Grievance Myths – Mandatory ‘Consent’ to Disclose Personal Information
The third and final topic in this Blog series on Myths of the Canadian Forces (CF) grievance process concerns the Consent Form for the use and disclosure of personal information. This Consent Form is invariably employed, in a mandatory and default manner, when a member of the CF chooses to grieve a decision, act, or omission in the administration of the affairs of the Canadian Forces.
The use of this form is so ubiquitous and routine that its significance is likely lost on a great many grievors.
The purported consent conveyed in the form is very broad and, notwithstanding that it acknowledges that the “…Canadian Forces and the Military Grievances External Review Committee are committed to respecting the privacy of individuals whose grievances are being considered …”, the nature and use of this form ought to be of concern to any CF member who uses the CF statutory grievance process.
In particular, CF members need to be alive to the factor that many staff, administrators, and decision-makers involved in the CF grievance process appear to be under the erroneous impression that the completion of this form – or, more specifically, the granting of consent conveyed in this form – is mandatory if the CF member wishes to make use of the CF grievance process.
As with the voluntary ‘Notice of Intent (NoI) to grieve’, that is simply not true.
And what should be of concern to CF members who employ, or may employ, the CF statutory grievance process, to CF statutory decision-makers, and to the Canadian public, is that some staff, administrators, and decision-makers have indicated to grievors that they will not be able to proceed with their grievance – i.e. their grievance will not be registered in the CF grievance system and will not proceed to adjudication before the appropriate Redress Authority – unless the grievor signs the consent form.
And that is not just improper – it is an unlawful fettering of a CF member’s statutory right to grieve under the National Defence Act (NDA).
It is likely that this issue – or, perhaps more accurately, dispute about this issue – does not arise all that frequently. That is likely because of the rote or routine nature in which this form is administered. A grievor’s Assisting Member will inform the grievor that he or she must sign the form for their grievance to proceed. The grievor, following the advice of the Assisting Member, does so. The Assisting Member, who might not be a particularly senior or experienced member of CF, likely formed that conclusion based upon either direction or information from a more senior CF member or from grievance staff at Director Canadian Forces Grievance Authority.
It likely only becomes an issue when a grievor is sensitive about the use and dissemination of his or her personal information. This could be due to the grievor’s belief that his or her personal information was not managed properly in the past. It could be due to the sensitive nature of the grievance. In particular, CF personnel are often concerned (and with good reason) about the management, use, and dissemination of their medical information that is within the control of the CF.
In any event, although it is uncommon for CF members to balk at completing this form, when they do object, they will often be told, usually from someone in a position of authority (e.g. an Adjutant, an Officer Commanding a sub-unit, or even a commanding officer) that their grievance will not proceed unless they sign the disputed Consent Form. This response may be couched in phrasing that attempts to convey that the decision-maker or administrator is attempting to be of assistance to the grievor. However, the crux of the response remains that the grievance will not proceed until and unless the grievor provides broad, and largely uninformed, consent to the use and disclosure of personal information.
And that is more than just problematic; it is unlawful.
And my concern is that, despite past occasions when the ‘mandatory’ use of this consent form has been rightly disputed, CF decision-makers, staff, and administrators continue to perpetuate this unlawful approach to managing the CF grievance process.
Let’s look at an example of what might unfold (and, yes, this example is a ‘ripped from the headlines’ example based upon my own experiences):
A grievor – let’s call her Sergeant I.M. Aggrieved – writes a grievance, signs it, and submits it to her commanding officer (CO). As is typical in most units, she does not submit it personally to her CO. She submits it to her chain of command, for transmission to the CO. It arrives, unsurprisingly, on the desk of the unit Adjutant, Captain Blinders. Captain Blinders notices that the grievance is not accompanied by the ‘Consent Form’ for the disclosure of personal information. So, Captain Blinders contacts Sergeant Aggrieved, and her Assisting Member, Lieutenant Helpful, and indicates that Sergeant Aggrieved must complete the ‘Consent Form’ and submit it with her grievance. Lieutenant Helpful is informed that the ‘consent form’ is necessary, and so advises Sergeant Aggrieved.
However, Sergeant Aggrieved is concerned about the breadth of the consent that she is apparently obliged to give, particularly when it does not appear to be necessary. She seeks independent legal advice, at her own expense. Let’s assume that the content of that independent legal advice is that this requirement is not prescribed in the governing legislation and that she is not obliged to consent to broad disclosure of personal information, particularly when she is uncertain what personal information might be considered ‘relevant’ by any subsequent grievance staff, administrators, or decision-makers. Consequently, Sergeant Aggrieved objects to the use of the form and informs her chain of command that she will not sign the Consent Form.
