MGERC Findings & Recommendations: Myths & Misconceptions
Many of you may be aware of the recent Findings and Recommendations (F&R) offered by Nina Frid, a Full-Time member of the Military Grievances External Review Committee (MGERC), in relation to a series of grievances by Canadian Forces (CF) members who were placed on remedial measures and, in some cases, compulsorily released from the CF under release item 5(f) of the Table to article 15.01 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), for refusing to be vaccinated against COVID-19.
While the contents of these F&R, and the merits of the various arguments presented therein, are certainly worth examining, what I wish to do here is to use this context to examine the nature and dynamic of the relationship between the MGERC and the CF, in particular the final authority (FA) in the CF grievance process: the Chief of the Defence Staff (CDS), or his delegate.
These particular grievances – the subject of which is publicly notorious – offers a context of which the public is relatively aware, and which can be used as a platform to discuss a key part of the decision-making dynamic in the CF grievance process. In particular, I will address some of the myths and misconceptions about the role of the MGERC, its influence on decision-making, and the relationship that the MGERC has with the CF and the FA in the CF grievance process.
Background – Grievances Regarding the CF COVID-19 Vaccination Policy
In late 2021, at least 18 months after the World Health Organization (WHO) declared COVID-19 to be a global pandemic, the CF rolled out it’s policy for what was essentially mandatory vaccination against COVID-19. It did so shortly after the Federal Public Administration rolled out its policy on COVID-19 vaccination. The latter was a bit less coercive than the CF’s policy.
CDS Directive on CAF COVID-19 Vaccination, 12 October 2021
The CF policy was also subject to some tweaking in the initial days.
The CF policies also evolved over time.
In addition to the overtly published CDS Directives concerning vaccination of CF personnel against COVID-19, Director Military Careers Administration (DMCA) – or, more specifically, DMCA2 – developed an ‘Aide-Memoire’ for CF statutory decision-makers to take significant administrative action against those CF personnel who declined or refused vaccination against COVID-19. The DMCA2 Aide-Memoire was not promulgated as publicly as the various CDS Directives; however, it was very much a central element of the CF response.
Various news media reported that nearly 1,000 members of the CF – both in the Regular Force and Reserve Force components – had either refused vaccination or sought exemption from vaccination and were denied exemptions.
The DMCA2 Aide-Memoire clearly reflected the coercive nature of the recommended approach. However, despite the ‘disciplinary’ nature of the tone and wording of the DMCA2 Aide-Memoire, the Code of Service Discipline was not employed to maintain the “… discipline, efficiency, and morale …” of the CF in the context of vaccination against COVID-19 or to instil the “habit of obedience” in CF personnel who were disinclined to be vaccinated. Instead, administrative processes – which are subject to markedly less scrutiny than Code of Service Discipline processes and which permit more ambiguous approaches by the chain of command – were employed to enforce discipline.
This gave rise to a problematic juxtaposition between the tone and nature of the direction in the DMCA2 Aide-Memoire, and the nature of the CF’s policy on vaccination against COVID-19.
I contend that the requirement for vaccination against COVID-19 represented a change in the “conditions of service” for CF personnel. Such a policy change is often the subject of administrative, and not disciplinary, processes. Putting aside, for the moment, debate on whether these changes in the “conditions of service” were justified or whether an ‘absolutist’ approach (i.e., “you must be vaccinated, or you can no longer serve in the CF”) was reasonable, what we can observe is that “conditions of service” are typically the subject of administrative statutory decision-making, rather than disciplinary decision-making.
By way of example, common conditions of service, either in the CF generally or for particular Military Occupation Specifications (MOS) or postings, include: specific levels of medical fitness or ‘medical categories’; specific, measurable levels of physical fitness; certain training requirements and proficiencies; and other, largely quantifiable, requirements. All of these “conditions of service” tend to be enforced through administrative mechanisms and processes. For example, failure to meet the required thresholds could lead to: postings out of a unit for which those thresholds must be met; transfer out of an MOS for which those thresholds must be met; remedial measures to assist a member in overcoming a deficiency (such as sub-0standard physical fitness); or even compulsory release on medical grounds where a CF member’s Medical Employment Limitations (MEL) or medical category falls below the minimum level necessary to serve in the CF under conditions of unlimited liability.
However, the DMCA2 Aide-Memoire was laden with disciplinary terminology expressing a disciplinary intent. I suspect many CF decision-makers, including the CDS, would be quick to assert that the Aide-Memoire was intended to assist with administrative processes, such as remedial measures and Administrative Review under Defence Administrative Order and Directive (DAOD) 5019-2. However, such assertions ring rather hollow in the face of the language and tone of the DMCA2 Aide-Memoire, which a reasonable and objective person would clearly conclude expresses a disciplinary intent.
And CF decision-makers expressly refused to rely on the Code of Service Discipline to enforce compliance with vaccination policies, notwithstanding that Parliament expressly enacted an offence regarding this specific issue. The infrequent Code of Service Discipline proceedings relating to the CF’s policy on vaccination against COVID-19 were limited to circumstances in which CF personnel criticized the CF (or governmental) policies relating to COVID-19 – sometimes while wearing their uniform. No Code of Service Discipline action was taken regarding the refusal of vaccination, notwithstanding that section 126 of the National Defence Act (NDA) expressly creates an offence relating to such refusal.
I expanded upon this subject here:
The Canadian Forces’ COVID-19 Vaccination Policy, 17 December 2021
Subsequently, hundreds of CF personnel were placed on remedial measures for declining to be vaccinated against COVID-19, and dozens – at last report, just shy of 300 – were released under item 5(f). Many of those affected by these ‘administrative’ decisions (albeit decisions imposed for punitive effect) grieved the decisions.
Although each CF member is purportedly subject to decision-making driven by their own circumstances, and each grievance is adjudicated on its own individual merits, there was a large degree of commonality in both the adverse administrative decisions taken against these CF personnel and in the adjudication of their grievances. This isn’t surprising, given the boiler-plate approach presented in the DMCA2 Aide-Memoire that was circulated to CF decision-makers and the rote approach to enforcement of the change of conditions of service presented by the CF vaccination policy.
Consequently, and not surprisingly, Ms Frid delivered largely similar F&R for many of these grievances. Apparently, in order to aid in a consistent approach, Ms Frid produced three Annexes in relation to her F&R. Thus, while each CF grievor received (and, presumably, will receive) specific F&R tailored to his or her own specific grievance, the Annexes that Ms Frid produced dealt with the common legal issues arising in each grievance. And, presumably, the F&R for each grievance relating to the broader subject of vaccination against COVID-19 will enclose one or more of the Annexes, as relevant.
Annex I examined the ‘Constitutionality of the CAF COVID-19 Vaccination Policy’. It is the lengthiest of the three annexes, which is not surprising in light of the focus of the Annex. Annex II addressed the ‘Remedial Measures Related to the CAF Vaccination Policy’. And Annex III addressed the Administrative Reviews conducted for select CF personnel and the eventual compulsory release arising from that process. There is, to an extent, a sequential nature to the three Annexes, much as there was a sequential nature to the boiler-plate response described in the DMCA2 Aide-Memoire. Annex I also listed six Appendices in relation to the issues examined by that Annex. However, while I am in a position to provide copies of the three generic Annexes produced by Ms Frid, I do not have copies of the Appendices cited in Annex I.
These F&R are distinguishable from most F&R produced by the MGERC in the adjudication of grievances. While there are many types of grievances that deal with similar subjects – e.g., annual performance appraisals; the implementation of remedial measures under DAOD 5019-4; the conduct of Administrative Reviews under DAOD 5019-2; promotions; and overpayment, underpayment, or denial of financial benefits under Compensation and Benefits Instructions (CBI) – such grievances typically turn on specific circumstances unique to those grievances. The grievances relating to administrative punishments imposed upon hundreds of CF personnel in largely similar circumstances, arising at the same material time, and applying identical (boiler-plate) decision-making processes, offer a useful subject of discussion for at least two reasons.
