When are we going to take military police accountability seriously?
February 2, 2025
Happy Birthday, Grievance – Delay in the Adjudication of CF Grievances
15 March 2025
[Editor’s Note: I have been on a bit of a hiatus from my Blog. A combination of a busy schedule during February and the truly inane developments in the US have distracted me from this task. At the end of January, I promised to return to regular commentary on matters of military law. The Ides of March marks a particular milestone, and one that serves as a poignant line of departure for discussions about statutory decision-making in the Canadian Forces.]
Happy birthday to you,
Happy birthday to you,
Happy birthday, dear grievance,
Happy birthday to you…
They grow up so fast. When they are young, they are full of enthusiasm, curiosity, and hope. The world is new, and everything is an adventure. You look away for a moment, and when you look back, they are fully grown, ready to embark on the rest of their life, and you wonder where the time has gone.
I could be talking about children. But, in this instance, I am talking about what I believe is the oldest unresolved grievance in the Canadian Forces (CF).
Today, my grievance relating to Medical Employment Limitations (MEL) turns 19 years of age. If it were a person, it could have voted in Ontario’s recent provincial election. It could vote in the inevitable federal general election. Heck, it could legally imbibe alcohol in Ontario (but probably not American alcohol).
However, it’s not a biological person.
It is a tragedy. The handling of this grievance has been a farce. And it is an object example – albeit an extreme example – of many of the problems in the CF grievance process. I suppose that’s what I get for submitting a grievance on the Ides of March.
I refer to it as my “MEL Grievance”. I haven’t identified the grievance file number, both out of regard for my own privacy, as well as the fact that the grievance has been around so long it has had at least three different file numbers (with new file numbers generated with each overhaul of the grievance file management system).
I won’t describe the nature of this grievance here; I did so a year ago:
- Incompetence & Intransigence in Grievance Adjudication – Part I, 15 March 2024
- Intransigence in Grievance Adjudication – Part II, 16 March 2024
Today’s discussion isn’t really about my grievance; it focuses on an issue of which my grievance is an object example and which will be a recurring subject of discussion in this Blog: delay in the adjudication of grievances. And, specifically, we will focus on how delay impacts the resolution of grievances.
There is an obvious impact that delay can have on the adjudication of grievances: the longer a CF member must wait for adjudication and, potentially, remedy, the greater the potential for injustice. After all, “… justice delayed, is justice denied …”[1]. No one should have to wait an unreasonable amount of time for a decision, even if the decision is unfavourable.
Delay in the adjudication of a grievance does not necessarily give rise to an actionable wrong, nor does it automatically render a decision unfair or unreasonable, or constitute an abuse of process.[2] Absent a legislative obligation to determine a grievance within a specific limitation period, there is often little or no incentive for a decision-maker – such as a so-called “redress authority”[3] in the CF grievance process – to make a decision in a timely fashion.
And a legislated limitation period for the final authority is not necessarily a solution, particularly if it constitutes an isolated reform without a comprehensive and conceptual rearticulation of the grievance process. Each of the independent statutory reviews of the National Defence Act (NDA)[4], or elements thereof, recommended some form of limitation period on the determinations by the final authority.[5]
What remains unanswered or unclarified is the issue of the consequence(s) of the failure to meet such a deadline. Would the matter be referred to the Federal Court? That doesn’t seem particularly workable. And we must remember that most grievors are seeking some form of positive action from the redress authority. Whether it is the quashing of a remedial measure, the granting of a promotion that was denied, or some other action that would either remove or quash an initial adverse decision, act or omission, or would grant a positive decision or act that was denied or withheld, the grievor is looking for a solution.
A stay of proceeding due to the failure to meet a limitation period might be an incentive for a statutory decision-maker to act in a timely fashion where the statutory actor wishes to exercise jurisdiction – such as the exercise of jurisdiction under the Code of Service Discipline. Presumably, the statutory actor would proceed in a timely fashion out of fear of losing jurisdiction. But this incentive likely won’t arise where the person seeking some form of action from the statutory decision-maker (i.e., a grievor seeking a remedy from a redress authority) will thus be deprived of a remedy.
But there is an even more subtle and nuanced impact that delay can have on the determination of a grievance. Where delay limits remedial options, it can – and I suggest does – discourage the redress authority, primarily the final authority, from determining a grievance in favour of a grievor. This is particularly true where delay prevents the redress authority from offering any meaningful remedy.
Where delay effectively prevents the final authority from providing any meaningful remedy, this lacuna will encourage the final authority to determine the grievance in an unfavourable manner in order to avoid the consequent requirement to acknowledge the shortcomings of the CF grievance process. And I suggest that this incentive arises from the myth that the CF grievance process is not only an adequate alternative remedy, but a comprehensive remedy.
Some Background and an Object Example
Last year, when the Attorney General of Canada (AGC) sought to strike a class action in Thomas v Canada (Attorney General), 2024 FC 655, counsel for the AGC argued that, although the CF grievance process has been plagued by delay, these delays were being addressed courtesy of the Chief of the Defence Staff’s “Directive for CAF Grievance System Enhancement”.
Here’s how Justice Zinn characterized the AGC’s argument:
The Defendant further acknowledges that the internal processes are marred with delays but says that these delays were or are being addressed (see the Directive for CAF Grievance System Enhancement) and, in any event, mere delay or bare allegations of inadequacies are insufficient to support a finding that the Court should not defer to the internal processes: Fortin v Canada (Attorney General), 2021 FC 1061 at para 43; Kleckner v Canada (Attorney General), 2016 FC 1206 at para 36.[6]
While the counsel for the AGC may have been correct when she argued that the judgments in Fortin and Kleckner held that “mere delay” (or “bare allegations of inadequacies”) are insufficient to displace the principle of “adequate alternate remedy” upon which the AGC relies so frequently, I disagree with the assertion that the CF has remedied, or is remedying, the chronic delay that plagues the CF grievance process.
And I need not point to my grievance as the principal example.
It is true that my grievance has existed for a longer period of time than many people serve in the CF. Heck, if it were characterized as service in the CF, it would be eligible for a Bar to its CD (Canadian Forces Decoration) in three years. It would probably take at least another two years after that to receive the Bar – but delay in the presentation of decorations and medals is a separate subject.
My grievance is an extreme example. Not all grievances take two decades to resolve. (And I may be getting ahead of myself – after all, my grievance is not yet resolved.) However, it is not unheard of for grievances to take more than five years to be resolved. And even that degree of delay is unconscionable.
An object example of delay in the CF grievance process arose with the recent determination of a grievance for one of my clients, who received the letter communicating the final authority’s determination – the “Decision Letter” – about 3 months after the judgment in Thomas was handed down. The grievor in question subsequently brought an application for judicial review to challenge this determination as both procedurally unfair and unreasonable.
The application was raised early in September 2024 in Gardner v Canada (Attorney General), FC Docket T-2278-24. It was resolved on consent of both parties on 20 February 2025. The Federal Court quashed the decision and remitted it back to the final authority for a new decision. The AGC agreed that the final authority decision was made in a procedurally unfair manner. The Applicant had also argued that the decision was unreasonable, for multiple reasons. And I contend that, had we been obliged to argue the matter before the Federal Court, we would have proven deficiencies in both fairness and reasonableness.