In response the Adjutant replies:
I have received your grievance. I did not receive a Consent Form. I have received confirmation from the Canadian Forces Grievance Authority (CFGA) that a waiver is required. Therefore, you have two options:
WRT issues of waivers, as the Adjutant, I have the legal authority to review the contents of any grievance, on behalf of the CO. However, in the event that your grievance requires other advisors to review certain aspects of it, or requires higher-level review, you would have to waive the rights of privacy in order to ensure the right people review your documents (only as required) and the right decision is made. If you do not provide a waiver, your grievance cannot be processed.
The response from Captain Blinders represents both an over-simplification of the application of the Privacy Act, and a series of erroneous assertions, beginning with the characterization of the form as a ‘waiver’.
First, consent relating to the disclosure or use of personal information is not a ‘waiver’. The fact that it is viewed as a ‘waiver’ is indicative of the problematic entrenched mind-set that appears to govern this approach.
Second, note that the person communicating with the grievor is invoking ‘appeal to authority’ – the Canadian Forces Grievance Authority says you have to sign the Consent Form. But he does not cite any express requirement in legislation or notoriously published policy. He may have included a Defence Administrative Order or Directive (DAOD), such as DAOD 2017-1 Military Grievance Process, as a reference to his communication. However, he does not cite an express policy requirement (principally because no such express requirement exists). He simply relies on an appeal to a centralized ‘authority’. Fair enough, I’ll see your CFGA and raise you a Parliament and a Governor in Council that say that you don’t have to do so.
Third, this response appears to presume that the only relevant level of review is the first, or IA, level. That is not accurate. The consent applies to the grievance, which could proceed to the final authority (FA) level. Indeed, with the closed-minded and legally dubious approach exemplified by unit staff, that may well be a likely consequence.
Fourth, note the ‘trust me’ comment that accompanies the sentiment of ‘use this form, or else’. That is a particularly remarkable comment. A grievor has already demonstrated that she has concerns about the obligatory nature of the Consent Form. A CF member who has been forced to grieve an issue in order to obtain a remedy is likely already going to have diminished trust in his or her chain of command. An objection over a form that the grievor is told is ‘mandatory’ is a manifestation of such distrust. Then, a member of the grievor’s chain of command, in the process of directing (unlawfully) that the grievor must sign an obligatory Consent Form, offers a reassurance to the effect of “Trust me, no one is going to misuse your personal information.”
And this is subsequently followed by a reminder that the grievor’s window to grieve is closing, so the grievor had better hurry up and comply with the strong-arm tactic applied to the completion of the Consent Form or the grievor will lose her opportunity to grieve.
I’m sure that will instill confidence in the chain of command and their approach in this matter.
Oh, and as a couple of asides:
I wouldn’t want anyone to conclude that I am being overly harsh regarding the Adjutant, Captain Blinders. He, like his ‘real life’ counterparts, is likely trying to present a valid justification for this generic ‘consent form’ that he has been told must be used. He consulted the ‘experts’ at CFGA. I suppose I could be exigent with him and suggest that, if he read the relevant legislation and policy governing the CF grievance process – all of which is publicly available – he would be able to observe that neither the legislation nor the policy directs that this form is obligatory. However, most Adjutants in the CF are not lawyers, and have limited knowledge of public and administrative law, even generally. That would likely be improved if the CF had a ‘statutory decision-maker’s course’, but that is a Blog post for another day.
But something to which Captain Blinders does have access – and to which Sergeant Aggrieved did not – is free legal advice from his unit legal advisor. And the expert staff at CFGA have access to free legal advice from their legal advisors as well. Unlike Sergeant Aggrieved, they don’t have to pay for legal advice out of their own pockets. Consequently, I suggest that it behoves them to ensure that their actions and diktats are supported by cogent legal analysis.
Unfortunately, in my experience, when a grievor, or any other CF member, retains private counsel to assist with administration of the affairs of the CF that affects those individual members of the CF, their decision to retain counsel can tend to cause CF decision-makers and staff to adopt an entrenched mind-set. And such an inflexible approach to such matters serves no one well.
What is the problem with the Consent Form?
I contend that it is improper for any representative of the chain of command to insist that any grievor must complete the Consent Form in order to proceed with their grievance. Regardless of whether a grievor submits that, or any other, Consent Form, a CO is obliged to accept (and process) a grievance if it meets the legislative requirements under s 29 of the NDA and Chapter 7 of the QR&O, specifically, article 7.08 of the QR&O.
The Consent Form is not a waiver. It is problematic to characterize it in such a fashion. No grievor is obliged to waive any privacy rights or interests in the completion of a grievance. Indeed, the intent of the form is, presumably, to permit the grievor to consent to the use and disclosure of personal information in accordance with section 7 and subsection 8(1) of the Privacy Act.