First, while each grievance is an individual grievance, they almost all turn on the same issues discussed in the Annexes produced by Ms Frid. In other words, the grievances do not relate principally to individualized injustices driven by the specific facts and circumstances of each grievor, but, rather, represent a common and (from the perspective of both the grievors and Ms Frid) problematic institutionalized approach that aggrieved a not-insignificant number of CF personnel.
Second, it concerns a highly contentious matter dominated by an institutionalized approach approved by the Chief of the Defence Staff, who is also the final authority (FA) in the CF grievance process.
Therefore, the adjudication of these grievances offers an opportunity not just to examine the specific merits of the subject matter of the grievance, but, perhaps more significantly, the nature of the relationship and dynamic between the MGERC, the CF, and the final authority (FA). The merits of the CF response to reluctance among some CF personnel to be vaccinated against COVID-19 (which has been characterized by some as “vaccine hesitancy”), the merits of the resulting grievances, and the merits of Ms Frid’s F&R are worthwhile topics of discussion for this blog. However, my intention in the present blog post is to use the MGERC F&R as a platform to examine the above-mentioned dynamic. While I will comment, to a limited degree, on the merits of the CF approach to this issue thus far, a concerted examination will have to wait for another day, likely after the CDS has rendered his decision as FA. Readers of this blog are certainly invited to examine the Annexes that Ms Frid included in her F&R and to form their own opinions about the conclusions that she draws. We will return to these issues in the future.
I anticipate that the CDS, as FA, his grievance staff at Director Canadian Forces Grievance Authority (DCFGA), and the CF’s legal advisors in the Office of the Judge Advocate General (OJAG) – particularly the Administrative Law Division and the Directorates of Law for Military Personnel and for Grievances and Administrative Investigations – have been spending significant time since the end of May 2023 examining Ms Frid’s F&R. That examination will likely take several more weeks.
And I suggest that one of the principal motivators behind this examination is the institutional reluctance to accept F&R that are largely critical of CF policies and practices and the resulting reluctance to grant the relief recommended. To be frank: I anticipate that the CDS, as FA, will reject some or all of the findings, and some or all of the recommendations, provided by Ms Frid. And I will rely on this anticipated response (and the mind-set from which it arises) as the working presumption in order to offer you, Dear Reader, some insights into the dynamic of the much vaunted, but often disappointing, CF grievance process.
First, let’s dispel some myths …
The CF chain of command is empowered to adjudicate its own ‘employment disputes’. I place that term in inverted commas as CF personnel are not actually employees, nor are they in privity of contract with the Crown. Rather, “… a person who joins the Forces enters into a unilateral commitment in return for which the Queen assumes no obligations, and that relations between the Queen and Her military personnel, as such, in no way give rise to a remedy in the civil Courts.” (Gallant v The Queen In Right of Canada (1978), 91 DLR (3d) 695 (FC TD))
As I have explained previously, the CF grievance process is essentially a “litigation avoidance mechanism”. CF personnel must exhaust this “adequate alternative remedy” prior to seeking remedy before the courts – principally the Federal Court – even if potential remedies are not adequate. This can be particularly frustrating when it can take several years before a grievance is adjudicated by the FA, let alone when a remedy is provided (or not).
In other words, the same chain of command that implements policies and exercises duties, powers, and functions that control a CF member’s career “… in the administration of the affairs of the Canadian Forces …” also adjudicates grievances, the principal mechanism by which a CF member may seek redress for decisions, acts, or omissions “… in the administration of the affairs of the CF …” by which the CF member may feel aggrieved. And if that seems like Parliament has stacked the deck against the CF members who are obliged to use the CF’s statutory grievance process, that’s likely because that is precisely the case.
Granted, the decision-maker who made the decision, took the action, or failed to act, and who caused the CF member (“the grievor”) to feel aggrieved is precluded from adjudicating the grievance. That makes sense. However, in an institution like the CF, there is a tendency for more senior decision-makers, who are responsible for adjudicating grievances, to be inclined to uphold or support the decisions or actions of their subordinate decision-makers. And, while certain heavily politicized subjects may be scrutinized more rigorously by those responsible for considering and determining grievances, as a general ‘rule of thumb’, senior CF decision-makers tend to be reluctant to second-guess subordinate decision-makers (lest their bosses, in turn, second-guess them).
And, as an aside, I suggest that one of the reasons for this ‘institutional inertia’ is the utter lack of consequences for unreasonable, unfair, or just plain bad decision-making by CF statutory decision-makers (i.e., leaders and commanders). Sure, when some senior officers are pilloried by the news media regarding a particular decision or action, there will inevitably be adverse consequences for them (whether or not such adverse consequences are reasonable, fairly adjudicated, or justified).
However, the CF grievance process does not generate such consequences. One of the reasons for the is the ongoing inordinate delay in the adjudication of grievances. When a grievance is adjudicated 3, 5, or 10 years later, the relevant decision-maker has almost certainly moved on from her or his role that gave rise to the grievance, and might no longer be in the CF. More significantly, however, is the disconnect between the adjudication of the grievance and consequences for the person whose decision-making (or failure to act) gave rise to the grievance in the first place. Where there are no consequences for unreasonable, unfair, or bad decision-making, there is no incentive to improve.
The institutional inertia is even more pronounced when it comes to grievances that challenge CF policies. The tendency by decision-makers up to, and including, the CDS is to cite CF policies in defence of decisions: “You have been treated fairly and in accordance with CF policies.” But what if the policies are poorly articulated, poorly designed, or just bad policies? They are often disinclined to scrutinize the merit of impugned policies, or even the implementation of those policies, even when there may be problematic aspects of such implementation. This is particularly true where the policies are imposed by a higher authority.
That was part of the rationale behind the creation of the MGERC. The intent was to have an ‘external’ committee that would scrutinize grievances without the so-called “institutional bias” arising from CF decision-makers. And, as an aside, many grievors can tend to exaggerate the importance or significance of so-called institutional bias in their grievances. I have encountered grievors who believe, mistakenly, that argument based upon institutional bias presents a compelling argument that the decision, act, or omission that they have grieved must be corrected. It does not (e.g., McBain v Canada (Attorney General), 2011 FC 745; aff’d McBain v Canada (Attorney General), 2012 FCA 23). What CF grievors must demonstrate is actual or apprehended bias by the decision-maker.
Some stakeholders – ranging from CF decision-makers, Department of Justice lawyers, members of the MGERC themselves, and even Federal Court judges – comment on the existence of an “independent” MGERC as demonstrative of a safeguard of fairness in the CF grievance process. Whenever I hear such comments, I tend to have to suppress my instinct to roll my eyes in exasperation at this mischaracterization – some people do not care for such overt and dismissive body language.
When we discuss the merit of the CF grievance process and the role of the MGERC in that process, it behooves us to be as transparent, accurate and unambiguous as possible, in order to ensure that we can have a meaningful discussion of these issues.
The three issues upon which I expand below concern: (1) independence of the MGERC; (2) the nature of decision-making relating to grievances – i.e., the consideration and determination of grievances; and, (3) the scope of the MGERC’s involvement in that process.
First, the MGERC is not independent – at least, not in the way that some people might perceive and certainly not in the same way that judges are independent (judicial independence can be likened to the ‘gold standard’ of independence in public decision-making). As I have indicated previously, on a number of occasions, people can get carried away when pontificating about the independence of a given public actor. In the context of military law and military justice, the problematic and ambiguous use of that term has arisen in discussions ranging from Military Police to military prosecutors and even military judges.
And, as I have explained previously, whenever someone comments on the so-called independence of one statutory actor or another, I am inclined to suggest that the nature of the alleged independence can be better defined with the assistance of a couple of pertinent questions: From whom? To what extent? “Independence” is not a binary state; it can best be describe as being positioned on a sliding scale. One end of the scale would be occupied by actors who benefit from a number of hallmarks of independence such as institutional independence, security of tenure, and security of remuneration. In other words, the higher order of independence is typically associated with statutory actors benefitting from independence comparable to that of judges. As those safeguards or hallmarks of independence are removed or reduced, the actor will have less independence, although he or she may still have a measure of independence.
