Docket: T-1112-14
Citation:
2015 FC 1112
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, September 24, 2015
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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LOUIS-SÉBASTIEN
MOROSE
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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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JUDGMENT AND REASONS
I. Introduction
[1]
Louis-Sébastien Morose seeks judicial review of
a decision dated March 20, 2014, by Colonel J.R.F. Malo, in his
capacity as final authority and delegate of the Chief of the Defence Staff [Chief
of Defence Staff] pursuant to section 29.14 of the National Defence Act,
RSC 1985, c N‑5 [the Act], reproduced in the appendix to these
reasons. In that decision, Colonel Malo allowed the applicant’s grievance
dated October 7, 2010, in part.
[2]
Mr. Morose had filed a grievance contesting
the date of his promotion to the rank of Captain-General Service Officer [Captain],
his incentive pay category anniversary date, and the amendment to his pay. His
grievance stemmed from a decision of the Canadian Armed Forces [the Forces] in
October 2009 to end the practice previously applied to student pilot
officers with regard to promotions to the rank of Captain.
[3]
As we shall see further on, the rank of Captain
is granted on the date the candidate meets the requirements of his or her
military occupation classification [MOC]. However, the practice used until
October 2009 allowed student pilot officers to be promoted to Captain on
the date they met the requirements of their MOC, but backdated to their entry into
the promotion zone date, so as to mitigate the prejudicial of their training,
which is generally longer than the training for other MOCs.
[4]
It should be noted at the outset that the entry
into the promotion zone date is defined in section 2 of Canadian Forces
Administrative Orders [Administrative Orders] number 11-6, Commissioning
and Promotion Policy – Officers – Regular Force, and that it means “the date an officer completes a specified time in rank in
the officer’s current MOC which makes the officer eligible for consideration
for promotion . . .”. For student pilot officers, this date
can be many months, even years, before the date they meet the requirements of
their MOC.
[5]
In Mr. Morose’s case, the difference
between the two dates is nearly 22 months, since his entry into the
promotion zone date is August 22, 2008, while the date he met the
requirements of his MOC is May 7, 2010.
[6]
In his decision dated March 20, 2014, the
final authority refused to exercise his discretion to allow Mr. Morose the
benefit of this former practice and confirmed Mr. Morose’s promotion to Captain
as of the date he met the requirements of his MOC, without retroactive effect. However,
to benefit Mr. Morose financially, he amended the date of Mr. Morose’s
promotion to Lieutenant from August 22, 2006, to June 19, 2009.
[7]
Mr. Morose asks this Court to review the
decision dated March 20, 2014, set it aside and refer the file back to the
final authority for redetermination on the basis that the final authority must
allow his grievance by (1) backdating his promotion to the rank of
Captain-General Service Officer to August 22, 2008, his entry into the
promotion zone date; (2) adjusting his incentive pay category anniversary date
to August 22; and (3) increasing his pay increment accordingly.
[8]
The Court is sympathetic to Mr. Morose’s
situation and notes in passing that it greatly appreciates the courtesy with
which he and counsel for the respondent set out their submissions and conducted
their debates. However, for the reasons that follow, the Court dismisses his
application for judicial review.
II. Background
[9]
On August 22, 2005, Mr. Morose enrolled in
the Forces as a student pilot officer under the Basic Officer Training Program,
at a community college. He already had a commercial pilot licence.
[10]
Mr. Morose took the training program
offered to him without delay on his part, but it nevertheless took him nearly
five years to meet the requirements of his MOC and thus earn his wings.
[11]
On July 6, 2007, Mr. Morose completed his
basic officer qualification; on August 22, 2008, he entered the promotion
zone; on June 19, 2009, he completed Phase II of pilot training; and
on May 7, 2010, he qualified for his MOC and received his wings.
[12]
On July 6, 2007, Mr. Morose was promoted to
the rank of Second Lieutenant, retroactively to his date of enrollment,
August 22, 2005. On May 7, 2010, he was promoted to the rank of
Captain, without retroactive effect. He was then promoted to the rank of
Lieutenant, retroactively to August 22, 2006.
