Criminal Law Case
General Jonathan Vance (retired) Charged
July 16, 2021
Grievance Myths – ‘Mandatory’ Use of a NoI to Grieve
July 29, 2021

Grievance Myths – A Remedy for Canadian Forces Personnel?


There are a lot of ‘myths’ and misapprehensions concerning the statutory grievance process that Parliament created for members of the Canadian Forces (CF).  In order to educate members of the CF and the Canadian public regarding the CF grievance process, I will present a brief (for me at any rate) 3-part series on select myths of the CF grievance process.

This will also provide a bit of respite from the furor that can arise from any ‘scandal du jour’, and the inevitable hyperbole that tends to accompany such reports.

The three Blog posts will address:

  1. Is the CF statutory grievance process principally a remedy for CF personnel? Or does it principally benefit the Crown?
  2. Must a grievor first rely on a Notice of Intent to grieve before submitting a grievance?
  3. Must a grievor sign or submit a ‘Consent to Disclose Personal information’ in order to submit a grievance?


A remedy for CF personnel?

Perhaps the single most significant ‘myth’ about the CF’s statutory grievance process is that its principal purpose, or raison d’être, is to provide a remedy for CF personnel.

That isn’t, strictly speaking, true.

While the current grievance process is principally a creature of legislation, rather than policy, the legislative framework does not provide markedly greater benefits for individual grievors than would a grievance process established solely, or principally, by policy issued by CF policy-makers.  While a legislated grievance structure is more immutable than a grievance process established by policy (i.e. policy is more easily and quickly altered than statutory or regulatory provisions), that immutability is actually of greater benefit to the Crown than to individual grievors.

The statutory provisions from section 29 to section 29.28 of the National Defence Act (NDA)[1], amplified by Chapter 7 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), and further amplified by Defence Administrative Order and Directive (DAOD) 2017-0 Military Grievances and 2017-1 Military Grievance Process, do not actually create any significant remedial powers for any CF statutory decision-maker.  Sure, they create a few duties, and some functions, but they do not create additional remedial powers.

The one remedial power that is created in relation to the CF grievance process is actually the product of an Order in Council (OiC) – OiC 2012-0861: “Order authorizing the Chief of the Defence Staff or his or her delegate to make EX GRATIA PAYMENTS within the CANADIAN FORCES Grievance Process”.[2]


Ex Gratia Payment – The ‘Unavailable’ Remedy

The power of the final authority to order an ex gratia payment is the sole additional remedial power created under the CF grievance process, and it was not created by Parliament or enacted as part of Chapter 7 of the QR&O.  It is a narrow power, only created in 2012.

In other words, the remedial powers typically exercised by the initial authorities (IA) and the final authority (FA), or his delegates, are those powers that are already conferred on those officers by or under the authority of the NDA, distinct from the specific statutory grievance process.  This was also the case before the significant reforms introduced by Parliament in Bill C-25 in 1998.[3]

And the ‘ex gratia power’ conferred by OiC 2012-0861 is a markedly constrained remedial power:

  • It can only be used by the FA or one of his delegates. It cannot be used by any IA.  This means that, even to be considered as a possible remedy, a grievor would have to ‘escalate’ his or her grievance to the FA level;
  • To my knowledge – based upon requests submitted under the Access to Information Act (ATIA) – this power has been used at least twice. Subsequent requests under the ATIA have been delayed – seemingly indeterminately – so I cannot be certain if it has been used more than twice;
  • It is subject to additional conditions imposed by the Treasury Board. These conditions can be found here and I elaborate on them below[4]; and
  • This power has also been the subject of litigation at least once: Stemmler v Canada (Attorney General), 2016 FC 1299 [Stemmler].


In addition to the direction provided in the OiC, the Treasury Board has directed that an ex gratia payment may only be authorized if:

(a) in the case of the Chief of the Defence Staff, the payment is in an amount that does not exceed $100,000;

(b) in the case of an officer who is acting under section 2 of the Canadian Forces Grievance Process Ex Gratia Payments Order, the payment is in an amount that does not exceed $2,000 or such lesser amount as may be specified by the Chief of the Defence Staff;

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

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

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


For those who are interested, these conditions may be compared to the conditions described in the more general Treasury Board Guide to Ex Gratia Payments and Honorariums.


