MGen Fortin’s Appeal

 

On Wednesday, 5 October 2022, the Federal Court of Appeal (FCA) will hear the appeal of Fortin v Canada, 2021 FC 1061 [Fortin v Canada]. Some of you may recall Major-General (MGen) Dany Fortin’s application for judicial review that was heard before the Federal Court last year.  In January of this year, the Attorney General of Canada (AGC) was unsuccessful In having the appeal dismissed for mootness.

However, the appeal that will be heard this week has less to do with the merits of MGen Fortin’s initial application, and more to do with the nature of applications for judicial review by members of the CF and the common law principles regarding when the Court is justified in dismissing such an application before hearing it on its merits.  This appeal will be about whether and when the CF grievance process is an ‘adequate alternative remedy’.

In advance of the hearing this Wednesday, let’s take a moment to examine MGen Fortin’s application and the judgment by which it was dismissed (based upon the Crown’s interlocutory motion), with a view to anticipating what may transpire at the FCA.  This may illuminate an aspect of the Crown-soldier relationship regarding the circumstances in which a member of the CF might seek a remedy for executive decision-making.

 

The Application

MGen Fortin brought an application for judicial review of the decision to remove him from his position as ‘Vice President Logistics and Operations with the Public Health Agency of Canada (PHAC)’.  He was often described in the news media as being the ‘head of the vaccine rollout’, ‘chief of the vaccine task force’, or similar descriptors.

MGen Fortin alleged that on May 14, 2021, a decision was made by the Prime Minister of Canada, the Minister of Health, the Minster of National Defence, and the Clerk of the Privy Council to remove him from his position prior to the anticipated end date of 31 October 2021. He alleged that, rather than being a decision of the Acting Chief of Defence Staff (CDS) – Lieutenant-General Wayne Eyre (as he then was) – it was made by political actors and was prompted by a “political calculus”.  The term “political calculus” appears to have been a euphemism for concerns that the above-named political decision-makers had about the potential negative appearances arising from the allegation, brought against MGen Fortin, of a sexual assault alleged to have taken place over 30 years earlier, when he was an Officer Cadet.

MGen Fortin argued that only the Acting CDS had the authority to remove him from that position and was obliged to do so in a manner consistent with the National Defence Act (NDA) and, more particularly, as prescribed under the Queen’s Regulations and Orders for the Canadian Forces (QR&O).  MGen Fortin argued that the removal did not remotely demonstrate any procedural fairness.

Since that point in time (14 May 2021) it appears that MGen Fortin has been without portfolio – although he remains an officer of the CF – and was, de facto, if not de jure, relieved from performance of military duty.  Indeed, part of the problem he faces is that neither the CDS, nor his political masters, have clarified – at least, not to the public – MGen Fortin’s current standing regarding his duties, functions, and role as a General Officer in the CF.  He remains banished to limbo by the threat of negative commentary.

So, MGen Fortin brought an application for judicial review seeking, among other remedies, to have the decision by the political actors quashed and to be reinstated in his position.  Although Justice McDonald observed that the application was ‘time-sensitive’, her judgment was handed down on or about 12 October 2021, less than 3 weeks before it was anticipated that MGen Fortin would conclude his duties with PHAC.  The process before the Federal Court tends to be markedly more efficient and expedient than the CF grievance process, but it still takes time.

The appeal is being heard a year later.  Some observers may be inclined to conclude that the issue is largely moot, and that continued litigation has little or no merit.  That was certainly the basis of the AGC motion that failed in January of this year.  I suggest that there are still relevant issues for the FCA to consider, including the nature of when a CF member may seek a remedy before the Federal Court prior to exhausting the process that is often held up as an adequate alternative remedy: the CF statutory grievance process.

 

The Judgement at Federal Court

Technically, Justice McDonald did not delve into the merits of MGen Fortin’s application.  She dismissed his application following a motion by the AGC, which was predicated principally on the argument that MGen Fortin had brought his application prematurely by failing to exhaust the adequate alternative remedy of the CF grievance process.

Relying on the FCA judgment in Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 [C.B. Powell Limited] (per Stratas JA), Justice McDonald held that the CF’s statutory grievance process was both an adequate and effective means of providing a potential remedy.