[13]
On October 7, 2010, Mr. Morose filed a
grievance with his chain of command contesting the effective date of his
promotion to Captain.
[14]
Relying on the past exceptional practice used to
promote student pilot officers, as described above, Mr. Morose then asked
the Chief of Staff to exercise his authority under paragraph 11.02(2) of
the Queen’s Regulations and Orders for the Canadian Forces [QR&O], reproduced
in the appendix to these reasons, so as to (1) grant him the right to a
promotion to the rank of Captain, backdated to his entry into the promotion zone
date, August 22, 2008, rather than to the date he received his wings,
May 7, 2010; (2) adjust his incentive pay category anniversary date to
August 22; and (3) ensure that his pay reflects these adjustments.
[15]
On September 21, 2011, Brigadier-General M.K.
Overton, Director General Military Careers [Director General-Careers], in his
capacity as initial authority, rejected Mr. Morose’s grievance.
[16]
The initial authority concluded that, [translation] “despite
previous practices . . . , the fact remains that DND and the QR&O
do not provide the authority to backdate a promotion to Capt”. He stated
that his Division had ended the above-referenced practice in October 2009,
since no other provision allows it, and concluded that this was consistent with
policies not to authorize Mr. Morose’s promotion to Captain until he met
the requirements of his MOC, which in this case occurred on May 7, 2010.
[17]
Mr. Morose’s grievance was then the subject
of a discretionary review by the Military Grievances External Review Committee [the
Committee], which in accordance with article 7.12 of the QR&O as then
in force had to provide the Chief of Staff and Mr. Morose with its
findings and recommendations.
[18]
On June 29, 2012, the Committee shared its
findings and recommendations. It concluded that Mr. Morose had been
treated unfairly in comparison with other MOCs and some fellow pilots. The
Committee recommended that the Chief of Staff exercise his discretion under
paragraph 11.02(2) of the QR&O to waive the requirement on Mr. Morose
to meet the requirements of his MOC before being promoted to the rank of
Captain and to order that this promotion therefore be backdated to August 22,
2008. The Committee also recommended that the Chief of Staff reject Mr. Morose’s
request with regard to setting the incentive pay category anniversary date as
August 22, 2008.
[19]
On March 20, 2014, Colonel J.R.F. Malo, in
his capacity as final authority, allowed Mr. Morose’s grievance in part.
That decision is the subject of this judicial review.
III. Impugned
decision
[20]
In his decision dated March 20, 2014, the
final authority found that Mr. Morose had been penalized in certain
respects but treated fairly in others, in accordance with the policies and
directives in force, even though some Forces members might have received such
benefits in the past.
[21]
He found that there was no provision that would
allow a Forces member to be promoted to the rank of Captain retroactively, that
the past practice used by the Director General-Careers to promote pilots to
Captain without their being qualified was contrary to approved policies, and
that the Director General-Careers should have put a stop to this once the error
had been discovered. He noted that he did not agree with the Committee’s
conclusion recommending that the Chief of Staff exercise his discretion under
paragraph 11.02(2) of the QR&O, as this exceptional rule is intended
to give the Chief of Staff latitude in certain specific cases and such latitude
was not required in Mr. Morose’s case. He therefore upheld May 7,
2010, as the date of Mr. Morose’s promotion to the rank of Captain,
without retroactive effect.
[22]
Furthermore, to give Mr. Morose some
financial benefit, he ordered that the Director General-Careers promote him to
the rank of Lieutenant, effective June 19, 2009 (date as corrected in the
decision letter dated September 23, 2014) rather than August 22,
2006, which he was allowed to do, and that his pay increments (incentive pay
category) to the ranks of Second Lieutenant and Lieutenant be adjusted in
accordance with this decision.
IV. Issues
[23]
The issues raised by Mr. Morose may be
stated as follows:
•
Did the final authority err in exercising his
discretion under paragraph 11.02(2) of the QR&O such that his decision
was unreasonable?
- Did the final authority’s decision breach the principles of
natural justice and procedural fairness because the reasons given for it
were inadequate?
