Docket:
T-1684-12
Citation: 2013 FC 1202
Ottawa, Ontario, November 29,
2013
PRESENT: The Honourable Madam Justice Heneghan
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BETWEEN:
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LEO GERARD GILLIS
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Applicant
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and
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ATTORNEY GENERAL OF CANADA AND
THE CHIEF OF THE DEFENCE STAFF OF THE CANADIAN ARMED FORCES
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Mr. Leo Gerard Gillis (the “Applicant”) seeks
judicial review of the August 9, 2012 decision of the Chief of the Defence
Staff (the “CDS”) of the Canadian Armed Forces, denying part of a grievance
concerning the ranking of his 2004/2005 Performance Evaluation Report (“PER”),
the consideration of his candidacy by a 2006 Promotion Selection Board, and the
convening of a supplementary board to consider his substantive promotion to
Brigadier-General. The Applicant succeeded in his grievance with respect to the
issue of acting pay.
[2]
Pursuant to Rule 303(2) of the Federal Courts
Rules, SOR/98-106 (the “Rules”), the Attorney General of Canada is named as a Respondent. Collectively, the Attorney General of Canada and the CDS
are referred to herein as the “Respondents”.
[3]
In this application for judicial review the
Applicant seeks the following relief:
An order quashing or
setting aside the Chief of Defence Staff’s decision on the requirement to
convene a Supplementary Board to consider all the evidence and information
before him.
An order quashing or
setting aside the Chief of Defence Staff’s decision with respect to
preconceived bias of the applicant by his immediate Supervisor in the 04/05 PER
Canadian Defence Academy Ranking Board.
II. THE
EVIDENCE
[4]
The evidence in this matter consists of the
affidavit of the Applicant and two affidavits of Major Marjorie Reid filed on
behalf of the Respondents.
[5]
In his affidavit, dated November 28, 2012, the
Applicant sets out the basis of his grievance.
[6]
Major Reid is an Analyst, Grievance
Administration, with the Canadian Forces. Major Reid deposed to two affidavits
on January 11, 2013. In the affidavit found in Volume I of the Respondents’
Record, she stated that she gathered all the non-privileged material that was
before the CDS as the basis of his decision dated August 9, 2012. Attached as
Exhibit A to this affidavit is a copy of that material, redacted to remove all
third party personal information, pursuant to the Order of Prothonotary Morneau
made on November 13, 2012. This exhibit is in effect, the Tribunal Record,
pursuant to Rule 318 of the Rules.
[7]
In her second affidavit dated January 11, 2013,
Major Reid described her work as a Grievance Analyst. She addressed the process
by which a grievance is pursued pursuant to the National Defence Act,
R.S.C. 1985, c. N-5 (the “Act”), in conjunction with the Queen’s Regulations
and Orders for the Canadian Forces (“QR&Os”). Following
submission of the Applicant’s grievance to the CDS, as the “Final Authority”,
the grievance was referred to the Canadian Forces Grievance Board (the
“Grievance Board”) whose role is to review the evidence and to provide
“Findings and Recommendations” (the “F&Rs”) to the CDS. She outlined the
process that was followed in respect of the grievance submitted by the
Applicant on February 28, 2009.
[8]
The facts described below are taken from the
affidavits filed on behalf of the parties and from the Certified Tribunal
Record.
III. BACKGROUND
[9]
The Applicant served in the Canadian Forces from
June 1973 to March 2010. He was promoted to the rank of Colonel in 1997. In
2005, he served as Chief of Staff at the Canadian Forces College (the
“College”). From February 28, 2005 to August 25, 2005, he was the Acting
Commandant of the College.
[10]
Around May or June 2005, the Applicant received
his PER for 2004/2005, signed by the then Commandant of the College,
Brigadier-General Gosselin, and Vice Admiral Jarvis. The Applicant received a
generally positive assessment, but he was not ranked relative to his peers and
his file did not go forward for promotion. The Applicant was also assessed
under a Performance Management Agreement. This too was signed by the Commandant
of the College.
[11]
From April 30, 2006 to June 25, 2006, the
Applicant was again appointed as Acting Commandant of the College. He was
appointed Commandant of the College from June 26, 2006 to July 16, 2007. At the
time the Applicant held the rank of Colonel. All other Commandants of the
College have held the higher rank of Brigadier-General.
