Docket: T-323-15
Citation: 2015 FC 1143
Ottawa, Ontario, October 6, 2015
PRESENT: The Honourable Madam
Justice Roussel
|
BETWEEN:
|
|
FRANÇOIS R. BOSSÉ
|
|
Applicant
|
|
and
|
|
CANADA (ATTORNEY GENERAL)
|
|
Respondent
|
JUDGMENT
AND REASONS
[1]
The Applicant, Mr. François R. Bossé, seeks
judicial review pursuant to section 18.1 of the Federal Courts Act, RSC
1985, c F-7, of a decision dated January 22, 2015, by Colonel J.R.F. Malo, in
his capacity as the final authority [FA] in the Canadian Forces [CF] grievance
process. In his decision, Colonel J.R.F. Malo rejected the Applicant’s
grievance of March 25, 2013, and refused to grant the redress sought by the Applicant.
I.
Factual background
[2]
The Applicant joined the CF in the Reserve Force
on October 29, 2004, as an Infantryman. He transferred to the Regular Force on
June 24, 2005, and commenced training to become an Officer in the Maritime
Surface and Subsurface occupation.
[3]
In November 2010, the Applicant suffered a service-related
knee injury that became recurrent in nature. In light of his persistent injury,
in October 2012, an administrative review was initiated to determine whether the
Applicant was fit to continue serving with the CF. On October 23, 2012, the
administrative review concluded that the Applicant’s continued employment in
the CF was no longer possible and that a release should be considered as the
only possible course of action.
[4]
The following month, the Applicant’s Commanding
Officer [CO] became aware that the Applicant was playing squash recreationally
and as a result a Unit Disciplinary Investigation [UDI] was initiated in
mid-November 2012. The basis of the UDI was that by playing squash in his spare
time, the Applicant may have aggravated his knee injury.
[5]
On November 19, 2012, the Applicant’s release
from the CF on medical grounds was approved by the Director Military Careers
and Administration [DMCA]. The DMCA indicated that the Applicant’s retirement leave
was to commence on June 12, 2013, or earlier if requested.
[6]
On February 7, 2013, the Applicant submitted an
application to his CO, requesting to participate in the Vocational
Rehabilitation Program for Serving Members [VRPSM]. The Applicant’s VRPSM plan
included two (2) phases: 1) job shadowing with SNC-Lavalin in Victoria, British
Columbia, from February 2013 to April 2013; and 2) pursuing a graduate diploma
in management at HEC in Montréal, Québec, from May 2013 to June 2013.
[7]
On February 14, 2013, the Transition Advisor at
the Director Casualty Support Management confirmed that the Applicant was eligible
for the VRPSM, subject to his CO’s approval.
[8]
By letter dated March 12, 2013, SNC-Lavalin
confirmed that it was prepared, under the terms of the CF VRPSM, to provide on
the job training to the Applicant from March 13, 2013 to April 26, 2013. However,
discussions between the Applicant and SNC-Lavalin regarding the Applicant’s
internship had started as early as December 2012.
[9]
On March 15, 2013, the Applicant sought to amend
his release date from June 13, 2013, to April 26, 2013, and then later to April
24, 2013. His request for an earlier release was approved on March 19, 2013.
[10]
The Applicant’s request for VRPSM was denied on
March 21, 2013. The handwritten denial, which is found on the March 12, 2013
letter from SNC-Lavalin, states that the Applicant’s “request
is denied. This out of area VRPSM is unsupportable given his release date of 26
Apr 13”. An earlier handwritten note dated March 18, 2013, found on the
same letter, reads:
“Cmdt
Sir, member has been briefed that his VRPSM would likely be denied
based on his request for an earlier release date, and his ongoing
administration that would result in him having to pay his own way back to
Gagetown for issue of charges etc.
For your consideration SIR,
[signature]
J.A. Phillips
CAPT
BC HQ
18 Mar 13”
[11]
The Applicant was medically released from the CF
on April 30, 2013.
