Ottawa, Ontario, April 13, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
Applicant
and
REASONS FOR ORDER AND ORDER
[1] On April 19, 2006, a judge of the Federal Court granted the applicant an extension of time within which to commence an application for judicial review of a decision to release him from the Canadian Forces. The release decision was dated September 15, 1997 and was communicated to the applicant on September 22, 1997.
[2] The respondent contends that the applicant’s failure to pursue a grievance in relation to the release decision constitutes an absolute bar to judicial review and the application must be dismissed.
[3] I conclude that, as a general rule, the grievance procedure constitutes an adequate alternative remedy. However, special or exceptional circumstances may justify a departure from the general rule. On the unique facts of this matter, this is such a case. I also conclude that the applicant’s right to procedural fairness was breached. Consequently, his application for judicial review will be allowed.
Introduction
[4] The applicant is a self-represented litigant. He made an admirable attempt to comply with the requirements of the Federal Courts Rules, SOR/98-106 (the Rules) and produce the requisite documentation for this application. In spite of his efforts, the contents of his record are disjointed. His affidavit and the attachments thereto were of sufficient concern to the respondent to prompt the filing of a motion to strike certain paragraphs and attachments. Mr. Justice Lemieux heard the motion and granted the request, in part.
[5] When litigants are self-represented, it is not uncommon to find their documentation wanting. Established rules, procedures and evidentiary matters, with their attendant niceties and distinctions, present challenges for lay persons not familiar with them. In a situation such as this, where one party is unrepresented and the other party is so ably represented, the court must be vigilant to ensure both parties are provided the opportunity to understand and meaningfully present their respective cases, regardless of representation.
[6] The applicant’s submissions at the hearing brought clarity to his written documentation. The respondent cautions that many of the applicant’s comments constitute “evidence” that was not contained in the record. The respondent is partially correct. However, it is also true that the applicant’s representations merely clarify much of the incoherent content in his affidavit and attached documents that form part of the record.
[7] My recitation of the facts is a composite of information from the record as clarified at the hearing. I exclude that which the respondent characterizes as “oral evidence” provided by the applicant at the hearing. My synopsis of the background includes only those facts that I consider to be material. Unnecessary detail, although plentiful, is omitted. Throughout these reasons, the use of acronyms is prolific. Therefore, a glossary is attached as Schedule “A”.
Factual Background
[8] The applicant served as a marine engineer in the Canadian Forces (CF) for nearly 30 years. He attained the rank of Chief Petty Officer First Class (CPO1), the highest rank in the Navy for a non-commissioned officer.
[9] In September of 1994, the applicant was diagnosed with severe depression and was referred to the National Defence Medical Centre (NDMC) in Ottawa for treatment. He returned to full-time employment in March of 1995 and had regular access to a psychiatrist. When he first returned to work, he was posted to the Fleet School (CFFS) at Canadian Forces Base (CFB) Esquimalt as a Divisional Engineering Chief. In September of 1995, he was appointed by Pacific Command to the position of marine engineering trade advisor.
[10] According to the applicant, as trade advisor, he brought specific safety violations to the attention of his commanding officers. He claims that these briefings were not well received by command and that he was told to “leave the duty watch issue alone”, to “let time take its toll” and the “issues would work themselves out”.
[11] On May 28, 1996, the Chief of the Defence Staff (CDS) visited the base for a ‘town-hall” style meeting. The applicant was present for a “gloves-off talk”. After the CDS outlined his views on the ongoing changes in the CF and the attendant leadership imperative, the applicant voiced his opinion with respect to certain problems affecting the trade. He indicated that the CDS would have his support and that of his peers, noting that “it [is] time for us to put away our golf clubs and get on with looking after the troops”.
[12] As it happened, the Rear Admiral (the Admiral) of CFB Esquimalt was an avid golfer. The applicant’s commanding officers felt that the applicant’s remarks were inappropriate and perceived them to be directed at the Admiral. The following day, the applicant was called into the Admiral’s office and was asked to clarify his statement regarding the “golf clubs”. The applicant responded that his comments were not aimed at anyone in particular. He maintained that he did not know the Admiral was a golfer. The Admiral requested an apology. The applicant refused.
[13] On June 3, 1996, while he was on annual leave (vacation), the applicant was called in to meet with the Commandant of the Fleet School to address the situation regarding the Admiral. At the meeting, the applicant avowed that he had done nothing wrong. On June 6th, he was called in to meet with the Commandant again. The applicant contends that, on this occasion, he was pressured to resign from his position as trade advisor. He refused. The Commandant informed him that an appointment had been scheduled for him to meet with the base psychiatrist.
[14] When he returned from leave, the applicant was instructed to attend at the Admiral’s office the next morning. During that meeting on June 11th, the Admiral informed the applicant that he (the Admiral) had lost confidence in the applicant because he had not been “commuting well to the trade” and was hurting morale. The Admiral further stated that the applicant’s comments to the CDS were unbecoming. The applicant was dismissed from his position as trade advisor.