[12]
On August 16, 2007, the Applicant filed a
grievance with the Director General, Canadian Forces Grievance Authority
(“Director General”), pursuant to section 29(1) of the Act. This grievance
related to the CDS’ decision not to recommend that the Applicant be promoted to
Acting While So Employed (“AWSE”) Brigadier-General for the periods during
which he had served as Commandant of the College.
[13]
On July 16, 2008, the Grievance Board issued the
F&Rs recommending that the grievance be upheld to the extent possible by
the CDS, such that the Applicant be retroactively promoted to AWSE
Brigadier-General for June 26, 2006, to July 16, 2007. On November 13, 2008,
the CDS followed this recommendation and the retroactive promotion to AWSE
Brigadier-General was confirmed on January 29, 2009. The Applicant did not
judicially review the decision upon his first grievance.
[14]
The Applicant filed a second grievance on
February 28, 2009, raising his lack of ranking on his 2004/2005 PER, concerns
about the 2006 Promotion Selection Board, allegations of bias, and the issue of
acting pay. The grievance proceeded to the Grievance Board and on January 8,
2010, the Applicant was informed that an analyst had been assigned to his file.
He was given the opportunity to provide comments on his grievance file and he
did so.
[15]
The process for prosecuting a grievance is set
out in section 29 of the Act and chapter 7 of the QR&Os. The process
includes assignment of a Grievance Analyst who is mandated to gather
information. The Applicant was given the opportunity to comment on the
information that was collected and he availed of that opportunity throughout
the process.
[16]
The Grievance Board made its F&Rs on July 7,
2010. It recommended that the grievance be partially upheld, in which case the
CDS would need to request the approval of the Minister of National Defence (the
“Minister”) to promote the Applicant to AWSE Brigadier-General for the period of
April 1, 2005 to August 18, 2005. The Grievance Board recommended that the CDS
deny those aspects of the grievance relating to the 2004/2005 PER and the 2006
Promotion Selection Board, because they had been submitted beyond the six month
period set out in section 7.02 of the QR&Os. The Applicant filed his reply submissions
to this report in August 2010.
[17]
From February to July 2011, the Grievance Analyst
solicited comments from persons involved with the Applicant during the time
period relevant to the 2009 grievance, that is Major General Gosselin, formerly
a Brigadier-General; Colonel Overton and Rear Admiral (retired) Pile.
[18]
In his comments relative to the 2004/2005 PER,
Major General Gosselin stated that “notwithstanding the wording on the PER”,
the Applicant lacked key attributes such as strategic vision, institutional
awareness, inter-personal skills, and noted that he sometimes made fundamental
errors of judgment.
[19]
On the 2006 Promotion Selection Board issue,
Colonel Overton expressed the view that the Applicant was considered less
competitive than his peers at this time. Rear Admiral (retired) Pile shared
this opinion.
[20]
Major General (retired) Hussey’s comments and
observations were requested by the Applicant following his review of the
Grievance Synopsis dated July 12, 2011, forwarded by the Director General. The
Applicant had seen reference to Major General Gosselin’s comments and he
questioned why Major General (retired) Hussey had not been contacted.
[21]
Following receipt of information from Major
General (retired) Hussey in November 2011, the Applicant made further
submissions in December 2011. On May 25, 2012, the Director General recommended
that the grievance be partially granted and that the Applicant be financially
compensated by retroactive promotion to AWSE Brigadier-General.
IV. THE DECISION UNDER REVIEW
[22]
By letter dated August 9, 2012, the CDS
partially upheld the grievance and recommended the Applicant’s retroactive
promotion to AWSE Brigadier-General from February 28, 2005 to August 18, 2005,
and from April 30, 2006 to June 15, 2006.
[23]
Concerning the 2004/2005 PER, the CDS found that
the PER was an accurate reflection of the Applicant’s potential and actual performance,
and that there was no evidence that this PER was inappropriate or departed from
the Canadian Forces Personnel Appraisal System (“CFPAS”) ranking policy. The
CDS noted that the ranking of senior officers is not an exact science, and that
the PER had been reviewed at two levels and signed by the Assistant Deputy
Minister (Human Resources – Military) (“ADM (HR-Mil)”).
