Happy 20^th Birthday Grievance! (Part I)

15 March 2026

 

“Beware the Ides of March!” – or so the saying goes.

I know that the originator of that adage didn’t have my CF grievance in mind, but it remains prophetic.

Nor did anyone suggest (paraphrasing): “I told him … ‘Rory, don’t grieve!’”[1]

Today marks the 20^th birthday of my MEL-related grievance.  To ‘celebrate’, I thought it would be a propos to share with you some insights arising from this experience, and perhaps identify a ‘lesson learned’ or two.

It would likely be helpful if I began with a brief update.  There have been a couple of developments, and I can share the current status of my grievance.  This will set the stage for ‘Part II’ of this blog post, scheduled for tomorrow, in which I will describe some of the ongoing issues and offer some suggestions about what both grievors and the CF, institutionally, might learn from this debacle.

 

Why am I discussing my grievance?

Some of you may be curious why I have chosen to discuss something that constitutes ‘person information’ as that is defined under the Privacy Act[2].  That’s a fair question.  Anyone who has followed this specific subject my Blog could be forgiven for concluding that this is primarily an exercise in ‘venting my spleen’.  On its face, it would certainly appear so.  And it is entirely possible that this is a a deep-seated motive.  However, my principal motivating is that my grievance is a useful object example for information and instruction.  And the intent behind this Blog, generally, is educational, for members of the CF community – both leaders and subordinates – and the broader Canadian community.

One of the problems with the grievance process is the lack of transparency.  And I am not referring solely to the transparency of the decisions that individual grievors might receive (although that is frequently an issue).  The grievance process inherently constrains transparency.  And this assertion is not intended to insinuate some nefarious action by the chain-of-command.  Grievances constitute ‘personal information’.  Consequently, unlike judgments of the Federal Court, or courts martial, or the Court Martial Appeal Court of Canda, or the Supreme Court of Canada, the determinations of grievances by the final authority are not notoriously published.  They are not available to other grievors who find themselves in similar circumstances.

While the Military Grievances External Review Committee (MGERC) publishes “Case Summaries” on their website, those are not the same as published judgments.  And the information is often limited.  I am reasonably confident that the MGERC publishes ‘Case Summaries’ in order to remedy this lacuna (if only in part).  I suspect they also do so as a subtle means of ‘debating’ issues when the final authority rejects their ‘Findings & Recommendations’ (either wholly or in part).  Moreover, a common refrain from grievance authorities (whether initial or final) is that “… each grievance is decided on its own merits and the outcome of one grievance is not binding on a subsequent grievance determination.” Ultimately, while the Case Summaries offered by the MGERC may have limited utility for select grievors, they fall short of the utility of binding (or even persuasive) public judgments of courts.

In other words, if Sergeant Bloggins is grieving a matter that shares principles and factors with a prior grievance by Captain Smith, which has already been considered and determined by the final authority, Sergeant Bloggins won’t be able to rely on that earlier determination as a binding or determinative ‘precedent’.  In fact, Sergeant Bloggins might not even be aware of Captain Smith’s similar grievance, or the factors that might support analogous reasoning.

And where the relevant CF decision-makers are being intransigent and closed-minded about the issues raised in both grievances, these inherent constraints on transparency and notoriety can favour the (closed-minded) institutional decision-making.  Since I can exercise personal agency, I can present my experience as an object lesson for other grievors.

 

The Grievance

Those of you who have read my previous commentary on this grievance[3], will be aware that, on 15 March 2006, I had grieved a change of Permanent Medical Category (PCat) imposed on me by the Director of Medical Policy (D Med Pol). This change of PCat had arisen from by Medical Employment Limitations (MEL), also imposed by D Med Pol.  Unfortunately, I was not permitted to play any meaningful role in the process that determined either the MEL or the PCat, notwithstanding that those decisions had an adverse impact on me in 2005.

When last I discussed this grievance – a year ago, when I ‘celebrated’ its 19^th birthday – I was still waiting for the final authority to do something to advance the adjudication of my grievance.  The last material development had arisen at the end of March 2023, when I had submitted a response to what was characterized as a “Subject Matter Expert” analysis.

“And who was that Subject Matter Expert?”, you ask.

Well, it was D Med Pol, of course.

In other words, the final authority had, yet again, turned to the impugned decision-maker for analysis regarding this grievance – a grievance that challenged D Med Pol’s decision-making – just as the final authority had done in 2016 when my grievance was adjudicated the first time.