The decision in question was the determination of a grievance relating to compulsory release under item 5(f) of the Table to art 15.01 of the QR&O. Following a procedurally unfair Administrative Review[7], the Director Military Careers Administration (DMCA) – at the time, Colonel Paul Fuller – ordered the grievor’s compulsory release.
It was not Colonel Fuller’s decision that was the subject of the application for judicial review. His decision was the subject of the grievance. The decision that was the subject of judicial review – a decision that was procedurally unfair and, in my view, was also unreasonable – was the decision of the final authority: the Chief of the Defence Staff (CDS), General Wayne Eyre. And the history of this decision is revelatory of why delay can arise in the adjudication of grievances challenging such significant and problematic decisions, and why delay can lead to closed-minded decision-making.
Throughout this grievance, the grievor repeatedly raised the issue of failures of disclosure. He raised the issue before the initial authority, who ignored it. He raised the issue when the grievance was referred to the final authority, and it was ignored initially. His grievance was referred to the Military Grievances External Review Committee (MGERC), who ignored that issue. He raised the issue of deficient disclosure in his response to the MGERC Findings and Recommendations (F&R).
And, make no mistake, the grievor raised multiple other issues in his grievance, including concerns about the reasonableness of conclusions and the failure to hold various decision-makers accountable for the shortcomings in the performance of their duties and functions. But the repeated failures regarding disclosure represented an ongoing theme, and one that eventually led to the final authority’s decision being quashed.
Initially, the grievance was handled in a relatively timely fashion. It was submitted in January 2018, approximately 3 months after the impugned decision was made by Colonel Fuller. It was referred to Director General Military Careers (DGMC) approximately two months later. It shouldn’t have taken two months to refer the grievance to DGMC. Grievances relating to compulsory release decisions by DMCA are not uncommon. The initial authority for such grievances is almost always DGMC. Taking two months to refer a grievance to an initial authority in such circumstances is not exactly an example of “… forward[ing] the grievance to the appropriate authority as expeditiously as possible …” as required under art 7.10 of the QR&O.
But the fact that the Canadian Forces Grievance Authority (CFGA) took two months to perform a function that should have taken about a week is one of the least egregious shortcomings regarding delay in the adjudication of this grievance.
We need to remember that the four-month limitation period applicable to initial authorities under art 7.15 of the QR&O only starts to run when the grievance is received by the initial authority. Unreasonable delay in forwarding the grievance to the initial authority does not factor into that limitation period.
Two months after the grievance was referred to the initial authority, Commander J.D. Steele produced a synopsis asserting that the release decision by Colonel Fuller was warranted, that it “… follow[ed] due process …”, and that the grievor was not aggrieved. Commander Steele recommended that the initial authority decline to grant any remedy.
One of the many problems with the synopsis (and there were many) was that it failed to address the deficiencies in disclosure that were raised in the grievance. In the response to the synopsis, which was submitted approximately 6 weeks after the grievor received the synopsis, the grievor reiterated these arguments, and also identified multiple other deficiencies in the synopsis.
These were ignored.
On 5 July 2018, four months to the day from when the initial authority received the grievance, Colonel Y.N, Thomson, Acting DGMC at the time, signed a letter asserting that the impugned “… DMCA decision was procedurally fair, justified, and policy complaint …” and concluded that the grievor had been treated fairly. Colonel Thomson refused to grant any redress.
I suggest that if Colonel Fuller’s decision was procedurally fair and reasonable, it would have been relatively easy to defend it. Similarly, if Colonel Thomson’s decision had been procedurally fair and reasonable, it would have easily withstood subsequent scrutiny. Unfortunately, like that of Colonel Fuller, Colonel Thomson’s decision wasn’t procedurally fair or reasonable.
The IA’s decision was made exactly 4 months to the day from the date that the grievance was referred to the initial authority (albeit, nearly six months after the grievance was submitted). As I note above, although it should have been referred to the initial authority in a timelier fashion, it would be reasonable to suggest that the grievance, up to that point, had not been subject to excessive delay. Granted, the grievance wasn’t adjudicated fairly or reasonably either, but at least the unfair and unreasonable decision had been timely.
Unfortunately, that was the last time that the grievance would be subject to timely decision-making.
It would take the final authority another six years to consider and determine the grievance. And the CDS’ decision wouldn’t be procedurally fair either. Nor did the CDS acknowledge the shortcomings of the several statutory decision-makers who failed the greivor at each step in the process, starting with his commanding officer who was problematically selective about the information presented for the Administrative Review, and DMCA, who failed to provide a fair and reasonable decision.
A month after receiving the decision from the initial authority, the grievor requested that it be referred to the final authority. The intake process conducted by the staff at the Director General Integrated Conflict and Complaint Management (DGICCM) appeared to be completed in a timely fashion (i.e., within approximately a week or two).
The grievance was of a type that had to be referred to the MGERC for Findings and Recommendations (F&R) by virtue of para 7.21(a) of the QR&O. What wasn’t adequately explained was why it took four months to refer the grievance to the MGERC. There was no material advancement of this grievance during that period of time. The file was simply referred to the MGERC after it was received by the final authority’s grievance support staff. In any event, it arrived at the MGERC in early December 2018.
The grievance was assigned to the (then) Vice-Chairperson of the MGERC, who took over 10 months to produce a 9-page F&R. And that further delay went largely unexplained. No input was sought from the grievor during this period, and there did not appear to be any inquiry by the MGERC seeking further information. This is noteworthy due to the fact that the grievor had clearly, and repeatedly, indicated failures of disclosure in both the Administrative Review and the adjudication of the grievance by the initial authority.
The file was not particularly large, and some documents were repeated in the file (technically making it even shorter). A key reason why the file was not particularly large was that the product of an investigation, of which the grievor was purportedly the subject, was never disclosed. And this deficiency was repeatedly raised by the grievior. Up to this point in the process, no one bothered to correct that failure. It is unclear whether, during the four-month gap between the final authority’s receipt of the grievance and the subsequent referral to the MGERC, anyone at DGICCM or the CFGA tried to remedy this deficiency. Certainly, four months should have been sufficient to do so. And no further information was forthcoming at that stage.
In any event, at the end of October 2019, the MGERC Vice-Chairperson completed his F&R. These F&R were predicated upon the same deficient file that was sent to the MGERC and offered the same problematic and unreasonable justifications as had been offered by DMCA and the Acting DGMC, albeit, framed in a slightly different manner.
In approximately 4 months (which included the CF’s ‘Seasonal Holiday’ at the end of December and start of January, and which typically extends over three weeks), the grievor offered a robust response to these F&R, again explaining the ongoing disclosure deficiency, as well as multiple other shortcomings that were repeated in the grievance process and the review by the MGERC.
This was followed by lengthy silence from the final authority’s grievance staff.
Then, suddenly, the grievor was provided with disclosure (albeit excessively and improperly redacted disclosure). He received it over 32 months after he submitted his response to the MGERC F&R. And this disclosure was not accompanied by any analysis or synopsis, contrary to CF policy.[8]
Nevertheless, the grievor provided robust representations to this disclosure in a timely manner. And, by timely, I mean that he provided his representations in approximately 6 weeks. (And, if you are keeping track of the time, this was less than 1/20th of the time it took the grievance staff to provide the redacted disclosure after the grievor had responded to the MGERC F&R.)
