Happy 20^th Birthday Grievance (Part II)

16 March 2026

 

This Blog post continues yesterday’s discussion of a grievance[1] that has been mishandled over the past two decades.  For 20 years, Canadian Forces (CF) decision-makers have ignored basic, incontrovertible facts and offered disingenuous reasoning. For 20 years, CF decision-makers have disclaimed responsibility for their actions.

At its core, this grievance encapsulates the tension arising between what the CF grievance process is supposed to be, what CF authorities claim it is, and how the CF grievance process is actually employed.  The outcome of this grievance may not necessarily be determinative in defining the CF grievance process, but I contend that it is persuasively indicative of the nature of the CF grievance process.

Ultimately, the CF grievance process can be employed as a remedy for CF personnel who are aggrieved by decisions, acts, or omissions in the administration of the affairs of the CF.  It can be.  Often, it isn’t.  Instead, all too frequently, CF decision-makers and their staff treat the grievance process as a litigation avoidance mechanism.  The goal, it appears, is to do the least possible in order to minimize the risk of litigation, while frequently avoiding any accountability for maladministration, negligence, or even misfeasance in statutory decision-making.

This grievance presents the Chief of the Defence Staff (CDS) (or her delegate) with an opportunity.  She can demonstrate that the CF grievance process is a truly remedial and transparent mechanism that will contribute to accountability and recognition of harm.  Or … she can retreat to the safety of opaque, trite, and meaningless sophistry, the sole merit of which is seemingly to minimize the CF’s and Crown’s exposure to litigation.  And perhaps not even that.

I have described previously how frustrating it can be for CF personnel (and former personnel) to draft representations or responses to synopses when one can reasonably discern intransigence and closed-mindedness in the approach adopted by CF decision-makers.  Many of my clients have described such experiences.  And when I tell them that I can sympathize … believe me, I can sympathize.

And I am, arguably, better able to marshal the necessary arguments in such processes than many of my clients.  But that doesn’t mean that I am free of the crushingly discouraging circumstances that many grievors (and other CF personnel who feel the weight of asymmetric statutory powers) encounter.

Yesterday, I offered a brief summary of the status of this grievance and the synopsis that I received in mid-January.  In today’s Blog post, I will attempt to explain how this grievance tends to demonstrate that the focus of the CF grievance process is frequently not upon offering meaningful remedy for CF grievors.  Instead, the focus is on minimizing risk of litigation and reducing accountability on the part of CF decision-makers.

 

Scope of Discussion

The synopsis that I provided in yesterday’s Blog post presents several issues that merit discussion.  And these are issues that many CF grievors likely encounter.  While not every grievor will encounter these factors or issues in every grievance, the scope and nature of this grievance and the institutional responses that it has generated over the past 20 years offer potentially useful lessons or observations for many grievors.

Consequently, I will discuss the following factors issues in the context of this specific grievance:

• Characterization of the grievance;
• The cursory treatment of relevant facts;
• The failure to acknowledge the full scope of harm arising from the absence of procedural fairness at first instance;
• The casually dismissive reliance on de novo review as a complete remedy;
• The problematic reliance on the so-called SME (D Med Pol) in the adjudication of this grievance;
• The disingenuous explanation regarding the so-called “SME Report”;
• The insultingly facile justification for the unreasonable delay in the adjudication of this grievance;
• The mischaracterization of the basis for an ex gratia payment (and specious reliance on irrelevant factors); and,
• The utter lack of accountability demonstrated in the adjudication of this grievance.

 

As we progress with the discussion below, it merits remembering that the synopsis is one of the principal documents upon which the final authority will rely.  Of course, when this grievance is adjudicated, as with all CF grievances, the final authority’s “decision letter” – her determination – will expressly indicate that she has reviewed the entire grievance file and has considered all relevant law and policy.  That rote assertion is offered in all grievance determinations.  But the synopsis plays a key role.  Therefore, deficiencies in the synopsis represent potential deficiencies in the process.

Finally, after presenting discussion regarding the above-mentioned factors and issues, I will attempt to present key conclusions or ‘lessons learned’, which may be of value to other CF grievors and, perhaps even policy-makers.

 

Characterization of the Grievance

A common tactic among advocates in adversarial processes is to emphasize factors that support their arguments while minimizing or recharacterizing factors that undermine their arguments.  These characterizations set the stage ofr the subsequent advocacy.

However, the CF grievance process is not supposed to be adversarial.

Yet the synopsis offered for this grievance demonstrates how CFGA analysts can try to shape the decision-making process based upon what they present as “relevant facts”, and by what they omit.  The synopsis offered yesterday excludes several relevant facts.  And I demonstrate below how those omissions are directly relevant to the recommendations that are, or are not, offered.

In fact, the shaping of the grievance by CF analysts can begin with the characterization – or mischaracterization – of the grievance before the “relevant facts” are even discussed.

For example, the synopsis lists three supposed remedies or outcomes requested by the grievor.  The second of these was a supposed request by the grievor that “… the Director Military Careers Administration (DMCA) be directed to close the administrative review (medical employment limitations (AR (MEL)) file”.

That was never requested by the grievor.  At the time of the grievance, the grievor would have had every reason to believe that the file had already been closed.  That was a core issue in the grievance – the AR-MEL process was conducted with little or no input from the grievor.  The Assignment of MEL and the Permanent Medical Category (PCat), which preceded the AR-MEL, was also conducted without involving the grievor.

This is an object example of how grievance staff can “re-interpret” a grievance and, consequently, re-characterize the grievance in a manner that may differ from the way that the grievor communicates or perceives the grievance.  Consequently, grievors should pay particular attention to the manner in which grievance staff – both at the initial authority and at the final authority – characterize the grievance.  This can alter how the grievance is adjudicated.  If a grievor believes that the grievance is being mischaracterized, a grievor should not hesitate to identify the mischaracterization and re-orient the grievance.

I would also suggest that the addition of this supposed ‘requested redress’ is indicative of the perspective of select decision-makers who were involved in the maladministration of this grievance.  As I have indicated previously, throughout the history of this grievance the occupants of the position of Director Medical Policy (D Med Pol) adopted the position that no one else was permitted to question or review their decisions.  Arguably, from their perspective, the grievor sought to ‘re-open’ the AR-MEL.  However, D Med Pol argued that their decision regarding MEL and PCat did not change.  Therefore, DMCA was obliged, as part of the so-called de novo review, to reconsider the AR-MEL, but based upon the same ‘medical conclusions’.

