Docket: T-1803-13
Citation:
2014 FC 936
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 2, 2014
PRESENT: The Honourable Madam Justice Bédard
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BETWEEN:
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STEPHANE BOURASSA
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Applicant
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and
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DEPARTMENT OF NATIONAL DEFENCE
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, Mr. Bourassa, seeks judicial
review, pursuant to section 18.1 of the Federal Courts Rules, RSC
1985, c F-7, of a decision dated October 11, 2013, by Colonel J.R.F. Malo
(Colonel Malo), acting as final authority in the grievance process of the
Canadian Armed Forces (CAF). In his decision, Colonel Malo rejected the
grievance filed by Mr. Bourassa on March 14, 2012. For the reasons
that follow, the application is dismissed.
I.
Background
A.
The measures
[2]
Mr. Bourassa enrolled in the CAF in 1996. From
1998 to 2009, he worked as a nursing officer. In May 1989, he was posted
to the CAF Support Unit Ottawa (CFSU(O)), and while he was there, he took a
basic qualification course for intelligence officers. Mr. Bourassa holds
the rank of captain. In his grievance, Mr. Bourassa challenged five
measures imposed against him between July 2011 and March 2012.
[3]
The first measures challenged by Mr. Bourassa
stem from a stay at the CAF Language School at Detachment Saint-Jean (the Language School) between September 20, 2010, and May 20, 2011, where he took a
second language training course.
[4]
On June 13, 2011, Captain H. Tremblay wrote a
course report on Mr. Bourassa’s performance and attitude during his second
language training. The report states that Mr. Bourassa’s academic performance
was exemplary, and that he had shown great determination and had made the
necessary effort to learn. However, Captain Tremblay also noted that
Mr. Bourassa’s attitude had been problematic in many respects. For
example, Mr. Bourassa had had significant difficulties in his
interpersonal relations with his colleagues, the staff and the teachers at the Language School. She also stated that he was very inflexible, was unable to accept criticism
and advice, suffered from mood swings and had behaved inappropriately on
several occasions. Mr. Bourassa signed this course report on July 28,
2011.
[5]
On July 7, 2011, the
Commandant of the Language School, Major L. Méthot, wrote a letter of
intent to the Commandant CFSU(O) to notify him of the shortcomings in
Mr. Bourassa’s performance and conduct during his training. Enclosed with
the letter was the course report prepared by Captain Tremblay. In his
letter, Major Méthot listed several incidents from Mr. Bourassa’s
training that led him to conclude that Mr. Bourassa had demonstrated a
lack of judgment and a poor attitude during his training.
[6]
On November 29, 2011, the Commandant CFSU(O)
imposed a remedial measure on Mr. Bourassa for misconduct, in accordance
with the Defence Administrative Orders and Directives (DAOD) 5019-4, Remedial Measures,
specifically, an initial counselling. Notice of initial counselling, along with
the letter written by the Commandant of the Language School, was sent to
Mr. Bourassa on December 1, 2011. In the notice of initial
counselling, the Commandant referred to a written response that Mr. Bourassa
had allegedly made regarding the orientation sessions given by the Personnel
Selection Office and the conduct noted by the Language School. The Commandant
stated that the events illustrated his inability to work with other members and
his difficulties interacting with the Language School’s staff. The remedial
measure form states that Mr. Bourassa [translation]
“failed to demonstrate the professional attributes required of an
experienced CF officer holding the rank of captain”, and that [translation] “[t]his conduct does not
reflect the level of working with others and leadership expected of an
officer”. The monitoring period for the initial counselling was from
November 21, 2011, to May 20, 2012.
[7]
In December 2011, Mr. Bourassa was posted
to the operations section of Army Intelligence (Army G2) as an on-the-job
training candidate.
[8]
In March 2012, Mr. Bourassa’s supervisor at
Army G2, Major R.T. Lenton (Major Lenton), wrote a letter to the
Commandant CFSU(O) giving his assessment of Mr. Bourassa’s performance and
conduct during the first three months of his posting to Army G2.
[9]
In his letter, Major Lenton wrote that Mr. Bourassa’s
work was satisfactory but there were a number of problems with his conduct. He
stated, for example, that Mr. Bourassa refused to accept criticism and
advice from lower-ranking individuals or from people who, in his opinion, had
less experience or seniority than he did. Major Lenton noted that in such
circumstances, Mr. Bourassa became defensive and put the blame on others.
In his opinion, Mr. Bourassa was immature and had trouble making sound
decisions and cultivating positive relationships with his colleagues, his
subordinates and his chain of command.
