Disingenuous Offers of ‘Informal Resolution’
Lately I have noticed a disturbing trend in the use of purported ‘Offers of Informal Resolution’ of CF grievances, which are, in reality, thinly veiled attempts by CF decision-makers to mitigate against potentially adverse judicial review by either coercing or ‘bribing’ CF grievors into accepting these so-called offers of informal resolution.
Underlying Normative Rational for Informal Resolution
The normative concept behind an informal resolution is to ensure flexibility in resolving complaints within the administration of the affairs of the Canadian Forces. Conceptually, nothing bars various statutory decision-makers in the Canadian Forces – even if they are not expressly described in the legislated grievance process – from offering a remedy to a grievor or complainant, preferably in a timely fashion.
However, this normative concept appears to have evolved into what I characterize as a ‘litigation avoidance mechanism’ within the context of the Canadian Forces grievance process. Rather than statutory decision-makers offering timely and meaningful informal resolution at an early stage in a grievance – including (and perhaps, ideally), before a grievance, submitted under section 29 of the National Defence Act (NDA) becomes necessary – it has developed into a tool whereby an initial authority (IA) or final authority (FA) seeks to offer an ‘informal resolution’ instead of actually considering and determining a grievance. Based upon the context in which many of these so-called ‘offers’ are extended, they appear to be a thinly veiled attempt to trigger article 7.26 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) in order to bar any continued grievance or litigation.
Frankly, the capacity to seek an ‘informal resolution’ arises before a grievance – meaning, a grievance, reduced to writing, signed by the grievor, and submitted to the grievor’s commanding officer in accordance with article 7.06 of the QR&O – is submitted. A CF decision-maker – any CF decision-maker – is not precluded from identifying the errors, omissions, and improper action and taking appropriate action to correct a problem. I suggest that this is a fundamental principle of leadership in addition to a sensible approach to the application of statutory powers and principles of administrative law. This should not come as a surprise: respect for the rule of law and the proper exercise of statutory powers is reflective of good leadership. They are not mutually exclusive concepts, no matter how hard some senior CF leaders try to demonstrate otherwise.
Proper Timing for Informal Resolution
The most advantageous timing for ‘informal resolution’ – for the grievor, for the decision-maker, for the Canadian Forces – is often the earliest possible opportunity. That likely goes without saying – it is generally much better to solve problems earlier than later. Yet, the fact that I feel compelled to state the obvious, when discussing CF grievances is indicative that such obvious principles may be lost on some statutory decision-makers.
The ideal time for ‘informal resolution’ of disputes is not, I suggest, four months or more after a grievor has been obliged to reduce his or her grievance to writing and submit it to his or her commanding officer in order to trigger the statutory grievance process. It is not, I suggest, shortly before the IA is obliged to “… consider and determine …” the grievance. Frankly, if an IA is going to wait until after a grievance has been submitted, analyzed, and additional documentary disclosure has been provided to the grievor, the IA might as well consider and determine the grievance.
But that appears to be a trend, and that trend is what has given rise to the present Blog article.
Content of Offers of ‘Informal Resolution’
Often, I have noticed, the informal resolution offered by a redress authority – typically, but not exclusively, an IA – will present only a partial redress. The nature of the redress will vary based upon the subject, scope, and severity of the grievance. However, one consistent aspect of these ‘offers’ that I have noticed over the past few years is that they typically do not offer all of the redress that a grievor seeks. Granted, in some cases, a grievor might seek redress that is not warranted. In other cases, the grievor may seek redress that the IA cannot provide (which tends to suggest the subsequent question: why is an officer who cannot provide redress acting as the IA?). It may be that the grievor is seeking redress that no CF decision-maker could provide (which prompts the question: is the CF grievance process always an adequate alternative remedy?).
My principal contention is this: in addition to a lack of timeliness, these so-called ‘offers of informal resolution’ often only offer partial redress.
Ironically, where an IA (of FA) proposes to offer all the redress that a grievor seeks, the grievances will usually be “… considered and determined …” by the IA or FA. In other words, the grievor will received a “decision letter”. It appears that ‘informal resolution’ is used where the grievor will only be given ‘partial redress’.
Why is that?
The answer should be a cause for concern of anyone who is interested in military justice – in its broadest definition – in the Canadian Forces.
When is this Tactic Used?
One of the more contentious aspects of this tactic arises when it is used for grievances that require the adjudication of contested facts, particularly where credibility is at stake. It is exceedingly rare for the Military Grievances External Review Committee (MGERC) to conduct a hearing for a grievance adjudicated by the Final Authority. Consequently, a CF grievance is essentially adjudicated as a ‘paper hearing’ – meaning that the determinations (decisions) by the IA and FA are based upon the review of a documentary file. It is often difficult to test credibility in a ‘paper hearing’. For one, cross-examination of witnesses (i.e. people who purport to provide factual evidence) is not feasible. For another, the content of the evidence is largely static, notwithstanding that some grievance staff may make limited inquiry into potential evidence. Frankly, grievances, as they are conducted in the CF, are rudimentary and often unsatisfactory fact-finding mechanisms.
