Barriers to Legal Representation – Part III: The Outside Counsel Bogeyman

28 August 2024

 

Why is the Office of the Judge Advocate General (OJAG) afraid of outside counsel?

In the first two Blog posts in this series, I posed, and answered, the underlying question: “Do members of the CF require the assistance of privately retained legal counsel when faced with various statutory decision-making processes?”

The answer – an ambiguous “It depends” – requires the amplification offered by an examination of relevant factors, including: (1) the seriousness or potential impact of the anticipated or actual statutory decision; (2) the complexity of the matter; (3) the nature of the rights, interests, or privileges engaged in the decision-making process; and, (4) the potential second-order effects of the decision.

I also suggested that the over-arching factor that many CF members will likely contemplate is whether they have confidence that the relevant statutory decision-maker will approach the matter with an open mind and will make a fair and reasonable decision.

I then explained how the cost of retaining legal counsel can be a significant barrier.  Equally important is how this cost – of which senior CF decision-makers and their legal advisors will be well aware – can influence second order consequences and factors.  This can drive both the policies that are created under the National Defence Act (NDA), and how they are applied.

The present Blog post, and the one that follows, ask the question: Why is the OJAG afraid of permitting privately retained counsel – so-called ‘outside counsel’ – to advocate on behalf of their clients, individual CF members?  Why do the OJAG, and the CF relevant statutory decision-makers who are advised by the OJAG, push back so hard on permitting ‘outside counsel’ from playing any meaningful role in these processes?

We will examine two specific barriers to a CF member’s reliance on privately retained counsel arising out of policy decisions and actions attributable to the Office of the JAG (OJAG).  Specifically, we are discussing limitations that legal officers in the OJAG (and, sometimes, the statutory decision-makers whom they advise) purport to place on what privately retained counsel may, and may not, do when assisting and representing their clients (i.e., the CF member whose rights, interests, and privileges are engaged by decision-making processes under the NDA).

Below, I describe the policy adopted by the OJAG regarding their insistence that privately retained legal counsel must correspond only with the legal officers in the OJAG when assisting, and advocating on behalf of, their clients.

The fourth Blog post in this series will examine a related position, taken by both the legal advisors in the OJAG and by the statutory decision-makers they advise, consistently prohibiting privately retained counsel from appearing with their clients, as advocates, in viva voce processes such as summary hearings.

 

The OJAG Policy

There is no express public policy from the OJAG regarding communication from lawyers who are often characterized as ‘outside counsel’ and who can be characterized more accurately as counsel retained privately by CF personnel to assist with statutory decision-making processes under the NDA.

By this, I mean that there is no overtly public policy instrument such as those found here: Legal Policies & Directives.   Not all “JAG Policy Directives” are available on this publicly accessible website.  For example, neither JAG Policy Directive 006-00 Professional Standards Review nor JAG Policy Directive 023-02 Ethics Directive are available on this website.  And I am unaware of any location where all JAG Policy Directives are collectively and publicly available.  But, to my knowledge, the two above-mentioned JAG Policy Directives do exist, and they continue to remain in force.  Presumably, they are accessible in an internal database, perhaps accessible only by personnel posted to the OJAG.

I note, tangentially, that, approximately 20 years ago, a JAG Annual Report published a list of JAG Policy Directives that had been created or amended during that reporting period.  However even that JAG Annual Report is not easily found, as the current listing of JAG Annual Reports only extends as far back as the 2008-2009 reporting period.

The JAG may have crystalized his policy regarding “communication with privately retained counsel” in a JAG Policy Directive.  Or, he may have issued direction in another format.  If that is the case, I am not aware of where that policy may be published, and no legal officer with whom I have communicated recently has identified a specific policy instrument.  Alternatively, the OJAG policy on communication with/from so-called ‘outside counsel’ may be the subject of more informal (i.e., less precise) policy direction.

As an aside, when it comes to JAG Policy Directives, I would be inclined to offer this recommendation:  In order to promote transparency and confidence in military law and the administration of military justice, among members of the CF and of the Canadian public, the OJAG should maintain an internet website where all its directives and policies, save those that must be withheld from public view (e.g., if the policy is, and should be, classified), are available.

In any event, I, and other counsel in private practice who might be retained by individual CF members to assist them with statutory decision-making processes under the NDA, continue to receive – with some degree of consistency – assertions by CF legal officers along the lines of:

The Canadian Forces [or, Canadian Armed Forces] is represented in these matters by the Office of the Judge Advocate General (OJAG).  Consequently, any communication from you must be sent to the OJAG.  However, nothing bars the chain of command for [insert name of CF member who retained private counsel] from communicating directly with [him/her/them].[1]

 

Thus, even if this policy is not reflected overtly in a specific JAG Policy Directive, it is clearly a policy position that has been adopted by the JAG and OJAG.

This policy approach is reflected, if obliquely, in CF policy direction such as Defence Administrative Order and Directive (DAOD) 2017-1 Military Grievance Process.  Paras 12.1 and 12.2 of this Directive state:

Legal Advice

12.1 A grievor is not entitled to DND, CAF or Department of Justice legal advice or representation.

Civilian Lawyer or Other Representative

12.2 A grievor may engage a civilian lawyer or other representative at their own expense to assist with their grievance, but redress authorities and their staffs must continue to communicate directly with the grievor throughout the grievance process.

 

The policy does not elaborate on what should be done if the grievor is no longer a member of the CF.  And, as I have observed in the previous Blog posts, delays in the CF grievance process will frequently give rise to circumstances in which a grievor is released from the CF long before his or her grievance is finally determined by the final authority.

