Docket: T-88-14
Citation:
2015 FC 984
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, August 18, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
MARIO GALIPEAU
|
|
Applicant
|
|
and
|
|
THE ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
The applicant is challenging, by way of an
application for judicial review under section 18.1 of the Federal
Courts Act, a decision dated November 18, 2013, in which the Chief of the
Defence Staff (Chief of Staff), in his capacity as the final authority in the
Canadian Forces grievance process under section 29.11 of the National
Defence Act, R.S.C., 1985, c. N-5 (Act), denied his grievance in
respect of the remuneration that he should have received, in his opinion, when he
re-enrolled in the Canadian Forces in the summer of 2009.
[2]
For the following reasons, the applicant’s
application for judicial review is dismissed.
II.
Background
[3]
The facts in this case are quite straightforward.
A.
The re-enrollment
[4]
The applicant joined the Canadian Forces in
April 1982. In July 1990, he was medically released. In 2006, he made efforts
to be re-enrolled. Those efforts succeeded in July 2009 when he was
offered, by the Sherbrooke detachment of the Canadian Forces Recruiting Group (Recruiting
Group), a mobile support equipment operator position. The offer stated that he
would be paid at the rank of corporal, at the ES-04 grade.
[5]
Shocked by the offer because he had expected to
be re-enrolled at the rank of private, with the corresponding pay, because his
last military experience dated back more than 19 years, the applicant requested
that this component of the offer be verified. On August 9, 2009, he received a
message of enrollment that confirmed the offer of re-enrollment at the rank of corporal,
with pay at the ES-04 grade. He accepted the offer.
[6]
In the days that followed, the Recruiting Group
realized that the applicant was not in fact entitled to the pay indicated in
the message of enrollment dated August 9, 2009, because according to the compensation
policies in force at that time, the applicant’s prior service, considering that
it had been more than five years prior, could not be taken into account in the
establishment of his remuneration. On August 28, 2009, two days before he began
his basic training, the necessary adjustments were made and a new message of enrollment,
providing for remuneration at a private recruit’s rank and at the ES-01 grade, was
sent to the applicant. The applicant, who was on leave without pay at the time,
accepted the modified offer and began his training, as scheduled, at the
Canadian Forces Leadership and Recruit School in St‑Jean‑sur‑Richelieu,
Quebec. His remuneration began at that point.
B.
The grievance
[7]
On June 26, 2010, the applicant filed, following
the procedure set out in section 29.11 of the Act, a grievance pursuant to
which he challenged the decision to modify the terms of the initial enrollment
offer providing for remuneration at a corporal’s rank and at the ES-04 grade. He
was of the opinion that the Canadian Forces was required to adhere to the terms
of said offer and sought relief in the form of a reimbursement of the
difference between the pay of a corporal and that of a private recruit, which
he has received since his re-enrollment.
[8]
On January 19, 2012, the grievance was denied at
the first level of said process. It was deemed that remuneration at a private
recruit’s rank and at the ES-01 grade was appropriate under the policy outlined
in the Treasury Board’s Compensation and Benefits Instructions for the Canadian
Forces (CBI). In particular, the initial grievance authority confirmed that
the applicant’s prior service with the Canadian Forces cannot be considered qualifying
service for the purpose of calculating remuneration because it dates back more
than five years and because the applicant did not prove that he maintained,
during his interruption of service, skills or qualifications considered to be
of military value.
[9]
The relevant CBI provision—Instruction
204.015(4)(a)—reads as follows:
|
204.015(4) (Exception) Qualifying service for pay increments does
not include:
|
204.015(4) (Exclusion) Sont exclus de la période de service
donnant droit aux échelons de solde les périodes et congé suivants :
|
|
a. any service prior to a continuous interruption of more than
five years during which no service designated in paragraph (2) was performed,
unless the member during the period of the interruption has maintained
relevant skills or qualifications considered by the Chief of the Defence
Staff, or any officer designated by the Chief of the Defence Staff, to be of
military value
|
a. toute période de service antérieure à une interruption continue
de plus de cinq ans au cours de laquelle l'officier ou le militaire du rang
n'a accompli aucune période de service au titre de l'alinéa 3, à moins qu'il
n'ait conservé, pendant la période d'arrêt, les compétences ou qualifications
pertinentes que le Chef d'état-major de la Défense ou tout officier qu'il
désigne, juge valables du point de vue militaire;
|
C.
