Docket: T-1636-10
Citation: 2011 FC 1154
Ottawa, Ontario, October 12,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
ROBERT ZEIDLER
|
|
|
|
Applicant
|
|
and
|
|
|
THE ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Chief of Defence
Staff (CDS) in his capacity as the final authority in the grievance process,
dated August 26, 2010. The CDS denied a Redress of Grievance (ROG) on the
decision to remove the Applicant as Commanding Officer (CO) of the Queen’s Own
Rifles of Canada (QOR).
[2]
For
the following reasons, the application is allowed.
I. Background
[3]
The
Applicant, Robert Zeidler, was appointed CO of the QOR effective June 27,
2008. A series of events led to a decision on December 16, 2008 to remove him
from this command:
• September
16 – Applicant’s supervisor, Colonel Mann (Col Mann), issued a direction to all
COs stating:
Chain of command - …effective immediately
no one within LFCA (32 CBG) will speak with staff from a higher or lower HQ
unless it is their immediate higher or lower HQ or dir liaison has been auth by
the immediate higher HQ.
• September
29 – Applicant communicated disagreement outside his chain of command regarding
the redistribution of parachutist positions to soldiers through the Land Force
Central Area (LFCA) instead of concentrating all of the positions within the
QOR.
• October
2 – Col Mann was prompted to issue an order to the Applicant not to communicate
outside of his unit in regards to military matters without authorization from
his headquarters.
• October
6 – In an effort to protect his unit, Applicant sent a widely distributed email
entitled “QOR Para Tasking” critical of the decision to redistribute
parachutist positions and intimating that “[t]he Regiment’s leadership will do
everything it can to allow saner voices to be heard.”
• November
7 – Applicant announced during a military Mess Dinner that he might not support
the Chief of Land Staff (CLS) Primary Leadership Qualification (PLQ) promotion
policy.
• December
2 – Brigadier General Collin (BGen Collin), Commander LFCA advised the
Applicant that he had concerns with his performance. Having reviewed the “QOR
Para Tasking” email, BGen Collin considered the tone and many of the statements
insubordinate in nature. He noted that the Applicant had previously been
counselled on inappropriate discussions. He also commented on the Applicant’s
implication that he would not comply with the recent promotion policy at the
Mess Dinner. The Applicant was to report to BGen Collin to explain his
actions.
• December
9 – Applicant met with BGen Collins who suggested that he was “personally
insulted” by the email’s contents. That same day a Notice of Intent to Remove
from Command (NOI) was prepared. The NOI indicated that BGen Collin was
considering the Applicant’s temporary, perhaps even permanent removal, from
command. The Applicant was given 7 days to respond, instead of the usual 14,
and no extension of time would be contemplated.
• December
12 – BGen Collins met with his staff assistant or J1 and a Military Policeman
whose notes from the meeting provide: “The LFCA Comd further stated he had
taken administrative action against LCol ZEIDLER by removing him from his command.”
• December
13 – Applicant submitted representations apologizing for any offence his email
may have caused and trying to explain his actions.
• December
16 – Applicant was issued a Continuance of Removal from Command signed by BGen
Collin. This document intimated that BGen Collin had reviewed the
representation and considered it along with other factors. He nonetheless
stated that the Applicant’s “intentions may have been good, but they were not followed
by sound judgement and were certainly disrespectful, insulting and
insubordinate in nature.” He made reference to a “poisoned command climate”
having been created as a result of the Applicant’s actions. He concluded that
the Applicant was no longer able to effectively command and ordered his
immediate removal, stating “[y]ou have lost my confidence and I no longer
believe that you are in a position whereby you can insist on loyal conduct from
your subordinates.”
[4]
The
Applicant pursued the decision to remove him from command through the CF
grievance process. The following steps were taken:
• January
31, 2009 – Applicant submitted an application for ROG through the chain of
command to be adjudicated by CLS as the Initial Authority (IA). He cited a
lack of procedural fairness and bias on the part of the decision-maker.
• March
9, 2009 - Lieutenant-General Leslie, CLS, recused himself as the initial
adjudication authority in the interests of transparency and absolute fairness
as the CLS was consulted before the final decision to remove LCol Zeidler from
command. The ROG was therefore sent to the Director General of the Canadian
Forces Grievance Authority (DGCFGA).