If at first you don’t succeed, just do the same thing again.  Maybe no one will notice.

And, admittedly, it took a while for me to generate my response to the so-called “Subject Matter Expert Report” (SME Report).  It took me 4 years to respond.  That might appear to be an unusual amount of time for a grievor to respond.  One might wonder why the final authority and the staff at the Canadian Forces Grievance Authority (CFGA) were willing to wait 4 years for me to respond.

I will suggest that it wasn’t out of goodwill toward someone who was once the principal legal advisor on CF grievances.  Rather, I suspect that it was because they had lost any moral authority to insist that I respond in a timelier manner.

Let’s put it into context.

First, by the time that I had received the SME Report, in February 2019, my grievance was already approaching its 13^th birthday.  It was already the oldest extant grievance in the CF grievance process.  For the first 8 ½ years of its existence, the grievance had languished with the initial authority, Director General Canadian Forces Health Services (DG CF H Svcs).  DG CF H Svcs had lost it.  Twice.  At least, the staff with DG CF H Svcs had admitted that they had lost it twice.

After 8 ½ years of various senior medical decision-makers wringing their hands, prevaricating, maladministering the grievance, and complaining that it was unfair that they had to adjudicate a grievance brought by someone with knowledge and experience in the area of CF grievances and public and administrative law, I finally got fed up and requested that the grievance be forwarded to the final authority.

Even that process was problematic.  By then, I was posted to the Canadian Forces Military Law Centre (CFMLC), at the Canadian Defence Academy (CDA) Headquarters (HQ) and I had to submit my request twice.  My first request for my grievance to be referred to the final authority somehow got lost between the CFMLC, CDA HQ, and CFGA.

To their credit, the final authority only took two years to consider and determine the grievance.  But that’s as far as the credit goes.  (And I suggest that it should normally be alarming that someone could suggest, with a straight face, that a grievance “only” took two years for the final authority to adjudicate.)  While the grievance was with the final authority staff, the (then) Director General Canadian Forces Grievance Authority (DGCFGA) sought the advice of the very decision-maker whose decision was impugned by the grievance: D Med Pol.  And that advice proved to be determinative of my grievance.

Clearly, when I refer to “the same decision-maker” I am referring to the position, not the person.  I am confident that the officer occupying the position of D Med Pol between 2014 and 2016 was not the same officer who held the position in 2005 and 2006.  But that doesn’t mean that the incumbent in 2016 was free from having an institutionally closed mind.  And that has been one of the prevailing issues throughout the maladministration of this grievance.

If you have been following my discussion of my grievance in these blog posts, you will be aware that the first decision of the final authority, which was delivered by the (then) DGCFGA, Colonel Frank Malo, did not survive contact with an application for judicial review.  And that decision was presented to me on 2 December 2016, on what was, quite literally, my last working day in uniform.  Counsel for the Attorney General of Canada quickly acted on the suggestion that the final authority’s decision could be quashed on consent and remitted back to a new decision-maker.

That Federal Court Order was delivered on 19 April 2017, just under 9 years ago.  A month later, I was informed that my grievance had been remitted back to the final authority.

And one of the things that I had realized in the course of the application for judicial review was that my grievance file appeared to be missing documents.  The Certified Tribunal Record (CTR) that was generated in the wake of my Notice of Application was missing documents that I had either submitted or had received in the course of the grievance.  That ought not to have been surprising.  After all, my grievance had been lost at least twice, while in the custody of DG CF H Svcs.  And, while the grievance was with the final authority, no steps were taken to permit me to review the grievance for completeness.  Fortunately, as a result of the application for judicial review, I was able to identify missing documents.

In February 2019, 22 months after the Federal Court had quashed the final authority’s first determination, a CFGA analyst provided me with the above-mentioned SME Report, a 12-page document authored by D Med Pol.  But that was all that I was given.  The SME Report purported to be an annex to a larger file.  But that larger file, whatever it was, was not disclosed to me.  Nor were any of the authorities upon which the so-called SME relied presented to me.  It was simply a 12-page justification from Colonel J. Kile, D Med Pol, explaining why my PCat would not be changed.

Specifically, Colonel Kile concluded:

1. 39. Having considered the member’s complete medical record along with the particular risk factor as discerned through an in-depth review in the relevant medical literature; D Med Pol reaffirms that individualized medical assessment of support the O3. Further, the associated medical limitations outline below are appropriate and will remain unchanged:

a.  can but should avoid running on a daily basis; and

b.  fit PT but it may be limited in type, duration, intensity or frequency.

