What does it mean to ‘sign’ a grievance?

I recently encountered an odd circumstance relating to the issue of what constitutes a ‘signature’ for the purpose of submitting a grievance under the CF grievance process.  Discussion of this issue in a public forum might be beneficial to grievors, CF decision-makers, and staff who support the CF grievance process.

Anyone familiar with the CF grievance process will know that it is based upon a statutory framework in the National Defence Act (NDA), amplified in Chapter 7 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), and amplified further in Defence Administrative Order and Directive (DAOD) 2017-0 Military Grievances and DAOD 2017-1 Military Grievance Process.

Legislated and Policy Basis

Subsection 29(1) of the NDA established the statutory basis for an officer or non-commissioned member (NCM) to grieve:

An officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.

Subsection 29(2) establishes exceptions to this right, including: (a) a decision of a court martial or the Court Martial Appeal Court; (b) a decision of a board, commission, court or tribunal established other than under the NDA; or (c) a matter or case prescribed by the Governor in Council in regulations.

By virtue of para 29(2)(c) of the NDA, and the Governor-in-Council’s regulation-making power at subsection 12(1) of the NDA, the Governor-in-Council enacted article 7.03 of the QR&O, which provides that “…  there is no right to grieve in respect of a decision made under the Code of Service Discipline.”

The rationale for these exceptions is that there are other remedial processes (appeal, review, etc.) for each of the enumerated processes.  And, frankly, those other remedial processes can be a heck of a lot faster than the grievance process.  In fact, seeking judicial review before the Federal Court and appeal before the Federal Court of Appeal can be markedly faster than the grievance process: see Zimmerman v Canada (Attorney General), 2011 FCA 43; rev’g Zimmerman v Canada (Attorney General), 2009 FC 1298.

Article 7.08(1) of the QR&O establishes the three general requirements for the submission of a grievance:

A grievance shall be in writing, be signed by the grievor and be submitted to the grievor’s commanding officer.

There are other relevant factors and requirements, such as limitation periods (QR&O 7.06) and the conditions precedent established in subsection 29(1) of the NDA, but article 7.08(1) establishes the three hallmarks of a grievance that will trigger the legislated ‘CF grievance process’.

There can be nuances to these requirements.  For example, to whom does a commanding officer submit a grievance?  Surely not her- or himself.  It would not be to the CO of the higher formation headquarters.  For example, CO 1 PPCLI could not submit a grievance to the CO (designated or otherwise) of 1 CMBG HQ – because CO 1 PPCLI does not belong to 1 CMBG HQ; he belongs to 1 PPCLI.  And what of a formation commander or General Officer?  When they wish to submit a grievance – and that does happen from time to time – to whom do they submit their grievances?

Surprisingly, there is nothing in the NDA, QR&O Chapter 7 or DAOD 2017-0 or 2017-1 that expressly answers this specific issue.  In practice, a CO or officer occupying a more senior position, will submit a grievance to the officer who is their immediate supervisor – the officer “… to whom they are responsible for matters of discipline and administration …”, notwithstanding that this is not what is prescribed in the legislated (or policy) framework.  Thus, the term ‘commanding officer’ would appear to be treated in a flexible manner when dealing with grievances from senior officers.

There are other interesting omissions in this framework; for example, none of the legislation or policy direction expressly dictates that a grievance must be typed.

While there can be peculiar nuances arising from the various requirements under the CF grievance process, the present Blog article if focused on what constitutes a signature that would satisfy the condition that a “… grievance shall be … signed by the grievor …”.

In particular, in light of the limitations arising under COVID-19 precautions, and the impact on communications, the issue of what constitutes a ‘signature’ may have increasing importance.

A recent object example will be beneficial to the discussion.