In fact – if you’ll permit me a brief tangential observation – one of my clients recently received a grievance determination from General Wayne Eyre, as the Chief of the Defence Staff (CDS) and the final authority (FA) in the CF grievance process.  This decision was provided over 6 ½ years after the grievance was submitted, 6 years and five months after the CF member was released, and nearly 7 years after Director Military Careers Administration (DMCA) made the impugned decision that led to the CF member’s release. [And note that, while it took less than a year to decide to release the CF member, it took over 6 ½ years to review the various flaws in the decision-making process that led to that decision.]

Here’s what the CDS had to say about this delay:

Before I begin my analysis, I would like to extend my regrets for the length of time it has taken to consider your grievance. I note that it was submitted more than five years ago.  You have made it very clear in your recent correspondence that you are not satisfied with the rate at which your file has progressed. I understand and sympathize with you in your frustration. That being said, your allegations of intentional delays and lack of integrity among those involved in your grievance are unfounded and unfair. Resources throughout the CAF are very limited and, unfortunately, CFGA is not immune to these shortages. Nonetheless, you may rest assured that the Director CFGA and his team are taking tangible steps to minimize grievance response times while ensuring that cases are appropriately investigated, considered and adjudicated.

 

That’s nice.  He understands and sympathizes.  These things happen.  Resources are tight.  And, sure, it only took a matter of months to terminate the CF member’s career using a process that relied upon questionable ‘evidence’, and which failed to offer adequate disclosure, but the grievance process made it all better.  It just took a while.  According to the CDS: “… more than five years …”.  Over six and a half years to be precise.

In fact, it took longer than the entire duration of World War II, but that’s OK, because the grievor received a de novo review by the CDS.

Regrettable.  That’s how the CDS described the handling of that grievance.  That’s not precisely how I would describe it.  The way I would truly wish to describe it likely couldn’t be published in this Blog-space – at least, I would risk losing your respect.

And the truly astounding aspect of this example is that it represents the norm, not the exception.  I suppose the exception would be a grievance that takes over 18 years to adjudicate.

My point is this: it is not uncommon for a CF member to be released long before his/her/their grievance is determined by the final authority (or even initial authority).  Since the grievor is no longer a member of the CF, they are no longer subject to a chain of command.  What then?

It’s my understanding that a grievor might then insist that communication be sent to counsel, not the former CF member.  And it is my understanding that, despite the absence of any such direction in DAOD 2017-1, the CF will comply with such a request.  After all, by that point, there is no longer a Crown-soldier relationship.  This is but one of many examples of practices in CF statutory decision-making that are not captured or reflected in published policy.

 

Source of the Policy

So, where would the OJAG policy stance have originated?

A reasonable guess would be the relevant Rules of Professional Conduct for lawyers.

The legal profession, like all self-regulated professions, is regulated under provincial law by virtue of s 92(13) of the Constitution Act, 1867.  And, before anyone suggests that the ‘military profession’ is not regulated under provincial law (principally because the governance of the Militia, Military and Naval Service, and Defence of Canada falls under s 91(7) of the Constitution Act, 1867), I’m going to stop you right there.  That issue will be the subject of a future Blog; however, the position I take is that the military profession is not a self-regulated profession.  It certainly isn’t a self-regulated profession in the manner that lawyers, doctors, nurses, etc. are self-regulated professions.  I take the position that, although the military is certainly regulated (it is one of the most regulated institutions in Canada), it does not constitute a self-regulated profession as that term is typically understood.  Indeed, the CF is a regulated institution, not a profession.  [Oh, and I can hear the naval officers howling from here ….]

But the nature of professional regulation in Canada is such that every Province (and Territory) has its own Bar and its own framework for professional regulation.  The Canadian Bar Association (CBA) developed a model Code of Professional Conduct that served as a useful guide.  Indeed, in JAG Policy Directive 006/00 – Professional Standards Review (which, again, the JAG has not made publicly available), the JAG directed (and directs) that legal officers within the OJAG must comport themselves “… having regard to the principles of professional conduct set out in the Code of Professional Conduct of the Canadian Bar Association.”

However, on 28 January 2010, the CBA discontinued its Code of Professional Conduct, archiving it solely for research purposes. Instead, the CBA supports the Federation of Law Societies of Canada (FLSC) Model Code of Professional Conduct.  [NB: The JAG may wish to update his Policy Directive.]  However, neither the CBA’s now-discontinued Code, nor the FLSC Model Code govern the provincial or territorial Bars.  The Model Code does serve to assist in harmonizing provincial regulation in a profession with national reach.

The Rules of Professional Conduct (or equivalent) of individual provincial law societies (or equivalent) – and by-laws and related legislation – govern the profession of law in Canada.

The example I will use for my discussion are the Rules of Professional Conduct for the Law Society of Ontario (LSO).  I do so because I am governed under these Rules.  So is the JAG, Robin Holman.  So are a significant percentage of legal officers in the OJAG and it is entirely possible that the person who developed this informal policy approach was also a licensee of the Law Society of Ontario.  And I will also refer back to the FLSC Model Code.

So, how did this policy approach arise?

Well, if I had to guess – and, in the absence of any clear, transparent, and public policy document from the JAG, we are obliged to guess – I imagine that someone in the OJAG at some point in time became concerned when privately retained civilian counsel started addressing correspondence to specific decision-makers in the CF.  The recipients of such correspondence may have been commanding officers (CO), initial authorities (IA) or final authorities (FA) in the CF grievance process, presiding officers in the now-defunct summary trial process, or any of a number of other statutory decision-makers.