MGen Fortin relied upon the Federal Court judgment in Gayler v Canada (Director Personnel Careers Administration Other Ranks, National Defence Headquarters), [19954] 1 FC 801 [Gayler][1], in which a non-commissioned member (NCM) had successfully sought a remedy from the Federal Court notwithstanding that she had not exhausted the CF’s grievance process.  Note that the matter in Gayler arose prior to the significant amendments to the CF’s statutory grievance process, introduced by Bill C-25[2], which received Royal Assent in December 1998, and for which various provisions came into force over the course of the following year.  Most of the significant reforms to the regulatory framework for grievances (e.g., Chapter 7 of the QR&O) were enacted 15 June 2000).

In Fortin v Canada, Justice McDonald cited Gayler, in which Justice MacKay observed that the grievance remedy would have obliged the applicant to proceed through multiple layers in the chain of command, up to the Governor in Council.  As a result of the amendments introduced in Bill C-25, the CF grievance process was altered to a two-tiered process, terminating with the CDS (or his lawful delegate).

Justice McDonald enumerated several judgments, most of which post-date Bill C-25, in which the Federal Court consistently held that the CF grievance process is an adequate alternative remedy.  She also noted, at para 47 of her judgment:

As a final point, I would note the comment of the Supreme Court in Strickland where the court states that parties are not guaranteed a perfect alternative remedy, but rather an adequate remedy (at para 59). Here the remedy available to MGen Fortin while perhaps not perfect, is nonetheless adequate.

 

I note, tangentially, that the citation for Strickland was not provided in the judgment.  The case to which she referred was Strickland v Canada (Attorney General), 2015 SCC 37.

This principle was established in earlier cases: Harelkin v University of Regina, [1979] 2 SCR 561, per Beetz J, 588 [Harelkin]; Canadian Pacific Ltd. v Matsqui Indian Band, [1995] 1 SCR 3, per Lamer CJ, 31 to 32 [Matsqui].

Justice McDonald also considered whether there might be extenuating circumstances – something alluded to in the Gayler judgment – that might warrant the exercise of the Court’s discretion to consider the application, notwithstanding the existence of an adequate alternative remedy.  She concluded that there were not.  Justice McDonald’s conclusions are pertinent to the discussion below, so I will present them, verbatim, here:

[48] MGen Fortin argues that there are exceptional circumstances in his case because the political actors who made the decision are outside the CAF chain of command. He argues that the grievance process would effectively immunize the true decision-makers. However, I note that despite the allegations of political interference, MGen Fortin does not seek a remedy against the “political” decision-makers. Rather, he seeks an order quashing the decision and reinstating him to his secondment at PHAC and/or a position commensurate with his rank. In the alternative, he seeks an order referring the matter to the [Acting] CDS for a re-determination consistent with the Court’s reasons. These are remedies that can be addressed though the grievance process.

[49] In my view, the high-profile nature of MGen Fortin’s position and the allegations of political interference are not exceptional circumstances that allow him to bypass the internal grievance process. The decision to removal him from the PHAC position was the ACDS decision to make. If that did not happen, the grievance process can address that failure. Similarly, the reinstatement request made by MGen Fortin is more properly considered by the CAF and not by the Courts. MGen Fortin is and has always been a member of the CAF and the essential nature of the issues he raises are clearly service-related matters that should be addressed internally.

 

Issues on Appeal

I am not counsel for MGen Fortin and, although one can obtain records from the Federal Court and Federal Court of Appeal, I have not reviewed the memoranda of fact and law presented by either MGen Fortin’s counsel or the counsel for the Attorney General for Canada in this appeal.[3]  However, as an academic exercise, I will raise what I consider to be two compelling arguments that could be advanced in challenging the judgment, at first instance, on the AGC’s interlocutory motion:

1. The court failed to apply the principle, when adjudicating the motion to dismiss an application, that the factual basis of the pleadings must be assumed to be true; and
2. In light of the presumed factual basis of the application, the grievance process, with the CDS at its head, could never be an adequate alternative remedy.

 

We must remember: the judgment dismissing MGen Fortin’s application was the result of an interlocutory motion by the AGC.  Counsel or the AGC argued that the CF grievance process is an adequate alternative remedy to challenge decisions in the administration of the affairs of the CF.

