Date:
20130305
Docket:
T-249-12
Citation:
2013 FC 218
Ottawa, Ontario,
March 5, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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ANTHONY SNIEDER
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
applicant, Captain Anthony Snieder, sought judicial review in January 2012,
pursuant to the Federal Courts Act, RSC 1985, c F-7, section 18.1(3)(a),
of the fact that the Chief of Defence Staff (CDS) had not made a decision
concerning a set of four linked military grievances which he had submitted in
January and February 2011. Captain Snieder represented himself in this
application.
[2]
To provide context, it should be noted that the former Chief
Justice of Canada observed in The First
Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of
the provisions and operation of Bill C-25, An Act to amend the National Defence
Act and to make consequential amendments to other Acts, as required under
section 96 of Statutes of Canada 1998, c.35 (3 September 2003), online: http://www.cfgb-cgfc.gc.ca/documents/LamerReport_e.pdf)
[the Lamer Report] that:
During the course of my review of the operation of Bill C-25, it
became increasingly clear to me that the Canadian Forces grievance process is
not working properly. This conclusion is the result of an examination of the
grievance process and its performance triggered by many complaints made to me
by CF members at the bases that I visited and in the submissions made to me.
While the introduction of the Grievance Board has increased the perception of
an impartial grievance process, the lengthy period between the initiation of a
grievance and a decision by the final authority, the CDS, gives cause for
serious concern. [. . .] Soldiers are not second class citizens. They are
entitled to be treated with respect, and in the case of the grievance process,
in a procedurally fair manner. (page 86)
[3]
Two of the Lamer Report recommendations were:
(74) I recommend that going forward, there be a time limit of 12
months for a decision respecting a grievance from the date that a grievance is
submitted to a commanding officer to the date of a decision by the Chief of
Defence Staff or his delegate (under my proposed modified grievance system).
This 12 month time limit would apply to all grievances, excepting those that
must be personally adjudicated by the Chief of Defence Staff because they fall
within the guidelines to be established by the Chief of Defence Staff. If the
one year time limit is not met, subject to the exception for grievances that
the Chief of Defence Staff must personally adjudicate, a grievor should be
entitled to apply to the Federal Court for such relief as that court may deem
appropriate. The grievor should also be entitled to his/her costs on a
solicitor client basis, regardless of the outcome of the case. (page 103)
and
(75) I recommend that the National Defence Act be amended
to include an obligation on the Chief of Defence Staff and the person that he
may designate to act as his delegate as final authority to deal with all
matters before them as informally and expeditiously as the circumstances of
fairness permit. (page 103)
[4]
A
one-year limit had not been implemented as of the time Capt. Snieder’s
grievance was submitted.
[5]
Recently, the Honourable Patrick J. LeSage,
retired Chief Justice of the Ontario Superior Court of Justice, observed in his Report of the Second Independent Review
Authority to The Honourable Peter G. MacKay Minister of National Defence
(December 2011), online: http://www.forces.gc.ca/site/reports-rapports/patrick-lesage/_pdf/DND-Final-English-Report.pdf
[the LeSage Report] that:
Unfortunately, many of the same concerns were
raised by CF members at the bases I visited in the summer of 2011 and also in
the submissions forwarded to me, now eight years after the Lamer Report. (page
54)
. . .
[F]urther consideration must be given to
address the continuing delays in the system. While much progress has been
made, I believe further steps must be taken. Additional resources and a
streamlining of the process should permit achievement of the Lamer
recommendation that grievances be resolved within a one year time limit
recommended in the Lamer report. [. . .] I believe that many grievances can and
should be resolved in a much shorter period of time. (page 56)
[6]
The
LeSage Report recommended:
Recommendation
38:
There
should be a time limit of one year for a decision respecting a grievance from
the date the grievance is submitted to the date of a decision by the CDS or his
delegate. I also recommend the grievor be regularly advised of the status of
their grievance. (page 57)
BACKGROUND:
[7]
On
July 14, 2010, Captain Snieder, who was then living in Honolulu, Hawaii, accepted an offer of re-enrolment from the Canadian Forces as a pilot from the
Canadian Forces Recruitment Centre in Toronto, Ontario. He had previously
served in the military but had then worked as a civilian airline pilot for a
number of years. Before he took the oath, Capt. Snieder had the recruiter in Toronto go over the written offer line by line as it lacked clarity. He states that the recruiter
assured him three times that his relocation package, as described in the offer,
was fully authorized and funded. He was then posted to Moose Jaw, Saskatchewan.
[8]
It
is not disputed by the respondent that Captain Snieder was misinformed about the
elements of the relocation package by the recruiter.