And, in his response, the grievor expressly pointed out the ongoing delay in the adjudication of his grievance and the failure of the final authority’s grievance staff to provide him with a synopsis and analysis to which he could respond. In fact, after identifying that he was entitled to a synopsis from the grievance staff, he expressly pointed out that, once a synopsis was provided, he had a right to respond to such a synopsis. These concerns were largely ignored.
The grievor then waited a further 21 months for a decision from the FA, during which time, there was no meaningful communication about his grievance.
And even though the FA had corrected some (but not all) of the disclosure deficiencies, the FA certainly did not remedy the ongoing delay. In fact, the decision letter that the grievor received barely acknowledged the unreasonable delay in the adjudication of his grievance. The grievor had offered robust argument regarding the motivations that led to delay, including demonstrating how the delay signalled a closed-minded approach to his grievance and that it was increasingly obvious that the goal of CF decision-makers was to rehabilitate and uphold an initial decision that was both unfair and unreasonable.
Here’s what the CDS had to say about those arguments:
I also note that, throughout the process, following the various disclosures, you have claimed that you do not have confidence in the CAF grievance system and you question its overall impartiality. While I understand and appreciate that you are upset and disappointed by the time it has taken to consider your grievance, I cannot accept your allegations that decisions were made as a result of a disingenuous application of relevant law and that decisions were subsequently reverse-engineered to substantiate the same outcome. I can assure you that my review of your grievance was thorough and completed in all fairness. I have trust in the grievance system and believe it is one in which justice can be done. I understand that you are seeking a fair and transparent adjudication of the matter you have raised and I am committed to bringing that about. Although I am not prepared to grant the redress you seek, I hope that my explanation will give you the comfort of knowing that my decision is reasoned and sound.
There are a few problems with this hollow assurance.
First, the determination that the CDS offered was not fair. The Federal Court overturned the CDS’ decision expressly because it was not procedurally fair. And that is significant in light of the fact that correcting failures of ‘procedural fairness’ is one of the principal purposes of the grievance process – if not the principal purpose. How many times has the final authority upheld a decision by a CF decision-maker that was initially procedurally unfair, asserting that the grievor had now received procedural fairness through the grievance process? After all, the grievance process is purportedly a de novo hearing.
(That’s a rhetorical question. The reality is that almost every decision that is grieved for lack of fairness will lead to this assertion being made by the initial or final authority. And they will typically cite the Federal Court of Appeal decision in McBride v Canada (National Defence), 2012 FCA 181 [McBride] when doing so.)
As I explained when I discussed my own grievance, mired in delay, the de novo nature of the CF grievance process described in McBride might be curative for initial shortcomings in procedural fairness; however, it does not automatically cause an unreasonable decision to become a reasonable outcome.
Second, the CDS offered little or no material acknowledgement for the delay arising for the grievance. What he wrote amounted to what some might characterize as “mansplaining”. The CDS did not explain why grievance staff “went dark” for extended periods of time after they received representations from the grievor that pointed out the many shortcomings both in the initial impugned decision and in the grievance process. The CDS failed to acknowledge that his own grievance staff failed to follow the rules that the CF has established for grievance adjudication.
And the grievor’s lack of confidence in the CF grievance process is understandable. He was subject, initially, to an unfair and unreasonable decision to release him under a compulsory release item. At each stage in the grievance process, statutory actors failed to remedy the deficiencies in disclosure while they desperately tried to reverse-engineer justifications for an unfair and unreasonable decision, failing at each stage.
And it is ironic that the CDS asserted that “… following various disclosures …” the grievor indicated his lack of confidence in the grievance process. Presumably, the CDS was referring to the ‘disclosure’ of the synopsis by the initial authority’s staff and the F&R by the MGERC Vice-Chairperson. Each so-called ‘disclosure’ did not, in fact, disclose anything new, notwithstanding that the grievor had repeatedly demonstrated that decision-makers were relying on assertions and conclusions that were not predicated on evidence that had actually been disclosed. Indeed, the repeated failures in disclosure were only remedied after the MGERC produced their F&R, and the grievor identified, yet again, the ongoing failure of disclosure. And the disclosure that was offered was improperly redacted and was not accompanied by any synopsis or analysis.
Third, throughout this grievance, successive decision-makers remained fixated on upholding a conclusion that was of questionable merit, once all relevant facts were disclosed and considered.
And I suggest that a principal motivator for upholding a DMCA decision that was, initially, unfair and unreasonable, was because the CDS cannot actually remedy an unfair and unreasonable release from the CF. And, with each passing year, the magnitude of the unfair and unreasonable release increases, because there is no remedy for the increasing gap of time between the unfair and unreasonable release and a reasonable resolution of the grievance arising from such a release.
Senior CF decision-makers will never admit or acknowledge this remedial lacuna; to do so would acknowledge that the CF grievance process is not always an adequate alternate remedy. It would certainly demonstrate that it is not a comprehensive remedy.
Instead, as in this grievance, they will turn their efforts to rehabilitating what was, initially, an unfair and unreasonable decision. They will turn their efforts to attempting to ‘review-proof’ their decisions. And such efforts take time. There are several levels of review to refine the language of the justification. There will undoubtedly need to be legal review to ensure the viability of a decision to withstand judicial review. This is particularly true where the grievor is known to have retained counsel. And resolution of grievances is not seen as an operational priority.
I contend that is why this grievance took 6 years to determine once it was referred to the final authority. That is why there were large gaps in time, measured in months and years, when the grievor received no indication of any material developments in his grievance.
And the final authority determination was overturned because the relevant decision-makers and their staff were focused more on upholding a decision at first instance, than on a fair, open-minded, and reasonable review of the issues raised in the grievance.
It is comparatively easy to defend a fair and just decision. Res ipsa loquitur – such decisions speak for themselves. It is markedly more difficult to defend a contrivance or an attempt to reverse-engineer a decision that was procedurally and substantively flawed. It is even more difficult when senior decision-makers consistently refuse to acknowledge, or try to minimize, the shortcomings of prior decision-makers throughout the relevant processes.
Ultimately, it took 6 ½ years from the date that the grievor first submitted his grievance to the date that the grievor received a final decision. And for six of those years, the grievance languished with the final authority – the CDS.
And here’s the thing: the “CDS Directive for CAF Grievance System Enhancement” was issued 3 March 2021. That was approximately 3 years after the grievor in this matter submitted his grievance, and 3 ½ years before he received the FA determination of his grievance. And it was issued by (then) Lieutenant-General Eyre, the Acting CDS. Despite the existence of this policy, this grievance, and many like it, were not adjudicated in a timely manner.
And delay continues to plague the CF grievance process.
Trying to justify unjustifiable decisions causes delay
When I discussed my own grievance a year ago, I posited that the more ‘uncomfortable’ the decision is for the final authority, the longer it can take for a grievance to be adjudicated. Senior CF decision-makers have demonstrated a Pavlovian desire to uphold the status quo. Let’s face it: people are reluctant to admit that they have made a mistake. And people who are in charge of an institution that is designed to instill and maintain a “habit of obedience” are likely even more reluctant to acknowledge when they, or subordinates, have erred. This is particularly true where they have erred when punishing subordinates.[9]
And delay, which I have experienced personally, and which I describe above, can often be attributed not only to the reluctance of CF decision-makers to acknowledge that errors were made, but also the inability of the final authority to offer a meaningful remedy. They would much rather assert that a grievor was treated fairly and reasonably, even if that isn’t actually true, because they would not then be obliged to grapple with the remedial deficit. And the longer a grievance takes to be adjudicated, the more difficult it can be for the final authority to provide a meaningful remedy. And that factor can have a material impact on the rationale upon which the final authority eventually relies.