Similarly, we should bear in mind that the companion issue of “independence” is “accountability”. The more independent a statutory (or constitutional) actor is, the less accountable that actor will tend to be (or, alternatively, fewer mechanisms of accountability will apply to that statutory actor).
Rather than using the term “independent” – which can often be ambiguous or misconstrued in such circumstances, sometimes intentionally so – the MGERC can best be described as being “arm’s length from the CF”. And, while that does involve a degree of independence, I suggest that it is disingenuous to lean excessively into the term “independence” when describing them – a tendency that is all to commonly demonstrated by people who wish to exaggerate the importance or significance of the MGERC role.
Members of the MGERC do not benefit from security of tenure or security of remuneration. They do have a degree of institutional independence – as I say, they are best described as being arm’s length from the CF. In that regard, even the Director of Military Prosecutions and the Director of Defence Counsel Services are conceptually more independent than members of the MGERC, as DMP and DDCS are appointed to a fixed term (much like members of the MGERC) and may only be removed from their position based upon recommendations produced through a statutory review process. Members of the MGERC do not benefit from such protections.
Members of the MGERC are appointed by the Governor in Council through an Order in Council (OiC) and “… holds office during good behaviour for a term not exceeding four years but may be removed by the Governor in Council for cause.” There is no statutory mechanism for examining such “cause”, as is the case for DMP and DDCS. Removal “for cause” is not a significant barrier to removal and certainly is not indicative of “independence”.
Similarly, their remuneration and allowances are set by the Governor in Council. There is no mechanism to ensure security of remuneration.
Arguably, there is a realpolitik element to the MGERC’s ‘independence’ – were a member of the MGERC removed, abruptly, by the Governor in Council, there may be some political backlash against such a decision, even if it is cloaked in a determination “for cause”. Or not. The public can be fickle. And as we all know, not only do “… Governor in Council appointees have an obligation to act in a manner that will bear the closest public scrutiny, an obligation that is not fully discharged by simply acting within the law …” but the Governor in Council is largely unfettered in making decisions to remove people from such appointments, provided that they ‘go through the motions’ of fairness.
And even the arm’s length status of the MGERC can be unduly exaggerated. Ostensibly, the idea behind the MGERC – which was initially called the Canadian Forces Grievance Board (CFGB) – was that a civilian board would review grievances brought before the FA to ensure that an external perspective was offered. Ostensibly, this was presumably intended to help offset any institutional inertia or bias. The MGERC – originally the CFGB – was modelled on the Eternal Review Committee involved in the two-tiered grievance process for the Royal Canadian Mounted Police (RCMP). Indeed, much of the ‘redesigned’ CF grievance process introduced in Bill C-25 in 1998, elements of which came into force between 1999 and 2001, was modelled on the RCMP process.
One of the reasons that the MGERC pushed for a change of name from CFGB to MGERC was to reflect this similarity – both processes now have an External Review Committee. The Chair of the (then) CFGB also argued that there was confusion between them and the Canadian Forces Grievance Authority or CFGA – the principal CF staff responsible for the management of the process and for assisting the CDS as FA in the second level of the grievance process. The CFGA was manifested under Director Canadian Forces Grievance Authority (DCFGA), then Director General Canadian Forces Grievance Authority (DGCFGA), and more recently, again as DCFGA.
And it is true that the acronyms CFGB and CFGA could be a source of confusion. It certainly did not help that, at various points in its existence, Chairpersons for the CFGB tended to exaggerate the role of the Board such that it was not surprising that some CF grievors mistakenly believed that the CFGB was the decision-maker, not the FA. Indeed, even Federal Court judges have occasionally referred to “decisions” by the CFGB, or more recently, the MGERC, when the CFGB/MGERC is not the actual decision-maker who considers and determines grievances. I will expand on that factor below; however, there is one more comment that should be offered regarding the ‘institutional independence’ of the MGERC, more accurately reflected as an arm’s length relationship from the CF.
As I mention above, the idea behind the MGERC (and its nominal predecessor, the CFGB) was to create a Board (later rebranded as a Committee) that would offer a perspective that was not mired in a CF institutional mind-set. In other words, it was to offer a fresh perspective, preferably from persons with experience and knowledge in human rights regimes, resolution of employment or labour disputes, or similar backgrounds. Of course, they would likely experience a bit of a learning curve regarding the nuances of the “… administration of the affairs of the CF …”, but such learning curves are often unavoidable.
And that is an apt description of Ms Frid, the MGERC Member who promulgated the three Annexes in relation to grievances regarding adverse administrative action against CF personnel who declined or refused to be vaccinated against COVID-19. Her bio on the MGERC website describes her background as follows:
Nina Frid has extensive experience and training in alternative dispute resolution including mediations and arbitrations. She has significant leadership experience with executive positions in a number of government departments including the Canadian Food Inspection Agency, Canadian Transportation Agency, and Treasury Board of Canada Secretariat.
Ms. Frid graduated with a Master in Laws – Dispute Resolution from York University and a Masters of Business Administration from Carleton University. She also holds a certificate in Advanced Alternative Dispute Resolution, University of Windsor Law School, and a Bachelor-Honours in Economics, from the University of Marine Transportation, in St. Petersburg, Russia.
Ms Frid has a background in law and, in particular, a background in dispute resolution (although it is unclear from her bio if she is licensed as a lawyer). She has held executive positions in federal government departments. While she may not have had much experience with, or exposure to, the CF and it’s unique Crown-soldier relationship prior to being appointed to the MGERC, presumably, she did have an understanding of governmental processes.
However, if one examines the composition of the rest of the MGERC, a notable CF-related trend is apparent. The Chairperson of the MGERC (who recently left that position) was also a ‘civilian’ – i.e., someone who had not previously been a member of the CF. However, her predecessor was a retired CF officer who had worked within the CF Grievance Authority for a number of years prior to being appointed Chairperson. The current Acting Chair of the MGERC is the MGERC’s General Counsel. Not long before being appointed as the MGERC’s General Counsel, Colonel Vihar Joshi (retired) had been a long-serving legal officer in the Canadian Forces, and his final position, which he had held for a number of years, was the Deputy Judge Advocate General – Administrative Law.
The current Part-Time Vice-Chair is Colonel Frank Malo (retired), who had occupied the position of DGCFGA prior to his retirement. As DGCFGA he was the CDS’s delegate as final authority in the CF grievance process. While the position of Full-Time Vice Chair is vacant, a previous occupant had been another senior retired legal officer who had served in the position of Deputy Judge Advocate General – Military Justice and Administrative Law. And the final member of the MGERC, Eric Strong, had served as a CF officer for a number of years and was later an employee in the Department of National Defence.
Additionally, I am aware that a number of the staff at the MGERC are former CF personnel, many of whom had worked, in some cases for a number of years, within the office of DGCFGA (or DCFGA), or in a similar capacity for CF decision-makers who commonly acted as initial authorities in the CF grievance process. One would not be incorrect or misguided were one to suggest that there is a bit of a “cottage industry” in grievance/dispute resolution for retired CF personnel.
Now, to be clear, I do not mention these factors to suggest that the efforts of these participants in the grievance process should be discounted or to cast aspersions on their contributions. I have no reason to doubt their commitment to the resolution of CF grievances. The point that I wish to make is that, despite the suggestion that the MGERC is “independent” or that it offers a non-institutionalized perspective, such assertions should be taken with a grain of salt.
The MGERC is not independent. And there remains potential for a residual institutionalized mind-set in light of the significant number of former CF personnel in the MGERC, many of whom were involved in the administration and adjudication of grievances when they still wore Dominion Tweed.
The employment of a significant number of former CF personnel in the MGERC is understandable. The nature of the Crown-soldier relationship and the administration of the affairs of the CF can present a formidable learning curve for the uninitiated. Moreover, one can hardly fault those retired CF members for seeking employment in a field familiar to them. The same could be said about me: my practice is largely occupied with providing advice, support, and representation to individual CF members in the same fields of law for which I provided similar services to the CF chain of command when I still received the Queen’s shilling (and lest someone seek to correct my use of that term – I retired before the late Queen Elizabeth II died, so I did not take the King’s shilling).
