Section 129 of the NDA is not the problem …
March 10, 2024
Intransigence in Grievance Adjudication – Part II
March 16, 2024

Incompetence & Intransigence in Grievance Adjudication – Part I

15 March 2024

 

Today is a birthday … of sorts.[1]

Today marks the 18th anniversary – birthday, if you will – of what I believe is presently the oldest active grievance in the Canadian Forces.

And I wanted to mark the occasion with a discussion of some of the deficiencies of the so-called “adequate alternative remedy” that is the statutory grievance process created under the National Defence Act (NDA)[2].  And the content of the oldest active CF grievance offers some insight into these deficiencies.

We will examine certain substantive legal dimensions of this grievance.  We will also examine many of the procedural shortcomings arising in this grievance – both of the decision that prompted the grievance, as well as in the grievance process itself.  And we will also discuss the mindset of statutory decision-making in the CF, particularly grievance adjudication.

I am not a clinical psychologist.  I don’t even have an undergraduate degree in psychology.  When it comes to psychology, I am a layperson.  Consequently, some people may be inclined to suggest that I have no business pontificating on issues that clearly relate to psychology.  (And I suspect a few people would prefer that I don’t pontificate on anything.)  While I could offer the rejoinder that a lack of legal education or knowledge hasn’t prevented multiple people from commenting on the suitability or merit of the military justice system or even elements of Canada’s criminal justice system, that would be an example of a sophist rebuttal to a disingenuous assertion.

What I can offer is that I have practiced in this field for the better part of two decades.  Throughout nearly three decades of service in the Canadian Forces (CF), I have had considerable experience as a statutory decision-maker, working for statutory decision-makers, and advising statutory decision-makers on the legal dimensions of the duties, functions, and powers.  Thus, I have had the opportunity to examine this type of decision-making from a variety of perspectives.  Although my perspective on the psychology of such decision-making is certainly a layperson’s perspective, it remains an informed perspective.  And I will generally limit myself to observable issues relating to the exercise of statutory duties, powers, and functions.

You may be curious how I am able to discuss the CF’s oldest active grievance.  The reason offers a twist on the “Hair Club for Men” tagline: I’m not only a legal advisor on CF grievances, I am a grievor myself.  And the oldest active grievance in the CF grievance process, of which I am aware, was submitted by yours truly on 15 March 2006.

And while we discuss the issues that I raise below, I want you to ponder a particular factor.  I served as a commissioned officer in the CF for nearly 28 years.  I have been a lawyer for the better part of 20 years, and much of my experience has focused on public and administrative law.  My first position in the Office of the JAG (OJAG) was as a legal advisor in the Directorate of Administrative Law (which is now called the Directorate of Law – Grievances and Administrative Investigations).  Much of my role in that position concerned advising on grievances and judicial review.  My last position in the OJAG before retiring was as the Director of that same Directorate.  The LL.M. that I completed at University College London was focused on public and administrative law and my thesis concerned the CF grievance process.

By any reasonable measure, I would suggest that I am at least moderately capable of advocating on my behalf regarding a grievance pertaining to the administration of the affairs of the CF.  And yet here I am, 18 years after first submitting a grievance, and 7 years after retiring from the CF, and that grievance has not been adjudicated in a fair and timely fashion.  So, here’s the question that I want you to ponder as we proceed through the following discussion: If someone with my background, education, skills, and experience cannot obtain timely and reasonable resolution of a grievance, what is the likelihood that a member of the CF with less experience, or who has a less sophisticated understanding of the relevant law, might not be able to obtain justice in the CF grievance process?

Ultimately: how meaningful is the CF grievance process?

And this will be a lengthy discussion.  Consequently, I have divided this Blog post into two parts.  Part I, the current post, will present the history and circumstances of my grievance and will chart its trajectory over the course of the past 18 years.  That’s a lengthy period of time, so it will take some space to discuss it.  During that discussion I will also raise some relevant legal issues.  And I will illuminate some of the incompetence (and intransigence) that was demonstrated in the administration of the grievance.  Part II, which I will publish tomorrow, will delve into the substance of my grievance and demonstrate how intransigence by certain statutory actors contributed both to delay and to unreasonable decision-making.

 

Nature of the Grievance

The grievance described below can be characterized as a “Medical Employment Limitation (MEL) Grievance”.  There is much utility in examining this type of grievance.  Often, grievances relating to MEL will involve two distinct statutory decisions or actions, and many grievors – and even some statutory decision-makers – fail to appreciate this distinction.  And this distinction illuminates the disingenuous position taken by senior medical staff in Canadian Forces Health Services Group (CF H Svcs Gp) when they suggest that CF members benefit from procedural fairness in the determination of MEL and medical categories.

Typically, when a CF member faces MEL-related administration, the initial decision-maker is Director of Medical Policy (D Med Pol); more particularly, it is Director of Medical Policy – Medical Standards (D Med Pol – Med Stds).  [And, for the sake of consistency and clarity, I will use the nomenclature “D Med Pol” to refer to that specific position as well as any decision-making by one of D Med Pol’s subordinates, including those who work in the office of D Med Pol – Med Stds.  After all, the decisions are ultimately made under the authority of D Med Pol.]  While a unit or regional medical officer (MO) may recommend MEL, it is D Med Pol  who is empowered to articulate and approve the specific MEL, and to direct the resulting impact, if any, on the CF member’s permanent medical category, or PCat.

The CF member may then face an Administrative Review under Defence Administrative Order and Directive (DAOD) 5019-2.  The purpose of such an Administrative Review is to determine whether, and how, the MEL (and change of PCat, if any) will affect the CF member’s career.  This Administrative Review-MEL (AR-MEL) is conducted by the Director Military Careers Administration (DMCA) and is co-ordinated by the staff at DMCA3.  The catalyst for such AR-MEL is typically the change of MEL and/or PCat and the decision-making in the AR-MEL will rely upon the MEL (and PCat) directed by D Med Pol.  However – and this is a crucial factor to consider – the MEL and PCat are treated as immutable factors by DMCA.

And that highlights a common point of failure of many grievances that arise as a result of MEL and AR-MEL.  Typically, the first opportunity that a CF member will have to challenge the impact of MEL or a change of PCat is in the course of the AR-MEL.  That is typically the first time that all of the relevant information is disclosed to the affected CF member.  And some CF members seek to challenge the content of the MEL or the PCat at that point.  However, that is a largely pointless endeavour; as I note above, those factors are treated as immutable by DMCA.

Consequently, CF members may then attempt to grieve the consequences of MEL or a change of PCat by grieving the AR-MEL decision by DMCA.  And that can be a fruitless endeavour, since DMCA can reasonably conclude that DMCA is not in a position to second-guess determinations made by D Med Pol.  And this outcome arises from the fact that CF grievors often fail to challenge the decision that truly aggrieves them: the decision by D Med Pol to imposed specific MEL or to change the CF member’s PCat.  And what my 18-year old grievance illuminates is that D Med Pol takes the position that no one is permitted to challenge their decision and, more troubling, it appears that those who are responsible to consider and determine grievances under s 29 of the NDA are willing to accept that proposition.

