Intransigence in Grievance Adjudication – Part II

16 March 2024

 

In Part I of this 2-part Blog post, I described the circumstances behind what I believe is presently the oldest grievance in the CF grievance process, and the history of that grievance from the date it was first submitted, 15 March 2006, to the present.

I was able to do so because I was the originator of that grievance.

 

Recap of Background

The grievance concerned the decision by the Director of Medical Policy – Medical Standards (D Med Pol – Med Stds) to impose, or otherwise dictate the existence of, Medical Employment Limitations (MEL) and consequently change a Permanent Medical Category (PCat).  The focus of the grievance was on the down-grading of my “Occupational Factor” or “O Factor” from O2 to O3.

This decision was made without any participatory rights for the CF member directly affected by the decision (i.e., yours truly).  Specifically, I was not provided notice of the intended change, disclosure of the evidentiary basis for the proposed change, or an opportunity to make informed representations to the decision-maker, D Med Pol – Med Stds.

I was given reasons for the decision; however, those reasons were largely conclusory.  They did not transparently and intelligibly justify the outcome.

Following submission of my grievance, the legislated decision-makers for the grievance process – specifically the initial authority (IA) and the final authority (FA) – repeatedly referred the grievance back to the original decision-maker for “Subject Matter Expert” (“SME”) review.  Although some of the statutory actors involved in the process may have been inclined to characterize these referrals as seeking SME advice or recommendations, the responses from the SME were very clearly presented as decisions – or, more particularly, refusals to alter the initial impugned decision.

The putative IA for the grievance, Director General Canadian Forces Health Services (DG CF H Svcs) never provided a decision (i.e., they did not determine the grievance) despite being in possession of the grievance for over 8 years.  Their inability to adjudicate the grievance may have been hampered by the two occasions in which they acknowledged that they had lost the grievance.

After repeated delay, I referred the grievance to the FA.  Even that simple process was hampered when my first request to refer the grievance to the FA was misplaced somewhere within Canadian Defence Academy (CDA) Headquarters (HQ).  The grievance was eventually referred to (then) Director General Canadian Forces Grievance Authority (DGCFGA) in the summer of 2014.  A little over two years later, on 2 December 2016, the DGCFGA, acting as the lawful delegate of the Chief of the Defence Staff (CDS) and FA, determined the grievance by concluding that I was not aggrieved and refusing to grant redress.

The decision was transparently unreasonable; on 30 December 2016, I sought judicial review before the Federal Court.  The Attorney General of Canada (AGC) opted not to defend the decision, and, following a motion with the consent of both parties, Justice Annis of the Federal Court, quashed the FA determination and remitted the grievance back to the FA for re-determination.  The grievance has remained with the FA since that point.

 

Scope of Discussion

The discussion that follows will focus on the substance of the grievance.  The purpose of this discussion is to illustrate key principles that may be relevant for CF personnel who are obliged to rely on the CF grievance process.  Part I of this Blog post some that are tangential to the broader legal issues arising in this grievance, and which I will not explore below.

Factors, unique to this grievance, arise from the mishandling of the file and the delay in its adjudication.  And, while the integrity of the contents of the file, and the issue of mootness would be factors that would need to be addressed in the adjudication of this grievance (and any subsequent judicial review before the Federal Court), I will not be addressing those issues below.

The “MEL/PCat grievance” described in Part I of this Blog post raises issues of law pertaining to both procedural fairness and reasonableness.  And an examination of those issues may have some educational benefit for CF personnel.  And one of the over-arching factors relates to who, precisely, is the decision-maker.

I have described the successive failures of statutory actors to consider this grievance in a timely and reasonable manner.  I have highlighted how both the IA and FA, when called upon to consider and determine a grievance regarding a decision attributable to D Med Pol, went back to the same poisoned chalice for “SME advice”.  In light of how both the IA and FA deferred to D Med Pol, it would be accurate to suggest that they were sub-delegating the true decision-making to the decision-maker who made the impugned decision in the first place.  And this constituted an improper sub-delegation.

And this sub-delegation was driven by the assertion that only CF medical officers – specifically those in D Med Pol – are permitted to make these decisions.  And, in the context of a statutory grievance process that is intended to apply to all decisions, acts, and omissions in the administration of the affairs of the CF (save for specific exceptions created by or under the authority of the NDA), and where that same grievance process is held up as an “adequate alternative remedy”, such a proposition is highly problematic.  It appears that Colonel Kile and his fellow medical officers were (and are) of the view that no one is permitted to second-guess their decisions.

And that just isn’t true – particularly where their decisions are made without adequate participation from the people affected by those decisions and where they are inherently unreasonable.

Indeed, not only were senior statutory decision-makers in CF H Svcs of the view that their decisions could not be questioned by laypersons, some expressed the view that their statutory decision-making was not subject to the principle of procedural fairness.  Recall what Colonel Kile, the (then) D Med Pol, wrote to (then) DGCFGA, Colonel Malo, in July 2016:

As a general comment, category and medical employment limitations can only be based on the existing clinical pathology/ findings and not determined partly or wholly on the basis of real or perceived procedural unfairness.

 

Issues

 By the time that I submitted my response to Colonel Kile’s “SME Report” dated 10 August 2018, I had identified five issues that I believed the FA needed to consider:

• Issue One: Is a grievance adjudicative authority (e.g., the FA) permitted to review, challenge, or question a statutory decision by D Med Pol or any other CF medical authority?
• Issue Two: Is only the opinion of CF medical authorities relevant to grievances concerning CF medical categories?
• Issue Three: Is there evidence of a closed-minded approach to the adjudication of this grievance?
• Issue Four: Does the evidence before the FA support the conclusion that the “O factor” of my Medical Category should be O3, and is this decision reasonable? and
• Issue Five: Is the process that is used for imposing medical categories on CF personnel procedurally fair?

 

Observations on the SME Report

In his SME Report, Colonel Kile identified that the FA determined my grievance on 2 December 2016.  Colonel Kile wrote:

In … the Final Grievance Authority’s Letter of Decision, dated 2 December 2016, Colonel Malo stated in his analysis that “O3, therefore is assigned to those who have occupational limitations between O2 and O4. Though ill defined, you have a medical employment limitation. Should that limitation be reasonable, I would tend to agree with D Med Pol that the assignment of an O3 factor seems appropriate.” The Final Grievance Authority concluded that the O3 was reasonable in the grievor’s situation as he determined that in assigning the O3, the CAF was protecting one of its most valuable assets, the grievor.

 

That may be what the FA wrote in the first determination of the grievance; however, the Federal Court quashed the decision because it was unreasonable.  I am inclined to observe that the last phrase added by Colonel Kile was both condescending and insulting.  The CF couldn’t manage to adjudicate my grievance in under a decade.  I’m not sure that I would entrust them to protect my well-being.

The determination by the FA was problematic, and not solely because it was vague and ambiguous (although that was a principal shortcoming of the determination).  The FA acknowledged that the justification for the adverse decision and action giving rise to this grievance was “ill defined”.  And I suggest that, if a decision-maker feels compelled to commence reasons for a determination with the expression “Though ill defined …” perhaps the reasons aren’t all that reasonable.

What Colonel Kile wrote next in his SME Report was similarly illuminating:

The Final Grievance Authority was advised that the grievor intended to pursue his grievance at Judicial Review, and therefore requested additional medical advice from D Med Pol to provide additional medical evidence that the 03 was appropriate in the grievor’s case, for the purpose of a redetermination of the Final Grievance Authority’s decision.

 

In other words, the focus was not on an open-minded consideration of all relevant factors – which I suggest would be advisable when dealing with a decision that is “ill-defined” – instead, the focus turned to “review-proofing” the decision that had already been made.

And it didn’t work.

There was also a degree of ambiguity in Colonel Kile’s statement regarding the timing of when the FA sought D Med Pol’s ‘advice’.  There are two likely explanations, either of which tends to demonstrate continued closed-minded decision-making by CF decision-makers.

One explanation is that Colonel Kile is describing a consultation other than the query from DGCFGA in July 2016, prior to the first determination of my grievance.  Presumably, the July 2016 consultation was not done ‘in anticipation of an application for judicial review’.  I, as the grievor, did not yet have grounds for an application for judicial review, as I had yet to receive the FA’s determination.