[24]
Concerning the 2006 Promotion Selection Board,
the CDS found that the Applicant had ranked in the top 30% of ADM (HR-Mil)
officers for 2005/2006 and 2006/2007. His file had been submitted for
consideration, but he was deemed less competitive than others.
[25]
As for convening a supplementary board, the CDS
stated that he had dealt with that issue in his decision of November 13, 2008,
the date of the decision in respect of the Applicant’s first grievance. He
concluded that since no error had been made in the Promotion Selection Board
process or with respect to jurisdiction, and no new information had been
presented, he was functus officio.
[26]
The CDS also concluded that the information
supplied did not justify the allegations of bias made by the Applicant,
relative to the 2004/2005 PER.
V. SUBMISSIONS
A. Applicant’s
Submissions
(1) 2004/2005
PER
[27]
The Applicant argues that his lack of ranking
did not correspond with his responsibilities and other performance assessments.
He submits that it was reasonable to assume that he should have earned the top
PER since he had administered the college in the absence of the Commandant. He
argues that in light of achieving the highest rated “Performance Management
Agreement” for the relevant period, that the failure to rank him shows a major
irregularity in his performance assessment. The Applicant says that he raised
this issue in his grievance but there is no indication that the CDS considered
it in making his decision.
[28]
The Applicant also submits that remarks from his
supervisor show that he did not receive an unbiased assessment. He refers to
the supervisor’s comments that he, the Applicant, was “considered not to have
sufficient potential, notwithstanding the wording on the PER”. The Applicant submits
that he had been inducted into the Order of Military Merit and had received
seven consecutive “immediate” PERs before the one in issue and three
subsequently.
[29]
The Grievance Board F&Rs stated that records
concerning the discussions of the 2005 ranking board could not be found. These
discussions, according to the Applicant, related to the ranking of candidates
for promotion based on the 2004/2005 PERs. The Applicant says that according to
the File Classification system (DSCDS) Records Management, the disposal
schedule for Merit Boards and Promotions is five years. He questions the
premature disposal of the notes.
[30]
The Applicant also submits that during his
tenure as Commandant of the College, he received a document that was intended
for his supervisor. This document recorded that the identity of officers who
would be “pushed” by the Air Force tended to be determined before completion of
the PER assessment period. The Applicant argues that this process took place
outside the normal chain of command and undermined the purpose of the CFPAS policy.
(2) 2006
Promotion Selection Board
[31]
Although the Applicant did not have access to
the Promotion Selection Board’s proceedings, he submits that procedural
irregularities cast doubt on whether the process followed was consistent with
the CFPAS policy.
[32]
The Applicant submits that there is evidence
that his file was deselected by the Chief of Military Personnel, as stated by the
CDS in his decision of August 9, 2012. He argues that the statements by the
Chief of Military Personnel about responding to and advising the Applicant
about the Board’s deliberations are inaccurate because those discussions did
not occur and the Chief of Military Personnel did not pursue the Applicant’s
AWSE promotion as he had alleged.
(3) Supplementary
Board
[33]
The Applicant submits that the CDS erred by
refusing to convene a supplementary board. While the F&Rs note that the
Applicant’s time as Acting Commandant was considered for the purpose of a
substantive promotion, he argues that his status as an AWSE Brigadier-General was
not taken into account, that he did not receive recognition as AWSE Brigadier-General
until the disposition of his 2008 grievance and consequently, he had been
deprived of an opportunity to be considered by a selection board.
B. Respondents’
Submissions
[34]
In broad terms, the Respondents argue that the
Applicant is seeking retroactive substantive promotion to Brigadier-General, by
means of the grievance process and subsequent application for judicial review.
They submit that the decision of the CDS was reasonable and made in a
procedurally fair manner, and that this application should be dismissed.
