Docket: T-1798-15
Citation:
2017 FC 10
Ottawa, Ontario, January 4, 2017
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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DARREN EDWARD
BLAIR
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Applicant
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and
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NATIONAL
DEFENCE CANADA (CDS)
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
Mr. Darren Edward Blair joined the Canadian
Armed Forces [CAF] in 1989 and was a member until his voluntary release in
April 2000. He rejoined the CAF in March 2003 and was ultimately released on
November 11, 2010, under item 5(f) of Article 15.01 of the Queen’s Regulations
and Orders for the Canadian Forces [QR&O] as Unsuitable for Further Service
due to the misuse of alcohol, following a number of alcohol-related incidents.
[2]
He has applied for judicial review of a decision
of the Chief of the Defence Staff [Chief], dated August 21, 2016, which denied his
grievance and upheld his release from the CAF.
II.
Preliminary Matter
[3]
In his Notice of Application, the applicant
indicates that the reliefs being sought are review and restitution. However, in
his Memorandum of Fact and Law, he discusses the award of costs in
circumstances where a decision is quashed on judicial review, but then requests
damages for his wrongful release and breach of contract, commensurate with his
length of service.
[4]
The applicant cannot ask this Court, on an
application for judicial review, for “restitution” or “damages”. Subsection
18.1(3) of the Federal Courts Act, RSC 1985, c F-7, provides that on an
application for judicial review, this Court’s power is limited to:
(a) order a federal
board, commission or other tribunal to do any act or thing it has unlawfully
failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash,
set aside or set aside and refer back for determination in accordance with such
directions as it considers to be appropriate, prohibit or restrain, a decision,
order, act or proceeding of a federal board, commission or other tribunal.
[5]
In addition to the monetary relief sought, it is
unclear from the applicant’s Memorandum of Fact and Law whether he seeks to
have the decision quashed, set aside and referred back for redetermination, or
whether he seeks to be reinstated with the CAF.
III.
Facts
[6]
In September 1990, the applicant received a
recorded warning for “acting in an antagonistic manner
to a peer” as a result of an altercation with a bully in his class. The applicant
reported the matter and in turn, the alleged bully made an accusation against
him. Consequently, both were issued a recorded warning.
[7]
In April 1991, the applicant was interviewed by
a Base Addictions Counsellor, who recommended that he discontinue his alcohol
use, attend Adult Children of Alcoholics on a regular basis, and attend the
next Secondary Intervention Workshop.
[8]
In July 1991, the applicant received his second recorded
warning, for “failure to make rational and responsible
personal decisions” for a number of reasons, some of which were
determined to be alcohol-related. Then, in November, while treating the applicant
after suffering minor injuries from a fight, the treating professional noted
the applicant presented with a “strong smell of
alcohol”. The applicant suffered another injury while drinking in March
1993, when he tried to strike someone with a beer bottle.
[9]
In September 1993, the applicant received a
third recorded warning, again for the misuse of alcohol.
[10]
Four years later, the applicant was assessed for
the misuse of alcohol. As a result, he was placed on counselling and probation.
He submitted a grievance against this remedial measure and the counselling and
probation was subsequently overturned and removed from his file.
[11]
In 1999, the applicant volunteered to seek
treatment for problems with alcohol after a number of negative alcohol-related
interactions while on duty in Puerto Rico.
[12]
In April, the applicant discussed a potential
voluntary release from the CAF with his supervisor. The supervisor explained
that if the applicant was to apply for re-enrollment in the CAF, it should be
conditional on dealing with his misuse of alcohol. He was subsequently voluntarily
released from the CAF. He applied to re-enroll in the CAF a few years later,
for which he had to submit proof that he did “not
suffer any complications as a result of alcohol abuse”.
[13]
In the years that followed, the applicant had a
number of alcohol-related incidents while in the CAF:
• In 2007, while under the
influence of alcohol, he verbally abused a Corporal.
• In 2009, he was arrested for
drunkenness contrary to paragraph 97(2)(b) of the National Defence
Act, RSC 1985, c N-5.
• In 2010, he was alleged to have
been drunk and assaulting/abusing subordinates while on training.