It’s a subtle and nuanced impact, but it is one that I have repeatedly encountered. We must remember that initial authorities are not granted any additional powers in the adjudication of grievances. Rather, an initial authority is typically identified by virtue of being an officer who is a commander or Director General (or higher) who is responsible for the subject matter of a grievance.[10] That doesn’t necessarily mean that the initial authority will have the requisite powers to grant meaningful remedy. It just means that they are responsible for the mess that arises and for cleaning it up.
Similarly, the NDA does not grant the CDS any additional powers as the final authority in the grievance process. The CDS is limited to her powers for the control and administration of the CF.[11] Those powers are not insignificant. But nor are they sufficiently broad that the CDS can remedy all matters that might be the subject of grievances.
[And I am well aware that, in 2012, the CDS was given the power to award ex gratia payments in very limited circumstances.[12] That power was not granted under the NDA, and it is the subject of examination below.]
The limitations of the final authority’s remedial powers and incapacity to offer meaningful remedy in certain circumstances will act as incentives for the final authority to try to justify refusing to grant any a remedy (or, alternatively, act as disincentives for the final authority to determine a grievance in favour of a grievor). The CDS is unlikely to conclude that a grievor was treated unfairly and unreasonably and then acknowledge that she cannot provide any remedy. That would undermine the myth of the CF grievance process as an exhaustively comprehensive adequate alternate remedy.
As I explained in my Blog post of 28 January 2025, “Motions to Strike/Dismiss Applications and Actions by CF Personnel”, the AGC will routinely seek to dismiss actions against the Crown or strike Applications by CF personnel based upon the grounds that the CF grievance process is an adequate alternate remedy.
They are often successful in these motions to dismiss and motions to strike: Fortin v Canada (Attorney General), 2021 FC 1061 [Fortin]; Chua v Canada (Attorney General), 2014 FC 285 [Chua]; Kleckner v Canada (Attorney General), 2014 ONSC 322 [Kleckner ONSC][13].
Sometimes – rarely – they are unsuccessful: Thomas, supra; Gayler v Canada (Director Personnel Careers Administration Other Ranks, National Defence Headquarters), 1994 CanLII 3544 (FC), [1995] 1 FC 801 (FC TD).
Sometimes – as in Bernatchez c Canada (Procureur général), 2024 CF 1426– the AGC inexplicably doesn’t bring such motions.
And sometimes the Crown, for political reasons, will choose not to rely on such arguments: Heyder v Canada (Attorney General), 2019 FC 1477.
Typically, counsel for the AGC will argue not only that CF grievance process is an “adequate alternate remedy”, but also that it is so comprehensive that no other statutory remedial process can compare to its breadth of remedial potential. And this argument, and the increasingly dated precedents upon which it is predicated, represents the basis for judgments such as those in Fortin and Kleckner ONSC.
And, frankly, that theory is a bit of a myth. It may have once been true, thirty years ago, but in the present legislative circumstances, it represents a marked exaggeration of the merits, and scope of remedy, of the CF grievance process.
And I suggest that the motivation to maintain that myth drives a great deal of decision-making for grievances in which delay has markedly narrowed the scope of meaningful remedy.
Myth of the CF Grievance Process as Comprehensive Remedy
The CF grievance process relies upon the myth that it is not only an “adequate alternate remedy”, but that it is “exhaustively comprehensive”.
Whenever any CF member seeks a remedy before the courts without first exhausting the CF statutory grievance process (and, often, after they have exhausted the CF grievance process), the AGC routinely seeks to dismiss or strike actions and applications based upon the argument from the judgment in Jones v Canada, (1994) 87 FTR 190, 51 ACWS (3d) 1271 (FC TD) [Jones] that the CF grievance process:
… accommodates any and every wording, phrasing, expression of injustice, unfairness, discrimination, whatnot. It covers everything. It leaves nothing out. It’s exhaustively comprehensive.[14]
This sentiment was reinforced by the Federal Court of Appeal in Anderson v Canada (Armed Forces), [1997] 1 FC 273 (CA) [Anderson].[15]
The judgments in Jones and Anderson have been relied on for 30 years to justify AGC motions to strike or dismiss actions and applications brought by CF members. They have been used to justify the CF grievance process as not only an “adequate alternate remedy”, but also an exhaustively comprehensive remedy.
Approximately a decade after Jones was decided, the AGC brought a motion to dismiss an action and strike a proceeding in Bernath v Canada, 2005 FC 1232 [Bernath]. A Prothonotary of the Federal Court (now called Associate Judges) relied upon Jones and what was (at that time) the 27-year old judgment in Gallant v The Queen in Right of Canada (1978), 1978 CanLII 2084 (FC), 91 DLR (3d) 695 [Gallant][16], to conclude that the CF grievance process was so comprehensive that:
… [t]here is no equivalent in any other statute of Canada in terms of the scope of the wrongs, real, alleged, imagined wrongs that a person can get redress for anything. That is the difference between the civilian and the military person.[17]
This conclusion was then added to the arsenal of arguments upon which the AGC often relies when bringing motions to dismiss/strike applications and actions by CF personnel.
However, the conclusion was problematic for a couple of reasons.
First, it isn’t actually true – or, at least, not accurate. The CF grievance process closely resembles the grievance process for uniformed officers of the Royal Canadian Mounted Police (RCMP). When the CF grievance process was significantly amended under Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts[18], over twenty-five years ago, the changes were modelled on the 2-tiered grievance process that was in use by the RCMP. Even the name of the Military Grievances External Review Committee (MGERC) is derived from the “External Review Committee” for the RCMP grievance process.[19] While both processes have evolved, sometimes in different ways, since 1999, there remain marked similarities.
I will concede that, unlike members of the CF, officers of the RCMP are (now) regarded as being in privity of contract with the Crown (or a representative of the Crown), whereas officers and non-commissioned members (NCM) of the CF are not[20]. That wasn’t always the case; less than a century ago, the RCMP (and RNWMP, and NWMP) was considered a para-military force, and the Victorian principles of law captured in Gallant and similar cases regarding the Crown-soldier relationship, were applied to the RCMP in a similar manner.[21]
As I have explained previously, the merit of the conclusions in Gallant have eroded in the 47 years since that judgment (by a court at first instance) was handed down. It purportedly stands for the principles that: (1) CF personnel are not in privity of contract with the Crown; and, (2) that a member of the CF cannot seek a remedy before the ‘civil courts’.
The first principle may still have some merit; however, it’s merit is open to interpretation. It is essentially an antonymic definition. CF personnel are not in privity of contract with the Crown. Fine – if one accepts that proposition, then how should the relationship be defined? Because Gallant and the Victorian case law upon which it relies (Dunn v The Queen, [1896] 1 QB 116, Mitchell v The Queen, [1896] 1 QB 121n) don’t really answer that question in the modern juridical context.
The second principle is dubious at best. CF personnel have repeatedly obtained remedy before the civil courts, both through applications for judicial review and in actions against the Crown. The “Victorian sensibilities” described in Gallant have gone the way of similar Victorian sensibilities in terms of dress, appearance, and language. We are long overdue for a reconceptualization of the principles examined in Gallant.[22]
But the main fault of the conclusion in Bernath, and the several judgments in the twenty-five years following the coming into force of Bill C-25 (all of which relied upon Jones and Anderson, either directly, or indirectly)[23], is that they failed to account for the marked change in the decision-making authority in the CF grievance process, and the very structure of that process.