And the final authority in the CF grievance process frequently relies upon the opportunity for de novo review as a crutch in trying to minimize the extent to which CF decision-makers are obliged to recognize or admit to unfair, unreasonable, or bad faith decision-making.  We will discuss the nature of de novo review in greater detail below.

 

Relevant Facts

The synopsis makes passing reference to the fact that the grievor “… belonged to the Area Support Group …”.  The limited statement fails to identify several factors that were materially relevant regarding the impact of the unfair and unreasonable decision-making by Director Medical Policy (D Med Pol).

The grievor was administered by Area Support Unit (ASU) London and was posted to the Advanced Training List (ATL) to pursue studies under the Military Legal Training Plan (MLTP).  The ATL was administered by Director Military Careers (D Mil C).  And D Mil C was responsible for issuing posting messages, among other relevant administration.  Consequently, although the grievor’s immediate personnel administration was conducted by the ASU orderly room, D Mil C, which managed the ATL, would (or ought to) have been involved in, and aware of, the grievor’s administration.  And this is relevant to other factors that were conveniently omitted from the synopsis.

For example, the synopsis mentions that on “… 6 July 2005, the grievor received their posting message with a change of strength date of 15 July 2005.”

The posting message was dated 6 June 2005, not 6 July 2005.  But that is not the principal shortcoming of this superficial statement.  There is far more to that factor than is suggested in this brief assertion.

At the end of February 2005, D Mil C generated a posting message, posting the grievor from the ATL to the Office of the JAG (which would be a logical consequence of the grievor completing legal studies under the MLTP and being Called to the Bar).  Although the posting message was issued and sent (to the wrong unit), it was cancelled shortly thereafter.  The grievor was not informed of any of this at the material time, even though D Med Pol was certainly aware of the decision that impacted this posting message, as were D Mil C and the Office of the JAG.

The grievor was not informed by any of those offices of what was being done regarding his posting until he took the initiative, in May 2005, to contact the then Chief of Staff (COS) for the Office of the JAG to query why he had not received a posting message.  The grievor was sufficiently experienced to anticipate that he ought to have received a posting message sometime in March 2005 for a posting during the Active Posting Season (APS) 2005.  It was only then that the grievor was informed that there was a SNAFU.  This is directly relevant to the harm that was done.

As a result of the broad incompetence of everyone involved (though not the grievor), the grievor did not receive a posting message until 6 June 2005, approximately three months after most posting messages for an APS are typically distributed.  The grievor explained, at several times over the course of the grievance process, how this delay impacted the sale of their home in London, Ontario, and the acquisition of their home in Ottawa, Ontario.  And the maladministration of the grievor’s posting arose directly from the lack of procedural fairness in the decision-making regarding his MEL and PCat.

Moreover, what every decision-maker (and their staff) consistently ignored or minimized throughout the administration of this grievance is that, even if the medical category imposed by D Med Pol initially was reasonable (and it was not), it ought not to have interfered with the grievor’s posting.  The MEL and PCat imposed by D Med Pol would not have affected the posting of a Legal Officer.  And every decision-maker involved in this maladministration knew, or ought reasonably to have known, that the grievor was being posted to the office of the JAG as a Legal Officer.  That maladministration would have been avoided had the grievor received even a modicum of procedural fairness, and, therefore, an opportunity to explain the errors that were being made.  (Although that is no guarantee that any of the decision-makers would have listened with an open mind.)

 

Failure to Acknowledge Harm Arising from a Lack of Procedural Fairness

The synopsis presents an anemic description of the lack of procedural fairness arising in this matter. The analyst observed that the Medical Officer’s notes were not disclosed to the grievor at the time they were made, and before the information was sent to D Med Pol.

However, that description does not adequately capture the full scope of the failure of procedural fairness.  The grievor was given no meaningful disclosure from the point that he met with the Medical Officer (MO) up until decisions were made by D Med Pol and DMCA.  In fact, the grievor was offered nothing until 20 September 2005, after all decisions were made, many of which had an adverse impact on him.  The grievor was deprived of any meaningful opportunity to be involved in any of the several decision-making processes.

At para 12 of the synopsis, the analyst stated:

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.

 

This is true.  And the grievor had emphasized the importance of the “Baker[2] factors” from the outset of the grievance, notwithstanding that successive D Med Pol consistently asserted that they are not subject to these fundamental principles of public and administrative law.

But the limited description offered by the analyst fails to recognize the full scope of the errors arising in the decision-making that led to, and comprised, this grievance.  Certainly, compulsory release from the CF would have had such significant impact that it would certainly warrant a robust content of fairness under the Baker principles.  However, release is not the sole trigger for such consideration.  And this grievance offers an object example of such impact.  Perhaps this was overlooked when the impact on the grievor’s posting was minimized in the iteration of “relevant facts” at paras 4 to 8 of the synopsis.  Or perhaps the full factual context was omitted so that it would not be necessary to acknowledge that the lack of procedural fairness impacted more than just the issue of a potential compulsory release.

At para 13 of the synopsis, the analyst observed:

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.

 

Again, this is correct.  However, the FA must also consider the entire impact on the grievor.  The failure to acknowledge the significance of procedural fairness, not only in this grievance, but in statutory decision-making in the CF generally, is manifested in subsequent comments from the analyst.  At paras 20 and 21, she wrote:

1. 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.

 

Note the orientation of the analysis.  The analyst appears to suggest that, if the grievor had been offered greater procedural fairness, the factor upon which D Med Pol had settled, and from which D Med Pol has consistently refused to budge, could have been better “explained” to me.  That is remarkably condescending.

In other words, the shortcoming in procedural fairness was not that the grievor had been deprived of an opportunity to make informed representations to an open-minded decision-maker.  (And, so that we’re clear, that is precisely the objective of procedural fairness.)  Based upon what the analyst offers, the shortcoming was that the decision should have been better explained to the grievor.  Or should that be “mansplained”?  Is there a physician equivalent to “mansplaining”?

D Med Pol has had multiple opportunities to explain their justification.  The issue is not a lack of opportunity for D Med Pol to explain its justification.  The problems included (but were not limited to): (a) an utter absence of any opportunity for the grievor to make informed representations at the material time of the decision-making process that had an adverse impact (or could potentially have an adverse impact) on the grievor; and, (b) the lack of an open-minded decision-maker.

Paragraphs 20 and 21 of the synopsis are illuminating.  They demonstrate a key deficiency in the CF grievance process (or, at least, how the CF grievance process is employed by institutional decision-makers).  Frequently, the focus of redress authorities and their staff is not on improving the fairness and reasonableness of decision-making.  The focus is not on treating CF personnel fairly and with respect.  The focus is on insulating the institution from litigation and on insulating decision-making from criticism.