[14]
As a result, the applicant was removed from
training and sent back to his unit. He was again sent for a medical assessment
in relation to alcohol.
[15]
In May 2010, the applicant was issued a Notice
of Intent to Recommend Release under item 5(f) of Article 15.01 of the QR&O
as Unsuitable for Further Service due to the continued misuse of alcohol.
IV.
Procedural Background
[16]
Following the Notice of Intent to Recommend
Release, the applicant’s Commanding Officer recommended to the Director
Military Careers Administration [Director] that he be released. The Director
then ordered an Administrative Review, which recommended that the applicant be
released. In response to submissions from the applicant, the Commanding Officer
changed his recommendation from release to counselling and probation. In spite
of this recommendation, on September 29, 2010, the Director approved the applicant’s
release.
[17]
The applicant filed a grievance concerning his release.
The grievance was denied by the Initial Authority, the Acting Director General
Military Careers, on May 30, 2011. The applicant requested that his grievance
be referred to the Final Authority.
[18]
The applicant provided representations to the
Canadian Forces Grievance Board, which found that breaches to procedural
fairness occurred in the Administrative Review process. It concluded that these
breaches could not be cured by a de novo hearing. Therefore, the
Director General Canadian Forces Grievance Authority [Director General]
recommended that the Final Authority set aside the Initial Authority’s decision
as well as the decision of the Director and quash the Administrative Review.
Further, it recommended that the Final Authority conduct a de novo
review of the grievance. The applicant submitted additional representations,
and the decision presently under review was rendered on August 21, 2015.
V.
Impugned Decision
[19]
On August 21, 2015, the Chief determined that
the applicant’s release was in accordance with the applicable rules,
regulations, and policies, and refused the redress sought. Based on the
evidence before him, the Chief concluded that the applicant’s release under
item 5(f) was reasonable and justified, given his conduct throughout the course
of his career with the CAF.
A.
Procedural Fairness
[20]
Regarding the issue of procedural fairness, the Chief
noted that there were two incidents that occurred in the process of the applicant’s
release that breached the principle of procedural fairness:
• The Progress Review Board
considered allegations against the applicant without informing him of the
allegations and providing him with an opportunity to respond.
• The Director did not include
sufficient justification in support of his decision and he improperly considered
a remedial measure that had been previously grieved and overturned.
[21]
The Chief concluded that the Canadian Forces
Grievance Board was wrong to recommend that the release be set aside on the
basis of Dunsmuir v New Brunswick, 2008 SCC 9, which they interpreted as
directing that if a decision was tainted by a lack of procedural fairness in
the process of reaching its decision, the grievor should be returned to the
position they were in at the time of the grieved matter.
[22]
The Chief explained in his decision that the Canadian
Forces Grievance Board did not have the benefit of relying on McBride v
Canada (National Defence), 2012 FCA 181, in which the confusion that arose
from Dunsmuir was clarified. The Chief stated that in McBride,
the court explained that any procedural unfairness that occurred in the
decision-making process could be cured if the four cornerstones of procedural
fairness are applied in the de novo review of the entire case.
[23]
Therefore, the Chief stated that he conducted a de
novo review of the applicant’s file without considering the improper
evidence, and provided sufficient justifications, such that the past procedural
unfairness had been cured.
B.
Release under item 5(f)
[24]
The Chief had to determine whether the decision
to release the applicant under item 5(f) was appropriate in the circumstances.
[25]
First, he explained that in the grievance, the applicant
confused “dependence on alcohol” with “misuse of alcohol”. The applicant alleged that there
was no evidence to support the assertion that he was dependent on alcohol.
However, the allegation against him concerned the misuse of alcohol. The Chief found
that there were multiple examples in support of this allegation and that the
issue was repeatedly brought to the applicant’s attention.
[26]
The Chief further states that there are numerous
examples of his unacceptable conduct while under the influence of alcohol,
belligerence, misuse of alcohol, and arrests for drunkenness. Specifically, the
Chief considers the applicant’s four referrals for assessment for alcohol
abuse.