Referral to the Canadian Forces Grievance Board
and the Board’s recommendation
[10]
On February 16, 2012, the applicant, unsatisfied
with the first-level decision, submitted his grievance to the Chief of Staff. However,
because the grievance involved remuneration, the file, by the combined effect
of section 29.12 of the Act and paragraph 7.12(1)(c) of The Queen’s
Regulations and Orders for the Canadian Forces, was first referred to the Canadian
Forces Grievance Board, a board created under section 29.16 of the Act to, according
to section 29.2 of the Act, review every grievance referred to it and provide its
findings and recommendations in writing to the Chief of Staff and the officer
or non-commissioned member who submitted the grievance (Board).
[11]
On May 29, 2012, the Board produced its report
and recommended that the Chief of Staff uphold the grievance and take the
necessary measures for the applicant’s file to be sent to the Director, Claims
and Civil Litigation, for review as a potential claim against the Crown for breach
of promise.
[12]
Although it acknowledged that, on the basis of
his prior military service, the applicant had to, according to the CBI provisions,
be re-enrolled at a private’s rank with pay at the ES‑01 grade, the Board
nevertheless was of the view that the Canadian Forces must accept
responsibility for the fact that the applicant re-enrolled on the basis of a
breach of promise, a situation that, in the context of a civil action for
breach of contract, could, according to the Board, give rise to damages in
favour of the applicant.
D.
The Chief of Staff’s decision
[13]
On November 18, 2013, the Chief of Staff, who,
according to subsection 29.13(1) of the Act, is not bound by any finding or
recommendation of the Board, disagreed with the Board’s recommendation and
denied the applicant’s grievance. He noted, among other things:
- That the applicant re-enrolled after a 19-year interruption of
service;
- That under the CBI, the prior service of a service member who
is re-enrolling cannot be considered qualifying service for the purpose of
calculating his or her remuneration when the interruption of service exceeds
five years, when no service was performed during the interruption period
and when the member has not demonstrated having maintained the skills or
qualifications relevant to the member’s new military occupation;
- That that is the case for the applicant;
- That the enrollment authority, in this case the Recruiting
Group, which is responsible for reviewing the rank and qualifications of candidates
with past service, committed an error in evaluating the applicant’s prior
service, which was reflected in the re-enrollment offer dated August 9,
2009;
- That that error required immediate corrective action because
the applicant was not eligible for the rank of corporal at the ES-04 grade,
but was eligible for the rank of private recruit at the ES‑01 grade;
- That those measures were communicated without delay to the
applicant when he was on leave without pay and that they were accepted by
him before he began his basic training; and
- That if he had wanted, the grievor could have, after learning
of those measures, been released from the Canadian Forces, without any negative
impact.
[14]
The Chief of Staff found that the correction
made to the re-enrollment offer dated August 9, 2009, was reasonable and
consistent with the directives in place in the Canadian Forces and that as
a result, he was not prepared to uphold the applicant’s grievance and grant him
the relief sought.
E.
The applicant’s recriminations against the Chief
of Staff’s decision
[15]
The applicant criticizes the Chief of Staff for
failing to explain why he did not follow the Board’s recommendation and for
keeping to, in doing so, a literal interpretation of the terms of enrollment. In
addition, he claims that the Chief of Staff did not consider the fact that his re‑enrollment
took effect on August 9, 2009, and that he could have therefore been subject to
disciplinary sanctions if he had refused to accept the modified re-enrollment
offer that was communicated to him at the end of August, before he began his
training.
[16]
The applicant also argues that the Chief of
Staff, in rendering his decision, simply approved the recommendation of a subordinate
and thereby failed to exercise his jurisdiction.