 

What I find particularly interesting about this response is that Colonel Kile appeared to believe that he was still the decision-maker.

In fact, that was an ongoing theme in this grievance.  Various D Med Pol and other senior officers in CF H Svcs were under the misapprehension that no one was permitted to review or question their decisions.  They went so far as to assert that these were medical decisions akin to treatment[4] when desperately trying to justify why no mere layperson was permitted to second-guess their exercise of statutory powers.

And it’s not that they were oblivious of the statutory role of the final authority to consider and determine grievances.[5]  They asserted that no one was permitted to review or alter the decisions that they made.

Admittedly, I took four years to respond to this SME Report.  While that is not an insignificant period of time, it is a fraction of the overall time that this grievance has been around.  It comprises 20% of the time that this grievance has been in existence.  It is approximately half the time that DG CF H Svcs fumbled about, failing to consider and determine my grievance.  And most of the other 80% of the lifespan of this grievance – 16 years – is attributable to the institution itself.

I could suggest that it was difficult for me to dedicate time to drafting my response to my own grievance.  I was busy assisting CF personnel and veterans with their various matters arising from the administration of the affairs of the CF.  And God knows, with all the maladministration arising within the CF over the past few years, I could have had half a dozen young lawyers working for me and we’d all have been busy.

I could also suggest that the delay was attributable, in part, to the COVID-19 pandemic.  Certainly, throughout 2020, 2021, 2022, and even into 2023, CF decision-makers – and, in particular, the final authority in the CF grievance process – routinely relied on that very excuse to justify delay in the administration of grievances.  The pandemic certainly didn’t slow down CF decision-makers when they were making decisions that were adverse to the interests and rights of individual CF personnel.  Remedial measures were handed out like participation trophies during these years.  Administrative Reviews under DAOD 5019-2 flourished, resulting in compulsory release.  There was clearly time and resources for such administration.

In fact, reliance on the COVID-19 pandemic to justify delay became such a rote tactic and response by the Crown, it was not surprising when Justice Richardson called out that excuse in R v Harrison, 2023 ONCJ 392, at paras 209 to 212.

Was the delay in my response attributable, in part, to my tendency to place my clients’ needs ahead of my own?  Yes.  Was it due, in part, to the impact of COVID-19?  Yes.

But, unlike the CF, I am not inclined to try to rely on COVID-19 as a complete, rote, and facile justification for delay.

Another key factor in the delay in my response was the impact on institutional intransigence on me.  And this has been a key theme in several of the observations that I have offered regarding the CF grievance process specifically, and CF statutory decision-making generally.

Any CF member who finds him- or herself at odds with the chain of command – i.e., with the CF, institutionally – is engaged in a markedly asymmetric struggle.  There are several factors that contribute to this asymmetry.  CF personnel are not in privity of contract with the Crown.[6]  Consequently, many remedies available to employees within a contractual paradigm, are not available to CF members.

CF personnel are repeatedly told that they much exhaust the CF grievance process before availing themselves of any other remedial processes.[7]  And, while this has (arbitrarily) been relaxed for CF personnel who wish to bring a complaint of sexual harassment or discrimination on the basis of sex[8], it remains applicable for others.  And I have yet to encounter a compelling explanation for why the grievance process isn’t fit for purpose for these types of complainants but is fit for purpose for other complaints of abuse of power and abuse of process.  And the handling of my grievance is an object example of the arbitrary nature of those policy decisions.

In sum, the grievance process can be utterly demoralizing for people who are grieving decisions that CF institutional decision-makers refuse to acknowledge were unfair or unreasonable.  And the more that I encounter this factor, the more it appears that this factor is welcomed by CF decision-makers.

In fact, as I wrote in my response to the SME Report, which I submitted on 31 March 2023:

27. … I find that every time I turn my attention to this matter, I am faced with the infuriating circumstance that, even after I retired from the CF, I am still forced to seek remedy from the same CF statutory-decision makers who could not administer my Medical Category properly, fairly, and reasonably at first instance. Nor could they adjudicate my grievance in a fair, reasonable, and timely manner.
28. So, once again, I have to deal with transparently closed-minded decision-makers who refuse to acknowledge their joint and several errors and whose sole focus is on reverse-engineering a justification for the initial unfair, unreasonable, and just plain bad decision-making. Like my clients, I am obliged to participate in the soul-destroying, demoralizing process known as the Canadian Forces Grievance System.
29. Once again, I have to spend time, effort, and emotional stress to plead my case to a decision-maker whom I know will not approach this matter with an open-mind.
30. Once again, I am forced to participate in an asymmetric process because the Federal Court insists that the CF grievance process is an adequate alternative remedy. Some alternative.  Some remedy.