Upon coming into force on 1 September 1999, Bill C-25 changed the legislative basis for the CF grievance process from a single statutory provision[24] and two discrete articles of the QR&O[25], to multiple statutory provisions[26], and an entire chapter of the QR&O[27].
Prior to the enactment of Bill C-25, the final authority for grievances submitted by an officer or NCM of the CF was the Governor in Council, and the penultimate authority was the Minister of National Defence.[28] The remedial powers of the Governor in Council were, and are, significant, and they include the capacity to legislate by regulation[29] and the exercise of prerogative powers[30]. The Governor in Council could settle claims against the Crown. (Granted, it typically took an unreasonable amount of time to do so, but that was technically within the authority of the Governor in Council.)
With the coming into force of Bill C-25, the final authority in the CF grievance process was downgraded to the CDS.[31] And the use of the term “downgraded” is not hyperbole.
The CDS faces significant limitations in her remedial authority. The CDS cannot settle claims against the Crown[32]; the CDS cannot even admit or accept liability on the part of the Crown.[33] The CDS cannot reinstate a CF member who is administratively released for an improper or unreasonable purpose.[34]
And this last lacuna could have been rectified. Bill C-15[35], which received Royal Assent 19 June 2013, included a provision[36] that, if brought into force, would have permitted the CDS to reinstate CF persons if “… satisfied that the release or transfer was improper”, (however that would eventually be defined). However, that provision was never brought into force and was permitted to lapse.[37]
The CDS can now grant ex gratia payments[38], but this power has been fettered significantly by Treasury Board (TB) Conditions. And it is often misrepresented as a power to offer “compensation”[39]. I expand upon this issue below.
The key factor to consider, however, is that judgments that have arisen following the significant legislative change introduced under Bill C-25 have failed to examine this paradigm shift in remedial powers and have failed to consider the extent to which Jones and Anderson now adequately inform the courts regarding the application of the current grievance process.
At the time of the Jones and Anderson judgments, the final authority in the CF grievance process, the Governor in Council, possessed significant and comprehensive remedial authority. This was, presumably, the source of the judicial conclusions regarding the “exhaustively comprehensive remedy”. It was also, presumably, the source of the reasoning in Bernath, supra, notwithstanding that, by the time that Bernath was decided, the Governor in Council was no longer the final authority. And this factor does not appear to have been considered by the Prothonotary in Bernath. Nor does it appear to have been considered by the judges in any of the judgments that have relied upon Jones and Anderson in the past 25 years.
The remedial authority changed on 1 September 1999, when Bill C-25 came into effect. And the judgments asserting the adequacy of the CF grievance process, arising after the coming into force of Bill C-25, have continued to rely upon Jones and Anderson (and judgments based upon Jones and Anderson), without examining the comparatively limited, and far less comprehensive, remedial powers of the CDS, or the current shortcomings of the CF grievance process.[40]
What about the CDS’ ex gratia power?
One of the remedies that is frequently mentioned by the courts – but which is very rarely used – is the CDS’ power to grant ex gratia payment.
Unfortunately, this power is often mischaracterized (when it is convenient to do so) and it is not well understood.
The CDS cannot settle claims against the Crown and cannot even admit to liability without the consent of the Minister[41] – who, as I point out above, was the penultimate adjudicative authority for CF grievances before Bill C-25 came into force and downgraded the final authority to the CDS. In lieu of the power to settle claims against the Crown, in 2012, the Governor in Council empowered the CDS to make ex gratia payments in the resolution of grievances.[42]
But, before anyone starts celebrating, let me introduce “a bucket of cold water” into the discussion.
This power should not be conflated with the power to settle claims against the Crown or award compensation to which a CF member might be entitled at law. Not long after this power was conferred on the CDS, it was examined by the courts in the context of argument to dismiss an application for injunctive relief.
In Kleckner ONSC, supra, Justice McKinnon of the Superior Court of Justice for Ontario held that the CDS
… has the requisite authority and jurisdiction to apply the Charter, to determine whether Charter rights have been breached, and, given the power to make ex gratia payments in appropriate circumstances, to compensate individuals whose Charter rights might have been infringed …”[43]
However, this conclusion is not consistent with the limitation placed upon the CDS’ power to grant ex gratia payments. In fact, there is a compelling argument that this power was intended never to be used (notwithstanding that it has been used, though very rarely). The parameters of the Order in Council are fairly broad[44]; however, conditions imposed by the Treasury Board[45] narrow the scope of the power to the point that the final authority could, arguably, justify never using it.[46]
The Treasury Board’s “Conditions for the Exercise of Ex Gratia Authority” [TB Conditions] set out five specific requirements under which such payments can be made; an ex gratia payment may only be authorized if:
- in the case of the CDS, the payment is in an amount that does not exceed $100,000;
- in the case of an officer who is acting under section 2 of the Order, the payment is in an amount that does not exceed $2,000 or such lesser amount as may be specified by the CDS;
- a legal opinion is received (presumably from the Director of Claims and Civil Litigation in the Department of Justice Legal Services Unit (LSU) referred to as the DND & CF Legal Advisor) that states that there is no legal liability on the part of the Crown;
- there is no other mechanism by which the grievance can be remedied, including under existing laws, regulations, instructions, policies or programs; and
- 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.
These conditions are not publicly available (which represents a separate issue regarding the transparency of such decision-making). However, they are described in the judgment for Stemmler v Canada (Attorney General), 2016 FC 1299.[47]
Contrary to Justice McKinnon’s conclusion in Kleckner, in circumstances in which a CF member claims to have suffered damages due to a breach of their Charter rights, these TB Conditions would preclude the CDS from using her ‘ex gratia power’ to provide compensation.
The landmark case of Vancouver (City) v Ward, 2010 SCC 27 [Ward] established that a court of competent jurisdiction could grant damages under s 24 of the Charter as compensation for a breach of Charter rights. This was reinforced by the subsequent judgment in Henry v British Columbia (Attorney General), 2015 SCC 24 [Henry]. While Henry was decided after the judgment in Kleckner was handed down, Ward preceded the judgment in Kleckner by four years.
Were the CDS to use her power to award damages for a breach of Charter rights, she would breach the fourth and fifth TB Conditions. Moreover, the relevant legal advisor would likely be precluded from offering the requisite legal opinion under the third condition. And, the CDS doesn’t have the authority to award damages, let alone settle claims against the Crown or acknowledge liability on the part of the Crown.
Assertions that the CDS can use her ex gratia power to award damages, or compensation generally, amounts to a convenient shell game. When the issue of “adequate alternate remedy” is raised before the courts, the Crown will quickly assert that the CDS’ ex gratia power represents a significant remedial power as a means of bolstering claims that the CF grievance process is a broad and comprehensive remedial mechanism. But that doesn’t mean that it is used in such a broad and comprehensive manner, or that it can be used in that manner.
In fact, one could argue that it is designed not to be used. I have made that argument.[48] And it is supported by the fact that the prohibition against gap-filling (the fourth TB Condition) is typically applied broadly and liberally and could conceivably be applied to any potential circumstance as a convenient justification not to use the power.