[15] The applicant then requested a meeting with the Commandant. His request was granted and the meeting took place on June 17th. The applicant asked for clarification regarding his termination as trade advisor and inquired about the protocol for contacting the CDS to ascertain whether offence had been taken as a result of his remarks at the May 28th meeting. When he did not receive a response, the applicant personally contacted the office of the CDS. He also made an abuse of power complaint.
[16] On October 11th, the applicant launched a grievance objecting to his termination as trade advisor. He lodged an harassment complaint ostensibly to support the abuse of power complaint made in June. Shortly thereafter, the applicant was directed to attend for a medical examination. On October 31st he was examined by a medical officer (who held the rank of Lieutenant) at CFB Esquimalt (the first medical officer). The directive to the medical officer stated, among other things, “[m]ust have Task Statements done...[h]ave medical typed ASAP LCol Davidson will sign Friday AM then ship to D Med Red Tagged attn Maj Menard” (applicant’s affidavit, exhibit “C”, applicant’s record at p. 28).
[17] The task statements were completed and signed by the applicant on October 31st. Apparently, for reasons that are not clear from the record, they were not signed by the medical officer until January 8, 1997. The task statements were amended on February 5, 1997, by a second medical officer who held the rank of Major. Although the applicant knew of the amended task statements, there is no indication that he signed them.
[18] Meanwhile, on December 4, 1996, the first medical officer recommended that the applicant’s medical category be amended to a “permanent medical category with specific limitations on the applicant’s employment with the CF”. This recommendation was contained in a “CF 2033 Medical Examination” (the CF 2033) and a “CF 2088 Notification of Change of Medical Category or Employment Limitation” (the CF 2088). Both documents were then signed by the second medical officer. (The CF 2033 was signed on February 5, 1997 and although the CF 2088 is not dated, it is likely that it too was signed on February 5th). Both documents were then forwarded to and approved by the Surgeon General as evidenced by his signature (on both documents) on February 25th. The Surgeon General’s comments indicated that the applicant’s case was to be referred to the Career Review Board (Medical) (CRB(M)).
[19] The Director of Personnel Career Administration (DPCA) at National Defence Headquarters (NDHQ) returned the documents to the base because the signatures of the applicant and the Commandant were not on the CF 2088, as required. The applicant signed the CF 2088 on April 30, 1997. On May 2nd, the Commandant signed the document and recommended medical release. On May 5th, the documents were forwarded to the Chairman of the CRB(M).
[20] The significance of the change in the applicant’s medical category should be noted before continuing with the chronology of events. The change altered the applicant’s geographical (G) and operational (O) factors. That is, instead of being assessed at G2 and O2 (which satisfied the minimum level of employability of his occupation as a marine engineer), the applicant’s factors were downgraded to G4 and O3. Factor G4 was assigned to a member because of medical limitations inherent to the medical condition itself or because of an unacceptable risk to the health or safety of the member or fellow workers. For example, where the operational environment in relation to the medical condition was such that the member was considered unfit for two or more specific military environments or where the member generally required scheduled medical care by a medical officer more frequently than every six months, a G4 factor was assigned.
[21] Factor O3 was assigned to a member who was capable of performing the majority of occupational or physical tasks at an individual pace, but who had specific employment limitations, which could be clearly and specifically detailed, and which prevented the member from fully meeting the generic and the military occupation (MOC) task statements.
[22] Returning to the factual context, after the documents were forwarded to the Chairman of the CRB(M) on May 5th, the input and recommendation of the applicant’s career manager were obtained. The career manager stated that the applicant was employable for 87.5% of his military occupation and recommended that he be retained with restriction (RWR). However, the Section Head Lieutenant Commander recommended release on the basis of violation of the universality of service principle.
[23] On May 20, 1997, the NDHQ forwarded correspondence to CFB Esquimalt. The correspondence described the CRB(M) process and what was required from the applicant and the commanding officer. It explained that both the letter and the enclosed CRB(M) file had to be disclosed to the applicant and that the applicant had 14 days within which to make written representations to the CRB(M). The disclosure process, at the time, was effected through the chain of command. Thus, the package was forwarded to the office of the Commandant. The Commandant was to inform the DCPA “by message without delay” if the applicant did not wish to make representations.
[24] On July 3, 1997, a message was forwarded from the DCPA to the Commandant. It indicated that the correspondence and disclosure had been sent from NDHQ and signed for at CFB Esquimalt. (The individual who signed for the package was the Commandant’s secretary). However, no further message had been received by the DCPA to confirm that the information was provided to the applicant.
[25] On July 20, 1997, a CFB Esquimalt message to NDHQ Ottawa stated “[letter] and contents were transmitted to member. Regret not informing earlier. Member will not be responding”. The applicant maintains that he never received the notice and disclosure.