[12]
On March 25, 2013, the Applicant filed a
grievance to his CO, in his capacity as the Initial Authority [IA] in the
grievance process, challenging the decision to deny his VRPSM request.
Specifically, the Applicant argued that: 1) it was his right to request an
earlier release date of his convenience and that the right to an earlier
release date did not run in conflict with the regulations of the VRPSM policies;
and 2) the possible laying of charges should be a separate and independent
procedure entirely and should not interfere with his request for VRPSM.
[13]
On July 10, 2013, the Applicant was provided
with a disclosure package, which contained the information upon which the IA
would make its decision. The package included a grievance synopsis, which
recommended that the Applicant’s grievance be denied. On August 19, 2013, the Applicant
availed himself of the opportunity to make representations in support of his
grievance. The Applicant’s grievance was denied by the IA on September 9, 2013.
[14]
On October 10, 2013, the Applicant requested
that his grievance be submitted to the FA for adjudication. On February 3,
2014, his grievance was referred on a discretionary basis to the Military
Grievances External Review Committee [MGERC] for findings and recommendations
and on May 13, 2014, the MGERC recommended that the grievance be denied.
[15]
On January 22, 2015, the FA denied the Applicant’s
grievance.
II.
Decision under review
[16]
The FA determined that the decision to deny the Applicant’s
VRPSM request fell within a range of reasonable outcomes. He also determined
that the Applicant had been treated fairly in accordance with the applicable
rules, regulations and policies and that he was not prepared to grant the
redress sought by the Applicant. He concluded that the Applicant’s VRPSM
timeline was not achievable as it did not incorporate the time required for his
release process.
[17]
In reaching his decision, the FA referred to CANFORGEN
151/07, which enables medically releasing CF members to pursue vocational
rehabilitation training up to six (6) months immediately prior to their medical
release. He also referred to the Aide-memoire for CF members and the Chain
of Command on the VRPSM [VRPSM Aide-memoire], which sets out that medically
releasing CF members should be provided with the best possible support to
assist them in their transition to civilian life. He specified that the VRPSM
is not a right or entitlement and that it requires a comprehensive plan which
must be prepared prior to proceeding with a request. He further added that: 1) the
CO must be satisfied that the plan is reasonable and realistic; 2) the training
must take place up to a maximum of six (6) months prior to the release date or
the start of the retirement leave date; and 3) the VRPSM location will be
considered as the member will be required to perform routine administrative
clearance activities during their remaining time in service.
[18]
The FA then proceeded to review the Applicant’s
VRPSM plan. The FA first noted that at the time of the Applicant’s VRPSM request,
he did not meet the required training qualifications. However, the FA
recognized that there was confirmation in the Applicant’s file that he had been
deemed eligible to apply for the VRPSM program on February 13, 2013, and for
that reason, he agreed with the MGERC that the Applicant was eligible to apply
for the program. The FA then reviewed the dates identified in the Applicant’s
VRPSM. He stated that the Applicant’s VRPSM application was submitted on February
9, 2013, and that the inclusive period of the plan was to begin on February 18,
2013, and end on June 13, 2013. He also referred to Part B of the Applicant’s
VRPSM and pointed out that the timeline therein indicated that the plan was to
begin February 4, 2013, which was five (5) days before the Applicant had even applied
for VRPSM.
[19]
After carefully reviewing the Applicant’s file, the
FA found that although the Applicant may have been prepared to start working
with SNC-Lavalin in February 2013, SNC-Lavalin was only prepared to employ the
Applicant as of March 2013. He also noted that the Applicant’s VRPSM plan did
not take into consideration the time required to conduct the release administrative
process, which according to the release section of the Applicant’s home base in
New Brunswick, could take up to four (4) weeks. The FA agreed with the IA that
the denial of the VRPSM was reasonable since the Applicant’s VRPSM plan was
flawed and could not have worked within the timeframe requested.