• October
6, 2009 – Applicant was informed that a Synopsis had been prepared by the CFGA
and he would have 30 days from receipt to provide his Response. He requested
and was granted an extension to do so. The Synopsis concluded, among other
things, that any issues of procedural fairness and apprehension of bias related
to BGen Collin were cured by the Grievance Synopsis and documentary
disclosure. The Comd LFCA had lost confidence in the Applicant’s ability to
effectively command because of several “questionable” statements of personal
opinion that demonstrated poor judgment.
• December
11, 2009 – Applicant provided his Response to the Synopsis. Shortly
thereafter, he requested that DGCFGA recuse himself from acting as the Final
Authority due to his long-standing relationship with BGen Collin and that the
grievance be sent directly to the CDS.
• January
7, 2010 – Applicant nonetheless agreed to have his file forwarded to the CFGB
to be reviewed and findings and recommendations prepared.
• March
31, 2010 – CFGB forwarded their Findings and Recommendations to the Applicant.
He requested and received an extension of time to file a response to be
forwarded to the CDS along with the CFGB documents for a final decision. The
CFGB recommended that the CDS deny the ROG. Although BGen Collin did not
comply with all of the administrative procedures in place, these departures did
not result in procedural unfairness. The Applicant was made aware of his
intent and knew the case against him in sufficient detail to make
representations. The evidence showed that the decision to remove the Applicant
from command was taken after he made representations. There was no evidence of
an apprehension of bias on the part of BGen Collin. The Applicant had failed
to live up to his responsibilities as CO. As the CFGB stated:
The wording of the 5 October 2008 email
authored by the grievor contains language and intent that is sufficient to
jeopardize the unique and essential trust relationship between a commander and
his subordinate. This, in turn, caused the Comd LFCA to lose confidence in the
grievor’s ability to command and his moral authority to demand loyal conduct
from his own subordinates in the future.
[5]
In
addition to the removal from command, the Applicant was issued a Recorded
Warning (RW) by Col
Mann for conduct deficiency on February 2, 2009. The Applicant was informed on
July 20, 2009 that his file had been reviewed by a Succession Board and he was
being released from the CF. Based on the advice of the CFGB, these decisions
are being addressed through the grievance process but separately from the removal
of command.
II. Decision
under Review
[6]
The
CDS concurred with the Findings and Recommendations of the CFGB. It was noted
that the Applicant’s approach in addressing disagreement with the decisions of
his superiors was poorly executed. The written comments were insubordinate and
providing those opinions to his soldiers was inappropriate. It would be
difficult for the Applicant to maintain the loyalty of his soldiers after this
incident.
[7]
BGen
Collin, Comd LCFA, was found to have considered the events that occurred and
weighed the benefit of proceeding with administrative measures. BGen Collin
recognized that past behaviour was indicative of behaviour that would repeat
itself in the future and would have to be addressed by a removal from command.
Moreover, according to the CDS, the representations provided by the Applicant
did not demonstrate a full understanding of the gravity of his conduct.
[8]
The
CDS agreed with the CFGB that procedural fairness was afforded to the
Applicant. Although documents were not initially disclosed, this issue had
been cured as a result of the grievance process. The decision of BGen Collin
to give the Applicant only 7 days to respond to the NOI had not prevented him
from submitting his representations. As the CFGB found, there was also no
evidence of bias, since BGen Collin had considered all of the evidence and
allowed the Applicant to make his representations. Having reviewed the
evidence on the grievance file that BGen Collin considered, the CDS found he
would have reached the same conclusion. The best course of action was to
remove the Applicant from command. The decision was therefore correct and
without bias.
III. Legislative
and Policy Framework
[9]
Sections
29 to 29.15 of the National Defence Act, RS, 1985, c N-5 govern the CF
Grievance Process. They prescribe the relevant procedures and guiding
principles. CF members aggrieved by a decision in the administration of the CF
are entitled to submit a grievance. The CDS is the final authority in the
grievance process. He must also refer grievances to the CFGB to provide
findings and recommendations. Those findings and recommendations are not
binding; however, the CDS must provide written reasons if it fails to adopt
them. With the exception of judicial review to this Court, a decision of the
CDS is final and binding. These procedures are expanded on in Chapter 7 of the
Queen’s Orders and Regulations (QR&O).