Those decision-makers very likely then contacted their unit legal advisor for advice and guidance.  That’s typical – a CF decision-maker who receives a letter from a lawyer will invariably reach out to their unit legal advisor.  They may even try to off-load any staff work onto that legal advisor, even though the legal advisor is not a staff officer.  And then someone in the OJAG – possibly a fairly senior legal officer – likely thought “Well, we cannot have this!  How dare ‘outside counsel’ contact our client directly!”  (After all, the senior leaders in the OJAG view the ‘chain of command’ as their ‘clients’, even if that is a bit of an over-simplification of what s 91.1 of the NDA actually states.)

So, said legal officer sat down to devise an institutional response.  I can see it in my mind’s eye: a senior legal officer, sitting over his (or her) computer having a ‘eureka moment’: “Ah-ha … this is just the ticket!”.

And that ‘eureka moment’ may have arisen when the legal officer in question examined Rules such as Rules 7.2-6 and 7.2-8 of the Law Society of Ontario Rules of Professional Conduct (LSO Rules):

7.2-6 Subject to rules 7.2-6A and 7.2-7, if a person is represented by a legal practitioner in respect of a matter, a lawyer shall not, except through or with the consent of the legal practitioner

(a) approach or communicate or deal with the person on the matter; or

(b) attempt to negotiate or compromise the matter directly with the person.

…

7.2-8 A lawyer retained to act on a matter involving a corporation or organization that is represented by a legal practitioner shall not, without the legal practitioner’s consent or unless otherwise authorized or required by law, communicate, facilitate communication or deal with a person

(a) who is a director or officer, or another person who is authorized to act on behalf of the corporation or organization;

(b) who is likely involved in decision-making for the corporation or organization or who provides advice in relation to the particular matter;

(c) whose act or omission may be binding on or imputed to the corporation or organization for the purposes of its liability; or

(d) who supervises, directs or regularly consults with the legal practitioner and who makes decisions based on the legal practitioner’s advice.

 

As an aside, these are very close to what Rules 7.2-6 and 7.2-8 of the FLSC Model Code state, although Rule 7.2-8 of the Mode Code states:

7.2-8 A lawyer retained to act on a matter involving a corporate or other organization represented by a lawyer must not approach an officer or employee of the organization:

(a) who has the authority to bind the organization;

(b) who supervises, directs or regularly consults with the organization’s lawyer; or

(c) whose own interests are directly at stake in the representation,

in respect of that matter, unless the lawyer representing the organization consents or the contact is otherwise authorized or required by law.

 

The amplifying Notes to Rule 7.2-8 in the LSO Rules are much more detailed than the Notes in the FLSC Model Rules, particularly in relation to governments and government departments, and the governmental lawyers who advise the same.

Rule 7.2-8.2 of the LSO Rules indicates that “… ‘organization’ includes a partnership, limited partnership, association, union, fund, trust, co-operative, unincorporated association, sole proprietorship and a government department, agency, or regulatory body.”

On their face, these rules would appear to support the contention advanced by the OJAG, that counsel retained by a CF member must communicate with the OJAG.  And the Notes to these rules provide a degree of amplification.  They indicate that circumstances are not restricted solely to litigation.

However, a problem arises in the context of adjudicative matters such as Administrative Reviews under DAOD 5019-2 or summary hearings within the Code of Service Discipline.  Those processes, we are consistently told, are inquisitorial, open-minded, adjudicative decision-making processes.  And these are but two examples of such processes.  While the decision-makers are CF institutional decision-makers, who are not remotely as independent as military judges, we are assured that they are sufficiently independent and open-minded that they can make fair and reasonable decisions in relation to persons who can reasonably be characterized as ‘vulnerable persons’ in terms of their relationship with the Crown and the CF chain of command.

And let’s be clear: although CF personnel are not technically ‘employees’ and the chain of command is not an ‘employer’ – at least, not in the typical sense of an employment contract – the circumstances are essentially that of a governmental employer adjudicating employment-related matters.  And this extends to disputes arising when a CF member (i.e., employee) disputes decisions by the chain of command (i.e., employer).  And, as we know form the first Blog post in this series, CF personnel are prohibited from forming a combine or a union – the utility of which would inevitably be fettered by the fact that CF personnel are not in privity of contract with the Crown: Gallant v The Queen In Right of Canada (1978), 91 DLR (3d) 695 (FC TD).

These  statutory decision-makers fall within the definition of a “federal board, commission, or other tribunal” under s 2 of the Federal Courts Act.  And we are told, repeatedly, that these are “inquisitorial” processes – i.e., they are supposedly not adversarial processes.

The problem arises when a CF member’s privately retained counsel is obliged to submit representations through legal officers in the OJAG.  In effect, counsel retained by CF members who are subject to these federal boards, commissions, or other tribunals, are not permitted to represent their clients before the same.  They are told that they must submit any representations, on behalf of their clients, to the OJAG.  The process then rather rapidly devolves into an adversarial process, where one of the parties is also the adjudicator.

[As an aside, other bodies created under the NDA, such as the Military Police Complaints Commission – another “federal board, commission, or other tribunal”, notwithstanding that it does not actually adjudicate matters, and only provides non-binding findings and recommendations – do not oblige counsel to communicate only through their General Counsel.]

Returning to the Notes to LSO Rule 7.2-8, the Notes expressly discuss when the institution is governmental.  Notes 17 and 18 are particularly informative:

[17] In addition, the legal branch at the particular ministry is usually considered to always be “retained”. There may be circumstances where the only appropriate action is to contact the legal branch. In all cases, appropriate judgment must be exercised.

