Motions to Strike/Dismiss Applications and Actions by CF Personnel
28 January 2025
Regrettably, I have not been as prolific with this Blog in 2024 as I had intended. I have been lax in addressing pertinent issues and judgments as they have arisen. Such is the challenge of maintaining a Blog on military law while also practicing in the same field. Sometimes my desire to provide pertinent public commentary must take a back seat to my obligations to clients, or other obligations.
Similarly, I did not produce my usual year-end summary of developments in disciplinary and public and administrative law in the administration of the affairs of the Canadian Forces (CF).
My goal in the coming weeks is to redress that gap in commentary. I will attempt to do so thematically.
The first theme that I wish to address concerns the grounds for which the Crown – represented by the Attorney General of Canada (AGC) – might seek to terminate litigation brought by a member (or former member) of the CF. This happens frequently. The AGC will often seek to terminate litigation – whether it is an action for damages or an application for judicial review – on one or more grounds, typically relating to the broad factor of ‘justiciability’.
There is a great deal that could be written on this subject. The focus of the present Blog post will be on specific judgments that arose in 2024, and which I have not yet discussed in detail in this space. This discussion will likely give rise to further examination of motions to strike litigation brought by CF personnel. For the moment, however, we will focus on the specific nature and impact of select judgments in the past year.
Liability of the Crown
I will not provide a comprehensive examination of Crown liability in the present Blog post. The evolution of Crown liability over the past couple of centuries, and, in particular, following the Second World War, is relevant to circumstances in which CF personnel (or former CF personnel) seek remedy from civil courts. It merits comprehensive discussion in the future. For the purposes of our present discussion, I will attempt to summarize the regime as it currently applies. And, for the purposes of discussion, in order to minimize repetition, when I refer to “current CF personnel” it can be taken to include former CF personnel save where I expressly draw a distinction.
Historically, the Crown was not liable for its actions under tort.[1] Until the 19th Century, the principal process by which an individual could seek remedy from the Crown was the Petition of Right, marked by broad discretion and a cumbersome and time-consuming process.[2] Within Anglo-Common Law jurisprudence, liability of the Crown is a relatively recent development.[3]
Canadian provinces adopted legislation similar to that of the UK between 1951 and 1974[4], and, federally, the Crown’s liability under tort was developed in stages between 1951 and 1971[5]. Federal Crown liability under tort is now governed largely under the Crown Liability and Proceedings Act (CLPA)[6], which bears marked similarity to the UK’s Crown Proceedings Act 1947[7]. The CLPA defines non-contractual ‘liability’ as ‘extracontractual civil liability’ in the province of Quebec, and liability in tort in all other provinces.[8]
Non-contractual liability arising from the Crown-soldier relationship typically, though not exclusively, is examined on the federal level.[9] Provincial courts share concurrent jurisdiction regarding actions for damages. Section 3 of the CLPA focuses on the Crown’s vicarious liability arising from the actions of its servants[10] or by the Crown’s ownership, occupation, possession, control or custody of property[11]. Federally, the Crown bore a measure of liability from 1887, and, from 1938 to 1955, was only vicariously liable for the actions of its servants.[12] However, prior to the introduction of the CLPA, the federal Crown was often not held liable for the actions of its ‘military servants’, as this relationship was held distinct from employment relationships.[13] Even after the introduction of the Crown Liability Act[14], the Crown was typically held liable through the vicarious liability of its servants[15].
I focus on non-contractual (or tortious) liability of the Crown, as, unlike the Federal Public Administration, CF members are famously not viewed as being in privity of contract with the Crown: Gallant v The Queen In Right of Canada (1978), 91 DLR (3d) 695 (FC TD) [Gallant]. And we will be circling back to Gallant in the future Blog posts on judicial review.
Barriers to Justiciability
A common tactic employed by the AGC when a CF member brings an action, or an application, is to respond with a motion to strike pleadings (for an action) or the application.
