Docket: T-677-14
Citation:
2015 FC 1185
Montréal, Quebec, October 21, 2015
PRESENT: The
Honourable Madam Justice St-Louis
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BETWEEN:
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COLONEL BERNARD
OUELLETTE
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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
[1]
Colonel Bernard Ouellette seeks judicial review
of the February 28, 2014 decision by the Chief of the Defence Staff [CDS]
acting as the Initial Authority and denying his grievance.
[2]
For the reasons exposed below, the Court finds
that the CDS erred in deciding as an Initial Authority and will thus grant
Colonel Ouellette’s application.
I.
Background
A.
Command in Haiti, brief overview
[3]
Colonel Ouellette is a senior officer with over
30 years of service in the Canadian Forces. He was deployed to Haiti on July
28, 2009, as Commander of the Canadian Task Force Port-au-Prince [the Task
Force], which reported to the Commander of Canadian Expeditionary Force Command
[CEFCOM] headquarters in Ottawa. As such, his role was to supervise the
administration, discipline and operational employment of the Canadian Forces
members, whose number varied between 4 and 9.
[4]
Colonel Ouellette was also the Senior Canadian
Military Representative involved with supporting the United Nations
Stabilization Mission in Haiti [MINUSTAH] as its Chief of Staff [COS]. He was
not in command of the UN force, but rather coordinated the work of about 8,432
persons, and was assisted by a staff of 150.
[5]
His deployment was set to end on or about July
21, 2010.
[6]
On January 12, 2010, a massive earthquake struck
Haiti, leaving about 300,000 dead and resulting in a chaotic environment,
causing difficulties and a considerable amount of work for the Task Force.
Colonel Ouellette lost all his MINUSTAH staff, save for his administrative
assistant, Ms. Vlora Merlaku.
[7]
At the end of January 2010, Colonel Ouellette
housed Ms. Merlaku in his room at Canada House 1, the secure accommodation
rented by the Canadian Forces staff, as her apartment was unsafe. Certain Task
Force members raised concerns about an adverse personal relationship between
Colonel Ouellette and Ms. Merlaku, and complained about its impact on their
commander’s availability, on their morale and cohesiveness. On April 10, 2010,
Ms. Merlaku moved out of Canada House 1 and relocated to another place. The
existence of an adverse personal relationship was denied by both parties, and
the investigation could not conclude to such a relationship or to misconduct.
B.
Removal of Command
[8]
On June 28, 2010, the Commander CEFCOM removed
Colonel Ouellette from both his positions in Haiti and repatriated him to
Canada. The decision was based on the Commander CEFCOM’s conclusion that,
although there was still uncertainty regarding the adverse personal
relationship, the majority of the Task Force perceived that it was
occurring, and Colonel Ouellette had not done anything to resolve this
perception which negatively impacted the morale and the cohesiveness of the
Task Force members. This failure resulted in the chain of command’s loss of
confidence in Colonel Ouellette’s ability to effectively exercise the functions
of command.
[9]
The Removal Notice was signed by Commander
CEFCOM. However, it seems clear that the possible course of actions had been
discussed with the CDS who allegedly directed the Vice Chief of Defence Staff
to remove Colonel Ouellette, or who, at the very least, endorsed the decision
to remove Colonel Ouellette. In any case, it seems clear that the CDS was
involved in the decision.
C.
Grievance and grievance process
[10]
On November 4, 2010, Colonel Ouellette submitted
a grievance through his chain of command concerning his removal from command,
pursuant to subsection 29(1) of the National Defence Act, RSC 1985, c
N-5 [the Act].
[11]
Colonel Ouellette submitted that the decision to
remove him from command was premature and based on unfounded allegations. He
submitted that this decision caused him great prejudice and that he was
unreasonably treated by the Commander CEFCOM. He asked that: (1) his reputation
be restored by the Canadian Forces; (2) his work and realizations in Haiti, from
July 28, 2009 to June 28, 2010, be acknowledged by the Canadian Forces,
specifically during and after the January 12, 2010 earthquake; and (3) due
consideration be given to his family which went through tough times.
[12]
On December 13, 2010, Colonel Ouellette’s
grievance was forwarded to the Director General, Canadian Forces Grievance
Authority [CFGA]. In fact, the administration officer of the Canadian Forces
Support Unit [CFSU] in Ottawa determined that the Commander of the CFSU could
not act as Initial Authority in the matter, according to section 7.06 of the Queen’s
Regulations and Orders for the Canadian Forces [QR&O], and sent the
matter to the CFGA to determine who could act as the Initial Authority.
