Date: 20081110
Docket: T-2037-07
Citation: 2008 FC 1254
Ottawa, Ontario, November 10,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
DENNIS
G. GABRIEL
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Dennis
G. Gabriel (the “Applicant”) seeks judicial review of the decision of the
Honourable Peter G. MacKay, Minister of National Defence, dated October 24,
2007, denying the Applicant’s request for a Canadian Forces board of inquiry
into his 1997 grievance (the “Grievance”).
[2]
The
Applicant asserts that the Minister misapprehended the facts. In doing so, the
Applicant says the Minister did not have regard to:
i.
The
Canadian Forces not appointing an assisting officer for the Applicant when
requested and not acknowledging and investigating the Applicant’s Grievance in
a timely manner; and
ii.
The
Canadian Forces, at the local level, not following the Canadian Forces Rules
and Regulations and not fully investigating his Grievance.
[3]
For
reasons that follow, I find that this application for judicial review of the
Minister’s
decision cannot succeed, and is denied.
BACKGROUND
[4]
The
Applicant enrolled in the Canadian Forces in February 1971. He attained the
rank of
Captain and in 1995 he assumed a position
of Social Work Officer at Canadian Forces Base (CFB) Halifax.
[5]
The
Applicant and another Captain were the two senior officers in the Halifax
Formation
Social Work Office. The Applicant says he
was given to understand by Major Pinch, the superior officer, that he would be
the senior officer, but no such order was forthcoming. Conflicts arose in the
day to day operations between the two Captains. The Applicant found the “role
ambiguity” stressful but performed his duties such that he received positive
reviews for his performance.
[6]
On
March 14, 1997, as a result of a social work staff meeting, the Applicant and
the other
Captain agreed to put their conflict issue
before their superior officers, Chief Social Work Officers Lt.-Col. MacLellan
and Major Pinch. They agreed to abide by whatever recommendations that Lt.-Col.
MacLellan made to the Chief of Ambulatory Care, Formation Health Services Unit,
CFB Halifax. On March
24, 1997, the Applicant and the other Captain met with Major Pinch; Lt.-Col.
MacLellan was not in attendance. On April 2, 1997, the Major recommended that
the other Captain be named as department head. In response to the Applicant’s
proposal that a resolution be found without naming a senior position, the Major
agreed to hold off the recommendation for one week. However, if no resolution
was reached between the two Captains, the recommendation would be forwarded to
the Chief of Ambulatory Care, CFB Halifax.
[7]
The
Applicant did not agree with these developments and requested an assisting
officer for
preparation of a grievance complaint. The
Canadian Forces did not appoint an assisting officer and the Applicant filed a
grievance in April 1997. In his application for redress of grievance, he
referred to the problems of having two Captains in the Social Work Office; the
stress he felt was due to the conduct of the other Captain and his disagreement
with the Major’s decision to recommend the other Captain as senior social
worker/department head. In his opinion he was subjected to personal harassment.
He sought appointment as senior Captain as redress.
[8]
During
the same period as the filing of his grievance, the Applicant had sought
psychological counselling and had made a
request for special consideration for release from the Canadian Forces. The
Major appointed the other Captain as senior officer on July 22, 1997. The
Applicant secured his release from the Canadian Forces effective September
1997. In January1998, in response to the Applicant’s concerns regarding
difficulties in two Captain offices, the Military Occupation Classification
(MOC) Social Work of the Canadian Forces adopted a formula for designating the
senior social worker where there are two Captains in an office.
[9]
In
January 1999, the Applicant began work as a civilian social worker for the
Canadian
Forces at CFB Greenwood. In June
2000, the Applicant re-enlisted with the Canadian Forces.
[10]
The
Applicant’s grievance was suspended upon his release from the Canadian Forces
in
1997. After his re-enlistment he again
took up his request for an investigation into his grievance. As part of the
renewal of his earlier redress for grievance application, he contended that he
left under a “constructive dismissal process”.