[10]
Major Lenton also noted that Mr. Bourassa’s
conduct had raised concerns among his colleagues and supervisors. He stated
that Mr. Bourassa had talked about having problems at home and that everyone in
Mr. Bourassa’s team had expressed concerns to the chain of command
regarding the high levels of stress that Mr. Bourassa appeared to be
under. Major Lenton also mentioned that Mr. Bourassa had sent
colleagues emails that sounded confused, thus helping to reinforce the
impression among his co-workers that he was perhaps depressed or suffering from
a stress-related disorder.
[11]
In conclusion, Major Lenton recommended
terminating Mr. Bourassa’s intelligence officer training because, in his
opinion, Mr. Bourassa was unsuited to this work.
[12]
On March 6, 2012, Major Lenton sent Mr. Bourassa
the letter that he had written to the Commandant CFSU(O), along with a
remedial measure, namely, a written warning for misconduct in accordance with
DAOD 5019-4, Remedial Measures (DAOD 5019-4). In the written warning,
Major Lenton states that on several occasions, Mr. Bourassa sent
correspondence to colleagues and superiors that was inappropriate for an
officer. He also states that these emails demonstrate that Mr. Bourassa is
either unwilling or unable to accept responsibility for his actions and is
unable to understand or respect the chain of command.
B.
Grievance filed by Mr. Bourassa
[13]
On March 14, 2012, Mr. Bourassa filed a
grievance challenging the following five measures:
•
The Language School course report dated
June 13, 2011;
•
The letter from the Commandant of the Language School to the Commandant CFSU(O), dated July 7, 2011;
•
The initial counselling, dated November 29, 2011;
•
The letter of assessment written in March 2012
(and given to Mr. Bourassa on March 6, 2012); and
•
The written warning dated March 6, 2012.
[14]
In support of his grievance, Mr. Bourassa made
the following arguments:
Language School course report – June 13, 2011
•
He disagrees with the contents of the report;
•
He did not have access to the report before the
end of his training and therefore did not have an opportunity to discuss it or
to correct his alleged deficiencies;
•
His interpersonal conflicts with his peers, the
teachers and the staff at the School tainted the perceptions of the people
assessing him, such that he received negative feedback and the report does not
contain objective findings regarding his performance and his attitude; and
•
He filed a complaint against Captain Tremblay,
the author of the report, for allegedly calling him paranoid and comparing him
to Russel William, and Major Méthot did not take his complaint seriously.
Letter from the Commandant of the Language School to the Commandant CFSU(O) – July 7, 2011
•
He challenges the sending and the contents of
this letter;
•
He did not receive this letter before
December 9, 2011, the date his commanding officer gave him notice of
initial counselling;
•
The unfavourable content of the letter was
prejudicial to him upon his return to the unit, and the comments in the letter
helped tarnish his reputation.
Notice of initial counselling – November 29, 2011
•
He did not receive the supporting documentation
for this remedial measure, and he was told that it would not be sent to him
because he already had it in his possession; and
•
The statement of the measure did not clearly set
out the criticisms made against him.
Letter of assessment from Army G2 supervisor – March 2012
•
This letter was given to him at the same time as
the written warning, whereas it should have been given to him at a separate
meeting;
•
He did not receive the necessary coaching and
follow-up during his G2 training;
•
His relationship with his supervisor was
poisoned from the time he arrived there because his supervisor had received
negative references and did not want to see him pass his training course. His
supervisor thus hounded him relentlessly so that he would leave the G2 cell,
and the letter is full of misperceptions and wrong impressions;
•
His supervisor made inappropriate medical
observations, as he has neither the competence nor the authority to make a
medical diagnosis; and
•
The contents of the letter and the
medical-related comments that the letter contains tarnished his reputation and
interfered with his attempts to exercise his visitation rights in respect of
his daughter. They also destroyed any hope he had of becoming an intelligence
officer.
Written warning – March 6, 2012
•
The remedial measure should have been written in
French, not English;
•
He was not given advance notice that the meeting
would deal with the imposition of a remedial measure;
•
He did not receive any supporting documentation
for this measure;
•
The measure does not specify the criticisms made
against him; and
•
He asked for 24 hours to consult a lawyer
regarding the allegations in the assessment letter, and this request was
denied.
[15]
Mr. Bourassa’s grievance followed the
internal process set out in Chapter 7 of the Queen’s Regulations and
Orders for the Canadian Forces (QR&O) and in DAOD 2017-0, “Military
Grievances”, and DAOD 2017-1, “Military Grievance Process”. On July 6,
2012, Colonel Malo, acting as final authority, advised Mr. Bourassa that
his grievance had been forwarded to the Canadian Forces Grievance Board (the
Board), as a discretionary referral, for analysis and recommendations.