[13]
On December 21, 2010, the Director General CFGA
sent two letters to Colonel Ouellette. One letter confirmed that his grievance
had been received at the Final Authority level, and the other indicated that
the grievance had been discretionarily referred to the Canadian Forces
Grievance Board ([the Committee], as it was then known) as per section 7.12 of
the QR&O. On January 11, 2011, the Committee informed Colonel Ouellette
that it had received his grievance, that it would review it and provide its
Findings and Recommendations to him and to the Final Authority who would issue
its decision.
[14]
Colonel Ouellette objected to the process
depriving him of the Initial Authority stage of the grievance process. However,
the Committee explained that the CDS would be the only one with the authority
to review the decision being grieved, and that no Initial Authority decision
could be rendered at this time.
[15]
On March 24, 2011, in June 2011, and in January
2013, Colonel Ouellette’s grievance was augmented.
[16]
On December 29, 2011, the Committee issued its
document titled Findings and Recommendations in order to assist the CDS in his
determination as Final Authority, and recommended the grievance be upheld.
[17]
The Committee declared being shocked by the
manner in which Colonel Ouellette had been treated, after finding, namely, that
there was insufficient evidence to conclude that his conduct could in any way
have justified his superior’s loss of confidence, his removal from command, and
his repatriation to Canada.
[18]
The Committee also concluded, among other
things, that the grievance should have been referred on a mandatory basis
rather than on a discretionary basis as it concerned a decision by the CDS,
according to subsection 29.12(1) of the Act and subsection 7.12(2) of the
QR&O, and that the CDS himself therefore had to decide as Final Authority.
[19]
The letters addressed to Colonel Ouellette from
November 2010 to August 2013 all identify the CDS as the Final Authority.
[20]
However, on September 4, 2013, the Director
General CFGA informed Colonel Ouellette that his grievance had been reviewed by
one of CFGA’s analysts prior to the CDS rendering a decision as the Initial
Authority.
[21]
Colonel Ouellette reacted against the use of
this analysis by the CDS in rendering his decision as Final Authority.
D.
Impugned decision
[22]
On February 28, 2014, the CDS dismissed Colonel
Ouellette’s grievance with reasons, acting as the Initial Authority in
the grievance process. The CDS stated he disagreed with the Committee, and that
he was required to act as the Initial Authority, having no discretion in this
regard as per subsection 7.06(2) of the QR&O. He also indicated that
subsections 7.07(2) and 7.07(3) of the QR&O contemplated having the CDS
acting as Initial Authority and that the circumstances did not allow for the
grievor to submit his grievance to the Final Authority at this stage.
[23]
The CDS indicated, at page 9 of his decision,
that he was unable to make a fair assessment as to whether or not Colonel
Ouellette had engaged in an inappropriate relationship, but believed it was
unnecessary to do so in order to determine if his removal was the appropriate
response. The perception of the inappropriate relationship and the Colonel’s
inaction to dispel this perception caused the loss of confidence that justified
the removal.
[24]
Colonel Ouellette was invited to ask for
reconsideration to the Final Authority in the grievance process, who in this
case, is also the CDS.
[25]
On March 18, 2014, Colonel Ouellette applied for
judicial review of the CDS February 28, 2014 decision before this Court.
II.
Position of the parties
A.
Colonel Ouellette
[26]
Colonel Ouellette submits the CDS erred on six
grounds in that it (1) acted without jurisdiction, (2) failed to observe a
principle of natural justice as he, Colonel Ouellette had the legitimate
expectation that he was participating in a procedure leading to a Final
Authority decision by the CDS, (3) breached rules of natural justice and
procedural fairness on five other counts, (4) based its decision on four
erroneous findings of facts, (5) caused him great prejudice, and (6) failed to
consider the facts of the case.
[27]
Colonel Ouellette apprehends that the CDS
changed his role from that of the Final Authority to that of the Initial
Authority in order to eliminate the impact of the Committee’s Findings and
Recommendations.
(1)
Lack of jurisdiction
[28]
Colonel Ouellette submits that the CDS did not
have jurisdiction to act as the Initial Authority since the matter had been
referred to the Committee under subsection 7.12(2) of the QR&O. This
provision is found in Section 3 of Chapter 7 of the QR&O, which bears the
title Final Grievance Authority, thus making the referral that of a person
acting as the Final Authority.