[17]
He is asking the Court: (i) to order the Chief
of Staff to render a decision [translation]
“explaining why he did not follow the Grievance Board’s
recommendation”; (ii) to retain its remedies [translation] “regarding the damage caused
by the actions flowing from the decision”; and (iii) to order [translation] “that
the judgment be placed in the applicant’s personal file with an order to implement
it in order to make the applicant’s career advancement consistent with the
judgment”.
III.
Issue and standard of review
[18]
The issue is whether the Chief of Staff, by reaching
the conclusion he did and in the manner he did, committed an error that warrants
the intervention of the Court.
[19]
In his memorandum, the applicant does not
discuss the applicable standard of review for resolving this issue. The
respondent argues that the applicable standard in this case is reasonableness.
[20]
The respondent is correct. It is indeed well
established by the case law of the Court that decisions by the Chief of Staff made in the grievance process involve, as in the case here, questions of mixed
fact and law and are reviewable, as a result, on the reasonableness standard (Jones
v Canada (Attorney General), 2009 FC 46 at para 23, 339 FTR 202; Zimmerman
v Canada (Attorney General), 2009 FC 1298, at para 25; McIlroy v Canada
(Attorney General), 2011 FC 149 at para 29; Birks v Canada (Attorney
General), 2010 FC 1018 at paras 25-27, 375 FTR 83; Rompré v Canada
(Attorney General), 2012 FC 101 at para 23; Lampron v Canada (Attorney
General), 2012 FC 825, at para 27; Osterroth v Chief of Defence
Staff, 2014 FC 438, at para 18; Dunsmuir v New Brunswick, 2008 SCC 9
at para 62 [2008] 1 S.C.R. 190, at para 47).
[21]
According to this standard of review, the Court
must show deference to decisions made by the Chief of Staff and will therefore intervene
only if those findings lack justification, transparency or intelligibility and
fall outside 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 S.C.R. 190, at para 47 (Dunsmuir)).
[22]
The same standard
applies when determining whether the Chief of Staff’s reasons for decision are
adequate because that issue requires that the decision be reviewed in light of
the requirements of subsection 29.13(2) of the Act,
which stipulates that if the Chief of Staff
does not act on a finding or recommendation of the Board, the Chief of
Staff shall provide reasons for his or her decision. As Justice Richard Boivin,
now of the Federal Court of Appeal, noted in Zimmerman, above, in such circumstances,
that is a question of “mixed fact and law reviewable
under the reasonableness standard” (Zimmerman, at para 26).
IV.
Analysis
A.
The Chief of Staff’s decision and the Board’s
recommendation
[23]
As previously stated, the Chief of Staff is not
bound by any finding or recommendation of the Board. However, when the Chief of
Staff renders a decision that does not act on said findings and recommendations
in a particular case, the Chief of Staff shall, according to subsection 29.13(2)
of the Act, provide reasons for his or her decision.
[24]
It is worth noting, at this stage, that, in
order to satisfy the obligation to give reasons, under a reasonableness
analysis, it is sufficient if the administrative decision-maker’s reasons for
decision explain the basis of the decision, without requiring it to make an
explicit finding on each constituent element leading to its final conclusion. At
least, that is what the Supreme Court of Canada pointed out in Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708:
[16] Reasons may not include all
the arguments, statutory provisions, jurisprudence or other details the
reviewing judge would have preferred, but that does not impugn the validity of
either the reasons or the result under a reasonableness analysis. A decision-maker
is not required to make an explicit finding on each constituent element,
however subordinate, leading to its final conclusion (Service Employees’
International Union, Local No. 333 v. Nipawin District Staff Nurses Assn.,
[1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[25]
Here, I am of the view that the Chief of Staff’s
reasons for decision explained why the Board’s recommendation was not followed
and why the conclusion to deny the applicant’s grievance was within the range of
acceptable outcomes.
[26]
First, there was consensus between the Chief of
Staff and the Board on the fact that the applicant, given his past military
experience, had to be re-enrolled at the rank of private recruit at the ES-01 grade.
Like the two authorities noted, the applicant did not demonstrate how his past
experience made it possible to accelerate his qualification for the position
that was offered to him in August 2009, with the result that it was then
appropriate for the Recruiting Group to consider the applicant as a candidate
who had never served in the Canadian Forces.