[18] In general, rules 7.2-8 to 7.2-8.2 are not intended to

(a) constrain lawyers who wish to contact government officials for a discussion of policy or similar matters on behalf of a client;

(b) affect access to information requests under such legislation as the Freedom of Information and Protection of Privacy Act (Ontario) or the federal Access to Information Act, including situations where a litigant has named the provincial or federal Crown, respectively, as a defendant; or

(c) affect the exercise of the duties of public servants under the Public Service of Ontario Act, 2006 with respect to disclosure of information.

 

Similar Notes are not found in the FLSC Model Rules.  These Notes provide some, if imperfect, amplification.  There is an understandable orientation toward provincial legislation in Ontario.  As in all such matters, the recommendation that “appropriate judgment must be exercised” is often the most useful, if ambiguous, guidance.

Ultimately, however, the LSO Rules are not explicit or definitive about communication when one is dealing with an adjudicative “federal board, commission, or other tribunal”, particularly something such as a summary hearing.

Don’t get me wrong.  Typically, when I am retained by a CF member regarding one or more statutory decision-making processes under the NDA, my initial inclination is to contact the relevant legal advisor.  That inclination is driven by a variety of factors.

First, I often can be confident that the relevant legal advisor will have a good appreciation of the issues involved.  Second, if a matter is sufficiently serious, or the decision-making has become sufficiently problematic, that a CF member is motivated to retain private counsel, despite the significant cost involved, it is likely that engagement from the relevant institutional legal advisor may be necessary or beneficial.  Indeed, if decision-making has taken a problematic turn, that is generally an indicator that the relevant decision-maker (or staff) has not consulted their legal advisor, even though they likely should have (or were even obliged to do so).  Certainly, when I was a serving legal officer, I saw it as helpful when I was informed by third parties if the statutory decision-makers I advised were derogating from well-established legal principles.

Consequently, engaging the relevant legal advisor from the OJAG is often a prudent course of action for a civilian lawyer retained by a CF member.

At least, it used to be.[2]  My confidence in such an approach has diminished, even though there have been occasions when such engagement has proven useful or productive.

First, there is the challenge to which I allude above: it is not always clear who the relevant legal advisor is.  While my own experiences in the OJAG have given me a fairly good understanding of the hierarchy of the OJAG, there have also been some institutional changes since I retired in 2017.  For example, there are now two whole divisions occupied with “Military Justice”.  There is now a new position of Vice JAG – essentially, the second in command to the JAG, leaving Chief of Staff JAG (COS JAG), who was often a de facto ‘second in command’, to perform, well, COS duties.  Some things haven’t changed – from what I can gather, the Administrative Law division is still under-strength and not viewed as a promising field of endeavour.

The problem is that the relevant contact information for these various offices is not publicly available (at least, not for all or most of these offices).  Thus, I am obliged to reach out to those legal officers I know and ask them to confirm (if they are able) the identity of the appropriate legal advisor for a given matter.  If the OJAG wants so-called ‘outside counsel’ to contact them, and not the decision-maker, it would be useful if the JAG provided a public contact list.  And this issue is not a new development.  And the fact that it has not been remedied leaves me questioning whether this is by design.  On one hand, representatives of the OJAG insist that ‘outside counsel’ must contact the relevant legal advisor.  On the other hand, that information is not readily available.

If that were the only obstacle to effective communication, I would not be overly concerned.  But it isn’t.  And over the past few years, I have encountered examples of problematic actions that generate chilling effects when ‘outside counsel’ seek to assist CF personnel whose rights, interests, and privileges are in jeopardy in a markedly asymmetrical power relationship.  And these circumstances are rarely the subject of judicial or scholarly commentary, leaving these issues in the shadows, and largely, and unfortunately, undiscussed.

 

Example #1 – Disparaging Comments about Civilian Counsel

Even now, over 7 years after I retired from the CF and started in private practice, I am still being told by clients and potential clients, that they have been discouraged from retaining counsel.  And, in some cases, they have expressly been discouraged from retaining me.  It doesn’t happen all the time, or even frequently (at least, not to my knowledge).  But it does happen.  And once is too frequently.

And, remember: these are circumstances in which a CF member is considering retaining counsel in order to assist them with presenting arguments that their rights, interests, and privileges, have been infringed.  And these rights, interests, and privileges are established under the Canadian Charter of Rights and Freedoms[3], the Canadian Human Rights Act[4], the NDA, and well-established principles of public and administrative law.  So, make no mistake – such suggestions, implying that retaining counsel generally, or retaining specific counsel, may precipitate adverse outcomes, represents a threat of reprisal.  Whether or not it contravenes art 19.15 of the QR&O is open to debate.  But such ‘suggestions’ are clearly made to have a chilling effect.  And such denigration of private counsel is particularly problematic in the face of the position taken by the OJAG regarding communication between counsel and parties, and between CF personnel, who are represented by counsel, and the chain of command.

The OJAG has, in the past, relied upon the judgment in Honda Canada Inc. v Keays, 2008 SCC 39 [Keays] for the proposition that, while counsel for represented parties must generally communicate with each other, and not the represented parties, the parties themselves are not barred from communicating with each other.  Keays supports the proposition that, if an employee retains counsel, the employee cannot unilaterally compel an employer to communicate with the employee only through counsel.

While CF personnel are not actually employees and are not in privity of contract with the Crown (Gallant v The Queen In Right of Canada (1978), 91 DLR (3d) 695 (FC TD)), the OJAG presumably relies upon Keays analogically – if this applies to an employee and employer, in an asymmetric employment relationship, it would also apply to a CF member the chain of command in the asymmetric Crown-soldier relationship.