Therefore, what Colonel Kile describes may have been consultation after the first FA determination had been made and after I had submitted my application for judicial review.

However, the phrasing of Colonel Kile’s statement appears to indicate that the order from Justice Annis (dated 19 April 2017) had not yet been delivered and that the consultation was in anticipation of a judgment or order that would quash the FA’s determination.

Presumably, according to Colonel Kile, DGCFGA sought “…additional medical evidence…” that could be used to justify the same decision when the FA re-considered and re-determined the grievance after the Federal Court granted them the ‘mulligan’ that is typical in such circumstances.  In other words, when the FA realized that the first determination was flawed and would be quashed, he pursued a process not for an open-minded reconsideration of the matter, but one which was intended to reinforce the original decision by D Med Pol through a new, reverse-engineered justification.

An alternate explanation for Colonel Kile’s ambiguous comment is that the consultation he described is indeed the consultation of July 2016.  Recalling that my grievance was received at DGCFGA at some point in October 2014, the July 2016 consultation arose 20 months after my grievance was received at the FA and was conducted less than 5 months before the FA (DGCFGA) determined my grievance.  Consequently, when Colonel Malo, DGCFGA, sought Colonel Kile’s ‘advice’, he was in the final stages of considering the grievance.

Within this alternate explanation, it is possible that Colonel Malo, sensing that it was likely that I would challenge any decision that was contrary to my position, sought additional representations from Colonel Kile in order to bolster a decision that would uphold the original D Med Pol decision.  In other words, not wishing to deviate from the CF H Svcs ‘party line’ and preferring to defer to CF H Svcs decision-makers, Colonel Malo sought input from the same office (but perhaps not the same officer) that made the original impugned decision.  He did so because he wanted to make the decision ‘review-proof’.

Certainly, the e-mail exchange between Colonel Malo and Colonel Kile on 6, 13, and 14 July 2016 appears to indicate the continued intransigence of D Med Pol as well as that of the (then) DGCFA.  What is particularly disconcerting is a comment in Colonel Malo’s e-mail of 14 July 2016: “We’re still scrubbing the O3 to make sure the explanation is sufficiently robust.”

At that point, even though Colonel Malo was not convinced that the process was sufficiently fair, and that additional justification would be required for the “O3 decision”, his focus was on ‘scrubbing’ the O3 determination to make sure the explanation was sufficiently robust.  The DGCFGA grievance analyst subsequently sought additional input from LCol Cooper, the Senior Staff Officer Medical Standards with D Med Pol.  Thus, all the purported evidence was not yet accumulated, but the end result for the determination had already been decided.

Either interpretation of Colonel Kile’s comments – and I would suggest that these are the only two logical explanations for the timeline he mentions – signal a closed-minded approach by both D Med Pol and the FA.  The goal was not an open-minded review of relevant evidence and argument by a statutory decision-maker arm’s-length from the original decision-maker, but a closed-minded approach by the FA’s delegate wherein he relied upon justification offered by someone who was tantamount to the initial decision-maker.  While the identity of the specific medical officer may have changed in the decade-plus that my grievance had languished, the justification – indeed, the decision – originated from the same office advancing the same ‘party line’.

Based upon the content of what has been disclosed to me, I suggest that the consultation between (then) DGCFGA and D Med Pol was intended not to aid in open-minded decision-making, but as a concerted effort to reinforce the original impugned decision, no matter what the cost.  DGCFGA either anticipated an application for judicial review and wanted to ‘review-proof’ his decision, or, after rendering his initial flawed decision, and learning that it would be the subject of an application for judicial review, sought to reinforce the basis for a redetermination that produced the same result.

 

What is the nature of the impugned decision?

From the outset of my grievance, I clearly identified the nature of impugned decision.

Although the impugned decision was made by a medical officer, it is not properly characterized as a ‘medical decision’.  Technically, ‘medical decisions’ are made by patients, not doctors.  Doctors advise a patient on options and the likely outcome(s) of various options but, as a general rule, it is the patient who decides if he or she will submit to a particular medical procedure.  It’s called consent, and a physician who operates without a patient’s consent would likely find him- or herself facing significant legal action.

It is true that there are other factors to such decisions – such as whether certain procedures are covered under insurance or health care plans or whether a physician is capable of conducting a given procedure.  A physician cannot be compelled to perform a procedure that the physician believes is ill-advised.  But leaving aside semantics about the provision of health care, the role of a physician in a treatment plan is to advise a patient of a diagnosis and potential treatments, and, in some circumstances, to provide that treatment (or refer the patient to another licensed physician for treatment).  That is manifestly not what is at stake in this grievance.

This grievance is about a decision by a statutory decision-maker, empowered by, or under the authority of the National Defence Act (NDA), to adjudicate a matter based upon evidence placed before the decision-maker, and based upon a process that must be sufficiently fair in light of the impact of the decision.  The impugned decision is the decision by D Med Pol to dictate MEL and to impose a PCat on a CF member, which adversely affected that member’s career progression and, potentially, could have led to compulsory release.

The decision by D Med Pol functions in tandem with a related statutory decision, typically made by Director Military Careers Administration (DMCA), after D Med Pol determines MEL and/or PCat.  When a PCat and/or MEL may have career implications for a CF member, DMCA will typically initiate an Administrative Review – Medical Employment Limitations (AR-MEL) under DAOD 5019-2.  When DMCA conducts such AR-MEL, DMCA will, without exception, accept the Medical Category and MEL imposed by D Med Pol as immutable factors.  Anyone challenging the Medical Category or the MEL within the AR-MEL process will be informed that DMCA has no authority to amend or otherwise second-guess the decision by D Med Pol.

That gives rise to a clever ‘dodge’ that is consistently employed by CF decision-makers, including those who adjudicate grievances.  When a CF member is adversely affected by a decision arising from MEL, the CF member will often focus on challenging the DMCA decision, particularly if the CF member lacks a sophisticated understanding of the decision-making processes involved.  After all, the first that a CF member is provided a meaningful opportunity to contest such decisions is during the AR-MEL, long after the operative decisions regarding MEL and PCat have been made by D Med Pol.

The CF member will then be told that the DMCA decision was fair and reasonable in light of the MEL and PCat. And, by then, it is too late for the CF member to challenge the MEL (which is doubly unfortunate, since the CF member did not get an opportunity to offer any representations regarding the MEL in the first place).

 

Issue One:

Is a grievance adjudicative authority (e.g., the FA) permitted or empowered to challenge or to question a statutory decision by D Med Pol or any other CF medical authority?

Based upon some of his comments in his SME Report, it appears that Colonel Kile would answer this question in the negative.  I suggest that anyone taking this position would be wrong at law, and unreasonable.

The answer to this question turns on the nature of the impugned decision and the nature of the CF grievance process.

To illuminate the problematic position taken by D Med Pol, let’s consider some of the comments by Colonel Kile in his SME Report.

I will start with his conclusion or recommendation.  And we should remember that DGCFGA did not ask D Med Pol to evaluate the decision based upon available evidence – instead, DGCFGA asked D Med Pol to justify the impugned decision.  Consequently, it is not surprising that Colonel Kile’s ‘recommendation’ did not vary from the original conclusory decision of 12 November 2004.  Colonel Kile did not ‘recommend’ that my medical category should remain the same; he asserted that it will remain unchanged.

At para 39 of his SME Report, Colonel Kile states:

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

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

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

Colonel Kile is not recommending a particular decision to the FA.  Colonel Kile is asserting that he, as D Med Pol, is confirming the earlier, impugned decision.  He is stating that my medical category will not change.

Respectfully, that’s not his decision to make, and it has not been his decision to make since 15 March 2006.  He is purporting to usurp the role of the FA.  And, if the previous decision by the FA regarding this grievance is any guide, it appears that the FA is willing to permit Colonel Kile to usurp that role.

Throughout his commentary in his SME Report, Colonel Kile alludes to the purported inviolability of what he characterizes as ‘medical decisions’.  At para 20 of his SME Report, he points out that pursuant to art 3.33 of the QR&O “No officer who is not a medical officer shall exercise command over a medical officer in respect of his treatment of a patient.”  At para 38 of his SME Report, he asserts: “Only CAF health care providers can assign MELs, as these decisions require military occupational health knowledge…”.