Ex gratia is not a Settlement of a Claim Against the Crown

The requirement under condition (c), supra – that the FA must be in receipt of a legal opinion [presumably from the Claims and Civil Litigation Section of the DND/CF Legal Advisor] that states that there is no legal liability on the part of the Crown – amounts to direction that the ex gratia power cannot be used to settle claims against the Crown based upon legal liability.  This limitation, itself, is not controversial.

A parallel limitation, and one that is particularly important for the present discussion, is that neither the CDS nor any other remedial authority within the CF grievance process can settle a claim against the Crown or order payment of pecuniary damages.[5]

The absence of a contractual relationship between the Crown and members of Her Majesty’s armed forces[6] is frequently cited by the Attorney General, in litigation brought by members of the CF, as the basis for the absence of any liability for pecuniary damages arising from contract.

This third Treasury Board condition is logical consequence of the nature of ex gratia payments.  An ex gratia payment is essentially a payment based upon the ‘grace of the Crown’, and is distinguishable from legal liability.  A claim against the Crown is settled when the Crown is legally liable for damages, and the Crown elects not to oblige the claimant to bring an action before a court of competent jurisdiction in order to enforce that right.

In contrast, an ex gratia payment arises in the absence of a legal liability and represents very broad discretion on the part of the Crown.  Not surprisingly, in light of this broad discretion, the Treasury Board has placed significant constraints on when the FA may exercise this power.  Since an ex gratia payment is made where there is no enforceable right, it could be characterized as a payment for a ‘moral wrong’.  (However, such characterizations can be problematic when predicated upon subjective interpretation.)


Cannot be used for Gap-Filling

The challenge with ex gratia payments for CF personnel under the CF grievance process is that the exercise of such discretion can collide with the ‘gap-filling prohibition’, particularly when employed by a decision-maker who is also not empowered to settle claims against the Crown.

Conditions (d) and (e) present a conundrum.  Often a CF member will bring a grievance regarding a decision or act that will have had financial implications for the grievor: e.g. early ‘disciplinary’ repatriation from a deployment, compulsory release, or a potentially lucrative posting.

Even if the final authority (and it would have to be the FA, since the IAs do not have any power to grant an ex gratia payment) determined that the decision was improper or unjust, the grievor would not be eligible for compensation for any “lost” income (including any allowances or other related payments) from a deployment that was terminated prematurely, from a compulsory release that terminated receipt of a salary, or from a posting that was ‘denied’.

A CF member is entitled to pay, allowances, and reimbursement of expenses in accordance with regulations enacted by the Treasury Board under subs 12(3) of the NDA or instructions issued by the Treasury Board pursuant to s 35 of the NDA.  Absent the relevant conditions for such payments, there is no entitlement for payment of pay, allowances, or reimbursement of expenses.

What is perceived as a ‘loss’ is not an actual loss.  It is something that I refer to, colloquially, as the ‘Dingwall Principle’: a CF member is entitled to his or her entitlements; nothing more, nothing less.  And, in any event, payment of an ex gratia payment to ‘compensate’ for unreceived financial benefits to which a CF member is not entitled at law, would be considered ‘gap-filling’.

In effect, condition (e) functions to constrain the utility of condition (d).  An ex gratia payment is not to be used to fill an actual or apparent gap in a ‘delivery program’.  Nor can it be used to circumvent legal limitations, such as prohibitions on paying interest absent a court order directing that interest payments must be made.  Even though there may not be another mechanism by which the grievance can be remedied, including under existing laws, regulations, instructions, policies or programs, the final authority would typically be barred from authorizing an ex gratia payment.


Implications from No Privity of Contract

An oft-repeated principle is that members of the CF are not in privity of contract with Her Majesty.  Instead, they are in a unilateral arrangement with the Crown in return for which Her Majesty assumes no obligations.[7]

That’s a great arrangement – if you’re the Crown.

But it means that CF personnel do not have the protections that arise from a contractual relationship.  Some people might be inclined to suggest that one of the weaknesses of CF service is the prohibition against the formation of combines (i.e. unions or collective bargaining units) found at QR&O art 19.10.  Some people might also posit that the statutory grievance process is intended to compensate CF personnel for the prohibition against forming combines.  If that’s the case, it’s a fairly deficient means of compensation.  After all, even members of collective bargaining units have grievance mechanisms.