For example, we know from Gallant that CF personnel are not in privity of contract with the Crown. Consequently, a CF member who is compulsorily released from the CF cannot claim damages based upon “unjust dismissal” or “constructive dismissal”. A statement of claim for such an action must be based upon termination of a contractual relationship. Therefore, were the CDS to grant an ex gratia payment to compensate for “lost wages” where a CF member has been unfairly, unjustly, or improperly released from the CF, that would constitute gap-filling.
In fact, in light of the supposedly comprehensive legislative structure for the governance of the CF, the CDS could decline to use her ex gratia power in any circumstance arising within that governance framework by concluding that it would constitute gap-filling. And that factor reflects a related principle about this power: it is entirely discretionary. In comparison, damages awarded by a court represent enforceable financial compensation that is owed to a plaintiff as a function of law.
Even in the non-contractual Crown-soldier relationship, a CF member will be entitled to certain financial benefits. A newly promoted corporal will be entitled, as a matter of law, to the rates and conditions of pay for that rank as prescribed in Sections 1 and 3 of Chapter 204 of the Compensation and Benefits Instructions (CBI), which are established under the authority of s 35 of the NDA. A newly promoted Corporal, who does not occupy a specialist military occupation, will receive a rate of pay of $6069.00 per month based upon Table “A” to CBI 204.30 (as of the date of this Blog post). That represents a financial entitlement. (And it is a financial entitlement that can be changed, unilaterally, by the Treasury Board.)
An ex gratia payment, on the other hand, is entirely discretionary. It is discretionary to the point of being nearly arbitrary (provided the CDS complies with the TB Conditions). Absent the exercise of broad discretion by the CDS (or her delegate), no CF member is ever entitled to an ex gratia payment. Unlike damages, or payments under the CBI, a CF statutory decision-maker cannot be compelled to make an ex gratia payment. It is a payment “by the grace of the Crown”. And, under the TB Conditions, it is a power that the CDS could justify never using again.
Then again, such power is like a “bright shiny toy”, and Star Wars collectors aside, it would be naïve to expect a recipient of such a toy never to take it out of the box.
It has been taken out of the box, on more than one occasion. The occasion that is publicly known is described in the judgment of Stemmler, supra. There are other, limited, occasions in which it has been used; however, attempts to obtain such information can be elusive. And it is conceivable that it might never be used again.
A brief tangent on disingenuous refusal to disclose information
Through requests under the Access to Information Act, I am aware that the CDS’ ex gratia power has been used on more than one occasion. However, details beyond that vague information are difficult to obtain. Representatives of the Crown have repeatedly refused to disclose information about its use based upon an assertion that such information constitutes a “Cabinet Confidence”. I suggest that this justification lacks merit.
Certainly, any communications, such as Memoranda to Cabinet, or similar communication from the Minister of National Defence to the Governor in Council, would likely fall within the definition of “Cabinet Confidences”.[49] Thus, such steps or deliberations leading to the decision by the Governor in Council to impart this authority on the CDS would likely fall within “Cabinet Confidences”. Similarly, communication to and from the Treasury Board (a sub-committee of Cabinet) regarding the development of the TB Conditions for this power also likely fall within the definition of “Cabinet Confidences”.
However, a decision by the CDS (or the CDS’ delegate) to exercise this power is manifestly not a “Cabinet Confidence”. It is an exercise of a power granted to the CDS by the Governor in Council, amplified by the TB, and exercised in the determination of a grievance under the NDA.
Thus, the exercise of that power by the CDS can, and should, be disclosed pursuant to a request under the Access to Information Act. Certainly, personal information would likely have to be redacted from such disclosure.[50] But that would involve redacting the names and identifying information from the documents. The fact that the power had been exercised, and when it was exercised, and even the amount granted, could, and should, be disclosed.
And, while I am aware that complaints about improper withholding of information can be communicated to the Information Commissioner, I am also aware that this represents a relatively toothless recourse.
So much for transparency in government.
My point here is that the Crown has improperly fettered the capacity of persons to obtain relevant information, which impacts the transparency of the use of the CDS’ ex gratia power under the CF grievance process. And this relates directly to the extent to which the CF grievance process is an “adequate alternate remedy”.
Back to Stemmler
Notwithstanding the improper tactics employed by the Crown regarding transparency, the final authority’s ex gratia power has been used. And discussion of the manner in which it may be used would generally rely on the one instance in which this power has been examined publicly: Stemmler.
In Stemmler, the applicant was a CF member who was subject to Medical Employment Limitations (MEL) arising from a mental health injury that was attributable to his service as a military police investigator. Corporal Stemmler sought a “Period of Retention” (POR) in the CF notwithstanding his MEL. Although a POR was initially granted, there were repeated difficulties in identifying a position in which Corporal Stemmler could be ‘employed’. Thus, his POR was terminated, and he was released for medical reasons.
In Stemmler, Justice Gascon observed that the CDS had determined that Corporal Stemmler’s request for a POR was unreasonably terminated:
… The CDS found that the evidence supported the conclusion that Cpl. Stemmler had known health issues that were being addressed appropriately and that he was ready to continue working in the CAF despite the challenges. The CDS added that “[t]he cancellation of [the] transfer to a unit that was overworked and understaffed seems to have arisen from non-medical staff drawing conclusions that [the] MELs were worse than specified by the rightful medical authorities”. The CDS also noted that “other options were available to maintain [the] POR to January 2013”. On that basis, the CDS found that the process that led to the termination of Cpl. Stemmler’s POR “was unreasonable and that [Cpl. Stemmler] ha[s] been aggrieved”. The CDS further found that Cpl. Stemmler’s right to procedural fairness had been violated by the fact that his POR was terminated without him being given the opportunity to respond to the concern that his MELs had changed. The CDS visibly regretted the situation. However, though he found that the cancellation of the POR was inappropriate, the CDS determined that it was not illegal and that the release of Cpl. Stemmler therefore had to stand.[51]
The CDS then rejected the recommendation from the MGERC that he could reinstate Cpl Stemmler. As I indicate above, had the relevant provision from Bill C-15 been brought into force, the CDS would have had the power to reinstate CF personnel who were “improperly” released. However, even if the CDS had the power to reinstate personnel, Cpl Stemmler would not have met the requirements of “Universality of Service”.[52]
Since the CDS was limited in terms of remedy, he then turned to his power to grant an ex gratia payment, describing it as a “… benevolent payment made by the Crown and is used only when there is no other statutory, regulatory or policy vehicle for remedy”[53].
Corporal Stemmler received an ex gratia payment of $25,000.00. This payment was justified based upon the unreasonable termination of his POR. Due to the TB Conditions, the ex gratia payment could not be used to fill a policy gap. It could not be used to ‘compensate’ Corporal Stemmler for “lost wages” – arguably, due to both the prohibition against “gap-filling” in the TB Conditions and the fact that, since CF personnel are not in privity of contract with the Crown[54], there could not be “lost wages”.
As Justice Gascon observed:
Since the ex gratia payment cannot be used as compensation for apparent governmental limitations, the CDS had to base himself on considerations other than damages to compensate for the shortcomings of the CAF grievance process. He had to determine the amount himself, within the parameters set out in the TB Conditions and using his specialized expertise in military matters. …[55]
The discretionary decision cannot be conducted in bad faith, arbitrarily, or dishonestly, and it cannot be based upon irrelevant considerations[56] or upon bad faith considerations. However, the reality regarding the CDS’ ex gratia power is that it is defined (much as the Crown-soldier relationship is defined) in antonymic terms. The TB lists factors that would prevent the exercise of this power. Some of those limitations are such that they could be interpreted as barring the exercise of this power in almost any circumstance.