I suspect that few would accuse me of possessing an overly institutionalized mind-set such that it would cause me to favour the CF and DND in such disputes.
However, as I wrote earlier, it behooves us to discuss these matters transparently and accurately.
Second, the MGERC is not the relevant decision-maker for grievances. I alluded to this factor above. Early in the existence of the revamped CF grievance process, some grievors mistakenly believed that the MGERC – then called the Canadian Forces Grievance Board, or CFGB – was the decision-maker. I suggest that this was part of the confusion that led to the name change for the MGERC. However, it certainly did not help in clarifying the roles when the (then) CFGB website tended to exaggerate, subtly, the role of the CFGB. Even some Federal Court judges have erroneously referred, in their judgments, to MGREC (and CFGB) “decisions”. I suspect that this simply reflects imprecise terminology, which did not necessarily materially affect the judgments in question (which were typically judicial reviews of decisions by the FA in the CF grievance process).
But the fact that the MGERC is not the actual decision-maker is relevant to the exaggerated description that some people may apply to the MGERC and the CF grievance process. So, when a Department of Justice litigator asserts that a CF member is well-served by the statutory grievance process under the NDA because they benefit from review by the “independent” MGERC, there are at least a couple of disingenuous aspects to that assertion. First, it is an exaggeration to suggest that the MGERC is independent. Second, since the MGERC is not the actual decision-maker who considers and determines the grievance, their so-called independence has even less significance.
Again, it behooves us to be transparent, accurate, and unambiguous when we discuss these matters. The MGERC provides the FA with findings and recommendations (F&R) in relation to a grievance. Not only that, but the MGERC provides non-binding F&R to the FA. The FA is not obliged to agree with or accept the F&R.
Granted, if the FA rejects or otherwise does not adopt the F&R in his decision, he must provide reasons for declining to do so. But let’s not exaggerate the significance of the requirement to provide such reasons. Even absent that statutory obligation, the Common Law principles underlying the “culture of justification” described by the Supreme Court of Canada (SCC) judgment in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], building upon Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817, would nevertheless oblige the FA to provide transparent and intelligible reasons to justify his determination of any grievance.
Presumably, it does not sound as compelling for Department of Justice litigators and other commentators to argue that the CF member “… benefits from non-binding findings and recommendations from an arm’s length Committee, staffed principally by retired senior officers from the Canadian Forces, and which the final authority can reject, provided that he offers reasons for doing so …”. However, it would be more accurate than the ‘shorthand’ that seems to be favoured by some people.
Third, in addition to limited independence (that, realistically and objectively, should not be referred to as independence) of the MGERC, the fact that it provides non-binding F&R, and the fact that it is not the actual decision-maker, we need to recognize that the MGERC does not review all grievances. Pursuant to subs 29.12(1) of the NDA and art 7.21 of the QR&O, the FA is obliged to refer only the following types of grievances to the MGERC:
(a) administrative action resulting in the forfeiture of or deductions from pay and allowances, reversion to a lower rank or release from the Canadian Forces;
(b) the application or interpretation of Canadian Forces policies relating to the expression of personal opinions, political activities, candidature for office, civil employment, conflict of interest and post-employment compliance measures, harassment or racist conduct;
(c) pay, allowances and other financial benefits;
(d) the entitlement to medical care or dental treatment; and
(e) any decision, act or omission of the Chief of the Defence Staff in respect of a particular officer or non-commissioned member.
I hasten to add that these are the obligatory referrals. The FA may refer any other grievances to the MGERC (see the Notes to art 7.21 of the QR&O). The FA may do so on an individual basis and may even select types or classes of grievances to refer to the MGERC. Technically, the CDS, as FA, could opt to refer all grievances at the FA level to the MGERC (although I question whether the MGERC, as it is presently organized, would have the capacity to address all such grievances in a timely and effective manner, if there were a sudden increase in such referrals).
Again, the concept behind this list of types or categories of grievances that must be referred to the MGERC is that these are supposedly subjects with significant implications for the CF members who have grieved the relevant decisions, acts or omissions, and that these subjects would benefit from the ‘external review’ that can be offered by the MGERC. For example, it was anticipated that the MGERC could bring to bear expertise from other fields, distinct from the Crown-soldier relationship, and which would inform the F&R.
As an aside, some of these types or categories may be the object of differing interpretations. For example, a grievance concerning “… the entitlement to medical care or dental treatment …” must be referred to the MGERC. Objectively, it may appear that the intent is that, when a CF member is refused medical or dental treatment to which he or she is entitled, any grievance arising out of this refusal will have to be referred to the MGERC if it reaches the second level of grievance review (before the FA). But what if the grievance impugns the quality of the medical care? I suspect that such grievances are also referred to the MGERC as ‘obligatory’ referrals. But is that what the regulation actually requires? I suspect that some – but not all – of these provisions are subject to broad interpretation.
Alternatively, what if someone is posted out of an organization like Canadian Special Operations Forces Command (CANSOFCOM)? That CF member would then likely no longer qualify for various (relatively lucrative) allowances under specific CBI. However, that administrative decision does not amount, specifically, to a “forfeiture” or “deduction” from pay and allowances (para 7.21(a)). Nor is it, strictly speaking, a decision concerning “… pay, allowances and other financial benefits …” (para 7.21(c)). It is simply a change in a CF member’s position that consequently impacts his or her allowances in a significant manner. The decision pertains to the change of status. Unless the grievor is asserting that a CBI is being mis-applied, it likely does not fall within any of the categories under art 7.21, particularly paras 7.21(a) and (c).
I suggest that the determination whether paras 7.21(a) or (c) of the QR&O applies to that circumstance may vary between decision-makers. And if this circumstance does not fall within the categories listed at art 7.21 of the QR&O – and I would argue that, under a reasonable interpretation of that provision, it would not – why would decisions involving forfeiture or deductions or the interpretation of policies pertaining to pay and allowances benefit from MGERC review, while decisions that clearly impact significant financial considerations would not?
The merit of such ‘external review’ is alluded to in Note B to art 7.21 of the QR&O, regarding when the FA may choose to refer a grievance to the MGERC on a discretionary basis:
(B) The final authority may refer a grievance other than one prescribed under article 7.21 to the Grievances Committee. The factors assessed by the final authority in order to do so include the benefit to be obtained from having the grievance reviewed externally and the capacity of the Grievances Committee to investigate independently and make findings.
Again, while this might sound good on paper, what is the practical implication?
As I indicate above, the Members and the staff at the MGERC are drawn, in not-insignificant numbers, from retired CF personnel. Objectively, there is a risk that an institutionalized mindset may be manifest.
Second, while the MGERC does have the capacity to conduct investigations (again, I suggest that “arm’s length” is a more accurate characterization than the potentially ambiguous “independent”), that power is rarely used.
The MGERC has the power to convene an inquiry into a grievance and thereby:
These powers are similar to the powers of a Board of Inquiry. They permit the MGERC to conduct a more searching examination of a matter than the CF may be inclined to do. It certainly empowers the MGERC to conduct a far more searching examination of relevant factors and evidence than a grievor could ever perform – particularly in an environment in which governmental response to requests for information under the Privacy Act and the Access to Information Act is both slow and markedly restrictive.
In my experience, one of the significant barriers to justice for many CF grievors is that they cannot compel their chain of command to deal with them fairly and transparently. Often CF grievors lack access to relevant documents that are necessary to support their grievance. While they can try to seek information under the Privacy Act (for their own personal information held by the CF and DND) or the Access to Information Act (for other relevant information) those processes are typically fraught with delay and consistently subject to excessive and unreasonable redaction by CF and Departmental actors. This has been an ongoing subject of examination by the Globe and Mail.
While a grievor must typically bring a grievance within 3 months of the date when the grievor becomes aware of the impugned decision, act, or omission, it can take many months to receive any information under the Privacy Act or Access to Information Act, and delays in excess of a year or more are commonplace. And that assumes that the information is not excessively and unreasonable redacted. Again, excessive and unreasonable redaction is often the norm.