- Did the Chief of Staff unlawfully delegate his discretion to a
designated officer?
V. Standard of
review
[24]
The Court agrees with the parties that the final
authority’s decisions on grievances are questions of mixed fact and law subject
to the reasonableness standard of review, particularly where, as in this case,
the decisions concern a retroactive promotion (Codrin v Canada (Attorney
General), 2011 FC 100 at para 44).
[25]
However, questions of jurisdiction and
procedural fairness are usually subject to the correctness standard of review.
VII. Parties’ positions
A.
Position of Mr. Morose
[26]
Mr. Morose submits that the decision dated
March 20, 2014, is unreasonable because the final authority (1) abused his
discretion by failing to consider past practices and (2) breached the
principles of natural justice and procedural fairness by not giving sufficient
reasons for his decision to disregard the Committee’s recommendations or for
his decision not to exercise his discretion; and because (3) the Chief of Staff
did not have the power to delegate his final authority in this case.
[27]
First, Mr. Morose submits that the final
authority failed to follow past decisions, including cases 2010-007 and 2010-008,
dated April 20, 2011, by which the Chief of Staff had agreed to apply past
practices allowing promotions to Captain to be backdated. Mr. Morose argues
that those decisions were rendered six months after his own grievance and that,
in his case, the final authority should have followed those decisions to
respect the Chief of Staff’s intentions.
[28]
Mr. Morose further submits that the
practice of backdating promotions to the rank of Captain was known to everyone
and was applied systematically to all eligible pilots from the mid-1990s until
October 2009, when the practice was abolished without prior notice. Mr. Morose
therefore argues that it was reasonable and legitimate for him to expect to be
promoted to Captain when he earned his wings, but retroactively to the entry
into the promotion zone date, that is, August 22, 2008.
[29]
Mr. Morose does not dispute that the Forces
can abolish past practices, but he contests the manner in which this abolition
was applied, without prior notice or transitional measures.
[30]
Mr. Morose submits that the Chief of Staff erred
in exercising his discretion because the decision is abusive, creates [translation] “major and flagrant”
injustices between its members without valid reason and represents an abuse of
his discretion by disregarding past practices.
[31]
Second, regarding what Mr. Morose characterizes
as an issue of natural justice and procedural fairness, he submits that the
final authority did not give any reasons for his decision to disregard the
Committee’s recommendation that he exercise his discretion as required under
section 29.13 of the Act. This error is especially egregious because the
final authority recognized that Mr. Morose had been treated unfairly but
nonetheless refused to exercise his discretion, relying on the explanation that
the practice was an administrative error.
[32]
Mr. Morose argues that the practice of
backdating promotions to the rank of Captain was, on the contrary, a deliberate
and intentional use by the Chief of Staff of his discretion and that this was
practice was specifically intended to give pilots additional pay to compensate
for delays in their training. Mr. Morose submits that it is wrong to
characterize it as an administrative error.
[33]
What is more, the final authority failed to
substantiate the reasons for not following the Committee’s recommendations, or
to explain how returning Mr. Morose to a lower rank retroactively
responded to his claims or why it was fair to use the arbitrary date of
October 2009 as a test for determining whether a person is entitled to a
backdated promotion.
[34]
Since the Chief of Staff has discretion to grant
backdated promotions to Captain, he cannot simply choose an arbitrary date and
decide whether he will grant a backdated promotion to Captain.
[35]
Moreover, the final authority erred with regard
to the date Mr. Morose completed Phase II of his pilot training,
which suggests that his grievance was not given all the necessary attention.
[36]
Third, Mr. Morose submits that under
subparagraph 7.12(1)(a) of the QR&O, the referral to the Committee was
mandatory, not discretionary. Therefore, under section 29.14 of the Act,
the Chief of Staff could not delegate the final authority powers granted to him
under section 29.11 of the Act.
B.
Position of the respondent
[37]
First, the respondent submits that the final
authority did not err in exercising his discretion and that his decision is
reasonable.