[11]
The
Applicant brought his grievance to the attention of the Department of National
Defence/Canadian Forces Ombudsman. The
Ombudsman declined to accept the complaint because the incidents giving rise to
the grievance predated the 1998 creation of the Ombudsman’s Office. In
February 2002, the Ombudsman investigator recommended the matter not be further
investigated since the issues identified were specific and individual with no
facts or circumstances in the public interest or in the interest of current
DND/CF members.
[12]
In
August 2003, the Applicant’s spouse wrote to her Member of Parliament
requesting a
board of inquiry into her husband’s
grievance, a request the MP forwarded to the Minister. In February 2004, the
Applicant’s spouse wrote to the Minister with the same request. The Minister
responded by noting that the military grievance procedure was governed by
section 29 of the National Defence Act, R.S., 1985, c. N-5 (the “Act”)
and the accompanying Queen’s Regulations and Orders for the Canadian Forces
(“Regulations and Orders”). The Minister declined to appoint a board of
inquiry but stated that since the internal military grievance procedure had not
been exhausted he was referring the Applicant’s grievance to the Commander
Canadian Forces Medical Group, in her capacity as Initial Authority (IA), for
consideration and determination.
[13]
On
September 14, 2004, the Canadian Forces acknowledged receipt of the Applicant’s
redress for grievance.
[14]
The
Applicant had changed his application for redress as a result of the passage of
time. He
now requested:
a. An immediate
unrestricted promotion to Major, retroactive and pay benefits to 1995;
b. For CF
pension purposes, full credit for the time he was released from the CF, Sept
1997 to June 2000. Thus giving him 33 years of pensionable service;
c. Written
assurance that regardless of any current medical challenges, that he be
accommodated within his profession and remain at 14 Wing Greenwood for the
duration of his CF Career until the Compulsory Retirement Age;
d. A letter of
apology from the primary person who did not exercise leadership required; and
e. Consideration
for awarding to the Applicant both the Canada 125 and
Queen’s Jubilee medals.
[15]
In
response to a request to clarify his desired remedies, the Applicant requested
$5 million as settlement of the harassment issue. The Applicant indicated that
he would consider any written offer presented.
[16]
Section
29(1) of the Act provides that an Officer or non-commissioned member who has
been aggrieved by any decision, act or commission in the administration of the
affairs of the Canadian Forces for which no other process or redress is
provided under the Act is entitled to submit a grievance. The commanding
officer to whom a grievance is submitted examines the grievance and decides if
he or she is able to act as the IA in respect of the grievance. If the
commanding officer is not able to act as the IA, the grievance is forwarded to
the commander who is responsible to deal with the subject of the grievance. In
this instance, the IA who addressed the Applicant’s grievance was Vice-Admiral
G.E. Jarvis, the Assistant Deputy Minister (Human Resources – Military).
[17]
By
this time the Applicant had retired from the Canadian Forces, but continued the
grievance process. A Canadian Forces investigator contacted a number of
individuals identified by the Applicant about the work environment at the
Formation Social Work Office between 1995 and 1997 and conducted a file
analysis. On June 24, 2005, after receipt of the investigator’s report, the IA
issued his decision. The IA acknowledged the administrative lapse that caused
the matter to be unresolved since 1997. On the matter of redress of the
grievance, the IA concluded:
a. Since
promotions within the Canadian Forces were regulated by policy and merit based,
the Applicant could not be promoted outside the limits of the promotion policy;
b. Because there
were no provisions to compensate Canadian Forces while not on active service,
the Applicant’s pension could not be credited for the time he was released;
c. Because the
Applicant was by then no longer a member of the Canadian Forces, the request to
remain at 14 Wing Greenwood was no longer relevant and, in any event, members
of the Canadian Forces had to be ready to meet service requirements so postings
at one location for the duration of service could not be assured;
d. On the
substantive issue of workplace discord, the IA stated that the situation could
have been more assertively addressed by the chain of command and such
intervention could have lessened the Applicant’s anxiety in the workplace.
However, given the time lapse that occurred it would not be fruitful to
commence an investigation.
e. With regard
to the medals requested, the IA noted that the programs for both medals were
now closed and no more medals were being given out.