However, if the CDS does choose to exercise this power, it is unlikely that the recipient will object to a payment made “by the grace of the Crown”. And, if the recipient does object, based upon an argument that the payment is insufficient, it would be difficult (read: practically impossible) to compel the CDS to grant a higher sum in light of the breadth of discretion by which such decisions are made.
The CDS could, objectively, decline ever to use the ex gratia power again. It has been over a decade since it was used in Stemmler, and we have very little information regarding its use since then. I’m sure a Star Wars collector would have warned that it would lose its value once it is “taken out of the box”. Perhaps now that it has been used, the desire to use this markedly limited discretion has lost its lustre. It is not a power that the CDS can be compelled to use. It clearly does not constitute payment of damages. Nor should it be considered to represent payment of compensation to which the recipient is entitled at law.
The ex gratia power is not a reliable or meaningful remedy. It is not the type of compensation regime by which it has occasionally be characterized by the courts. It is certainly not representative of comprehensive remedial powers exercised by the CDS.
What if the FA cannot grant a meaningful remedy?
The subject matter of grievances varies broadly. Some can involve minor exercises of statutory powers, such as the decision to impose a low-level remedial measure like “Initial Counselling” (IC)[57]. Some grievances may arise from erroneous decisions that result in “shortchanging” a grievor a small amount of money owed for reimbursement for a travel claim.[58] Alternatively, a decision might have significant impact on a CF member: e.g., Counselling and Probation (C&P)[59], termination of a career-enhancing posting, the recovery of a sizeable “over-payment”, or even compulsory release[60].
And, as anyone who is familiar with Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker] will know: the content of fairness for such decisions will vary based upon several factors, including:
- The nature of the decision being made and process followed in making it;
- The nature of the statutory scheme and the statutory provisions pursuant to which the decision-maker operates;
- The importance of the decision to the individual or individuals affected;
- The legitimate expectations of the person challenging the decision; and,
- The choices of procedure made by the institution or decision-maker.
Nevertheless, any CF member who believes themselves aggrieved by a decision, act, or omission in the administration of the affairs of the CF is permitted – one might argue obliged – to submit a grievance if the CF member wishes to obtain some form of remedy.[61]
Many such decisions may be remedied by the final authority (or even an initial authority). A remedial measure that is unreasonable or imposed in an unfair manner could be cancelled, downgraded, or even justified by a redress authority. And, quite often, I have encountered circumstances in which an initial or final authority will stubbornly seek to justify a remedial measure, rather than acknowledge that it was imposed in an unfair manner or that it might be excessive. And such decision-makers know that, when a grievance is eventually concluded (after several years), the courts will be deferential toward the CF decision-makers regarding the selection of the appropriate remedial measure.[62]
An error in applying a reimbursement regime under the Compensation and Benefits Instructions (CBI) can be remedied by a proper application of the relevant policy. To be clear: this is not tantamount to awarding damages. Superior Courts of Justice may grant damages; redress authorities in the CF grievance process cannot. Redress authorities are not generally empowered even to settle claims against the Crown. When a grievance pertaining to financial entitlements under the CBI are resolved in the favour of a CF member, they almost always involve that proper application of the policy in lieu of the erroneous application of the policy that led to the grievance.
However, some grievances cannot be remedied by the CDS or any other redress authority. And this lacuna arises from the absence of any additional powers conferred on those authorities (save for the above-mentioned ex gratia power). This is because the CDS, the CDS’ delegates, and the various officers who perform the functions of initial authorities, are limited to their normal statutory powers. And, while those powers include broad discretion within the narrow scope of those powers, they are not comparable to Superior Courts of Justice. They are not comprehensive remedial powers such as those wielded by the Governor in Council.
We must remember that the final authority and the various initial authorities do not exist as specially constituted tribunals. Their roles as adjudicative authorities in the CF grievance process can be characterized as duties arising from their leadership roles. In other words, they are not given power over CF personnel and their grievances in order to adjudicate those grievances; they are obliged to adjudicate grievances because they are responsible for the control and administration of the CF (or, at least, the portion of the CF over which they exercise authority).
And the lack of any additional remedial powers means that there are certain types of grievances for which they cannot offer meaningful remedy. And object examples of such grievances include those that concern decisions to release a CF member where the decision is unfair or unreasonable. In other words, where the decision is unjust.
As I mention in my discussion of Stemmler, supra, the issue for Corporal Stemmler was not whether his MEL justified a compulsory release. His grievance concerned is POR. The CDS’ inability to reinstate him was largely irrelevant since he was in breach of Universality of Service principles.
But what about someone whose release was unreasonable?
The CDS cannot reinstate such a grievor either. And the barrier to reinstatement is not due to MEL – it is due to an absence of any power to reinstate personnel. That could have been corrected. Parliament acted. But the Governor in Council and the CF dropped the ball. And they did so despite repeated warnings.
The most that the CDS can do is offer to re-enroll the grievor expeditiously. But, if the grievance has taken over 5 years to adjudicate, that delay might pose problems. Without alternative employment, the grievor may well have been obliged to seek new employment. The grievor may be precluded from rejoining the CF “expeditiously”. The grievor might no longer be medically fit to serve. The grievor’s circumstances may have changed.
And, even if the grievor may be capable of rejoining the CF (God knows, the CF is desperate to improve recruiting), how can the grievor be compensated for the lost opportunity to advance in their MOS? If the grievance took 6 or 7 years to adjudicate, that represents a significant portion of what would have otherwise been the CF member’s career. And, unless the CDS or other CF decision-makers are willing to propel the grievor past other CF personnel who have been working in good faith toward promotion, there is little that can be done to remedy this lost opportunity. Plus, even if the CDS were to place the grievor ahead of other who have been serving for the relevant period of time, the CDS cannot magically imbue the grievor with the years of experience that the grievor was prevented from obtaining.
When one considers these irreparable factors, it becomes much easier to acknowledge the incentive that the CDS or final authority might have in justifying a release that was unfair or unreasonable, in order to avoid having to address these difficult circumstances. It explains why the CDS takes years to adjudicate such grievances: it takes a long time to reverse engineer a justification that will rehabilitate a decision that was unfair, unreasonable, and unjust. And the CDS and other redress authorities, and their legal advisors, are acutely aware that reviewing courts will be deferential, provided that they can ’tick the boxes’ for procedural fairness and develop reasons to justify an outcome and initial decision that could not stand on its own merits.
Conclusion
Nearly four years ago, I penned a three part series about “Grievance Myths”, beginning with a post entitled “Grievance Myths – A Remedy for Canadian Forces Personnel?” (28 July 2021), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/grievance-myths-a-remedy-for-canadian-forces-personnel/>. The present Blog post revisits, and expands upon, some of the themes discussed in that post. I drafted that post shortly after the (then) Acting CDS issued his “Directive for CAF Grievance System Enhancement” that would supposedly correct the chronic delay in the adjudication of grievances.
It didn’t.
And it appears that there are no tangible consequences for failure in this endeavour – at least not for the CF chain of command.