[9]
On
September 1, 2010, the Canadian Forces Relocation Adjudication Section of the
Director Compensation and Benefits Administration issued a direction on Capt.
Snieder’s relocation package, denying him a posting allowance for travelling
from Toronto to Moose Jaw, the real estate incentive relating to his principal
residence in Hawaii, travel expenses for two trips made to undergo an interview
and medical examination in Toronto, and moving costs exceeding those of a move
from Toronto to Moose Jaw. Capt. Snieder calculates that this made a difference
of over $25,000 to his relocation benefits.
[10]
As
Captain Snieder put it in his submissions, had he received accurate information
at the time the offer to enrol was extended he could have made an informed
choice whether to accept it or not. Once he was enrolled he was subject to the National
Defence Act, RSC 1985, c N-5, Part III: Code of Service Discipline
and could not refuse to report to the base at Moose Jaw.
[11]
Captain
Snieder grieved the decision to deny him the four expected benefits. His four
separate complaints were submitted in January and February 2011 and were consolidated
into one file, 11-S-61155.
[12]
On
May 3, 2011, the file was referred to the Grievance Board. In June and July,
the Board disclosed all documents in the file for the applicant’s review and he
provided comments and additional representations. His final submission of
comments and additional documents was made on November 14, 2011.
[13]
On
December 15, 2011 the grievance analyst had completed her review and advised
the applicant that the file was being provided to the Director General Canadian
Forces Grievance Authority for review in preparation for a Final Authority
decision by the Chief of Defence Staff.
[14]
On
January 27, 2011, Capt. Snieder applied for judicial review by the Federal
Court. His grievance was suspended pending the outcome of the judicial review,
in accordance with Queen’s Regulations and Orders, article 7.16 (1). A
judicial review hearing was scheduled for February 27, 2013 at Regina, Saskatchewan.
[15]
The
Court was advised late on February 25th that the CDS had rendered a
decision on Friday, February 22, 2013. It transpired that Capt. Snieder had
requested on September 26, 2012 that the procedural fairness question of
timeliness be separated from the substance of his complaints, and the grievance
board, after initially relying upon the suspension under article 7.16 (1), had
changed its position and agreed to proceed.
[16]
In
the February 22, 2013 decision, the CDS upheld the grievance concerning travel
expenses for the interview and medical examination. He denied the grievance
concerning the refusal of a posting allowance from Toronto to Moose Jaw,
finding that Capt. Snieder was never “posted to” Toronto, only enrolled there. He
denied the grievance relating to the real estate incentive, finding that the
policy applied only to a “principal residence” and that this was defined as “a
dwelling in Canada”, which did not include Capt. Snieder’s residence in Honolulu. In addition, he had no evidence that Capt. Snieder had been specifically promised
the incentive. Finally, he agreed that the evidence showed that Capt. Snieder
had been incorrectly informed that he would receive a fully funded move from Hawaii to Moose Jaw and that this had played a part in Capt. Snieder’s re-enrolment
decision. However, the CDS concluded, he did not have the financial authority
to grant redress. Instead he forwarded that grievance to the Directorate of
Civil Claims and Litigation of the Canadian Forces Legal Advisor for assessment
in accordance with Treasury Board policy on ex gratia payments.
[17]
The
applicant’s request for an order compelling the CDS to render a decision on the
merits was therefore moot by the time of the hearing of this application. Nonetheless,
Captain Snieder argued that there was still a live issue, that being whether he
had received procedural fairness.
[18]
The
test for mootness, as reiterated recently by this Court in Spidel v Canada (Attorney General), 2012 FC 1440 at para 15, is:
15 The following two-part test
for mootness was established by the Supreme Court in Borowski v Canada
(Attorney General), [1989] 1 S.C.R. 342:
a) Has the "tangible and
concrete" dispute between the parties disappeared?
b) Ought the Court to exercise its
discretion to hear the matter in any event?
[19]
I
found that the tangible and concrete dispute as to the procedural fairness of
the open-ended grievance timeline had not disappeared and would likely arise
again. Accordingly, I exercised my discretion to hear the matter.
STANDARD
OF REVIEW:
[20]
The standard of review for the merits of a grievance escalated to
the CDS is reasonableness when there has been a decision or when the CDS has
refused to hear the grievance (Zimmerman v Canada (Attorney General),
2011 FCA 43, at paras 19-21; Codrin v Canada (Attorney General),
2011 FC 100 at paras 40-42; Birks v Canada (Attorney General), 2010 FC
1018 at para 25). However, the issue raised here is one of procedural fairness,
specifically undue delay. The standard of review is therefore correctness (McBride
v Canada (Minister of National Defence), 2012 FCA 181 at para 32).