[10]
The
QR&O also set out the command structure of the CF. Under Article 19.015,
officers are expected to obey lawful commands and orders of a superior
officer. They are also not permitted to “make remarks or pass criticism
tending to bring a superior into contempt” as prescribed by Article 19.14.
[11]
While
there is no legislative guidance on removal from command, the CDS issued
Removal Guidelines on December 12, 2001. According to paragraphs 4-5, removal
from command relates to a “loss of confidence in the person’s ability to
effectively exercise command” and is “normally a culmination of many tasks or
functions that have not been performed in the expected manner.” It also
suggests that it is “normal that a superior will attempt to correct the
performance deficiencies of a subordinate before taking action to remove the
subordinate from command.” Paragraph 7 dictates that procedural fairness
should be afforded as part of the removal from command, including a notice of
intention, disclosure, and an opportunity to respond.
[12]
In
another policy document entitled Removal/Relinquishment from Command of Key
Positions within Land Force Command (LCFO 11-94), it is stated that where a
permanent removal process is initiated the CF member will be given disclosure
and 14 days to respond.
IV. Issues
[13]
This
application raises the following issues:
(a) Was
the Applicant afforded procedural fairness in the decision to remove him as CO
of the QOR and the subsequent grievance process?
(b) Did
the conduct of BGen Collin, Comd LFCA in the decision to remove the Applicant
from command raise a reasonable apprehension of bias?
(c) Was the decision of the CDS to
deny the Applicant’s ROG reasonable?
V. Standard of Review
[14]
Issues
of procedural fairness are reviewed on a standard of correctness (see Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 42-43). As one aspect of fairness, reasonable
apprehension of bias is also determined on a standard of correctness (see Geza
v Canada (Minister of
Citizenship and Immigration), 2006 FCA 124, 2006 CarswellNat
706 at para 44).
[15]
When
reviewing the decisions of the CDS related to issues of mixed fact and law,
however, this Court has found that the applicable standard is reasonableness
(see Moodie v Her Majesty the Queen, 2009 FC 1217, 2009 CarswellNat 3887
at para 18). Reasonableness is “concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process” as well as “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).
V. Analysis
Issue A: Procedural
Fairness
[16]
The
Applicant submits that the Removal Guidelines and related policies created
legitimate expectations regarding the procedure that would be followed in
removing him from command of the QR&O (see Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, 1999 CarswellNat 1124 at para 26). He
points to several actions by BGen Collin that were not in accordance with these
policies including: failure to consider administrative action prior to
removal, not allowing 14 days and the possibility of extension to respond to
the NOI, not initiating an investigation, and failure to provide full
disclosure. Based on the notes of the Military Policeman, it is asserted that
the decision of BGen Collin was a “fait accompli” before any contrary representations
were provided.
[17]
The
Applicant also maintains that the subsequent grievance review process would not
necessarily resolve these procedural defects, as the CDS implied in its
decision (Diotte v Canada (1989), 31 FTR 185, [1989] FCJ No 1138 at para
18). He suggests that the CFGA Synopsis as well as the CFGB and CDS decisions
treated issues of procedural fairness merely as issues to be overcome rather than
conducting a de novo review.
[18]
I
recognize that the Removal Guidelines would create legitimate expectations on
the procedures to be followed and the decision of BGen Collin was made quickly.
It is fair to say that I have concerns that BGen Collin provided the Applicant
with a relatively short time period to respond to the NOI and seems not to have
considered any administrative action prior to removal. Further, it seems clear
based on the notes from the Military Policeman that BGen Collin had decided to
remove the Applicant from his command position before the Applicant could
respond to the NOI. I am also very concerned that the Applicant’s immediate
supervisor, Col Mann, was fully aware of the October 6 email and November 7,
2008 alumni remarks and took no action until December 4 when ordered to do so
by BGen Collin. It is clear that BGen Collin was particularly upset and the
driving force behind the removal of the Applicant.
[19]
However,
the Respondent rightly urges the Court to focus its attention on the final
decision-maker under review, the CDS (Zimmerman v Canada (Attorney
General),
2009 FC 1298, [2009] FCJ No 1663
at para 35). In Schmidt v Canada (Attorney General), 2011 FC 356,
[2011] FCJ No 463 at para 14, Justice Robert Barnes clarified that the CF
grievance procedure could provide a grievor a true de novo assessment of
the case, given the large scope for review, right to disclosure, and
opportunities to respond called for in the legislative and policy framework.