[18]
The
IA indicated that there was no authority to grant financial compensation for
the Applicant’s perceived hardship as a result of the situation at the
Formation Social Work Office.
[19]
Finally,
the IA indicated that, in order to expedite the review process, the decision,
together with the Applicant’s grievance, would be forwarded to the Chief of
Defence Staff (CDS) for review and consideration as the final adjudicative
authority.
[20]
Where
the IA does not grant the redress sought, a griever may submit the grievance to
the Chief of Defence Staff (CDS) for consideration and decision. 7.10(1)
Chapter 7 – Grievances – Volume 1 of the Regulations and Orders.
When the grievance concerns harassment, as it did in this case, the CDS must
refer the grievance to the Canadian Forces Grievance Board (the “CFGB”). The
CFGB must consider every grievance referred to it, it may receive any
information it sees fit whether or not the evidence is admissible in a court of
law, and it provides recommendations in writing to the CDS and the griever.
[21]
The
CFGB decided the issues it had to consider were:
a. Whether the
Applicant was the victim of alleged harassment;
b. Whether the
Applicant was “constructively dismissed” from the Canadian Forces; and
c. Whether the
Applicant should be compensated for the alleged harassment he suffered.
[22]
In
its consideration of the issue of harassment, the CFGB considered CFAO 19-39
(Harassment), the directive in effect at the time in question. The CFGB
concluded that the Applicant took no action with regard to the alleged
harassment he claims he endured. He did not make a harassment complaint and
hence did not activate the internal procedure for dealing with the alleged
harassment. The CFGB also concluded the Applicant did not offer any specific
evidence or information with regard to harassment other than he and the other
Captain did not get along.
[23]
The
CFGB did decide that there was an onus on the superior officers to take action
if there was a situation of harassment arising from section 39 of CFAO 19-39.
That section provides that, if the superior believes unacceptable conduct has
occurred, the superior shall take action even if the member does not request
the situation be dealt with as a complaint. The CFGB concluded that the
Applicant’s superior did not act to resolve the difficulties until after the
Applicant submitted a grievance and requested a voluntary release in 1997.
[24]
The
CFGB’s view was that it would not serve a useful purpose to commence a
harassment investigation because many of the individuals involved were no
longer available.
[25]
Finally,
the CFGB noted the grievance process was in abeyance between 1997 and 2001 –
2002, the hiatus between the Applicant’s release and the renewal of his
grievance. The CFGB observed that this abeyance contributed to the delay in the
resolution of the grievance process.
[26]
While
the CFGB did not identify the appointment of the other Captain as an issue, it
observed that there was no evidence on file that the appointment of the other
Captain as department head was done improperly or unlawfully.
[27]
The
CFGB addressed the question of “constructive dismissal” from a legal
perspective. It observed that a relationship between a member of the Canadian
Forces and the Crown was not based on contract but rather on the prerogative of
the Crown over its military forces. The relationship was akin to a unilateral
contract whereby the Crown may dictate the terms of service without the consent
of members. The doctrine of constructive dismissal, in the CFGB’s view, had no
application.
[28]
Finally,
the CFGB noted that the appropriate authority to deal with the Applicant’s
request for financial compensation was the Director of Claims and Civil
Litigation. The CFGB recommended the CDS deny the Applicant’s grievance.
[29]
The
CDS must consider a grievance upon receipt of the CFGB report. The CDS is not
bound by any CFGB finding or recommendation but must provide reasons in writing
for not accepting a finding or accepting a recommendation. The CDS is the
final authority (FA) in the grievance process and the FA decision is final and
binding except for judicial review under the Federal Court Act pursuant
to section 29.15 of the National Defence Act.
[30]
The
CDS considered the grievance for redress dated April 1997, in particular the
Applicant’s claim for harassment and constructive dismissal from the Canadian
Forces. The CDS reviewed the Applicant’s original grievance and the
Applicant’s representations made in the course of the grievance process. The
CDS also reviewed the comments of the Applicant’s superior officers in the
chain of command, comments which had been disclosed to the Applicant.