As incidents of maladministration and abuse of power increase in the administration (or maladministration) of Op HONOUR – or, indeed, in any area of administration of the affairs of the Canadian Forces – the potential for grievances arising from contested facts will also increase.
While the underlying factual basis of allegations brought against a CF member may be in dispute, the actual handling – and mishandling – of such complaints by the chain of command will largely be well established by the documentary record of that administration. The records generated and maintained by the CF will tend to signal what was, and was not, done. It will be possible to track the process or processes that were, and were not, used, and how they were used.
Over the past several months, I have noted particular forms of maladministration that have given rise to grievances. While those specific shortcomings will be the subject of Blog articles in the near future, my focus in the present article is on the use of ‘informal resolution’ as a disingenuous tactic by the chain of command to mitigate against adverse judicial review when such maladministration comes to light.
It is largely indisputable that the Canadian Forces hierarchy, like the government, prefers to avoid litigating matters where a judgment could either set a precedent that could be used against future governmental decision-making or where it might expose trends in maladministration that could be cited in future, similar, cases. In addition, the CF hierarchy really does not like to admit when it makes a mistake, particularly when such errors arise from widely touted policy choices. These two ‘aversions’ demonstrate a strong motivation to employ ‘litigation avoidance mechanisms’.
Indeed, the statutory grievance process under the NDA may be characterized as a litigation avoidance mechanism in general. It presents a so-called ‘adequate alternative remedy’ for ‘employment disputes’ by members of the CF. Generally, before a CF member may bring an application for judicial review before the Federal Court for most aspects of the administration of the affairs of the Canadian Forces, the CF member must exhaust this ‘adequate alternative remedy’.
And that brings us to the likely intent behind many ‘offers of informal resolution’.
Likely Intention Behind the Tactic
In some cases, ‘informal resolution’, which should typically be offered early in the resolution of a complaint, is being offered at a point in time when the relevant ‘redress authority’ should actually be considering and determining a grievance. Rather than offering a detailed analysis of why the proposed resolution is justified, a grievor is essentially offered a ‘take it or leave it’ resolution. These offers are often accompanied either by little or no analysis or non-committal commentary by some staff officer. Sometimes there will be a veiled indication or insinuation that an actual determination of the grievance will take much longer. If the grievance is before the FA, it may be accompanied with an indication that there is no limitation period imposed on the FA regarding the determination of a grievance. A grievor can be left with the impression that, if he or she declines the ‘informal resolution’, the grievor may well not receive the IA staff’s summary and analysis for several weeks.
This tactic prompts the reasonable question: If the IA/FA is approaching the point at which she or he must consider and adjudicate the grievance, they why is an ‘informal resolution’ being offered? Why not simply make the decision?
I suggest that the redress authorities extend these offers in lieu of “… considering and determining …” grievances in order to achieve two advantages for the sole benefit of the decision-maker and which can work to the disadvantage of the grievor.
First, the redress authority and the authority’s staff avoid having to offer analysis in support of the IA’s (or FA’s) intended decision. The tactic has the advantage of offering reduced effort for the IA staff and greater certainty of outcome for the IA. In other words, notwithstanding that CF decision-makers control almost all aspects of the grievance process (as well as the administrative processes that typically give rise to grievances) the IA (or FA) is seeking to obtain the additional advantages of ‘economy of effort’ on the part of his grievance staff and ‘certainty of outcome’ insofar as the grievor would be precluded from grieving this matter further. Institutionally, it appears that IA and FA are focused more on the benefits that might accrue to IA, FA, and their staff, through the use of ‘informal resolution’, rather than improving the timeliness and effectiveness of the grievance process, to the benefit of grievors and the entire CF.
And the ‘certainty of outcome’ can be disingenuous when accompanied by little or no actual analysis from the IA (or FA) and the staff. The redress authority is able to avoid the possibility that, if the grievor is not satisfied with the outcome, the grievor might: (a) in the case of a decision before the IA, grieve the decision further to the FA; or, (b) in the case of a decision before the FA, seek judicial review before the Federal Court. Under article 7.26 of the QR&O, if a grievor accepts the ‘informal resolution’, the grievor would be precluded from seeking further resolution from a ‘higher authority’. And I contend that this tactic is increasingly becoming common-place for many grievances in which the factual and procedural basis for the grievance demonstrates maladministration or abuse of authority by CF decision-makers.
While this Blog is not intended as legal advice for CF grievors and personnel, I do suggest that any recipient of an ‘offer of informal resolution’ should bear in mind the maxim caveat emptor – “buyer beware”. There is a risk that when grievance staff communicate an ‘offer of informal resolution’ they are trying to ‘sell’ a grievor something. And it might just be a ‘bill of goods’. A grievor should ask him- or herself: What are they ‘selling’, and am I willing to ‘buy’ it? If the offer is not to a grievor’s liking, a grievor should remember that one of the very few duties imposed on a redress authority under the NDA and QR&O (compared to the several and varied duties imposed on grievors) is that the redress authority must “… consider and determine …” a grievance. A grievor is entitled to a decision, with reasons. A grievor is also entitled, eventually, to seek review before the Federal Court. If a grievor surrenders these rights, it should be for a good reason.