[26] On September 3, 1997, the applicant submitted a grievance alleging that his harassment complaint in October of 1996 had not been handled in compliance with the harassment complaint investigation policy.
[27] On September 11, 1997, the CRB(M) met to address the applicant’s employment limitations noted as:
• unfit field, sea, UN and isolated postings
• fit PT but may be limited in type, duration, frequency of the exercise.
[28] The CRB(M) noted that because these employment limitations violated the universality of service principle, percentage of employability had no application. The CF bona fide occupational requirements (BFORs) for positions such as that held by the applicant required members to perform their duties at sea. In the applicant’s case, his employment limitations did not meet all of the BFORs associated with subsection 33(1) of the National Defence Act, R.S.C. 1985, c. N-5 (NDA). Consequently, neither retention nor transfer could be considered. Release was the only alternative. The CRB(M) concluded that there was no alternative but to release the applicant on medical grounds because he was “disabled and unfit to perform the duties in the member’s present trade or employment, and not otherwise advantageously employable under existing service policy”. The applicant’s retirement date was established at March 25, 1998, or earlier if he so desired. On September 15, 1997, the DCPA approved the recommendation of the CRB(M).
[29] On September 22, 1997, the applicant was informed of the decision by his immediate superiors and received a copy of the message summarizing the finding of the CRB(M). The applicant claims that he informed his superiors at that time that he wanted to see the documents.
[30] The applicant requested (and eventually received) his military file through an access to information request, but did not receive it prior to his release. Further, he claims that he did not receive “complete information” regarding the CRB(M) file until August of 2005 when it was provided to him by the CF Ombudsman’s office. The documentation in the record supports the applicant’s representation. The date stamp of the Ombudsman’s office indicates that the documents were received by that office on July 30, 2004 and the Ombudsman’s letter to the applicant enclosing the documents is dated May 20, 2005. The Ombudsman’s correspondence explains that the CRB(M) report is contained in a file that is separate from other records regarding the applicant.
[31] The applicant maintains that he was first told to pursue the issue of his release through the Ombudsman’s office in January of 1998. The Ombudsman’s correspondence indicates that the Director Military Careers Secretariat directed [the applicant] to the Ombudsman’s office in January of 1999.
[32] On September 5, 2003, the applicant’s grievances dealing with the issues of his termination as trade advisor and harassment were denied at the highest level.
[33] By order of the Federal Court dated April 19, 2006, the applicant was granted leave to commence an application for judicial review of the September 15, 1997 medical release decision.
Issues
[34] While much time was devoted to argument relating to the merits of the CRB(M) recommendation regarding medical release, I am satisfied that this application turns on a determination of two questions as they constitute the heart of the matter.
(1) Should the applicant’s failure to submit a grievance in relation to his medical release preclude recourse to judicial review of the medical release decision? Put another way, should the court decline to entertain this application because of the applicant’s failure to exhaust the grievance process, an adequate alternative remedy?
(2) If the answer to the first question is negative, was there a breach of procedural fairness in regard to the CRB(M) hearing? The subsidiary question also arises whether, if a breach of procedural fairness did occur, the application should nonetheless be dismissed because the result would have been the same in any event.
Analysis
Adequate Alternative Remedy
[35] I stated earlier, and it is common ground, that on September 22, 1997, the applicant learned of the medical release decision and received a copy of the message summarizing the recommendation of the CRB(M) that was approved by the DPCA. It is also common ground that the grievance process at the time was governed by section 29 of the NDA (as it then read), chapter 19 of the Queen’s Regulations and Orders (QR&Os) and the applicable Canadian Forces Administrative Orders (CFAOs). QR&O Article 19.26 provided a one-year time limit for submitting a grievance. However, section 8 of CFAO 19-32 (stated to be an amplification of the regulations contained in the QR&Os) mandates that a complaint must be submitted before a member’s release from the CF. Therefore, the applicant had six months within which to grieve his release. Because he is not a member of the CF, the current discretionary provision in Article 7.02(3) of QR&O chapter 7 has no application. Grievance at this stage is not an option.
[36] The respondent forcefully argues that the applicant’s only avenue of redress is the statutory grievance procedure. To allow this matter to proceed would permit the applicant to circumvent the process legislated by Parliament to deal with such matters.
[37] The respondent relies on Anderson v. Canada (Canadian Armed Forces), [1997] 1 F.C. 273 (C.A.) (Anderson) wherein the Federal Court of Appeal determined that the grievance procedure provided for in the NDA and chapter 19 of the QR&O constitutes an adequate alternative remedy and on Vaughan v. Canada, [2005] 1 S.C.R. 146 (Vaughan) wherein the Supreme Court of Canada concluded that the court should not jeopardize the comprehensive dispute resolution process contained in legislation by permitting access to the courts.