[20]
With respect to the change in release date, the
FA noted that on March 15, 2013, the Applicant requested an earlier release
date of April 24, 2013, and that it wasn’t until March 21, 2013, that the chain
of command denied the VRPSM request. While the FA considered the Applicant’s
explanation that he changed his release date because he had been told by his
chain of command that his VRPSM request would not be approved, he determined
that this did not change the fact that a decision on his VRPSM request had not
been made at that point in time. In the end, the FA concluded that the lack of
time to complete administrative duties and the issues related to the start date
of employment complicated the Applicant’s VRPSM plan and as a result, the decision
to deny the VRPSM request fell within a range of reasonable outcomes.
III.
Legislative and Regulatory Framework
[21]
The relevant procedures and guiding principles
of the CF grievance process are outlined in sections 29 to 29.15 of the National
Defence Act, RSC 1985, c N-5 [NDA] and article 7 of the Queen’s
Regulations and Orders [QR&Os]. The CF grievance process has two (2)
levels of grievance authority: the IA and the FA.
[22]
An officer or non-commissioned member who has been
aggrieved by any decision, act or omission in the administration of the affairs
of the CF, for which no other process for redress is provided under the NDA, is
entitled to submit a grievance. The grievance must be submitted in writing to
the individual’s CO, who will act as the IA for the grievance. If the CO is unable
to act as the IA, the grievance will then be sent to the commander or officer
holding the appointment of Director General, or above, at National Defence
Headquarters, who is responsible to deal with the matter that is the subject of
the grievance. If the grievance relates to a personal decision, act or omission
of an officer who is the IA, then that officer must refer the grievance to the
next superior officer who has the responsibility to deal with the subject-matter
of the grievance, and that superior officer will act as the IA.
[23]
If the grievor disagrees with the decision of
the IA, he may submit it to the Chief of Defence Staff [CDS] as FA for
consideration and determination. Certain types of grievances must be referred by
the CDS to the MGERC for its findings and recommendations, which are
non-binding on the CDS. If the CDS does not act on the findings and
recommendations of the MGERC, he must provide written reasons for his decision.
Although the CDS is the FA in the grievance process, he may delegate, with certain
exceptions, any of his powers, duties and functions as FA in the grievance
process to an officer who is directly responsible to him. With the exception of
judicial review to this Court, a decision of the FA in the grievance process is
final and binding.
IV.
Issues and appropriate standard of review
[24]
The issue to be determined in this application is
whether the FA’s decision rejecting the Applicant’s grievance was reasonable.
[25]
Both the Applicant and the Respondent agree that
the standard of review regarding the merits of the FA’s decision is
reasonableness. I agree. The decision under review raises questions of fact,
discretion and policy, as well as questions of mixed law and fact, which are
reviewable on the reasonableness standard as per Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 51, [2008] 1 S.C.R. 190 [Dunsmuir]. Moreover, an
exhaustive analysis to determine the applicable standard of review is not
required, given that case law has already established that decisions of the FA
in the CF grievance process that deal with questions of fact or mixed fact and
law are reviewable on the standard of reasonableness (see Dunsmuir, at
paragraph 57; Bourassa v Canada (Department of National Defence), 2014
FC 936 at paragraphs 39 and 40 [Bourassa]; Harris v Canada (Attorney
General), 2013 FCA 278, [2013] FCJ No 1312 (affirming Harris v Canada
(Attorney General), 2013 FC 571 at paragraph 30, [2013] FCJ No 595); Babineau
v Canada (Attorney General), 2014 FC 398 at paragraph 22, [2014] FCJ No
440; Osterroth v Canada (Canadian Forces, Chief of Defence Staff), 2014
FC 438 at paragraph 18, [2014] FCJ No 483; Moodie v Canada (Attorney
General), 2014 FC 433 at paragraph 44, [2014] FCJ No 447; Lampron v
Canada (Attorney General), 2012 FC 825 at paragraph 27, [2012] FCJ No 1713;
Rompré v Canada (Attorney General), 2012 FC 101 at paragraphs 22 and 23,
[2012] FCJ No 117; Zimmerman v Canada (Attorney General),
2011 FCA 43 at paragraph 21, [2011] FCJ No 163 [Zimmerman]).
[26]
Applying the analytical framework required of a
Court that is reviewing a decision based on the standard of reasonableness, as
set out by the Supreme Court of Canada at paragraph 47 of Dunsmuir, I
must determine whether the FA’s decision meets the criteria of “justification, transparency and intelligibility within the
decision-making process” and whether it “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law”.