(1) 2004/2005
PER
[35]
The Respondents submit that the CDS reasonably
determined that the Applicant had not substantiated his claim that his lack of
ranking was inappropriate. Two levels of review agreed to the Applicant’s
evaluation. The ADM (HR-Mil) would have signed all ranked PERs in his
organization and would have been aware that the Applicant was not ranked. The
Respondents submit that the Applicant has failed to make out his claim of bias
with respect to the ranking of his 2004/2005 PER.
(2) 2006
Promotion Selection Board
[36]
The Respondents argue that the CDS reasonably
found that the Applicant had ranked in the top 30% of ADM (HR-Mil) officers,
rather than in the top 10%. The CDS also found that part of the process
included a review for general competitiveness on an individual basis and the
Applicant was found to be less competitive than other officers that year.
(3) Supplementary
Board
[37]
The Respondents submit that the CDS
appropriately denied the Applicant’s request to convene a supplementary board. They
argue that the CDS reasonably concluded that there was no merit to the
allegations regarding the 2004/2005 PER and the 2006 Promotion Selection Board.
The fact that the CDS allowed the grievance relating to acting pay does not
mean that the Applicant is, or was, in line for a substantive promotion.
VI. DISCUSSION
AND DISPOSITION
[38]
The Applicant challenges the decision of the CDS
on three grounds, that is his lack of ranking in the 2004/2005 PER, the fact
that his file was not presented to the 2006 Promotion Selection Board and the
failure of the CDS to convene a supplementary board. The Applicant raises an
issue of bias in connection with the 2004/2005 PER.
[39]
The decision of the CDS in this case relates to
the Applicant’s grievance about not being promoted. According to the record and
the submissions of the Respondents, promotion in the Canadian Forces involves
the application of the Act, policies and the QR&Os. The broad issue about
advancement, including the question of ranking, in my view, is one of mixed law
and fact. According to the decision in Dunsmuir v. New Brunswick, [2008]
1 S.C.R. 190 at paragraph 53, such an issue is reviewable on the standard of reasonableness.
[40]
The decision not to convene a supplementary
board was a discretionary decision. According to the decision in Dunsmuir,
at paragraph 53, such a decision is also reviewable on the standard of
reasonableness.
[41]
The issue of bias is an aspect of procedural
fairness and as such, is reviewable on the standard of correctness; see the
decision in Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392
at paragraphs 52-55. The finding by the CDS that no bias had been shown is
reviewable on the standard of reasonableness; see the decision in Riach v. Canada (Attorney General), 2011 FC 1230 at paragraph 37.
[42]
I propose to deal with the question of bias in
conjunction with the first issue raised by the Applicant, that is the lack of
ranking of his 2004/2005 PER. He grounds his bias allegation upon certain
remarks made by Brigadier-General Gosselin in an email dated April 27, 2011.
That email was submitted to the Grievance Analyst in the course of gathering
information relevant to the Applicant’s grievance. In part, that email reads as
follows:
In any event, Col
Gillis was not ranked because he was considered NOT to have sufficient
potential to be a general officer, notwithstanding the wording on the PER. Col
Gillis got things done, very well and quickly, and had tremendous energy and
passion. If you read the PER carefully, you will note no mention of some key
attributes: he lacked strategic vision, lacked institutional awareness,
sometimes made fundamental errors of judgment, and lacked inter-personal
relations skills. In short, he was excellent at doing what he was directed to
do.
Other officers at CFC
certainly had more potential, such as [redacted] (he was ranked #1, if I
recall), and [redacted] (now a [redacted]). Gillis was acting Cmdt for periods
because he had been in the position of COS for months (as a Logistics Officer),
which meant the budget and resources responsibilities. But, I never delegated
all my responsibilities to him. He was acting Cmdt only for the small day-to-day
stuff. I kept commanding and directing the College, even when working on the
Transformation Team, until posted that summer 2005.
[43]
At face value, these words appear to be unfair
when compared with the language that is found in the Applicant’s 2004/2005 PER.
That PER was signed by Major General Gosselin, then a Brigadier-General, the
Applicant’s superior officer. However, having reviewed the process by which
officers are ranked and promoted, including chapter 11 of the QR&Os and the
comments of Major General (retired) Hussey in his email of November 26, 2011,
found at page 320 of Volume I of the Respondents’ Record and partially repeated
below, I am not persuaded that the remarks from Major General Gosselin in April
2011 can establish a bias on his part in May 2005 when he signed the
Applicant’s 2004/2005 PER.