[38] Additionally, the respondent refers to various authorities from the Federal Court holding that where an expansive resolution mechanism exists, a complainant is required to pursue a remedy through the statutory mechanism before turning to the courts for relief: Jones v. Canada (1994), 87 F.T.R. 190 (T.D.); Pilon v. Canada (1996), 119 F.T.R. 269 (T.D.); Bernath v. Canada (2005), 275 F.T.R. 232 (Proth.), overruled on appeal 2007 CF 104, A.C.F. no. 138, appeal pending. Further, the fact that the applicant may now be out of time to engage the statutory appeal process does not render the remedy inadequate for it would be anomalous if, by failing to grieve in time, the applicant could invoke the supervisory jurisdiction of the court and avoid the requirement to first exhaust his alternative remedy: Lazar v. Canada (Attorney General) (1999), 168 F.T.R. 11 (T.D.) aff’d. (2001), 271 N.R. 10 (F.C.A.).
[39] In sum, the respondent contends that the applicant had an adequate alternative remedy that he chose not to pursue. He was required to seek redress within the statutory grievance process and his judicial review ought to be dismissed for failure to pursue the adequate alternative remedy.
[40] The concept of “adequate alternative remedy” is well established in the jurisprudence. The test is whether the alternative remedy is adequate, not whether it is perfect: Froom v. Canada (Minister of Justice), [2005] 2 F.C.R. 195 (C.A.). I agree with the respondent that Anderson stands for the proposition that the grievance process mandated by section 29 of the NDA and set out in the applicable QR&Os affords an adequate alternative remedy. I have applied that principle recently in Graham v. Canada 2007 FC 210, F.C.J. No. 282 and Sandiford v. Canada, 2007 FC 225, F.C.J. No. 293. Moreover, as a general rule, it is premature to launch an application for judicial review before the grievance process is exhausted because judicial review lies normally with respect to a final decision.
[41] The respondent seeks to impose a “hands off” approach by reference to Vaughan. I agree that Vaughan is instructive, however, it was decided in the context of an action. That is, the individual had initiated a statement of claim and was suing. The court frowned on the plaintiff’s “dressing [the matter] up as a negligence action”. Parenthetically, I note that the Federal Court authorities cited by the respondent also involved circumstances where lawsuits had been launched. Additionally, Vaughan was concerned specifically with the field of labour relations, an area “long recognized as a field of specialized expertise” (para. 13).
[42] Insofar as the respondent suggests that the Supreme Court’s conclusions regarding the “general rule of deference in matters arising out of labour relations” prevailing in most circumstances applies equally to the military grievance context, the respondent misconstrues the ruling of the Federal Court of Appeal. Anderson does not stand for the proposition that the courts should adopt a “hands off” approach to the CF grievance process. Rather, the Federal Court of Appeal held that the court will not undertake a judicial review where an adequate alternative remedy exists.
[43] Thus, the pertinent question is whether the Anderson principle applies across the board and without exception. With respect, in my view, the answer must be no. In special circumstances, the court has carved out exceptions to the general rule. Prothonotary Hargreave discussed this issue in Chisholm v. Canada (Attorney General) (2003), 231 F.T.R. 155 (T.D.). See also: Loiselle v. Canada (Attorney General) (1998), 161 F.T.R. 232 (T.D.); Brown v. Canada (Attorney General) (1998), 148 F.T.R. 50 (T.D.); Hawco v. Canada (Attorney General) (1998), 150 F.T.R. 106 (T.D.); McClennan v. Canada (Minister of National Defence) (1998), 150 F.T.R. 96 (T.D.); Hutton v. Canada (Canadian Armed Forces, Chief of Defence Staff) (1997), 135 F.T.R. 123 (T.D.).
[44] In Gayler v. Canada (National Defence) (1994), 88 F.T.R. 241 (T.D.), which pre-dates Anderson, Mr. Justice MacKay concluded that the applicant was entitled to proceed by way of judicial review without pursuing the grievance process. In Anderson, the Federal Court of Appeal specifically noted that the circumstances in Gayler were different than those in Anderson thereby recognizing, by implication, that special circumstances may justify departure from the general rule. Given the discretionary nature of judicial review, this is not a surprising result.
[45] Whether special circumstances exist is a fact-specific analysis, as the post-Anderson cases have demonstrated. Exceptions to the general principle are rare and have been found to exist only where the factual circumstances warranted them.
[46] The respondent contends that each of the authorities where judicial review was granted, without resort to the grievance process, is distinguishable. I do not disagree with that position. It is exceedingly rare to find identical factual contexts. However, that does not mean that guidance cannot be derived from the jurisprudence where special circumstances were found to exist. Indeed, I find that the circumstances in the Hawco case are similar, albeit not identical, to those in this case. Counsel further suggests that if Vaughan had been available, the cases might have been decided differently. That submission is speculative at best. Moreover, for reasons that will become apparent, Vaughan, in my view, supports a determination that special circumstances do exist in this matter.