[16]
Mr. Bourassa submitted a number of
documents to the Board, including some that concerned facts that arose after
the incidents challenged in the grievance and after the grievance itself was
filed. Mr. Bourassa apparently obtained a number of these documents as a
result of access to information requests.
C.
Grievance Board report
[17]
In its report, the Board noted that Mr. Bourassa
had filed more than 3,000 pages of documents and that some of his
submissions dealt with facts arising after the facts related in his grievance,
including recent complaints. The Board stated that its jurisdiction, and
therefore its analysis and recommendations, was limited to the issues raised in
the grievance dated March 14, 2012. In conclusion, the Board made the following
recommendations regarding each measure covered in the grievance.
Language School course report – June 13,
2011
[18]
The Board found that the report should have been
prepared and given to Mr. Bourassa before he left the Language School. However, it held that this irregularity did not invalidate the contents of the
report. The Board stated that Mr. Bourassa confirmed most of the incidents
but played them down and offered explanations and excuses without actually
accepting any responsibility whatsoever. Based on its analysis, the Board found
that the contents of the report accurately reflected the performance and
conduct of Mr. Bourassa during his training, and that he had not shown
that Language School staff had hounded him or had conducted a concerted
campaign to tarnish his reputation. The Board recommended that the report be
kept in Mr. Bourassa’s file. It also held that the report should have
mentioned the difficult personal situation that Mr. Bourassa was going
through during his training, which could have affected his performance, and
recommended that such a note be added.
Letter from
the Commandant of the Language School to the Commandant CFSU(O) – July 7,
2011
[19]
The Board held that it was appropriate for a
commanding officer to write to another commanding officer regarding the
performance and conduct of a Canadian Forces member who was temporarily under
his authority. It also concluded that the letter represented a reasonable
portrait of the performance and deficient conduct of Mr. Bourassa observed
by a number of people. It also found that the letter should have mentioned the
difficult personal situation that Mr. Bourassa was going through so that
the Commandant CFSU(O) would be aware of all the circumstances and base his
decision to impose a remedial measure on Mr. Bourassa on a complete
assessment of the facts and circumstances. It recommended that the letter
remain in Mr. Bourassa’s file but that a note regarding his difficult
personal situation be added to it.
Notice
of initial counselling – November 29, 2011
[20]
The Board held that the Commandant CFSU(O) should
have given Mr. Bourassa the letter from the Commandant of the Language School as soon as he received it and that he should have shared his concerns and
discussed the contents of the letter with Mr. Bourassa before imposing a
remedial measure. Furthermore, as the course report and the letter from the Commandant
of the Language School did not mention the personal problems experienced by Mr. Bourassa,
the Commandant CFSU(O) did not have in his possession all the relevant
information when he decided to impose initial counselling on Mr. Bourassa.
The Board held that this was a breach of the duty of procedural fairness owed
to Mr. Bourassa. It also found that such a breach of procedural fairness
could be corrected through the grievance process, since Mr. Bourassa was
now fully informed of the criticisms made against him, had the information on
which these criticisms had been based and had been given the opportunity to
give his version of the facts and make comments during the process.
[21]
On the merits, the Board stated that it agreed
with the Commandant CFSU(O) that the alleged incidents with Mr. Bourassa
had indeed occurred, that he had conflicts with most of the people at the Language School and that he had breached his ethical obligations. The Board did not believe
Mr. Bourassa’s version of events, according to which all the people
involved were conspiring together and biased against him. It added that it
understood the stress and pressure that Mr. Bourassa was under because of
his personal and family situation but found that this context did not justify
or excuse his misconduct. The Board held that Mr. Bourassa’s conduct while
he was at the Language School was at odds with many of the fundamental
expectations that apply to CAF members and with CAF ethics and values, and that
initial counselling was therefore justified.
Letter of assessment from the Army
G2 supervisor – March 2012
[22]
First, the Board found that although some of the
medical-related statements in the assessment letter were poorly worded, the
supervisor was not making a medical diagnosis, but describing his observations
and concerns, and that it was appropriate for him to share these observations
and concerns with the Mr. Bourassa’s commanding officer at the CFSU(O). The
Board also held that the contents of the letter were reasonable, and it
recommended that the letter be kept in Mr. Bourassa’s file.
