Docket: T-156-16
Citation:
2016 FC 1414
Ottawa, Ontario, December 29, 2016
PRESENT: The
Honourable Madam Justice McVeigh
|
BETWEEN:
|
|
JOEL EDWARD
MOUSSEAU
|
|
Applicant
|
|
And
|
|
ATTORNEY
GENERAL OF CANADA REPRESENTING THE CANADIAN ARMED FORCES AND THE CANADIAN
ARMED FORCES GRIEVANCE BOARD
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant, Corporal Joel Mousseau (Retired)
[Cpl. Mousseau], challenges a decision of the Director General Canadian Forces
Grievance Authority [DGCFGA] dated October 29, 2015 that confirmed Cpl.
Mousseau’s reversion in rank from Master Corporal [MCpl.] to Corporal [Cpl.].
II.
Background
[2]
In 2001 Cpl. Mousseau volunteered to join the
Canadian Armed Forces and in 2014 was serving his twelfth year of service which
included two tours to Afghanistan. He planned on retiring after a full career
in the military but being diagnosed with Post Traumatic Stress Disorder [PTSD]
led him to being medically released. Cpl. Mousseau indicates that the random
panic attacks and the PTSD have been aggravated since as he calls it “the unwarranted demotion”. His release from service
was not as a MCpl. but as a Cpl. and this decision is what is underlying this judicial
review.
[3]
His last posting was JPSU (Joint Personnel
Support Unit) Det. Edmonton after his medical employment limitations [MEL] had
him transferred February 29, 2012 from CFB Wainwright (July 5, 2010) for
medical follow-up and treatment . CFB Wainwright was his first posting after
his two consecutive tours stationed to Kandahar, Afghanistan −November 5,
2006 to March 6, 2007; February 29, 2008 to September 28, 2008.
[4]
On May 10th, 2010, he was appointed to the rank
of Acting Lacking Master Corporal. The decision for the reversion or demotion
as he calls it was a result of Cpl. Mousseau lacking a required qualification –
Armoured Reconnaissance Crew Commander Course or now called Armoured Crew
Commander Course [ARCC or ACC] to achieve the substantive rank of MCpl. before
he was retired.
[5]
Cpl. Mousseau’s Commanding Officer in CFB Wainwright
after observing him recommended that he seek diagnosis and treatment for what
was then diagnosed as PTSD related to his tours in Afghanistan. His PTSD was
diagnosed as high to extreme. From 2008 to 2011 no one had recognized his
problems, including himself until his Commanding Officer did. On October 25,
2011, Cpl. Mousseau was assigned temporary MEL which prevented him from
attending and completing the required ARCC course. The MEL was extended in June
and December of 2012.
[6]
Cpl. Mousseau had performed his job at a high
level and to acclaim including training soldiers but could not take the ARCC
course because of his PTSD. Generally the ARCC/ACC courses are offered every six
months or when they are needed.
[7]
On October 21, 2013, a medical officer
recommended that Cpl. Mousseau be assigned a permanent medical category which
was approved by the Director of Medical Policy on March 5, 2014.
[8]
On May 10, 2014, Cpl. Mousseau was told that he
would have to relinquish his rank of Acting Lacking MCpl. so he could be released
from the Canadian Forces as a Cpl. after four years as a MCpl.
[9]
On May 30, 2014, Cpl. Mousseau’s career manager
initiated an administrative review of Cpl. Mousseau’s rank because in the four
years he had been Acting Lacking MCpl. he had not completed the ARCC. The
career manager recommended a reversion back to the substantive rank of Cpl.
[10]
On July 17, 2014, the Acting Director Military
Careers revoked Cpl. Mousseau’s Acting Lacking MCpl. rank, effective August 7,
2014. The Chief of the Defence Staff refused to exercise his discretionary
power to award the rank of MCpl. by waiving the requirement of the ARCC course.
Cpl. Mousseau grieved the decision to have his rank reverted on August 5,
2014 in accordance with section 29 of the National Defence Act, RSC 1985,
c N-5.
[11]
The abbreviation LdSH (RC) used by Cpl. Mousseau
and others throughout the Certified Tribunal Record [CTR] references the Lord
Strathcona’s Horse (Royal Canadians) which is Armoured Regiment within the
Canadian Forces and the Joint Personnel Support Unit is abbreviated as JPSU.