 

Personal information

Like all grievances, the “Birthday Boy” includes a fair bit of personal information.  And, because this is a public platform, I won’t be sharing all of my personal information.  But the information that I withhold does not affect the material discussion and is not withheld to shape the analysis that follows.  (And I have encountered my fair share of circumstances in which various people have withheld information in an attempt to shape the resulting legal advice.)

And, on the topic of ‘personal information’, I wish to highlight one of the shortcomings of the administration of the affairs of the CF on contentious subjects.  And that is the lack of institutional transparency that arises from the use of administrative processes under the NDAThis is a subject that I have raised before.  One of the key distinctions between administrative processes and disciplinary processes is that the latter are, by design, public.  The former almost always constitute personal information, and are, therefore, private.

By way of example, if a CF member is prosecuted under the Code of Service Discipline for alleged sexual assault, he or she will be prosecuted by court martial.  While steps will likely be taken to protect the identity of a complainant/victim, and even some witnesses, the proceeding will be public, and the judgment will largely be public.  Where publication bans are imposed, the interests of justice are balanced by the use of measures such as the redaction of information that could identify vulnerable parties or the use of initials to identify certain participants.  In that way, the process remains public, but the rights and interests of vulnerable parties are protected.  And that public judgement supports a variety of objectives of the military justice system, including denunciation of misconduct and by providing a relevant precedent for similar matters.

However, when a CF member is subject to administrative processes – such as Administrative Review, remedial measures, or compulsory release – those processes are largely withheld from public view and, therefore, public discourse.  Unlike with disciplinary matters, there is typically no opportunity for other persons or advocates, in similar circumstances, to rely on prior decisions as precedent.  Comparison between similar matters is impaired.  This leads to largely opaque, and potentially inequitable, decision-making.

Any so-called ‘administrative decision-making’ in the CF[3] must be the subject of a grievance under s 29 of the NDA before a CF member may bring their concern before a truly independent court such as the Federal Court of Canada.  The requirement to exhaust this “adequate alternative remedy” is well-established in public and administrative law.  And that requirement purportedly exists whether a grievance is adjudicated in 18 months, or 18 years.

Once the matter is brought before a court such as the Federal Court, the issue is not whether the decision at first instance was fair, appropriate, or just.  The principal issues are whether the grievance process was procedurally fair and whether the decision of the final authority (FA) in the CF grievance process was (in almost all such matters) reasonable.  And the FA often benefits from considerable deference from the courts.

The statutory decisions by CF leadership are rarely subject to public scrutiny and discourse.  Whether we are talking about decisions at first instance – remedial measures under DAOD 5019-4, Administrative Reviews under DAOD 5019-2, compulsory release under art 15.01 of the QR&O, or changes to MEL and PCat – or the subsequent decisions by initial authorities (IA) and final authorities (FA) in the CF grievance process, there is a marked lack of institutional transparency.  Sure, the individual CF members affected by these decisions may receive adequate disclosure and a relatively transparent process (and that does not always occur), but the rest of the CF community and the general public will be unaware of the nature and quality of that decision-making.

Consequently, when CF members are subject to similar decisions, they cannot present prior “administrative” precedents to support their arguments.  Nor can they rely on similar examples to aid in the development of their arguments or the production of relevant evidence.  And before some bright penny suggests “… yabbut, every administrative decision is unique based upon the individual and his or her circumstances …” the same can be said of disciplinary decision-making or the adjudication of criminal prosecutions.  The fact that every offender and every offence will have unique factors does not bar analogic reasoning in the application of principles of sentencing.  Such comparisons are a staple of advocacy in sentencing processes.

And, while the MGERC maintains a selective public database of case summaries of grievances, presumably to assist grievors in advancing arguments, these anonymized summaries often fall short of the utility of case law arising from proceedings before courts and tribunals.  Not all relevant subjects are presented, and the content of the summary may be limited in detail.

 

Scope of Discussion

We will begin with the background of the “Birthday Boy” grievance.  While I will withhold some personal details, I will provide sufficient detail to make our discussion meaningful.  This background will discuss the context in which the MEL/PCat decision was made and its impact on me.  I will then describe key developments in the adjudication of the grievance.  And, as you can imagine, with a grievance that is old enough that, were it a person, it would be eligible to vote in the next federal election, there is going to be a fair bit of information over the course of its lifespan.

In Part II, published tomorrow, we will then turn to the substantive issues in the grievance.  Interestingly, this is the most concise aspect of this tale of disappointing statutory decision-making.  I will then conclude with some relevant observations that may be of assistance to future, or current, grievors.

 

Background

Injury, MEL, and PCat

Back when I was a young infantry officer, I incurred a knee injury participating in an approved sporting event.  This occurred roughly contemporaneously with the sequence of events that led to my selection for the Military Legal Training Plan (MLTP).  The knee injury required surgery.  A successful surgery was conducted during my second year of law school.  (And don’t get me started on the fact that it took me several months just to go through the consultation process and, once that was completed, I had to wait a further 6 months for the surgery.  Meanwhile, a professional hockey player waited a mere six weeks for the same surgery at the same Canadian sports clinic and by the same surgeon.  But Canada does not have a 2-tiered health care system …).

This occurred over 20 years ago.  At the time of my surgery, I was on the Advanced Training List (ATL).  Those of us who have been posted on the ATL to attend civilian educational facilities know that there can be some administrative challenges.  However, the Area Support Unit (ASU) that administered me was accustomed to administering personnel on the ATL and attending civilian academic institutions.

Following my surgery, I met with the ASU Medical Officer (MO) and completed the post-surgery follow-up.  And, of course, following the surgery I was placed on a 6-month temporary medical category (TCat) to permit me to recover from the surgery and participate in necessary physiotherapy.  Once the decision regarding my TCat was made, it was presented to me as a fait accompli about 3 ½ months after the MO made his recommendation.  The fact that I had little or no participatory rights in that process was not as significant as the subsequent PCat decision, since it was only a TCat.

I completed my physiotherapy and met with the ASU MO again.  Eventually, a recommendation was made to lower my Occupational (“O”) Factor in my PCat from “O2” to “O3” based upon the following MEL: “Fit PT but may be limited in type, duration, intensity or frequency.  Can, but should avoid daily running.”  This was completed on the infamous CF-2088.  And D Med Pol eventually made the decision to amend my PCat.

That MEL will likely seem familiar to many.

However, more should be said about how this recommendation and decision unfolded.  And one of the key problems with this decision-making process is that, following a consultation with the ASU MO, I was not informed of the decision, or permitted to participate in the decision-making process.  I only learned of the decision months after it had been made, and I only learned of it inadvertently.

During the brief consultation with the ASU MO to discuss my recovery from surgery, we discussed my recovery and the activities that I was able to perform.  I also informed him that the surgeon who operated on me, and who conducted several follow-up consultations at Crown expense, was of the view that I had no limitations.  I specifically queried what recommendations the MO would make, and he informed me that his comments on my medical file would not adversely affect my career.  That was the degree of specificity that he provided.  And that was the sum total of my involvement in the decision-making process that led to the MEL imposed on me and the resultant change of PCat.