[NB: There are narrow exceptions.  There is no right to grieve a decision of a court martial or the Court Martial Appeal Court (NDA, para 29(2)(a)).  There is no right to grieve a decision of a board, commission, court or tribunal established other than under the NDA (NDA, para 29(2)(b)).  The reason for these statutory exceptions is because there are other remedial processes available to the affected person – e.g., appeals or processes established under the relevant legislation other than the NDA.  There is also no right to grieve a decision under the Code of Service Discipline (QR&O, art 7.03).]

Justice McDonald relied upon compelling caselaw distinguishing the judgment in Gayler.  As I have mentioned in the blog previously, the judgment in Gayler is an outlier, largely inconsistent with many more recent judgments:

“Grievance Myths – A Remedy for Canadian Forces Personnel?”, 28 July 2021

“The Potential Pitfalls of Op HONOUR-related Administration”, 27 February 2017

 

Had Gayler been heard today, I suggest that the outcome would likely be different.  One could point to the much more stratified process described in Gayler as a feature distinguishing that matter from cases arising after Bill C-25 came into force.  However, as I explain below, that distinction would not present a compelling justification for the intervention of the court.  Indeed, nearly 30 years ago, Corporal Gayler potentially had access to broader remedy in the grievance process than MGen Fortin does now.

Justice McDonald identified at least five steps in the process upon which Corporal Gayler would have had to rely, had she grieved the decision that was subject to the application for judicial review.  Corporal Gayler’s grievance would have had to have been adjudicated by:

1. the Formation Commander;
2. the Officer Commanding the Command;
3. the Chief of the Defence Staff;
4. the Minister; and
5. the Governor in Council.

 

I would be remiss if I did not observe that, roughly contemporaneous with the judgment in Gayler, the Governor in Council had been removed from the CF grievance process, leaving the Minister at the apex.  And Bill C-25 removed the Minister of National Defence from the equation, leaving the CDS (or his lawful delegate) as the final authority.

Corporal Gayler had challenged a decision of the ‘Director Personnel Careers Administration Other Ranks’, a position that no longer exists, and whose role is now performed by the Director Military Careers Administration (DMCA).  Decisions by DMCA are often grieved, and the typical initial authority (IA) in the CF’s 2-tiered system for such decisions is the Director General Military Careers (DGMC).  If the grievor is not satisfied with the decision by DGMC (the IA in such a case), or if DGMC fails to consider and determine the grievance within four months, the grievor may seek a decision from the CDS or his lawful delegate.

One might, therefore, point to the more abbreviated process under the current regime as a distinguishing feature.  However, this is not much of a distinction.

First, the oft-cited significance of the former, multi-tired process was that the multiple tiers tended to lead to significant delay in exhausting the remedy.  The creation of a 2-tiered process was intended to streamline the process.  However, Dear Reader, if you expect that the changes introduced in Bill C-25 reduced delay in the CF grievance process, I have some regrettable news for you.  Delay continues to be a problem with the adjudication of CF grievances, and that deficiency has been raised in all three statutory ‘Independent Reviews’ conducted since Bill C-25 was enacted 24 years ago.  For the commentary in the most recent such review, see:

The Honourable Morris J. Fish, C.C., Q.C., “Report of the Third Independent Review Authority to the Minister of National Defence Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5”, 30 April 2021, Chapter 4, Part II – The Main Problem: Delays

 

Second, as Justice McDonald held at para 43 of her judgment in Fortin v Canada: “Although the expeditiousness of the alternative remedy is a factor this Court must weigh, arguments that the grievance process is time-consuming are not, on their own, sufficient.”  She then provided several examples in which Federal Court judges held that delay in grievance processes was insufficient to justify the intervention of the court.

Finally, if anything, the grievance system described in Gayler had a greater scope of remedy than the current system.  As I have observed previously, the CF grievance process does not grant the statutory decision-makers under the NDA any additional powers.  [NB: The ex gratia power conferred upon the CDS in the determination of grievances was added by virtue of a separate Order in Council.]  The legislative framework for the CF grievance process principally establishes the process that must be followed.  It creates several obligations and constraints for the grievor, and a few obligations for the statutory decision-makers.  It defines functions. But it does not confer upon the initial authority or final authority any powers in addition to those they possess as a result of their specific status within the CF.