The Federal Court of Appeal (FCA) judgment in JP Morgan Asset Management (Canada) Inc. v Canada (National Revenue), 2013 FCA 250 [JP Morgan] provides a comprehensive description of how and when a motion to strike might be brought when a CF member brings an application for judicial review. The FCA has held that, in determining whether the threshold to strike is met by the moving party, the Court should consider the following:
Two of the common bases for which the AGC will often seek to strike an application (or an action) are: (1) that the CF member has access to an “adequate alternate remedy” – typically citing the CF’s statutory grievance process; and/or, (2) that an application (or action) is statute barred under the CLPA.
When the AGC raises a motion to strike based upon either (or both) of these bases, the AGC is relying on the second of the principles from JP Morgan. (As an aside, there may be circumstances in which a Notice of Application or a Statement of Claim by a CF member fails to state a cognizable claim that can be brought in Federal Court or seeks relief that is not available from the Federal Court. However, that is not the focus of the present discussion.)
The AGC will typically argue that the Federal Court should avoid interfering with ongoing administrative processes under the National Defence Act (NDA)[17] and that to do so would represent premature intervention by the court.[18] The AGC consistently indicates that the Supreme Court of Canada has cautioned lower courts to be mindful of the importance that they not jeopardize the processes set out in legislative schemes for the redress of complaints by permitting parallel access to the courts.[19]
The AGC will invariably indicate that, in Wilson v Atomic Energy of Canada Limited, 2015 FCA 17, the Federal Court of Appeal stated that “[t]he force and pervasiveness of the general rule against premature judicial reviews and the need to discourage premature forays to reviewing courts means that the exceptions to the general rule are most rare and preliminary motions to strike are regularly entertained”.[20]
However, a motion to strike should only be granted if a proceeding is “… so clearly improper as to be bereft of any possibility of success …”.[21] In considering a motion to strike, the Court must read the Notice of Application under review holistically and practically with a view to understanding its real essence and essential character.[22]
The AGC relies upon the premise that the CF grievance process is a complete and comprehensive remedial process and that, therefore, recourse to the courts prior to a CF member exhausting that remedy contravenes the principle that underlies “adequate alternate remedy”. And the AGC has relied upon this argument, consistently, in many cases over the years: Anderson v Canada (Armed Forces), 1996 CanLII 3848, [1997] 1 FC 273 (FCA); Strickland v Canada (Attorney General), 2015 SCC 37; Donoghue v Canada (Minister of National Defence), 2004 FC 733; Bast v Canada (Attorney General) (1998), 156 FTR 99;Brown v Canada (Attorney General) (1998), 148 FTR 50; Sandiford v Canada, 2007 FC 225; Moodie v Canada (National Defence), 2008 FC 1233; MacLellan v Canada (Attorney General), 2014 NSSC 280; Chua v Canada (Attorney General), 2014 FC 285; Fortin v Canada (Attorney General), 2021 FC 1061.
However, the ongoing rote assertion that the CF grievance process is a comprehensive remedy that is suitable for all errors, injustices, and shortcomings arising in the administration of the affairs of the CF tends to strain credulity at times. Conceptually, this assertion is vulnerable to exceptions. And some of the judgments arising in 2024 highlight those exceptions.
In the present Blog post, we will examine those exceptions in the context of judgments arising in 2024. However, in a future Blog, we will examine how comprehensive the CF grievance process truly is, particularly when one compares the process as it is presently configured, and the process that existed before the enactment of Bill C-25[23] in 1998.
Another common AGC tactic is to argue that an action or application is statutorily barred. A common basis for such an argument is s 9 of the CLPA. In the context of actions or applications brought by CF (or former CF) members, the AGC may rely upon s 8 of the CLPA (though far less frequently than s 9).
And we must bear in mind that the CLPA represents one of the principal bases for the liability of the Federal Crown and, therefore, a basis by which a CF member, or anyone else, may bring an action against the Federal Crown (i.e., His Majesty, the King, in Right of Canada). Sections 3, 4, and 5 of the CLPA establish the principles bases for liability (in particular, s 3).
For clarity, sections 8 and 9 of the CLPA state:
Taken at face value, s 8 of the CLPA could be viewed as immunizing the Crown from anything arising from the operations or training of the Canadian Forces (CF), or even the administration of the affairs of the CF. It is a convoluted provision with complex language.