[27]
The Chief states that the decision to make such
referrals is not taken lightly, and to see four on the applicant’s file is
indicative that successive chains of command identified, and were concerned by,
the seriousness of his misuse of alcohol. The Chief adds that in spite of the applicant’s
submission to the Canadian Forces Grievance Board that his conduct and
performance were above standard throughout his career, even outstanding
performance cannot rescue poor conduct, as the potential outcomes of the latter
far outweigh the operational benefit of the former.
[28]
The Chief disagrees with the Commanding Officer’s
decision to rescind his recommendation for the applicant’s release when the counselling
and probation was struck down. In his view, “[a]dministrative
actions are initiated under regulations, orders, instructions or policies. In
addition to the remedial measures set out in this DAOD, administrative actions
include: […] release or recommendation for release, as applicable” (DAOD
5019-4, Remedial Measures, s 3.10(f)). DAOD 5019-4 provides for the following: “[a]n initiating authority may, in exceptional circumstances,
initiate an administrative action other than a remedial measure in the absence
of any previous remedial measures initiated in respect of the CAF member”
(DAOD 5019-4, Remedial Measures, s 4.7).
[29]
Finally, the Chief states that under no
circumstances should a member with the applicant’s record be permitted to
continue in the CAF, without a clear indication of improvement, for such a length
of time without more serious action being taken. The fact that the counselling
and probation was quashed did not render the applicant’s release unreasonable.
VI.
Issues
[30]
This application for judicial review raises the
following issues:
A.
Whether previous breaches of procedural
fairness were cured by a de novo review?
B.
Whether the decision of the Chief to uphold
the applicant’s release is reasonable?
VII.
Standard of Review
[31]
The standard of review for decisions of the Chief
is reasonableness, as they involve questions of mixed fact and law (Higgins
v Canada (Attorney General), 2016 FC 32 at para 52; Canada (Attorney
General) v Rifai, 2015 FCA 145 at para 2). Issues raising procedural
fairness concerns are reviewable pursuant to the standard of correctness (Higgins,
above at para 58; McBride, above at para 32).
VIII.
Analysis
A.
Whether previous breaches of procedural fairness
were cured by a de novo review?
[32]
The applicant was self-represented when he filed
his Memorandum of Fact and Law, but he was represented by counsel at the hearing.
[33]
Counsel for the applicant argued a breach of
procedural fairness resides in the fact that the applicant was not afforded a
fair opportunity to provide submissions at every step of the administrative
process. It also resides in the fact that the applicant was not provided with a
well-explained determination of his grievance. Despite acknowledging that a
breach of procedural fairness could be cured by a de novo hearing, he
stated that because the information that was ordered to be expunged from the applicant’s
file was not redacted so that the Chief could not have access to it, the latter
did not hold a true de novo hearing.
[34]
Counsel heavily relied on the Military
Grievances External Review Committee’s [Committee] Findings and Recommendations
of February 9, 2012. Based on past procedural fairness breaches by the
Director, the Committee recommended that the applicant’s grievance be allowed
and that he not be released from the CAF. The Committee found that as a result
of this breach of procedural fairness, the decision to release the applicant
was void ab initio, but that it was “open to the
[Chief] to conduct a procedurally fair review of the circumstances and any
decision taken will be effective the date of the [Chief’s] new […] decision”
(Certified Tribunal Record, p 144). As to the reasonableness of the Director’s
decision, the Committee suggested that some facts not be considered as they
were either not proven or not relevant. It also suggested that the Progress
Review Board’s findings not be considered as the applicant was not offered the
possibility to review the evidence and present his observations.
[35]
First, the Chief is not bound by the Committee’s
recommendations (National Defence Act, s 29.13(1); Walsh v Canada
(Attorney General), 2015 FC 775 at para 32). In my view, it was open to the
Chief to rely on McBride. In that case, the Federal Court of Appeal
found that the procedural unfairness that had occurred was cured by the de
novo consideration by the Chief.
[36]
McBride has been
followed in several cases involving decisions of the Chief, and of particular
importance, in Walsh, where the Federal Court upheld the Chief’s
approach to the matter and stated that “a de novo
review will be sufficient to cure a breach of procedural fairness when the
procedure, considered as a whole, was fair” (Walsh, above at para
51).