For the analyst – and I suggest that it would be fair to assert that this reflects attitudes across the CF grievance decision-making machinery – the purpose of ‘procedural fairness’ is not to ensure that a CF member is permitted to make informed representations to an open-minded decision-maker.  The purpose is so that CF decision-makers can set conditions to justify their decisions and thereby minimize the risk of eventual litigation.  It is a ‘box-ticking’ exercise: “Let’s ensure that we can assert that procedural fairness was achieved so that we can minimize the risks presented by litigation”.

As I explain below, the adjudication of this very grievance is a lesson in how the CF seeks to minimize any admission of fault, while concurrently minimizing the risk of litigation.

 

Casually Dismissive Reliance on de novo Review as a Complete Remedy

At para 14 of the synopsis, the analyst asserted:

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.

 

This is a common refrain in the adjudication of the grievance process.  It is also frequently of limited value.

This assertion is typically made in concert with the judgment from McBride v Canada[3], in which the Federal Court of Appeal acknowledged that de novo review can remedy a previously unfair process.  However, it does not always afford remedy where a decision at first instance was not procedurally fair.  Nor does it magically make an unreasonable decision reasonable.

And in this particular circumstance, the opportunity afforded to the CF to make a de novo review does not remedy the maladministration of a posting that arose 20 years ago (which, again, was conveniently minimized in the recitation of relevant facts in the synopsis).  After all, the final authority (FA) the first time this grievance was determined – specifically, the CDS’ delegate, Colonel Frank Malo, then Director General Canadian Forces Grievance Authority (DGCFGA) – offered a so-called de novo review in December 2016.  It was neither reasonable nor procedurally fair.  The Attorney General of Canada (AGC) did not even try to defend the decision.  And it took over a decade to get to that point.  And here we are, nearly another decade on, and the FA has another ‘kick at the cat’.  And it appears that the analyst is recommending that the FA not even try to remedy the harm done back in 2005.

Nor is the prospect of de novo review in the CF grievance process sufficient justification for unfair and unreasonable decision-making at first instance.  I mention this because a common refrain from senior decision-makers when they trod all over the rights, interests, and privileges of subordinates is: “If you don’t like it, you can grieve it.”

That’s just not good enough.  And it certainly isn’t indicative of effective leadership.

Too frequently, CF decision-makers act with impunity in the administration of the affairs of the CF because they know that their decisions will not be subject to judicial review.  A CF member must first exhaust the supposedly adequate alternative remedy that is the CF grievance process.  CF decision-makers are confident that, by the time the grievance is adjudicated – 3 years later, 5 years later, or 20 years later – they will not be held accountable for any of the maladministration or, in some cases, intentional bad faith decision-making.

In this specific grievance, senior decision-makers repeatedly made unfair and unreasonable decisions.  Various senior personnel within CF Health Services (CF H Svcs) lost the grievance.  At least twice.  Perhaps more accurately: there were two occasions in which they were willing to admit that they lost it.  And this grievance has taken two decades to adjudicate.

Various iterations of D Med Pol repeatedly asserted that they were unwilling to change their mind in this matter.  They asserted in no uncertain terms that no one is permitted to question their decision.  And that arrogant, closed-minded, and harmful mindset apparently continues.  I have seen no admission from any senior CF H Svcs decision-maker acknowledging that they were wrong or that they were closed-minded.  There has been zero accountability demonstrated in this grievance.

 

Problematic reliance on the so-called SME (D Med Pol)

It is noteworthy that the analyst recommends that the FA disregard the continued insistence by D Med Pol that the medical category will not be changed, and that the FA should direct the reinstatement of the previous medical category.  That would grant part of the redress sought.

Nevertheless, the analyst soft-pedals on that issue.  Nowhere in the synopsis does the analyst recommend or conclude that the FA acknowledge that D Med Pol was consistently and repeatedly unreasonable in asserting that the medical category would not change.  Nowhere is there an acknowledgement that D Med Pol was closed-minded.  Nowhere is there an acknowledgement that D Med Pol was fundamentally wrong in asserting that no one was permitted to review his decision.  Nowhere is there an acknowledgement that D Med Pol was fundamentally wrong when asserting that principles of public and administrative law do not apply to D Med Pol’s decisions.

Nowhere is there any acknowledgement of the inherent bias when the FA consults D Med Pol, and only D Med Pol, in determining whether D Med Pol was fair and reasonable in the decision-making at first instance.

And the omission of any such acknowledgements is illustrative of one of the key shortcomings of the CF grievance process.

 

Disingenuous Explanation Regarding the so-called “SME Report”

The rationalization offered at paras 22 and 23 of the synopsis regarding the so-called SME Report is, at best, dismissive of key concerns and, at worst, specious.

In light of the handling of this grievance, senior staff at CF H Svcs have done little to instill confidence in their handling of information.  At the very least, this is another object example of their administrative incompetence.  A grievor could reasonably conclude that the revelations in the synopsis undermine any reassurance that personal information was safeguarded.

Moreover, the SME Report did not include the material upon which it was predicated.  There remains a shortcoming regarding disclosure.  Potentially, the analyst is of the view that, since the recommendation is that FA grant limited remedy, there is little risk in again failing to disclose that information.  And it may well be that the failure to disclose that information won’t make the eventual decision vulnerable.  However, that lacuna was identified 3 years ago, and it has not been remedied.  And, in light of the clear maladministration by D Med Pol (yet again) in this grievance, the failure to provide adequately transparent disclosure and discussion of failings is noteworthy.

 

Disingenuous Justification for Unreasonable Delay

I must admit – when I read paras 24 to 29 of the synopsis, I had to stop and “count to 10”.  I had to count well past 10.  I experienced the same reaction that many CF personnel experience when faced with superficial and disingenuous explanations regarding unacceptable institutional shortcomings and indifference.

I have described the timeline of this grievance previously; I won’t reiterate the detailed timeline here.  I will note that the last representations from the grievor were sent to CFGA on 31 March 2023.  The next development of any merit was the receipt of the CFGA synopsis on 12 January 2026.

The characterization of delay at paras 24 to 29 of the synopsis is objectively disingenuous.  The suggestion that a “… number of factors have contributed to the length of time taken to adjudicate this grievance including periods of limited engagement by all parties …” is facile.  It is akin to victim blaming.