[29]
Furthermore, Colonel Ouellette submits that the
CDS also exceeded his jurisdiction by deciding on an issue that was not the
subject of his grievance.
(2)
Legitimate expectation
[30]
In the official correspondence from the
Department of National Defence from November 2010 to August 2013, Colonel
Ouellette points to no less than 11 documents, identifying the CDS as the Final
Authority. He thus had the legitimate expectation that he was participating in
a procedure leading to a Final Authority decision by the CDS, and would have
otherwise challenged this process had he known or believed his grievance was
considered by the CDS at the Initial Authority stage.
(3)
Breaches in procedural fairness
[31]
Colonel Ouellette submits that his right to
procedural fairness was not respected prior to his removal from command as (1)
he had no opportunity to respond to allegations, (2) he was unaware of intent
to be removed from command, (3) the CDS based his conclusions on an issue that
was not the focus of the grievance, (4) the CDS admitted to procedural
failures, and (5) a de novo review is not authorized at law.
(4)
Erroneous findings of facts
[32]
Colonel Ouellette submits that the CDS erred on
four accounts by (1) concluding that the morale of the troops was significantly
affected by the actions of the applicant, as that statement has no logical
basis, (2) making significant, material and wrongful timeline errors, (3)
making a wrongful interpretation of evidence regarding the transmission of
emails by Task Force members, and (4) concluding that the perception of an
inappropriate relationship constituted a violation of pertinent orders.
(5)
Caused great prejudice
[33]
Colonel Ouellette contends that it would cause
him great prejudice if the CDS were to be accepted as an Initial Authority
determination as the CDS would subsequently be reviewing his own decision, and
as the CDS would then be exempted to give due consideration to the Committee’s
Findings and Recommendations.
[34]
Indeed, when a matter is referred to the
Committee, the CDS must adopt the reasoning of the Committee or provide reasons
for any departure. Moreover, it would be prejudicial for Colonel Ouellette to
endure another delay before the final determination of his grievance, as he
would face the certainty of being deprived of the benefit of some of the
substantial career recommendations advanced by the Committee, as he is planned
to retire before the final determination is rendered.
(6)
Failure to consider the facts of this case
[35]
Colonel Ouellette submits that the CDS failed to
appreciate the extraordinary and dramatic difficulties he found himself in
after the earthquake, particularly after having lost almost all of his United
Nations staff. Colonel Ouellette accepted that Ms. Merlaku sleep at his
location since there were security concerns in the area where she was
temporarily lodging. On March 3, 2010, the Old Esmeralda cruise ship arrived in
Port-au-Prince’s temporary harbour and offered accommodations to all United
Nations staff who could apply for accommodation there. However, Ms. Merlaku
stayed at Colonel Ouellette’s location until April 10, 2010, as this was
justified by resource, logistic, operational, leadership and cost factors.
[36]
Finally, the Task Force members, who complained
about Colonel Ouellette after being on theatre for approximatively a week, did
not direct their complaint to him directly or to their immediate superior in
Haiti as would be required under the normal procedure, but rather to the CEFCOM
Public Affairs Office in Ottawa, thus indicating that their motives were
neither sincere nor genuine.
B.
The intervener, the Military Grievances External
Review Committee
[37]
The Committee (as it is now known) has been
permitted to make submissions on two points; (1) its role in the grievance
process and its jurisdiction to review cases and issue Findings and
Recommendations to the CDS in his capacity as Initial Authority, in accordance
with the Act and the QR&O, and (2) the impact on future and potentially also
past decisions taken within the Canadian Forces grievance process as a result
of the departure from previous practice which occurred with the CDS’s decision
to act as Initial Authority in a case already referred to and reviewed by the
Committee.
(1)
Findings and Recommendations to the CDS as
Initial Authority
[38]
The Committee submits that under the statutory
scheme that has been in place since 2000, it does not, and never did have
jurisdiction to review grievances for the CDS acting as Initial Authority.
Hence, the CDS cannot act as Initial Authority after the issuance of its
Findings and Recommendations.
[39]
In its submissions, the Committee reviews the
Canadian Forces’ grievance process, its own role and powers and the particular
facts in this case.
