Grievance Myths – ‘Mandatory’ Use of a NoI to Grieve
[Part 2 of 3 – Grievance Myths]
The second grievance myth we will examine is the apparent insistence by certain decision-makers and staff in the CF grievance process that a grievor must first rely on a Notice of Intent (NoI) to grieve prior to submitting a grievance.
This is incorrect.
This step, which some decision-makers and staff insist is mandatory, is manifestly not mandatory.
However, lately, I have encountered repeated occasions in which unit administrative staff and/or grievance staff have informed grievors that they will not accept a grievance unless the grievor first submits a NoI to grieve. This represents an improper – and unlawful – interference with a grievor’s statutory right to grieve.
Statutory Right to Grieve
In our previous discussion, I explained that the CF statutory grievance process exists principally for the benefit of the Crown and not CF members. It represents – or is presented as – an adequate alternative remedy that a CF member must first exhaust before attempting to bring litigation against the Crown. Nevertheless, even though the process is arguably designed to benefit the Crown, it is still a statutory right granted by Parliament to CF personnel. Indeed, it would not be incorrect to suggest that it represents an obligatory step in many cases if the CF member eventually wishes to pursue litigation against the Crown.
This statutory right is established at s 29 of the National Defence Act (NDA) and is subsequently amplified by the Governor in Council at Chapter 7 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O). There are some caveats, exemptions, and exceptions established under this legislated regime.
For example, a grievance must be reduced to writing, signed, and submitted to the grievor’s commanding officer (CO): QR&O art 7.08. I have commented previously about what it means to ‘sign’ a grievance.
As a general rule, pursuant to s 29 of the NDA, a CF member may grieve any decision, act, or omission in the administration of the affairs of the Canadian Forces. This covers a broad range of transactions – which is understandable if the principal purpose of the grievance process is to represent a comprehsnive legislative regime constituting an ‘adequate alternative remedy’ that bars litigation before the courts until and unless it is first exhausted.
However, there are express exceptions to this broad rule: subs 29(2) and 29(2.1) of the NDA, reiterated at QR&O art 7.02.
A CF member does not have the right to grieve a decision of a court martial or the Court Martial Appeal Court of Canada (CMAC).
A CF member does not have the right to grieve a decision of a board, commission, court or tribunal established other than under the NDA.
Both of these exceptions are logical. There is no need for a right to grieve a decision of a court martial or the CMAC in light of the statutory provisions for appeal from those courts. And a board, commission, court, or tribunal created under another Act of Parliament (or an Act of a provincial legislature) will have its own review or appeal process prescribed or permitted under that relevant Act. Moreover, it is not for Parliament to set out such measures under the NDA.
Paragraph 29(2)(c) of the NDA also states that an exception to the statutory right to grieve may be prescribed in regulations by the Governor in Council. And, under subsection 12(1) of the NDA, the “… Governor in Council may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of [the NDA] into effect.”
Consequently, at QR&O art 7.03 the Governor in Council has established that, “For the purposes of paragraph 29(2)(c) of the National Defence Act, there is no right to grieve in respect of a decision made under the Code of Service Discipline.”
Thus, not only are CF members precluded from grieving a decision of a court martial or the CMAC, but they cannot grieve any decision made under the Code of Service Discipline – e.g. a decision to lay a charge; a decision not to lay a charge; a decision to start, or end, an investigation; or, a decision to refer a charge – to name but a few. The QR&O are silent on acts or omissions under the Code of Service Discipline.
Again, many such decisions could be the subject of remedial processes under the Code of Service Discipline. A decision to lay a charge, if it proceeds to trial (by summary trial or court martial), could eventually be contested at that trial. A finding or sentence imposed by a Presiding Officer at summary trial is subject to review.
Where a charge is laid, and then withdrawn, a CF member may well feel aggrieved that a charge was ever laid in the first place and may wish to ‘grieve’ such a decision. However, QR&O art 7.03 would bar such recourse. One could suggest that there is no need for a right to grieve such a decision, since the decision to withdraw the charge terminated any jeopardy for the CF member. I suspect that there would still be some CF members who would be offended that the charge was laid in the first place and would wish to have a mechanism to bring a complaint.
Conceivably, although the CF member would not have a statutory right to grieve, the CF member could still bring a written complaint. If the charge was laid by the CF member’s chain of command, he or she could still bring a complaint to his or her CO under QR&O art 19.12. If the charge were laid by the CFNIS, there could be scope to bring a complaint under s 250.18 of the NDA.
And, if one were looking for silver linings, the prohibition against a statutory grievance would permit the CF member to bring litigation before having to exhaust the CF grievance process. After all, that ‘adequate alternative remedy’ would not be available. However, in the circumstance I describe, the likeliest basis of litigation is the tort of ‘malicious prosecution’ which can be very difficult to prove absent fairly egregious conduct by investigators or prosecutors.