[38]
The respondent submits that the final authority
noted that the Chief of Staff does indeed have the authority to determine promotion
standards in the Forces and that he used this power in adopting Administrative
Order 11-6, whose paragraph 17(f), reproduced in the appendix, provides
that an officer may not be promoted above the rank of Lieutenant until the
officer is MOC qualified in the officer’s current MOC. An exception to this
rule is set out in Annex A to Administrative Order 11-6, whose sections 15
and 16, reproduced in the appendix, state that a member may be promoted to the
rank of Lieutenant retroactively if the completion of training is
delayed “for military reasons”.
[39]
Accordingly, the applicable policies do not
allow a member to be promoted to the rank of Captain until the member
qualifies. The past practice was therefore contrary to the policies, and the
Forces correctly put an end to it October 2009, when the error was
discovered. Mr. Morose, having met the requirements of his MOC and earned
his wings on May 7, 2010, was therefore not entitled to the benefit of
this practice.
[40]
Mr. Morose was treated equitably, in
accordance with the principles in force, and he cannot claim an acquired right
based on the Forces’ application of a non-compliant practice. Mr. Morose does
not have an acquired right related to this practice and is in the same
situation as all other persons who were promoted to Captain after October 2009.
[41]
The respondent submits that the Chief of Staff established
a new procedure for everyone, that his discretion under paragraph 11.02(2)
of the QR&O is an exceptional measure intended to give him latitude in
certain specific cases and that no such latitude is required in Mr. Morose’s
case. The respondent stresses that this Court owes the exercise of discretion a
certain degree of deference.
[42]
As for the final authority’s finding with regard
to the date of Mr. Morose’s promotion to the rank of Lieutenant, the
respondent notes that subsection 29(5) of the Act states that any error
discovered as a result of an investigation of a grievance may be corrected,
even if correction of the error would have an adverse effect on the grievor.
[43]
Moreover, the final authority could vary the
practice relating to promotions to the rank of Lieutenant, and Mr. Morose
did not show that this conclusion caused him harm and did not seek a remedy.
[44]
The respondent submits that Mr. Morose raises,
under the heading of a possible breach of procedural fairness, not only a lack
of adequate reasons, but also a legitimate expectation argument that was not
mentioned in his notice of application and therefore cannot be considered in
his memorandum, as per Rule 301(e) of the Federal Courts Rules,
SOR/98‑106. In the alternative, the respondent submits that there is no
evidence that the final authority breached a principle of natural justice or
procedural fairness and that the legitimate expectation doctrine applies only
to procedural aspects.
[45]
The respondent submits that the decision dated
March 20, 2014, gives adequate reasons and is transparent and
intelligible.
[46]
The final authority properly considered the
essential issues raised in Mr. Morose’s grievance, and the typographical
error regarding the completion date of Phase II of his pilot training does
not constitute a breach of procedural fairness.
[47]
Third, the respondent submits that the Chief of
Staff did not delegate his authority unlawfully. Mr. Morose’s grievance
was not covered by subparagraph 7.12(1)(a) of the QR&O as it was
drafted at that time and was not subject to automatic referral to the
Committee. Therefore, the Chief of Staff could delegate his final authority
decision-making power, and section 29.14 of the Act did not prevent him
from doing so. The grievance was submitted to the Committee by discretionary
referral, in accordance with subsection 29.12(1) of the Act.
[48]
Moreover, according to the Act’s grievance
procedure, the Chief of Staff is charged with interpreting and applying the
policies and rules that he has made and for which he is responsible (Harris v
Canada (Attorney General), 2013 FC 571 at para 30).
VII. Analysis
[49]
Regarding the first argument, the Court is
satisfied that the final authority’s decision not to use his discretion to
authorize the backdating of Mr. Morose’s promotion to the rank of Captain
is reasonable, as it falls within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[50]
This conclusion is based on the finding that the
past practice was contrary to the applicable provisions, could therefore be
reasonably characterized as an error and could no longer be used. Mr. Morose
found himself in the same situation as all other student pilot officers who met
the requirements of their MOC after October 2009. This clearly results in
differential treatment of the two groups, but this is justified by the fact
that the prior practice was contrary to the provisions in force. The adoption
of transitional measures would have perpetuated the use of a non-compliant
measure.