When I eventually obtained a copy of the CF 2088 – 16 months after the D Med Pol decision had been made – I noted that the ASU MO made his recommendation in writing on 28 May 2004.  That was about the same time that I graduated from law school and commenced my year-long Articles of Clerkship.  And what is noteworthy is that the ASU MO made a recommendation for the wording of the MEL, but he did not make a specific recommendation regarding any change to my “Occupational” factor for my PCat.  His recommendation was literally a question mark: “O2 -> ?”

By the end of 2004, a staff medical officer (MO) at D Med Pol recommended that my “O Factor” be downgraded to “O3” and another MO at D Med Pol ‘signed off’ on the MEL and new PCat.  Nothing had yet been presented to me and I had no involvement in this process.

In fact, I first learned of this change ‘by accident’.  In the Spring of 2005, as my Articles of Clerkship were coming to a close, I had still not received a posting message.  As we all know, most posting messages are issued in March or early April in advance of the Active Posting Season (APS) in order to facilitate relocation of CF personnel and their families.  By March 2005, I had heard through the grapevine that I would likely be posted to Ottawa.  This made sense, since the bulk of the OJAG was, and is, posted to Ottawa.

I inquired with the Orderly Room at the ASU about any posting message.  Nada.  I did, however, obtain a copy of a message sent by Director Military Careers Administration and Resource Management (DMCARM)[4], dated 28 February 2005, and which had been sent either on that date, or shortly thereafter.  Unfortunately, it had been sent to the regional Reserve Force brigade, to which I did not belong.   It was not sent to the ASU (the unit which administered me).  Nor was it sent to the OJAG.  I only obtained a copy because I had repeatedly contacted the ASU Orderly Room asking if anything had come in for me.

The message from DMCARM indicated that D Med Pol had assigned me MEL and that, consequently, an AR-MEL file had been opened by DMCARM.  At that point, I still did not have a copy of any document pertaining to my MEL or PCat.  Nor did I have any other document pertaining to the AR-MEL.

Coincidentally, DMCARM was also the funding authority for the MLTP, which I was in the process of completing.

By May 2005, I was getting quite concerned, because I still had not heard anything from anyone.  My Articles were due to end by mid-June and I still did not have a posting message.  And, at that point in my career, I had experienced half a dozen postings that involved geographic relocation, so I was well aware that a posting message delivered late was a recipe for a disastrous move, particularly to a competitive housing market like Ottawa.  So, I broke protocol and contacted the Chief of Staff (COS) for the OJAG directly.

The response was:

Rory: Thanks for your note.  The plan remains to post you [… to Ottawa …] this summer.  You are correct in your assessment that your change in medical category is the reason that you do not have a posting message reflecting this.  Your circumstances are being reviewed within D Mil C [Director Military Careers] with input from the medical folks.  I spoke to the CM [Career Manager] last week on this very matter and no decision had been taken at this time.  Several issues are being addressed by pers authorities and the CM hoped a decision would be forthcoming within two or three weeks…

 

The email finished with typical pleasantries.

While it was helpful to have a bit more information, I wondered whether anyone from the OJAG – or anyone – would have told me anything had I not queried them first.

And the observant among you may have spotted several problematic aspects of the COS JAG response, particularly if you are a frequent reader of this blog.

But before I identify those issues, I will add a bit of context.

While I attended law school under the MLTP, I remained an infantry officer.  That was logical, as I could not become a legal officer until I was called to the Bar of a province or territory.  My transfer to the “Legal Officer” MOS was contingent upon being a lawyer.  If I were unsuccessful at law school, I would have resumed my functions as an infantry officer (likely with great shame upon my head).  And, evidently, during this period, my Career Manager (CM) remained the Infantry CM.  It is my understanding that, sometime after this – and perhaps due to the maladministration of files like mine – policies changed.  Now, when officers are selected for MLTP, their D Mil C file is transferred to the Legal CM, and they even start wearing the legal cap badge.  The former change likely helps avoid maladministration.  The latter could be a source of confusion.

One of the most significant administrative failings in this entire debacle is likely not evident from the response from the COS JAG.  An ‘O3’ factor falls below the minimum requirement for an infantry officer.  It does not, however, fall below the minimum factor for a legal officer.

Well, that’s not entirely accurate…

At the material time, there were no minimum standards for medical categories for either infantry officers or legal officers.  In fact, there were no minimum medical standards for any officer MOS.  That might sound odd, but it’s true – the Canadian Armed Forces Medical Standards, CFP 154, (which was called Canadian Forces Medical Standards in 2004) did not articulate minimum medical standards for any officers, and that remains the case to this day.  Annex D of CFP 154, entitled “MOS ID Task Statements”, has only one Appendix: Appendix 1 – MOS ID Task Statements – Non Commissioned Members.

In practice, the CF appears to have applied the medical category standards for infantry NCM (which did exist) to infantry officers.  Such practice was not without conceptual shortcomings, but it is what was done.  However, as there are no NCM MOS within the “Legal Branch”, there is no minimum medical category assigned to legal officers, nor any comparable NCM MOS.

DMCARM (as DMCA was then called), in coordination with D Mil C, had cancelled a posting message based upon the facile conclusion that, as an infantry officer, I could not be posted because I breached the standards for my MOS (even though there technically was no medical standard for infantry officers).  It appears that the fact that I was an infantry officer, who had been selected for the MLTP, who was completing the requirements under the MLTP to become a legal officer, and who was posted to a legal officer position within the OJAG failed to register with the staff in DMCARM and D Mil C.

I would be tempted to suggest that had someone done their job properly and ensured that the DMCARM Message dated 28 February 2005 was sent to the proper unit, I could have then made timely representations that could have been sent to DMCARM to get my posting back on track.  However, I note that even with the intervention of senior staff within the OJAG, to explain something that, objectively, is not that difficult to comprehend, it still took a several weeks to rectify.

I received my posting message on 6 June 2005.

I shudder to think what might have happened had I not taken steps myself to inquire why nothing was happening.

But returning to the email from the OJAG COS, some of you may have identified certain troubling questions, including:

  1. If the OJAG COS had identified this issue, why had no one informed me?
  2. Why was the DMCARM message sent to a Reserve Force brigade and not the unit to which I was posted?
  3. And why was I still not properly informed of my change of medical category?

 

There were several mistakes made, but the source of most of these mistakes was the fact that the CF do not extend any participatory rights to CF members when it comes to MEL and changes to medical categories.  The first that I was involved in the MEL/PCat process in any meaningful way was on 20 September 2005, after I was posted to Ottawa, after I completed my move, and more than 2 months after I had begun serving as a legal officer.  I was finally presented with the completed CF-2088.  It was given to me the same day that my (designated) CO signed the document.  That was 16 months after the ASU MO made his (vague) recommendation.

Up to that point, my involvement in this process was limited to being a patient.  I had no meaningful participatory rights in this process.  My opportunity to meet with the ASU MO did not constitute meaningful participatory rights.  He was not the decision-maker.  He did not even make a definitive recommendation regarding the “O Factor” for my PCat.  And nothing that I said to him was communicated to the relevant decision-maker.  (And, based upon what has transpired since, I am confident that D Med Pol would have ignored anything that I had to say.)