Requirement for an NoI to Grieve is not an Exception
But there is no provision, under the NDA or the QR&O, that obliges a CF member to pursue a NoI to grieve before submitting a grievance under s 29 of the NDA and article 7.01 of the QR&O. [For the sake of brevity and convenience, hereafter I will refer to the ‘NoI to grieve’ simply as an ‘NoI’.]
Even the policy amplification under Defence Administrative Order and Directive (DAOD) 2017-1 Military Grievance Process does not oblige the prior use of an NoI. It does expressly create the step at para 4.2 of DAOD 2017-1. Paras 4.1 and 4.2 of DAOD 2017-1 encourage ‘early, local, and informal’ resolution of complaints and recommend the use of an NoI as a first step.
However, the policy direction at DAOD 2017-1 does not make this step mandatory. Nor could policy direction, issued under the authority of the Chief of the Defence Staff (CDS) regarding the control and administration of the CF (s 18 of the NDA), frustrate a clear statutory right granted to a CF member by Parliament. Nor can grievance staff or any person in a grievor’s chain of command rely upon DAOD 2017-1 to suggest that submission of an NoI is a mandatory ‘first step’, or otherwise direct that a putative grievor must first comply with para 4.2 of DAOD 2017-1 if the grievor wishes to submit a grievance under s 29 of the NDA.
Note, too, that the ‘Note’ to para 4.2 of DAOD 2017-1 expressly states that “A NOI to grieve does not extend the time limit under QR&O paragraph 7.06(1), Time Limit to Submit Grievance, within which a grievance must be submitted by a CAF member.” Again, policy amplification that is issued, presumably, under authority devolved from s 18 of the NDA, cannot alter legislated rights or duties under the NDA or the QR&O in a manner inconsistent with that legislation.
The ‘right to grieve’ was created by Parliament. Parliament placed very few limits on this right. Parliament granted the Governor in Council the broad power to enact regulations for the governance of the CF. It also expressly provided that the Governor in Council could enact regulations that limit the circumstances giving rise to the right to grieve. In so doing, the Governor in Council is obliged to enact regulations that are consistent with the enabling statute and specific statutory regime. The Governor in Council did not create an obligation to submit an NoI prior to submitting a grievance. Nor did Parliament grant the CDS, or any CF policy-maker, the power to amend any legislative limits.
DAOD 2017-1 was issued by the Vice Chief of the Defence Staff (VCDS) under the authority of the NDA. Specifically, it was issued pursuant authority devolved from the CDS for the control and administration of the CF. By virtue of s 49 of the NDA:
Any power or jurisdiction given to, and any act or thing to be done by, to or before any officer or non-commissioned member may be exercised by, or done by, to or before any other officer or non-commissioned member for the time being authorized in that behalf by regulations or according to the custom of the service.
Consequently, by virtue of s 49 of the NDA, amplified by DAOD 1000-0, 1000-1, 1000-2, and 1000-7, the VCDS, who is responsible for the management of the CF grievance process, issued DAOD 2017-0 and DAOD 2017-1.
However, any policy direction or amplification issued by, or under the authority of, the CDS, including policy direction or amplification issued by any other CF policy maker by virtue of s 49 of the NDA, must be consistent with the legislation governing the specific process. For the CF grievance process, that legislation is comprised of the provisions under sections 29 to 29.28 of the NDA and Chapter 7 of the QR&O.
Any purported policy direction dictating that a NoI must be submitted before a CF member has a right to submit a grievance would be an inconsistent fettering of the right to grieve.
In sum, it is improper – and an unlawful interference with a CF member’s statutory right to grieve – for any administrator, staff, or decision-maker to insist that a CF member must first rely on an NoI before submitting a grievance pursuant to articles 7.01 and 7.08 of the QR&O.
Is there Merit to Relying on a NoI to Grieve?
Would it be prudent for a potential grievor to rely upon an NoI before submitting a grievance?
Perhaps. But that decision is for the grievor alone. It cannot be made a mandatory condition for the subsequent submission of a grievance.
And, frankly, there are several circumstances in which such a step could be a waste of time (particularly as the step does not presumptively alter the limitation period imposed on grievors at QR&O art 7.06).
And to explain why I offer this suggestion, we need to examine why the NoI exists in the first place, and its purported function.