However, the MGERC rarely uses its power of inquiry, even when a CF grievor expressly indicates, in representations, that he or she believes that the grievance would benefit from an inquiry conducted under s 29.21 of the NDA. Instead, the MGERC members and their support teams review the same grievance file that the FA possesses and transfers to the MGERC. Sometimes the MGERC may request additional information from the CF, only to have the relevant CF office prevaricate, indicate that there is no additional information, or even outright refuse to do so. I have encountered grievances in which the grievance file indicates a request from the MGERC for additional information, followed either by silence from the relevant CF office, or a refusal to provide the information. And there are rarely, if ever, any adverse consequences to such impunity. And the MGERC typically does not initiate a statutory inquiry under s 29.21 of the NDA when faced with such intransigence. Instead, they typically just proceed with the information that they have. They may allude, in their F&R, to the lack of co-operation from the CF or the absence of further information. But there are certainly no adverse consequences for the CF when this arises. However, the lack of information may well have adverse implications for the CF grievor, who lacks any power to compel compliance.
And, as I indicate above, the lack of consequences in the face of impunity or unfair and unreasonable decision-making means that there is little or no incentive to correct such impunity or bad decision-making.
Consequently, I find that the concept of “independent investigation” by the MGERC to be largely exaggerated in the context of the CF grievance process.
Dynamic Between the MGERC and the FA
One of the best means of illustrating the dynamic between the MGERC and the FA is through reference to outcomes. When discussing this dynamic, it is possible to become bogged down in nuance. A good example of such nuance arises from descriptions of whether the FA “adopts” the F&R from the MGERC or whether redress is granted. And some of that nuance can be driven by a desire, by various stakeholders – including the FA and the MGERC – to convey the impression that the FA generally adopts MGERC F&R or that the FA provides redress.
For example, a MGERC F&R may draw five conclusions or findings that, ultimately, suggest that the grievor was wronged by a decision, act, or omission in the administration of the affairs of the CF. The MGERC may consequently offer three separate recommendations for redress that the FA could provide. Let’s further suggest that the five findings range from significant to relatively minor and that the recommended remedies also range from minor, to moderate, to significant.
The FA is not bound by the MGERC F&R and may agree only with the minor findings and the minor remedy, while rejecting the more significant findings and the more meaningful redress. Technically, when the FA considers and determines a grievance, and adopts only the ‘least’ of the MGERC findings and recommendations, one could still suggest that the FA “… agreed, in part, with the MGERC F&R …”. And that is often how such determinations are characterized. However, there is a marked distinction between such a ‘partial agreement’ compared to a circumstance in which the FA agrees with almost all findings and recommended redress, including the more significant and meaningful factors. Yet both could be described as ‘partial agreement’.
If the MGERC were inclined to promote a narrative that the FA agrees with their F&R, “… in whole or in part …” in a large percentage of grievances, it is possible that the MGERC might choose not to dwell on the distinction between ‘minor’ partial agreement, and ‘significant’ partial agreement.
Similarly, if the CF, through the FA and DCFGA, were inclined to project a narrative that the FA often agrees with MGERC F&R, “… in whole or in part …” in a large percentage of grievances, the CF may also choose not to dwell on such distinctions.
However, those distinctions offer meaningful insight into the extent to which the MGERC truly influences CF decision-making regarding statutory grievances.
Add to this the limitation that grievances – from the initial grievance, through the generation of the grievance file, culminating with a determination by the FA – represent a CF member’s personal information. Generally, this information is not available to the public for the purposes of discussion or scrutiny of the effectiveness and efficiency of the CF statutory grievance process. Often, the public is offered insight into the CF grievance process principally when a CF member seeks judicial review of a grievance, generating a judgment from the Federal Court. Even then, such judgments are limited principally to whether the grievor benefitted from procedural fairness in the grievance process and whether the decision was reasonable. The content of the grievance file is often not readily available to the public (although, the public could request copies of pleadings before the Federal Court, and those pleadings will likely include the grievance file, which would be provided as the Certified Tribunal Record).
That is one reason why Ms Frid’s three Annexes are so significant. While these Annexes: (1) are relevant to individual grievances; (2) were relied upon in producing grievance-specific F&R; and (3) will be relied upon in the eventual adjudication of the same grievances – the Annexes also offer general analysis that does not constitute personal information for a specific grievor. Consequently, those Annexes may be made public.
To simplify the discussion of the decision-making dynamic, I will rely on characterizing recommendations and determinations in a binary nature. The MGERC either finds that a grievor has suffered harm and will recommend redress, or it won’t. The FA either agrees with the MGERC F&R, or he won’t. For the purposes of our discussion, we will not examine the more nuanced outcomes described above.
Therefore, the MGERC F&R will either: (a) conclude that the grievor was aggrieved, and recommend remedy; or, (b) conclude that the grievor was not aggrieved and, therefore, no remedy is required. In other words, the MGERC F&R will either be “favourable” to the grievor, or the F&R will be “unfavourable”.
With respect to the FA determination, the FA will either: (a) agree with, and adopt, the MGERC F&R; or, (b) disagree with and not adopt the MGERC F&R.
These respective courses of action could be depicted on a two-dimensional axis, in which we can plot outcomes for the grievor. Presumably, the grievor will be satisfied if the FA determines that the grievor was aggrieved and that the grievor will be given redress. Conversely, the grievor will be dissatisfied if the FA determines that the grievor was not aggrieved and will, therefore, not benefit from redress.
This can be depicted as follows:
|MGERC F&R Favourable
|MGERC F&R Unfavourable
|FA Accepts F&R
|FA Rejects F&R
* One type of outcome merits further explanation: this involves circumstances when the MGERC F&R are unfavourable to the grievor, but the FA rejects the F&R. It is almost unheard of for the MGERC to produce F&R that conclude that the grievor was not aggrieved, and, therefore, does not merit any remedy, but where the FA rejects these conclusions and determines that the grievor was aggrieved, and the FA then provides a remedy. In the relatively uncommon circumstance in which the FA disagrees with “unfavourable” F&R from the MGERC, it is far more likely that the FA will produce a similarly unfavourable decision, but for different reasons.
This, albeit simplistic, chart illustrates the four likeliest general outcomes when a grievance is referred to the MGERC for F&R. Generally, of the four potential outcomes, the grievor will only be satisfied with one of them: when the MGERC produces favourable F&R, and the FA subsequently concurs. The other three potential outcomes will leave the grievor dissatisfied.
This illustration allows us to put into perspective the potential second-order action by the grievor. If a grievor is not satisfied with the determination offered by the FA, the grievor may seek judicial review before the Federal Court.
The Federal Court will then generally examine one or both of the following issues: Was the grievance determined fairly? Was the grievance determination reasonable? And the judgments arising from applications for judicial review possess a utility that is typically absent from MGERC F&R and grievance determinations: a judgment of the Federal Court is public (unlike the grievance decisions, which constitute personal information that cannot normally be published). Federal Court judgments offer an opportunity to scrutinize the dynamic of statutory decision-making within the CF grievance process.
Where the grievor is satisfied with the outcome of a grievance, there is unlikely to be an application for judicial review. Granted, there have been some infrequent circumstances in which the MGERC recommends partial redress (often due to the limitations of the Crown-soldier relationship) and the FA adopts the MGERC F&R in his determination. However, because of the limited redress offered, the grievor still seeks judicial review. And, while there may be utility in examining the specific and nuanced elements of such decisions and applications, judicial reviews of ‘partial’ redress tend to be outliers and are relevant more to the limitations of remedy within the Crown-soldier relationship, rather than illuminate the dynamic between the MGERC and the FA.
Nor will there be a public judgment for every circumstance in which a grievor is dissatisfied with the determination of a grievance. Whether a grievor seeks judicial review of a grievance determination will be dependent upon at least two factors.
First a grievor must have the inclination and capacity to retain counsel for such litigation. To put it bluntly, a grievor must be willing, and able, to pay (potentially) thousands of dollars to bring such an application. Alternatively, a grievor may choose to proceed as a self-represented litigant (with or without some limited assistance from a lawyer). But the grievor would still need to be motivated to pursue such an option, including educating him- or herself regarding the process.