The implication appears to be that no mere mortal layman can question a decision by a medical authority.  However, it is a well-established principle of public and administrative law that a decision by a statutory decision-maker – i.e., a decision by a representative of the executive branch of government based upon statutory powers or functions – may be challenged on judicial review.  Prior to availing him- or herself of the courts, an applicant must first exhaust internal remedies. And for the Canadian Forces, that “adequate alternative remedy” is purportedly the statutory grievance process under s 29 of the National Defence Act (NDA).  And, although I have repeatedly questioned the adequacy of this remedy, that is precisely what I have been attempting to do over the past 18 years.

Colonel Kile mischaracterizes the nature of the decision being made, and, consequently, the purported immunity from review by non-medical officers.  The assignment of MEL or the decision to impose a particular PCat is not ‘treatment’.  Colonel Kile failed to define “treatment” in his SME Report.

Article 1.04 of the QR&O, a Ministerial regulation enacted under s 12(2) of the NDA, offers guidance on how words and phrases may be defined within the QR&O:

1.04 – WORDS AND PHRASES – HOW CONSTRUED

Words and phrases shall be construed according to the common approved meaning given in the Concise Oxford Dictionary if in English, or in Le Petit Robert if in French, except that:

(a) technical words and phrases, and words that have acquired a special meaning within the Canadian Forces, shall be construed according to their special meaning; and

(b) words and phrases that are defined within QR&O or within the Interpretation Act or the National Defence Act shall be construed according to that definition.

 

‘Treatment’ is not defined at s 2 of the NDA, or under art 1.02 of the QR&O.  Nor is it expressly defined in QR&O Chapter 34 – “Medical Services”.

However, ‘medical care’ is defined under art 34.01 of the QR&O as:

“medical care” means medical and surgical treatment including necessary drugs and dressing, diagnostic and investigational procedures, hospitalization, preventive medicine procedures, transportation as a patient and the supply and maintenance of prosthetic appliances …

 

That does not include assigning MEL or medical categories.

Colonel Kile or another medical officer might attempt to suggest that imposing MEL or a numeric medical category constitutes part of their ‘treatment’ of a CF member.  However, ‘that dog won’t hunt’.  It may be a ‘dog’ of an argument, but it certainly won’t hunt.

Any person, including a member of the CF, is permitted to decline medical treatment.  There may be consequences to such a decision, and those consequences may be reasonable or unreasonable.  But I am confident that Colonel Kile would agree that I cannot ‘decline’ MEL.  No reasonable person would conclude that issuing a decision concerning a person’s capacity to perform certain physical activities would constitute treatment.  Consequently, QR&O art. 3.33 has no application to the FA’s review of the impugned D Med Pol decision.  It was, and remains, a disingenuously specious argument.

Second, while it may be logical for a CF medical officer to perform the duties of D Med Pol, I challenge the assertion that only a CF health care provider can evaluate evidence and apply that evidence to a statutory or regulatory regime.  That is, essentially, what any administrative tribunal does.  That is also what the courts do.

It is an overstatement – and a disingenuous one at that – to suggest that only a health care provider can understand military occupational factors.  I suspect that Colonel Kile would concede that the various factors discussed in the CF EXPRES Operations Manual or even the CF Medical Standards were not developed exclusively by CF health care providers in isolation from all other CF decision-makers.

What CF health care practitioners are qualified to do is to make a medical diagnosis.  This medical diagnosis might then give rise to a statement of MEL.  Even then, the MEL must still be logically supported by said medical diagnosis and the evidence before the decision-maker.  The MEL must be rationally connected to articulated standards.  And those standards must be justified.  MEL that are not sufficiently justified can be challenged by a CF member.  These are essentially statutory decisions.  MEL can be, and often are, used to determine a subject’s medical category.  Again, the resulting decision must be logically supported by the evidence presented by the decision-maker.  And, again, a Medical Category decision that is not logically supported, or rationally connected to relevant standards, can be challenged by a CF member.

In the administration of the affairs of the CF, all of these decisions are made before the AR-MEL is conducted by DMCA.  They are also made with limited disclosure (if any) to the CF member and without a reasonable opportunity for the CF member to make informed representations to the CF decision-maker.  The CF member is denied any participatory rights in a significant process that can affect his or her career.

Under s 29 of the NDA, a CF member may raise a grievance concerning any decision, act, or omission made in the administration of the affairs of the CF.  Pursuant to subs 29(2), there are select statutory and regulatory exceptions to this statutory right (e.g., decisions made under the Code of Service Discipline).  None of those exceptions apply to this present grievance.

The decision by D Med Pol on 12 November 2004 adversely affected me. To put it in colloquial terms, it ‘screwed up’ my posting to Ottawa in 2005 (and, frankly, it takes considerable restraint on my part not to use a more apt descriptor).  I described in Part I of this Blog post how this unfair and unreasonable decision adversely affected me (and my family).  There is plenty of blame to go around.  But it started with the closed-minded decision-makers at D Med Pol.

The various errors by CF administrators regarding my posting are secondary to the grievance.  The principal bases of my grievance are:

• D Med Pol erred in the application of the evidence – including the actual diagnoses of CF medical doctors – to the published criteria under CFP 154 – The Medical Category System;
• D Med Pol is incorrect – and disingenuous – when he asserts that their process is sufficiently procedurally fair; and
• D Med Pol’s analysis and ‘reasons’ are insufficient to support the conclusion that was drawn by D Med Pol.

 

The FA clearly has jurisdiction to consider D Med Pol’s decision, to quash it if it is not reasonable, and to substitute a new decision based upon the evidence before him.

The FA can also consider whether the Medical Category process permits adequate procedural fairness and, if it does not, to direct a change of policy.  In fact, I suggest that it is incumbent upon the CDS, as FA, to consider the shortcomings of the decision-making processes employed by D Med Pol and other CF H Svcs decision-makers to ensure that the administration of the affairs of the CF meets the requisite requirements of public law decision-making.

If, as Colonel Kile appears to insinuate in his SME Report, the FA does not have the jurisdiction to consider D Med Pol’s decision, to quash it if it is not reasonable, and to substitute a new decision based upon the evidence before him, then the CF grievance process would be nugatory in circumstances such as this and I am not obliged to exhaust it before turning to the Federal Court for relief.  The Federal Court certainly has the jurisdiction to consider and review the impugned decision: Bouchard v Canada, 2014 FC 1231 [Bouchard].

As an aside, if, in fact, Colonel Kile (or another officer in CF H Svcs) is the proper decision-maker in this grievance, to the exclusion of the decision-maker assigned by Parliament under the NDA, then Colonel Kile failed to provide adequate disclosure for his determination.  His SME Report was presented to me as “Annex A” to a document that has not been disclosed to me, but upon which Colonel Kile clearly relied.  He also relied upon several, presumably, peer reviewed journal articles.  Those weren’t disclosed to me either.  Finally, Colonel Kile relied upon my medical file.  Not only has my medical file not been disclosed to me, but I expressly submitted a request for my medical file under the Privacy Act during my retirement out-clearance, and it has never been provided to me.

 

Issue Two:

Is the opinion of CF medical authorities the only opinion relevant to grievances concerning CF medical categories?

The second issue is related to the first.  Throughout my grievance, I argued that the physician who operated on my knee concluded that I faced no limitations regarding the physical exigencies of my military service.  From the outset, CF H Svcs officers refused to consult that physician.  Inexplicably, even his name was redacted from the Certified Tribunal Record that was presented on the first judicial review.[1]

In his SME Report, not only did Colonel Kile assert that “… [o]nly CAF health care providers can assign MELs, as these decisions require military occupational health knowledge…”, he also asserted that CF medical decision-makers are not obliged to consult with civilian health care professions.  The aforementioned Bouchard decision addresses both of these fallacies.

Consultations with civilian practitioners do happen.  Indeed, I was sent to a civilian surgeon, not a military surgeon, for surgery.  The surgeon who operated on my knee performed the same surgery on a well-known NHL player (although I had to wait 6 months for my operation, and the NHL player only had to wait 6 weeks – so much for Canada not having a 2-tiered health care system).  It is strikingly odd that not only did CF medical authorities not consult with my surgeon concerning my recovery, but consistently and steadfastly refused when I asked them to do so.