[12]
On December 11, 2014 in response to a disclosure
package for his grievance file he stated that “ … I
feel as if my regiment (LdSH(RC)) abandon myself once I was no longer useful
and was “kicked on[sic] final time” , while I was attached posted to JPSU
awaiting my permanent posting message. I was demoted officially demoted the Friday
[sic] prior to belonging to JPSU det Edm, but was at sick parade following a
panic attack over this issue) and on the following Monday [sic] was demoted but
not at my regiment. I was NOT demoted at LdSH(RC) I was demoted at JPSU since
it was already in place that I was to be demoted. ….. I feel that the demotion
was unjust and not warranted for a soldier that is “broken” and was broken
performing his duties. All I am seeking is to be released from the Canadian
Forces as a MCpl and to “depart with dignity.” (CTR 178.)
[13]
The initial Authority Grievance decision dated
February 3, 2015 by the Director General Military Careers in Edmonton upheld
the reversion of rank. On September 9, 2015 the Military Grievance External
Review Committee [Grievance Committee] denied the grievance.
[14]
On October 29th, 2015, the DGCFGA reviewed Cpl.
Mousseau’s grievance coming to a determination that he had been treated fairly and
that his reversion to rank of Cpl. should stand. The Grievance Committee is a
discretionary referral body created under the National Defence Act. Its
purpose is to review military grievances referred to it and provide impartial
findings and recommendations.
[15]
The Grievance Committee’s findings were sent to
the DGCFGA and Cpl. Mousseau on September 9, 2015 in order that Cpl. Mousseau
could respond to any concerns raised by the Grievance Committee. Cpl. Mousseau
provided written responses to the Grievance Committee’s findings on October 5,
2015 which were submitted to the GDCFGA.
[16]
After reviewing the applicable factual
background, the DGCFGA proceeded to assess Cpl. Mousseau’s case de novo.
The DGCFGA came to this determination based on recommendations from the
Grievance Committee. The DGCFGA points out that Cpl. Mousseau’s branch
could have, but chose not to, revoke his acting rank immediately once medical
limitations precluded his attendance on the required ARCC course (Canadian
Forces Administrative Order 49-4 subparagraph 14c, [“CFAO 49-4”]). Despite
this, they allowed him to remain Acting Lacking MCpl. for a total of four years
from the date he was first designated.
[17]
The DGCFGA dismissed Cpl. Mousseau’s
suggestion that other serving members had been allowed to retain their rank
despite being released medically. The DGCFGA points out that every case in
administrative matters must be decided on its own merits. The Director General
accepted the findings of the Grievance Committee and reverted Cpl. Mousseaus’s rank.
III.
Issue
[18]
The issue to be determined is whether the DGCFGA’s
decision to revert his rank to Cpl. was unreasonable?
IV.
Standard of Review
[19]
The Federal Court of Appeal has said that the
standard of review for decisions regarding a final grievance of a Canadian Armed
Forces decision is reasonableness (Zimmerman v Canada (Attorney General),
2011 FCA 43 at para 21).
[20]
Reasonableness requires that the decision must
exhibit justification, transparency and intelligibility within the decision
making process and also the decision must be within the range of possible,
acceptable outcomes, defensible in fact and law (Dunsmuir v New Brunswick,
2008 SCC 9). This decision is not reasonable and I will grant it for the
following reasons.
V.
Analysis
[21]
Over the course of the hearing Cpl. Mousseau,
acting on his own behalf argued a number of issues such as the fact that the
requirements to be Acting Lacking MCpl. in the Career Manager’s brief 2014-2015
changed and at one point in time when he was acting the ARCC course was not a
requirement to retain the MCpl. rank.
[22]
Cpl. Mousseau contended that the reversion in
rank policy for the Armoured Corps-D Mil C until 2013 was that a member was
promoted Acting Lacking after their PLQ-L and then had four years to complete
their ACC to be substantive rank. Cpl. Mousseau said that in the old system on
slide 5 of the Career Managers Brief page five (5) that you need PLQ to get
your leaf and then ARCC to retain it. But under the new system for 2014-2015 to
be a MCpl. you only need the PLQ-L (Leadership Qualification) and only if you
then wished to progress in rank do you need the ARCC. His position is that he
falls under the new system as his permanent medical category assignment
happened in 2014 so he does not even need the ARCC to retain his MCpl. when he was
retired.
[23]
As well the issue arose of whether even though
the Director General stated they were doing the grievance on a de novo
basis whether the Director General really considered the case on a de novo
basis or just rubber stamped the lower level grievances. Finally, arguments
were made by Cpl. Mousseau that his demotion was a violation the Canadian
Human Rights Act, RSC, 1985, c H-6, on grounds of discrimination because of
his disability.
[24]
Cpl. Mousseau presented that it is an earned
appointment and he was demoted off the old system which was on how many spots
were open for that rank. The Respondent fundamentally disagrees that Cpl.