It took over 10 years to adjudicate this grievance the first time.  As I indicated previously, the grievor received the (first) FA decision on, quite literally, his last day in uniform.  That decision arose only after Director General Health Services (DG H Svcs) lost the grievance at least twice and after repeated delays in which medical decision-makers bemoaned the fact that the grievor understood the relevant legal principles arising in this grievance.  Even then, the first decision couldn’t withstand judicial review.  The AGC didn’t even try.

The assertion at para 24 of the synopsis is akin to suggesting that a victim shares responsibility for the misfeasance of the perpetrator.  And let’s be clear: the grievor was a victim of unfair and unreasonable decision-making.  The grievor was a victim of unconscionable delay in the adjudication of his grievance.

The CF grievance process is entirely in the control of the CF.  The Crown-soldier relationship is a markedly asymmetric relationship, and mechanisms such as the grievance process represent a markedly asymmetric exercise of power.  Even if one were to deduct delay ‘attributable to the grievor’, at least three quarters of the 20 years that it has taken to get to this point is attributable to the CF.

The suggestion that “Timeliness challenges in grievance adjudication were not unique to this case” is risible.  Many grievances suffer from unreasonable delay.  I frequently represent grievors who have had to wait in excess of five years for a determination of their grievances.  And some receive decisions that are still unreasonable and unfair.  That doesn’t make such delay acceptable.  And delay of 20 years is egregious.

And I dispute the assertion that “These issues have driven ongoing transformation of the grievance process”.  There has been no meaningful transformation.  The so-called transformation has been akin to reorganizing deck chairs on the Titanic as she sank below the icy surface of the Atlantic.  The CF continues to fall short.  In the Third Independent Review by the Honourable Morris Fish[4], the former Puisne Justice of the Supreme Court of Canada observed that unreasonable delay remains.  The Honourable Morris Fish also acknowledged that the Chief of the Defence Staff (CDS) had issued the “Directive for Canadian Armed Forces (CAF) Grievance System Enhancement” on 3 March 2021.

I note, tangentially, that rampant delay in the adjudication of CF grievances had also been described in the First Independent Review[5] by the late Chief Justice Antonio Lamer in 2004, and again in the Second Independent Review[6] by Justice Patrick LeSage in 2012.  And I would hazard a guess that the Fourth Independent Review (which, if it complies with s 273.601 of the National Defence Act (NDA), will have to be completed by Spring 2028) will again identify ongoing delay in the CF grievance process as a key failing.  And I say that because “improving the CF grievance process” has largely been a sham.

In the grievance that I mentioned in yesterday’s Blog post, my client had initially submitted his grievance in January 2018.  He finally received a determination by the FA in September 2024, 6 ½ years later.  And the grievance had been with the FA for 6 years.  That was well after the CDS had issued his Directive for the so-called enhancement of the CF grievance process.  And the determination that my client received was quashed by the Federal Court because of a lack of fairness.  The decision was also unreasonable, but the AGC did not even attempt to defend the decision, because the failure of fairness was so apparent.

Another client of mine recently submitted a grievance to an initial authority (IA), Director General Military Careers (DGMC).  DGMC is one of the two Directors General who receives the greatest number of grievances, second only to Director General Compensation and Benefits (DGCB).  That is principally because complaints about pay and benefits and complaints about career decisions constitute subject areas that will, understandably, generate significant numbers of grievances.  My client was informed that their grievance would be subject to significant delay, as it was “number 32” in the sequence of grievances that the relevant grievance analyst would address, and the analyst could not offer a date when they would get to that grievance.  The analyst also indicted that they were the only analyst working in the DGMC grievance section.

Contrary to assertions by select senior CF decision-makers and their spokespeople, sufficient resources are not being assigned to the adjudication of grievances.  And I will posit a theory about what is actually being done.  I will acknowledge that much of what I will suggest is speculative.  I do not have direct evidence of what specific decisions these decision-makers have made, or why they have made them.  Nor could I conceivably obtain such information.  We are forced to draw conclusions based upon inductive reasoning and speculation.  But this speculation is predicated on over 20 years of working as a lawyer in this field, both in, and out of, uniform.

CF decision-makers don’t like dealing with grievances.  It’s not sexy or exciting work.  These matters frequently involve high levels of dissatisfaction.  And, in some cases, grievors can be perceived as querulous or as people trying to ‘game the system’.  Inevitably, some are.  Some grievances have great merit.  Some grievances have some merit.  Some grievances have little or no merit.  But adjudicating grievances is a leadership function, just as “selection and maintenance of the aim” or “maintenance of morale” are leadership functions.  Indeed, the adjudication of grievances is part of that latter function.

An IA has four months to consider and determine a grievance.[7]  If the IA fails to do so within that limitation period, the grievor may request that their grievance be forwarded to the FA for consideration and determination.[8]  And the FA does not face a limitation period.

I’m going to suggest that many IA are all too happy to forward a grievance to the FA.  And one of the surest ways to encourage a grievor to request that a grievance be forwarded to the FA is to assign limited resources to one’s own grievance section and indicate to grievors that there will be considerable delay before you can adjudicate a grievance.

It is unlikely that data on grievance adjudication plays a key role in the performance appraisal of Colonels and General/Flag Officers.

Consequently, if the FA finds “… that known issues regarding timeliness within the CAF grievance system are being addressed and improvement efforts are ongoing …” I will be inclined to call the FA out on such nonsense.

No reasonable or sane person could possibly conclude that this grievance was adjudicated in a timely manner.  Even the unfair and unreasonable determination that was handed down in December 2016 wasn’t timely.  And the FA does not get to ignore that it took another decade for the FA to benefit from its “mulligan”.  Ultimately, even if the CF were addressing delay in a meaningful manner (and there is compelling evidence that it is not), this grievance was manifestly not adjudicated in a reasonable amount of time.

And this unreasonable delay is relevant to the next issues I discuss below.

 

Mischaracterization of the Basis for an ex gratia Payment

The analyst recommended that the FA not grant any ex gratia payment.  The justification for this recommendation falls short of presenting compelling reasons.

At para 30 of the synopsis, the analyst refers to the Treasury Board’s Guide to Ex Gratia Payments and Honorariums[9] and offers the following para from that Guide, which describes an ex gratia payment as:

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.

 

That’s all well and good, but that is not the appropriate policy to cite.  And this passage does not appear in the policy that does apply.

And it is not entirely certain which policy is being cited.  There are two very similarly named policies: the Treasury Board “Guide to Ex Gratia Payments and Honorariums”, purportedly published via Portable Document Format (PDF) on 30 May 2022 and a Treasury Board “Guide to Ex Gratia Payments, Honorariums and Gifts”[10] published 22 November 2019, amended 20 June 2024, replacing the “Guideline on Claims and Ex Gratia Payments” dated 1 October 2009.