[31]
The
CDS accepted the findings and recommendation with the exception of the CFGB’s
finding that the superior officers did not act to resolve the discord between
the Applicant and the other Captain. The CDS stated “An inability to get along
does not equate to harassment”. The CDS further noted that the superior
officers’ expectation that two professionals could arrive at an equitable
distribution of responsibilities without designation of a specific lead was
reasonable.
[32]
The
CDS stated he did not have jurisdiction within the grievance process to grant
the Applicant’s request for financial compensation. He referred the Applicant
to the Director Claims and Civil Litigation but indicated that he would not support
any claim by the Applicant for compensation.
[33]
The
Applicant did not apply for judicial review of the CDS’s decision of May 31,
2006. Instead, with the assistance of several Members of Parliament, he
renewed his request that the Minister convene a board of inquiry to look into
his grievance.
THE DECISION UNDER
REVIEW
[34]
On
October 24, 2007, the Honourable Peter MacKay, Minister of National Defence
responded to the Applicant’s request for a board of inquiry.
[35]
The
Minister began by noting the reforms to the Canadian Forces grievance process
brought into effect on June 15, 2000, through amendments to the Act and
the Regulations and Orders. The reforms were designed to expedite
grievance resolution by eliminating decision making layers and establishing an independent
external CFGB to provide findings and recommendations to the CDS. One notable
change was eliminating the role of the Minister as final authority in the
grievance process.
[36]
The
Minister was satisfied the issues raised by the Applicant in the Grievance were
thoroughly investigated and that all avenues of grievance in the Canadian
Forces to deal with the Applicant’s concerns had been exhausted.
[37]
The
Minister believed the military grievance process assembled all relevant facts
in the Applicant’s case and that a board of inquiry would not provide any
insight beyond the information considered in the Canadian Forces adjudication
of the Applicant’s grievance. The Minister declined to convene a board of
inquiry.
[38]
The
Applicant filed for judicial review of the Minister’s decision of October 24,
2007. The Applicant seeks the following orders as remedies:
a. An order
upholding the Applicant’s request for a full CF Board of Inquiry, resulting in
confirmation that the Grievance be granted, or in the alternative,
b. An order
directing that the matter is resolved by referral to a credible civilian
authority, as directed by the Court, for investigation and determination.
STANDARD OF REVIEW
[39]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada
concluded that questions of fact, discretion and policy as well as questions
where the legal issues cannot be easily separated from the factual issues
generally attract a standard of reasonableness. Supreme Court Justices
Bastarache and Lebel wrote at para. 47:
Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[40]
In
respect of factual determinations, in addition to a deferential standard of reasonableness
for factual determination, the Federal Courts Act provides:
|
18.1(4)
the Federal Court may grant relief under subsection (3) if it is satisfied
the federal board, commission or other tribunal
(d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
|
18.1(4) Les mesures prévues au paragraphe (3)
sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le
cas :
d) a rendu
une décision ou une ordonnance fondée sur une conclusion de fait erronée,
tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont
il dispose;
|
[41]
Accordingly,
factual conclusions drawn by the Minister in arriving at his decision require
the application of a deferential standard of reasonableness. Alternatively,
the statutory standard set out in section 18(4)(d) of the Federal Courts Act
may apply.
[42]
Turning
to the question of the nature of the Minister’s decision, the National
Defence Act provides, in section 45(1) as follows:
|
45(1) The
Minister, and such other authorities as the Minister may prescribe or
appoint for that purpose, may, where it is expedient that the Minister
or any such other authority should be informed on any matter connected
with the government, discipline, administration or functions of the Canadian
Forces or affecting any officer or non-commissioned member, convene a
board of inquiry for the purpose of investigating and reporting on that
matter.
|
45(1) Le ministre, de même que
toute autre autorité nommée ou désignée par lui à cette fin, peut, dans
les cas où il lui importe d’être renseigné sur toute question relative à
la direction, la discipline, l’administration ou aux fonctions des Forces
canadiennes ou concernant un officier ou militaire du rang quelconque, charger
une commission d’enquête d’examiner la question et d’en faire rapport.
|
[43]
The
language of the provision, specifically the words: “The Minister … may …
convene a board of inquiry…” indicates that the decision is in the Minister’s
discretion.