[27]
The Applicant argued that a lower degree of
deference should be given to the FA’s decision because it was made by an
officer who holds a senior rank four (4) ranks lower than the CDS. While
acknowledging that section 29.14 of the NDA expressly permits the CDS to
delegate his powers, duties and functions as FA in the grievance process, the
Applicant submitted that Colonel J.R.F. Malo’s level of expertise and authority
in the CF administration is not equivalent to that of the CDS, and
consequently, the level of deference in this case should be moderate to low. The
Applicant did not provide any case law to support a lower level of deference,
or any evidence to demonstrate Colonel J.R.F. Malo’s lower level of expertise.
The Respondent on the other hand, provided a copy of the appointment order
dated November 15, 2012, wherein the CDS delegated to Colonel J.R.F. Malo, under
section 29.14 of the NDA, his powers, duties and functions as the FA in the
grievance process.
[28]
In my view, the delegation of powers to Colonel
J.R.F. Malo suggests that he possesses the requisite level of expertise and
authority to render decisions as the FA in the CF grievance process. Furthermore,
I note that in Bourassa, cited above, Bédard J. does not appear to have afforded
less deference to a decision that was also made by Colonel J.R.F. Malo as FA in
the CF grievance process. Consequently, I am not persuaded that the FA’s
decision merits a lower level of deference in the circumstances of this case.
V.
Analysis
[29]
In his decision dated January 22, 2015, the FA
determined that the Applicant had been treated fairly and that his request for
VRPSM was denied as a result of him changing his release date. Specifically,
the FA concluded that the Applicant had not taken into consideration the time
required to complete the release administrative process, and secondly, the
timeline in the VRPSM plan was not achievable.
A.
Time required to complete the release
administrative process
[30]
It is clear from the written submissions of the
parties that there is confusion regarding the nature of the “release administrative process” referred to by the FA
in his decision.
[31]
In his memorandum of fact and law, the Applicant
submits that the FA’s conclusion that there was insufficient time to process
the Applicant’s VRPSM request is without foundation and does not fall within
the range of possible outcomes. The Applicant states that the time required to process
a VRPSM request is thirty days and that it is clear that his VRPSM request adhered
to this timeframe. The VRPSM request was submitted to the Applicant’s CO on
February 7, 2013, with an anticipated start date of March 13, 2013. Therefore a
total of thirty-four (34) days was allotted to process the VRPSM request,
leaving no reason why it could not have been administered within the requisite
thirty (30) days. He further rejects the argument that the FA’s decision could
be justified based on his temporary relocation to British Columbia, since the
regulations specifically provide that VRPSM plans may involve travel inside
Canada. Finally, the Applicant also argues that there was a clerical error in
his original VRPSM application which listed the start date of his job-shadowing
with SNC-Lavalin in Victoria, British Columbia to be February 4, 2013. The
correct date should have been March 4, 2013. The Applicant believes that he has
been heavily penalized as a result of this clerical error.
[32]
In oral submissions, the Applicant shifted his
argument and conceded that the “release process”
cited by the FA in its decision referred to the time required to release a CF
member, not to process a VRPSM request. However, he argued that as the Applicant
left more than four (4) weeks between the date he requested an earlier release
date, and the early release date itself, this provided sufficient time to
complete all of his release procedures. He submitted that no fault can be
attributed to the Applicant for the release not being processed within the
requisite thirty (30) days.