ISSUES:
[21]
The
applicant stated that the procedural fairness issues were whether the CDS had
delayed exercising his jurisdiction in the present case and whether it was
acceptable in general that there was no fixed time limit for ruling on
grievances. He sought either an order giving the CDS a specific timeline for
ruling on his personal grievance or an order that his grievance be presented to
the Federal Court, and he also sought an order providing a timeline for
deciding on all Canadian Forces grievances. The two issues presented to the
Court were therefore:
a. Did the Chief of
the Defence Staff unreasonably delay exercising his jurisdiction in the present
case?
b. Does the Federal
Court have jurisdiction to impose a time limit on military grievances?
A. Did the Chief
of the Defence Staff unreasonably delay exercising his jurisdiction in the
present case?
[22]
The
applicant argued that the facts complained of had occurred in September 2010
and that he had submitted a grievance as of January 2011, within the six month
time-frame permitted by the National Defence Act, yet by January 2012 he
had received no decision. He noted that the Lamer Report had stated that “a one
year time limit from the date that a grievance is submitted to a commanding
officer is sufficient”. The Lamer Report had also recommended that if this one
year limit was not met, the griever have automatic recourse to the Federal
Court, with legal representation at Canadian Forces expense, and be entitled to
costs regardless of the outcome of the case.
[23]
The
respondent argued that the grievance file was only sent to the office of the
Director General Canadian Forces Grievance Authority on December 15, 2011. From
that date until the filing of a Notice of Application at the Federal Court was
only 43 days, a period which included the Christmas holidays. The respondent
added that the applicant was partly responsible for any delay, since he had
provided four separate additional submissions between August and November 2011,
each of which had to be considered before the grievance analyst could produce a
report for the CDS.
[24]
The
respondent further argued that there was no evidence that the applicant had
demanded that the CDS rule on his grievance and no evidence that the CDS had
refused to rule. In fact, the applicant had frustrated the grievance procedure
by bringing an application for judicial review, which automatically suspended
his grievance. Although it agreed that the CDS had a
duty to the applicant to act, pursuant to Queens’ Regulations and Orders
article 7.14, the applicant had not established that the CDS had a duty to act
by January 27, 2012.
[25]
I agree with Capt. Snieder that it is unreasonable in the context
of the military to expect a subordinate officer to demand that the CDS rule on
his grievance. I understand that from his perspective, the time for a final
determination of his grievance began running from the moment that the file was
referred to the Grievance Board.
[26]
I
find that Capt. Snieder waited a month and a half from the time the file
reached the level of the CDS for a final determination, although it had then
been a year since he submitted the first of the four grievances which were
consolidated into 11-S-61155, and sixteen months since the event grieved had
occurred.
[27]
The
tripartite test for an unreasonable delay was reviewed by this Court in Liang
v Canada (MCI), 2012 FC 758 at para 26:
(1) the delay in question has been longer than the nature of
the process required, prima facie;
(2) the applicant and his counsel are not responsible for the
delay; and
(3) the authority responsible for the delay has not provided
satisfactory justification.
[28]
I
find that the applicant has not made out a prima facie case that the
nature of the grievance process routinely allows for decisions by the CDS in
less than 43 days.
B. Does the
Federal Court have jurisdiction to impose a time limit on military grievances?
[29]
The
applicant pointed out that the Lamer Report had recommended that “clear time
limits be established for a grievance to proceed through the grievance
process”. An applicant is barred from accessing judicial review of a decision
by the CDS on a grievance until that decision is made. He argued that this
represented procedural unfairness.
[30]
The
respondent argued that the request that the court impose a timeline on all
grievances was essentially a request for the court to rewrite the regulations. Furthermore,
the text of Chapter 7 of the Queen’s Regulations and Orders demonstrated
that Parliament had chosen not to impose such a one-year time limit; there were
time limits imposed on a commanding officer and an initial authority, but the
CDS was exempt from timelines when acting as either initial authority or final
authority in a grievance.
[31]
I
find that the respondent is correct. This court does not have the jurisdiction
to impose a time limit on the CDS. That conclusion should not be taken as an
indication that the court believes that the systemic problems identified by the
Right Honourable Antonio Lamer and the Honourable Patrick LeSage are acceptable
but rather that they are issues to be addressed by Parliament and the
Executive, not the judiciary.
[32]
Given
the above findings, the application is denied. The parties shall bear their own
costs.
ORDER
THIS COURT
ORDERS that:
1. the application
for judicial review is denied;
2. there is no
award of costs.
“Richard G. Mosley”
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