[27]
It is also important to note in this regard that
that is exactly what the applicant had in mind when he took steps to be
re-enrolled. As he told the Board, he was of the view, [translation] “throughout almost his entire
enrollment process”, that he should [translation]
“start all over again” because [translation] “it
had been more than 19 years since his prior experience with the CF”.
[28]
In this regard, the Board’s findings and the
Chief of Staff’s decision are in complete agreement. As pointed out by the
Court in Codrin v Canada (Attorney General), 2011 FC 100, at para 62, according
to subsection 35(1) of the Act, the rates of pay of non-commissioned members
shall be established by the Treasury Board and nothing in the Act or even in The
Queen’s Regulations and Orders for the Canadian Forces, confers on the
Chief of Staff the power to authorize a different rate of pay than the one applicable
under the Treasury Board directives, in this case, the CBI.
[29]
In short, under the legislation, policies and
directives governing his relationship with the Canadian Forces, the applicant was
only entitled, as remuneration, to the pay payable to privates, at the ES-01 grade.
That is undisputable and, in my opinion, unchallenged.
[30]
Even though conscious of the fact [translation] “that
the relationship between the Canadian Forces and members of the military is not
contractual in nature”, and that once enrolled, members of the military
[translation] “make a unilateral commitment to serve in consideration for
which the Crown assumes no obligation”, the Board nevertheless found that
those principles did not apply to an [translation]
“applicant” seeking enrollment, with the result
that the promises made in the context of the enrollment process contractually bound
the Canadian Forces.
[31]
The Chief of Staff expressed his disagreement
with the Board on that point by stating that when the applicant accepted the
modified re-enrollment offer, he was no longer an applicant seeking re-enrollment,
but indeed a full member of the Canadian Forces and that it was then open to
him to obtain his release, without any negative impact on him, if the new terms
of service did not suit him. However, the Chief of Staff noted that the
applicant instead chose to accept his new terms of service, which were communicated
to him once the error committed by the Recruiting Group was discovered and even
before he began his basic training.
[32]
The applicant’s argument that he would have been
subject to disciplinary sanctions if he had refused the new terms of service had
no evidentiary support. Neither the grievance that he filed nor the information
that he provided to the Board indicate, in any way, a reluctance of that nature
to refuse the modified re-enrollment offer. The evidence before the Board
instead points in an opposite direction. The Board’s interview notes indicate
the following:
[translation]
Impact of the error
I asked the grievor whether, when he was
informed that he would instead receive a private recruit’s pay, he had wanted
to request his release. The grievor replied that he had not, that he wishes to
remain in the CF despite the pay that he is currently receiving. He stated that
he is satisfied with his employment. I told him that he had indicated that he would
not have made a commitment, were it not for the pay of corporal. He reiterated
that he did not want to leave the CF, but insisted, however, that the CF should
respect its initial commitment to him.
[33]
In short, I am satisfied that the Chief of Staff
satisfactorily and intelligibly explained his decision to not act on the
Board’s finding and recommendation and that his conclusion that the correction
made to the enrollment offer dated August 9, 2009, was reasonable and
consistent with the directives governing the relationships between the Canadian
Forces and its members falls within a range of possible, acceptable outcomes in
respect of the facts and law. In the end, the applicant accepted terms of
service that were consistent with the said directives and what he had expected
to be offered [translation] “throughout almost his entire enrollment process” for
a job that he wanted to have and that he never really considered leaving
despite the confusion surrounding the initial re-enrollment offer. In my opinion,
this is how the Chief of Staff’s decision must be understood.
[34]
Furthermore, I will express serious doubts about
the Board’s finding, based on contract law, that the Canadian Forces has a
moral, if not legal, obligation to provide a remedy to the applicant because of
that misunderstanding. Even in accepting that in certain circumstances, a
contractual link between an “applicant” seeking
enrollment and the Canadian Forces could be created, on which I cannot rule,
there is a need to wonder about the prejudice actually suffered by the
applicant.