[44]
The
Minister’s decision on whether to convene a board of inquiry, being a
discretionary decision also attracts a deferential standard of reasonableness. Dunsmuir
at para. 47.
ANALYSIS
[45]
The
Applicant was self represented. He has assembled a thorough factual
compilation of documentary evidence which has been of assistance to the Court
in gaining an understanding of the chronology of events in this matter.
[46]
The
Applicant applied for judicial review of the Minister’s decision not to convene
a board of inquiry. The Applicant submits that the Minister misapprehended the
facts. He submits that the grounds for his application are that the Canadian
Forces did not appoint an assisting officer for the Applicant when requested
and did not acknowledge and investigate the Applicant’s Grievance in a timely
manner. He also submits, as grounds, that the Canadian Forces did not follow
the Regulations and Orders at the local level and did not fully
investigate his Grievance.
[47]
The
Applicant’s submissions are directed at disputing findings of fact and
conclusions made in the course of the Canadian Forces grievance process which
concluded with the decision of the CDS on May 31, 2006. The Applicant
disagrees with the findings of fact and the decision of the CDS denying his
application for redress of his grievance.
[48]
The
Applicant was not appointed an assisting officer as initially requested.
However, nothing in the Record indicates that he renewed his request for an
assisting officer when his application for redress of grievance was addressed
in 2004 under the 2000 revised Canadian Forces grievance process.
[49]
The
Applicant also says that his application was not dealt with in a timely
manner. The oversight for not addressing the complaint was acknowledged in the
decision of the IA and appears to be undisputed for the period 2001 to 2004.
However, once his application was taken up after 2004, it was addressed in an
expeditious manner.
[50]
The
Applicant disputes the findings and conclusions of the CDS. Section 29.15 of
the Act states that a decision of a final authority, in this instance the CDS,
is final and binding except for judicial review in Federal Court:
|
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.
|
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.
|
[51]
The
Applicant did not apply for judicial review of the CDS decision. Since
the decision of the CDS was final, the Minister is entitled to rely on the
findings of fact in the CDS decision.
[52]
The
Applicant does not identify any substantive factual error in the CDS’s or the
CFGB’s findings. He merely disagrees with those findings. Nor does the
Applicant demonstrate that the CDS made his decision other than in good faith.
Absent proof of substantive factual error or a failure to decide in good faith,
the Minister is entitled to rely on the final factual findings arrived at in
the Canadian Forces grievance process.
[53]
Since
the Minister had before him the unchallenged factual information that had been
collected throughout the grievance process I find that the Minister did not base
his decision on a misapprehension of facts.
[54]
The Minister has statutory discretion to convene a board of
inquiry where it
is expedient that the Minister should be informed of any matter. In this
instance, the Minister had available to him the final results of the Canadian
Forces grievance process commenced at his predecessor’s request in 2004. That
grievance inquiry involved analysis of the relevant files, statements from
witnesses identified by the Applicant, and disclosure to the Applicant. The
Applicant was afforded opportunity to comment and make submissions during the
inquiry process.
[55]
I
find the Minister’s conclusion that the military grievance process had
collected all relevant facts and that a board of inquiry would not provide any
further insight to be reasonable.
[56]
Finding
as I have the application for judicial review is dismissed.
COSTS
[57]
I
accept that the Applicant had a deep attachment to the Canadian Forces. He was
emotionally impacted by the events that underlie this judicial review. He did
not have the benefit of an assisting officer at the onset of this matter when
it would have been most beneficial for him. He was self represented
throughout. In these circumstances I do not consider this to be a case for
making a costs order.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review is dismissed.
2.
There
will be no order for costs.
“Leonard
S. Mandamin”
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