[47] I reiterate that the applicant did not bring an action against the government. He seeks judicial review of the decision to release him from the Navy. Hence, this is not a situation that gives rise to the mischief underlying the decision of the Federal Court of Appeal in Canada v. Grenier, [2006] 2 F.C.R. 287 (C.A.).
[48] Section 29.15 of the NDA specifically provides for judicial review (in the Federal Court) of a decision by a final authority in the grievance process. The issue here is narrow: do the facts reveal special circumstances warranting a finding that the applicant should be entitled to seek judicial review without first exhausting the grievance process?
[49] I should state at the outset that I am satisfied that the applicant did not have disclosure of the notice of the CRB(M) hearing or the CRB(M) disclosure package either prior to the hearing or before his release. My reasons in this respect are delineated later in my analysis under the heading “procedural fairness”. For purposes of the “adequate alternative remedy” analysis, it is sufficient to say that disclosure was not provided.
[50] The applicant claims that he wanted to grieve the release decision but was not able to obtain the necessary documents. The respondent says that beyond a single statement in his affidavit, the applicant has not provided evidence on the record to support this statement. The respondent points to the affidavit of the Enquiries and Complaints Officer with the Directorate of Canadian Forces Grievance Administration (DGCFGA) wherein that individual states that there is nothing in the DGCFA records to indicate that the applicant made an application for grievance with respect to the medical release decision nor is there anything in the records to indicate that the applicant inquired about his rights to present a grievance. These comments are not particularly helpful in the absence of any statement that such records would be made in the normal course.
[51] It bears repeating that the grievance process at the time in question was governed by section 29 of the NDA and chapter 19 of the QR&Os. Article 19.26(4) provides that an individual may complain orally where the member considers that he has suffered any personal oppression, injustice or other ill-treatment, or has any other cause for grievance.
[52] Although the chronology of the applicant’s affidavit is disjointed, at paragraph 74 he describes having been informed of the recommendation of the CRB(M). He then states, “I requested through the divisional system, information on what grounds I was being released. I was informed that I would receive those documents. I was not given that information prior to my release in April 1998”.
[53] At paragraph 81 he swears that he had not received the requested documents and wanted to grieve his release. He states that he was informed by the divisional system that, because of changes to the CF policy, the grievance regarding his medical release would have to be handled through the Canadian Forces Ombudsman. He claims that he contacted that office and a file was opened.
[54] At paragraph 82, he deposes: “5 April 1998, I was released. I had not received the disclosure documents from NDHQ. I contacted the Chief of Defence Office for help in getting the information to do with my medical release and action on my complaints”.
[55] CFAO 19-32, item 3 provides support for the applicant’s position. It states that it is the responsibility of the member seeking redress to supply the information required to substantiate the complaint. It requires that originals of correspondence and other documents pertaining to a complaint, where available, be submitted to the redress authority considering the complaint. If originals are not available, legible copies are to be submitted.
[56] The applicant’s affidavit discloses that the applicant considers himself to be professional and principled. In situations where he felt that a wrong had been committed, he did not hesitate to attempt to right it. The applicant does not strike me as a person who would sit on the fence and fail to pursue the recourse that was available to him. His belief that he needed possession of the documentation from the CRB(M) in order to submit a written grievance is not an unreasonable one.
[57] Additionally, in argument, the applicant noted that his divisional officer had acted as his assisting officer in his first two grievances and that his request for the documents was made to his divisional officer. These submissions are supported by the contents of the record. The applicant’s position is that his divisional officer had a duty to assist and did not do so in relation to the release.
[58] Turning to the respondent’s submissions with respect to Vaughan, I should comment on the respondent’s position that the “inadequacy of the process was not raised by the applicant”. Therefore, the respondent suggests that the court should be loath to tread upon ground where the applicant did not go. As I advised counsel at the hearing, when the respondent argues that specific factors of Vaughan are both relevant and applicable, the court will address the arguments. The respondent relies upon Vaughan not only in oral argument but in the written memorandum of fact and law as well. Moreover, I consider the applicant’s entire affidavit and specifically his statement at paragraph 146 that “the system is broken or does not want to deal with [the] result created by disregarding CFAOs and the legal process” as being clearly indicative of a complaint regarding the process.
[59] The respondent candidly acknowledges that the grievance process in place at the time did not provide for an “outside” adjudicator. The current process in chapter 7 of the QR&Os requires that matters of release from the CF be referred to the Grievance Board (established by section 29.16 of the NDA). The respondent submits that although this is a factor, it is not (in and of itself) sufficient to render the process not meaningful. I agree.
[60] Next, the respondent refers to Justice Binnie’s comments that the labour dispute in Vaughan was a decade old. This was considered to be indicative of the fact that the more informal dispute resolution procedures “generally are faster, cheaper and get the job done”. The respondent claims that the same can be said here because this dispute is now eight years old. According to the respondent, any allegation that the grievance procedure wouldn’t have been timely or expeditious does not hold water when eight years have passed to get to this point.