However, just as Keays stands for the proposition that represented parties are not barred from communicating with each other, and not through counsel, it also stands for the proposition that one party – particularly the party that exercises coercive or managerial power over the other party – cannot denigrate the hiring of outside counsel.  Para 77 of the judgment is informative:

[77] Finally, the Court of Appeal pointed to Honda’s refusal to deal with Keays’ counsel. There is no legal obligation on the part of any party to deal with an employee’s counsel while he or she continues with his or her employer. Parties are always entitled to deal with each other directly. What was egregious was the fact that Honda told Keays that hiring outside counsel was a mistake and that it would make things worse. This was surely a way of undermining the advice of the lawyer. This conduct was ill-advised and unnecessarily harsh, but it does not provide justification for an award of punitive damages.

 

Evidently, there are still some supervisors in the CF who are telling subordinates that it would be ill-advised to retain counsel, and some have singled out specific counsel, like me, as purportedly detrimental to the CF member’s interests.  And the identities of some of the people whom I am told have offered such suggestions might be alarmingly surprising.  And such threat or reprisal can have a chilling effect.

And that is not the only such example of a chilling effect.

 

Example #2 – The Unhelpful Legal Officer

Two or three years ago, I was retained by a CF member who was transitioning out of the CF due to service-related injuries and disabilities.  One disability, in particular, seriously affected the client’s cognitive processes.  The CF member had been posted to a Transition Unit and sought accommodation from the chain of command in light of the CF member’s cognitive challenges.  In light of the mission statement for Transition Units, one would have thought that the proper response to this request would have been obvious.

Unfortunately, the relevant supervisors reacted in a markedly negative, suspicious, and even hostile manner toward the CF member.  Indeed, this client was dealt with by the chain of command at the specific Transition Unit in a consistently hostile manner.  Among other adverse decisions, they placed the CF member on an ill-considered remedial measure after the CF member pointed out errors that the chain of command had made in administering the CF member’s leave records and in frustrating related requests.  When the CF member grieved these actions, it prompted a Member of the Military Grievances External Review Committee (MGERC) to state:

…I feel compelled to mention the regrettable way this grievor was treated by the CoC at the [Transition Unit] … . I will not speculate on why it happened. It is enough to say that in this member’s last year of service, and during [the CF member’s] time of great need, the support she received from the [Transition Unit] was not what it should have been.

 

In light of the consistently hostile reaction from the CF member’s chain of command at the Transition Unit, including infringement of the CF member’s human rights, the CF member felt compelled to retain counsel at the member’s own cost.  [And, when the CF member sought reimbursement of this expense, the CF member received the expected reply in findings and recommendations from the MGERC that “… there is simply no entitlement for the grievor in these circumstances to be reimbursed for seeking legal advice.” See the previous Blog post on cost as a barrier.]

As counsel, I contacted the relevant unit legal advisor (once I had tracked down who the relevant unit legal advisor was).  I provided a detailed description of what had transpired and the outcome that my client sought.

The legal officer’s response raises three distinct issues that merit further discussion.  Specifically, the legal officer’s response included:

1. An assertion that the communication between us was “without prejudice”;
2. An assertion that he didn’t see the need for lawyers to be involved, since there were no legal issues, only “administrative issues”; and
3. An assertion that the involvement of lawyers was only making the circumstances worse.

 

It would be an understatement to suggest that I was perplexed by the response.  Appalled would likely be more apt.

Part of the response that I received also included a disingenuous re-articulation of the circumstances that I described.  That is to be expected – many legal advisors will feel the need to debate the issues.  However, when they respond in such a fashion, a process that is purportedly inquisitorial in nature can quickly become adversarial.  [And, frankly, such processes are typically viewed as adversarial by the CF member whose rights, interests, and privileges are in jeopardy in a markedly asymmetric relationship.]  I cannot be confident that my arguments are actually being communicated to the relevant decision-maker.  And remember: ‘outside counsel’ like me are consistently told that, if we wish to communicate our concerns to the relevant CF decision-makers, it must be done through the legal officers in the OJAG.

So, let’s look at each of the three issues enumerated above.

Without Prejudice. When I contact legal officers from the OJAG, many (but not all) frequently reply with correspondence annotated with “Without Prejudice” at the top of the letter or email.  And those who reply in this fashion regularly do so when such nomenclature is not warranted and is counter-intuitive.

For the laypersons reading this, the ‘without prejudice rule’ exists in order to prevent statements made in a genuine attempt to settle an existing dispute from being placed before a court as evidence of admissions against the interests of the party that makes the statements.  The rationale behind this rule is that settlement discussions will be facilitated if parties are able to speak freely, secure in the knowledge that what they have said and, in particular, any admissions which they might have made to try to settle the matter, may not be used against them should the settlement discussions fail. Thus, in certain circumstances, when counsel attempt to negotiate a settlement, they will often mark such communication a being “Without Prejudice”, as a means of indicating that the correspondence is part of such settlement negotiations.

There are some exceptions to this rule, and those exceptions often distinguish between settlement negotiations and offers to settle.  For example, most Rules of Civil Procedure for provincial Superior Courts of Justice, will expressly have rules relating to cost consequences when a party makes an offer to settle (typically involving a dollar amount) under the specific rule.  These rules exist to encourage expeditious and reasonable resolution of disputes and to reduce the burden that trials can have on the court system.  These rules typically focus on what some may characterize as a ‘formal’ offer to settle, rather than initial settlement negotiations.

