reasons for the decision, and did the applicant have a legitimate
expectation that the decision-maker was going to extend the time limit?
[34] The
applicant submits that the Grievance Authority’s determination, given its
significant impact on the applicant’s rights and the repercussions for his
career and reputation, breached the principles of natural justice and
procedural fairness and, moreover, did not include any justification or
reasons. The applicant is also of the opinion that, further to the preliminary
discussions between his counsel and the Grievance Authority, he had a
legitimate expectation that his request for an extension would be accepted by
the Grievance Authority.
[35] Contrary to what the applicant claims, the
respondent submits that the Grievance Authority did not fail to give reasons
for its decision. According to the respondent, the decision was neither
capricious nor abusive, and the applicant had failed to show that he was
entitled to expect that the time limit would be extended.
[36] The
Court notes that paragraph 7.10(4) of the QR&O provides that if an extension of the time limit is refused, the
reasons for that refusal must be provided in writing. However, having read the
decision by the Grievance Authority, the Court is of the opinion that the
three-page decision provides sufficient reasons. First of all, the Grievance
Authority noted that it did not have discretion to extend a time limit. It then
referred to article 7.10 of the
QR&O, explaining that the grievance must be submitted within 90 days and
that in this case, the applicant submitted the grievance after the expiration
of that period. That said, the Grief Authority notes in its decision that it
must consider the reasons for the delay; however, having examined the matter, it
concludes that a heavy workload is not sufficient reason and that it is
therefore not in the interests of justice to grant an extension of time. It can
hardly be argued that the Grievance Authority did not give intelligible reasons
for its decision or that its decision was capricious or abusive.
[37] The
applicant argued that further to the discussions that took place between Ms. Guzina and Major Cormier, the applicant had a legitimate expectation that the time limit would be
extended. Although the applicant would have liked to receive an extension from
the Grievance Authority, the evidence on the record does not support the
conclusion that, during the said telephone conversation, Major Cormier
(representing the Director General Canadian Forces Grievance Authority) made
any statements creating any expectations whatsoever (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 26). What is more, this allegation by the
applicant relies on a paragraph in an affidavit by a person other than Ms. Guzina
who had no personal knowledge of the telephone conversation between Major Cormier
and Ms. Guzina. For this reason, the Court gives little weight to this
allegation.
[38] In
refusing to consider the applicant’s grievance at the second and final level,
the Grievance Authority therefore did not breach
the principles of natural justice or procedural fairness. It correctly
concluded that the grievance had been submitted out of time without reasonable
cause.
[39] In conclusion, the Court notes that article 7.10 of the QR&O is clear. The Grievance Authority
does not have discretion to agree to hear a grievance submitted out of time
unless it is in the interests of justice to do so. In this case, the applicant
wanted an extension of time simply because of a heavy workload and offered no
other explanation for the delay. The Grievance Authority gave sufficient
reasons for its decision not to grant an extension of time on that sole basis.
The intervention of this Court is unwarranted.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial review be dismissed.
“Richard Boivin”
Judge
Certified true translation
Michael Palles