 

And I can tell you, from the perspective of someone who has practiced in this field for over 20 years, nearly half of which has been in private practice, representing individual CF personnel, that this is a commonly held sentiment.

In the Third Independent Review by the Honourable Morris Fish[9], the former Puisne Justice of the Supreme Court of Canada observed that the Chief of the Defence Staff (CDS) had issued the “Directive for Canadian Armed Forces (CAF) Grievance System Enhancement” on 3 March 2021.  As an aside, this directive is not notoriously published on a Government of Canada website in a manner that makes it quickly available.  It is published as “Schedule R” of the Fish Report.  And I have hyperlinked it here.

Institutional decision-makers and spokespeople in the CF routinely mention this Policy Directive in response to allegations of ongoing delay in the CF grievance process as if it is a panacea to that issue.

I find it difficult to take that proposition seriously.  And I will expand upon that perception in Part II of this blog.

However, by way of example, I am not alone in experiencing delay.  I have a client who submitted a grievance in January 2018.  He received a determination by the final authority in mid-2024.  And for 6 of those 6 ½ years, the grievance was with the final authority.  As with my grievance, the final authority’s first determination of that grievance was quashed on judicial review with the consent of the AGC.  And we’re back before the Federal Court yet again.

The CDS Directive certainly didn’t light a fire under the determination of that grievance.  Nor did it light a fire under mine.

For over two years after I submitted my response to the SME Report I heard nothing further.

Then, last summer, the CFGA analyst contacted me with the following query:

In your letter …  dated 31 March 2023, you indicate that you may wish to provide further representations.

Would you please confirm whether you wish to provide any further representation before the FA proceeds? I attach a copy of the grievance file for your convenience.

 

My response, two days later, highlighted the following introductory paragraphs from my submissions over two years earlier:

2. I reserve the right to make further representations. I am not confident that DCFGA has a complete and accurate version of my grievance file at reference A – or, more accurately, I am not confident that the [grievance file], which the FA has maintained, reflects the contents of the file that I maintain.
3. In any event, it is my understanding that the process employed by the FA and the FA grievance staff is that, prior to a determination by the FA, a synopsis is prepared by the FA grievance staff and presented to the grievor. That has not yet been done with this grievance following the successful judicial review of the first FA determination. The only material change to the grievance of which I am aware is the inclusion of the so-called SME report … which was provided to me approximately six months after the author completed it.

 

There were additional observations that I offered, many of them repeating arguments that I had offered in my letter of 31 March 2023, but the central theme was that I would offer my comments once I was presented with a synopsis.  While Defence Administrative Order and Directive (DAOD) 2017-1 does not direct that a synopsis is always required for all grievances, para 10.5 of that DAOD does state:

10.5 Whether or not the FA refers a grievance to the Grievances Committee, the FA must, in accordance with QR&O article 7.19, Duties if Grievance Not Referred to Grievances Committee, or QR&O article 7.24, Action After Grievances Committee Review:

a.  consider the requirement to prepare a synopsis and disclose it and any new information to the grievor; …

 

The implication being that, while a synopsis is not always necessary, the final authority must consider whether the circumstances might require one.  In light of the history of my grievance, it would be difficult to conclude that a synopsis would not be necessary.  And, certainly, in my representations of 31 March 2023, reiterated in August 2025, I argued that a synopsis was necessary.

On 12 January 2026, I received another digital version of my grievance as well as a synopsis.  I provided my response on 28 February 2026.  I anticipate that the next material development will be my receipt of the final authority’s determination of my grievance.  Conceivably, it could already be en route, or it could take a month or two.

 

A Few Explanatory Points

Since today is the 20^th anniversary of my grievance, I thought that I would share the contents of the synopsis.  Before I do, I will offer a few observations.