Earlier in the adjudication of my grievance, a CF medical officer (MO) commented that “These MELs were recommended by the orthopedic surgeon who treated his knees and also confirmed with the D Med Pol Medical Analysis.”  This was patently incorrect.  Based upon their repeated assertions, it is clear that the medical officers at D Med Pol did not consult with the surgeon who operated on me.  And the surgery only involved one of my knees, not both.  I have been provided no disclosure of any such recommendation from that surgeon.  I suspect that the orthopedic surgeon described in these comments was a civilian surgeon, who was in the employ of the DND, and who examined my knee a few years after my surgery.  And there is a marked different between “treatment” and “examination”.

In the aforementioned case of Bouchard, a CF medical officer referred the applicant, Bouchard, to Dr. Fallu when Bouchard raised the issue of having difficulty concentrating.  Dr. Fallu diagnosed Bi-Polar II disorder and provided a series of observations.  Notably, Dr. Fallu’s diagnosis included the following:

Bouchard’s prognosis was good; he could safely use a personal weapon; he could tolerate the extreme stress of military operations (periods of duties in isolated conflict zones); he experienced symptoms for almost five years before being diagnosed and received treatment, without this posing a problem; and, in extreme cases, Bouchard could stop treatment without complications. [Bouchard, para 3]

 

Contrary to Dr. Fallu’s diagnosis, D Med Pol concluded (based upon a medical file that included the diagnosis of a specialist, Dr. Fallu) that Bouchard’s medical condition would prevent him from meeting universality of service.

Not surprisingly, Bouchard grieved this decision.

The IA in Bouchard’s grievance sought further “observations” from D Med Pol.

Bouchard sought additional observations from Dr. Fallu.

The IA (who appears to have been the Commander of the Army, not DG CF H Svcs), upheld the decision by D Med Pol, as did the Chief of Defence Staff at the FA level.

Throughout the grievance process, D Med Pol asserted – much as Colonel Kile did in his SME Report – that D Med Pol was the only authority (acting on behalf of the Surgeon General) who could make decisions concerning MEL.  In Bouchard, D Med Pol asserted:

Overall, we disagree with Dr. Fallu’s assessment. Dr. Fallu may disagree with the imposed MELs, but we are military medical experts.’ [emphasis added]

 

This assertion of absolute authority was sufficient for the CDS.

It was not sufficient for the Federal Court.

Arguably, one of the key factors for Justice Bédard in quashing the CDS’ decision was the fact that the relevant medical diagnosis was not unique to the military and Dr. Fallu was a specialist in the relevant area who was regularly consulted by the CF for those very skills.

In concluding her judgment, Justice Bédard enunciated a key concern that is pertinent not only to Bouchard’s grievance, but to mine, and to any CF member who is adversely affected by MEL or a medical category imposed by D Med Pol.  At para 71 of her judgment, Justice Bédard stated:

In its decision, the CDS clearly agrees with D Med Pol’s opinion. Indeed, he essentially reiterated the observations made by Captain Courchesne and noted that D Med Pol had the authority to impose MELs. In approving D Med Pol’s opinion without explaining why he preferred this opinion to that of Dr. Fallu other than by stating that D Med Pol was [translation] “the only competent CAF authority to review and approve permanent medical categories and MELs”, the CDS, in my opinion, made a decision that does not have the qualities of reasonableness. The CDS did not explain why he was rejecting the opinion of the medical specialist treating the applicant in favour of D Med Pol’s opinion. Consequently, I find it impossible to conclude that the CDS’s decision was based on a rational, non-arbitrary decision-making process, and his handling of the contradictory medical evidence seems utterly insufficient to me.

 

In para 72 of her judgment, Justice Bédard goes on to quote Justice David Stratas of the Federal Court of Appeal – arguably one of the leading jurists in Canada on matters of administrative law, if not the leading jurist – regarding the importance of logic and a rational approach to fact-finding:

The Federal Court of Appeal, in Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113 (CanLII), at para 99, [2014] FCJ No 472, recently reiterated the role of the reviewing court when applying the reasonableness standard. Writing on behalf of the Court, Justice Stratas held as follows:

99   In conducting [a] reasonableness review of factual findings such as these, it is not for this Court to reweigh the evidence. Rather, under reasonableness review, our quest is limited to finding irrationality or arbitrariness of the sort that implicates our rule of law jurisdiction, such as a complete failure to engage in the fact-finding process, a failure to follow a clear statutory requirement when finding facts, the presence of illogic or irrationality in the fact-finding process, or the making of factual findings without any acceptable basis whatsoever: Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487 at paragraphs 44-45; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 CanLII 22 (SCC), [1990] 3 S.C.R. 644 at page 669.

 

In my case, I have not presented a letter from the surgeon who operated on my knee.  In that regard, it is distinguishable from Bouchard.  Now, two decades after my surgery, it would be difficult for me to do so. However, I have, from the outset, requested that CF health care administrators obtain from that surgeon his assessment.  I had not only signed a release at the time of my surgery which permitted (arguably, obliged) the surgeon to provide his file to the CF, but reiterated that permission in relation to my grievance.  In fact, by my count, I signed and submitted at least three such releases (most of which did not find their way into my grievance file).

CF medical officials consistently, and unreasonably, refused to do so.  In his SME Report, Colonel Kile wrote that if a CF member disagrees with medical recommendations, the CF member may ask for another medical opinion.  I specifically and repeatedly said that I wanted the CF to consult with the civilian physician who operated on my knee.  They did not.  Instead, I was referred to Dr. Portner, a civilian physician employed by the CF at the CF’s medical facility in Ottawa.  He was selected by my CF personal physician.  I had no meaningful choice about this so-called ‘second opinion’.

Consequently, there is a markedly disingenuous aspect of the ‘second opinion’.  As a member of the Regular Force component of the Canadian Forces, I was prohibited from obtaining or possessing a provincial health card or selecting my own family physician.  Indeed, I was 47 years old, and a retired veteran, when I obtained my first provincial health card.

Under the Canada Health Act, I was not an ‘insured person’, and I was not eligible to obtain a provincial health card.  By virtue of Chapter 34 of the QR&O, my health care charges were assumed by the Federal Government.  However, as a member of the CF, it was CF health care decision-makers who decided who would be my physician.  It was CF health care decision-makers who decided to whom I would be referred for the so-called second opinion.  Not just the CF, but CF H Svcs, dictated every option available to me.  Not surprisingly, all of the physicians involved in the process were either uniformed medical officers or civilians contracted by the CF (and who were frequently double-dipping former uniformed medical officers).  I was referred to a civilian physician, employed by the CF, and who was obliged to adopt the CF Health Services ‘party line’.  In light of the demonstrable intransigence arising in this matter, is it any wonder that they ‘confirmed’ D Med Pol’s decision?

In fact, going into that consultation, CF H Svcs decision-makers were aware that I was grieving the MEL/PCat decision.  They were sufficiently preoccupied with my intent that it was actually recorded in their medical notes.

In fact, at para 16 of his SME Report, Colonel Kile observed:

The grievor advised his primary care physician on 28 March 2006 that he did not feel he required the assigned MELs for his left knee, and that he intended to submit a grievance to address his concerns. His primary care physician documented in the progress note from this visit “will send to ortho to ascertain knee stability and may help in his grievance.” The grievor was referred to Dr Portner, an orthopaedic surgeon, on 28 March 2006, and the referral stated “Is totally asymptomatic and is active. Is filing a grievance for his G2O3 category and requires supplemental information.”

 

[As an aside, on 28 March 2006, I would not have advised my CF-appointed Primary Care Physician that I intended to grieve the D Med Pol Decision.  I had already done so 2 weeks earlier.]

And how can I assert that the civilian physicians employed by the CF will adopt the CF Health Services ‘party line’?  The recent COVID-19 pandemic offers insight.  I am aware that any civilian physician employed by the CF during the pandemic, who did not adopt the CF position on vaccination against COVID-19, had their contract terminated.