Written warning – March 6,
2012
[23]
The Board noted two problems with the written
warning. First, it held that the remedial measure should have been written in Mr. Bourassa’s
official language, French, in accordance with DAOD 5019-4. Second, the remedial
measure had been issued by Mr. Bourassa’s supervisor at Army G2 when
it should have been imposed by his commanding officer or the designate of that
commanding officer. The Board therefore found that these deficiencies
invalidated the remedial measure and that a review de novo would have to
be done to determine whether the circumstances warranted imposing a remedial
measure and, if so, what measure would be appropriate.
[24]
The Board was of the opinion that
Mr. Bourassa’s behaviour and his misconduct justified a remedial measure
and that this measure had to be more severe than a written warning. It
recommended imposing the most severe measure, counselling and probation, for
several reasons. The Board acknowledged that the Mr. Bourassa’s personal,
family and financial problems may have had an impact on his interpersonal
relations and constituted a mitigating factor. However, it found that
Mr. Bourassa’s situation did not justify or excuse his frequent
misconduct. The Board was of the opinion that despite the deficiencies
observed, Mr. Bourassa continued to conduct himself in an unacceptable
manner. The Board mentioned that on several occasions, Mr. Bourassa had
failed to follow orders and directives and that he was still trying to excuse
his actions by seeing in this a concerted effort to tarnish his reputation and
never accepting responsibility for his actions. The Board was of the view that
its recommendation to impose the severest remedial measure on Mr. Bourassa
was justified because of the continuous nature of his behavioural problems. It
found that Mr. Bourassa was continually getting into conflicts, that the
file showed that he had become a nuisance in almost every unit he was posted to
and that instead of seizing the opportunities he was given to mend his ways, he
continued trying to prove that everyone was to blame but him.
II.
Impugned decision
[25]
Colonel Malo dealt with Mr. Bourassa’s
grievance as final authority in the grievance process.
[26]
After receiving the Board’s report, Mr. Bourassa
sent Colonel Malo a 13-page report containing his comments regarding the
Board’s analysis and recommendations. In that document, Mr. Bourassa refers
to a number of new facts and to documents that he apparently received after
making access to information requests. He mentions, among other things, that
all his problems and conflicts stem from a series of incidents starting in
2001. He relates a number of these incidents, particularly one which, in his
opinion, demonstrates that Captain Tremblay, who wrote the course report
following his training at the Language School, is biased against him. In that
incident, Captain Tremblay allegedly decided to call the military police. Mr. Bourassa
submits that the audio tape of this incident shows the state of mind of
Captain Tremblay, who makes him out as a psychopath to the military
police. Mr. Bourassa also submits that various CAF officers engaged in
conduct demonstrating that they wanted to make sure he left or was discharged
from the CAF, instead of helping him. He also describes an invasion of his
privacy and interference with his efforts to obtain visitation rights with
regard to his daughter. He submits that, instead of helping him in this regard,
information regarding his family situation was used against him, and that the
CAF interfered in the family law proceeding.
[27]
Colonel Malo rejected Mr. Bourassa’s
grievance.
[28]
First of all, he stated that none of the facts
and incidents that arose after the filing date of Mr. Bourassa’s grievance,
March 14, 2012, could be considered, and that the grievance process could
not supplant that role and responsibilities of the chain of command. He added
that Mr. Bourassa had to follow the usual administrative processes with
regard to events other than those directly covered by the grievance before him.
He then gave his position on each of the measures challenged in the grievance.
Language School course report – June 13, 2011
[29]
Colonel Malo stated that he agreed with the
Board. First, he found that the report should have been given to Mr. Bourassa
before he left the Language School, but that this irregularity did not
invalidate the report. Second, he was of the opinion that, on a balance of
probabilities, the facts and testimony reflected the performance and conduct of
Mr. Bourassa. Like the Board, Colonel Malo found that the report should have
included a note referring to Mr. Bourassa’s difficult personal situation.
He therefore ordered that a duly annotated report be placed in Mr. Bourassa’s
file.
Letter from
the Commandant of the Language School to the Commandant CFSU(O) – July 7,
2011
[30]
Colonel Malo also agreed with the Board’s
analysis and recommendations regarding the letter prepared by the Commandant of
the Language School. In his opinion, the letter’s contents give a reasonable
picture of the performance, conduct and behaviour of Mr. Bourassa. He also
agreed with the Board’s recommendation to the effect that the letter should have
mentioned Mr. Bourassa’s personal problems but found that these problems
did not excuse his conduct and his inappropriate actions throughout his stay at
the Language School.