More importantly, even if CF personnel were permitted to form collective bargaining units, it would not alter the fact that service in the armed forces does not fall within privity of contract.  Consequently, remedies like damages for constructive dismissal or wrongful dismissal are not, and can never be, available to CF personnel.  Constructive or wrongful dismissal represent a breach of contract; in order to claim damages, a claimant must prove the existence of a contract.

But a CF member who is compulsorily released from the CF absent procedural fairness or where the purported justification is unreasonable, would also likely not succeed is demanding an ex gratia payment to compensate for the compulsory release (i.e. a wrongful ‘dismissal’)[8].  The governance regime for the Crown-soldier relationship expressly lies outside a contractual relationship.  It is a public law relationship, that generally gives rise to public law remedies.  Such remedies can often be limited.  In the case of a compulsory release that is ‘overturned’ by a grievance – a rare enough event – the remedy will typically be an offer to re-enrol.

The Strengthening Military Justice in the Defence of Canada Act, SC 2012, c 24, introduced a new power to reinstate an officer or non-commissioned member where the CDS is satisfied that the release or transfer was ‘improper’.  This provision would then constitute the ‘new’ subsection 30(4) of the NDA:

Subject to regulations made by the Governor in Council, the Chief of the Defence Staff may cancel the release or transfer of an officer or non-commissioned member if the officer or non-commissioned member consents and the Chief of the Defence Staff is satisfied that the release or transfer was improper.


If this provision ever comes into force, it will, in conjunction with the ‘new’ subsection 30(5) of the NDA, ‘deem’ the officer or non-commissioned member not to have been released or transferred.  Presumably, the amplifying regulations that will bring the provision into force will expressly address any entitlement to pay and allowances for the period between the initial release or transfer and the CDS’ eventual determination to reinstate the CF member.  The regulations may also amplify what is meant by ‘improper’.

However, that provision will only come into force upon the enactment of amplifying regulations[9] and the limitation period within which the provision can come into force will expire in 2022.[10]

Until and unless this provision is brought into force, the CDS does not have the power to reinstate a CF member who is compulsorily released in a procedurally unfair or unreasonable manner.  The sole procedural remedy is an offer of re-enrolment.

An ex gratia payment is made by the ‘grace of the Crown’.  It is entirely discretionary and is not a legally enforceable right.  Based upon the Treasury Board conditions, one might conclude that the CDS (and his delegates) are barred from offering an ex gratia payment to compensate for compulsory release.  To use an ex gratia payment to seemingly ‘compensate’ for the non-contractual nature of the Crown-soldier relationship, or the legislative gap in capacity to reinstate, would represent gap-filling.

Consequently, it is likely that the Crown will decline to exercise such discretion in a case of an unreasonable or procedurally unfair compulsory release.  Instead, the CF will offer to re-enrol the grievor – a ‘procedural’ remedy.

Arguably, the CDS (or his delegate) could choose to disregard condition (e) (or, alternatively, interpret it in a manner that does not constrain him) and authorize an ex gratia payment as a remedy to a grievance, even if it fairly obviously represents gap filling.  Presumably, the recipient would not object to a decision by the CDS to ignore the restrictiveness of the fifth Treasury Board condition.  (A grievor may, as arose in Stemmler, object to the amount of the ex gratia payment, or the absence of a specific justification for the amount.  However, as Justice Gascon concluded, a reasonable exercise of discretion is a lawful exercise of discretion.  And the discretion regarding calculation of ex gratia payments is broad.)

However, if the FA were to authorize ex gratia payments in a manner that appeared to contradict the Treasury Board conditions, it could trigger consequences from the Treasury Board, or even unintended consequences if certain stakeholders, such as the Military Grievances External Review Committee, were to attempt to characterize such exercises of discretion as some form of a binding ‘precedent’.


So why does the CF statutory grievance process exist?

The statutory grievance process doesn’t really create any additional remedial powers for the IAs and FA who adjudicate grievances.  It doesn’t alter the limited scope of remedial capacity that arises from the unique, non-contractual nature of the Crown-soldier relationship.  And, if it is intended to compensate for the prohibition on forming combines, it does not do a very good job of doing so.

So, if it doesn’t offer any of these improvements to the Crown-soldier relationship, how does it benefit members of the CF?  And why has it been created within a comprehensive statutory and regulatory framework?