Example of a Disputed ‘Signature”

Recently, a member of the CF (the grievor) had occasion to submit a grievance.  Like many grievances, it was one for which the commanding officer to whom the grievance was submitted could not act as the initial authority.  Specifically, under the requirement at paragraph 7.14(1)(a) of the QR&O, the commanding officer could not “… grant the redress sought …” by the grievor.  Additionally, elements of the grievance pertained to acts, decisions, and omissions by the commanding officer, so he would also have been precluded from acting as IA under sub-article 7.14(2) of the QR&O.  Therefore, the grievance was referred to “… the commander … who is responsible for dealing with the matter that is the subject of the grievance …” (QR&O 7.14(1)(b)).

The grievor was working outside Canada under conditions that limited his access to certain ‘peripherals’ that many of us take for granted in most modern offices: reliable telecommunications, scanners, printers, etc.  He also did not have access to his Outlook account on the Defence Wide Area Network (DWAN).  He did, however, have access to a personal e-mail account – to which only he had access – and it was this account with which he had been communicating regularly with his chain of command.

The grievor submitted a grievance that he had prepared on a computer but which he could not physically scan with a ‘live’ signature.  It is markedly difficult to scan documents without a scanner.  Therefore, he submitted his grievance to his commanding officer electronically, using his personal e-mail, and indicating: “//Original signed by//” placed above his signature block.

Although the commanding officer did not initially acknowledge receipt of the grievance, it was accepted by the commanding officer and, since he determined that he could not act as IA, he then sent the grievance to the Canadian Forces Grievance Authority (CFGA) in accordance with article 7.09.  It is unclear if the commanding officer actually complied with the 10-day limitation period at paragraph 7.09(2)(a); however, as there are no actual consequences for a commanding officer who fails to meet this limitation period, it is unsurprising that many do not comply with the letter of the law.

This is where it gets interesting.  Despite the requirement under sub-article 7.10(1) of the QR&O that the CFGA “… shall …  forward the grievance to the appropriate authority as expeditiously as possible with any additional information received from the commanding officer; and … notify the grievor and the commanding officer as expeditiously as possible of the action taken …” it remains unclear whether this was done.  In fact, it appears that the CFGA did not comply with its obligations under article QR&O 7.10.  Again, where there are no consequences for failure to comply with statutory obligations, such omissions can arise.

What did occur was the following:

1. The grievor submitted his grievance to his commanding officer, his immediate supervisor, via e-mail;
2. The commanding officer did not initially acknowledge receipt;
3. 21 days after the grievance was submitted directly to the commanding officer, a junior staff officer holding the rank of Second Lieutenant (presumably a staff officer) contacted the grievor indicating receipt of the grievance and asking if the grievor had access to ‘encrypted e-mail’. Presumably, the staff officer was referring to access to both the DWAN and the capacity to encrypt e-mail using a CF-issued Public Key Infrastructure (PKI) card used for encrypting non-classified communications on the DWAN (principally for ‘Protected B’ designated correspondence);
4. The following day, the staff officer contacted the grievor to inform him that the grievance had been registered within the CF grievance system and providing an ‘acknowledgement of receipt’ letter from the CO.
5. As the grievor was outside the country at the time and did not have the capacity to encrypt his correspondence, he repeatedly offered and suggested that correspondence could be sent to his lawyer as an alternative. The CF chain of command and their legal advisors from the Office of the JAG repeatedly refused to use this option, resulting in problematic communications;
6. Over a month after the grievance was accepted, acknowledged, registered, and presumably sent to the CFGA, the grievor received the following response from the (presumed) staff officer who was handling his grievance:

Unfortunately, your grievance was returned, by DGICCM [Director General Integrated Conflict and Complaint Management] to the CO, on [a date, 2 days prior]. Your grievance was returned, without action, as they cannot process electronically signed grievances … grievances must be conventionally signed with pen.

At your earliest convenience, please sign and return your grievance to [Rank] [Name] and we will recommence the grievance process. Once the grievance is resubmitted it can be tracked using the same number [Grievance Registration Number].

Please let me know if you have any questions or concerns. Additionally, I have cc’d the [two other officers] for their situational awareness.