[31]
Regarding the incident involving the military
police, Colonel Malo stated that after listening to the audio tapes, he reached
different conclusions from those reached by Mr. Bourassa. Captain Tremblay
called in the military police after having been informed that Mr. Bourassa
had declared that he was keeping a hit list of teachers he planned to get rid
of and that he had a weapon in his room. Colonel Malo found that Captain Tremblay
had acted prudently and wisely in deciding to call in the military police and
that she had been motivated by the desire to ensure the safety of everyone concerned,
including Mr. Bourassa. Colonel Malo stated that a Captain Tremblay
did not try to portray him as a psychopath and added that there was nothing in
the audio tapes to support the conclusion that the people involved wanted to
have him discharged from the CAF.
Notice of initial counselling –
November 29, 2011
[32]
Colonel Malo, like the Board, stated that he
could not explain why the Commandant had waited so long before giving Mr. Bourassa
the letter prepared by the Commandant of the Language School. However, he found
that this irregularity did not invalidate the remedial measure. He also
rejected Mr. Bourassa’s allegation to the effect that the Board had played
down the breaches of procedural fairness. He found that there had been no
unreasonable delay and that Mr. Bourassa had not suffered any harm as a
result of these breaches. On the merits, he concluded that Mr. Bourassa’s
behaviour during his stay at the Language School was contrary to many of the
fundamental expectations that apply to CAF members and that this misconduct
justified imposing initial counselling.
Letter of assessment from the Army
G2 supervisor – March 2012
[33]
Colonel Malo acknowledged that Mr. Bourassa’s
supervisor had made some poorly worded comments about his concerns regarding
Mr. Bourassa’s psychological state, but found that it was appropriate for Mr. Bourassa’s
supervisor to share his concerns. Regarding the contents of the letter
reporting the inappropriate behaviour of Mr. Malo, he found that they were
justified and that the letter should remain in his file. He also rejected the
allegations that the CAF had interfered in Mr. Bourassa’s case with regard
to the custody of his daughter. He concluded that what hurt Mr. Bourassa was
not the contents of the letter, but his own behaviour.
Written warning – March 6,
2012
[34]
Colonel Malo found that Mr. Bourassa’s behaviour
justified imposing a remedial measure, but he stated that he disagreed with the
Board’s recommendation to impose the most severe remedial measure. Colonel Malo
noted that as the monitoring period associated with the initial counselling had
not yet expired when the G2 supervisor saw fit to impose a remedial measure on
him, it was premature to impose on him a measure as severe as counselling and
probation. In his view, the efforts to help Mr. Bourassa had just begun,
and a written warning was the appropriate measure.
[35]
Colonel Malo also commented on the general
handling of Mr. Bourassa’s situation. He stated that it was clear to him
that Mr. Bourassa had done nothing to improve his behaviour and obey his
superiors’ orders; on the contrary, he became more and more insubordinate, and
his actions became more and more inappropriate. Colonel Malo also agreed with
the Board that the overall situation required co-ordinated action, stating that
it was up to Mr. Bourassa’s chain of command to ensure the appropriate
monitoring.
[36]
In conclusion, Colonel Malo noted that Mr. Bourassa
had not shown, on a balance of probabilities, that he had been treated unfairly
in the course report, the two letters on file or the two remedial measures
imposed on him.
III.
Issues
[37]
This application raises two issues:
1.
Were there breaches of procedural fairness in
the handling of Mr. Bourassa’s grievance?
2.
Was Colonel Malo’s decision to reject
Mr. Bourassa’s grievance reasonable?
IV.
Standards of review
[38]
It is trite law that whether the rules of
procedural fairness have been breached in handling Mr. Bourassa’s
complaint is an issue that is subject to the correctness standard of review (Mission
Institution v Khela, 2014 SCC 24 at para 79, [2014] 1 S.C.R. 502).
[39]
Colonel Malo’s decision on the merits of the
grievance was made in light of the applicable policies and directives and his
assessment of all the evidence in the record. In Dunsmuir v New Brunswick,
2008 SCC 9 at para 51, [2008] 1 S.C.R. 190 [Dunsmuir], the Supreme
Court stated that questions of fact, discretion or policy, as well as questions
of mixed law and fact, are reviewable on the reasonableness standard. Again in Dunsmuir,
at para 57, the Court stated that an exhaustive analysis is not required
to determine the applicable standard of review when it is already deemed to
have been determined by case law.