The short answer to the first question is: it doesn’t.  In fact, I suggest that it is not principally meant to benefit individual CF personnel.  And the answer to the second question explains the principal purpose of the CF’s legislated grievance process within the context of modern public and administrative law.

The CF’s statutory grievance process exists principally for the benefit of the Crown.  It is a litigation avoidance mechanism.  It exists to fulfil the role of an adequate alternative remedy[11] and thereby act as an intermediate step that bars CF personnel from seeking a remedy before ordinary courts such as the Federal Court.  Moreover, once the grievance process is exhausted, the Crown can argue that the CF member received a remedy, thereby restricting litigation to judicial review of the decision by the FA.

Consider what the statutory grievance process looked like before the significant amendments introduced in 1998.[12]  Prior to the amendments in Bill C-25, and the consequent regulatory amendments, there was a single provision under s 29 of the NDA and two articles in the QR&O: 19.26 and 19.27.  These were amplified by a Canadian Forces Administrative Order (CFAO) 19-32 Redress of Grievance.[13]  A CFAO was a policy instrument, not legislation.  The same is true of DAOD.

Prior to 1998, s 29 of the NDA stated:

Except in respect of a matter that would properly be the subject of an appeal or petition under Part IX, an officer or man who considers that he has suffered any personal oppression, injustice or other ill-treatment or that he has any other cause for grievance, may as a matter of right seek redress from such superior authorities in such manner and under such conditions as shall be prescribed in regulations made by the Governor in Council.


At one point in the past, the ultimate authority for redress of grievance was the Governor in Council.  This was subsequently changed to the Minister of National Defence, who remained the ‘final authority’ until the enactment of Bill C-25.

The Minister was the final authority in a grievance brought by an Acting Warrant Officer named Parisé, who subsequently challenged the Minister’s eventual determination of the grievance.  Although unsuccessful with his grievance, the grievor was initially successful with his application for judicial review.[14]  The judgment from Justice Marc Noël (who would later become the Chief Justice of the Federal Court of Appeal) was illustrative of the delays that plagued the multi-level grievance process prior to 1998.  However, in 2000, the Federal Court of Appeal overturned Justice Noël’s judgment[15], and reinstated the Minister’s decision.

At approximately the same time that Parisé was writing a CF-related exam that would lead to a 3-year long, multi-level grievance, followed by litigation, a Corporal (Cpl) by the name of Gayler was encountering some heavy-handed action by her chain of command.  Cpl Gayler was directed to attend an interview with Military Police in relation to their investigation of marijuana use by CF members[16].  Cpl Gayler attended the interview, but she chose to remain silent (as was her right).  Nothing more was done at that time.

Approximately 9 months later, she was placed on Counselling and Probation (C&P) for ‘involvement with illicit drugs’.  This vague indication was not necessarily predicated upon use; but, as was explained to her, it was based upon ‘guilt by association’.

Cpl Gayler did not grieve this decision.  Instead, she eventually brought an application for judicial review.  Notwithstanding that the application was brought a year after the initial decision was made to place her on C&P and that she had not exhausted the CF statutory grievance process, her application was permitted to proceed.

The presiding judge, Justice MacKay, observed: “Ordinarily the Court will not act to quash a decision of a federal agency unless and until the applicant has exhausted all other adequate avenues of redress and appeal.”[17]  However, after conducting a review of the relevant case law, Justice MacKay concluded that, notwithstanding the absence of any attempt to use the grievance process, the court was justified in hearing the application:

In my opinion, the applicant is not precluded from seeking judicial review in this Court. Even if the decision made at NDHQ is an administrative action, and she chose not to pursue the matter through the grievance procedure, those factors are not a bar to relief in this Court in an appropriate case. As the applicant noted, the grievance process is not a statutory appeal process. If the commanding officer does not redress the complaint, the applicant is required to pursue the complaint through several levels of authority: (1) the Formation Commander; (2) the officer commanding the command; (3) the Chief of the Defence Staff; (4) the Minister; and (5) the Governor in Council. However, both counsel have confirmed that only the Chief of Defence Staff has the authority to overturn the decision made on his behalf. The lower levels of administration only have the power to make a recommendation to the Chief of Defence Staff. Furthermore, even if it were preferable for the matter to be dealt with through the military grievance process, Cullen J. confirmed in Diotte v. Canada (1989), 31 F.T.R. 185 (F.C.T.D.), that the Court has jurisdiction where an applicant chooses to seek judicial review which is available as a general remedy for the supervision of the machinery of government decision making.[18]


Justice MacKay then proceeded to define the court’s role regarding the judicial review of discretion exercised by statutory decision-makers.  Justice MacKay concluded that the judicial review would be, at the very least, as efficient as a grievance could be.