The second factor often influences the first: ideally, the grievor would have at least a moderate possibility of success. In other words, the grievor (or the grievor’s counsel) would need to be able to identify one or more relevant grounds upon which an application for judicial review could be based. Typically, this would require either a shortcoming in the fairness or the reasonableness of the impugned FA decision.
For myself, when a CF member requests my assistance in such applications, one of my first actions is to evaluate whether I believe there is at least a moderate possibility of success. If there is no, or negligible, possibility of a successful application, I tend to advise clients (or potential clients) that it would be ill-advised to spend thousands of dollars on legal assistance and representation – particularly as costs orders are not significant and damages (i.e., a payment of money from the crown) is not one of the remedies available in an application for judicial review.
We should also remember that not all judgments arising from applications for judicial review of an “FA decision” will involve F&R from the MGERC. In some cases, the application will concern a grievance that did not fall within one of the categories listed in art 7.21 of the QR&O. Consequently, an examination of such judgments will typically provide limited – if any – insight into the dynamic between the MGERC and the FA.
Nevertheless, judgments from applications for judicial review can provide us with some insight into the dynamic between the MGERC and the FA. Examination of these judgments will be dependent upon certain conditions precedent:
The application will either be successful or unsuccessful.
However, we must be cautious about what significance we attribute to such judgments. This is due largely to the deferential approach of reviewing courts to grievance determinations. The typical standard of review of grievance determinations is “reasonableness”. A Federal Court judge typically does not review a grievance decision on a standard of “correctness”. In other words, if the Federal Court upholds a grievance determination, this does not necessarily mean that a determination was correct; it means that was reasonable. Or, perhaps a more accurate description is that it fell within a range of reasonable outcomes. And where there are multiple possible outcomes, this does not necessarily mean that the actual outcome of the grievance was the ‘most’ reasonable, or even that it was just.
In some cases, the judgment will turn less on the reasonableness of the decision than whether the entirety of the grievance process was fair. In those circumstances, the focus is on procedural fairness. And, while the FA’s staff often takes pains to “tick the boxes” in the process to demonstrate that a decision (contrived or otherwise) was “procedurally fair”, there are occasions when the determination of a grievance provides inadequate disclosure to the grievor or fails to offer an opportunity to make informed representations to the decision-maker. However, in most circumstances, if a grievance determination is quashed on judicial review, it will be due to a lack of reasonableness.
In select circumstances the range of reasonable outcomes may be narrow, including circumstances in which the decision is essentially binary: i.e., there is one reasonable outcome and one unreasonable outcome. In those circumstances, it may appear that the court is applying a “correctness” standard of review. However, it remains, technically, a reasonableness review.
So, when examining judicial review of FA determinations of grievances, in which the MGERC has provided F&R, there are generally, four broad permutations that are likely:
This list does not capture two additional permutations: (1) the MGERC provided favourable F&R, and the FA agrees; or, (2) the MGERC provides unfavourable F&R, but the FA disagrees and provides a remedy. As I indicate above, the former circumstance is unlikely to generate an application for judicial review. The latter rarely, if ever, arises, and also would not generate an application for judicial review.
We can assume, as part of our working hypothesis, that the FA will seek to minimize circumstances in which his decisions are quashed by the Federal Court. In a perfect world, this would mean that the FA would focus on providing conspicuously fair and reasonable decisions.
We do not live in a perfect world.
I suggest that what the FA typically does, particularly where a decision will be unfavourable to a grievor, is to conduct the sort of decision-making calculus that Major-General (MGen) Fortin described was involved in his removal from his position with the Public Health Authority of Canada (PHAC). The FA will examine at least two crucial factors: (1) how defensible is this decision on a standard of ‘reasonableness’ review; and, (2) what is the likelihood that a grievor will seek judicial review. Arguably, this is not unlike aspects of operational planning in which a commander (the decision-maker) examines the enemy’s likeliest course of action and the enemy’s most dangerous course of action. The FA will examine the likelihood that a grievor might challenge a decision and the likelihood that the grievor will be successful.
And, generally, there is not much at stake for the FA in this calculus, compared to that of the grievor. If the FA’s decision is overturned, there are no personal ramifications for the FA. It won’t cause the FA to be ‘fired’. The cost of such litigation doesn’t come out of the FA’s personal back account. In fact, it does not even come out of his operating budget. In comparison, the outcome of the grievance will have a marked impact on the grievor and, if the grievor wishes to seek judicial review, he or she will be responsible for the costs personally. And, while a successful application will likely be accompanied by a costs order, such an order will rarely, if ever, cover the full costs of the grievor’s legal fees. And, if the application is unsuccessful, the grievor may have costs ordered against him or her (in addition to the grievor’s own legal expenses).
I suggest that one of the principal concerns of the FA (and the legal advisors who support the FA, and the Department of Justice lawyers who are responsible for any subsequent litigation) is to avoid litigation that sets any kind of precedent for future grievors or litigants.
And we should remember that many problematic decisions are made, and problematic actions are pursued, by CF statutory decision-makers because they are aware that any challenge to those decisions must be made using the CF grievance process. This two-tiered process insulates unfair, unreasonable, and just plain malicious decision-making from judicial review. In effect, the CF gets not one, but two ‘mulligans’ for bad decision-making.
And when I say that there are two “mulligans”, I am not referring to the two tiers of the grievance process. The grievance process, in its entirety, is the first ‘mulligan’. The second ‘mulligan’ is the outcome of judicial review. Even if the grievor is successful with judicial review, the remedy granted by the court is typically to quash the decision and remit it back to the FA for a new decision, correcting whatever error justified the court’s intervention on judicial review. So, if the FA skipped a step in procedural fairness, or characterized the decision in an unreasonable fashion, the FA benefits from a mulligan. In the second adjudication of the grievance, the FA can ensure that the previously missed step in procedural fairness is observed or can re-engineer his reasons to satisfy subsequent scrutiny.
In some cases, the judgment from the court will limit the FA’s “freedom of manoeuvre”. Sometimes the court will direct that the matter is remitted back to the FA to consider and determine the grievance “… in accordance with the reasons …” offered by the court (e.g., Hamilton v Canada (Attorney General), 2016 FC 930; and Bouchard v Canada (Attorney General), 2014 FC 1231). However, such direction typically only limits the FA where the decision is binary in nature, and the court offered unequivocal determinations that one of the options is “unreasonable”. Often, the victory by the grievor at federal court amounts to a pyrrhic victory.
Why is the foregoing relevant to the dynamic between the MGERC and the FA?
Ultimately, the MGERC seeks to brand itself as offering a vital contribution to the CF grievance process. This is understandable. First, the MGERC was created, purportedly, to improve the CF statutory grievance process. One of the greatest failings of the grievance process is delay. Delay has consistently been raised as one of the most significant problems with the grievance process by successive statutory reviews of Bill C-25 and the NDA by the late Right Honourable Antonio Lamer, by the Honourable Patrick LeSage, and, most recently, by the Honourable Morris Fish. However, aside from ensuring that there is not undue delay with their F&R, the MGERC have little or no power to correct this significant shortcoming.
Second, the MGERC is motivated by other factors to demonstrate that they represent value added. There is a not-inconsiderable expense to maintaining this arm’s length, non-adjudicative Committee. The federal government, ostensibly, will expect to receive value for such an investment. OK, granted, I suspect that one or two of you may have rolled your eyes at such a suggestion. Prudence in the expenditure of public monies is not always a priority for this, and other, federal governments. So, let’s frame this issue in pragmatic and realistic terms.
When Andre Marin was the DND/CF Ombudsman – the first DND/CF Ombudsman – he was critical of a variety of other so-called “oversight” organizations including the (then) CFGB (now MGERC) and the Military Police Complaints Commission (MPCC). In his “White Paper” entitled “Overhauling Oversight” – which could be characterized as his ‘parting shot’ as he was leaving the position of DND/CF Ombudsman – he criticized them for being disproportionately expensive in light of their “value added”. His description of the shortcomings of the (then) CFGB and the MPCC fell under the heading “Wasteful or Inefficient Oversight”. The “obvious” solution to Marin was to place those organizations under his authority – or, the authority of the DND/CF Ombudsman, in any event. Not surprisingly, many formed the perspective that this was a transparent attempt at “empire building” by Marin, and not without some merit to that perspective.