[33]
The Respondent submits in his memorandum of fact
and law that the Applicant’s VRPSM request was denied on the basis that the
plan failed to incorporate the time required to process the release of the
Applicant from the CF and not because of the lack of time to process the VRPSM request
as suggested by the Applicant in his memorandum of fact and law. According to
the Respondent, when the Applicant requested on March 15, 2013, an early
release date of April 24, 2013, the Applicant’s timeline became unfeasible
since the release process from the CF could take up to four (4) weeks. In oral
submissions the Respondent claimed that the release administrative process must
be done in person at the CF member’s home base.
[34]
I agree that the “release
administrative process” referred to by the FA was in fact the process to
release a member from the CF. This interpretation is supported by an email from
Kelly Osmond, Petty Officer 2nd Class, on October 6, 2014, in
response to a question regarding the amount of time required to complete the
release process at the Applicant’s home base in New Brunswick. She wrote that
one needed “30 days to process a [member] out fully.
That would include 2 [r]elease appointments, 2 medical appointments and a whole
host of base clearances. This would be the shortest amount of time that we
could get someone released” (Certified Tribunal Record [CTR], page 19). This
interpretation is also supported by the MGERC report which stated that in
addition to his internship, the Applicant “needed to
complete several administrative procedures prior to his release” (CTR,
page 59). According to the MGERC member’s calculations, approximately ten (10)
days were needed for release clearance procedures, possibly two (2) additional
days for the pending administrative actions, in addition to the days needed to
expend his annual leave. In the MGERC member’s view, the Applicant “required fourteen (14) to sixteen (16) working days prior to
April 26, 2013 in order to fulfill the necessary requirements of his release.
In considering these requirements, plus travel days between Victoria and
Gagetown, as well as the two (2) statutory holidays for Easter, only six (6)
working days remained for the grievor’s internship.”
[35]
I now turn to the question of whether the FA’s
conclusion regarding the time required for completing the release process was
reasonable. According to the evidence, the minimum amount of time required to
complete the release process is thirty (30) days. In the Applicant’s case, there
was approximately a month and a half between his request for an earlier release
(March 15, 2013) and the proposed earlier release date (April 24, 2013). The FA
found this to be insufficient to complete all the required clearance
procedures. He also rejected the Applicant’s argument that he only changed his
release date after a meeting where he was told by two (2) individuals in his
chain of command that he was not eligible for VRPSM and that his request would be
evaluated on its merits after the disciplinary investigation was completed. In
the FA’s view, the reason for changing the release date did not change the fact
that a decision had not yet been made on the Applicant’s VRPSM request.
[36]
CANFORGEN 151/07 provides that: 1) the VRPSM was
introduced to enable medically releasing CF members to commence vocational
rehabilitation training for up to six (6) months immediately prior to their
release with the approval of their CO (s. 2); and 2) COs are encouraged to actively
support medically releasing members in their efforts to effect a seamless
transition from CF to civilian employment (s. 7). In addition, the VRPSM Aide-memoire
provides that prior to release, an eligible member may request, subject to the
CO’s approval, a move to his/her intended place of residence and/or a change of
release base if it is beneficial to the VR training plan. Given the purpose of
the VRPSM and the possibility for a CF member to request a change in venue, I question
whether it would have been possible for the Applicant to conduct the
administrative processes required for his release from another base either in,
or closer to British Columbia, or even electronically, in order to eliminate
the need for him to travel to his home base in New Brunswick. If accommodation
measures could have been taken, the release procedures could have been
completed within the minimum thirty (30) day timeframe.
[37]
In the absence of any evidence to demonstrate
that 1) accommodation measures could have been taken, 2) the Applicant
requested these measures and was refused, or 3) that the Respondent had the
obligation to suggest modifications to the VRPSM instead of rejecting it, I must
conclude that the FA’s determination that the Applicant’s timeline did not take
into account sufficient time to complete the release process from the CF was
reasonable and fell within the range of possible and acceptable outcomes. Furthermore,
based on all the evidence before me, I am of the opinion that the clerical
error highlighted by the Applicant was not determinative.