[40]
In the present case, I am satisfied that the
case law has established that decisions of the final authority in the CAF grievance
process that deal with questions of fact or question of mixed fact and law must
be reviewed in accordance with the reasonableness standard (Harris v Canada (Attorney
General), 2013 FCA 278, [2013] FCJ No 1312 (affirming Harris v
Canada (Attorney General), 2013 FC 571 at para 30, [2013] FCJ No 595);
Babineau v Canada (Attorney General), 2014 CF 398 at para 22,
[2014] FCJ No 440; Osterroth v Canada (Canadian Forces, Chief of Staff),
2014 FC 438 at para 18, [2014] FCJ No 483; Moodie v Canada (Attorney
General), 2014 FC 433 at para 44, [2014] FCJ No 447; Lampron v
Canada (Attorney General), 2012 CF 825 at para 27, [2012] FCJ No 1713;
Rompré v Canada (Attorney General), 2012 FC 101 at paras 22-23,
[2012] FCJ No 117).
V.
Positions of the parties
A.
Arguments of Mr. Bourassa
[41]
In his memorandum, Mr. Bourassa essentially
disagreed with Colonel Malo’s decision and his assessment of the facts. He
also repeated the arguments that he raised in his grievance against each of the
measures he challenged.
[42]
His memorandum also refers to a number of
incidents and facts that arose after the incidents that led to the impugned
measures. In addition, there are references to other complaints and grievances
coming after the grievance he filed on March 14, 2012. Mr. Bourassa is
of the view that these are new facts demonstrating the injustice he is facing
and the harassment and concerted action of various people who, in his opinion,
want him to be dismissed from the CAF. He asks the Court to consider these
facts and documents.
[43]
Mr. Bourassa also submits that the
grievance process has been tainted by several breaches of procedural fairness.
He repeats the arguments made regarding breaches of procedural fairness in
imposing the various measures covered by the grievance. He also submits that Colonel Malo
refused to consider the new facts and rendered his decision on the basis of an incomplete
record, omitting important facts and documents. He also raises the long delays
in processing his grievance.
[44]
At the hearing, Mr. Bourassa also argued
that his grievance should have been dealt with at the final level by the Chief
of the Defence Staff (CDS), not Colonel Malo. On this point, he relied on
sections 29.11 and 29.14 of the National Defence Act, RSC 1985, c N-5
[NDA].
[45]
He also stressed that the measures imposed on
him, and the comments of several people involved, had harmed his efforts to
obtain visitation rights with regard to his daughter. He further submitted that
the CAF had interfered in and negatively affected his visitation rights
proceedings.
[46]
He also referred to the incident during which
Captain Tremblay called in the military police. He stated that he had been
wronged by the inaccurate and devastating statements made against him.
[47]
He asked the Court to refer his grievance file
back for redetermination.
B. Respondent’s arguments
[48]
First, the respondent submits that the Court
should not consider the documents submitted by Mr. Bourassa that were not
included in the record before Colonel Malo, nor should the Court consider
the facts that arose after the grievance.
[49]
It also submits that Colonel Malo’s decision is
reasonable and that no violation of procedural fairness in the handling of
Mr. Bourassa’s grievance justifies the intervention of the Court. The
respondent further submits that it appears from the record that in examining Mr. Bourassa’s
grievance, the colonel considered the entire record, the decisions rendered by
the initial authorities, the analysis and recommendations of the Grievance
Board and all the documents and arguments submitted by Mr. Bourassa. In
addition, the respondent submits that there was no need for Colonel Malo to
mention in his decision all the documents filed by Mr. Bourassa in
connection with the process for handling his grievance.
VI.
Analysis
A.
Colonel Malo’s authority to act as final
authority
[50]
I will begin by addressing the allegation
according to which the grievance should have been dealt with at the final level
by the CDS, not by an officer to whom the CDS delegated his authority.
[51]
Section 29.11 of the NDA and article 7.08
of the QR&O provide that the CDS acts as final authority in grievances.
[52]
However, section 29.14 of the NDA and article
7.09 of the QR&O allow the CDS to delegate to any officer any of the CDS’s
powers, duties or functions as final authority in the grievance process under
section 29.11 of the NDA, except in respect of a
grievance that must be referred to the Grievance Board.
[53]
The categories of grievances that must be
referred to the Grievance Board are listed in article 7.12 of the
QR&O. The grievance filed by Mr. Bourassa does not fall into any one
of these categories. The CDS could therefore delegate his power to act as final
authority to any officer he chooses. Pursuant to an order in council dated
November 15, 2012, the CDS appointed Colonel Malo to the position of Director
General Canadian Forces Grievance Authority and delegated to him the power to
act as final authority in grievances that do not have to be submitted to the
Grievance Board. Colonel Malo therefore had the necessary delegation of authority
to act as final authority in this case and to decide Mr. Bourassa’s
grievance.