According to the judgment in Gayler, Corporal Gayler could, eventually, have sought a remedy from the Governor in Council (or, at least, the Minister).  The Governor in Council has markedly greater remedial powers than the CDS – indeed, it was the Governor in Council who conferred upon the CDS the power to grant ex gratia payments in 2012, subject to significantly restrictive limitations imposed by the Treasury Board.  [NB: The Treasury Board conditions are not posted, publicly, like the Order in Council. However, they may be found at para 19 of the Federal Court judgment in Stemmler v Canada (Attorney General), 2016 FC 1299, which also discusses the application of some of these Treasury Board conditions.]

Whenever the dated judgments of Gayler and Loiselle v Canada (Attorney General), 1998 CanLII 8810, 161 FTR 232 (FC) [Loiselle] are raised in support of the contention that a CF member should not be obliged to exhaust the CF grievance process – as they were before Justice McDonald – Federal Court judges are obliged to pursue the awkward exercise of distinguishing those cases from more recent case law.  And, while one might rely upon the legislative amendments to the CF grievance process in the intervening years and the basis for distinguishing these cases, those changes don’t really alter the relevant principles pertaining to ‘adequate alternative remedy’.

Bill C-25 did not make the CF grievance process any more ‘adequate’ an alternative remedy.  It did not make it a timelier process.  It did not guarantee more reasonable or fair decisions.  It certainly did nothing to alter the lack of independence of the statutory decision-makers.  It did not promote open-minded decision-making.  The legislative amendments principally made the process better defined, but without addressing any of its shortcomings.

Again, as I have suggested previously, one of the reasons that these shortcomings were not really addressed is because the existence of the CF grievance process is principally a ‘litigation avoidance mechanism’ for the Crown.  It exists to be cited as an ‘adequate alternative remedy’.

The awkwardness of the exercise of distinguishing cases is highlighted at para 17 of Loiselle:

Clearly, Gayler is distinguishable from Anderson [Anderson v Canada (Armed Forces), [1997] 1 FC 273]. Acting Corporal Gayler sought review of a decision made under the Authority of the Chief of Defence Staff but communicated by the Director of Personnel, Careers Administration, Other Ranks, for action taken on account of her being implicated by association, ie. being present when someone else smoked marijuana. In Acting Corporal Gayler’s case none of the officers forming the chain of command could overturn a decision that had in fact been made by the Chief of Defence Staff. Apparently on the premise that the military grievance procedure would be without meaning, until the applicant worked her way up to the Chief of Defence Staff, who might overrule himself, Mr. Justice MacKay decided that the applicant did not have an adequate alternative remedy, given the test in Harelkin (supra).

 

Respectfully, that distinction is not at all clear, and is more contrived than substantive.  The decision had not, in fact, been made by the CDS.  It had been made by the (then) Director Personnel Careers Administration Other Ranks, who was acting under the authority of the CDS.  The same is true, in the present circumstances, for decisions made by DMCA.  And the Federal Court has consistently held that, when challenging decisions by DMCA, CF members must first exhaust the CF’s statutory grievance process: Jones v Canada (Chief of Defence Staff), 2022 FC 1106 (which relied upon Fortin v Canada).[4]  This appears to be the case even when DMCA’s decisions are driven by policies implemented by the CDS (as was the case with the CF’s COVID-19 Vaccination Policy).

Moreover, as Justice MacKay expressly observed in Gayler, the grievance process at the time did not terminate with the CDS.  Even if the CDS had been the actual decision-maker – and Justice MacKay had clearly indicated that it had been the (then) Director Personnel Careers Administration Other Ranks, and not the CDS personally – there were other decision-makers, above the CDS, who could have overturned a CDS decision.

If I may be permitted to posit a potentially controversial observation: the outcome in Gayler likely owes more to the resolute and nuanced advocacy of her counsel, the late Mel Hunt, than it does to a cogent and coherent distinction from other matters in which the Federal Court dismissed an application on the grounds of the CF grievance process representing an adequate alternative remedy.

Mr. Hunt characterized the decision as one attributable to the CDS, even though the CDS was not the actual decision-maker.  This attribution related to section 18 of the NDA and that decisions in the administration of the affairs of the CF are often done ‘under the authority of the CDS’ even if they are not made by the CDS personally.  And that distinction is important.