In Ontario, if an offer to settle is made under Rule 49 (“Offer to Settle”) of the Rules of Civil Procedure, and a party declines the offer, there can be consequences regarding costs when the matter is eventually resolved.  For example, Party ‘A’ brings an action against Party ‘B’ claiming $1 million in damages.  Party ‘B’ makes a valid ‘Rule 49’ offer to settle for half that amount: $500,000.  Party ‘A’ rejects the offer and the matter proceeds to trial.  If, at trial, Party ‘A’ succeeds, Party ‘A’ would normally be in a position to seek costs (often partial indemnity costs).  However, if, in this example, Party ‘A’ succeeds, but is only awarded damages of $500,000, then Party ‘B’ would be able to seek costs, even though Party ‘A’ succeeded at trial.  And that is because Party ‘B’ signalled that it was willing to settle for the amount that was eventually awarded.

In Ontario, a valid ‘Rule 49’ offer cannot be made ‘Without Prejudice’ since the Party making the offer intends to rely upon it.

Moreover, the fact that a document is marked ‘Without Prejudice’ is not determinative of it falling within the ‘without prejudice’ rule.  Similarly, the failure to mark a document ‘without prejudice’ is not determinative that it does not represent a ‘without prejudice’ admission.  Such determinations rely upon the nature and content of the communication.

The problem with the use of such nomenclature in correspondence from legal officers from the OJAG, when they are contacted by counsel like me, is that it is often not warranted or used correctly.  When I contact those legal officers, I am typically not negotiating a settlement.  I am advocating on behalf of my client before a statutory decision-maker.  More specifically, I am advocating before someone who may well fall within the definition of a “… federal board, commission, or other tribunal …” as that term of art is defined under s 2 of the Federal Courts Act.

However, because of the JAG’s insistence that ‘outside counsel’ must communicate only with his legal officers, and not the relevant statutory decision-maker, I am obliged to write to them.  And frequently, I receive a response from someone who demonstrates that he or she either does not understand the ‘without prejudice’ rule, or they fail to comprehend that my representations are not part of a settlement negotiation.

In any event, if they believe that they will be able to hide behind the use of the term ‘without prejudice’ on their communication, they are mistaken.

 

No need for lawyers & The involvement of lawyers is detrimental.  Returning to example arising from the Transition Unit, my client sought to meet with the Transition Unit commanding officer (CO) in order to address myriad concerns.  This was my client’s right under art 19,12 of the QR&O.  My client’s attempts to do so were being stymied by several factors.  Some of these factors arose from legitimate concerns during COVID-19 restrictions.  However, some of these obstacles were markedly less justified and represented a degree of ‘gamesmanship’ on the part of statutory decision-makers.  Since my client was not succeeding when communicating with the chain of command, I turned to the unit legal advisor.  He began one of his initial responses by stating:

As I am sure you are aware, the Office of the Judge Advocate General has no ability to demand particular actions be taken by a client unit; our role is advisory in nature.  While I have no reservations in proactively pointing out legal risks to my client, it would be inappropriate for me to insert myself into the daily dealings between a chain of command and its subordinate.  This matter straddles that line, as you are essentially asking me to dictate/facilitate a meeting between a member and [the] commanding officer on … leave administration – a matter that is purely administrative in nature, and has every ability to be dealt with during or after the stay at home order has expired.

 

While I am often inclined to suggest that “nothing surprises me these days”, I was still taken aback by this statement.  It appears that the legal advisor failed to comprehend that I was doing what the OJAG consistently dictates that ‘outside counsel’ must do.  I was communicating my concerns to the OJAG, rather than the commanding officer.

In response the legal advisor essentially indicated that it wasn’t his job to interpose himself in the process, even though I had explained, in detail, how the chain of command was barring my client, on specious grounds, from seeking a meeting with the CF member’s CO.

So, I responded with further elaboration.

The unit legal advisor responded again, after consulting with the chain of command.  Two of the closing paragraphs of his response were disheartening:

All this is to say I believe it’s the involvement of the legal representatives that have unintentionally added friction to the [client-supervisor] working relationship: on one side, [the client] likely feels less inclined or comfortable to speak with [the] chain of command as freely as [the client] may have in the past, and on the other, the chain of command is dealing with [the client] as though their actions are being scrutinized by legal professionals, which naturally adds time to the decision-action cycle.  I have concerns that our involvement is fettering the working relationship between [the client] and [the] OC, and it may be fettering the chain of command’s management over its own personnel.

Ultimately, having spoken with the unit I do not see any legal issues here – while I agree with you that QR&O 19.12 affords your client the right to speak directly with [the] Commanding Officer directly and that right should be granted in good faith as soon as practicable, it does not come with the right to do so at the time/place of [the client’s] choosing.  The Provincial COVID posture has halted most in-person administrative processes within the CAF, and the chain of command is willing to assist [the client] with any technological support required if [the client] wishes to meet with [the] CO virtually.

[I have redacted reference to specific person’s identities]

 

The same communication from the legal officer also included multiple mischaracterizations of factors, which I was compelled to address.  But it was the cited paragraphs above that were the most troubling.

First, the unit legal advisor asserted that the involvement of legal counsel was problematic.  He was clearly suggesting that we should not have been involved.  And, while he can certainly decide if he wishes to do his job, he doesn’t get to dictate whether I become involved on behalf of my client.  However, due to the OJAG’s policy, he was able to interfere with my ability to advocate on behalf of my client.