[As an aside, I might be tempted to quibble about the conclusion that the C&P imposed on Cpl Gayler was a decision made ‘on behalf of the CDS’.  There is a distinction between a decision made by an officer who is authorized by the CDS to make such a decision, and a decision made by an officer on behalf of the CDS.  I suggest that imposing C&P on a subordinate is, and was, an example of the former, not the latter.  I do not have before me the factual record that was before the court.  However, nuances can arise in such matters, and the understanding of judges and counsel will vary based upon their level of familiarity with the specific CF governance regime.  Some factual conclusions can be driven by a variety of factors, including the eventual inclination of the bench.]

The circumstances faced by Cpl Gayler presumably differed from those in the contemporaneous case of Petty Officer, 2nd Class (PO2) Anderson, who had also been subject to C&P.[19]  Although successful with his application for judicial review at first instance, the Federal Court of Appeal granted the Crown’s appeal and quashed the Federal Court judgment.

Unlike Cpl Gayler, PO2 Anderson had initially brought a grievance regarding the C&P that had been imposed on him.  Commander, Fourth Maritime Operations Group, had ordered the C&P.  Two months later, PO2 Anderson submitted his grievance.  Three-and-a-half months later, Commander, Maritime Forces Pacific (the next officer in the ‘chain of command’) declined to offer any redress.  Rather than referring the grievance to the next level in the chain of command (presumably, that would have been Commander, Maritime Forces, based upon the organization of the CF in 1995[20]), PO2 Anderson sought judicial review.  It is possible, though not certain, that this decision may have been influenced by the judgment in Gayler, which had been handed down 13 December 1994 (the day after PO2 Anderson had submitted his initial grievance).

The Crown sought to dismiss the application, citing, among other reasons, that the applicant had failed to exhaust the grievance process.  (The Crown also argued that the decision for which the applicant sought judicial review did not constitute a decision or order of a federal board, commission or other tribunal, pursuant to section 18.1 of the Federal Court Act, and that the application was brought beyond the 30-day limitation period.)

At first instance, Justice Muldoon did not rely on Gayler.[21]  However, while acknowledging the “…good sense buried in the respondents’ [Crown’s] counsel’s submission …” regarding the “… procedurally untidy legal problem …”[22], Justice Muldoon eventually held that the application should proceed, albeit with a revised style of cause:

If the applicant continued to push his grievance up to the CDS and the Minister, the recourse to judicial review would be premature at this stage. However, by seeking judicial review at this stage, the applicant has quite naturally notified the respondents that he opts not to expend the time, resources, money and nervous stress to push up through the chain of command. Believing that the initial impugned decision was and is illegal, the applicant wastes no more of the above, but attacks that decision as soon as he discovers that the first level of authority declines to support the grievance, or in other cases the first time a higher authority so declines.[23]


The Federal Court of Appeal overturned this decision, expressly distinguishing PO2 Anderson’s circumstances from those of Cpl Gayler:

I now turn to the application of the criteria in Harelkin, supra, for determining whether an adequate alternative remedy exists. As I conceive it, the Motions Judge rested his view on the inadequacy of an alternative remedy on the time that would be consumed in pursuing the complaint up the chain of command and the cost and stress for the respondent in so doing. As I have already indicated, it would not, in my view, be futile to submit the complaint to the Commander, Maritime Command, because he too is vested with the same power of redress.

