Date: 20110204
Docket: A-94-10
Citation: 2011 FCA 43
CORAM: SHARLOW
J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
COMMANDER
GEORGE LEONARD ZIMMERMAN
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
The
appellant, Commander Zimmerman, appeals from the judgment dated December 22,
2009 of Justice Boivin of the Federal Court: 2009 FC 1298. The Federal Court
judge dismissed Commander Zimmerman’s application for judicial review.
[2]
In
his application for judicial review, Commander Zimmerman challenged the decision
of the Chief of the Defence Staff dismissing a grievance he brought under
section 29 of the National Defence Act, R.S. 1985, c. N-5. Commander
Zimmerman grieved the decision of the Chief of the Defence Staff denying him a promotion
to the rank of Colonel / Captain (Navy) in the Canadian Forces Chaplain Branch.
[3]
For
the reasons set out below, I would allow the appeal, set aside the judgment of
the Federal Court, allow the application for judicial review, quash the
decision of the Chief of the Defence Staff, and remit the matter to him for determination
in accordance with these reasons.
A. Preliminary
point: the statutory authority of the Chief of the Defence Staff
[4]
In
this Court, counsel for Commander Zimmerman objected to the involvement of the Chief
of the Defence Staff in adjudicating the grievance because he would be adjudicating
upon his own conduct. That appears to be so, but under the legislation the
Chief of the Defence Staff is to decide on promotions and to determine
grievances and in these circumstances he cannot delegate either task: see
sections 29.11 and 29.14 of the Act and subsection 7.12(2) of the Queen’s
Regulations and Orders for the Canadian Forces. Absent constitutional
objection, and none has been raised here, these provisions are law. Therefore,
the fact that the Chief of the Defence Staff adjudicated the grievance in this
case is not a ground for granting Commander Zimmerman’s application for
judicial review.
B. The
process for promotions
[5]
The
process for promotions is set out in the Act. Once eligible candidates are
identified and nominated, they are assessed by an “appropriate authority” under
section 11.02 of the Act. The appropriate authority recommends candidates for
promotion. The Chief of the Defence Staff may, but is not obliged, to promote a
candidate who is recommended by an appropriate authority.
[6]
In
Commander Zimmerman’s case, the “appropriate authority” was the Interfaith
Committee on Canadian Military Chaplaincy. In 2002, but not in 2003, the
interfaith committee received a ranking of candidates produced by the Chaplain
Selection Board. The interfaith committee was entitled to consider those
rankings but was not bound by them. The end product of the interfaith committee’s
deliberations was a recommendation to the Chief of the Defence Staff that a
particular person receive a promotion.
C. The denial of
promotions to Commander Zimmerman in 2003 and 2004
[7]
In
2002 the Chaplain Selection Board ranked Commander Zimmerman the first of two
candidates, but the interfaith committee recommended the other candidate for
promotion, and that promotion was approved by the Chief of the Defence Staff in
2003.
[8]
In
2004, Commander Zimmerman again was nominated for a promotion. There was no
Chaplin Selection Board in 2004, so his nomination went directly to the
interfaith committee, along with nominations of other candidates. Again, a
candidate other than Commander Zimmerman was recommended for promotion, and
that promotion was approved.
D. Commander
Zimmerman’s grievance
[9]
In
2005, Commander Zimmerman launched his grievance. In his grievance, he
challenged a number of aspects of the promotion procedures followed in 2003 and
2004 and questioned whether candidate assessments were fair, competent,
impartial and conducted with due diligence. He also offered a number of
specific concerns about the promotion process that was followed in his case.
[10]
Under
section 29.11 of the Act, the Chief of the Defence Staff determines grievances.
In certain circumstances, before determining the grievance, the Chief of the
Defence Staff must refer it to an external and independent board, the Canadian
Forces Grievance Board, for a review: section 29.14 of the Act and subsection
7.12(2) of the Queen’s Regulations and Orders. That happened here.
E. The Canadian
Forces Grievance Board’s review
[11]
The
Canadian Forces Grievance Board released its findings and recommended to the Chief
of the Defence Staff that Commander Zimmerman’s grievance be upheld and that a
remedy be given.