In sum, a decision had been made in the administration of the affairs of the CF in which I was not provided with any disclosure or opportunity to make any representations to the decision-maker.  And this decision had a negative impact on me.  The decision was to impose vaguely characterized MEL and to change my PCat based upon those MEL.  The decision-maker was D Med Pol.  And I was the aggrieved CF member.

On 15 March 2006 I submitted a grievance challenging this decision.  At the material time, the limitation period for grievances was six months after the date of the impugned decision, act, or omission, or the date of discoverability.  My grievance was submitted just within this limitation period.

 

The Harm

My grievance identified that MEL were imposed on me in a procedurally unfair fashion.  When significant statutory decisions are made that impact a person’s rights, interests, or privileges, and those decisions are made in an unfair fashion, the unfair nature of such decision-making can constitute harm.  It may not give rise to a cause of action for damages under private law, but it does, at the very least, call for a public law remedy: Nicholson v Haldimand-Norfolk Regional Police Commissioners, 1978 CanLII 24 (SCC), [1979] 1 SCR 311.

Similarly, an unreasonable statutory decision may not give rise to damages under a private law cause of action, but an unreasonable decision does give rise to a requirement for a public law remedy to undo the harm of an unreasonable decision, typically by quashing the decision.

But the unfair and unreasonable nature of the decision by D Med Pol manifested in practical ways and precipitated second order harm.  The failure to provide me with participatory rights in the MEL/PCat process was one of the principal contributing factors that adversely affected my posting to Ottawa in APS 2005.  The decision-making that changed of my PCat, from which I was not only excluded, but of which I was unaware at the material time, led to the cancellation of my initial posting message.  And, as a result of the inability of DMCARM, D Mil C and the OJAG to sort out the relatively banal issue that I was being posted to Ottawa as a Legal Officer and not an Infantry Officer, I received my posting message on 6 June 2005 rather than in February or March 2005.

After I queried what was taking so long to issue my posting message, I subsequently learned that my initial posting message had been prepared in February 2005.  I never received it, because it was cancelled shortly thereafter.  And no one contacted me to inform me of what had transpired.  The COS JAG waited for me to contact him.  It took them over 3 months to sort out a simple issue.  Unlike me, none of those statutory actors had a personal stake in that administration.  And because the decision regarding my MEL and PCat was made without any involvement from me, I was not empowered to take steps myself to try to correct other people’s errors.

And lest someone suggest that I could have requested a delay in my reporting date, that was not the principal issue arising from the delayed posting message.  As anyone who has ever been posted to Ottawa can attest, the housing market there is driven significantly by government relocation.  The ideal time for a house hunting trip is from late March through April.  We were only permitted to conduct our house hunting trip in mid-June.  And by then, the availability of suitable housing was a mere fraction of what it is normally.

I and my family were obliged to relocate to Ottawa on short notice because of incompetence in the administration within DMCARM, D Mil C, and even the Office of the JAG and the opaque, unfair, and unreasonable decision-making by D Med Pol.

The utter lack of fair and reasonable decision-making regarding my Medical Category precipitated circumstances in which I and my family were forced to sell our existing home, and purchase a replacement home in Ottawa under unfavourable conditions, compared to what we would have faced had my posting not been bungled.

Our house hunting trip was unsuccessful – the only time in my career that this was the case.  And, while we eventually found a house – of a nature and in a location other than what we desired – we made do.  We had no choice.  From a practical perspective, it is impossible to quantify the damage done by the maladministration.  And we were not along in facing such issues.  I am aware of many circumstances in which CF personnel and their families have been adversely affected by similarly avoidable maladministration.

And the scope of relocation benefits did not address the harm that was done.  Technically, we did not ‘lose’ money on the sale of our home.  But we certainly had to settle for sub-optimal offers.  We eventually found a home.  And when we were posted from Ottawa five years later, we did not sell our home at a ‘loss’ that would be recognized as such under the CF’s relocation benefits.  But the CBIs do not, and cannot, compensate for the harm arising from the dog’s breakfast that was my posting.

What I can identify is the source of the maladministration.  And, while DMCARM, D Mil C, and the OJAG all had their “fingerprints” on that maladministration, it started with a process driven by D Med Pol that was not transparent, was not procedurally fair, and was not reasonable.

For the senior leaders presently in the CF, take note: unfair and unreasonable decision-making directly undermines retention, particularly when the decision-makers refuse to acknowledge their errors.

 

The Grievance

My grievance challenged the MEL and PCat in two distinct ways.

First, the decision was made in a procedurally unfair manner.  Specifically: (1) there was insufficient disclosure of the basis for the decision, and even the decision itself; (2) I was not permitted to make informed representations to the decision-maker; and, (3) the reasons for the decision were insufficient and not supported by the limited information presented to the decision-maker.

Second, the imposition of “O3”, based upon the reasons given, was unreasonable.  Specifically: (1) the justification for the PCat “O Factor” of “O3” was inconsistent with the definition offered in A-MD-154-000/FP-000 (also called CFP 154) Canadian Forces Medical Standards; (2) the surgeon who conducted the operation was not consulted for his input, even though he conducted several follow-up consultations at Crown expense; and, (3) there was limited information presented upon which to base a career limiting decision.

For redress, I stated that my PCat should be returned to what it was prior to the unreasonable and unfair change of PCat.  Over time, the requested redress was modified to focus on the “Occupational” or “O Factor”.  Part of the change of my PCat included a change of my “Geographic” or “G Factor”.  It had initially been “G1” and was downgraded to “G2”.  I was informed that “G1” was, by then, reserved for those CF personnel who had completed Astronaut Training, and the “G2” was the typical standard for a CF member with no geographic limitations and who is considered healthy.  So, I withdrew that aspect of my grievance – because I am a reasonable person.

In Part II of this Blog, I will delve into the substance of the arguments in my grievance.  For the present, I will discuss how the grievance progressed (or, perhaps more aptly, how it did not progress) over the subsequent lifespan of the grievance.  This trajectory illuminates the intransigence – and incompetence – that can arise in such statutory decision-making.

The grievance was assigned to Director General CF Health Services (DG CF H Svcs) as the IA.  That was appropriate, as DG CF H Svcs is an “… officer appointed to the position of Director General or above at National Defence Headquarters, who is responsible for dealing with the matter that is the subject of the grievance.” (what is now art 7.14 of the QR&O).

The grievance was in the care and control of DG CF H Svcs for 8 ½ years.

That’s right, they had 8 ½ years to consider and determine the grievance.  They kept asking for time extensions and I consistently afforded them additional time.  After all, one tries to be reasonable when employing statutory mechanisms under the NDA.

And, during the time that DG CF H Svcs had care and control of my grievance, they lost it.  Twice.

That’s right, they lost my grievance – on at least two separate occasions.  At least, they admitted to losing it twice.  It could have been lost more than twice.  I have no way of knowing, and they hardly instilled in me great trust in their attention to detail.  It certainly languished in the hands of various staff and statutory actors.  As a result, I had to take steps to ensure that the grievance file had all of its constituent documents.  To this day, I cannot have a great deal of confidence that my grievance file remained intact.