Consequently, the characterization is a conceptual stretch.  I suspect that the late Mr. Hunt, a former legal officer well-versed in the nuances of decision-making in the administration of the affairs of the CF, advanced that argument as a means of reinforcing his argument that the grievance process would not be adequate, and that the Federal Court should exercise its discretion to provide a more immediate remedy.  I also contend that his argument was successful, at least in part, due to the markedly sympathetic factual basis.  As I observed in the conclusion of my 2017 Blog article, “The Potential Pitfalls of Op HONOUR-related Administration” (supra):

The minority of applications (or rebuttals of motions to strike) that are successful despite the applicant’s failure to exhaust alternative remedies have one characteristic in common: the factual narrative presented by the applicant, even if it is disputed by the AGC, demonstrates unreasonable and heavy-handed decision-making by the CF ‘chain of command’.

 

However, that is not why I suggest that Justice McDonald’s judgment may be vulnerable on appeal.  Rather, I contend that the principal distinction is that, under the previous grievance process, Corporal Gayler would have benefitted from a more robust scope of remedy than does MGen Fortin presently.

MGen Fortin’s application was dismissed not on its merits, but based upon an interlocutory motion from the AGC, arguing that the court should not exercise its discretion to hear the application because MGen Fortin had failed to exhaust an adequate alternate remedy.

This can be distinguished from interlocutory examination of pleadings in an action.  For example, a motion to strike pleadings in an action, under Rule 221 of the Federal Court Rules, will not be based upon the examination of evidence: Mohr v National Hockey League, 2022 FCA 145.  [NB: While this judgment of the FCA post-dated Fortin v Canada, it provides a useful articulation of the principle regarding actions, and this principle existed prior to the hearing of Fortin v Canada.]

Motions to strike or dismiss applications can differ from motions to strike an action (or specific pleadings in an action) for failure to disclose a valid cause of action.  The test for the latter turns on whether it is ‘plain and obvious’ that an action will not succeed for want of a valid cause of action.  This is typically a determination of law rather than an application of facts to a legal regime.  Hence, the evidence anticipated in the action is not directly relevant, and the factual basis of the pleadings is assumed to be true.

A useful examination of this factor, in the context of an action by a current or former member of the CF, is presented in the FCA judgment in Lafrenière v Canada (Attorney General), 2020 FCA 110, application for Leave to Appeal refused, Sylvain Lafrenière v Attorney General of Canada, 2021 CanLII 20330 (SCC).  Moreover, a bald statement or assertion need not be treated as ‘true’: Canada v John Doe, 2016 FCA 191, per De Montigny, para 13.  Nor is the court bound by the legal characterization of those facts.

The operative issue raised in Fortin v Canada was whether the court should exercise its discretion to intervene in statutory decision-making by the executive.  In C.B. Powell Limited, upon which Justice McDonald relied, Stratas JA of the FCA held that:

Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously. This is shown by the narrowness of the “exceptional circumstances” exception. [para 33]

 

Consequently, the issue is whether such judicial intervention in executive decision-making is justified notwithstanding that the Applicant has not exhausted an oft used, or anticipated, remedy.  However, when conducting such an examination, the court that has been called upon to review the public law decision, is still obliged to treat the facts plead as true, provided that they are not simply a bald assertion: Xanthopoulos v Canada (Attorney General), 2022 FCA 79.

Therefore, we must return to the facts alleged by MGen Fortin in his application.  He asserted that the decision was made by the Prime Minister of Canada, the Minister of Health, the Minster of National Defence, and the Clerk of the Privy Council, following a ‘political calculus’.  Any involvement by the Acting CDS was subject to the direction by, among others, the Minister of National Defence.

That was the factual scenario pled.  This was supported by an affidavit, albeit one that would be subject to testing if relied upon for the hearing of the application.  But it was not a mere bald assertion.

Now, let’s return to Justice McDonald’s conclusions regarding the ‘special circumstances’ that MGen Fortin pled:

[48] MGen Fortin argues that there are exceptional circumstances in his case because the political actors who made the decision are outside the CAF chain of command. He argues that the grievance process would effectively immunize the true decision-makers. However, I note that despite the allegations of political interference, MGen Fortin does not seek a remedy against the “political” decision-makers. Rather, he seeks an order quashing the decision and reinstating him to his secondment at PHAC and/or a position commensurate with his rank. In the alternative, he seeks an order referring the matter to the ACDS for a re-determination consistent with the Court’s reasons. These are remedies that can be addressed though the grievance process.