[35]
In this regard, the applicant’s case has little
to do with the preliminary situations identified by the Board to justify the acknowledgement
of a right to remedies stemming from contract law when a person enrolls in the
Canadian Forces on the basis of misrepresentation.
[36]
In fact, first, the applicant stated, in his
grievance, that the rank and pay of corporal at the ES‑04 grade had been
[translation] “some of the reasons that had motivated his re‑engagement”,
meaning that that was not the main consideration that had led him to seek his
re-enrollment, as evidenced by the fact that during the three-year process to
that effect, he had always thought that he would receive a private recruit’s pay.
It therefore becomes difficult to find, as the Board did, that the applicant re-enrolled
in the Canadian Forces [translation]
“based on an error, a breach of promise”.
[37]
Second, the applicant, when his terms of service
were adjusted based on what was stated in the CBI for his type of re-enrollment
situation, had the option of requesting his release and obtaining it with no adverse
impact. However, he preferred to keep his job because he was satisfied with it.
Furthermore, even assuming that he quit a civilian job to accept the one
proposed to him in July 2009, which there is no clear evidence of, the
applicant had been seeking re-enrollment since 2006 and had expected to be re-enrolled
at a private recruit’s pay. That means that it is reasonable to think that he
would have accepted an offer made to him on those terms and that he would have quit,
even on those terms, his civilian job.
[38]
Finally, the evidence in the record shows that
the applicant did not need to relocate his family following his re-enrollment
and that he did not need to reimburse an overpayment because his terms of
service were corrected even before he started his training and began receiving
his pay, which meant that his quality of life did not decline because of the
double deduction from the income that he could have otherwise received if he
had been earning a corporal’s pay at the ES-04 grade for some time before the
error was discovered.
[39]
In fact, the “prejudice”
suffered by the applicant takes the form of a shortfall associated with the non-payment
of a pay level that he was clearly not entitled to and that he never thought he
was entitled to. In the particular circumstances of this case, I see no prejudice
in this situation for the applicant. With respect, the Board missed the nuance
here.
[40]
The applicant argues that that situation also
delayed his career advancement. First, he failed to complain about that, either
in his grievance, before the Board, or at any other step of the grievance
process; his main—and only—recrimination was strictly money-related. Second,
the reasoning that applies to the pay also applies to the rank: the applicant
was not entitled to a corporal’s rank at the time of his re-enrollment and did
not expect, throughout his three-year process to reintegrate with the Canadian
Forces, to be re-enrolled at that level. Again, I cannot see that this
situation prejudiced the applicant.
[41]
The first argument against the Chief of Staff’s
decision is therefore rejected.
B.
The Chief of Staff did not fail to exercise his jurisdiction
[42]
The applicant maintains here that the Chief of
Staff failed to exercise his jurisdiction to the extent that he merely approved
the recommendation of a subordinate with respect to the decision to be made
regarding his grievance.
[43]
That argument must also fail. As noted by the
respondent in his memorandum, the applicant’s argument is, first, purely
speculative, because there is no evidence that supports the hypothesis that the
Chief of Staff relied, in whole or in part, on his subordinate’s judgment
without looking at the file himself. Moreover, as also noted by the respondent,
the Chief of Staff’s reasons for decision are more detailed than the memorandum
prepared by the subordinate.
[44]
Second, in an organization as complex and large
as the Canadian Forces, it is normal for its leader to receive support from
subordinates in the performance of his duties. Otherwise, the job would be impossible,
as the Court noted in Armstrong v Royal Canadian Mounted Police, [1994]
2 FCR 356. In that case, the Commissioner of the Royal Canadian Mounted Police,
who was called upon to rule on an internal appeal involving a discharge, was
criticized for delegating his decision-making function and, therefore, for not
rendering the decision himself. Justice Rothstein, now of the Supreme
Court of Canada, citing Khan v College of Physicians and Surgeons of Ontario
(1992), 9 OR (3d) 641 (C.A.), of the Court of Appeal for Ontario, described
the realities of modern decision‑making and the guidelines underlying its
implementation as follows:
[54] Guidelines for
the determination of whether, and to what extent, the involvement of non-decision-makers
in the decision‑making process is or is not appropriate have been well
summarized by Doherty J.A., of the Ontario Court of Appeal, in Khan v.