This response raises several questions:

1. Why did it take over a month after the grievance was acknowledged and registered, and nearly two months after it was submitted, to inform the grievor of this alleged shortcoming?
2. Under what authority did DGICCM ‘refuse’ the grievance in the form that it had been submitted;
3. Is the assertion that a grievance must be signed ‘conventionally’ (whatever that means) in ink correct at law?

Delay of response

I cannot offer informed analysis of the first question other than to observe that, in a process in which there are no adverse consequences for delay by Crown actors and administrators, such delay is not surprising.

An initial authority (IA) has four months from receipt of a grievance to consider and determine the grievance.  However, most IA routinely ask for extensions, often shortly after receiving a grievance, signalling that they have little or no intention of even trying to satisfy the four-month limitation period.  When they (or, more accurately, their staff) ask for an extension they routinely remind a grievor that the final authority (FA) has no limitation period imposed on him, suggesting that there is little to be gained from refusing to ‘grant’ the extension sought.

Moreover, article 7.15 of the QR&O does not actually authorize a grievor to ‘grant’ an extension to the IA.  Sub-article 7.15(4) provides that “If an initial authority, other than the Chief of the Defence Staff, does not determine a grievance within the time limit set out in paragraph (2), the grievor may submit to the initial authority, for forwarding to the final authority, a request to consider and determine the grievance.”  It is a nuanced difference; however, what article 7.15 actual does is empower a grievor to choose to refer a grievance to the FA if the IA fails to comply with the limitation period imposed upon the IA.  This ‘discretion’ is only provided to the grievor once the IA has had the grievance for four months.  In effect, by not referring the grievance to the FA, the grievor is granting the IA an ‘extension’.  However, there is a distinction between choosing not to exercise such an option under legislation and actually being empowered under the legislation to perform an act.

If the IA is not held to the four-month limitation period imposed on that decision-maker then, from a practical and functional perspective, there is no limitation period.  The most significant consequence of the limitation period imposed on an IA is that some grievances will never have an IA determination, and a grievor must wait for the FA to (eventually) consider and determine a grievance.

Similarly, there is no practical consequence if a CO fails to forward a grievance to the CFGA within 10 days after it is received (QR&O 7.09).  There is no practical consequence if the CFGA does not forward the grievance to the appropriate authority as expeditiously as possible (QR&O 7.10).  And there is no practical immediate consequence within the CF grievance process for nonsensical statements like the above-mentioned assertion about grievances “signed in ink”.

Authority (or lack thereof) of DGICCM:

Director General Integrated Conflict and Complaint Management (DGICCM) was created when the CF created the Integrated Conflict and Complaint Management framework.  Much can be said about the merit of this framework, but that will have to wait for another Blog article.  For our present discussion, what is relevant is that Director General Canadian Forces Grievance Authority (DGCFGA), which existed for a number of years and is still expressly identified in DAOD 2017-0 and 2017-1, no longer exists.  What exists now is DGICCM, with Director Canadian Forces Grievance Authority (DCFGA) in a subordinate position.  Presumably, where the legislation refers to “Canadian Forces Grievance Authority”, DCFGA staff will perform those functions.  Ironically, before DGCFGA was created, the position at National Defence Headquarters (NDHQ) responsible for the management of the CF grievance process was DCFGA.  It’s the ‘circle of life’, but with an NDHQ flavour.

What is relevant to the present discussion is that DGICCM is neither the grievor’s CO nor the appropriate IA.  In fact, as a civilian, DGICCM could never be an IA.  Consequently, neither DGICCM nor any staff officer – military or civilian – working for DGICCM has any jurisdiction to make a decision, perform a function, or exercise a power attributed to a CO or an IA.

Yet, it appears that DGICCM, or someone from DGICCM, purported to reject a grievance based upon a supposed failure by the grievor to comply with sub-article 7.08(1) of the QR&O.  That is jurisdiction that DGICCM does not have.