[54]
Furthermore, section 29.12 of the NDA provides
that a grievance may be referred to the Grievance Board even when such a referral
is not mandatory. In the present case, Colonel Malo decided to submit Mr. Bourassa’s
grievance to the Board as a discretionary referral.
[55]
Section 29.13 of the NDA provides that the CDS
(in this case, the officer to whom the CDS has delegated authority) is not
bound by the findings and recommendations of the Grievance Board, but if the
CDS does not act on such a finding or recommendation, the CDS must include the
reasons for not doing so in the decision respecting the disposition of the
grievance.
B.
Relevance of the facts, grievances and
complaints arising after the grievance – new facts
[56]
Mr. Bourassa asks the Court to consider new
facts and evidence that were not submitted to Colonel Malo, on the basis that
they demonstrate a continuum in the concerted actions of CAF members to harm
him and support the arguments he made in support of his grievance dated
March 14, 2012.
[57]
The Court cannot grant Mr. Bourassa’s
request. The Court is sitting in judicial review of the decision rendered by Colonel Malo,
and it cannot consider grievances, complaints or allegations that were not
included in the grievance and were not decided by Colonel Malo. As the
Federal Court of Appeal stated in Callaghan v Canada (Chief Electoral
Officer), 2011 FCA 74 at para 82, [2011] FCJ No 199, “[j]udicial
reviews of administrative decisions are normally conducted on the basis of the
record before the decision-maker”. In this case, there are no circumstances
that would justify departing from this principle. I also find that the words of
Justice de Montigny in Ochapowace First Nation (Indian Band No. 71)
v Canada (Attorney General), 2007 FC 920 at para 10, [2007] FCJ No
1195, apply here:
The rationale for that rule is well known. To
allow additional material to be introduced at judicial review that was not
before the decision maker would in effect transform the judicial review hearing
into a trial de novo. The purpose of a judicial review application is not to
determine whether the decision of a tribunal was correct in absolute terms but
rather to determine whether its decision was correct on the basis of the record
before it: Chopra, at paragraph 5;
Canadian Tire Corp. v. Canadian Bicycle
Manufacturers Assn., 2006 FCA 56, at paragraph 13.
C.
Procedural fairness in the process of imposing
the measures and in handling the grievance
[58]
Mr. Bourassa criticizes Colonel Malo for
not considering the facts that arose after the events and the measures
challenged in the grievance dated March 14, 2012, and the related
documents.
[59]
In his decision, Colonel Malo stated that his
analysis could not take into account any incidents that occurred or came to
light after the grievance was filed, and that Mr. Bourassa was required to
follow the administrative procedures in this regard. I see no reason to
intervene on this point. Although Mr. Bourassa submits that the subsequent
facts and incidents support the arguments he raised in support of his
grievance, these are facts that are completely distinct from the letters and
measures covered by the grievance before Colonel Malo. There are a number
of administrative remedies available to Mr. Bourassa if he wishes to
assert his rights with regard to these incidents, and in several cases, he has
indeed used such remedies.
[60]
The grievance filed on March 14, 2012,
deals with specific events, and it is not possible to later add other incidents
that occurred after the grievance was filed. Mr. Bourassa could not regard
this grievance as an ongoing grievance to which he could add new allegations
and new facts that are not related to the measures challenged in the grievance.
The fact that Mr. Bourassa sees all the events as a continuum of concerted
actions aimed at forcing him out of the CAF does not make all the subsequent
facts relevant to the consideration of the grievance that he filed on
March 14, 2012. This grievance clearly concerns five measures, and Colonel Malo
was correct not to consider all the subsequent evidence that Mr. Bourassa filed.
[61]
Mr. Bourassa also stresses the violations
of procedural fairness that occurred in preparing and delivering the letters
and remedial measures that he challenged in his grievance. The Grievance Board
and Colonel Malo acknowledged that certain irregularities and breaches of
procedural fairness occurred in Mr. Bourassa’s case, but they found that
these irregularities had not been prejudicial to him. Moreover, the Grievance
Board and Colonel Malo conducted a thorough review of the entire record
and of the evidence leading to the letters and the two remedial measures
covered by the grievance. I am satisfied that the grievance process was fair
and that Mr. Bourassa had the opportunity to participate actively, submit
all his arguments against the letters and remedial measures and argue his point
of view before both the Grievance Board and Colonel Malo. In addition, the
record clearly shows that Mr. Bourassa knew exactly what criticisms were
made against him in the measures he challenged, that he was aware of all the
details and that he had a real opportunity to argue his point of view.