[40]
The Committee first points out that this Court
has taken note of Parliament’s intention to “expedite
grievance resolution by eliminating decision making layers and establishing an
independent external CFGB [Committee] to provide findings and recommendations
to the CDS” (Gabriel v Canada (Attorney General), 2008 FC 1254 at
para 35 [Gabriel]). When Parliament streamlined the process by
eliminating one level of decision making, it did not add an external
independent review by the Committee with the intent that it would multiply its
interventions, at various stages, which would result in erasing the efficiency
improvements adopted in 2000. The intent was rather to provide the CDS, as
Final Authority, with an external and expert view on the matter before he would
render the final decision (Rifai v Canada (Attorney General), 2014 FC
529 paras 71-74).
[41]
Furthermore, the two step grievance process has
been described by the Court on various occasions, whereby the Court indicated
that the Committee would make recommendations to the CDS, who is the Final
Authority (MacLellan v Canada (Attorney General), 2014 NSSC 280 at para
38 and Riach v Canada (Attorney General), 2011 FC 1230 at paras 13-15).
[42]
The Committee points out that it is not disputed
that the CDS or his/her delegate must act as Final Authority or that the CDS
could in some instances act as Initial Authority.
[43]
However, the Committee disagrees with the
respondent who asserts that the statutory scheme imposes an obligation upon the
CDS to act as Initial Authority when no other officer can. The Committee
submits that sections 7.06 and 7.07 of the QR&O, rather direct who must be
the Initial Authority and the time limit it shall respect. Hence, according to
this position, a grievance may, in some cases, go directly to the Final Authority
without an Initial Authority decision.
[44]
The Committee also submits that, although the
statute does not specify that referrals to the Committee are made by the Final
Authority, this is clear from a reading of the provisions of the Act in their
entire context. In fact, section 29.11 of the Act states that the CDS is the
Final Authority and the following provision, subsection 29.12(1), states that
the CDS shall or may refer, depending on the type of grievances.
[45]
Moreover, the Defence Administrative Orders and
Directives [DAOD], the Canadian Forces internal directives, provide for the
duties attached to the Initial Authority process and to the Final Authority
process. DAOD 2017-1 specifically provides that it is the Final Authority who
determines if the grievance is of a type that is to be forwarded to the
Committee for Findings and Recommendations.
[46]
The Committee agrees that the CDS could review
its own Initial Authority decision. However, if the CDS decides to act as the
Initial Authority, the Act requires him or her to do so before the file is
referred to the Committee. In fact, subsection 29.12(2) of the Act imposes
requirements to refer certain materials, including the decision made by each
authority in respect of the grievance. Hence, the CDS would have to refer his
or her own Initial Authority decision to the Committee.
[47]
Moreover, the Act specifies that the CDS must
provide reasons for discarding the Committee’s recommendations (subsection
29.13(2) of the Act). Hence, these reasons are key in the process at the final
level, given the finality of the CDS’s decision and that the next available
recourse for the Canadian Forces members is a judicial review application
before this Court.
(2)
Impact on present and potentially on past
decisions
[48]
Finally, the Committee submits that prior to
this question arising, the report of Findings and Recommendations was provided
to the CDS or his or her delegate at the final stage of the grievance process.
Hence, if this Court finds that the CDS must indeed act as Initial Authority in
certain files, and can do so after a Committee review, there will be an issue
as to whether past files could be reopened. In fact, in those files where the
CDS would have been the appropriate Initial Authority, the final decision which
had followed the Committee’s Findings and Recommendations and the CDS’s
decision might potentially be no longer final.
C.
The Attorney General of Canada
[49]
The respondent submits that the application
should be dismissed, first as it is premature, and second, in the alternative,
as the decision of the CDS is reasonable.
(1)
The application is premature
[50]
The respondent submits that Colonel Ouellette’s
application is premature as only Final Authority decisions are subject to
review by this Court, and as the CDS properly acted as the Initial Authority.
[51]
On the first point, the respondent argues that
Colonel Ouellette is challenging an Initial Authority decision, which is the
first step in the two level military grievance process, and that he has thus
not exhausted the available remedies, and cannot therefore ask the Court to
intervene.
[52]
The respondent further submits that Colonel
Ouellette’s assertion that it would be improper for the CDS to act as the
Initial Authority and then as the Final Authority when reviewing his own
earlier decision is without merit. In fact, the legislative scheme contemplates
and permits this situation (Zimmerman v Canada (Attorney General), 2011
FCA 43 at para 4).
[53]
The respondent first describes the Canadian
Forces’ two level grievance process, and refers the Court in particular to
subsections 7.07(2) and (3) of the QR&O, as they were then, which
explicitly contemplate that the CDS may act as an Initial Authority in certain
circumstances. Furthermore, the respondent contends that the CDS has the
discretionary authority to refer grievances to the Committee for consideration,
and that, as per subsection 29.12 (1) of the Act, this discretionary power is
not expressly or implicitly limited to the level at which he is acting.