The NoI to grieve was not created under legislation. It is not a creature of statute or regulation. It was introduced in policy and is described presently under DAOD 2017-1. It can be characterized as a slightly more formal articulation of the general right, created under QR&O art 19.12, whereby an “… officer or non-commissioned member may, upon application, see the member’s commanding officer on any personal matter.” In effect, it is a structured means of seeking an informal resolution of a matter that aggrieves a CF member, and which would obviate the need to rely on the statutory grievance process.
Ostensibly, that appears to be a beneficial policy and policy objective. In a perfect world, it would make sense. I have consistently advocated for timely and efficient resolution of complaints by open-minded decision-makers who are informed of all relevant facts (which necessitates timely and meaningful disclosure of information to the affected CF member). However, this policy objective is predicated, in part, upon the theory that the CF grievance process exists principally for the benefit of the CF member or grievor, and not the Crown. As we know from our previous discussion, that does not appear to be the principal raison d’être of the CF grievance process.
Even if we put that issue to one side, we must still examine the merit of informal resolution of complaints or grievances.
Submission of an NoI conceivably would trigger action by the CF member’s chain of command, up to his or her CO. If an NoI is submitted, there are two general possibilities: (1) the CO (or, potentially, a subordinate of the CO) will have the power to offer a remedy; or, (2) the CO will not have such authority. Indeed, sub-para 4.2(d) of DAOD 2017-1 anticipates this dichotomy: A NoI to grieve “… is most effective when the CO has the authority to resolve the problem.”
If the CO does not have the power to grant a meaningful remedy, then it is unlikely that a NoI to Grieve would achieve any meaningful outcome.
If the CO has the power to offer a remedy, it is likely that the matter that is the subject of the complaint was the product of a decision by the CO or one of the CO’s subordinates. Experience has taught me that, depending upon the subject matter of the complaint (e.g. something that has been characterized as ‘sexual misconduct’, remedial measures, or an issue for which a CO wishes to be seen to be taking a decisive stand) it may be unlikely that a CO will intervene based upon a complaint from a junior CF member regarding a decision by the CO or one of the CO’s subordinates. If such an open-minded approach was taken in the first place, a grievance would likely not be necessary. And, alternatively, if the initial decision was the product of an open-minded approach, and represents a reasonable exercise in discretion, a grievor who believes that it was not is unlikely to be satisfied with this informal approach.
Is this indicative of a cynical perspective on my part? Yes, unfortunately, it is. When I was an infantry officer, I often suggested to my subordinates that, if they felt aggrieved by something, they could bring it to my attention informally, and, if there was merit to their concern, I would do my utmost to correct the matter without necessitating the time and effort on the part of both the grievor and the chain of command to resolve a written grievance. And if I did not consider the complaint to be meritorious, my views certainly did not bar them from submitting a grievance. As I say: I have long been a proponent of timely and efficient resolution of complaints. And I am quite confident that there remain many officers in the CF who share that view.
However, many grievances are the product of intransigence on the part of grievors, the chain of command, or both. And, unfortunately, I have also encountered an increasing number of statutory decision-makers who exhibit intransigence in connection with decision-making on certain subjects – particularly those that are considered to be ‘lightning-rod issues’. Have I developed a degree of cynicism regarding such matters? Yes. But it is a cynicism borne out of many years of dealing with such matters, both in uniform, and as civilian counsel retained by CF personnel.
Consequently, the use of a NoI can often be a pointless exercise. An actual grievance submitted pursuant to QR&O arts 7.01 and 7.08 – and which is the statutory right of all CF personnel – will trigger duties and obligations on the part of specific CF statutory actors. It will tend to focus staff and decision-makers on the significance of the issue. It will often impart greater articulation of the issue and the reasons for which the grievor believes that he or she was aggrieved.
And, (again, in my experience) contrary to the implied suggestion offered by many staff working in the grievance process, this ‘formal’ action (to use the nomenclature that is typically associated with the exercise of the statutory right under s 29 of the NDA) does not bar, or otherwise impair, a CO or other decision-maker from offering a timely informal resolution of the grievance. Arguably, it provides an incentive for such timely remedy. And an actual grievance will elevate the matter to a decision-maker who, presumably, would have the authority to deal with the complaint in a meaningful manner. However, that is no guarantee that it will be dealt with by an open-minded decision-maker.
But, most importantly for our discussion at present, there is no requirement for any CF member to rely on an NoI before reducing a grievance to writing, signing it, and submitting it to a CO. And anyone who bars, attempts to bar, or purports to bar, a CF member from submitting a grievance in accordance with QR&O arts 7.01 and 7.08 interferes with that CF member’s right to grieve and acts unlawfully.
 RSC 1985, c n-5 [NDA].
 Id, para 29(2)(a).
 Id, para 29(2)(b).
 Id, ss 230 and 245.
 QR&O art 108.45 and Chapter 116.
 NDA, n 1, s 18.