There are some subtle differences between these two documents.  Clearly, the publication dates differ.  There are also marked similarities.  For example, paras 3.2 of both policies concern “Considerations for issuing an ex gratia payment”.  However, the “Guide to Ex Gratia Payments and Honorariums” lists five considerations, while the “Guide to Ex Gratia Payments, Honorariums and Gifts” lists six.  The additional consideration, not found in the former policy document is: “ex gratia payments should be considered only in situations of loss or incurred expenditure”.  This additional consideration is contradictory in light of the other considerations.

Both of these Treasury Board Guides (which, frankly, appear to be the same Guide, with discrete differences arising from multiple publication across different platforms) are predicated upon Order-in-Council (OiC) 1991-8/1695, which appears is an Appendix to each of these policies.

OiC 1991-8/1695 does not empower the Chief of the Defence Staff (CDS) to award ex gratia payments.  And the paragraph cited by the analyst, and which I reproduce above, is not found in, and does not apply to, the relevant Order in Council that does empower the CDS to award ex gratia payments.

The relevant policy is OiC 2012-0861, which grants the CDS the authority to award ex gratia payments when acting as the FA in the CF grievance process.  I acknowledge that there is some commonality between the broader Treasury Board policy cited by the analyst, and the narrower policy under OiC 2012-0861, particularly in terms of the conditions imposed on the exercise of this power.  However, if someone is going to suggest that a power not be used (or, alternatively, that it should be used), then the appropriate power should be discussed.

OiC 2012-0861 directs that the Treasury Board may assign conditions to the CDS’ power to award an ex gratia payment.  But, unlike the Treasury Board Guide cited by the analyst in the synopsis, those Treasury Board conditions are not notoriously published.  Why is that?

Fortunately, these conditions are listed in an Annex to the Federal Court judgement in Stemmler[11].  Or, perhaps more accurately, the conditions, as they existed in 2016, are listed in that Annex (along with the relevant OiC).

Even though the analyst refers to the Treasury Board Guide, what the analyst appears to cite at para 30 of the synopsis (after presenting a paragraph that is not found in OiC 2012-0861 or its Treasury Board conditions) are the fourth and fifth conditions created by the Treasury Board for OiC 2012-0861 and mentioned at para 19 of Stemmler.

What is interesting about those conditions is that they appear to have been designed to make it practically impossible to use the ex gratia power for any remedy.  In other words, I contend that this power was designed never to be used (notwithstanding that it has been used, in very few circumstances).  I have addressed this phenomenon in scholarship that was published a couple of years after OiC 2012-0861 was created.[12]  I have also presented my observations in the following Blog post:

Rory Fowler, “Grievance Myths – A Remedy for Canadian Forces Personnel?” (28 July 2021), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/grievance-myths-a-remedy-for-canadian-forces-personnel/>

 

Since I have already addressed that issue in my Blog, I won’t repeat the entirety of my analysis here.  However, as I say, this power has been used, though in limited circumstances.  It was used in Stemmler.  And, to the best of my knowledge, it has been used in at least two other circumstances.  However, my attempts to obtain information relating to its use have been frustrated by some disingenuous responses to requests under the Access to Information Act[13].

I submitted a request under the Access to Information Act for information pertaining to the use of this power since it was created in 2012.  After several months of prevarication and double-speak from various representatives of the DND, I was informed that the information was protected as a Cabinet Confidence.  That justification is utter rubbish.

To be clear: I was seeking information regarding the use of this power by the CDS: e.g., dates when it was used, amounts awarded, and justifications offered.  Certainly, I would not be permitted to be informed of the identity of the recipients.  That would constitute personal information as defined under the Privacy Act.  However, that information could easily be redacted.  The CF and DND are very enthusiastic at redacting information.  They even redact information that they should not redact in response to requests under the Privacy Act and the Access to Information Act.  But the information that I was seeking does not constitute a Cabinet Confidence.

Arguably, the Memo to Cabinet and the related staff work that precipitated OiC 2012-0861 could be characterized as a Cabinet Confidence.  However, I was not seeking that information.  I was seeking information regarding when the CDS employed the power granted to the CDS by the Governor in Council.  That does not constitute a Cabinet Confidence; it is an exercise of public power conferred on the CDS.

Either the representatives of the Crown failed to understand what constitutes a Cabinet Confidence – which, frankly, is difficult to believe – or they adopted a manifestly disingenuous interpretation of the term in order to refuse to disclose information when they could not actually justify refusing to do so.  In light of the several and repeated examples of circumstances when the federal government has improperly refused to disclose information sought by journalists and others, this is particularly easy to believe.

Returning to the case in hand, having cited two key Treasury Board conditions imposed on the CDS when exercising the power granted under OiC 2012-0861, the grievance analyst then proceeded to identify irrelevant factors for recommending that the FA decline to exercise the ex gratia power under OiC 2012-0861.

And I get the distinct impression that the analyst believes that they were being clever in using the grievor’s representations to justify the conclusions offered.  After all, in several representations, the grievor listed his ‘employment’ history over the course of the two decades that this grievance has languished in the hands of CF authorities.  So, in paras 31 and 32 of the synopsis, the analyst lists those “accomplishments” and concludes that “… There is no evidence to support the requirement that a loss occurred …” and “… The grievor has not demonstrated they incurred a loss as a result …”.

These conclusions are perplexing for a couple of reasons.

First, it appears that the analyst completely ignored the principal reason why the grievor argued that an ex gratia payment was merited.  In his representations dated 31 March 2023, the grievor indicated that an ex gratia payment could be justified based on: (a) the fact that it took so long to determine the grievance in a fair and reasonable manner; (b) the fact that it took over a decade to adjudicate the grievance the first time around and that the determination was so flawed that the AGC didn’t even try to defend it; and, (c) the marked level of closed-minded intransigence by CF statutory decision-makers that was transparently on display in this grievance.

And intransigence was clearly on display.  Certainly, the analyst avoids acknowledging that factor in the synopsis.  But, in light of the recommended outcome – that the FA direct that the medical category be reverted to its original state – the only reasonable conclusion is that D Med Pol, who continued to insist, right to the bitter end, that the medical category would not be changed back to what it once was, was utterly closed-minded and intransigent.

I contend that the analyst only reluctantly acknowledged what the grievor has been arguing for 20 years because it was abundantly clear that the grievor would, and could, litigate this ongoing intransigence.