[12]
It
expressed many concerns about the entire promotion process in 2003 and 2004 and
specifically how the interfaith committee made its recommendations. In
particular, for 2003, it found that there was no record as to how or why the
interfaith committee decided not to recommend Commander Zimmerman for promotion,
even though the Chaplain Selection Board had ranked him first. In its view,
“there is no indication of the criteria or other guidelines that might have
been applied and there is no record as to what was said at the meeting.” In
2004, it found that “although there was more military input in this particular
process…, it remains unclear as to what criteria were ultimately used to select
the 2004 nominee.” Nothing in the record casts any doubt on the validity of
these observations by the Canadian Forces Grievance Board.
[13]
The
Canadian Forces Grievance Board also found it “troubling” that the Chief of the
Defence Staff accepted the interfaith committee’s recommendations “without
question.” In its view, the Chief of the Defence Staff “has the responsibility
to satisfy himself that the recommendation was formulated after a fair process
and having regards [sic] to appropriate criteria.” The Board concluded that it
was unfair to adopt the recommendation of the interfaith committee without
question and without knowing the specific criteria it applied.
F. The Chief of
the Defence Staff’s ruling on the grievance
[14]
The
Chief of the Defence Staff dismissed Commander Zimmerman’s grievance. He found
that he could not determine whether the process followed in 2003 and 2004 was fair,
competent, impartial and conducted with due diligence because of the absence of
information available to him regarding what the interfaith committee did and
exactly how and why it reached its promotion recommendations. In essence, the
interfaith committee’s failure to create or keep information relating to the
promotion process led directly to the dismissal of Commander Zimmerman’s
complaints relating to the fairness of the promotion process.
[15]
Despite
the absence of information available to the Chief of the Defence Staff regarding
what the interfaith committee did and exactly how and why it reached its
promotion recommendations, he was nevertheless able to declare in his decision that
he was “certain” that the interfaith committee nominated the “best possible
candidate” in the years in question. He did not address the Canadian Forces
Grievance Board’s finding that in 2003 and 2004 the interfaith committees’
promotion recommendations were accepted without question. However, he did state
that there was an unbroken tradition of Chiefs of the Defence Staff accepting
the promotion recommendations of the interfaith committee.
[16]
In
his decision, the Chief of the Defence Staff did not take issue with any of the
factual findings that the Canadian Forces Grievance Board made. He agreed with
its conclusion that the promotion process suffered from lack of transparency. Nevertheless,
he dismissed the grievance.
G. The
application for judicial review and the appeal to this Court
[17]
Commander
Zimmerman brought an application for judicial review challenging the dismissal
of his grievance. The Federal Court judge dismissed the application. He found
that the Chief of the Defence Staff, in dismissing the grievance, reached an
outcome that was within the range of outcomes available to him.
[18]
In
this Court, Commander Zimmerman raises several grounds for allowing the appeal.
In my view, it is necessary to deal with only one.
H. Analysis
[19]
The
Federal Court judge found that the standard of review of the decision of the Chief
of the Defence Staff is the deferential standard of reasonableness. He also
found that the decision of the Chief of the Defence Staff to dismiss the
grievance was reasonable, especially in light of the paucity of evidence before
the Chief of the Defence Staff to allow him to decide otherwise.
[20]
In
this Court, on an
appeal from judicial review, we are to determine whether the judge selected the
correct standard of review and applied the standard correctly: Telfer v.
Canada (Revenue Agency), 2009
FCA 23, [2009] D.T.C. 5046 at paragraphs 18-19.
[21]
In
my view, the Federal Court judge was correct when he held that the standard of
review is the deferential standard of reasonableness. I agree substantially
with his reasoning in support of that holding (at paragraphs 23-25 of his
reasons). However, I disagree with the Federal Court judge on whether the
decision of the Chief of the Defence Staff was reasonable. In my view, it was
not reasonable and should be set aside.
[22]
Under
section 29.11 of the Act, the Chief of the Defence Staff was obligated to
decide the merits of Commander Zimmerman’s complaint in the grievance and to
provide reasons why he was departing from the findings and recommendations of
the Canadian Forces Grievance Board.