First, you’ll note that the synopsis employs what could be characterized as ‘non-committal’ language: “The final authority could …” or “The final authority may …”.  That is not unusual.  This is a synopsis offered by a CFGA analyst.  It is not the final authority’s decision.  Thus, the language used will reflect recommendations not determinations.  Has the synopsis been reviewed by supervisors within the CFGA?  Yes.  Has it likely been reviewed by, or briefed to, the final authority?  Probably.  But to maintain the fiction that the final authority is approaching this with an open mind, it is presented as a possible outcome, thereby inviting the grievor to respond to what is offered.

Second, there are factors, issues, or conclusions that I dispute.  The astute among you will likely identify some of them, particularly if you have been following along on this journey.  The extent to which I dispute elements of the synopsis, and the implications that this grievance might have for CF grievors and CF decision-makers, will be topics of discussion in tomorrow’s blog post.

Finally, as should come as no surprise, I have redacted some personal information.  I have chosen to use my grievance as an object example for educational purposes.  But there is some information that I will not share.  I have also modified the synopsis slightly in terms of formatting.[10]  I have removed footnotes (most of which were references to specific page numbers in the grievance file) and I have added some additional relevant information in square brackets (which would otherwise have been referenced in the footnotes).

For those of you who are inclined to treat this as an intellectual exercise: as you read this synopsis, try to identify the potential responses or rebuttals that the grievor might offer.  Tomorrow, we will explore further the merits of this synopsis.

 

The Synopsis

OVERVIEW

1. Lieutenant-Colonel Fowler (Retired) (the grievor) submitted their grievance on 15 March 2006 regarding the medical category (Med Cat) operational (‘O’) factor assigned to them on 20 September 2005.

 

MATTER GRIEVED

2. The grievor contends that the decision to assign them Med Cat factor O3 was procedurally unfair and unreasonable.

 

REDRESS SOUGHT

3. As redress, the grievor requests that:

a.  the decision to change their Med Cat factor to O3 be nullified and reverted to O2;

b.  the Director Military Careers Administration (DMCA) be directed to close the administrative review (medical employment limitations (AR (MEL)) file; and

c.  $50,000 ex gratia for the delay in adjudicating their grievance and alleged problematic decision making.

 

RELEVANT FACTS

4. In November 2002, the grievor underwent [a medical procedure].
5. In May 2004, the grievor attended a medical consultation with a medical officer (MO) to establish their permanent Med Cat. [The grievor did not receive a copy of the CF 2088 until 20 September 2005.] The CF 2088 assessment was sent to the Director Medical Policy (D Med Pol) for review and endorsement.
6. On 28 February 2005, Director Military Careers Administration Resource Management (DMCARM) sent a message that an AR (MEL) had been initiated based on the new Med Cat and no career action was to be taken without consultation. The grievor belonged to the Area Support Group but the message was sent to 31 Canadian Brigade Group in error.
7. On 6 July 2005, the grievor received their posting message with a change of strength date of 15 July 2005.
8. On 30 August 2005, in their AR (MEL) decision, DMCA determined that the grievor’s limitations did not breach the universality of service requirements or the bona fide occupational requirements of the grievor’s occupation, allowing them to be retained in their career without limitations.

 

ANALYSIS

9. Determination by the Final Authority. This summary and the grievor’s comments will assist the final authority (FA) in determining whether the Med Cat ‘O’ factor was appropriate in the circumstances as well as issues regarding the administration of the grievance.
10. Procedural Fairness. The grievor contends that there was a lack of procedural fairness in the AR (MEL) process wherein the change was made to their Med Cat. The grievor states that they were not afforded the opportunity to make fully informed representations to the decision maker, and that they were given insufficient reasons for the decision to change their Med Cat.
11. Approximately 18 months after [the medical procedure], the grievor informed their MO that they were able to run, cycle and lift weights, but their knee was not 100%. The MO duly recorded the information and recommended that the grievor’s Med Cat be temporarily changed to ‘G’ level 4 and ‘O’ level 3 for six months. This was not disclosed to the grievor at the time but was sent to D Med Pol for decision.
12. Where a decision may affect the life of a member, and the greater the possible impact on them, the more important the requirement to ensure that all elements of procedural fairness are followed. In this case, with an unfavourable ‘O’ factor, the grievor could have potentially been released from the Canadian Armed Forces (CAF). This is a serious possible outcome.
13. Given the lack of disclosure and opportunity to provide representation at the time, the FA may find that the grievor was not afforded procedural fairness.
14. The grievor has since received full disclosure and been given an opportunity to respond. The FA will conduct a de novo review of the grievance, considering all relevant information independently.
15. The FA may also inform the grievor that the process for assigning medical categories has changed. MOs are now required to notify members of any change in their Med Cat and allow them to provide comments in advance of an AR.
16. The ‘O’ Factor. In effect at the time of these events, – The Medical Category System – of the Medical Standards (CFP 154) Chapter 3 provided:

Occupational Factors

O2 – assigned to the member who has no employment limitations of a medical nature, or only minor limitations which do not prevent the member from fully meeting the Generic and the MOC Task Statements.