The grievor was not seeking compensation for pecuniary loss.  And the reason why the grievor was not seeking an ex gratia payment for pecuniary loss ought to be manifestly clear to anyone with any understanding of the FA’s power to award an ex gratia payment.  It might not be clear from the synopsis, because the analyst conveniently omitted the third condition imposed by the Treasury Board:

(c) a legal opinion is received that states that there is no legal liability on the part of the Crown; …

 

When read in conjunction with the two conditions that the analyst does provide, it is fundamentally clear that this ex gratia power cannot be used to compensate CF personnel for actual or perceived loss due to the liability of the Crown.  Nor can it be used to compensate for perceived gaps in any regime.  Since CF personnel are not in privity of contract with the Crown[14], statutory regimes are the principal tool governing compensation for CF members.

This is one of the reasons why I have argued that the ex gratia power granted to the CDS in 2012 was designed to be a shibboleth.  It was designed to resemble a remedy – so that people like the Minister of National Defence can point to it as a remedy in the face of criticism from the DND/CF Ombudsman – notwithstanding that it was a remedy that could never be used if the relevant decision-makers actually complied with the constraints imposed on them.

Arguably, on the rare occasions when the CDS might choose to rely on this power, there is limited risk that someone would contest the exercise of that power and suggest that it should not be used.  But, if the CDS did not wish to use it, she need merely assert “… that would be gap filling …” or “… you are seeking compensation for loss …”.  Nevertheless, it appears that the CDS, as FA, has resiled from using this remedy, notwithstanding select examples of use in the years immediately following the granting of this power.  One speculates whether the CDS may have been told not to use this power, or may have otherwise resolved not to use it, notwithstanding that litigators representing the AGC will still frequently cite this nebulous remedy in pleadings.

That’s one of the reasons why the analyst’s explanation appears odd, if not surprising.

And I am not surprised by the disingenuous nature of this portion of the analysis.  This type of analysis is simply part of the broader legerdemain of double-speak arising in the CF grievance process whenever any CF member seeks any form of compensation.  And one subject that merits a Blog post of its own – and one that I intend to address at some time in the future – is the tactic and methodology that the CF has begun to employ in the past few years when any grievor asserts that they have suffered loss as a result of maladministration.

When I discussed this grievance a year ago (on its 19^th birthday),[15] I alluded to the argument routinely advanced by the AGC regarding the supposed all-encompassing remedy offered by the CF grievance process.  Whenever any CF member seeks a remedy before the courts without first exhausting the CF statutory grievance process (and, often, after they have exhausted the CF grievance process), the AGC routinely seeks to dismiss or strike actions and applications based upon the argument from the judgment in Jones v Canada, (1994) 87 FTR 190, 51 ACWS (3d) 1271 (FC TD) [Jones] that the CF grievance process:

… accommodates any and every wording, phrasing, expression of injustice, unfairness, discrimination, whatnot.  It covers everything.  It leaves nothing out.  It’s exhaustively comprehensive.^[16]

 

This sentiment was reinforced by the Federal Court of Appeal in Anderson.[17]

The judgments in Jones and Anderson have been relied on for 30 years to justify AGC motions to strike or dismiss actions and applications brought by CF members.[18]  They have been used to justify the CF grievance process as not only an “adequate alternative remedy”, but also an exhaustively comprehensive remedy.  The problem is that, in the 30 years since these judgments were handed down, a lot has changed, including the down-grading of the final authority in the CF grievance process from the Governor in Council to the CDS.  Unlike the Governor in Council, the CDS cannot offer compensation or damages for loss incurred by a claimant.  And, arguably, the ex gratia power conveyed by OiC 2012-0861 cannot be used to award compensation.

And the tactic that the CF has employed in the last few years to try to close that gap, while refusing to acknowledge that there is a gap, merits greater scrutiny.

However, that factor need not be examined for the present grievance, as the grievor did not argue that he suffered a loss that must be compensated by the Crown by virtue of liability under tort.  And the reason why the grievor did not raise that argument was because the grievor was aware that the CDS cannot grant damages or other payment to compensate for such loss.

It was the analyst who raised the issue of pecuniary loss.

And, at para 33 of the synopsis, the analyst offered another mischaracterization of the grievor’s argument.  The analyst asserted that “The FA may find that a residence purchase is a personal decision outside of the public interest and is neither urgent nor exceptional.”  Putting aside that the analyst relied upon wording that is not found under OiC 2012-0861, this assertion ignores the relevant context.

The grievor had argued that his posting from London, ON, to Ottawa, ON, was frustrated by the maladministration of his Medical Category, which led to maladministration of his posting.  The grievor demonstrated that it was an incontrovertible fact that his posting during APS 2005 was directly and adversely affected by the maladministration arising from unreasonable and unfair decision-making.  Even if the Medical Category had been identified correctly, it ought not to have affected the posting.

And this analysis turned on ‘relevant facts’ that were omitted from the synopsis.

The grievor’s posting message arrived late.  And it arrived late because of maladministration of his Medical Category.  The grievor was obliged to move to Ottawa.  He was obliged to sell his home in London, On.  The grievor was obliged to acquire a new residence in Ottawa.  There is nothing “perceived” about that reality.  And it is markedly unreasonable to suggest that this was a “personal decision”.  The relocation was adversely affected by maladministration by CF statutory decision-makers.  And it has taken 20 years for even a modicum of recognition of the unfair and unreasonable decision-making that precipitated this maladministration.

 

Utter Lack of Accountability

In addition to unconscionable delay, the other significant shortcoming arising in this grievance is the utter lack of accountability for maladministration and deficient decision-making.  And there has been a great deal of both.

The grievor was given no procedural fairness when his Medical Category was changed.  After 20 years of delay in the CF grievance process, the analyst assigned to this matter has, reluctantly, recognized that the decision was not only unfair, but unreasonable (although the analyst couched that conclusion in a particularly non-committal manner).

Assuming that the FA adopts the recommendation to revert the grievor’s Medical Category back to what it was, that will not address the intransigence and closed-minded approach of D Med Pol regarding this grievance over the past two decades.  It will not address the lack of accountability for the CF decision-makers who lost the grievance.  It will not address the lack of accountability for the initial unfair and unreasonable FA decision.  It will not address the lack of accountability for the unconscionable delay in the adjudication of this grievance.

Were one to rely solely or principally on the synopsis, one might conclude that accountability is not a priority in this grievance.  Certainly, it will be difficult for the CDS to hold any of the relevant decision-makers accountable.  Most (if not all) of them are no longer under the CDS’ authority.  That is one of the reasons why an ex gratia payment would be appropriate.  It would be a means of recognizing the institutional accountability.  And that certainly is in the public interest.