Obviously, that suggestion was not acted upon (and for a variety of valid reasons). Nevertheless, I suggest that this left a residual impact in that successive Chairs of the MGERC and MPCC have consistently sought to demonstrate their value added to their respective processes. Those narratives involve the repeated assertion about the importance of their “independence” (see my comments, above). It has also involved what may be characterized as “pet projects”.
For the MGERC, this has even extended to initiating an application attempting to redefine elements of the Crown-soldier relationship that the MGERC perceived as interfering with meaningful remedy: Reference re Military Grievances External Review Committee Regarding Questions of Law, 2018 FC 566. Putting aside the merits of the underlying legal arguments and principles advanced in that application, I suggest that pursuing such litigation in the first place – i.e., a federal “… commission, board, or other tribunal …), which is an extension of the federal executive, initiating an application that challenges the position taken by another element of the federal executive – was problematic.
But it does illustrate a driving motivation on the part of the MGERC is to be, and be seen to be, ‘relevant’. The operating minds that comprise the MGERC wish to demonstrate not only that they provide a contribution to the CF grievance process, but that this contribution is vitally necessary.
To that end, I suggest that the objectives of the MGERC include producing F&R that are both acceptable to the institutional CF decision-makers whom they support, and which are also defensible before the Federal Court. And those objectives are often in tension. I will explain.
Let’s assume that a grievor raises a grievance regarding a controversial subject. For the sake of demonstration, let’s assume that a CF member was released under a compulsory release item – item 5(f) – relating to allegations of sexual misconduct. Let’s assume that the allegations were investigated by the Military Police, but no charges were laid. Neither the Canadian Forces National Investigation Service (CFNIS) and/or the Director of Military Prosecutions (DMP) were willing to proceed with a prosecution – in other words, they were not confident enough to “put their money where their collective mouths were”. Instead, an Administrative Review was conducted by Director Military Careers Administration (DMCA) and a decision is made to release the CF member due to determinations made on a “… balance of probabilities …”. This happens with remarkable frequency.
However, there are problems with the decision. First, the affected CF member presented a contrary version of events. Unfortunately, the Administrative Review process is inapt at weighing conflicting evidence. Nevertheless, DMCA prefers the ‘evidence’ provided by the complainant, even though the Administrative Review file relied only upon excerpts from the Military Police investigation and not the entire investigation. If the Administrative Review is similar to many that I have encountered, the analysis regarding why the ‘adverse evidence’ is preferred over that of the ‘accused’ will likely be superficial at best. No worries though – if they just keep repeating that the decision is based upon a “balance of probabilities” all will be good. Moreover, for the purposes of our example, let’s presume that the affected CF member was never previously the subject of any adverse administrative action, disciplinary action, or remedial measures, relating to anything remotely pertaining to the allegations against him. That too is a common circumstance.
Let’s also posit that the affected CF member was, for a period of time, relieved from performance of military duty (either properly, under art 19.75 or art 101.09 of the QR&O, or, as is frequently the case, ‘constructively’ relieved without proper reliance on those provisions). Let’s also posit that he was eventually permitted to return to duty, but in a different unit, and under a different CO. Let’s also posit that the CF member’s new CO strongly recommends that he be retained in the CF, citing a variety of adverse actions taken against the CF member, to date, that serve in mitigation of the eventual decision by DMCA.
However, the die is cast. DMCA orders compulsory release. Sexual misconduct must be stamped out (even if there are credible doubts about whether sexual misconduct actually occurred). After all, the “… balance of probabilities …” is generally interpreted by CF decision-makers as license to do as they please, provided they can point to something – anything – that might support their decision. Besides, if the CF member doesn’t like it, he can grieve it. And, even if the grievance is successful, that determination won’t be made for a few years; the relevant decision-makers will have moved on and, in any event., won’t be adversely affected if there is an eventual determination that their decision was unfair or unreasonable. And the CF member will almost certainly no longer be a CF member when that determination is made.
And, yes, if this sounds like it reflects actual matters in which I have been involved, that’s because it does.
By the time the grievance gets to the FA and the MGERC, there may, or may not, be a determination for the IA. If there is a determination by the IA, it will almost certainly be to uphold the initial decision, regardless of its merit. Because no senior CF decision-maker will be willing to admit that someone accused of sexual misconduct might not be guilty. To do so might appear to be an admission that the processes that are used are not fair or are prone to error.
And I suggest that this perspective will colour the approach by the MGERC, particularly MGERC members who, themselves, were once members of the CF. There will be a reluctance to appear to side with a person whom CF decision-makers have labelled as guilty or culpable of sexual misconduct.
When presenting F&R, the relevant MGERC Member will be aware of the same dynamic of which the FA is aware: the MGERC Member will be aware that the FA decision will be reviewed on a standard of “reasonableness”. Provided that the process was sufficiently fair, the reviewing court will be deferential. The MGERC member will also likely sense a hesitancy by CF decision-makers to interfere with an adverse decision taken against a CF member accused of sexual misconduct. The MGERC Member will be aware that the FA is not bound by the MGERC F&R and, if the F&R is favourable to the grievor, but the FA rejects the F&R, the concern will turn to the potential judicial review.
If, for example, the MGERC recommends a favourable outcome for the grievor, and the FA rejects that recommendation, and the FA determination is upheld on judicial review, such an outcome could be perceived as a ‘loss’ for the MGERC – that it did not provide “value added” and that F&R on such controversial subjects can be disregarded.
Granted, the inverse is also possible: e.g., the MGERC recommends an unfavourable outcome for the grievance, and the FA adopts these F&R, but the grievor is subsequently successful with judicial review. However, I suggest that this is a less unpalatable option for the MGERC. First, the FA is the decision-maker, not the MGERC. Second, in our example, the MGERC would likely be viewed as siding with victims of sexual misconduct (even where a central issue concerns whether sexual misconduct actually occurred). Third, even if the determination is quashed by the court, the FA will have a “mulligan”, and an opportunity to render a similar decision, with a similar outcome, but with (potentially different reasons or after correcting any fairness-related procedural deficiency).
In sum, the MGERC is motivated, in part, by a desire to ensure that the FA adopts their F&R. They are often inclined to present F&R that they reasonably anticipate the FA will adopt, and which can eventually be defended before the Federal Court.
No one is perfect, and errors can be made. There have been some judgments in which the FA adopted MGERC F&R that were unfavourable to the grievor, and where the FA’s determination – predicated upon the MGERC F&R – was quashed by the Federal Court (e.g., Bouchard v Canada (Attorney General), 2014 FC 1231).
And that is why the F&R provided by Ms Frid are remarkable.
COVID-19 Vaccination F&R
The CF response to COVID-19 vaccination has been controversial.
That said, over 95% of the CF – both Regular and Reserve Force personnel – chose to be vaccinated. It is possible that some did so reluctantly; however, there was widespread compliance. Generally, across Canadian society, there were markedly more people who chose to be vaccinated than those who did not. Again, it is possible that some people did so reluctantly, but nevertheless, were vaccinated for any of a number of reasons.
It should also not be too controversial to suggest that the response within the Federal Public Administration (i.e., federal civil servants) was not as draconian as the response by the CF. Members of the Federal Public Administration who declined or refused to be vaccinated were placed on leave of absence or leave without pay. Members of the CF were placed on remedial measures as part of a process that was clearly designed to give them two choices: (1) accept vaccination; or, (2) be compulsorily released from the CF under item 5(f).
CF personnel were not permitted to opt for leave without pay. The CDS, General Wayne Eyre, asserted that this was not an option as personnel cannot be ordered on leave without pay. They must request it. That rationale is specious.
First, the policy governing “Leave Without Pay” in the CF is largely just that: policy. Article 16.25 of the QR&O (a Ministerial regulation enacted under subsection 12(2) of the NDA) establishes the very basic structure of “Leave Without Pay”:
16.25 – LEAVE WITHOUT PAY AND ALLOWANCES
An officer or non-commissioned member may be granted leave without pay and allowances, in the circumstances prescribed in orders issued by the Chief of the Defence Staff, for a period:
In sum, the regulation limits itself to identifying the level of authority required to approve such leave. Otherwise, the details of administering this type of leave, including how it is requested and whether it may be ordered, is left to orders issued by the CDS. The CF Leave Policy Manual constitutes those orders.