O3 – assigned to the member who is capable of performing the majority of occupational/ physical tasks, at his/her own pace, but who has some specific employment limitations which can be clearly and specifically detailed, and which prevent the member from fully meeting the Generic and the MOPC Task statements.

 

17. The medical examination record upon which the contested ‘O’ factor rests states:

O3 – should avoid running and impact activities on a daily basis as it may exacerbate a chronic medical condition [my emphasis].

 

18. Human Resources Military (ADM(HR-MIL) INSTRUCTION 11/04 – DND HUMAN RESOURCE MANAGEMENT (in effect at the time) states:

Employment and Career Decisions by DMCARM

The importance of clearly stated MELs cannot be overstated. The permanent MELs represent the central issue around which employment and career decisions are made. Career decisions are the domain of, and rest with, DMCARM.

 

19. The use of the words “should” and “may” in describing the grievor’s MELs are not sufficiently comprehensive to inform a decision maker as to whether the grievor had limitations sufficient to impede their ability to meet the specific requirements of their occupation and the CAF.
20. Therefore, the FA may find that the MO’s recommendation was insufficient to support a finding to assign a factor of O3.
21. The FA may wish to note that had the grievor been informed and afforded the opportunity to provide representation at the time, the appropriate factor might have been more definitively assigned and explained.
22. The Subject Matter Expert Report (SME). The SME document is identified as “Annex A to 5080-1-[XXXXXX] (D Med Pol).” The grievor requested a copy of the file to which the report was stated to be annexed as it had not been disclosed to them. Both DCFGA and Canadian Forces Health Services Group (CF H Svcs Gp) reviewed the grievor’s files and could find no reference to the file number except in the SME report. For clarity, the main or “parent” document to which Annex A is associated (i.e., 5080-1-[XXXXXX] (D Med Pol)) in fact references the DCFGA grievance file number and not a separate document internal to D Med Pol. Regrettably, there was an error made in the reference to the grievance file.
23. Further inquiry revealed that the abovementioned file number belonged to another grievance that had been sent by DCFGA to CF H Svcs Gp for SME assessment in the same timeframe as the grievor’s. The same SME addressed both grievances. After a review of both files, it was confirmed by D Med Pol that no information was improperly intermingled or divulged. Based on the fulsome clarifying reviews done by DCFGA and D Med Pol, it has been confirmed that there is no further SME document to disclose to the grievor. Therefore, the FA may find that this was an inadvertent clerical error on the part of the SME and may wish to reassure the grievor that the referenced file does not include any of their medical information.
24. Timeliness. The FA may also wish to address the grievor’s concerns regarding a lack of timeliness. A number of factors have contributed to the length of time taken to adjudicate this grievance including periods of limited engagement by all parties.
25. Timeliness challenges in grievance adjudication were not unique to this case. These issues have driven ongoing transformation of the grievance process.
26. The FA may find that known issues regarding timeliness within the CAF grievance system are being addressed and improvement efforts are ongoing.
27. Redress. The grievor has requested that the O3 factor be reverted to O2; that the AR (MEL) be closed; and a $50,000 ex gratia payment for the delay in adjudicating their grievance and alleged problematic decision making.
28. The FA may find that the ‘O’ factor should be reverted to O2 as there is insufficient explanation of the grievor’s MELs to justify a factor of O3.
29. The FA may find that the AR (MEL) file has already been closed, this portion of their grievance is considered resolved.
30. Ex Gratia. The Treasury Board’s Guide to Ex Gratia Payments and Honorariums states:

A benevolent payment made by the Crown used only when there is no other statutory, regulatory or policy vehicle to make such a payment. The payment is made in the public interest for loss or expenditure incurred where the Crown has no obligation of any kind or has no legal liability, or where the claimant has no right of payment or is not entitled to relief in any form.