[54]
On the second point, the respondent contends
that the CDS finding that he was obligated to act as the Initial Authority is
adequate.
[55]
In fact, since the decision to remove Colonel
Ouellette from command was signed and initiated by the Commander CEFCOM, the
CDS was the next superior officer in the chain of command, and was thus
obligated to act as the Initial Authority, to consider and determine the
grievance. Furthermore, under the QR&O, as they then read, only two
circumstances allowed the grievance to proceed directly to the Final Authority,
when requested by the grievor: (1) when an Initial Authority, other than the
CDS has failed to determine a grievance within 60 days of receiving it (section
7.07 of the QR&O) and (2) where a grievor is not satisfied with the redress
granted (section 7.10 of the QR&O), and neither applied in this case.
[56]
Moreover, the respondent submits that Colonel
Ouellette had objected to his grievance proceeding directly to the Initial
Authority on the basis that he was entitled to the benefit of an Initial
Authority decision. It was only after Colonel Ouellette made a complaint
regarding the lack of an Initial Authority decision, and that the Committee
commented on this issue, that the CDS advised him that he would be acting as
the Initial Authority. As Colonel Ouellette was given the opportunity to make
submissions on this issue, his claim of a breach of legitimate expectation is
without merit. In any event, the doctrine of legitimate expectation only
applies to representations which are procedural in nature and cannot override
statutory schemes. In the present case, the CDS was under a statutory
obligation to act as an Initial Authority.
[57]
The respondent submits there is no statutory
indication that the CDS could not refer a grievance to the Committee while
acting as the Initial Authority. If Parliament intended to limit referral to
the Committee only at the Final Authority level, it would have done so
explicitly. In any event, if the CDS did not have the authority to refer the
matter to the Committee, this alleged error does not impact his or her
obligation to act as the Initial Authority. The only impact would be that the
Committee was without jurisdiction to review the grievance and its Findings and
Recommendations need not be considered. There is no evidence that the decision
would be different absent the Findings and Recommendations, which were for the
most part not accepted by the CDS.
(2)
The decision of the CDS is reasonable
[58]
As a preliminary matter, the respondent submits
that Colonel Ouellette’s record includes evidence not before the decision
maker. In fact, Colonel Ouellette relies upon an affidavit containing documents
and information which were not before the CDS. His Memorandum of Fact and Law
also includes documents and information not in evidence before this Court and
all this new information should therefore be struck and not considered by this
Court.
[59]
The respondent submits that the standard of
review is that of reasonableness.
[60]
Alternatively, the respondent submits (1) that
the decision to remove Colonel Ouellette from command was an appropriate
response, (2) that the CDS findings are supported by the evidence, (3) that the
grievance process did cure earlier breach of procedural fairness, (4) that the
CDS properly considered the Committee’s Findings and Recommendations and provided
reasons for rejecting its conclusions and (5) that the CDS reasonably rejected
the objections to the delay in processing the grievance.
III.
Issues
[61]
The issue as raised by the respondent is
determinative in this case. If the Court concludes that the CDS had to act as
the Initial Authority, and could in fact act as such even after having deferred
the grievance to the Committee, then the application is indeed premature under
section 29.15 of the Act. On the other hand, if the Court concludes that the
CDS had no obligation to act as an Initial Authority, and in fact could not act
as such given the facts, then it must return the case for adjudication, by the
CDS, as Final Authority. In any event, it appears unnecessary for the Court to
examine, on its merits, if the decision is reasonable or not.
IV.
Standard of Review
[62]
This issue is related to the interpretation of
the CDS’s “own statute or statutes closely connected to
its function, with which it will have particular familiarity”, with
regards to the present facts, and the issue, of whether the CDS acted as the
Initial Authority or as the Final Authority, is therefore subject to deference
in judicial review and will be reviewed under the reasonableness standard (Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association),
2011 SCC 61 at para 34; Dunsmuir v New Brunswick, 2008 SCC 9 at para 54;
Moodie v Canada (Attorney General), 2015 FCA 87 at paras 51, 52).
V.
Analysis
[63]
For the reasons set out below, and given the
particular facts of this case, I find that the CDS had to decide as the Final
Authority, as the matter had been referred to the Committee even though no
Initial Authority decision had been rendered. I will therefore allow the
application for judicial review.