Mousseau was demoted as he was just reverted to his previous rank and that was
done as he had not completed the ARCC course which was one of the requirements
to be a MCpl.
[25]
The determinative issue is whether the Chief of
Defence staff discretion in 11.02 of the Queen’s Regulations and Orders
for the Canadian Forces [QR & O] was exercised reasonably. And for that
reason I will limit my reasons to this issue.
[26]
The DGCFGA has the delegated authority from the
Chief of the Defence Staff pursuant to subsection 29(14) of the National
Defence Act to be the final authority on grievance process.
[27]
The QR & O state that:
“In any particular instance or in any given
circumstances, the Chief of the Defence Staff may direct that the requirement
to meet promotion standards be waived.”
[28]
The DGCFGA is to make a de novo
determination after receiving the Grievance Committee recommendations and findings
for the DGCFGA’s consideration. The Grievance Committee on these facts recommended
that the grievance be denied.
[29]
The Chief of Staff is not bound by the recommendation
(s 29.13) of the Grievance Committee but must give reasons if they are not in
agreement. The DGCFGA did note in their reasons that he accepted their findings
and accepted the grievance Committee’s findings “as if
they were my own.” The DGCFGA’s reasons mirror the Committee’s reasons
and analysis.
[30]
In the recommendation of the Grievance Committee
they indicated that the Chief of Defence Staff when exercising their discretion
to waive promotion criteria that the reason to do so must be unique and
compelling so that all peers are treated equally.
[31]
The Respondent at the hearing repeated this argument
that the reasons to grant the rank without the artillery course (ARCC/ACC) must
be “unique and compelling” so that members are not
treated differently. The Respondent said the injury was one year into the
acting and the DGCFGA exercised their discretion reasonably by not granting the
waiver of the course requirement to Cpl. Mousseau and reverting him back to Cpl.
[32]
For the reasons below I find the exercise not to
grant discretionary relief to be unreasonable.
[33]
Cpl. Mousseau confirmed that because of the PTSD
diagnosis he had to be retired as he no longer met the Minimum Operational
Standards related to Universality of Service (s 33.1) but that the reversion of
his rank after acting in the capacity for four years was not reasonable and certainly
was a hurtful exercise.
[34]
The QR & O of the Canadian Forces 11.02(2)
grant this discretion to be used in any particular instance or circumstances. Contrary
to the Respondent’s argument the article does not say it must be unique and
compelling to grant the exemption. In the Grievance Committee’s reasons it
states that when the Chief of Defence Staff exercised their discretion to waive
some aspects of promotion criteria in other cases they determined it must be
unique and compelling. The distinction in this case does not matter as this
decision is unreasonable if the discretion was exercised in any particular
circumstances as set out in the QR & O or if it was exercised only in
unique and compelling circumstances that the Respondent states is the test.
[35]
To achieve the rank of MCpl. the soldier must
have Primary Leadership Course (PLQ), environmental and occupational
qualifications. The occupational qualification is the ARCC course. This is the course
that Cpl. Mousseau was not able to complete and what he sought the Chief of
Staff to waive the requirements as provided in the QR & O in these
circumstances.
[36]
The ACC course inevitably involves “loud bangs” as the understanding is that artillery is
involved. The MEL paperwork for years 2009-2011 (CTR 125-127) indicates that
Cpl. Mousseau can be employed with limitations. Cpl. Mousseau
indicates that one of the limitations is that he cannot be around loud bangs and
on other documentation it says he cannot safely handle and effectively operate
a personal weapon. With the diagnosis of high to extreme PTSD, clearly he could
not take the course that involved “loud bangs”
but his work performances indicated he was an excellent teacher and soldier.
[37]
It seems a bit of a “Catch 22” to say that the
soldier on MEL for PTSD must be exposed to the very thing that is a trigger to
the PTSD though he had been doing an exemplary job of teaching other soldiers
without the artillery course (ARCC).To not have the course increases the
anxiety because University then demoted him.
[38]
It is understood that the understanding of PTSD
within our Armed Forces has progressed rapidly lately. In fairness to the
decision maker the evidence and procedures for dealing with PTSD that can now
be marshalled may not have been available or before them at the time.
[39]
Cpl. Mousseau did not retain outside counsel or
obtain any assistance to deal with the process when he was suffering high to
extreme PTSD and may not have been his best advocate at the time given his
medical condition. The difficulty of this situation is somewhat acknowledged in
the August 21, 2014 decision of the Acting Director Military Careers
Administration (CTR 109) “Under the new career
transition support policy, the C[anadian] F[orces] Health Services completed a
needs assessment and you were deemed as severely ill or injured with complex
transitional needs.” This was stated after noting that he chose not to
submit any representation after this particular disclosure. Very difficult for
anyone, let alone when you are this ill to make these kind of life decisions and
then go through the Canadian Forces levels of grievances representing himself
before the Federal Court.