[20]
However,
the CDS failed to live up to its mandate to provide a de novo review in
this case. In Schmidt, above, the CDS set aside the initial decision on
the basis of fairness concerns but proceeded to conduct a de novo
hearing and found Schmidt’s removal from command justified. By contrast, the
CDS appears merely to have adopted the original findings of the BGen Collin
without considering that he may have rushed to judgment on the Applicant’s
situation. The CDS asserts that he considered the evidence before BGen Collin
and simply reached the same conclusion. As a review of the decision
demonstrates, however, it serves mainly to reiterate BGen Collin’s original
findings. It also seeks to explain away many procedural issues that arose and
suggests that their impact on the Applicant was minimal. The process was
nonetheless tainted from the outset by procedural issues that were not remedied
by the reliance placed on the initial decision by the CDS.
Issue
B: Reasonable Apprehension of Bias
[21]
To
establish a reasonable apprehension of bias, the Applicant must demonstrate
that an informed person, viewing the matter realistically and practically, and
having thought the matter through, would probably conclude that an individual
would not decide the matter fairly (Committee for Justice and Liberty v
Canada (National Energy Board), [1978] 1 S.C.R. 369).
[22]
As
defined by Committee, above, I find that there is sufficient evidence to
conclude the potential for bias was present in this case. The criticisms
levied by the Applicant were directed at policies proposed by BGen Collin in
his capacity as Comd LCFA. Though he stated he was concerned about a loss of
confidence in the ability to command, he also suggested that he was “personally
insulted” by the Applicant’s comments.
[23]
BGen
Collin’s subsequent actions further put his ability to decide the matter fairly
into question. He did not afford the Applicant some standard procedural
protections. In his comments to the Military Policeman and prior to receiving
any representations from the Applicant, he portrayed the decision regarding
removal from command as final. This is not indicative of an individual
approaching the issue in an impartial manner.
[24]
The
Respondent contends that the senior officers in the chain of command are in the
best place to describe the circumstances of removal of command (see McIlroy
v Attorney General of Canada, 2011 FC 149, [2011]
FCJ No 170 at para 28). Where that same senior officer is intimately connected
with the accusations against the member of the CF, such as being the target of
criticism found insubordinate and having made their displeasure known; however,
they may no longer be best situated to decide the matter fairly. In such
cases, there is no reason why another senior officer aware of the demands
associated with command would not be in an appropriate position to make a
similar determination. It is also instructive to note that the Applicant’s
immediate superior, Col Mann, knew about the Applicant’s activities of
October 6 and November 7, 2008 and took no action until December 4 when ordered
to do so by BGen Collin. It would seem that Col Mann continued to have
confidence in the Applicant during this timeframe.
[25]
The
CDS erred when it suggested that as long as BGen Collin’s initial decision is
reasonable, there would be no bias. BGen Collin’s connection to the issue and
his snap judgment regarding the Applicant alone were sufficient to raise the
prospect that a person looking realistically and practically at the matter
would not conclude that B Gen Collin would decide the matter fairly.
Issue
C: Reasonableness
[26]
For
many of the similar reasons noted above, the decision of the CDS to deny the
Applicant’s redress of grievance was unreasonable. It relied heavily on the representations
provided by BGen Collin, which
can be questioned based on grounds of procedural fairness and apprehension of
bias. In its assessment of procedural fairness, the CDS failed to consider
whether BGen Collin prejudged the Applicant.
[27]
Admittedly,
the actions of the Applicant in criticizing his superior’s policies were
questionable. There are reasons to be concerned that they were not in
accordance with CF policies. However, the decisions were marked by procedural
irregularities and reasonable apprehension of bias. The manner in which the
determination was reached is critical to an assessment of its reasonableness
and acceptability on judicial review.
VI. Conclusion
[28]
Due
to the continued reliance on the initial decision by the CDS, he was unable to
overcome procedural irregularities. In addition, there was a reasonable
apprehension of bias on the part of BGen Collin based on his personal
involvement and subsequent actions that was not cured by the extensive
grievance process.
[29]
Accordingly,
the application for judicial review is allowed and the matter is referred back
to the CDS for reconsideration.
[30]
The
Applicant is entitled to his costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is allowed and the matter is referred back to
CDS for reconsideration.
2.
The
Applicant is entitled to his costs.
“ D.
G. Near ”
Email this Content