While I could now consult a civilian physician to evaluate my current medical status, that would be irrelevant.  I could, conceivably, present my medical file to a civilian specialist and obtain an opinion regarding what my medical status was two decades ago.  However, I do not have my medical file because my request for disclosure under the Privacy Act was not actioned by CF H Svcs staff.  Nor has my medical file been disclosed within this grievance process.  And, ultimately, D Med Pol would invariably assert that no one is permitted to second guess their determination.

And I am left in this circumstance because CF H Svcs medical officers refused to consult with the orthopedic surgeon who actually operated on my knee.

 

Issue Three:

Is there evidence of a closed-minded approach to the adjudication of this grievance?

Throughout this grievance, there have been multiple, compelling indications of a closed-minded approach, not only by D Med Pol, but by the statutory decision-makers in the grievance process.  Although I have identified many of these instances above, I will offer a summary here.

First, my grievance languished with the IA for over 8 years.  Part of this delay appears to have been attributable to gross negligence.  I understand that my grievance file was misplaced at least twice while in the custody and control of the IA, DG CF H Svcs, and his staff.

However, I contend that this grievance languished because senior CF H Svcs decision-makers were concerned that their process and decisions were vulnerable and were reluctant to commit a decision to paper in the event that I might challenge the deficiencies of their process and rote decision-making.  I said as much in my representations to the IA back in 2007.  I have reiterated this position in various representations since then.  A comment by Dr. Gregson early in the grievance process is illuminating regarding the defensiveness of D Med Pol physicians regarding the prospect that their decisions might be challenged:

A large portion of the text of Major Fowler’s [grievance] deals with his contention that procedural fairness was not adhered to in the determination of the change in medical category for which he is seeking Redress. This is both a legal and administrative issue. The ability of the undersigned to comment on the legal aspects of Major Fowler’s concerns is limited as he is currently employed in the agency within the Department of National Defence that provides advice on Administrative Law and therefore issues related to Procedural Fairness. The web site for Military Administrative Law does indicate that every AJAG and DJA Office in the CF provides legal advice on military administrative law issues, but also indicates that issues that have CF wide application should be referred to Directorate of Law/Human Resources. Major Fowler’s [grievance] could potentially have CF wide administrative application.  In the event that he is not in agreement with the decision taken by the Initial Authority (IA) and seeks further [review] at the CDS level the office of JAG DLAW/ADMIN LAW will certainly need to provide legal advice.

 

Note that Dr. Gregson draws a distinction between an “administrative” and a “legal” issue.  As I have explained before, so-called “administrative decisions” in the CF are more accurately called statutory decisions.  Consequently, there is a legal dimension to them.  Note, as well, the seeming preoccupation with the fact that, at the time, I played a role in advising on grievances.  Whether or not I provided legal advice on grievances was largely irrelevant to the task that the IA had to perform.  And the question of where the FA might turn for legal advice if my grievance were escalated to the FA level (including whether there may be a conflict of interest if I were still assigned to D Law Admin Law – or, perish the thought, if I were the Director) was an issue for the JAG and the JAG’s leadership team to resolve.

But this comment, offered in a letter dated 22 February 2007, signalled the preoccupation of D Med Pol with review-proofing their decision.

I will say this about Dr. Gregson’s note – contrary to the position taken by Colonel Kile, Dr. Gregson appeared to concede that the decisions regarding MEL and PCat needed to provide the “content of fairness” that would satisfy the principle of procedural fairness relevant to decisions of that nature.

I contend that, at the time, my grievance could have had significant impact on the manner in which D Med Pol and other decision-makers in CF H Svcs made (and make) decisions that adversely affect CF personnel.  But, if the processes that were in place, or are in place, were/are not sufficiently fair, then perhaps some change is due.  Concerns raised by institutional decision-makers regarding the implications of a grievance, and the potential that they could force a change to policy – what Colonel Malo referred to as “Strategic Grievances” in his email to Colonel Kile in 2016 – are not sufficient justification for delay or for a closed-minded approach.  Indeed, supposedly, that is one of the purposes of the grievance process: to identify lacuna in policies and serve as a catalyst for improved processes.

I contend – and there is compelling evidence in the grievance file to support this conclusion – that DG CF H Svcs delayed the adjudication of my grievance as a tactic to avoid making a decision regarding a grievance that could potentially undermine the arbitrary and procedurally unfair manner in which D Med Pol and DG CF H Svcs impose MEL and Medical Categories on CF members.  Both the IA and FA repeatedly referred the matter back to D Med Pol to try to bolster their position.

On 10 July 2007, I was provided Dr. Gregson’s letter of 22 February 2007.  I provided my response on 1 August 2007.  The IA’s staff then went back to D Med Pol for further ‘analysis’.  Despite various hasteners, queries, and consent to extend the time limit, D Med Pol Staff did not respond.  They indicated that they would respond “by end of the summer”.  Then they indicated that a response had been drafted but it needed “… to be formatted and reviewed by the Director.”  I never received that subsequent review.  I eventually referred the grievance to the FA.

The FA staff, and the FA himself, consulted with medical professionals in D Med Pol, and D Med Pol himself, on at least two occasions before my grievance was adjudicated.  After the flawed FA decision was quashed by the Federal Court, they returned to D Med Pol yet again to reinforce the original impugned decision.  Each of these consultations was clearly intended to justify the initial decision.

As a legal advisor to CF grievors, I have repeatedly encountered this tactic in grievances.  Delay will invariably arise where a grievor has presented a compelling argument that he or she was subject to unfair and/or unreasonable decision-making, but where the IA or FA clearly does not wish to admit that the decisions were unfair or unreasonable.  This can be driven by the inability to offer meaningful remedy.  Where the FA cannot offer meaningful remedy, a determination that a CF member was aggrieved will expose the remedial shortcoming of the CF grievance process.  I have clients who have waited years for their grievances to be adjudicated – and some continue to wait – for this very reason.

There really are only two logical explanations for the delay.  Either DG CF H Svcs and his staff were markedly incompetent at staffing and adjudicating grievances, or the IA deliberately avoided making a decision in this specific grievance because of the ‘strategic’ implications of the grievance.  This ‘Medical Category/MEL grievance’ was submitted by an officer who, by virtue of his training and education, was able to marshal compelling arguments impugning the decision-making process that D Med Pol followed.

The problem is that DG CF H Svcs and D Med Pol typically benefit from the fact that most CF personnel encounter difficulty in articulating arguments that will, eventually, support the relatively high threshold for successful judicial review of a grievance determination.  When faced with a grievor who had the capacity to do so, the response consisted of: (a) a ‘slow roll’ on the adjudication of the grievance, delaying the determination and; (b) when finally faced with the obligation to consider and determine the grievance at the FA level, the disingenuous orchestration of a reverse-engineered justification for an unfair and unreasonable decision.

From the outset, the approach taken by CF stakeholders and decision-makers in this grievance has focused on justifying the impugned decision, rather than conducting an open-mined reconsideration of the issues.  As I point out above, Colonel Kile was not consulted to provide additional information in aid of a fair and reasonable adjudication, but to “…provide additional medical evidence that the O3 was appropriate … for the purpose of a redetermination …” of the grievance.  In other words, the object of the consultation was to justify the maintenance of the impugned decision, not to conduct a truly open-minded review of the relevant issues.

 

Issue Four:

Does the evidence before the FA support the conclusion that the ‘O’ factor of my Medical Category should be O3, and is this decision reasonable?

Putting aside the problematic aspects of D Med Pol’s apparent assertion that no one is in a position to question his determination, and the disingenuous nature of the so-called ‘second opinion’ that I was purportedly able to obtain, the evidence that has been presented to the FA does not support the conclusion that my “O factor” should be O3.

Ultimately, the diagnosis offered by D Med Pol is that I can run on a daily basis (but should avoid doing so) and that I am fit for Physical Training (although the type, duration, intensity, or frequency may vary). [I use the verbs “can” and “am”, but those diagnoses are years old – they predate my retirement over seven years ago.  Perhaps it is more accurate to state “… at the material time …”.]