[51]
Section 28 of the Act provides that
officers and non-commissioned members may be promoted by the Minister or by
such authorities of the Canadian Forces as are prescribed in regulations made
by the Governor in Council. Subparagraph 11.01(2)(a) of the QR&O,
meanwhile, provides that the promotion of a member to any rank lower than that
of Colonel may be approved by such officer as the Chief of the Defence Staff
may designate. The rank of Captain being lower than that of Colonel, an officer
designated by the Chief of Staff may therefore approve the promotion to
Captain.
[52]
As for the date of the promotion,
paragraph 11.02(1) of the QR&O provides that no officer shall be
promoted to higher rank unless (1) there is an appropriate vacancy in the total
establishment for the member's component, (2) the member is recommended by the
appropriate authority, and (3) the member meets such promotion standards and
such other conditions as the Chief of Staff may prescribe. This provision is
subject to an exception, set out in paragraph 11.02(2) of the QR&O,
which provides that in any particular instance or in any given circumstances,
the Chief of Staff may direct that the requirement to meet any promotion standards
be waived; this provision therefore constitutes the legal basis for the Chief
of Staff’s discretion.
[53]
In particular, paragraph 17(f) of Administrative
Order 11-6 specifically provides that an officer may not be promoted above the
rank of Lieutenant until the officer is MOC qualified in the officer’s current
MOC, except under certain conditions which do not apply in the present case.
Moreover, the Administrative Orders having been made pursuant to the QR&O, paragraph 17(f)
above is subject to the discretion set out in paragraph 11.02(2) of the
QR&O.
[54]
In the case at hand, the Committee determined
that the Chief of Staff had the required authority under paragraph 11.02(2)
of the QR&O to exempt Mr. Morose from having to meet the requirements
of his MOC before being promoted to the rank of Captain and recommended that
this promotion be backdated to August 22, 2008. However, the final
authority rejected this recommendation and justified his refusal by relying on
the fact that this position was not supported by the relevant provisions and
that the prior practice was an error that had to be corrected. The Court is
satisfied that this conclusion is reasonable.
[55]
The Court notes that the factual situations in
the decisions cited by Mr. Morose (at para 27 of this decision) where
the Chief of Staff used his discretion can be distinguished from his. In those
decisions, the student pilot officers had met the requirements of their MOC
before October 2009, when the past practice was ended, whereas Mr. Morose
met his requirements several months after that, in May 2010.
[56]
When exercising their discretion,
decision-makers cannot apply a directive mechanically, thereby failing to
consider all the relevant factors (Maple Lodge Farms Ltd v Canada,
[1982] 2 S.C.R. 2; Donald J.M. Brown and The Honourable John M. Evans, Judicial
Review of Administrative Action in Canada, (Toronto, ON: Carswell, 2013,
2014) (loose leaf, Update 3), c 12 at pp 12-43). However, the Court
is satisfied that the final authority chose not to exercise his discretion
after reviewing the relevant factors, basing his decision on the directive
issued by the Directorate of Military Careers (see Pierre Issalys, Denis
Lemieux, L’action gouvernementale: précis de droit des institutions
administratives, 3rd ed., Cowansville, QC: Yvon Blais, 2009 at p 217).
[57]
As for the second argument, which alleges that
the reasons were inadequate, the Court is satisfied that the final authority
gave sufficient reasons for his decision to disregard the Committee’s decision,
and that his decision met the criteria of justification, transparency and
intelligibility and fell within the range of “possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
[58]
With regard to Mr. Morose’s final argument,
concerning the delegation of authority by the Chief of Staff, the Court agrees
with respondent’s position, according to which Mr. Morose’s grievance was
not covered by paragraph 7.12(1) of the QR&O and was not subject to a
mandatory referral to the Committee since such a referral was, in this case,
discretionary. The Chief of Staff could therefore delegate his powers as final
authority as provided under section 29.14 of the Act.
[59]
I therefore reject Mr. Morose’s argument on
this point.
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