On 20 June 2006, Dr. D.P. Gregson, MD, Director of Medical Policy – Medical Standards (D Med Pol – Med Stds) wrote to the staff officer who had carriage of my grievance file with a brief, one-page note indicating:

Capt Fowler is requesting that his Occupational factor be changed O3 to O2.  He was to have had a consultation an orthopedic surgeon … 18 May 2006.  I assume this was to enable the patient to review his medical progress and to ask the specialist to provide suggestions regarding what if any, Occupational limitations would be desired.  To date, this specialist’s consultation report has not been forwarded to this office.

As the consultant’s report is key in the determination of this individual’s Occupational factor, it is requested that the patient be contacted to ask that the treating physician be given authority to forward this to D Med Pol. The treating physician should also be asked to complete a CF 2088 and CF 2033, Periodic Health Examination, if these are felt to be appropriate.

 

So, they sought my consent for an extension of time, and I gave it.  Because I am a reasonable person.

On 22 February 2007, Dr. Gregson provided his 3-page analysis regarding why my requested redress should be denied.  And, so that a key factor is clear: what this means is that the IA, DG CF H Svcs, went back to the office that was the initial statutory decision-maker, and which made the impugned decision, to seek a recommendation for how my grievance should be adjudicated.

Dr. Gregson’s analysis was disclosed to me under cover of a letter dated 10 July 2007.  It was disclosed to me five months after Dr. Gregson’s letter was, presumably, sent to the CF H Svcs Gp HQ.

I offered an 8-page rebuttal on 1 August 2007.  So, while Dr. Gregson took 8 months to offer a relatively rudimentary analysis, and the IA staff took five months to communicate the same to me, I responded within a month.  Because I am a reasonable person.

The next day, the grievance staff at the CF H Svcs Gp HQ requested an extension of two months to “… allow the SME to action [my] file …”.  That request seemed odd, since it was supposed to be the IA who ‘actioned my file’ – insofar as the IA had a statutory obligation to consider and determine the grievance.  And any role of a so-called “SME” – or Subject Matter Expert – seems to be distinct from the statutory role of the IA.  But language is a funny thing, so I shrugged and granted the extension.  Because I am a reasonable person.

My rebuttal was apparently shown to the staff at D Med Pol, and by letter dated 23 August 2007, LCol M.T.L. Garand, SSO Med Pol Mgmt, Med Stds & RMO indicated:

In consideration of [specific references] and upon review of the medical status of Maj G. Fowler, D Med Pol – Med Stds sees no further action to be provided to this case based on medical information.  Thus there is no requirement for any changes in Maj Fowler’s medical category as his case followed the procedures duly applied to all members of the CF.

 

The observant among you may have noted that I had, by then, been promoted.  That was the first of two promotions that arose while waiting for my grievance to be adjudicated.  And my initials are (and were) “R.G.”, by why would we expect precision in these matters?

But there are a couple of key factors upon which an observant person should focus.  First, LCol Garand clearly indicates that my “… case followed the procedures duly applied to all members of the CF.”  In other words, my matter was handled the same way that any other CF members’ matters would be handled.  Second, LCol Garand clearly asserts that nothing further would be done.  It very much seemed like he was making the decision.  And that’s peculiar, because this was a grievance, and the statutory duty and function of considering and determining the grievance fell to the IA, DG CF H Svcs, and not LCol Garand, or anyone else at D Med Pol.

It appears that LCol Garand was asserting that, because I was treated the same as all CF members in terms of the process that was applied, the process must have been fair and reasonable.  But consistency in the application of policy does not guarantee that it is fair and reasonable.  Another conclusion that could be drawn is that everyone is subject to an unfair and unreasonable process.  Fairness or reasonableness of a process is not dependent solely, or even principally, on whether it is applied universally.  While consistent application of a process is important to establish that it is not being applied arbitrarily, whether a process is fair is dependent upon the principles associated with the content of fairness.

A procedurally fair decision is one in which the person whose rights, interests, or privileges are affected is able to make informed representations to an open-minded decision-maker before the decision is made.  This typically requires notice of the decision that may be made, disclosure of relevant information upon which the decision will be made, an opportunity to thereafter make representations to an open-minded decision-maker and, eventually, transparent and intelligible reasons that justify the decision.

The degree of robustness of such processes is dependent upon a variety of factors, including:

  1. the nature of the decision being made and process followed in making it;
  2. the nature of the statutory scheme and the term of the statute pursuant to which the body operates;
  3. the importance of the decision to the individual or individuals affected;
  4. the legitimate expectations of the person challenging the decision; and,
  5. the choices of procedure made by the agency itself.

(Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817)

 

The fact that I was treated the same as all other CF personnel facing such significant decision-making doesn’t mean that I was treated fairly.  It simply means that we are all treated the same.  And if that treatment is unfair and unreasonable – as I contend it is – then that means the CF, and specifically the CF H Svcs Gp, have a significant problem.

You’ll note that LCol Garand responded to the CF H Svcs Gp grievance staff with a little over a month left in the extension of time that I have given them.  Presumably, this was the response from the “SME”.  Thus, there was sufficient time for the so-called SME to respond and for the IA to consider and determine my grievance.  However, as I note above, LCol Garand’s comment is presented less like advice and more like an assertion or a decision.  And, since LCol Garand was not the IA, that’s problematic.

But nothing happened.  And, by “nothing happened”, I mean that, for two years, I heard nothing back from the IA or his staff.  Nor was I presented with LCol Garand’s brief comment at that time.  I only obtained it much later, as part of grievance disclosure.

In July 2009, I sent a query to the last point of contact that I had for my grievance.  I wasn’t even certain if that person was still in the same position, so I had to observe:

… In the 23 months since you contacted me, you may have moved on to a different function.  If so, could you please direct me to whomever I need to contact to confirm [the status of my grievance]?

 

I asked for updates at regular intervals.  And, while I don’t wish to get ahead of myself, when I eventually received a copy of the “Certified Tribunal Record” comprised of what was supposed to be the complete grievance file, some of these communications were not included.  And I am not confident that all communications between statutory actors, pertaining to my grievance, have been disclosed to me.

Around September 2009, I contacted the staff officer at CF H Svcs Gp HQ who was my point of contact for my grievance.  I expressed concern that my grievance had languished, forgotten in someone’s “inbox”.  On 23 September 2009, the staff officer responded:

I am very sorry to hear about the lengthy wait you have experienced wrt your ROG.  While you have the right to request your grievance to be fwd to the FA, I am writing to inform you that your grievance is currently being reviewed by DMEd Pol and that you will be hearing from the CF H Svcs Gp in short order.

 

I did not hear from anyone “in short order”.

By April 2010, the Adjutant of the CF H Svcs Gp Headquarters sought an update on the status of my grievance file.  And what is interesting is that the query was sent to D Med Pol.  D Med Pol was the initial decision-maker.  The IA was supposed to be DG CF H Svcs.  The Adjutant did not get a response to the initial query, so the Adjutant sent a hastener in July 2010.  Four days later, the recipient of the query, LCol M.J. Lorenzen, responded:

It will be done by end of summer.  It keeps getting discplaced [sic] as a priority.