Unfortunately, if one were to rely solely or principally on the synopsis, one might conclude that there is no need to focus on accountability.  The synopsis is an object example of minimizing and deflecting institutional responsibility.

I regularly represent CF personnel who are “held accountable” for what are minor breaches of discipline or misconduct.  And, frequently, they are punished using administrative processes, not the Code of Service Discipline.  [And despite assurances by CF decision-makers that these administrative actions are not being employed as punishment, that is precisely how they are frequently employed.]   But, regardless of whether CF personnel are punished using the Code of Service Discipline or administrative processes (such as Remedial Measures under DAOD 5019-4), a consistent theme is the importance that the CF members acknowledge their shortcomings and demonstrate accountability.

And any CF member who has the temerity to offer “full answer and defence” is typically labelled as not demonstrating sufficient contrition, remorse, or accountability.  The consequence, frequently, is that they are dealt with even more harshly under disciplinary or administrative regimes.  Frankly, even when they demonstrate contrition and remorse, they run the risk of not being sufficiently effusive.

I have had clients, charged with service infractions, who admitted to some of the alleged wrongdoing, but challenge allegations that were vague or exaggerated.  And, as a result of insufficient self-flagellation, they were subjected to the most severe form of punishment under the so-called Military Justice at the Unit Level (MJUL): reduction in rank.  Ironically, in some circumstances, the “Officers Conducting the Summary Hearing” (OCSH) who imposed that sanction – the most severe sanction available in the MJUL – failed to provide intelligible and transparent reasons for imposing that sanction.  They failed to demonstrate why a lesser sanction was inadequate or even turn their minds to considering lesser sanctions.  Instead, they sought to “tent-peg” the accused in the name of ‘accountability’.

When an OCSH failed to perform their functions reasonably or fairly, the ‘accused’ would often be inclined to seek statutory review.  And when the subsequent review authority also failed to exercise their powers fairly and reasonably, and the decision of the review authority was quashed by the Federal Court[19], there were no efforts to hold those officers accountable for their shortcomings.  Instead, the focus was on bolstering the decision against any subsequent judicial review.  If that sounds familiar, that is because the same thing has arisen in the present grievance, and frequently arises in grievances.

Recently, when the Commandant of the Canadian Army Command and Staff College was removed from his command position by Lieutenant-General Mike Wright, a spokesperson for the CF stated:

This decision follows a loss of trust in (Auld’s) ability to command…  Senior leaders in the Canadian Army are held to standards commensurate with the trust placed in them. When those standards are not met, decisive action is taken to protect the integrity of our institutions and the confidence of our people.[20]

 

[Interestingly, after publicly announcing the name of the officer in question, the adverse decision that was made, and asserting that it was due to a “loss of trust in [his] ability to command”, the spokesperson then asserted that “As this is a personnel matter, no further information will be released at this time”.  So … just enough information will be released to publicly shame the officer.]

Do those standards apply to everyone?

Because I have encountered some pretty sub-standard statutory decision-making from senior CF personnel, and there do not appear to have been any consequences for their shortcomings.  This arbitrarily selective approach to accountability is why so many CF personnel view statutory decision-making in the CF as capricious.  This gives rise to impunity.  And it is toxic to morale:

Rory Fowler, “(It’s) the Impunity, Stupid” (9 April 2021), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/its-the-impunity-stupid/>.

 

Conclusion and ‘Lessons Learned’

In this grievance, the CDS, or her delegate, has an opportunity to do the right thing.  She has an opportunity to recognize the harm done as this grievance languished within the CF grievance regime.  She can demonstrate that the CF grievance process is a truly remedial and transparent mechanism that will contribute to accountability and recognition of harm.  Or, she can retreat to the safety of past practice.  She can focus on doing the minimum to avoid litigation.

I suspect that it will be clear to the CDS that maintaining the status quo regarding the grievor’s PCat is the path to further litigation.  And the grievor will succeed with that litigation, as the position maintained by D Med Pol for the past 20 years is unreasonable, and, therefore, untenable.  Consequently, the CDS can, and likely will, direct that the grievor’s PCat will revert to what it was prior to 2005.  D Med Pol probably won’t like that, but the CDS is unlikely to criticize D Med Pol, because that won’t be necessary if a minimalist approach is adopted.

That would represent the minimum.  If that is all that the FA does, it will illustrate that the institutional intent for the CF grievance process is to mitigate against litigation and not deliver true remedies for aggrieved CF members.  It will signal that the CF grievance process is not about ensuring accountability.  It will signal that the focus is about doing the least necessary to avoid litigation.  In other words, it will be indicative that the standard of performance is the minimum standard.

I’m not certain that I have much confidence in an armed forces that strives for the minimum standard.

Alternatively, the CDS can signal that she believes that the CF grievance process is about offering remedies to CF personnel who are aggrieved by maladministration, who are aggrieved by closed-minded and intransigent decision-making, who are aggrieved by a failure to act in a fair, reasonable, and timely manner.  The CDS can signal that people will be held accountable.

On 30 October 2025, the CDS issued a tearful apology for systemic racism in the CF, acknowledging past failures and committing to eliminating barriers.[21]  The apology was part of a negotiated settlement for a class action initiated by those who were victims of racism in the CF.[22]  That negotiated settlement required an apology, not tears.  I know that some people have criticized the tears as merely performative theatre.  I have no way of knowing whether the tears were genuine or not.  But, if we assume that they were genuine, then presumably the CDS is concerned, both personally and professionally, that systemic failures adversely impact the morale, efficiency, and effectiveness of the CF.

In this grievance, D Med Pol and the CF grievance process failed the grievor.  By any reasonable measure, even if the CDS acknowledges the merit of what the grievor has been arguing for the past 20 years, that outcome is cold comfort and largely meaningless.  It does not recognize the harm arising from delay and intransigence in this grievance.  It does not reinforce accountability.

I have been very public about this grievance.  A reasonable person could likely conclude that I will be very public regarding its outcome.  And the manner in which the CF grievance process will be depicted will turn predominantly on whether the CDS views the CF grievance process as a litigation avoidance mechanism, in which statutory decision-makers provide the minimum necessary to avoid litigation, or whether she views the CF grievance process as a true remedial tool.

Nevertheless, this grievance offers lessons for CF personnel (and former personnel) who are obliged to rely on the CF statutory grievance process to seek remedy for decisions, acts, or omissions that cause harm:

• Pay attention to the characterization of your grievance. Be as clear and as precise as possible.  And pay attention to attempts by staff and decision-makers who may attempt to alter the characterization of your grievance.