[61] The applicant’s grievance with respect his termination as trade advisor was submitted on October 11, 1996. His grievance in relation to his harassment complaint of October 1996, not being handled in compliance with policy was submitted on September 3, 1997. It took seven and six years respectively to deal with those grievances. In view of the time lines, I have difficulty with the respondent’s position in this respect.
[62] The respondent says that the dispute in Vaughan arose from the employment relationship and fell squarely within the grievance process. The same can be said here because “releases regularly occur and fall within the grievance process”.
[63] I have no reason to doubt the accuracy of the respondent’s statement. However, there are comments in Vaughan that specifically address circumstances where there are whistleblower and conflict of interest arguments. Indeed, Mr. Justice Binnie notes, in paragraph 20, the understandable reluctance of the courts to hold in whistleblower cases that the only recourse is to grieve in a procedure internal to the very one the individual blew the whistle on.
[64] Here, the record indicates that the applicant did not intend to “blow the whistle” on anyone. However, it is clear that his comments were perceived precisely in that manner (regarding the Admiral) by those in attendance at the “gloves-off” talk with the CDS (respondent’s record at p. 47).
[65] The court concluded in Vaughan that courts should generally decline – as a matter of discretion, except on the limited basis of judicial review – to become involved in matters where the statutory process provided a forum for redress. However, the court considered the matter in that case to be “run of the mill” and an “ordinary garden variety” type of matter. At paragraph 37, the court stated that “[i]f the facts in another case were to disclose a more particular and individualized conflict problem (as in the whistle-blower cases) other considerations will come into play”. Further, at paragraph 39, in relation to the absence of independent third-party adjudication, the court opined that this factor “may in certain circumstances impact on the court’s exercise of its residual discretion”.
[66] The first level grievance report in relation to “harassment” at paragraph 10 (applicant’s record at pp. 31-34) states as follows:
This case is extremely sensitive as it deals with the very senior leadership within the Navy and the observation that due process IAW CFAO 19-39 was not followed by staff within the then MARCOMHQ. It also calls into question, both directly (refA) and indirectly (the manner of the response at refJ) the issue of ethical conduct within MARPAC and MARLANT staffs.
[67] The correspondence from the Ombudsman dated May 20, 2005, indicates that Alternative Dispute Resolution (ADR) process was the recommended mechanism to address the applicant’s concerns regarding improper release as well as the related issues concerning extension of service and benefits. The correspondence also impliedly suggests, in my view, that the applicant consider other alternatives. Specifically, it states:
As mentioned to you at our meeting, the ADR process does not limit your ability to seek other avenues to address your concerns. It would be inappropriate for me to provide you with advice on what avenues you should be considering; I suggest that you speak to your legal counsel regarding this issue.
[68] At paragraphs 142 and 143 of his affidavit, the applicant states that the Ombudsman’s office contacted him to advise that the ADR was cancelled and that the Ombudsman was recommending that his complaint be settled. Subsequently, the Ombudsman’s office informed him that it was encountering difficulty getting the CF to negotiate.
[69] The applicant was not cross examined on his affidavit. Instead, the respondent chose to attack his credibility by contrasting his evidence with that of the respondent’s affiants. I have not lost sight of the respondent’s evidence. However, I do not accord it the weight that the respondent urges. For example, I do not view the affidavit of the officer previously occupying the position at the Director Naval Personnel Requirements (DNRP) through the same lens as the respondent. I will have more to say about this under the “procedural fairness” heading.
[70] The applicant’s divisional officer’s observations (as articulated in the officer’s affidavit) are telling. The respondent stresses that the applicant knew, or ought to have known, that release was a realistic possibility when the CRB(M) review was initiated. The applicant acknowledges that he knew that his circumstances were to be reviewed by the CRB(M). However, he did not think that release was a realistic or probable outcome.
[71] The applicant’s divisional officer attests that it would be extremely unusual for release proceedings [in relation to the applicant] to have been initiated without his knowledge. Although aware of the applicant’s permanent medical category and that his circumstances were to be reviewed by the CRB(M), the officer deposes that compulsory release was only one of the possible outcomes because “there is a distinction between review of a member’s career for medical reasons and release proceedings” (para. 25 of affidavit). This corroborates the applicant’s position.
[72] In the same breath, the applicant’s divisional officer states that although the applicant’s 1996/97 personal evaluation form (PER) makes “no mention of release only that the CRB would change his medial category... in my [the divisional officer’s] experience a Chief Petty Officer with years of service and experience of the applicant would understand what a CRB(M) was and that a possible outcome of such a review could be compulsory release for medical reasons” (para. 18).