The diagnosis is as vague and ambiguous now as it was in 2004. Indeed, that conclusion remains unchanged.  That’s not surprising.  And I suggest that if it were to change now, that would call into question whether there was further disingenuity at play.  And, if you’ve been paying attention, none of these statutory actors appear willing to acknowledge that they may have erred.

It does not appear that Colonel Kile asserted that I do not meet the minimum operational standards set out in DAOD 5023-1, Minimum Operational Standards Related to Universality of Service.  I successfully completed the CF EXPRES test each year after 2004 unless I was exempt from doing so (e.g., in circumstances in which I completed a different physical fitness standard that was equally or more exigent), until it was replaced by the Fitness for Operational Requirements of Canadian Armed Forces Employment (FORCE) Evaluation.  When the FORCE Evaluation was introduced, I successfully completed it each year up to 2016 (I retired 25 January 2017, although my last day of work prior to commencing ‘retirement leave’ was 2 December 2016).

These tests purportedly evaluated my ability to complete: (1) the high-low crawl; (2) sea evacuation; (3) entrenchment dig; (4) casualty evacuation; and (5) sandbag carry.  These are the tasks that Colonel Kile lists as mandatory in his SME Report.  There was no evidence that I was ever unable to complete these tasks.  On the contrary, there was ample evidence that I was able to complete these tasks consistently and complete them well.

I note that, over the duration of my grievance, there have been adjustments to how these tasks are described.  They are presently defined in Annex B and Annex C of CFP 154 as the “six common military tasks”.  Annex B lists the following “physical factors:

• Must be able to perform high-crawl over a distance of 45 m and low-crawl over a distance of 30 m.
• Must be able to dig a personal trench.
• Must be able to carry sandbags weighing 20 kg over a distance of 50 m for a period of 10 min.
• Must be able to evacuate a casualty 750 m across country by carrying one end of a stretcher bearing an 80-kg load.
• Must be able to evacuate a casualty, during a fire on board ship, by carrying one end of a Stoke’s litter bearing an 80-kg load up and down a flight of stairs.
• Must be able to undertake the CAF FORCE FITNESS TEST.
• Must be able to perform drill for at least 30 minutes.
• Must be able to safely handle and effectively operate a personal weapon.
• Must be able to safely perform duties in or close to water.
• Must be able to communicate via radio.

 

There is no evidence that I could not complete these tasks consistently.  Nor is there any evidence that I did not meet the ‘employability’ or ‘deployability’ requirements that Colonel Kile enumerated in his SME Report.  Prior to deploying to Afghanistan in 2008, I trained alongside infantrymen, performing the same training and tasks that they did.

Ultimately, there was no evidence that I was unable to meet the “Generic Task Statements” for all CF personnel at Annex B of CFP 154.

Presumably, the focus then is on the factors applicable to the “O Factor” as described in what is now Annex A of CFP 154, and which was Chapter 3 of CFP 154 at the material time that I submitted my grievance.  I believe that part of the intransigence of D Med Pol (which was subsequently adopted by DGCFGA in the first determination of my grievance) is due to the continued adoption of a position that is inconsistent with CFP 154, the policy manual regarding Medical Categories.  I hasten to add that this was and is D Med Pol’s own policy manual.  Ultimately, what we are talking about are statutory decision-makers, who are medical officers, who consistently failed to apply the standards expressly defined in the policy that their own office created.

In an e-mail to a DGCFGA analyst, dated 18 August 2016, LCol Cooper described the O2 and O3 medical factors as follows:

O2 – who has no Medical Employment Limitations (MELs).

O3 – who has some specific MELs which can be clearly and specifically detailed, and which may prevent the member from fully participating in common military tasks.

 

That’s what Annex A to CFP 154 presently states.  That is not what Chapter 3 of CFP 154 stated when I first submitted my grievance.  According to Chapter 3 of CFP 154 that was in effect at the material time, O2 and O3 were defined as follows:

‘O2’ is: “… assigned to the member who has no employment limitations of a medical nature, or only minor limitations which do not prevent the member from fully meeting the Generic and MOC Task Statements.” [emphasis in original]

‘O3’ is: “… assigned to the member who is capable of performing the majority of occupational / physical tasks, at his/ her own pace, but who has some specific employment limitations(s) which can be clearly and specifically detailed, and which prevent the member from fully meeting the Generic and the MOC Task Statements.”

 

When Colonel Kile was called upon to provide an SME Report after the Federal Court quashed the first FA determination, he did not describe the O2 factor; he did describe the O3 factor using the definition that was in effect when my MEL and PCat were assigned and when I submitted my grievance.

The justification for my change of PCat – the reasons – were the boiler-plate MEL that were imposed upon me:

a.  fit PT but may be limited in type, duration, intensity of frequency; and

b.  can but should avoid daily running.

 

The so-called limitations that D Med Pol unilaterally imposed on me do not describe circumstances that would require imposing an O3 factor on my medical category.

The O2 factor at the material time was not restricted solely to CF members who have no medical limitations whatsoever.  Objectively, even if the FA accepts the unilaterally-imposed MEL described by Colonel Kile, they are, at worst, minor limitations that do not prevent me from meeting the Generic and MOC Task Statements.  In fact, they aren’t limitations.  They are vague and ambiguous suggestions.  And throughout my grievance, senior Medical Officers have tried to clothe the statements in the garb of “advice to the chain of command on the employment of personnel”.  However, the statements must be taken at face value.  And if these are to be the justifications for decisions that adversely affect a CF member’s rights, interests, or privileges in a significant manner – including potentially terminating their employment – then they must present transparent and intelligible justification for those decisions.

As I described in my original grievance, 18 years ago, there are no MOS Task Statements for Legal Officer or Infantry Officer.  However, even if the FA were to apply the MOS Task Statements for an infantry Warrant Officer, I was capable of meeting these tasks when, as a 36-year-old captain, I submitted my grievance.  In fact, when I retired as a 47-year-old Lieutenant Colonel, I could still perform those tasks.  I had performed those tasks in training for deployment to Afghanistan and in Afghanistan as a 39-year-old Major.  And, while my current medical status is irrelevant, I could likely still perform those tasks as a 54-year-old civilian, although I am fairly certain that someone in law enforcement would take issue with me handling a prohibited firearm in public.

What appears to have arisen is that a previous D Med Pol decided that the ‘magic words’ used in my MEL (and which are likely used in countless other MEL in similar circumstances) must necessarily translate into congruence with the descriptor for O3.  These ‘magic words’ (or, “pearls of wisdom” to use the term of art that CF H Svcs decision-makers have relied upon in the past) appear to be some form of ‘shorthand’ for CF H Svcs decision-makers.  They conclude that, if D Med Pol and the medical officers who complete a “CF 2088 – Notification of Change of Medical Employment Limitations” use these ‘magic words’, that will be sufficient to justify an O3 for the “O Factor”.  When I challenged this rote process, which offered insufficient reasons, I was referred to the CF-employed Dr. Portner so that he could affirm this conclusory statement.  And, more recently, Colonel Kile reasserted the same.

In his SME Report, Colonel Kile asserted that Chapter 4 of CFP 154 dictates that these determinations are the exclusive domain of medical officers in the practice of occupational medicine.  In other words, a manual, prepared and promulgated by CF H Svcs dictates that only CF medical officers can make that decision.  Moreover, he appears to assert that no other authority can review that decision.

And, as explained in Bouchard, that’s not the current status of the relevant law.

Those same decision-makers from CF H Svcs, up to and including Colonel Kile, have consistently failed to follow their own policy manual, CFP 154.  I have applied Colonel Kile’s factual conclusions to the CF H Svcs policy manual, even though he refuses to do so.

And CFP 154 creates a legitimate expectation that the criteria described therein will be applied in a logical, transparent, and open-minded fashion.

As I pointed out 18 years ago, the vague and ambiguous statement on the CF 2088 signed by D Med Pol on 12 November 2004 did not support the conclusion that I must be assigned an Occupational Factor of O3.  And it does not support that conclusion now.

I am not limited to performing most physical tasks at my own pace.  No reasonable person could conclude that the vague and ambiguous statements offered by Colonel Kile are clearly and specifically detailed.  What they do communicate, on their face, is that I can run on a daily basis, and I am fit for PT.  There is, evidently, a possibility that this may vary.  That is unavoidable for all people.  There is no evidence, however, that I did not meet the requirements of the Occupational Factor O2.