 

• Be clear and precise regarding the remedy or remedies that you seek. As your grievance progresses, if circumstances change or new relevant facts are discovered or arise, consider whether you need to modify the remedy sought.  You may encounter “push-back” from grievance staff or decision-makers if you do so.  But changes in circumstances can warrant changes in remedy.  Be prepared to justify any changes you seek.

 

• Identify the relevant issues and why they are materially relevant to your grievance.

 

• Be assiduous with documentation. Maintain your own records, which should mirror your grievance file.  Keep it organized.

 

• Educate yourself on the relevant law. Retaining counsel can be expensive.  Only you can determine whether the assistance of counsel is worth the cost.  The unfortunate reality is that the likely outcome for the grievance described above was driven, in part, by statutory decision-makers realizing that the grievor had both the capacity and the grounds to seek judicial review of the FA decision.  Not all grievors will be viewed in a similar manner.  But, if you do retain counsel to assist with your grievance, you should be prepared to expend the funds necessary to retain counsel for subsequent litigation.  And that will prove to be more expensive than assistance with a grievance.

 

• Understand that the grievance authorities will inevitably rely on the argument that the grievance offers a de novo review, and will argue that this will remedy any procedural failing in the decision at first instance. Scrutinize the extent to which this is true.  A de novo review does not necessarily make an unreasonable decision reasonable.  It may be that the de novo review will identify relevant factors that were not previously identified in the impugned decision-making.  This ‘new information’ might provide a justification for the decision.  But you should pay attention to why such information was not identified previously.  And be prepared to explain why a lack of procedural fairness at first instance can be a source of harm.  Often, decisions are time- or circumstance-sensitive.  Sometimes, a fair decision 5 years later will not remedy the harm done at the material time.  Be prepared to explain why timeliness matters.

 

• Scrutinize analysis closely; but, focus on key factors that materially affect the determinative issues in the grievance. Some grievors fall into the trap of arguing minutiae, even when such considerations do not affect the relevant issues, or do not affect them in a significant fashion.  Lengthy representations can bury your key arguments.

 

• Remember: the next step after determination by the FA is an application for judicial review before the Federal Court. Grievances are generally reviewed on a standard of “reasonableness”.  This is a deferential standard of review.  The FA is not obliged to make the “best” decision, or the “most appropriate” decision.  It need only be “reasonable”.  A reasonable decision is one that is justified, transparent, and intelligible, based on a logical chain of analysis rather than arbitrary reasoning. It aligns with the facts and legal constraints, falling within a range of possible, acceptable, and defensible outcomes.[23]  If you seek judicial review, you will succeed only if you can demonstrate that a decision is unreasonable and/or procedurally unfair.  Even then, a successful application will simply give the CF a “mulligan” – the grievance will be remitted to a new decision-maker.

 

• And the decision-makers involved in the adjudication of grievances (or their legal advisors) are acutely aware of the challenges and obstacles that I describe above.

 

• Understand that, from the outset, there will be an institutional reluctance to acknowledge that a decision was unfair and/or unreasonable. Arguing “institutional bias” often fails.  There are several reasons for this, including the difficulty in proving actual bias.  In the grievance discussed above, the grievor benefitted from the fact that some correspondence (which was provided only after the first FA decision was made) offered compelling grounds that the FA relied unreasonably on the collaboration of the impugned decision-maker (D Med Pol) in generating the first FA determination.  It is uncommon for grievors to be able to identify compelling evidence of closed-minded decision-making.

 

 

[1] In the discussion offered in this Blog post, I will generally refer to the grievor in the third person.  This can appear to be a contrivance, since I am very clearly the grievor. I do so to highlight that the focus of this Blog post is not me, or my grievance, but, rather, the lessons that can be learned from the administration of this grievance.

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

[3] McBride v Canada (National Defence), 2012 FCA 181 [McBride].

[4] 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>.

[5] Rt Hon Antonio Lamer, PC, CC, CD, “The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c.35” (3 September 2003).

[6] Patrick J LeSage, CM, O Ont, QC, “Report of the Second Independent Review Authority to The Honourable Peter G. MacKay, Minister of National Defence” (December 2011).

[7] QR&O, art 7.15(2).

[8] QR&O, art 7.15(4).

[9] Treasury Board, “Guide to Ex Gratia Payments and Honorariums”, (30 May 2022): Government of Canada Catalogue Number: BT22-224/2-2020E-PDF.

[10] Treasury Board “Guide to Ex Gratia Payments, Honorariums and Gifts” (20 June 2024), online: <https://www.tbs-sct.canada.ca/pol/doc-eng.aspx?id=32647&section=html>.

[11] Stemmler v Canada (Attorney General), 2016 FC 1299.

[12] Rory G Fowler, “The Canadian Forces Grievance Process: How Adequate an Alternative Remedy Is It?” (2014) 27 Can J Admin L & Practice 277, 298 to 300.

[13] Access to Information Act, RSC 1985, c A-1.

[14] Gallant v The Queen In Right of Canada (1978), 91 DLR (3d) 695 (Fed Ct, Trial Div).

[15] 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/>.

[16] Jones v Canada, (1994) 87 FTR 190, 51 ACWS (3d) 1271 (FC TD) [Jones], para 9.

[17] Anderson v Canada (Armed Forces), [1997] 1 FC 273 (CA) [Anderson].

[18] Rory Fowler, “Motions to Strike/Dismiss Applications and Actions by CF Personnel” (28 January 2025), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/motions-to-strike-dismiss-applications-and-actions-by-cf-personnel/>.

[19] For example: Wiome v Canada (Attorney General), 2025 FC 257.  See also: Noonan v Canada (Attorney General), 2023 FC 618, for an example of institutionally embedded decision-making that was inconsistent with the relevant legal regime, and for which none of the relevant decision-makers were ever held accountable for their errors.

[20] David Pugliese, “Commandant of Canadian Army staff college removed from his position” (3 March 2026), online: Ottawa Citizen <https://ottawacitizen.com/public-service/defence-watch/commandant-canadian-army-staff-college-removed>.

[21] Annie Bergeron-Oliver, “Military apologizes for racial discrimination: ‘We failed you’” (30 October 2025), online: CTV News <https://www.ctvnews.ca/canada/article/military-apologizes-for-racialized-discrimination-we-failed-you/>.

[22] A.B. v Canada, 2025 FC 282.

[23] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, paras 99 to 101.