[64]
In making this determination, the Court only
considered the information that was available to the CDS at the time of his
decision and which was, accordingly, included in the Certified Tribunal Record.
No circumstances warrant departing from the general principle that judicial
reviews are conducted on the basis of the record before the decision maker (Callaghan
v Canada (Chief Electoral Officer), 2011 FCA 74 at para 82).
[65]
The Court wishes to stress again the particular
fact scenario of the present case as the CDS was involved in the decision to remove
Colonel Ouellette from command, would have been the Initial Authority, and is
the Final Authority. The CDS was thus part of the decision to remove Colonel
Ouellette from command, and is the decision maker, at both levels, in reviewing
this very decision. An independent review by the Committee thus understandably
appears even more necessary.
[66]
The military grievance process is governed by
the Act, the QR&O and the Administrative Orders and Directives. It is well
documented and the Court will thus only briefly highlight its main components.
[67]
The right to grieve is stated at section 29 of
the Act, the text of which is reproduced in annex.
[68]
The grievance process consists of two levels.
Section 29.1 of the Act provides that the Initial Authority and subsequent
authorities are the ones designated in regulations made by the Governor in
Council, and section 29.11 states that the CDS is the Final Authority in the
process.
[69]
The regulations, found at Chapter 7 of the
QR&O, govern the conditions under which the grievances can be submitted.
The military grievance process begins when the grievor submits a grievance to
his Commanding Officer, who acts as the Initial Authority if he or she can
grant the redress sought, or forwards it to the proper responsible officer if he
or she cannot. A grievor who is dissatisfied with the Initial Authority’s
decision may ask for revision by the Final Authority, who is the CDS, or in
some cases, his or her delegate.
[70]
The referral to the Committee is provided for at
section 29.12 of the Act, thus immediately following the designation of the CDS
as the Final Authority, and must be made by the CDS. Depending on
circumstances, the referral is either mandatory or discretionary. Although
section 29.12 of the Act is explicit that the referral must be executed by the
CDS, it does not explicitly limit it to when the CDS is acting as Final
Authority, and the respondent thus contends that the CDS can also refer a
grievance to the Committee when acting as Initial Authority.
[71]
The Court disagrees with the respondent’s
position. The structure and objectives of the relevant provisions of the Act
and the QR&O lead to the conclusion that referral to the Committee must be
made by the CDS only when acting as Final Authority. The respondent’s position
that a referral to the Committee could be made at both the Initial Authority
and the Final Authority stages appears inconsistent with the objectives pursued
by the amendments to the Act and the QR&O, i.e. the expedition of the
grievance resolution process (Gabriel at para 35).
[72]
This interpretation is also consistent with the
Grievance Process Table contained in the DAOD 2017-1 which contemplates that
the Final Authority must determine whether a grievance will be forwarded to the
Committee and that the Final Authority will determine the grievance upon
receipt of the Committee’s Findings and Recommendations.
[73]
Furthermore, the case law from this Court also
leads to the conclusion that the referral to the Committee is made by the CDS
when acting as the Final Authority, not as Initial Authority. In considering
whether the CDS had provided sufficient reasons for rejecting the Findings and
Recommendations of the Committee, Justice Mandamin stated that the Committee’s
Findings and Recommendations constitute the “penultimate
review before the CDS’s own review of the grievance” (Smith v Canada
(Chief of the Defence Staff), 2010 FC 321 at para 26). Moreover, Justice S.
Noël noted that the decisions of the Committee are sent to the CDS for final
determination (Bernath v Canada, 2007 FC 104 at para 87).
[74]
In this case, given that the CDS was involved at
the decision-making level and possibly at both levels of the review process,
the Court is satisfied an Initial Authority decision was not mandatory and that
it was unreasonable to conclude otherwise.
[75]
Furthermore, Colonel Ouellette pointed out that
all the official correspondence he received from the Department of National
Defence from November 2010 to August 2013 concerning his grievance identifies
the CDS as the Final Authority. I am satisfied that Colonel Ouellette had a
legitimate expectation that the CDS would act accordingly. The correspondence
amounts to clear, unambiguous and unqualified representation about the
administrative process that was to be followed (Canada (Attorney General) v
Mavi, [2011] 2 S.C.R. 504 at para 68).
[76]
For the aforementioned reasons, this application
for judicial review will be allowed and the matter referred back to CDS for a
Final Authority decision, using the Findings and Recommendations issued by the
Committee in December 2011.
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