 

I trust that LCol Lorenzen will forgive a bit of impertinence on my part, but, if you have had a grievance file or matter for 3 years – not counting the 16 months that transpired from the date that a grievance is submitted to the date that the matter was referred “back” to an SME – then it was never a priority.

By mid-October 2010, the staff at CF H Svcs Gp HQ still had heard nothing, so another staff officer contacted LCol Lorenzen again to ask:

Are you able to provide an update status on this file?  As well, if more time is required what would be a reasonable extension timeframe?  This would be beneficial to know in order to contact the member to request an extension.

 

I admire that staff officer’s pluck, and I can see where the confusion arose.  LCol Lorenzen stated that it would be done by summer; but she did not specify which summer.  It’s like the Great War – it did eventually end before Christmas … 1918.

And, while I admire the staff officer’s earnest efforts, by October 2010, 4 ½ years after the grievance was submitted, and over 3 years after anything material had been done with the grievance, any scope for a “reasonable timeframe” was, by then, distant history.

By the end of November 2010, LCol Lorenzen indicated to the relevant CF H Svcs HQ staff officer that “I have drafted a response but it needs to be formatted and reviewed by the Director”.  Presumably, by “Director”, she meant Director Medical Policy or D Med Pol.  Which is odd, because D Med Pol was the initial decision-maker for the impugned decision, and the IA was supposed to be DG CF H Svcs.

Of course, by then, I had to update the staff at CF H Svcs Gp HQ.  In APS 2010, I had been posted to CFB Kingston as the Deputy Judge Advocate.  And the staff officer from CF H Svcs Gp contacted me at the end of November to inquire if my commanding officer had changed, which is a reasonably prudent course of action in light of the time that had transpired.  I explained that the JAG himself is the CO of the OJAG, but I provided the contact for my supervisor.

However, I still didn’t receive a decision.  I was eventually sent on Post-Graduate Training (PGT) and completed an LL.M. in public and administrative law.  Ironically, my dissertation was on the CF grievance process.  I received a grade of distinction on my dissertation, so it must have been fairly insightful.  And I was posted back to Kingston, this time as the Chief of Standards at the CF Military Law Centre (CFMLC).

And I had still not received any determination of my grievance.

So, on 12 November 2013, I sent a letter to the commanding officer of Canadian Defence Academy (CDA) HQ requesting that my grievance be forwarded to the final authority (FA).  For those of you who may be curious why a legal officer was staffing a request through a chain of command that did not include the OJAG, it is because the legal officers who are posted to the CFMLC are not legal advisors.  They develop and deliver training.  The OJAG was not a Training Authority at the time (and still is not, as far as I am aware), so the CFMLC was created within the CDA HQ.  Consequently, my CO at the time was CO CDA HQ.

I don’t know what happened to that request, but someone failed to action it.    So, in July 2014, I resubmitted it.  My grievance (or at least, what portions had not been misplaced by various staff at CF H Svcs Gp) was forwarded to what was then Director General Canadian Forces Grievance Authority (DGCFGA) for determination by the FA.

That would eventually give rise to an awkward circumstance as, in November 2014, I was posted to the position of Director for the Directorate of Law – Administrative Law (D Law Admin Law).  Among other functions, D Law Admin Law provided legal support to DGCFGA on grievance-related policy and the adjudication of grievances by the FA.  And it was particularly awkward as D Law Admin Law worked in situ with DGCFGA.  Of course, had DG CF H Svcs not failed so catastrophically regarding timely adjudication of this grievance, that awkward circumstances would not have arisen.

However, I took steps to ensure that I would have no visibility on my own grievance and that none of my subordinates would be involved in providing legal advice (as that would have represented a conflict of interest).  I don’t know if the FA ever sought legal advice on my grievance – and I should not be aware of any such legal advice – but if the FA did, it would have had to have been from outside my office.

When the grievance was received by DGCFGA staff, one of the first determinations that had to be made is whether the grievance would be referred to the Military grievances External Review Committee (MGERC).  This grievance did not fall within any of the categories listed at art 7.21 of the QR&O.  Nor did the FA opt to exercise his discretion to refer the grievance to the MGERC.  The grievance would eventually be considered and determined by (then) Colonel Frank Malo, DGCFGA.  But let’s not get ahead of ourselves.

After the staff at DGCFGA received my grievance, they then sought input from an “SME”.  And to whom did they turn for “SME input”?  Why, Dr. Gregson at D Med Pol – Med Stds of course!

And in April 2015, DGCFGA staff completed a 7-page synopsis that was predicated upon “Interim Guidance” for “CF H Svcs Gp Policy and Guidance” regarding “Changes of Medical Category or Employment Limitations”.  Or, more accurately, they turned to what was then unpublished “Interim Guidance”.

In Mid-May 2015, I replied to the DGCFGA synopsis and analysis with a 4-page email.

And still, a decision was not made.

Instead, by July 2016, DGCFGA (Colonel Malo) contacted Colonel J.G. Kile, Director of Medical Policy himself, for further feedback.  DGCFGA characterized the grievance as a “strategic grievance”.

Colonel Kile responded with a 2-page email setting out the D Med Pol position.  He described the processes that various medical staff take regarding MEL and PCat changes.  At no point did he describe a meaningful opportunity for the affected CF member to make informed representations to the actual decision-maker, D Med Pol.  He also offered an interesting comment on procedural fairness:

One final point:

As a general comment, category and medical employment limitations can only be based on the existing clinical pathology/ findings and not determined partly or wholly on the basis of real or perceived procedural unfairness.

 

Colonel Kile was clearly of the view that procedural fairness does not apply when he or his subordinates are exercising statutory powers that affect the rights, interests, or privileges of CF personnel.

And Colonel Malo’s response was also illuminating.  He indicated doubts that the process described by Colonel Kile was sufficiently robust.  However, in the same email, he indicated:

We’re still scrubbing the O3 to make sure the explanation is sufficiently robust.

I’ll have my analyst connect with your staff.

I will also share a draft of the decision letter with you for feedback before I send it to the CDS.

 

Subsequently, DGCFGA staff contacted LCol S.W. Cooper, Senior Staff Officer Clinical Capabilities Management, Directorate Health Services Personnel, CF H Svcs Gp, for additional input.  Specifically, the analyst stated:

I have been asked by Col Malo to touch base with the medical world to get the reasoning behind the [“O3”] decision so that can be placed in the file. We just need to understand the [“O”] in order to give that explanation to the member in the decision letter.

 

And if you are asking yourself: “Hey, that doesn’t sound like the FA is actually making the decision, it sounds more like the FA is improperly sub-delegating that decision to D Med Pol or another medical officer ..” … well, you’d have a valid point.  Because that is precisely what it looks like.

That interaction was eventually disclosed to me as part of grievance disclosure, and I provided my response at the end of August 2016.

Three months later, and over 10 years after I submitted my grievance, on 2 December 2016, I received the decision from the FA.  Although DGCFGA had earlier indicated that he would send it to the CDS, DGCFGA performed his role as the CDS’s lawful delegate to consider and determine the grievance.  DGCFGA came into my office early that afternoon – my last day as D Law Admin Law before I began my retirement leave – and placed the envelope on my conference table.  I asked: “Am I going to be unhappy with that?”  He responded with “Just have a read.” (or words to that effect).