One of the principal problems with our fictional Adjutant’s direction arises from the statement “… in the event that your grievance requires other advisors to review certain aspects of it, or requires higher-level review, you would have to waive the rights of privacy in order to ensure the right people review your documents (only as required) and the right decision is made.”
This misconstrues the operation of the Privacy Act in relation to the NDA and the CF grievance process. It appears that the Adjutant is asserting that Sergeant Aggrieved’s grievance cannot be reviewed or considered by the IA or FA, or their respective staff, if she does not waive her rights under the Privacy Act. That simply isn’t correct. And it certainly would not require the sort of broad consent implied in the default Consent Form.
As assurance that her privacy rights would be respected, the Adjutant indicates that he can inform her if anyone other than he or the CO reviews her grievance or personal information. While I would not doubt the Adjutant’s sincerity, I doubt that he can make that promise, particularly as the grievance progresses through the CF grievance system. More pertinently, the assurance that Sergeant Aggrieved requires is already captured in the Privacy Act, which does not require her to give her consent in such a broad manner.
The Adjutant assures the greivor that her broad consent will ensure that the ‘right’ people will see her personal information and ‘only as required’. That’s all well and good, but it invites the question: as determined by whom? Because it certainly isn’t based upon any specificity in the consent that is sought from the grievor. The content of the Consent Form tends to suggest that the people accessing and using the personal information are the same people who will determine if they have the right to do so based upon the ‘consent’.
Our fictional Adjutant also alludes to the database described as the ICRTS and asserts that ICRTS managers review files to make sure they are completed properly. Consequently, the ‘waiver’, according to the Adjutant’s description, is required, and failure to sign the ‘waiver’ will bar the grievance from proceeding.
I have no doubt that the ICRTS is used to register and track grievances and that, as with many CF administrative processes, administrative staff will apply rote checklists to that process. However, if someone is suggesting that a grievance, which complies with the requirements established under the NDA and Chapter 7 of the QR&O, will not be accepted, considered, and determined by an IA (and, if necessary, by an FA), because the grievor has not completed a locally produced form that is not obligatory under the relevant legislation, then I suggest that the Canadian Forces Grievance Authority, upon which our fictional Adjutant relies in his ‘argument from authority’, will need to offer more precise justification.
One of the principal problems with the Consent Form, as drafted, is that it is exceptionally broad and does not give rise to a reasonable conclusion that the grievor is offering informed consent. This is particularly the case where CF administrators cannot adequately explain why the Consent Form is even necessary. And a simple assertion “… if you don’t complete it, your grievance will not proceed …” is markedly insufficient for that task. Similarly, it is insufficient to assert that it is a necessary component of someone’s checklist where that purported ‘checklist’ is not articulated in DAOD 2017-1, and is certainly not found in any of the relevant legislation. It is simply not a valid explanation in light of the legislative context of the grievance process.
I understand that CF administrators can become quite attached to their checklists. I can understand that derogation from what is considered the norm tends to make such administrators uncomfortable. But if someone within the CF grievance process is suggesting that a broad Consent Form, which is typically unaccompanied by any independent legal advice, and which is not prescribed in the relevant legislation, is a mandatory requirement for a CF member to exercise her statutory right of grievance, then CF grievors are going to require a better reason, and one solidly grounded in law. This is particularly true where that statutory right to grieve is consistently cited as a bar to other forms of remedy, including litigation.
I suspect that some administrators believe that they require supplemental consent from a grievor for a grievance to proceed. I contend that this belief is predicated upon an erroneous or incomplete understanding of the application of the Privacy Act. However, I can still conceive why such a belief has persisted.
I contend that CF administrators adhere to this broad Consent Form as a means to access, ‘lawfully’, any record that they believe might be relevant to a grievance. When a grievor submits his or her grievance, the grievor will tend to submit documents that support the grievor’s request for redress or remedy. It is possible that CF decision-makers, policy-makers, and administrators are concerned that a grievor might be selective about the information that the grievor submits with his or her grievance. They may be concerned that the grievor will submit only information that favours the outcome that the grievor seeks. (You know, in a manner similar to how Director Military Careers Administration (DMCA) and her staff tend to include in their boiler-plate Administrative Reviews under DAOD 5019-2 only the documentary evidence that supports their desired conclusions).
Consequently, I suspect that some administrators, policy-makers, and decision-makers view the consent conveyed in the Consent Form as a ‘blank cheque’ that empowers them to seek and obtain any personal information pertaining to the grievor that is within the CF’s control that they believe might be relevant to the grievance.
It is likely that many of the grievors who do object to the mandatory use of this Consent Form are concerned that their ‘mandatory consent’ could be used for broad ‘fishing expeditions’ by CF staff and decision-makers regarding information that is not relevant.