[44]
Major General Hussey described the ranking as a
highly competitive process. He noted that the ranking is done by a board, not
by an individual. His reply includes the following:
The board Chair (the
ADM himself that year??) attempted to achieve consensus, but that was not
always possible and he “broke the ties” so to speak, as this was a very
subjective exercise to achieve a one sentence ranking in the PER of some, it
did not change the overall PERs. The PERs were as you know only drafts and the
words and adjectives used were then subsequently adjusted for Section 6 in
particular to reflect the relative ranking of the top group and of course these
affected the wording for the remainder of the Cols / Capt(N)s in the Group
during the final drafting of the PERs. It should be noted that Section 6 for
Outstanding individuals was signed by the ADM not by the Comds and so Col
Gillis was obviously one of the Outstanding individuals in the Group but just
not one of the 5 individuals who received a Group ranking sentence at the
beginning of the Section, in that year. Difficult to take for an outstanding
performer but an unfortunate result of an imposed quota on this for all Groups.
[45]
It is clear from the response from Major General
(retired) Hussey that whatever opinion was held by Major General Gosselin, during
the 2004/005 PER, that such opinion would not have been determinative of the
Applicant’s ranking at that time. The decision on ranking was made by a board
and involved assessment of various factors, not solely the PER.
[46]
The CDS found that there was no substance to the
Applicant’s allegations of bias against Major General Gosselin relative to the
2004/2005 PER. In his decision the CDS said the following in dealing with the
bias allegations:
Upon review of your
complete submission, I find that the information you supplied does not justify
your claim [of bias] and I am not prepared to assign it any probative value. As
such, I will not address this issue any further.
[47]
In these circumstances, the comments of Major
General Gosselin fall far short of the legal test for bias. That test is set
out in the decision Committee for Justice and Liberty v. National Energy
Board, [1978] 1 S.C.R. 369 at p. 394 where the Supreme Court said the
following:
… the apprehension of
bias must be a reasonable one, held by reasonable and right minded persons,
applying themselves to the question and obtaining thereon the required
information. In the words of the Court of Appeal, that test is “what would an
informed person, viewing the matter realistically and practically—and having
thought the matter through—conclude. Would he think that it is more likely than
not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”
[48]
I am satisfied that the CDS reasonably
determined that there was no bias, having regard to the substantial record that
was before him, including the submissions filed by the Applicant as part of the
grievance process. The Applicant had many opportunities to present his case and
he availed of these.
[49]
In his decision of August 9, 2012, the CDS made
the following conclusion on the substantive issue regarding the 2004/2005 PER:
For a PER grievance
to be supported, a member must be able to clearly demonstrate that a lack of
rating is inappropriate, or that CFPAS policy was not adhered to in the
preparation of his or her PER. I do not find you have done this nor do I find
that the file evidence supports your contention.
[…]
The holding of an
“acting” title does not guarantee an elevation in ranking status. I find that
the evidence you have provided and the PER you supplied to be an accurate
reflection of your performance and potential that year. I have reviewed two of
your successive PERs during which time you spent more significant time as
A/Cmdt during the reporting periods and note you favoured extremely well in the
standings of ADM (HR-Mil) officers. To recapitulate, I find no evidence to
support your contention that your lack of ranking was inappropriate nor do I
see a departure from CFPAS ranking policy for the 04/05 reporting year.
[50]
In these circumstances, I am satisfied that the
CDS made a reasonable decision in declining to revisit the 2004/2005 PER and
the issue of the Applicant’s ranking. Since he was not ranked, his file could
not move forward for promotion in the next promotion year, that is 2006.
[51]
The next issue relates to the finding by the CDS
that the Applicant’s file was not improperly deselected from the 2006 Promotion
Selection Board. The record contains a response dated June 22, 2011 from Rear
Admiral (retired) Pile which makes it clear that the Applicant’s file was not
submitted to the Promotion Selection Board and that there was no impropriety in
that regard. Rear Admiral (retired) Pile described a two-step process as
follows:
In preparation for
the 2006 Cols/Capt(N)s Promotion Selection Board, Level One Commanders
conducted their own internal Ranking boards. In addition to the top files
ranked by the CMP Ranking Board, only those files that merited consideration at
the CF Promotion Selection Board would be submitted – i.e. competitive files.