Well … I read it.  And I wasn’t happy.

So, on 30 December 2016, I brought an application for judicial review.  And, on 19 April 2017, Justice Annis of the Federal Court granted a motion, on consent of both parties, to quash the decision of the FA and to remit the matter back to the FA.

Then the FA adjudication process started all over.  And, thanks to the judicial review process, in which the Certified Tribunal Record was necessarily provided to me, I could identify some documents that were missing from my grievance file.  I don’t know when they went missing.  However, in light of the fact that the file had been lost at least twice by the time I referred it to the FA, and the CF grievance process had realigned its file numbering system at least twice during the lifetime of the grievance at that point, it should not be surprising that a grievance that languished for over a decade was missing information.  It is also not particularly reassuring.

One of the documents that was missing was an email from an officer named Capt(N) C.E. Courchesne, who, at the time that he sent the email, was the newly appointed D Med Pol.  This email was sent to me in August 2009, after I had queried why nothing appeared to have been done with my grievance over the course of 2 years.  Capt(N) Couchesne wrote:

Maj Fowler,

I am the Director of Medical Policy. I took this position one year ago. Your file was just brought to my attention today at 1700 hrs.

First let me apologize for the delay in providing you with a repsonse.[sic] I see that it went through several disclosures and this is not my way of working. You should’ve had a response from the IA within weeks of your submission.

I am starting leave but will review your file promptly on my return on 31 Aug.

Once again my apologies for this unacceptable delay.

Capt (N) C.E. Courchesne

Director Medical Policy

 

And, while I sincerely appreciated the fact that Capt(N) Courchesne took the time to offer his apology, frankly, that’s not good enough.

I regularly encounter circumstances in which CF personnel – often junior personnel – are crucified (figuratively) for errors in conduct or performance.  I also encounter circumstances in which CF personnel are subject to reasonable consequences for errors in performance or conduct.

But I am willing to hazard a guess that no one was held accountable for the fact that my grievance was lost – twice.  Moreover, despite the indication that my file would be dealt with promptly, it was not.  Another four years would pass with absolutely nothing being done.  I don’t use the term ‘incompetence’ lightly, but that can clearly be applied to how DG CF H Svcs handled my grievance as the IA.  And that is the more favourable characterization.  The alternative would be to suggest that they intentionally dragged their heels on a grievance concerning a decision that they knew, or ought reasonably to have known, was indefensible.

And no one was held accountable for the fact that my grievance languished with DG CF H Svcs for over 8 years.  And what happens when there is no accountability?  That’s right – it gives rise to impunity.

But Capt(N) Courchesne’s email raises another troubling concern.  And while I do not doubt his sincerity, I would also suggest that it did not fall to him to offer the apology.  Because Capt(N) Courchesne, D Med Pol, was not the IA.  DG CF H Svcs was the IA.  If my grievance was maladministered – and it was – any apology should come from the decision-maker who had the duty to consider and determine the grievance.  And that would have been DG CF H Svcs.

I contend that Capt(N) Courchesne’s apology demonstrates something as problematic as impunity.  It demonstrates that, from the perspective of personnel in CF H Svcs, the real decision-maker remained D Med Pol.  And that conclusion is reinforced by the multiple occasions in which these issues were referred back to the initial decision-maker – D Med Pol – not just for their input, but, essentially, for their decision.  Adjudication by an IA or an FA was largely a fiction.

My grievance was referred back to the FA in April 2017.  In May 2017, I provided them with documents that I identified as missing from the grievance.  There would be no material developments until February 2019, just under 13 years from when I had first submitted my grievance.  On 20 February 2019 I received a 12-page document entitled “SME Investigation, File Analysis, and Comment” [SME Report], dated 10 August 2016.  I don’t know why it took six months to send me the SME Report.

“Who was the author of this ‘SME Report’?” you ask.  Well, it was Colonel J.G. Kile, D Med Pol.

And, if you’re getting a sense of déjà vu, well, so was I.

The SME Report appeared to be an Annex to a document that was not provided to me, and relied upon references that were not disclosed in the process.  It was principally a re-entrenchment of the position that had been taken by D Med Pol consistently.  I suppose that, at this stage, it would be more accurate to refer to this as a re-re-re-re-re-entrenchment of their position.

The manner in which this was presented to me differed from the manner in which staff at the FA typically seek representations from a grievor.  The typical methodology, and what was done the first time that my grievance was adjudicated, is that the grievance analyst tasked with co-ordinating the adjudication of a grievance will prepare a synopsis describing the recommendation to the FA.  After all, it is supposedly the FA who is the statutory decision-maker.

That synopsis is reviewed by the analyst’s supervisor and the final package, including disclosure of the entire grievance, is sent to the grievor for any final representations.  This is done principally so that the grievance staff can confirm that procedural fairness has been provided in the grievance process.  And that is important to the FA as the CF relies extensively on the assertion that, even if an impugned decision was made within a process that was procedurally unfair, the grievance process is curative (McBride v Canada (National Defence), 2012 FCA 181).

That is true, up to a point.  Even if a grievance is conducted in a procedurally fair manner, that does not alter any defects in a flawed process that led to the grievance in the first place.  Although an individual grievor may eventually receive procedural fairness that was initially lacking, that does not correct any institutional defect that may have given rise to the grievance.

And the curative nature of the grievance process is generally limited to procedural fairness.  The fact that a grievor eventually benefits from a procedurally fair adjudication of a grievance does not render an unreasonable decision reasonable.  And as you’ll note, supra, my grievance was predicated upon both a lack of procedural fairness in the initial decision-making process and a decision that was unreasonable.

Soon after I received the SME Report, I began drafting my response.  And I had completed about 80% of it within a month.  But I had difficulty completing it.  For starters, I had just embarked on a solo practice.  While I greatly enjoyed the law firm where I had worked after I retired from the CF, solo practice offered me greater flexibility in a number of ways, including the authorship of the present Blog.  As well, I tend to place a higher priority on tasks for my clients than for myself.  I very much reflect the adage that a “cobbler’s children have no shoes”.

I did not respond to the FA staff until March 2023, four years after I had received the SME Report.  That said, this period of time included the disruption of business by the COVID-19 pandemic.  And that pandemic was consistently used as an excuse by various statutory actors – including CF decision-makers involved in the adjudication of grievances – for delays in their processes.  And sauce for the goose is sauce for the gander.

But, frankly, one of the principal reasons for delay in the completion of my representations was that every time I turned my attention to completing my representations, I found myself consumed by frustration arising from the casual intransigence of the various statutory actors who had been involved with this grievance.  The absolute absence of any accountability for the various shortcomings that had been demonstrated, combined with the blatant closed-minded arrogance of actors within CF H Svcs Gp, had a significant impact on my will to follow through with my grievance.

So, when CF personnel and veterans contact me and explain how frustrated they are with decision-making that affects their rights, interests, and privileges, and I respond that I appreciate their circumstances – I truly do sympathize.

And I contend that the “slow roll” approach that many statutory decision-makers take regarding CF grievances is a manifestation of intransigence and a means to erode the will of the grievor.