An ex gratia payment may only be authorized if:

…

(d) There is no mechanism by which the grievance can be remedied, including under existing laws, regulations, instructions, policies or programs; and

(e) the payment is not used to fill perceived gaps or to compensate for the apparent limitations in any act, order, regulation, instruction, policy, agreement or other government instrument.

31. The grievor provided several examples of achievements in their CAF career which occurred after the change to their Med Cat. They were promoted twice; geographically relocated four times including to and from the United Kingdom; deployed twice; participated in various exercises; occupied seven successive legal officer positions; and ultimately retired from the CAF as a Lieutenant-Colonel. There is no evidence to support the requirement that a loss occurred.
32. The grievor further indicates that their post-military career was equally successful. Their legal practice has been busy assisting military and veteran clients; the time required to do so detracted from the furtherance of their own grievance. The grievor has not demonstrated they incurred a loss as a result.
33. The grievor further mentions their dissatisfaction regarding a delay in their posting from London, Ontario to Ottawa because of the O3 designation. The delay resulted in a perceived requirement to purchase a residence that they ultimately found unsuitable. The FA may find that a residence purchase is a personal decision outside of the public interest and is neither urgent nor exceptional.
34. Consequently, the FA may find that the request for an ex gratia payment does not meet the criteria as enumerated by Treasury Board.

 

RECOMMENDATION

35. It is recommended that the FA find the grievor aggrieved.
36. The content of this synopsis is subject to any representation made by the grievor following the disclosure process.

 

We will continue the discussion of this grievance tomorrow …

 

 

[1] If you know, you know.  If not, ask someone over the age of 50.

[2] Privacy Act, RSC 1985, c P215, s 2, “personal information”.

[3] Rory Fowler, “Happy Birthday, Grievance – Delay in the Adjudication of CF Grievances” (15 March 2025) online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/happy-birthday-grievance-delay-in-the-adjudication-of-cf-grievances/>; Rory Fowler, “Incompetence & Intransigence in Grievance Adjudication – Part I” (15 March 2024) online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/incompetence-intransigence-in-grievance-adjudication-part-i/>; Rory Fowler, “Incompetence & Intransigence in Grievance Adjudication – Part II” (16 March 2024) online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/intransigence-in-grievance-adjudication-part-ii/>.

[4] Colonel Kile attempted to assert that, by virtue of art 3.33 of the QR&O, the decision of D Med Pol could not be challenged by a layperson.  Art 3.33 of the QR&O states: “No officer who is not a medical officer shall exercise command over a medical officer in respect of his treatment of a patient.”  The problem with this assertion is that a decision by D Med Pol to assign a Medical Category (or, indeed, Medical Employment Limitations) is not treatment.  It is an exercise of statutory powers.  And the assignment of a medical category is reviewable, both by laypersons, and by courts of competent jurisdiction: Bouchard v Canada (Attorney General), 2014 FC 1231, paras 71 to 73.

[5] National Defence Act, RSC 1985, c N-5, ss 29.1, 29.11, 29.14, 29.15.

[6] Gallant v The Queen In Right of Canada, 1978 CanLII 2084, (1978) 91 DLR (3d) 695 (FC TD).

[7] Sandiford v Canada, 2007 FC 225; Graham v Canada, 2007 FC 210; Dunn v Canada (Attorney General), 2025 FC 652.  There are a multitude of examples.

[8] Department of National Defence, “Minister Blair Announces Changes to the Canadian Armed Forces Grievance and Harassment Process” (15 August 2023) online: News Release < https://www.canada.ca/en/department-national-defence/news/2023/08/minister-blair-announces-changes-to-the-canadian-armed-forces-grievance-and-harassment-process.html>; Government of Canada, “Human rights complaints in the Canadian Armed Forces” (29 May 2024) online: <https://www.canada.ca/en/department-national-defence/services/benefits-military/conflict-misconduct/conflict-harassment/human-rights.html>

[9] Morris Fish, CC, QC “Report of the Third Independent Review Authority to the Minister of National Defence Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5” (30 April 2021) Online: Government of Canada <https://www.canada.ca/en/department-national-defence/corporate/policies-standards/acts-regulations/third-independent-reviews-nda.html>, see paras 637 to 643.

[10] As an aside, for whatever reason, even though most documents in grievance files are presented on ‘letter sized’ (8 ½” x 11”) pages, synopses appear to be prepared on ‘legal sized’ (8 ½” x 14”) pages.