A CO is responsible for receiving and registering a grievance under article 7.09 of the QR&O.  These are duties prescribed by the Governor-in-Council.  It falls to the CO to determine whether a grievor has complied with article 7.08 of the QR&O.

It then falls to the CFGA, under article 7.10 of the QR&O to forward the grievance to the appropriate IA and to do so expeditiously.  There is no indication in the legislation that the CFGA has any discretion to reject a grievance that has been accepted by a CO.

Article 7.14 of the QR&O establishes who may act as IA.  The duties of the IA are prescribed by the Governor in Council at article 7.15 of the QR&O.  These duties include the ‘determination’ of the grievance (i.e. making a determinative decision) which can include determination of whether the grievance was submitted within the appropriate limitation period (QR&O 7.06(1)).  If it is submitted outside the limitation period, the IA may determine whether it would be in the interests of justice to accept the grievance for determination (QR&O 7.06(3) & Note).  In other words, once a CO has accepted and registered a grievance, it falls to the IA not only to consider and determine the grievance on its merits, but, first, to make preliminary determinations about jurisdiction.

That role does not fall to DGICCM or to the CFGA.  In fact, DGICCM is not mentioned, expressly or implicitly, anywhere in the NDA, Chapter 7 of the QR&O, or even DAOD 2017-0/-1.  DGICCM has no jurisdiction to make the kind of decision or determination that was attributed to it.

DGICCM had no business interfering with the administration of the grievance.

Even if DGICCM had such jurisdiction – which it clearly did not – the purported basis for the interference was also flawed.

No Requirement for a ‘Conventional Ink Signature’

Neither the NDA nor Chapter 7 of the QR&O direct – anywhere – that a signature must be an ink signature, applied manually.  There is no suggestion at article 7.08 of the QR&O that suggests such a narrow construction of the term ‘signed’.  It does not state how the signature should be manifested.  Based upon a large and liberal interpretation of this provision, reading the words of the regulation in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (Re: Rizzo & Rizzo Shoes Ltd., [1998] 1 SCR 27), it is clear that the grievance requires a ‘signature’ that would adequately identify the grievor and bind the grievance to the grievor.

Neither does DAOD 2017-1 stipulate the requirement that was purportedly asserted by DGICCM.  Yet, someone at DGICCM concluded, without stating any authority for that conclusion, that the signature must be a ‘conventional ink signature’.

I suggest that ‘signed’ as used in QR&O 7.08 would be satisfied by an electronic signature or other indication that the grievance was submitted by the purported signatory.

I also suggest that respect for the rule of law would require statutory actors such as DGICCM and DCFGA to comply with the law enacted by Parliament and the Governor in Council, and not invent their own requirements, which are not expressed anywhere in the legislation or CF-authored policy instruments, particularly where they have no jurisdiction to reject a grievance in the first place.

Electronic signatures are common-place.  Even the Law Society of Ontario and other Law Societies accept ‘electronic signatures’ and even mechanisms such as ‘check this box to indicate your signature’ for electronic submission of documents.  Electronic signatures are consistently used within the Canadian Forces to sign memos, letters, and leave passes.  E-mail is accepted as a binding form of communication.

Under COVID-19 restrictions, courts, lawyers, and government actors are revisiting requirements for various instruments, including the commissioning of oaths on affidavits.  And to be clear: a grievance does not require a commissioned oath for valid submission.

Conclusion

CF grievors should pay particular attention to the legislated and policy framework for grievances.  From time to time, they may encounter decisions and determinations by decision-makers, and those asserting jurisdiction to make certain decisions, that do not have a solid foundation in law.  The weaknesses in those foundations may be jurisdictional or substantive.  Grievors should approach such assertions and determinations with a critical eye and, where necessary, seek the advice of an informed legal advisor.

The foregoing example of an erroneous assertion by a putative decision-maker who lacked the jurisdiction to make such a decision is an object example of circumstances that require a critical approach to statutory decision-making in the CF.

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