[49] In my view, the high-profile nature of MGen Fortin’s position and the allegations of political interference are not exceptional circumstances that allow him to bypass the internal grievance process. The decision to removal him from the PHAC position was the ACDS decision to make. If that did not happen, the grievance process can address that failure. Similarly, the reinstatement request made by MGen Fortin is more properly considered by the CAF and not by the Courts. MGen Fortin is and has always been a member of the CAF and the essential nature of the issues he raises are clearly service-related matters that should be addressed internally.

 

Respectfully, it appears that Justice McDonald may have erred in two ways in this portion of her judgment.

First, MGen Fortin was very much seeking a remedy against the ‘political’ decision-makers.  He was seeking to have their decision quashed.  He sought reinstatement in his role with the PHAC.  The alternative remedy that he sought – likely in recognition of the time it would take to hear the application – does not negate that he was seeking a remedy for the decision made by the political decision-makers.

MGen Fortin had argued that he was, de facto, relieved from performance of military duty by political decision-makers who are not actually empowered under the NDA to relieve any CF member from the performance of military duty.  He also argued that he did not receive the procedural fairness that would have been required under art 19.75 or art 101.09 of the QR&O or the procedural fairness require for so public a removal from a position occupied by a senior officer in the CF.  But that does not alter that he was very clearly challenging the decision of the Cabinet members, including the Prime Minister and the Minister of National Defence.

A public law decision made without adequate procedural fairness, where the subject of the decision is entitled to procedural fairness, is void ab initio: Newfoundland Telephone Co v Newfoundland (Public Utilities Board), [1992] 1 SCR 623; Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (CanLII), [2013] 2 SCR 559, paras 93 to 96.

In other words, regardless of the specific remedy MGen Fortin sought, if he was not permitted to bring an application before the Federal Court, MGen Fortin would be obliged to call upon the Acting CDS (now the CDS) to determine the following issues:

1. Did the Prime Minister, Minister of Health, Minister of National Defence, and Clerk of the Privy Council make the decision alleged by MGen Fortin?
2. If they made that decision, did they have the authority to make that decision?
3. If they had the requisite authority, were they required to provide procedural fairness?
4. If they were required to provide procedural fairness, what was the specific content of fairness owed to MGen Fortin?
5. Did they satisfy that content of fairness?
6. If the decision was not procedurally fair, what is the appropriate remedy?

 

If the political actors were obliged to provide the procedural fairness sought by MGen Fortin (or, indeed, any procedural fairness, in light of the apparent absence of any procedural fairness) did the CDS have any jurisdiction to adjudicate a decision made by his political masters?  Based upon the judgment in Fortin v Canada, it would fall to the CDS to adjudicate and, potentially, over-rule the members of the political executive to which he, as CDS, is subordinate.

And that leads to the second compelling concern: the CF grievance process is entirely inadequate to address this matter.  Again, for the purposes of the AGC motion, the judge was obliged to accept as true the factual context pled by MGen Fortin, provided that it was not a ‘bald assertion’.  The application clearly indicated that the decision was imposed on the Acting CDS by his political masters.  The CDS has no power whatsoever to overturn that decision.

This isn’t a question of an adequate, if imperfect remedy, to which Justice McDonald alluded based upon Strickland, Matsqui, and Harelkin.  And, as I indicate above, the exercise of comparing the present matter to (or distinguishing it from) Gayler can be largely a problematic exercise insofar as Gayler was predicated upon a mischaracterization of its own facts.  However, the circumstances in Gayler do illuminate a central issue arising in Fortin v Canada, namely: whether the apex decision-maker in the CF grievance process can affect the impugned decision.  And, in that context, MGen Fortin actually has a more compelling argument than did Corporal Gayler.

The problem that MGen Fortin faces is that the CF grievance process is not a remedy for decision-making that is not just ‘politicized’ (as is so much problematic decision-making in the administration of the affairs of the CF of late), but where it is actual political decision-making by members of the Federal Cabinet.  It’s not a question of the reluctance of the CDS to support his subordinates in the face of political decision-making – the problem is that the CDS has no authority to over-turn a decision-made by members of the Federal Cabinet.