[23]
As
mentioned in paragraph 9 above, Commander Zimmerman complained about
deficiencies and unfairness in the promotion procedures in 2003 and 2004,
questioned the manner in which the candidate assessments were done in those years
and stated specific concerns about the promotion process that applied to him. Because
the Chief of the Defence Staff found that he did not have sufficient
information about what the interfaith committee did and exactly how and why it
reached its promotion recommendations, he did not grapple with the substance of
Commander Zimmerman’s complaints, questions and concerns.
[24]
I
note that some of the specific concerns raised by Commander Zimmerman did not
depend on information about what the interfaith committee did and exactly how and
why it reached its promotion recommendations – some of his concerns could and
should have been adjudicated. But they were not. As for Commander Zimmerman’s other
complaints relating to the promotion process and the candidate assessments, the lack of
information relating to the interfaith committee was highly relevant to Commander
Zimmerman’s complaints of deficiencies and unfairness and should have been
adjudicated. But they were not. Using the language of reasonableness review, the
failure to deal with any of Commander Zimmerman’s complaints was not within the
range of options available to the Chief of the Defence Staff.
[25]
The
Attorney General submitted that the Chief of the Defence Staff was not
obligated to deal in his decision with all of the issues placed before him: Morphy
v. Canada (Attorney General), 2008 FC 190, 323 F.T.R. 275; Smith v.
Canada (Chief of the Defence Staff), 2010 FC 321. In the context of an
assessment of whether reasons for a decision are adequate, it is true that
there are occasions where a decision-maker need not deal with every last issue
raised by the parties. But that is different from the problem here. The issues
raised in Commander Zimmerman’s grievance were simply not dealt with.
[26]
There
is a further basis for finding the decision unreasonable. The main reason for
not accepting any aspects of Commander Zimmerman’s grievance was the lack of information
about what the interfaith committee did and exactly how and why it reached its
promotion recommendations. In the words of the decision, “no evidence allows me to conclude as to its fairness or
unfairness.” But
the absence of evidence about what the interfaith committee did and exactly how
it reached its promotion recommendations raised issues of fairness and called
into question whether the interfaith committee had any criteria at all for its promotion
recommendations. This should have been considered and adjudicated upon. After
all, despite the same lack of information, the Canadian Forces Grievance Board had
no problem making factual findings and recommending that Commander Zimmerman’s
grievance be upheld and a remedy be given.
[27]
Finally,
as noted in paragraph 16 above, the Chief of the Defence Staff did not contest the
essential underpinnings of the Canadian Forces Grievance Board’s recommendation
that the grievance should be upheld. He did not contest the factual findings of
the Canadian Forces Grievance Board. He even agreed with the Board’s finding that
the promotion process lacked transparency. Other than raising the issue of lack
of available information, he did not criticize the Canadian Forces Grievance
Board’s recommendation that the grievance should be upheld. In light of this,
and given the evidentiary record before him, it was not open to him to dismiss
Commander Zimmerman’s complaints about the promotion process.
[28]
At
the hearing of this appeal, we invited counsel to make submissions regarding
whether any directions should be given to the Chief of the Defence Staff if the
decision were quashed and remitted to him for reconsideration. Counsel for the
Attorney General submitted that due to the passage of time and the fact that
the matter had already been examined thoroughly by the Chief of the Defence
Staff, the matter should be remitted to the Chief of the Defence Staff for a
determination only on the issue of remedy.
[29]
Therefore,
I would allow the appeal, set aside the judgment of the Federal Court, allow
the application for judicial review, quash the decision of the Chief of the
Defence Staff, and remit the matter to him with a direction to allow the
grievance and to determine the remedy that should be given to Commander
Zimmerman. I would grant Commander Zimmerman his costs here and below.
[30]
I wish to
thank counsel for their submissions which were very helpful to the Court.
"David
Stratas"
“I
agree
K. Sharlow J.A.”
“I
agree
Carolyn Layden-Stevenson J.A.”
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