B.
Possible laying of charges
[38]
The Applicant submits that it was unreasonable
for the FA not to address the issue of the possible laying of charges in his
reasons given that it was listed as a grievance issue and as a reason for
denying the VRPSM. Furthermore, he argues that at the time his release message
was issued, he was the subject of a bogus UDI initiated by his Battery
Commander, who was also the person who denied his VRPSM. He alleges that were
it not for this disciplinary investigation being initiated, there would have
been no other justifiable reason to deny his VRPSM.
[39]
The Respondent argues that the Applicant’s
argument is without merit and that the issue of the possible laying of charges
was considered by the FA through the findings of the MGERC.
[40]
My review of the CTR leads me to the following
observations.
[41]
First, the Applicant’s letter dated March 15,
2013, requesting an earlier release date has a handwritten annotation which indicates
that the Applicant has been briefed that he may be required to return to
Gagetown for “charge-laying” and that it will be
his responsibility to pay for these trips. The “issue
of charges” re-appears in the handwritten annotation dated March 18,
2013, on the “Letter of Intent to Provide
On-Job-training” from SNC-Lavalin, quoted above. Three (3) days later,
on March 21, 2013, the Applicant’s VRPSM request was denied.
[42]
Second, the Applicant’s grievance letter states
that the Applicant considers the possible laying of charges to be a separate
and independent procedure entirely and that it should not interfere with his
request for VRPSM (CTR, page 150).
[43]
Third, the IA’s decision dated September 9, 2013,
acknowledges that disciplinary and administrative procedures are in fact
entirely separate and independent from the VRPSM but adds that outstanding
disciplinary or administrative measures are a consideration for the CO when
determining the feasibility of a VRPSM plan (CTR, page 130).
[44]
Fourth, in its findings and recommendations
dated May 13, 2014, the MGERC found that there was no evidence that the
possible laying of charges was a factor considered by the CO, as alleged by the
Applicant (CTR, page 59).
[45]
Finally, when asked to provide further
clarification for the purpose of completing the Applicant’s file prior to it
being submitted to the FA, the Applicant provided greater details of his
grievance regarding the alleged influence of his disciplinary charges on his
VRPSM refusal (CTR, pages 9-18).
[46]
The Applicant clearly raised the issue of
whether the possible laying of charges was a basis for his VRPSM refusal as one
of the grounds of his grievance. The issue appeared in the documentation prior
to the grievance being filed and in the decisions that followed thereafter. However,
the FA’s decision is silent on the issue.
[47]
It is true that a decision-maker need not deal
with every issue raised by the parties. While it is possible that the FA
considered the issue in making his decision, the fact remains that one of two (2)
issues raised by the Applicant in his grievance is simply not addressed or
dealt with by the FA in his decision (see Zimmerman, at paragraph 25; Morphy
v Canada (Attorney General), 2008 FC 190, at paragraphs 74, 75, 78, 323 FTR
275). I am unable to determine whether the issue was considered or whether it
was forgotten. The Applicant is entitled to know whether or not the possible
laying of charges played a role in the decision to deny his VRPSM request. The
issue was obviously central enough for both the IA and the MGERC to address it in
their decisions. Accordingly, I find that the FA should have addressed the
issue in his decision and that his failure to do so did not fall within the
range of outcomes acceptable on the facts and the law.
VI.
Conclusion
[48]
Given my finding that the FA’s decision should
have addressed the issue raised by the Applicant in his grievance in respect to
the possible laying of charges and that the failure to do so does not fall
within the range of outcomes acceptable on the facts and the law, I find the
FA’s decision to be unreasonable.
[49]
As a consequence, the application for judicial
review is allowed with costs to the Applicant in the amount of $2,500.00.
[50]
The January 22, 2015 decision of Colonel J.R.F.
Malo is set aside, and the matter is remitted to the Chief of Defence Staff to
be re-determined in accordance with these reasons.
Email this Content