In the time that this grievance has remained unresolved:

  • I was promoted, twice;
  • I was posted – geographically relocated – four times, including a posting overseas to the United Kingdom, and then back to Canada (I changed positions even more frequently);
  • I deployed on CDS-authorized CF operations twice (Op ATHENA, Afghanistan, 2008 to 2009; Op MOBILE, Mediterranean, 2011) – and I received CEFCOM Commendations for my efforts on both deployments;
  • I participated in numerous exercises;
  • I successfully completed a variety of CF physical fitness examinations, including the CF Expres Test, the Land Forces (subsequently ‘Canadian Army’) Physical Fitness Standard (LFPFS, but also known colloquially as the BFT or Battle Fitness Test) and the FORCES Test (which replaced the CF Expres Test). Most notably, my repaired injury did not preclude me from successfully completing these fitness tests, or any other military skills requirement during the 11 years that transpired from the date of my grievance to my retirement date);
  • I completed an LLM on public and administrative law;
  • I occupied at least seven (7) successive legal officer positions (not including deployments or my my Post-Graduate Training);
  • I retired from the CF (as a LCol); and
  • I have practiced law in private practice for over seven years.

 

There may well be some among you who might conclude that this grievance is moot.  I have been retired for over seven years and, notwithstanding the alarming recruiting and retention problem that the CF presently faces, it is highly unlikely that I would rejoin.

There are two problems with the proposition that this grievance is moot.  First, were a decision-maker, or a court, to determine that the issue is moot, it would essentially reward the incompetence and intransigence of multiple CF statutory actors who failed to ensure that this grievance was adjudicated in a timely and reasonable manner.  In fact, the relevant decision-makers couldn’t even adjudicate the grievance in a timely and unreasonable manner.  I had to settle for untimely and unreasonable.

Second, this grievance raises relevant issues of the administration of the affairs of the CF that continue to apply to serving CF members.  There remains potential for public good arising both from the adjudication of this grievance as well as any further litigation that may be required.  And that public good pertains to both the process by which MEL- and PCat-related decisions are made, and the measure of reasonableness for such decisions.

And now here I am, a retired Lieutenant Colonel, in his mid-50s, waiting for the FA in the CF grievance process to adjudicate what is, today, an 18-year old grievance.  And I am markedly unimpressed.

I will even share with you what I requested as remedy.  Obviously, I have maintained my request that my ‘O Factor’ be returned to ‘O2’.  However, if the remedy is limited to that simple outcome, it would seem like a bit of a ‘damp squib’.  Had this grievance been adjudicated in a timely and reasonable fashion, that may have been an acceptable outcome.  As I write this, I am struck by the irony that I often comment that it is not uncommon for CF grievances to take five years to be resolved by the FA.  And I offer that comment as a criticism of delay in the CF grievance process.  But, as much as a 5-year duration for the adjudication of a grievance would represent an unreasonably long period, that would have resembled break-neck speed compared to the adjudication of my grievance.

Something many grievors ask for as part of a remedy for grievances like this is an ‘apology’.  That tends to be a waste of time.  No one can be ordered to apologize.  More particularly, you cannot be ordered to offer a genuine apology.  And, for me, in light of the past errors and intransigence by so many statutory actors, any apology I received now would be hollow and meaningless.

So, what remedy could address the fact that it took this long to determine my grievance?  And, bear in mind: it has yet to be resolved.  What remedy could address the fact that it took over a decade to adjudicate this grievance the first time around and that the determination was so flawed that the AGC didn’t even try to defend it?  What remedy could address the marked level of closed-minded intransigence by CF statutory decision-makers that was transparently on display in this grievance?

Frankly, the only thing that the FA could possibly do is provide an ex gratia payment.  So that is what I have requested.

This grievance satisfies the Treasury Board conditions described in Stemmler v Canada (Attorney General), 2016 FC 1299:

  • The grievance is currently before the FA and could be placed before the CDS himself, whose limit under the Canadian Forces Grievance Process Ex Gratia Payments Order, PC 2012-0861 is $100,000;
  • The delay occasioned in this grievance does not give rise to a right of damages, consequently, it is highly likely that the FA would obtain a legal opinion that states that there is no legal liability on the part of the Crown;
  • there is no other mechanism by which the grievance (or, more accurately, the problematic delay occasioned by stubborn intransigence) can be remedied, including under existing laws, regulations, instructions, policies or programs; and
  • the payment would not be used to fill perceived gaps or to compensate for the apparent limitations in any act, order, regulation, instruction, policy, agreement or other government instrument.

 

In light of the significant delay and problematic decision-making throughout the adjudication of this grievance, $ 50,000.00 would do nicely.

The problem is that an ex gratia payment is entirely and absolutely discretionary.  It is, by definition, given by grace of the Crown.  Through requests under the Access to Information Act (ATIA) I have been able to identify that the FA’s ex gratia power has been used at least 3 times in the past 12 years.  It may have been used more frequently than that.  I have relatively limited information as the Department of National Defence withheld much information based upon the specious justification that it constitutes a Cabinet Confidence.

I say that this justification was specious because they conflate the exercise of the power granted to the CDS as FA (which is not a Cabinet Confidence) with whatever process led to the Governor in Council granting the CDS that power (which likely was a Cabinet Confidence).  Where the CDS/FA has exercised his ex gratia power, certain information, such as the identities of any recipients could, and should, be withheld under s 19 of the ATIA as personal information.  However, that would not preclude disclosure of general information, including the number of times it has been exercised, and the dollar amounts.

However, I anticipate that I will not receive any remedy.  I anticipate that the FA will conclude that I was not aggrieved and decline to grant any remedy.  And then, off to Federal Court we go for a second time.

Tomorrow, in Part II, we will examine the substance of this grievance.  There may be some revelatory points that may assist other CF personnel facing similar challenges or who ware occupied with similar grievances.

 

[1] It’s also the Ides of March.  Unfortunately, I cannot think of a clever pun or anecdote that ties that in with the subject of this Blog post.

[2] National Defence Act, RSC 1985, c N-5 [NDA].

[3] Some people like to distinguish between “administrative” and “disciplinary” decision-making in a disingenuous manner.  I have repeatedly encountered so-called leaders in the CF assert “… this is administrative action, so it doesn’t involve legal principles …” or words to that effect.  This demonstrates a shockingly poor understanding of their role as statutory decision-makers.  Whether a decision or act is characterized as “administrative” or “disciplinary”, what can invariably be said is that CF decision-makers – leaders – make statutory decisions or take statutory actions.  Their authority is invariably traced back to the NDA.  These are “… decisions, acts, and omissions in the administration of the affairs of the Canadian Forces …” (NDA, n 2, s 29(1)).  And these include both “administrative” and “disciplinary” decisions.  A decision to lay a charge under the Code of Service Discipline is a statutory decision in the administration of the affairs of the CF.  The reason this decision cannot be grieved under s 29 of the NDA is because an exception is carved out under para 29(2)(c) of the NDA and art 7.03 of the QR&O.  But the decision nevertheless remains a statutory decision in the administration of the affairs of the CF.

[4] DMCARM no longer exists.  Those functions are now performed by Director Military Careers Administration (DMCA).

Please follow and like us:

Leave a Reply

Your email address will not be published.