[37]
The applicant made submissions at all stages of
the grievance process and several steps were taken to allow the applicant to
understand the case against him and be able to provide submissions. The Certified
Tribunal Record includes several legal opinions provided to the applicant along
with documents created by the applicant. He was clearly able to set out his
position to the Chief.
[38]
Since the applicant was given several
opportunities to understand the case against him and make representations, and
as the Chief conducted a de novo review and did not consider the counselling
and probation or other inappropriate procedures, any procedural defects were
cured and there is no issue of procedural fairness sufficient to justify
setting aside the Chief’s decision on this application for judicial review.
B.
Whether the decision of the Chief to uphold the applicant’s
release was reasonable?
[39]
The applicant’s Memorandum of Fact and Law does
not contain legal arguments addressing the reasonableness of the decision. In
essence, he disagrees with the Chief’s decision to uphold his release. He
argues that he did not breach DAOD-5019-7 of the Direction that defines “Alcohol Misconduct”. He also argues that a release
can only take place if there is a previous counselling and probation, and that
since the counselling and probation in his case was removed, he should not have
been released. Finally, he alleges that he was released based on false
accusations, assumptions, and rumours. Therefore, he submits that the decision
to uphold his release was unreasonable.
[40]
At the hearing, counsel for the applicant
emphasized the applicant’s long and successful career in the CAF and the fact
that in his decision, the Chief merely relied on allegations of misuse of
alcohol that were not proven.
[41]
The onus was on the applicant to show that the Chief’s
decision is unreasonable. In my view, he has not done so. In view of the
evidence that was properly before the Chief, the decision to uphold the applicant’s
release was within the range of possible, acceptable outcomes which are
defensible in respect to the facts and law (Dunsmuir, above at para 47).
[42]
First, the applicant’s argument that he did not
breach the provision regarding “Alcohol Misconduct”
is irrelevant, as the applicant was not released for a dependence on alcohol.
The applicant was released pursuant to item 5(f) of Article 15.01 of the
QR&O’s as “Unsuitable for Further Service”.
DAOD-5019-7 merely sets out the standards of behaviour and the ways in which
issues surrounding alcohol should be dealt with, and it was reasonable for the
Chief to find that the applicant had, on numerous occasions, violated these
standards.
[43]
Second, it was also reasonable for the Chief to
find that a release is not limited to circumstances where a previous
counselling and probation was issued. The Chief had the discretion to release
the applicant in the absence of a previous counselling and probation if he had
demonstrated a conduct or performance deficiency. The DAOD-5019-4, Remedial
Measures clearly state that “[a]n initiating authority
may, in exceptional circumstances, initiate an administrative action other than
a remedial measure in the absence of any previous remedial measures initiated
in respect of the CAF member” (DAOD 5019-4, Remedial Measures, s 4.7). An
initiating authority may review the member’s personnel record and determine
that other administrative action is warranted. What is important is not the
number of measures, but rather the overall character of the CAF member’s
service.
[44]
Therefore, the Chief could uphold the applicant’s
release even though the counselling and probation was set aside because he had
three previous recorded warnings and the overall character of his service
showed continued and longstanding behavioural problems that more often than not
involved alcohol.
[45]
Contrary to the applicant’s view, the Chief did
not consider or rely upon mere allegations or rumours. I find that the Chief
took into account the record and representations of the applicant. He
considered and weighed the applicant’s history with the CAF, as well as the
documented incidents involving alcohol, and came to the conclusion that this
consisted of misuse of alcohol.
[46]
In particular, the applicant had three recorded
warnings and would have had a fourth one had he not been voluntarily released.
He was sent for medical assessments on four occasions as a result of his issues
with alcohol and he was only allowed back as a member of the CAF on the
condition that he demonstrates that he did not have medical problems as a
result of his alcohol consumption. After his return, he had incidents on three
separate occasions, which showed that his behaviour – when coupled with alcohol
– was likely becoming an administrative burden to the CAF.
[47]
I find that the Chief’s decision to uphold the applicant’s
release from the CAF is therefore reasonable.
IX.
Conclusion
[48]
In light of the above, this application for
judicial review should be dismissed. Costs should be granted to the respondent
in the amount of $500, inclusive of all disbursements and interest.
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