As I had explained in prior correspondence, and was forced to explain to him again, the relationship between my client and my client’s chain of command had already broken down.  It ought to have been obvious that my client had already encountered difficulties dealing with the chain of command.  Contrary to what this legal officer suggested, rather than being less inclined to contact the chain of command because of the involvement of counsel, my client retained counsel because the chain of command refused to give open-minded consideration to my client’s requests.  And it was problematic for that legal officer to suggest that retaining private counsel was a cause of a deterioration of the supervisor-subordinate relationship.

If the communication between counsel was adding time to the decision-making cycle, then that legal officer needed to take up his concerns with the JAG, whose policy drove the requirement for ‘’outside counsel’ to communicate with the OJAG.

The more astute among you would likely recognize that the legal officer in question was trying to present justification for privately retained counsel to withdraw from the matter.  However, neither he, nor anyone other than the person who retained the counsel, get to make such a decision or offer such direction.  What was clear what that CF decision-makers and legal advisors did not wish to have privately retained counsel involved.

And, if the chain of command was concerned that their actions were being scrutinized by legal professionals, that is likely because their actions were most certainly being scrutinized – at least by me.  And any statutory decision-maker ought reasonably to consider that some form of oversight is possible, if not inevitable.  Again, part of the problem arising from statutory decision-making under the NDA is that many CF statutory decision-makers – and, it appears, some legal officers – erroneously believe that there is some form of distinction between ‘administrative decisions’ and ‘legal decisions’.  Many of the statutory actors involved do not appear to appreciate that there are legal principles that apply to the exercise of their statutory duties, powers, and functions.

Despite the fact that my client was being constructively barred from meeting with the CO, and despite clear examples that I had provided of unreasonable decisions that denied reasonable accommodation of my client’s disability, the unit legal advisor asserted that there were no legal issues present.

Unfortunately, the chain of command became increasingly defensive, and placed my client on a remedial measure.  This remedial measure was eventually quashed by the final authority (but only after my client was released from the CF).  That was the grievance that gave rise to the above-mentioned statement by the MGERC Member.

Frankly, I was shocked by the response of this legal officer, and his failure to understand why I had contacted him in the first place and his refusal to recognize how the intransigence of the chain of command clearly gave rise to legal issues.  Characterizing something as “administrative” does not render it beyond the application of legal principles, particularly when we are dealing with statutory decision-making.

I typically reach out to CF legal advisors when the chain of command starts demonstrating problematic conduct and decision-making, or when decision-makers act in a clearly unlawful manner.  The intransigence or insecurities of CF statutory decision-makers can often impair the performance of their duties and their functions and may contribute to the improper exercise of powers.  And these unfortunate manifestations of intransigence and insecurity may be amplified when lawyers begin to scrutinize and identify their errors.

However, that is not a valid reason for lawyers to withdraw from involving themselves.  On the contrary, it tends to suggest that there is good reason for lawyers to be involved in order to ensure that statutory decision-makers perform their duties and functions properly and comply with the law when exercising their powers.  Perhaps the decision-makers can be given some benefit of the doubt, since there remains inadequate training for statutory decision-makers in the CF.  However, that lacuna does not excuse bloody-minded or disingenuous decision-making, which remains all too commonplace.

And that is not even the most egregious example of a chilling effect that I have encountered when dealing with the OJAG.

 

Example #3 – Disingenuous Tactics

A few years ago, I was assisting a CF member who encountered some problematic decision-making by a variety of CF decision-makers ranging from: the CF member’s CO, to the military police, to DMCA.  I was retained to assist with a variety of statutory processes under the NDA, as well as litigation.

My involvement in matters on behalf of this client was fairly extensive.  The client’s chain of command kept piling on every ‘administrative’ action they could, even if they failed to follow proper processes.  This particular client was repeatedly the subject of disciplinary investigations in which the military police and his chain of command consistently chose not to lay charges.  Instead, they proceeded ‘administratively’, because they could get away with deficient disclosure and unfettered decision-making from non-independent decision-makers.  Plus, it obliged the CF member to seek remedy through the lacklustre and slow CF grievance process, rather than permitting him more expeditious avenues of review.  He was also not entitled to representation by counsel.

Indeed, several people in this client’s chain of command bungled the exercise of statutory duties, powers, and functions sufficiently that their errors even featured in some of my Blog posts as glaring examples of how not to exercise such duties, powers, and functions.

As with many of my clients, the client was located in a province other than Ontario, where my practice is located, and where I am licensed to practice law.  However, when dealing with statutory decision-making under the NDA, that is typically not a barrier.

Approximately 2 ½ years after I was first retained by this CF member, the relevant Assistant Judge Advocate General (AJAG) contacted me by email to inform me that he had brought a complaint against me to the Law Society for that specific province alleging that I was practising law in that province without the permission of that Law Society.

I was shocked.  The AJAG – who knows me and who could have picked up the phone to call me – chose to bring a specious complaint against me after I had been representing that client for 2 ½ years.  [And the AJAG informed me of his complaint just after 1600 hrs the day before he headed off on leave and suggested that any response could be sent to one of his subordinates.]

I say that the complaint was specious because it clearly was devoid of merit.  I was practising law in Ontario.  Although my client was situated in a different province, I was not appearing before any courts or tribunals in that province.  I did appear before the court on the client’s behalf on more than one occasion, but I was qualified to do so.  And, while I certainly wrote to various OJAG legal advisors in a province other than Ontario, I was not practicing law in that province.

I was eventually contacted by a representative of the relevant Law Society.  And, a few days later, they, prudently, informed me that they were closing the file without taking any further action.