Admittedly, the time required to pursue a remedy by way of judicial review would, in all likelihood, be less than would be required for submitting the complaint up the chain of command. On the other hand, article 19.26 of the QR&O, requires a complaint to be dealt with as “expeditiously as possible” and lays down in paragraph (11) strict time limits within which decisions are to be made by a particular redress authority below the Chief of the Defence Staff. While, as we have seen, a C&P decision may in some circumstances lead to the “release” from the Canadian Forces of a member affected, release of the respondent cannot occur because, as the Motions Judge noted, the respondent “had already undergone the counselling and probation without ill effect”. What remains for him is his desire to “wipe the disciplinary measure . . . off of his service record”. Pursuing redress up the chain of command would mean taking at least one more step i.e. submitting the complaint to the Commander, Maritime Command. There can, of course, be no assurance that the Commander, Maritime Command, would grant the relief sought but neither can it be safely predicted that he would refuse to grant it. Thus, there exists the availability of the remedy at the very next step in the chain of command if the redress authority could be satisfied of the “justice” of the complaint i.e. that procedural fairness was not accorded in the circumstances or that there was a reasonable apprehension of bias present in the first step process. In the circumstances I am satisfied that the factor of delay is not such as to warrant the Court’s intervention at this stage.[24]


Some contemporaneous matters did not follow the line of reasoning of the Federal Court of Appeal in Anderson (e.g. Hutton v Canada (Chief of Defence Staff), [1998] 1 FC 219).  However, in the context of the Canadian Forces, leading up to the enactment of Bill C-25, there was a general trend that the Federal Court would only derogate from the general principle from Harelkin[25] (that applicants must first exhaust any ‘adequate alternative remedy’) in exceptional circumstances.  Such circumstances would tend to be driven by specific facts – particularly if those facts presented an applicant in a sympathetic manner or depicted Crown actors as being particularly heavy-handed.

Consequently, it should not come as a surprise that, in Bill C-25, Parliament created a more robust and comprehensive statutory framework for CF grievances, and (at least presumably) a more efficient 2-tiered grievance process, similar to that employed by the Royal Canadian Mounted Police.

Conceptually, a two-tiered grievance process, replacing a process that could have five or more levels of review (including what could be construed, in some circumstances, as pointless levels of review) would be seen as more efficient and effective and, therefore, courts would be much more likely to acknowledge that the statutory process was an ‘adequate alternative remedy’.

A more robust and comprehensive legislative framework accompanied by an ‘external’ review board or committee that would offer Findings and Recommendations to the final authority, presents a more compelling ‘alternative remedy’ than a process that is solely or principally established in a more easily mutable policy instrument (like a CFAO).

The comprehensive and streamlined CF grievance process also benefits from the impact of the subsequent Supreme Court of Canada judgment in Vaughan v Canada, 2005 SCC 11, [2005] 1 SCR 146, in which a 7:2 majority of the Court held that, where Parliament has created a comprehensive scheme for dealing with labour disputes, the process set out in the legislative scheme should not be jeopardized by permitting parallel access to the courts.  Notwithstanding that CF personnel are not in privity of contract with the Crown in a ‘traditional’ employment regime, Vaughan has consistently been applied to the context of CF grievances, even if, in select circumstances, it is distinguished.

Certainly, since the enactment of Bill C-25, the impact of a more robust and comprehensive legislative framework for the CF grievance process on its standing as an ‘adequate alternative remedy’ has generally become a greater barrier to litigation against the Crown.  The existence of the CF statutory grievance process has consistently[26] (though not absolutely[27]) barred litigation by CF personnel prior to exhausting the CF grievance process.  It has also served to bar actions (i.e. claims before ordinary courts for pecuniary damages) by CF members who have exhausted the CF grievance process.[28]



Consequently, it is not an exaggeration to suggest that the CF statutory grievance process, particularly as it exists in its present form, is a markedly more significant benefit for the Crown than it is for the individual CF greivors.

The statutory framework does not create any specific remedial powers for CF decision-makers.  It does create some duties, and principally functions, for the initial and final authorities.  However, the legislative framework actually creates more obligations on the grievor than it does the remedial authorities.  Perhaps the most significant criticism levelled at the CF grievance process is the continued lack of timeliness.  And the legislative framework provides little incentive or obligation that would speed up this process.

The one additional remedial power that was created within the context of the CF grievance process was only created 9 years ago, outside of Chapter 7 of the QR&O.  It represents a highly discretionary power, which is narrowly construed, and can only be exercised by the final authority or one of his delegates.  It is very rarely used.  And it does not remedy the incapacity of any redress authority to settle claims against the Crown or award pecuniary damages.