At the CMP Ranking Board, Col Gillis’ file was rated within the top 10 of 33
Cols/Capt(N)s or within the top 30%, not the top 10% as he asserts. He did not
receive a ranked position, which was reserved for the top five Cols/Capt(N)s
within CMP and, in comparison to other CMP peers, his file was not considered
sufficiently competitive to be submitted to the annual Promotion Selection
Board. This assessment was unanimous among members of the CMP Ranking Board
although the final decision on which files would be forwarded to the CF
Promotion Selection Board rested with me.
[52]
In the face of this evidence and other evidence
on the record, I am satisfied that the CDS reasonably found that the Applicant
had been treated fairly and in accordance with applicable policies. His
decision clearly states that there was nothing surreptitious about the
deselection of the Applicant’s file from consideration for promotion in the
2007 promotion year, as appears from this part of the decision:
…In the DSA review of
individuals for general competitiveness, you were deemed to be less competitive
than other officers as they were considered to have more long term potential
for advancement. The final list to be considered by the PSB, including the
recommendations of files for removal (as in your case), was reviewed and
approved by the board chairperson; the 06 PSB chairperson was also Comd CMP. I
find no evidence which would support your contention that your file was
deselected by someone higher than the responsible personnel involved in the
conduct of the PSB. Additionally, I find that you were treated no different
than other members being considered for promotion and find you were treated
fairly and in accordance with policy in place at that time.
[53]
The final issue is the decision of the CDS not
to convene a supplementary board. The CDS refused this part of the grievance on
the grounds that he had dealt with this issue in making his decision on the
Applicant’s first grievance, that is the decision of November 13, 2008.
[54]
In that decision, the CDS said the following:
You would prefer that
I recommend to the MND your substantive promotion to the rank of BGen. In
support of your request, you have compared your situation to that of another
individual. As the final authority, I must consider each case on its own
merits. Promotion to the rank of BGen is extremely competitive. The evidence
shows that your file was not forwarded before the selection board for year 2007
(fall 2006). Alternatively, your file was forwarded for consideration by the
selection board for year 2008 (fall 2007), where you ranked 55 out of 58. With
a promotion forecast of seven to nine promotions, you did not rank high enough
to be promoted substantively to BGen in 2008. On that basis, recommending your
substantive promotion would be contrary to the principle of merit and
competitiveness associated to promotion. I therefore simply cannot acquiesce to
your request.
[55]
The CDS is crystal clear in his findings in the
2008 decision for which the Applicant did not seek judicial review. Insofar as
the present grievance seeks the same relief, that is a recommendation for a
substantive promotion to the rank of Brigadier-General, the issue has already
been determined. In my opinion the CDS reasonably denied this part of the
Applicant’s grievance.
[56]
In summary, the decision of the CDS rejecting
parts of the Applicant’s grievance is reasonable. He reasonably found no bias.
His other conclusions were reasonable in the face of the record that was before
him and the relevant conditions for promotion, in particular sections 11.01 and
11.02 of chapter 11, the QR&Os concerning promotions. I see no errors in
the manner in which the grievance process was followed by the grievance
analyst, leading up to the recommendation by the Director General. The
Applicant had broad participatory rights which he utilized.
[57]
As noted by Counsel for the Respondents, the CDS
is the “final authority” for the purpose of grievance redress for members of
the Canadian Forces. The Applicant has not shown any breach of procedural fairness
or that the CDS otherwise committed any legal error. In the result, this
application will be dismissed.
[58]
There remains only the question of costs. The
Respondents seek costs and the Applicant submits that no costs should be
awarded against him.
[59]
I am aware of the jurisprudence cited by the
Respondents. I am also mindful of the arguments advanced by the Applicant
against the award of costs.
[60]
The award of costs lies wholly in the discretion
of the Court pursuant to Rule 400 of the Rules. In the exercise of my
discretion and having regard to the circumstances of this proceeding, I make no
order as to costs.
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