College of Physicians and Surgeons of Ontario (1992), 1992 CanLII 2784 (ON
CA), 9 O.R. (3d) 641 (C.A.), in which, at pages 672-673, he states:
There is no single formula or procedure
referrable to the drafting process that can be uniformly applied across the
very broad spectrum of decision-making, when determining whether the
involvement of the non-decision-maker in the drafting process compromised the
fairness of the proceedings or the integrity of the process. The nature of the
proceedings, the issues raised in those proceedings, the composition of the
tribunal, the terms of the enabling legislation, the support structure
available to the tribunal, the tribunal's workload, and other factors will
impact on the assessment of the propriety of procedures used in the preparation
of reasons. Certainly, the judicial paradigm of reason writing cannot be imposed
on all boards and tribunals: IWA v. Consolidated-Bathurst Packaging Ltd.,
supra, at pp. 323-24 S.C.R., pp. 342-43 O.A.C.
It must also be recognized that the volume
and complexity of modern decision-making all but necessitates resort to “outside”
sources during the drafting process. Contemporary reason-writing is very
much a consultive process during which the writer of the reasons resorts to
many sources, including persons not charged with the responsibility of deciding
the matter, in formulating his or her reasons. It is inevitable that the author
of the reasons will be influenced by some of these sources. To hold that any “outside”
influence vitiates the validity of the proceedings or the decision reached is
to insist on a degree of isolation which is not only totally unrealistic, but
also destructive of effective reason-writing. [Emphasis added.]
[45]
Justice Rothstein also agreed that it was not
realistic for the Commissioner to make internal appeal decisions in discharge
matters without delegating to his subordinates some of the work involved in
preparing the material in a manner to enable him to expeditiously perform his
function:
[59] Fourth, it is
not realistic for the Commissioner to make appeal decisions in discharge
matters without delegating to his subordinates some of the work involved in
preparing the material in a manner to enable him to expeditiously perform his
function. In this case, Sgt. Swann states, in her affidavit, that she spent
approximately 250 hours reviewing and preparing the résumé. It is to be
expected that the Commissioner of the RCMP would require such assistance, it
not being practical for him to expend that amount of time reviewing the
material in discharge, grievance or disciplinary matters appealed to him. Such
delegation does not, of itself, imply that the Commissioner did not put his
mind, independently, to the decision-making process. [Emphasis added.]
[46]
Similarly, to paraphrase Justice Rothstein, it
is not realistic for the Chief of Staff to make grievance decisions without delegating
to his subordinates some of the work involved in preparing the material in a
manner to enable him to expeditiously perform his function, as required by
section 29.11 of the Act. Furthermore, even assuming that the Chief of Staff’s
reasons for decision were prepared by a third party in his organization, the
principles governing the exercise of the modern decision-making power mean
that, to the extent that the Chief of Staff approved them, said reasons must be
considered his own (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at para 44; Halifax
(Regional Municipality) v Canada (Public Works and Government Services),
[2012] 2 S.C.R. 108, 2012 SCC 29, at para 17).
[47]
Thus, there is nothing improper or illegal in
the manner in which the applicant’s grievance file was submitted to the Chief
of Staff and there is nothing in the evidence that leads to the conclusion that
the Chief of Staff did not personally consider the applicant’s case and that
the decision to deny the grievance was ultimately not his own.
[48]
For all of these reasons, the applicant’s
application for judicial review will be dismissed.
[49]
The respondent is seeking costs. At the hearing,
counsel for the applicant asked the Court to not award costs against the
applicant in the event that the outcome of the application for judicial review
was not in his favour. Normally, given my finding, costs should be awarded to
the respondent. However, I am inclined to dispose of this issue as did my
colleague Justice O’Keefe in Codrin, above, and therefore to dismiss
this application for judicial review without costs because the error committed
by the Recruiting Group regarding the rank and pay the applicant were entitled to
at the time of his re-enrollment is the source of this dispute.
Email this Content