Therefore, it is more than a little disingenuous for the CDS to suggest that he could not direct people to take Leave Without Pay because Chapter 8 of the policy (specifically para 8.1.01), issued under his authority, states that “Except on enrolment, members must request LWOP. The reason for the LWOP must be in the interest of the CF.”
First, if the policy was not sufficiently flexible, the CDS could have changed it. Or, he could have issued direction supplemental to the Policy Manual in light of the exigeant circumstances.
And, frankly, such a change of policy was not even required. The CF response to vaccination against COVID-19 could have included a step by which those who refused/declined vaccination could be offered the opportunity to request Leave Without Pay. That option appears to have been ignored. And that option appears to have been followed with employees of the Federal Public Administration.
And I suggest that the reason why Leave Without Pay was not contemplated was because the DMCA2 Aide-Memoire described the true perspective of the CF regarding vaccination. The refusal to be vaccinated was perceived not as hesitancy in the face of a “change of conditions of service” but as insubordination and a failure of the “habit of obedience”. Those who refused to be vaccinated were viewed as challenging the authority of the chain of command and must be punished.
The problem for CF decision-makers was that, if they used the principal mechanism for re-instilling the habit of obedience and for punishing insubordination – i.e., the Code of Service Discipline – they would be swamped with courts martial in which they could anticipate that the accused would bring Charter challenges. And, while no one in the OJAG or the senior levels of command of the CF appear to be willing to acknowledge this, that was very likely the principal driving factor for the ‘administrative’ response.
In effect, they were using administrative processes as a substitute for a disciplinary response. And I watched this unfold with some amusement. I recalled the training plan for the Presiding Officer Certification Training and the manual “Military Justice at the Summary Trial Level”. One of the introductory lessons in this training package concerned the reform of summary trials in the 1990s, which culminated in the enactment of Bill C-25 (which, itself, created the obligation to conduct training for officers who would preside over summary trials). One of the factors that we examined in that training was the decline, throughout the 1990s, of the use of the Code of Service Discipline to address disciplinary issues, and a shift, instead, to using ‘informal’ or administrative regimes.
That shift was depicted, in Presiding Officer Certification Training, as a ‘bad thing’. Ironically, now, it appears the same thing has been transpiring. One of the principal differences appears to be that it is being done with the blessing, if not assistance, of the OJAG.
As I mentioned at the outset of this Blog, the approach described in the DMCA2 Aide-Memoire was largely a rote, boiler-plate road map that led to one of two potential outcomes: (1) the CF member subject to the administrative process directed in the Aide-Memoire would either relent in his or her refusal, and be vaccinated; or, (2) he or she would be released under item 5(f) of the Table to art 15.01 of the QR&O. Absent exemption for medical or religious reasons (which would include identifiable reasons of conscience), there were only two possible outcomes. And, since medical and religious accommodation was the product of a process controlled by institutional ‘experts’ in the Canadian Forces Health Services and the Canadian Forces Chaplain Service, the likelihood of such accommodation ranged between “slim and none” (and, to my knowledge, ‘Slim’ left the building early in the process).
Frankly, I was surprised by the MGERC F&R in this matter. While it may be controversial for me to make the following comment, I believe that the outcome of the F&R may well have been markedly different had the MGERC Member involved been someone who had spent a considerable amount of time in the CF.
Alternatively, this may have been a strategic choice by the MGERC, institutionally. As I mention above, periodically, the MGERC will adopt a “pet project”, such as challenging the conceptualization of the Crown-soldier relationship and the capacity to enforce ‘promises’ made to (future) CF personnel when they are recruited. It may be that this matter was viewed as offering an opportunity to challenge certain orthodoxies arising from the Crown-soldier relationship.
Certainly, the degree of effort demonstrated in producing the three Annexes reflects the likelihood that the Ms Frid (and, potentially, the MGERC Chair or the entirety of the MGERC) anticipated that CF decision-makers, including the FA/CDS, would be reluctant to accept the F&R. That is hardly an earth-shattering conclusion. The F&R criticize both the CF’s policy response and, perhaps more importantly, the manner in which it was implemented. It does not require particularly profound introspection to anticipate that the F&R would be met with some resistance. CF policy-makers and decision-makers are not often told that they are wrong, and, even less frequently, are they placed in a position where their decisions are vulnerable.
I anticipate that institutional inertia will cause the CDS, and those supporting him as FA, to be disinclined to accept the F&R, and to implement the remedy. And there are other reasons why he would be disinclined to do so, including: (a) the impugned policy was approved by this same CDS; (b) the proposed remedy would involve re-admitting personnel who still refuse to be vaccinated; (c) financial compensation may be problematic; and, (4) let’s face it, senior CF decision-makers do not like to admit when they are wrong.
We can anticipate that these grievances will not be determined in the next few days. If, as I anticipate, the CDS/FA is inclined to reject some or all of the F&R produced by Ms Frid, he will need to craft a comprehensive response. Section 29.13 of the NDA expressly states that the CDS is not bound by the MGERC F&R; however, if he does not act on a finding or recommendation, he is obliged to provide reasons. As I stated early in this Blog, even absent F&R, the FA is obliged to provide reasons for any decision in a grievance determination that is materially relevant to a grievance and is not favourable to a grievor. The “culture of justification” in Vavilov requires such reasons.
The larger concern for the CDS will be the dynamic between MGERC F&R, the determination by the FA, and the risk that the Federal Court may quash a determination on judicial review. And that is because the Federal Court has demonstrated that, where the MGERC provides “favourable” F&R, and the FA rejects the F&R or chooses not to grant remedy, and the grievor subsequently brings an application for judicial review, the Federal Court is more inclined to quash the FA determination than it is to uphold it.
Consequently, if I am correct, and the CDS/FA is inclined to reject Ms Frid’s F&R (at least in large part), we can anticipate that there will be significant staff and advisory effort expended over the balance of the summer, and into the autumn, to draft compelling reasons for rejecting the F&R. And, if that arises, we can anticipate that there will be applications for judicial review.
On a concluding note, I acknowledge that I have not presented an analysis of Ms Frid’s F&R. I anticipate that many of the handful of people who read this blog are curious about my own analysis. There are a couple of reasons why I have not offered my own analysis.
First, as I have explained repeatedly above, Ms Frid and the MGERC are not the decision-makers for these grievances. That duty and function falls to the CDS as final authority. Ultimately, my evaluation of Ms Frid’s analysis is not determinative, or even indicative, of anything. The CDS will either accept her F&R or he won’t. If he does not, he will have to provide his justification for rejecting those portions of the F&R that he rejects. But it is the CDS decision that is determinative of what will happen.
Second, if the CDS does reject the F&R – in totality or in a manner that will precipitate applications for judicial review – then the analysis of whether the CDS’ decision will withstand judicial review will be markedly more relevant.
 National Defence Act, RSC 1985, c N-5 [NDA], s 126.
 Arguably, the MGERC – previously named the Canadian Forces Grievance Board (CFGB) – was designed based upon the External Review Committee (ERC) that exists within the grievance process for the Royal Canadian Mounted Police (RCMP). In fact, the two-tiered grievance process for the CF was modeled largely on the two-tiered grievance process under the Royal Canadian Mounted Police Act, RSC 1985, c R-10: see ss 25 to 30 regarding the ERC and ss 30.1 to 36.1 for the grievance process.
 When examining these options, I will avoid circumstances in which the MGERC concludes that the grievor was aggrieved but then offers a remedy that is not feasible or permitted at law (which can happen). In such a case, while the FA may agree, in part, with the conclusion that the grievor was aggrieved, ultimately, the FA will reject the F&R on the grounds of infeasibility.
 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, para 10; Bashir v Canada (Attorney General), 2020 FC 278), para 18; Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330, paras 118 to 122.