Prior to being contacted by the representative of the Law Society, I queried the (then) Acting JAG, Colonel (as he then was) Robin Holman, whether the position taken by the AJAG reflected the position of the Office of the JAG and the JAG.  In light of efforts by the JAG and OJAG to ensure a consistent application of the law and policy across the organization, I suggest that was a reasonable request on my part.  I made that request approximately a year-and-a-half ago.  I never received a response from the Acting JAG (now JAG) or from anyone on his behalf.

The tactic employed by the AJAG had a chilling effect.  The AJAG, and some of his subordinates, initially indicated that they would not accept any communications from me on behalf of my client, until and unless they received confirmation from the relevant Law Society that I was licensed to practice law in that province.  This position was repeated in multiple emails that followed.  Approximately 4 days after the AJAG sent his first email on this subject, one of his subordinates (who had previously contacted me via subsequent emails), contacted me repeating their argument and to inform me that the Acting JAG had been informed of their actions.  I found this additional information mildly amusing, as I had already informed the Acting JAG of my concerns, forwarding the correspondence that I had received from the AJAG, and had copied the AJAG and his subordinate on that email.

By their clearly unjustified actions, the AJAG and his subordinates had essentially and practically barred me from communicating with anyone in the CF on behalf of my client.  The OJAG took the position that I must communicate only with them, and not with the chain of command.  And then they asserted that I was not permitted to communicate with them based upon a markedly disingenuous interpretation of licencing.  And they raised that issue 2 ½ years after I was first retained by my client and had been assisting him with a variety of statutory decision-making processes under the NDA.  And the legal advisors in the office of the AJAG were well aware that I had been retained at that time.

The only logical conclusion that any reasonable person could draw in these circumstances was that the AJAG brought the complaint as an improper tactic to interfere with my ability to advocate on behalf of my client.  And when I raised my concern with the Acting JAG – now JAG – I received no response.

 

Conclusion

CF members serve in a markedly asymmetric relationship with the Crown.  They are subject to myriad coercive processes under the NDA, including, but not limited to, the Code of Service Discipline.  And the Code of Service Discipline was amended in 2022 (after a 3-year delay implementing Bill C-77), removing several safeguards to fair and reasonable decision-making.

It’s understandable that some CF members will seek counsel to assist them with these statutory processes.  They will do so, notwithstanding that such assistance represents significant personal cost.  They will do so even though people in their chain of command may discourage them from retaining counsel.    And some of those people may expressly discourage them from retaining specific counsel.  And make no mistake: such actions are improper.

But more egregious still are the unreasonable barriers that the OJAG presents when CF members do choose to retain counsel at their own expense.

Personally, I have no issue communicating with legal advisors in the OJAG.  As I mention above, and have indicated previously, in many circumstances it ensures that the CF’s legal advisors are engaged on issues in which the rights, interests, and privileges of CF personnel are in jeopardy.  It ensures the involvement of legal advisors even when CF statutory decision-makers have either failed to seek legal advice or have avoided seeking legal advice.

And, while I am well aware that the OJAG and its legal officers are not the CF’s “compliance officers”, I can at least be confident that the OJAG will be aware of the issues that I raise.  Whether they do something about them is a separate matter.

However, if the JAG is going to insist that so-called ‘outside counsel’ must communicate only with the legal advisors in the OJAG, then I have a couple of suggestions.  First, those legal advisors need to understand why ‘outside counsel’ are communicating with them.  And it is not open to debate whether ‘outside counsel’ should be involved.  If our clients have retained us, and instructed us, to advocate on their behalf, then that is what we will do.  It does not fall to the OJAG and its legal officers to fetter that communication or to filter it.

Second, disingenuous tactics on the part of legal officers from the OJAG, which serve to interfere with the efforts of privately retained counsel to provide legal services to their clients, will very likely erode the faith that those CF members have in the statutory processes under the NDA.  Such actions may well erode the confidence that the Canadian public can have in those processes.  Even if the OJAG and legal officers are not the “CF’s compliance officers”, they are most certainly not empowered to interfere with legal assistance from privately retained counsel.

We are left to ponder why some legal officers in the OJAG are inclined to present such chicanery.  Why are they so worried about the involvement of outside counsel in these processes?  If the processes are as reliable, fair, and reasonable as we are repeatedly told, then what is the issue?  Are they afraid that there will be too much reasonableness, or too much fairness?  Resistance to the involvement of ‘outside counsel’ can only impair, and not improve, such processes.  It is clear that the JAG and his legal officers wish to limit the involvement of ‘outside counsel’ whenever they can.  We are left to speculate on their motives for doing so.

In the next, and final Blog post in this series, we will turn our attention to the issue of representation of CF personnel before summary hearings.  Specifically, we will examine how the absence of an express right to representation appears to have been interpreted as a prohibition, and how this undermines the confidence that CF personnel, and the Canadian public, can have in that statutory process.

 

[1] Unfortunately, we are often left wondering to whom, specifically, we should send such correspondence.  Presumably, Brigadier General Robin Holman, the JAG, would not prefer that all such correspondence is sent to him, personally.  And, if he does, that would be a markedly inefficient means of proceeding.  It would be markedly helpful if the contact information for the various relevant legal officers/offices, were publicly available.  Some relevant contact information can be found, if one spends time looking for it.  But much is not readily available.

[2] And I don’t wish to give the impression that all legal officers in the OJAG are needlessly adversarial or obstructive.  I have had positive and productive engagements with a fair number of legal officers.  However, I have found that, over time, legal officers in the OJAG have become increasingly defensive when I have engaged on matters.

[3] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[4] Canadian Human Rights Act, RSC 1985, c H-6 [CHRA].