[73] With all due respect, it seems to me that the applicant’s divisional officer has missed the applicant’s point. When the applicant went to sign his 1997 PER – which the divisional officer deposes that he (the divisional officer) prepared and then witnessed when the applicant signed in his presence and the presence of the Commandant on June 30, 1997 – there was no reference in the PER that less than two months earlier (May 2, 1997) the Commandant had recommended medical release on the applicant’s CF 2088 form. Because of the Commandant’s recommendation (unbeknownst to the applicant) the more serious consequence of the CRB(M) hearing – that the applicant could be medically released – was a very realistic possibility. Thus, although it is true that a CRB(M) hearing could result in a number of potential outcomes, the applicant asks how likely would that be when the Commandant had recommended medical release? Until the applicant obtained disclosure of the documentation, he was not aware that the Commandant had made such a recommendation (the applicant executed the CF 2088 before the Commandant recommended the release on the same form, on May 2, 1997).
[74] Moreover, I regard the divisional officer’s comments at paragraph 17 of his affidavit with scepticism. He states that the PER of 1997 unlike the PER of 1996 mentions “factors outside the control of both [the applicant] and CFSSE [the Fleet School]”. By the time this PER was completed, “we had finally received a CF 2088 form, updating the applicant’s permanent medical category reflecting his actual medical limitations. Even then, this PER reflects our attempts at the Fleet School to accommodate the applicant. We chose to not make overt reference to a ‘medical’ condition out of consideration for the applicant”.
[75] By June 20, 1997, the applicant ought to have been apprised of the Commandant’s recommendation for medical release. The NDHQ message sent on July 3, 1997 indicates that the CRB(M) disclosure was sent to CFB Esquimalt on May 20, 1997. The divisional officer’s justification for the vagueness of the comments in the 1997 PER is suspect because, at that point (had the CRB(M) disclosure been made) everyone present should have been aware that the applicant had been recommended for medical release. There would have been no need for such “consideration”.
[76] At the end of the day, the question why the applicant’s divisional officer (and assisting officer on two of the applicant’s grievances) would think that compulsory release was only “one of the possible outcomes” looms large. In my view, it is more probable that the applicant’s superiors knew that the applicant had been recommended for medical release, but chose not to disclose it to the applicant. Rather, the preferred course was to allow the applicant to think that the CRB(M) hearing could result in a number of possible outcomes. In paragraph 26 of his affidavit, the officer states that he learned “in September of 1997 that a CRB(M) was held for the applicant on September 11th”. He goes on to explain that compulsory release cannot commence until such a decision is made.
[77] Again, the divisional officer misconstrues the substance of the applicant’s position that disclosure of the CRB(M) proceeding was effected through the chain of command (respondent’s record at pp. 202-203). It is doubtful that the divisional officer would not have been aware that the Commandant had recommended release on May 2, 1997.
[78] The legislation required the grievance process to proceed through the chain of command. When regard is had to the totality of the circumstances in this matter, in my view, it falls squarely within the special circumstances envisioned in Vaughan. More importantly, for the reasons set out above, it does not fall within the context that was present in Anderson. Additionally, I do not overlook the fact that a judge of this court granted the applicant an extension of time within which to apply for judicial review. The criteria articulated in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.) would have been considered.
[79] Consequently, I conclude, as in Hawco, that it appears that failure to pursue a grievance “can hardly be attributed to the applicant, except in the most formal sense”. In the circumstances, I am not prepared to dismiss the application on the basis that an alternative remedy existed. The remedy does not exist now. It is in the interests of justice to the parties that the most expeditious disposition of the matter be effected. The applicant cannot grieve the medical release decision. ADR possibilities have not materialized. The most expeditious route is to entertain the application for judicial review.
[80] The circumstances in this case are not routine and are certainly not of the “garden variety”. The facts before me are such that it constitutes an exception to the general rule. The applicant is entitled to a decision in relation to his application for judicial review in spite of the fact that, technically, he did not pursue the internal grievance mechanism.
Procedural Fairness
[81] The applicant acknowledges that he was aware that the CRB(M) was going to be reviewing his medical classification. However, he claims that he was not notified of the hearing date and did not receive the CRB(M) disclosure package.
[82] The importance of the disclosure is underscored in the NDHQ correspondence from the former DCPA dated May 20, 1997. There, the DCPA stated that, to ensure that the process “is open and fair”, the member was to be notified of the CRB(M) and be provided with “all the material that the Board will use in reaching its decision”. The correspondence further indicated that the member “has the right to provide to the Board any written representation or any other material which the member feels would assist the Board in reaching a just recommendation”.