When I deployed to Afghanistan in 2008 and 2009, I followed a rigorous fitness regime.  That’s one of the advantages of deploying on operations.  We face limited distractions outside of the specific mission.  I was far more physically active than I was at home, where I faced the seemingly unending tasks faced by many legal officers.

Ironically, the biggest factor hampering a regular fitness regime for me, as a legal officer, had always been the dictates of my duties.  I was consistently pressed for time providing detailed and educational legal advice to CF statutory decision-makers in order to prevent them from making unlawful or unreasonable decisions.  As is likely obvious to anyone who reads my Blog on a regular basis, there remain a fair number of CF statutory decision-makers who appear adamant about making unjust, unfair, and unreasonable decisions (and, in some cases, for petty and malicious reasons).[2]

One such example arises when a CF decision-maker imposes a restrictive Medical Category factor on a CF member, based upon a vague and ambiguous conclusory statement, and then asserts inviolability of their decision-making process.

Even if I were to apply the current definition for O3 – which, technically, would be improper, since that was not the policy in effect at the material time – the conclusion that I should be classified as O3 still cannot withstand any reasonable scrutiny.

The vague and ambiguous limitations don’t really describe a limitation “… which can be clearly and specifically detailed, and which may prevent the member from fully participating in common military tasks …”.

When a statutory decision-maker fails or refuses to take into consideration reasonable arguments, which are contrary to their own conclusory assertions, then the statutory decision-maker is being unreasonable.  Failing to conduct an impartial and open-minded inquiry into relevant information that could be obtained from an arm’s length 3^rd party, would be unreasonable.

In his SME Report, Colonel Kile cited several articles, presumably by medical specialists, relating to reconstructive surgery for the type of injury that I had incurred.  Presumably, he presented these articles because they allegedly supported his conclusion that the O3 is justified.  He described how the articles provide a statistical analysis of recovery from the relevant surgery.

Colonel Kile did not disclose any of those articles with his report.  However, presumably, none of those articles provided any evidence in support of a specific diagnosis in my circumstances.  They do not describe my actual medical condition.

And none of those articles describes or supports the contention that I am unable to “…fully meet the Generic and MOC Task Statements…”.  Indeed, even Colonel Kile conceded in his ‘recommendations’ that I can run on a daily basis and am fit for PT.  He does not state that I am fit only for PT at my own pace.  Nor does he point out a single military task that I could not complete.

Instead, Colonel Kile essentially offered the same conclusory justification that previous D Med Pol have stated: Fowler’s “O factor” is O3 because we said so, and he is not permitted to challenge our professional opinion.

When I grieved my MEL and, more importantly, my PCat, CF H Svcs decision-makers obliged me to re-consult a CF physician so that they could reinforce their conclusory decision.  Even then, the so-called MEL imposed on me do not logically and reasonably describe circumstances that justify an O3 under D Med Pol’s own policy manual that was in force at the material time or, arguably, that is in force now.

 

Issue Five:

Is the process that is used for imposing medical categories on CF personnel procedurally fair?

Colonel Kile asserted in his SME Report that the process for imposing MEL and restrictive medical categories is procedurally fair.  So, let’s examine what happened in my particular circumstances and what happens generally with CF personnel facing such adverse decisions.

First, we should identify the appropriate content of fairness.  A decision that is adverse to a CF member’s rights, interests, and privileges will generally require a measure fairness.  But the content of fairness depends upon the nature and scope of that impact.  Again, the Supreme Court of Canada’s judgment in Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 offers guidance:

1. the nature of the decision being made and process followed in making it;
2. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
3. the importance of the decision to the individual or individuals affected;
4. the legitimate expectations of the person challenging the decision;
5. the choices of procedure made by the agency itself.

 

This list is not exhaustive.

A decision that could potentially lead to termination of career advancement, obligatory reclassification of Military Occupation, or compulsory release, will certainly require a robust content of fairness.

In his SME Report, Colonel Kile appeared to assert that this requirement for procedural fairness is met by the AR-MEL process followed by DMCA.  That is a markedly disingenuous statement.  As I explain above, while the AR-MEL process does permit some procedural fairness in relation to DMCA’s decision-making process, it offers none in relation to D Med Pol’s decision-making process.

Where a CF member is affected by adverse MEL or a medical category, there are two distinct decisions made: one by D Med Pol and one by DMCA, and in that order.  DMCA will not interfere with a decision by D Med Pol.

Colonel Kile asserted that “… [i]f medical information is provided as part of the representation [presumably by the grievor], DMCA forwards the representation to D Med Pol for an additional review to determine if the additional information in the representation substantiates a change in the assigned medical category and MELs.”

This assertion avoids the central issue: there are two separate decisions made by two distinct decision-makers.  DMCA will not challenge any decision by D Med Pol and the process that Colonel Kile describes is, at best, an indirect opportunity to make representations after D Med Pol has already imposed restrictive MEL or medical category.  This is not a sufficiently robust procedure where it is D Med Pol’s decision that adversely affects a CF member, where that decision triggers the AR-MEL, and where DMCA is simply drawing a conclusion dictated by D Med Pol’s unchallenged decision.

As with all CF members, I was not provided with written confirmation of D Med Pol’s decision prior to a significant, and adverse, administrative decision that directly affected my rights, interests, and privileges.

Colonel Kile asserts that I had an opportunity to address my concerns with my initial health care provider (the ASU MO) and subsequently, after D Med Pol had already made his decision, with a CF health care provider on 28 March 2006.

These so-called ‘opportunities’ were largely meaningless.  When I spoke with the ASU MO, I was not presented with any meaningful disclosure, including the CF 2088 he eventually completed.  I specifically asked if this would impact my career, and he said ‘no’.  When he did complete the CF 2088, he left the “O Factor” as a question mark ‘?’.  Even if the ASU MO had provided that form to me for comment, there was no actual decision to discuss, and the ‘disclosure’ would have been rudimentary at best.

It was not until I received the completed D Med Pol decision that I was provided any disclosure.  Even then, the disclosure was limited to: (1) the CF 2088; and (2) the one-page ‘MEL sheet’ describing vague and ambiguous MEL in conclusory language.  The decision-maker was D Med Pol, and I was not permitted to make any representations whatsoever, let alone meaningful representations, to that decision-maker.  And by then, the damage had been done to my posting.

At that point, I was obliged to bring a grievance.  The D Med Pol process in place back in 2004, and which continues in effect at present, does not offer any CF member a meaningful opportunity to address the recommendations by the member’s ‘personal physician’ or the subsequent review by the applicable ‘Approving Physician’ prior to the matter being referred to D Med Pol.  The relevant decision-maker is D Med Pol, and, under the process presently in use, the first point at which a CF member is presented anything meaningful in terms of the decision-making process involving MEL or a Medical Category is after D Med Pol has made a decision.  By no stretch of the imagination could this be characterized as a fair process.

Arguably, the CF grievance process offers a subsequent remedy to a process that is *potentially* procedurally fair.  However, as the present grievance demonstrates, the CF grievance process is not a timely mechanism.  And the availability of a subsequent grievance process does not rectify an initial statutory decision-making process that clearly lacks procedural fairness.

Asserting that the MEL and PCat process does not have to be procedurally fair because the affected CF member could subsequently bring a grievance, is akin to suggesting that Remedial Measures under DAOD 5019-4 or the Administrative Review Process under DAOD 5019-2 don’t require procedural fairness, because those issues could be addressed in a grievance.  It’s a specious argument.  It’s a nonsensical argument.

Awarding MEL and a PCat is an exercise of statutory powers that can significantly impact the rights, interests, and privileges of a CF member.  Where that impact is potentially adverse and of material significance to the CF member, it requires an elevated content of fairness.  Any suggestion that adverse decision-making relating to MEL and PCat does not require procedural fairness is wrong at law, and manifestly so.

Where a decision by D Med Pol leads to compulsory release, compulsory reclassification of Military Occupation, or the cancellation of a posting message, the CF grievance process is not sufficient to ensure that a substantively flawed decision can be remedied before harm arises from such significant decisions.  Remember: no CF grievance adjudicative authority can grant damages and CF personnel have limited scope to recover damages, as they are not in privity of contract with the Crown.  And, as we know, grievances are often not adjudicated in a timely manner.