And the conclusion from that post is as true today as it was then (with minor amendments to bring it up to date):
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 redress 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 created 13 years ago, outside of the NDA and 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 her delegates. It is very rarely used. And it does not remedy the incapacity of any redress authority to settle claims against the Crown, to award pecuniary damages, or to reinstate a grievor.
On the other hand, the Crown benefits considerably from the existence of a purportedly comprehensive legislated grievance regime (even if it is not as comprehensive as the AGC asserts). 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.
The problem is that this grievance regime is not the comprehensive remedy that the Crown consistently asserts that it is. And the ongoing delay in the grievance process is both a product of intransigence in closed-minded decision-making, as well as a contributing factor to the reluctance of CF decision-makers to acknowledge the deficiencies in the grievance process.
[1] Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, para 147, per LeBel J. [Blencoe].
[2] Id, see, in particular, paras 101 to 133.
[3] Defence Administrative Order and Directive [DAOD] 2017-1, Military Grievance Process, Section 8.
[4] National Defence Act, RSC 1985, c N-5 [NDA].
[5] Rt Hon Antonio Lamer, “The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c.35”, 3 September 2003 [Lamer Report], 101 to 103, Recommendation 74; The Hon Patrick J. LeSage, “Report of the Second Independent Review Authority to The Honourable Peter G. MacKay Minister of National Defence”, December 2021 [LeSage Report], 56 to 57, Recommendation #38; The Hon. Morris Fish, “Report of the Third Independent Review Authority to the Minister of National Defence Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5”, 30 April 2021[Fish Report], 180 to 181, Recommendation #89.
[6] Thomas v Canada (Attorney General), 2024 FC 655, para 25 [Thomas].
[7] DAOD 5019-2, Administrative Review.
[8] DAOD 2017-1, n 3, para 10.5.
[9] Consider the recent judgment in Wiome v Canada (Attorney General), 2025 FC 257, in which a review authority for a summary hearing drew confusing and inherently contradictory (and, thus, unreasonable) conclusions when trying desperately to uphold a determination by an “Officer Conducting a Summary Hearing” that was predicated on transparently deficient reasons.
[10] Queen’s Regulations and Orders for the Canadian Forces, art 7.14, [QR&O].
[12] Canadian Forces Grievance Process ex gratia order, OiC PC 2012-0861 [CDS ex gratia Order].
[13] Captain Kleckner was the plaintiff and applicant in two distinct processes – the first was an action before the Ontario Superior Court of Justice, and subsequently, she brought an application before the Federal Court, respectively: Kleckner v Canada (Attorney General), 2014 ONSC 322 [Kleckner ONSC] and Kleckner v Canada (Attorney General), 2016 FC 1206 [Kleckner FC]. In both matters, the AGC sought to strike or dismiss the action or application, relying on similar arguments, though modified to address the specific dynamic that was relevant for the proceedings. The nature of these arguments is discussed in the present Blog post.
[14] Jones v Canada, (1994) 87 FTR 190, 51 ACWS (3d) 1271 (FC TD) [Jones], para 9.
[15] Anderson v Canada (Armed Forces), [1997] 1 FC 273 (CA) [Anderson].
[16] Gallant v The Queen In Right of Canada (1978), 91 DLR (3d) 695 (FC TD) [Gallant].
[17] Bernath v Canada, 2005 FC 1232, para 66; rev’d on other grounds, 2007 FC 104, and 2007
FCA 400 [Bernath].
[18] An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35 [Bill C-25].
[19] As an aside, the initial name for the MGERC was the Canadian Forces Grievance Board (CFGB). That name allegedly caused confusion in light of the term used in legislation for the principal staff for the final authority: the Canadian Forces Grievance Authority (CFGA). The extent and cause of the confusion is debatable. Certainly the names are similar. The (then) CFGB – now – MGERC – played and plays a non-adjudicative role in the CF grievance process, while the CFGA supports the actual decision-maker. But the change to MGERC has not stopped the courts from occasionally and erroneously describing the non-binding “Findings and Recommendations” (F&R) of the MGERC (or CFGB) as “decisions”. For example, see: Byrd v Canada (Attorney General), 2016 FC 1380, para 25; Hamilton v Canada (Attorney General), 2016 FC 930, para 4.
[20] Gallant, n 16.
[21] Re White, 1953 CanLII 458, [1953] 4 DLR 220, 107 CCC 230 (BC SC), relying, in particular, on Dawkins v Rokeby, [1866] 4 F & F 806, 831 (CCP).
[22] Z Cowen, “The Armed Forces of the Crown” (1950) 66 Law Q Rev 478; Garth Nettheim, “Do Members of the Armed Forces Have Any Rights in their Employment?” (1972-1973) 5 Fed L Rev 200; Garth Nettheim, “Dunn v The Queen Revisited”, (1975) 34:2 Cambridge L J 253; Graham McBain, “Abolishing Obsolete Crown Prerogatives Relating to the Military” (2011) 20 Nottingham L J 14; RJ Stokes, “’Sergeant Dunsmuir’: The Crown-Soldier Relationship in Canada” (2011) 24 Can J Admin L & Prac 57.
[23] By relying on judgments that, in turn, relied upon Anderson or Jones.
[24] National Defence Act, as at 31 August 1999, s 29, see Part V, Appendix C.
[25] QR&O, as at 31 August 1999, arts 19.26 and 19.27, see Part V, Appendix C.
[26] National Defence Act, RSC 1985, c N-5 [NDA], ss 29 to 29.28.
[28] QR&O, as at 31 August 1999, art 19.26, n 42. See: Parisé v Canada, 1997 CanLII 16521 (FC).
[30] Black v Canada (Prime Minister), 2001 CanLII 8537 (ON CA).
[32] Rory G. Fowler, “The Canadian Forces Grievance Process: How Adequate an Alternative Remedy Is It?”, (2014) 27 Can J Admin L & Prac 277, 295 to 296.
[35] Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24 [Bill C-15].
[36] Id, s 12. The Coming into Force provision was s 135; the Governor in Council never enacted regulations in order to bring this provision into force.
[37] Statute Repeal Act, SC 2008, c 20. See, also, the Fish Report, n 5, paras 677 to 681, pp 184 to 185: Former SCC Justice Morris Fish expressly stated that “The amendments are still not in force. … [and] could be repealed by operation of law in 2022. This should not be allowed to happen.” It seems that no one listened.
[38] CDS ex gratia Order, n 8.
[39] Kleckner ONSC, n 13, para 47.
[40] For example: Sandiford v Canada, 2007 FC 225, para 28; Moodie v Canada (National Defence), 2008 FC 1233, para 28 [Moodie].
[42] CDS ex gratia Order, n 12.
[43] Kleckner ONSC, n 13, para 47.
[44] CDS ex gratia Order, n 12.
[45] These conditions are not publicly available, but they are discussed at Stemmler v Canada (Attorney General), 2016 FC 1299, para 19 [Stemmler].
[46] See Rory G. Fowler, n 32.
[48] See Rory G. Fowler, n 32.
[49] Access to Information Act, RSC 1985, c A-1, s 69.
[50] Id, s 19; Privacy Act, RSC 1985, c P-21, definition of “personal information” s 3, and s 8.
[61] NDA, n 4, s 29; QR&O, c 7.
[62] Dunsmuir v New Brunswick, 2008 SCC 9, para 47. Although the subsequent judgment in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, clarified issues regarding standard of review and has reinforced the importance of the “culture of justification”, the deference of reasonableness review remains.