[83] The applicant, throughout his affidavit, insists that he did not receive the disclosure package (applicant’s affidavit at paras. 66, 69, 74, 81, 82, 83, 91, 103, 104, 105, 110, 118, 121, 137, 144, 146). I repeat myself. The respondent did not cross-examine the applicant. Rather, the respondent attempted to undermine the applicant’s credibility by pointing to inconsistencies between the evidence of the applicant and that of the DGCFGA. In my view, the inconsistencies are not material. There is no dispute that there was communication between the applicant and the DGFGA. The debate centers on the content of their discussion and specifically on the issue of “compensation”. It appears to be more a question of interpretation or miscommunication than credibility.
[84] The only evidence that can be said to be contradictory to that of the applicant is the Deputy Commandant’s. A message dated and forwarded to NDHQ on July 8, 1997, is stated to be from the Deputy Commandant. That message indicated that the letter and contents (the disclosure package) were transmitted to the member and the “member will not be responding”.
[85] The affidavit of the Deputy Commandant, sworn for purposes of this proceeding, indicates that he does not have actual recollection of sending the message. He states that, based upon his limited recollection, he does not believe that he personally provided the applicant with the documents. The officer then states, “[h]owever, had I sent the message...I would not have done so without confirming the information contained therein” (my emphasis).
[86] The applicant, on the other hand, explains that when his efforts to obtain the documents through the divisional system failed and he had not received them before his release, he persisted in his efforts to obtain them. He submitted an access to information request, contacted the CDS office and sought the release of the documents from the Ombudsman’s office. As noted earlier, the correspondence from the Ombudsman’s office supports the applicant’s position.
[87] I cannot fathom that the applicant would steadfastly continue his pursuit of the documentation if it had been disclosed to him. In the circumstances, I attach very little weight to the equivocal recollection of the Deputy Commandant and find, as a fact, that the applicant did not receive notification of the date of the CRB(M) hearing nor did he receive the disclosure package to which he was entitled.
[88] Counsel for the respondent candidly and appropriately conceded that if I were to find that the applicant did not receive notice of the hearing and disclosure, then the case for breach of procedural fairness would be made out. In the written submissions, the respondent argued that even if a breach of procedural fairness did occur, the result would have been the same in any event because of the universality of service principle.
[89] To his credit, the respondent’s counsel did not strenuously push this position at the hearing. Therefore, it is not necessary to review the universality of service principle that is provided for in subsection 33(1) of the NDA. The respondent’s counsel agreed that had disclosure been made, the applicant, if he chose, could have obtained an independent medical assessment and presented it to the CRB(M). More importantly, the applicant could have addressed the “recommended for retention” categories that enable the CF, in its discretion, to depart from the default position (release for violation of the universality of service principle). I believe that it is fair to assume, given the applicant’s demonstrated conviction and tenacity, that he would have elected to make written representations to the CRB(M).
[90] Thus, while I am unable to conclude, had disclosure been made, that the result of the CRB(M) review would have been different, neither can I conclude that it would not have been. Either way, I would be speculating.
[91] The applicant was entitled to a fair hearing. That did not happen. There was a breach of procedural fairness and the matter must be remitted to the CRB(M) for determination in accordance
with the rules of procedural fairness. In view of my conclusion, I need not address the arguments regarding the merits of the CRB(M) decision.
[92] The applicant’s requests for re-enrolment in the CF, pay and associated benefits are beyond the jurisdiction of the court on judicial review. Costs are not awarded to self-represented litigants. However, the applicant is entitled to his taxable disbursements.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted for determination before a differently constituted Career Review Board (Medical). The applicant is entitled to taxable disbursements.
Judge
SCHEDULE “A”
to the
Reasons for order dated April 13, 2007
in
WILLIAM DAVID GERARD JONES and
ATTORNEY GENERAL OF CANADA
ADR Alternative Dispute Resolution
BFOR bona fide occupational requirement
CDS Chief of the Defence Staff
CF Canadian Forces
CFAOs Canadian Forces Administrative Orders
CFB Canadian Forces Base
CFFS Canadian Forces Fleet School
CF 2033 Canadian Forces Medical Examination
CF 2088 Canadian Forces Notification of Change of Medical Category or Employment Limitation
CPO1 Chief Petty Officer First Class
CRB(M) Career Review Board (Medical)
DGCFGA Director of the Canadian Forces Grievance Administration
DNPR Director of Naval Personnel Requirements
DPCA Director of Personnel Career Administration
NDA National Defence Act
NDHQ National Defence Headquarters
NDMC National Defence Medical Centre
OR&Os Queen’s Regulations and Orders
RWR retained with restrictions
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-714-06
STYLE OF CAUSE: WILLIAM DAVID GERARD JONES
v.
AGC
PLACE OF HEARING: Victoria, British Columbia
DATE OF HEARING: March 1 & 2, 2007
AND ORDER: Layden-Stevenson J.
APPEARANCES:
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Mr. William David Gerard Jones
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Mr. Ward Bansley
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SOLICITORS OF RECORD:
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Mr. William David Gerard Jones on his own behalf
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John H. Sims, Q.C. Deputy Attorney General of Canada |