[40]
Evidence of Cpl. Mousseau’s performance of his
position while in an Acting Lacking MCpl. was provided in his Annual Personal Evaluation
Reports in the CTR dating from June 25, 2007 on an annual basis through to May
26, 2014. A review of this Personnel Evaluation Reports indicates generally
someone very good at their job. The 2009 and 2010 Report indicated that he “demonstrates outstanding potential for promotion to MCpl”
under the Potential for Promotion to Next Rank- Section 5 and in Section
6- May 25, 2010 says “Cpl Mousseau is an exceptionally
dedicated, professional, and knowledgeable soldier who is performing ahead of
his peers. He is a natural leader and was ranked in the top third of Cpls in
LdSH (RC). Cpl Mousseau should be promoted to the rank of MCpl and be employed
as troop NCO upon completion of his Mod 6 PLQ.”
[41]
The DGCFGA had all of these performance reports
before them in doing the de novo review though choose not to address any
of this in their reasons even though the Director General was making the
determination if Cpl. Mousseau’s situation was “unique
or compelling” reasons to waive the requirement for the course. It is
unreasonable to do a de novo determination to decide whether to waive a requirement
and yet not address if Cpl. Mousseau had been performing at a high level the
job associated with the rank before his MEL.
[42]
Cpl. Mousseau argued that how can they now say
he was not qualified to train people, as the people he trained have now moved
up and trained others; if so, the decision to revert his rank mean that they
now have to revert the people he trained and the members that they trained.
[43]
It was unreasonable not to grant him the waiver
because he could not complete the one remaining criteria because of his PTSD
which was a course with “loud bangs” of
artillery yet he continued to perform the job associated with that rank to the
standards expected without the course for the year until his PTSD was diagnosed
and he was put on MEL.
[44]
Cpl. Mousseau argued it was unreasonable that
other soldiers when they retired in the same situation as he was in did have
requirements waived for substantive promotion to MCpl. and yet the DGCFGA did
not waive his requirement. The specific information concerning other members in
his regiment having the discretion being exercised to have them retain their
rank when retired was provided by Cpl. Mousseau in response to the
disclosure of the Career Managers Brief.
[45]
In the reasons of the DGCFGA in response to Cpl.
Mousseau’s argument he should be treated the same, the DGCFGA said regarding
other member’s treatment that every case is determined on its merits and that “… leads me only one direction that is that you were treated
fairly and in accordance with the rules and regulations.”
[46]
Of course each case will be determined on the
facts of that case but in exercising their discretion fairness in treatment
must enter into the determination. Given Cpl. Mousseau had provided specific examples,
I would expect more analysis by the DGCFGA of how Cpl. Mousseau was being treated
the same. Of course the other soldiers’ privacy would have to be respected but
there is nothing substantive to indicate why he was being treated differently from
similar situated soldiers. This is especially important given his medical
condition and that the demotion clearly had exacerbated his medical condition. Care
in explaining the reasons for others retaining their acting rank although
released medically and the DGCFGA’s reasons why he would not grant Cpl.
Mousseau the same is essential on these facts. Just saying in response “…leads me in only one direction” is lacking in
transparency and clarity that is necessary for a decision to be reasonable.
VI.
Conclusion
[47]
The course that was a requirement (without
deciding the peripheral issue of exactly when it was or wasn’t a requirement)
was to do with armoured vehicles and explosives which was directly related to
the PTSD diagnosis after Cpl. Mousseau’s tours in Afghanistan. During the time
Cpl. Mousseau trained soldiers in his acting capacity his performance
reviews indicate he was very good at his job and his evidence is he went on to
then teach others. It was an unreasonable decision given the evidence of his
particular situation and the lack of transparency of why he was not treated the
same as others in similar situations that were retired without the course or reversion
of the rank.
[48]
In granting the judicial review there is a need
for new evidence to be filed before a new decision maker because of the
progress in the understanding of this medical condition as the case is to be
determined on a de novo basis.
[49]
In the written submissions a variety of relief
was sought some of which are not available on a judicial review such as damages
or reinstatement of rank that I am not prepared to grant as a remedy.
[50]
The Respondent sought costs at the lower range
and to follow success. Cpl. Mousseau represented himself in this matter and
when prompted at the hearing asked that I not award costs against him as it
would be a financial burden. The Respondent was not successful but given Cpl. Mousseau
has represented himself, this is a situation where I will not award costs and
each party will bear their own costs.
Email this Content