Therefore, if there were any breaches in terms of procedural fairness, there
were adequately corrected in the process of handling Mr. Bourassa’s
grievance (McBride v Canada (Minister of National Defence), 2012 FCA 181,
at paras 42-44, [2012] FCJ No 747).
[62]
Mr. Bourassa also raised the delays
associated with the handling of his grievance. With respect, he did not show
that the grievance process was subject to long delays.
D.
Reasonableness of the decision
[63]
Regarding the merits of the decision, the Court
finds that Colonel Malo’s decision is reasonable.
[64]
The analytical framework used by the Court when
reviewing a decision on the reasonableness standard was defined by the Supreme
Court of Canada in Dunsmuir, at paragraph 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
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[65]
In my opinion, the decision of Colonel Malo has
all the qualities of a reasonable decision.
[66]
It is apparent from the decision that Colonel
Malo analyzed the grievance in light of everything in Mr. Bourassa’s
extensive grievance file and that he considered all the evidence, the decisions
of the initial authorities, the Board’s report and the arguments raised by Mr. Bourassa.
[67]
Moreover, his decision is intelligible and well
substantiated. The fact that Colonel Malo’s decision does not mention
every document or argument on which Mr. Bourassa relies does not support
the conclusion that he failed to consider important facts and documents in
making his decision. It is well established that a decision-maker is presumed
to have considered all of the material before him or her (Murphy v Canada (Attorney
General), 2007 FC 905 at para 13, [2007] FCJ No 1184; Slawinski v
Canada (Minister of Citizenship and Immigration), 2007 FC 1205 at
para 12, [2007] FCJ No 1612; Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration), [1998] FCJ No 1425 (QL) at para 16,
157 FTR 35) and that there is no obligation to refer to each and every piece of
evidence, fact and argument raised (Newfoundland and Labrador Nurses’ Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16,
[2011] 3 S.C.R. 708). In this case, the decision clearly shows that Colonel Malo
took the time to analyze the Mr. Bourassa’s entire file and that he
understood and dealt with the arguments made against each of the impugned
measures.
[68]
I find that Colonel Malo’s decision to confirm
the measures covered by the grievance (with the addition of a note referring to
Mr. Bourassa’s personal and family problems in the course report and in
the letter from the Commandant of the Language School) is reasonable and that
it falls within a range of possible, acceptable outcomes, having regard to
evidence. Mr. Bourassa disagrees with Colonel Malo’s findings and
with his decision to confirm the impugned measures. This disagreement is not
enough to warrant the intervention of the Court. An analysis of the record
shows that Colonel Malo’s findings are reasonably supported by the evidence
before him and that his assessment of that evidence is just as reasonable.
[69]
I will conclude by addressing the specific
elements that Mr. Bourassa stressed at the hearing.
[70]
Mr. Bourassa emphasized the incident during
which Captain Tremblay called in the military police. Having considered
all the evidence regarding this incident, I find that it was reasonable for
Colonel Malo to conclude that Captain Tremblay acted in good faith
and in a prudent and reasonable manner, and that she was not motivated by any
ill will towards Mr. Bourassa.
[71]
Mr. Bourassa also emphasized the medical-related
comments in the assessment letter prepared by Mr. Bourassa’s supervisor at
Army G2. Having reviewed all the evidence, I am of the opinion that
Colonel Malo’s findings, in this regard, are entirely reasonable. It was
appropriate, in light of the evidence, for the commander of Army G2 to
share with Mr. Bourassa’s commanding officer his concerns regarding
Mr. Bourassa’s psychological health, and the words used in the letter
express his concerns without making a medical diagnosis.
[72]
Mr. Bourassa also alleged that the CAF had
interfered in his legal proceedings to obtain visitation rights with regard to
his daughter and that information and documents that he had shared with various
persons were used against him by the CAF. With respect, these allegations are
unfounded, and there is nothing in the evidence that would admit the conclusion
that members or officers of the CAF interfered in the custody proceedings for
Mr. Bourassa’s daughter or that they used personal information to harm
him. Furthermore, the evidence in the record does not support any allegation
that the CAF tried to hurt Mr. Bourassa with regard to his difficult
personal situation in general or with regard to his efforts to obtain
visitation/custody rights in respect of his daughter. In addition, the
references to Mr. Bourassa’s family situation in Colonel Malo’s
decision were included to respond to the arguments raised by Mr. Bourassa.
[73]
For all these reasons, the application for
judicial review is dismissed.
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