On the other hand, the Crown benefits considerably from the existence of a comprehensive legislated grievance regime.  When CF personnel bring actions or applications against the Crown prior to exhausting the CF grievance process, the Crown is consistently (though not always) successful with motions to dismiss or strike such litigation based upon the existence of an ‘adequate alternative remedy’.  The Crown is also typically successful with preliminary motions to strike actions seeking damages even after CF personnel exhaust the CF grievance process.  These motions are successful, in part, due to the one-sided nature of the Crown-soldier relationship.  However, a key factor in such motions is the existence of the statutory grievance process.


[1] RSC 1985, c N-5 [NDA].

[2] Some might suggest that the OiC represents an exercise of residual Crown Prerogative powers.  However, I suggest that the NDA has placed such authority in abeyance in this context, and it is properly regarded as an exercise of the Governor in Council’s power to enact regulations pursuant to s 12(1) of the NDA for the governance of the CF.

[3] An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35 [Bill C-25]

[4] See also: Rory Fowler, “The Canadian Forces Grievance Process: How Adequate an Alternative Remedy Is It?”, (2014) 27 Can J Admin L & Prac 277.

[5] Id, 295 to 298.

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

[7] Id, 696.

[8] In Stemmler v Canada (Attorney General), 2016 FC 1299 [Stemmler], the CDS appeared to approve the ex gratia payment of $ 25,000.00 based upon ”… regret and sadness over the manner in which Cpl Stemmler was treated.” (para 29).

[9] See also Hon Morris J Fish, “Report of the Third Independent Review Authority to the Minister of National Defence” (30 April 2021), para 679.

[10] Statutes Repeal Act, SC 2008, c 20.

[11] Harelkin v University of Regina, [1979] 2 SCR 561[Harelkin]; Canadian Pacific Ltd. v Matsqui Indian Band, [1995] 1 SCR 3.

[12] Bill C-25, n 3.

[13] As an aside, I suspect that the title of CFAO 19-32 is a key reason why many (often older) CF personnel refer to a grievance as a ‘redress’ – e.g. “I decided to submit a redress.”  Redress is what the decision-maker offers – i.e. redress of grievance.  A grievance is what a CF member submits.

[14] Parisé v R, [1997] FCJ No 932, 136 FTR 132, 75 ACWS (3d) 195.

[15] Parisé v R, [2000] FCJ No 900, 101 ACWS (3d) 77, 190 FTR 240 (note), 265 NR 117.

[16] This predates, by several years, the decriminalization of marijuana possession and the creation of DAOD 9004-1.

[17] Gayler v Canada (Director Personnel Careers Administration Other Ranks, National Defence Headquarters), [1994] FCJ No 1896, [1995] 1 FC 801, 52 ACWS (3d) 475, 88 FTR 241 [Gayler], para 13.

[18] Id, para 20.

[19] Anderson v Canada (Minister of National Defence), FCJ No 1461, 103 FTR 27, 58 ACWS (3d) 1093 [Anderson (FC)]; rev’d Anderson v Canada (Armed Forces), [1997] 1 FC 273, 141 DLR (4th) 54, 121 FTR 239 (CA) [Anderson (FCA)].

[20] Since 2014: Commander, Royal Canadian Navy.

[21] In fact, Muldoon J relied on one case only: Braun v Her Majesty the Queen (1976), 4 CMAR 115 (FCA), which was a judgment of the Court Martial Appeal Court and, objectively, does not seem particularly pertinent.

[22] Anderson (FC), n 19, para 12.

[23] Anderson (FC), n 19, para 21.

[24] Anderson (FCA), n 19, paras 12 and 13.

[25] Harelkin, supra, n 11.

[26] Kleckner v Canada (Attorney General), 2014 ONSC 322; Chua v Canada (Attorney General), 2014 FC 285; Sandiford v Canada, 2007 FC 225, aff’g Sandiford v Canada, 2007 FC 1093; Moodie v Canada (National Defence), 2010 FCA 6, aff’g Moodie v Canada (National Defence), 2008 FC 1233, to present a few examples.

[27] Gerard Jones v Canada (Attorney General), 2007 FC 386; Canada v Bernath, 2007 FCA 400.

[28] Doucette v Canada (Attorney General), 2018 FC 697; Gligbe v Canada, 2015 FC 1265, Gligbe v Canada, 2016 FC 467, and Gligbe v Canada, 2017 FC 311; MacLellan v Canada (Attorney General), 2014 NSSC 280.

Please follow and like us:

Leave a Reply

Your email address will not be published. Required fields are marked *