Arguably, the CDS could, potentially, provide some superficial remedy for MGen Fortin; however, that would, presumably, require the CDS to determine that the political decision was unreasonable or procedurally unfair.  That is the issue presented in the application.  Since the CDS appears to have played a role in implementing a decision that he did not make, that seems to be a ludicrous proposition.  Moreover, the CDS has not done anything, in the past 16 months, even to clarify MGen Fortin’s standing.

In other words, the Prime Minister and Minister of National Defence, in effect, relieved MGen Fortin from performance of military duty, a power that, under arts 19.75 and 101.09 of the QR&O, has been conferred upon the CDS and subordinate officers, and the CDS has done nothing to rectify that error or clarify the circumstances.  On the contrary, he implemented it.  The grievance process for which the CDS is the apex decision-maker cannot be expected to be an adequate alternative remedy in this circumstance.

 

Conclusion

One might be inclined to suggest that the decision made by the Prime Minister and his loyal Ministers of the Crown is non-justiciable.  That argument could have been advanced in support of a motion to dismiss the application.  It has certainly been successfully advanced in the past: Black v Canada (Prime Minister), 2001 CanLII 8537, 54 OR (3d) 215 (ON CA).

Alternatively, one might argue that the position that MGen Fortin occupied – ‘Vice President Logistics and Operations with the PHAC’ – was an ‘at pleasure appointment’.  I am not suggesting that this was necessarily the case, but that would be a potential argument that might be raised in terms of the justiciability of the issue.

However, neither proposition relating to justiciability was a basis for the judgment last October.  And, if we assume that the factual basis of the application is true, then it is very difficult to conclude that the CF grievance process is an adequate alternative remedy in these circumstances.

That doesn’t mean that MGen Fortin will necessarily succeed in his application; however, there is a compelling argument that the application should have been permitted to proceed on its merits and be decided on its merits.

As a result of the slavish adherence to the nearly 45-year-old judgment in Gallant v The Queen in Right of Canada (1978), 91 DLR (3d) 695 (FC TD) and to the antiquated Victorian principles it perpetuates, the law pertaining to the Crown-soldier relationship has stagnated.  It is predicated upon the conceptualization of a unilateral relationship for the sole benefit of the Crown, in return for which the Crown assumes no obligations toward members of the armed forces.  Consequently, there are very few substantive rights that members of the armed forces may claim in that relationship.  They are not employees governed by contract.  They represent one of the last surviving ‘Master-servant’ relationships in the Common Law world.  Their rights in the administration of the affairs of the CF are largely procedural in nature.  And, in MGen Fortin’s case, he was offered no articulable procedural rights in the decision handed down by the Prime Minister and his Ministers of the Crown.

It may be that the courts eventually determine that the issue at stake is not justiciable either as an exercise of prerogative powers or as a decision regarding an ‘at pleasure appointment’.  I have my reservations about the merit of either conclusion.  However, at the very least, MGen Fortin deserves to have the merits of his application heard in a process that could evaluate the impugned decision in an unconstrained manner, which could actually grant a remedy, and which, unlike the CDS, is free from the control and influence of the very political actors who made the decision.  In the material circumstances of MGen Fortin’s removal from his position as ‘Vice President Logistics and Operations with the PHAC’, the CF grievance process cannot reasonably be construed as an adequate alternative remedy.

 

[1] NB: The citation for Gayler v Canada (Director Personnel Careers Administration Other Ranks, National Defence Headquarters), 1994 CanLII 3544 (FC), [1995] 1 FC 801 in the CanLII judgement for Fortin v Canada (Attorney General), 2021 FC 1061 is miscited to 1994, rather than 1995.

[2] An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35 [Bill C-25].

[3] NB: I did obtain, and have the benefit of, the Application and Motion Records from the Applicant and Respondent in the hearing before the Federal Court.

[4] Although Jones v Canada (Chief of Defence Staff), 2022 FC 1106 focused primarily on interlocutory relief and whether the Applicant met the threshold for such relief in RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, the court examined the issue of adequate alternative remedy as part of its analysis regarding whether the Applicant met the threshold for interlocutory relief.