Perhaps the more significant problem arising from a lack of initial procedural fairness is that, once the decision is made by D Med Pol, it becomes an entrenched position.  And CF decision-makers – particularly those in CF H Svcs – become intransigent regarding any reconsideration of the decision.  While my grievance is an object example of many of the flaws arising in CF statutory decision-making, it is manifestly an object example of intransigence and entrenched attitudes by statutory decision-makers.

The facts described in Bouchard also demonstrate this level of intransigence, and that is not the only reported case in which CF medical and grievance decision-makers have demonstrated marked intransigence when their decisions are challenged.

My grievance provides several indicia of that same intransigence.  Throughout the adjudication of this grievance, including the abortive steps that did not lead to a decision by the IA, various statutory actors appeared to focus on justifying the D Med Pol decision at all costs.

Thus, even if a CF member can raise issues during the AR-MEL, and indirectly bring those issues to the attention of D Med Pol, a compelling argument can be made that they would face the same intransigence that I have faced over 18 years.

 

Conclusion

I tire of repeatedly facing the ongoing intransigence of closed-minded CF decision-makers who are unwilling to acknowledge that their opaque, unfair, and unreasonable decision-making processes are unsatisfactory in a modern society governed by the rule of law.

I tire of having to point out to closed-minded CF decision-makers that, in the Crown-soldier relationship – a relationship defined entirely under public law legislation, doctrine, and principles – fairness and reasonableness in statutory decision-making are some for the few rights expressed in that relationship and upon which CF personnel may rely.  When those rights are impaired – as they were with me, and as they are with countless other CF personnel who are adversely affected by MEL and PCat decisions, but who might not have the knowledge and faculty to advance the necessary argument – then an injustice arises.

I tire of pointing out to closed-minded medical officers, and the statutory decision-makers who seek to rely on their closed-minded analysis, that any application of their conclusory ‘diagnosis’ to the very policy instruments upon which they purport to rely, must necessarily be reasonable and rationally justified in transparent and intelligible terms.

At the material time of my grievance, Chapter 3 of the relevant CF H Svcs policy manual, CFP 154, described the criteria for the assignment of O2 and O3 for the Occupational factor of a Medical Category.  This policy manual created a legitimate expectation for all CF members that this policy will be applied in the determination of their Medical Category.  The manual stated:

O2’ is: “… assigned to the member who has no employment limitations of a medical nature, or only minor limitations which do not prevent the member from fully meeting the Generic and MOC Task Statements.” [emphasis in original]

‘O3’ is: “… assigned to the member who is capable of performing the majority of occupational / physical tasks, at his/ her own pace, but who has some specific employment limitations(s) which can be clearly and specifically detailed, and which prevent the member from fully meeting the Generic and the MOC Task Statements.”

 

Even if the FA were to accept the vague and ill-defined characterization of my so-called MEL offered by Colonel Kile, there is no reasonable justification to assign an O3.  My supposed MEL were: (a) can but should avoid running on a daily basis; and, (b) fit PT but it may be limited in type, duration, intensity or frequency.

Taken at face value, these statements do not actually describe any clearly articulable limitations.  I was capable of running daily and I was fit for physical training.  The ‘limitations’ – and it would be generous even to describe them with that term – amounted to a suggestion (maybe avoid running on a daily basis – which is a good suggestion for anyone, and one of the reasons that units with organized PT schedules will vary the physical fitness activities) and a vague indication.  Even if these are limitations, they are clearly “… minor limitations that [did not prevent me] from fully meeting the Generic and MOC Task Statements …”.

Certainly, there was no indication that the MEL assigned to me (in a procedurally unfair and closed-minded process) described circumstances in which I was “… capable of performing the majority of occupational / physical tasks [but only] at [my] own pace, [and that I had] … some specific employment limitations(s) which can be clearly and specifically detailed, and which [prevented me] from fully meeting the Generic and the MOC Task Statements.” (to use the definition for “O3” in effect at that time).

Throughout my grievance, and using the very policy direction promulgated by CF H Svcs, I demonstrated that the MEL that Colonel Kile insisted were valid, justified an O2 not an O3 for my Occupational factor.  Colonel Kile’s continued refusal to acknowledge that this is the only logical conclusion to draw, based upon the legitimate expectation that he will apply his own policy reasonably, is clearly demonstrative of a closed mind.

And my grievance has broader implications.  It is an opportunity for the FA to acknowledge the shortcomings in the fairness and reasonableness in the adjudication of MEL and Medical Categories.  Benefitting from this opportunity requires an open-minded approach from decision-makers and policy makers in CF H Svcs as well as decision-makers and policy makers in the CF grievance process and the CF generally.  Unfortunately, this grievance file is an object example of a refusal even to consider such an outcome.

There is a material opportunity for the CF to learn from this grievance.  There is an opportunity to assess why some grievances languish, unresolved, with both IA and the FA.  One obvious reason for delay with some grievances is a lack of adequate resources.  But that was not the problem with my grievance.  Nor is it necessarily the overwhelming reason for delay in the adjudication of CF grievances generally.

I have suggested that one of the principal reasons for delay arises when a grievance has merit, but acknowledging that merit and granting remedy is unpalatable for the IA or FA.  Sometimes, the reason such outcomes are unpalatable is because the grievor has been ‘labelled’ in a negative manner by initial decision-makers.  Where the initial decisions were unfair or unreasonable, such ‘labels’ can be problematic, not least because the conclusions upon which such ‘labels’ are based are likely unreliable.

Sometimes delay arises from the remedial shortcomings of the CF grievance process. Where a grievance has merit, but the IA or FA cannot grant a meaningful remedy, the IA or FA may be inclined to uphold the impugned decision that gave rise to the grievance.  Otherwise, the IA/FA would have to acknowledge that, although the grievance has merit, the grievance process is not a meaningful remedy.  That might undermine the “adequate alternative remedy” that is routinely presented by the AGC as a basis for motions to dismiss applications for judicial review.

I have advised on grievances, both within the CF as an institution and with individual CF members.  And I have repeatedly encountered adjudicative authorities in the grievance process who hesitate to consider and determine a grievance because they do not wish to acknowledge institutional shortcomings or the shortcomings of individual decision-makers.

This perspective runs counter to the conceptual remedial intent of grievance processes, and to the purported values, under DAOD 7023-1, Defence Ethics Programme, that CF personnel, particularly decision-makers, should respect and abide by the rule of law.  It also runs counter to the purported value that CF personnel should learn from their errors.  Time and again, I encounter CF personnel who are told by their chain of command, often in the context of DAOD 5019-4, Remedial Measures, that they must learn from their errors in order to overcome performance or conduct deficiencies.  And, sometimes, those remedial measures are imposed in a particularly harsh manner if the chain of command perceives that a subordinate will not acknowledge her or his shortcomings (even when the alleged shortcomings may be disputed).  Yet the same chain of command consistently appears disinclined to apply the same principle to themselves.

My grievance presents the CF generally, and the CF H Svcs specifically, with an opportunity for reflection.  It is an opportunity to correct how MEL and PCat are imposed.  It is an opportunity to make the process fair and reasonable.  The current process meets neither of these requirements.

My fear is that, because the process that is currently used is rarely challenged successfully, there remains a resistance to pursuing such beneficial changes.  As a result, judicial reviews like Bouchard are viewed as ‘outliers’ rather than the ‘wake-up call’ that they should be.

But I can guarantee that, if I am not granted the remedy that I seek, this grievance will also become a ‘wake-up call’.

 

[1] There was no justification under the Privacy Act to redact that physician’s name.  It was not personal information.  I have chosen not to name him in this Blog.  Unlike various statutory actors in CF H svcs, he did his job in a relatively timely fashion and did it properly.  I did not wish to drag him into their mess.

[2] Granted, not all legal officers take the approach that I took when I was serving.  A former DJAG Administrative Law once told me: “We are not the CF’s compliance officers.”  Which I find odd; if Legal Officers are not going to ensure that CF decisions are made in a manner consistent with principles of public and administrative law, who will?