And, frankly, the requirement for such consent – presuming that it would actually be used in the restrained manner suggested by our fictional Adjutant – remains unclear. The broad and generic Consent Form does not appear to take into consideration potential circumstances regarding the use or disclosure of information for the purposes for which it was gathered, or consistent use, both of which are permitted under sections 7 and 8 of the Privacy Act.
Section 7 of the Privacy Act states:
7 Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except
(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; or
(b) for a purpose for which the information may be disclosed to the institution under subsection 8(2).
Subsection 8(2) of the Privacy Act lists a variety of conditions under which personal information under the control of a government institution may be disclosed. While I do not propose to conduct a comprehensive examination of the provisions under subsection 8(2) of the Privacy Act, I do wish to offer some observations regarding what is meant by the purpose for which information is compiled by a government institution or ‘consistent use’, as indicated in para 7(a) of the Privacy Act.
The descriptions of the various databanks of information compiled by federal government institutions regarding their ‘employees’ (including members of the CF, notwithstanding that they are not in privity of contract with the Crown) are published in, and accessible via, Info Source. This information is relevant to the interpretation of the application of the Privacy Act and Access to Information Act. And there is information pertaining to National Defence (including both the Department of National Defence and the Canadian Forces).
By way of an object example, let’s assume that Sgt Aggrieved’s grievance concerned her Annual Performance Evaluation Report (PER). Presumably, when she submitted her grievance, she would have included, as an enclosure, the impugned PER. She may have also included other personnel evaluation information that she believed was relevant.
The PER databank for the Canadian Forces is identified as DND PPE 838. Here’s how Info Source describes the purpose of DND PPE 838: “The purpose of this electronic bank is to: maintain a record of performance on the job and determine on a continuing basis the relative merit/suitability of members for: other management administrative decisions, promotion, release, retention, and training.”
The consistent use of this information is described as: “To support decisions regarding promotions, transfers, demotion, employee assistance, discipline and termination of employment.”
So, if Sgt Aggrieved is grieving a PER, why is broad and ambiguous consent for the use and disclosure of personal information (including, potentially, sensitive medical information) required from Sgt Aggrieved? In light of the sheer breadth of the consent described in the Consent Form, how is that informed consent? And if it is mandatory if Sgt Aggrieved wishes to use the statutory grievance process that she is compelled to use to resolve such a complaint, how is that consent at all?
If, in the unlikely event that CF decision-makers and administrators require access to additional information that they believe is not described in section 7 or subsection 8(2) of the Privacy Act, wouldn’t it be more prudent, and appropriate – not to mention, lawfully sustainable – for those decision-makers and administrators to seek actual and informed consent from Sgt Aggrieved?
The ‘fictional’ scenario that I present above may seem familiar to some people. I do not suggest that an Adjutant who responds in the manner outlined above does so for male fide purposes or with improper intent. I suspect he is doing so because he believes “… that this is the way the process works …”. However, that is not a satisfactory response, particularly because that is NOT what has been prescribed.
The granting of such broad and uninformed consent is not a requirement established by Parliament when it enacted the current statutory provisions governing the CF grievance process. Nor is such a requirement in the amplifying regulations enacted by the Governor in Council. Nor is it mandated by policy under DAOD 2017-0 or DAOD 2017-1. Furthermore, I contend that such broad mandatory consent could not reasonably be directed in the policy at DAOD 2017-1.
The problem here is that a broad Consent Form has been generated within (presumably) some internal document such as a Grievance Staff Manual, and it has been, erroneously, taken to be an obligatory step under the legislated regime. I suspect many grievors willingly complete the Consent Form because they, unlike the chain of command, do not have the privilege of free legal advice. They are likely already in a vulnerable position, and likely do not wish to ‘rock the boat’ by objecting to a problematic form that is not mandated at law or in the governing policy. However, that does not make the obligatory and rote enforcement of that Consent Form acceptable or proper. Or lawful.
The CF needs to re-examine how the Consent Form is being administered. In particular, I suggest that some inquiry should be made into the circumstances under which grievors are being ordered to provide ‘consent’. After all – let’s call a spade a spade – if they are receiving direction similar to that indicated above, then grievors are being ordered to consent to disclosure and use of personal information in a particularly broad context. And they are being ordered to do so, typically, in the absence of any meaningful advice, legal or otherwise. That is not informed consent. Nor is it consent upon which the CF could reasonably rely if a subsequent dispute arose concerning whether a CF member had consented to the use or disclosure of their personal information.
 National Defence Act, RSC 1985, c N-5 [NDA], s 29.
 DAOD 2017-1, Part 7.
 RSC 1985, c P-21.