There is an apt observation about s 8 from Justice Quinn, of the Ontario Superior Court of Justice, in the judgment cited as Morton v. Canada (Attorney General), 2005 CanLII 6052 (ON SC). This judgment concerned a motion by the Crown (represented by the AGC) seeking an order requiring the plaintiffs (who were not ordinarily resident in Canada) to provide security for the anticipated costs of the action.
In that action, the Crown pled s 8 as a complete defence (or, perhaps more accurately, a complete bar) to the action. After providing the express wording of s 8 of the CLPA (much as I have done above), Justice Quinn stated:
[26] Legislation can be humbling. I do not know what s. 8 means. I have read it several times. I am embarrassed to say that my comprehension did not improve with repetition. Consequently, I am unable to say whether it is an impediment to the action of the plaintiffs.
And the treatment of s 8 of the CLPA by the courts – predominantly, but not exclusively, the Federal Court – has varied markedly. It has been interpreted broadly and narrowly. It would not be unreasonable for a well-informed lawyer to conclude that the eventual application of s 8 in any given proceeding can be unpredictable.
Professors Hogg, Monahan, and Wright offer an equally pointed observation:
[Section 8] is a sweeping immunity for military activity, drawing no distinction between war and peace; between combat, training and discipline; or between injured civilians and injured members of the forces.[24]
While I do not intend to delve into the application of s 8 of the CLPA in detail (and it certainly merits examination in detail), I will offer two observations that will be relevant in the discussion that follows. First, s 8 of the CLPA has been subject to fairly divergent application by the courts, resulting in a degree of unpredictability when it is pled by the Crown as a bar to litigation. Second, the Crown relies markedly more frequently on s 9 of the CLPA. In the context of applications and actions by CF personnel, s 9 of the CLPA will be pled whenever the basis for litigation touches upon a subject that might result in a CF member being eligible for benefits such as those prescribed under the Pension Act[25] or Veterans Well-being Act[26].
Other grounds, often relating to justiciability, might also be raised, including that an action or application has been brought following the expiration of a relevant limitation period. However, the discussion below focuses on the principle of “adequate alternate remedy” and, secondarily, s 9 of the CLPA.
Specific Examples from 2024
During the course of 2024, there were a number of judgments that illuminate the recurring theme in litigation involving the administration of the affairs of the CF: motions, brought invariably by the AGC, to strike or dismiss applications or actions brought by CF personnel.
I will present a brief summary of each of the judgments, including the factual context that led to the relevant application or action, and the circumstances of the motion brought by the AGC.
I will then offer some comparative analysis in order to present key principles that may be drawn from these matters, and which may offer some coherent explanation why certain motions might fail, while others (frequently) succeed. And I will acknowledge, in advance, that this is not that last time in the coming weeks that we will discuss this issue. However, the focus today will be on the four following judgments:
Thomas v Canada, 2024 FC 665 [Thomas]
This judgment concerned an application to certify a class proceeding brought by a representative plaintiff, Dan Thomas. The plaintiff sought compensation for former and current members of the CAF who experienced worsening symptoms arising from their mental health disorders (“MHD”), incurred during their service, due to stigmatization inflicted by the CF. In the judgment, Justice Zinn referred to this phenomenon as “Mental Illness Stigmatization”. To be clear: the plaintiffs were not seeking compensation for the initial MHD arising from their service. That would very clearly be grounds for compensation under the legislated regimes governed by Veterans Affairs Canada (VAC) and would likely trigger the bar to litigation at s 9 of the CLPA. Instead, the plaintiffs sought compensation for the aggravation of their injuries due to the stigmatization that arose after they were diagnosed with MHD.
The plaintiff’s Notice of Motion described the stigmatization as “… pejorative attitudes, behaviours, or beliefs concerning [CF] Members who suffer from mental health disorders, as reflected by the internalization of negative attitudes and beliefs by sufferers of mental health disorders, by [CF] policies, practices, and rules, as well as by the treatment of class members by other [CF] Members, which includes discrimination, ostracization, harassment, and abuse.”
The Defendant Federal Crown opposed the certification of the proceeding as a class action. It argued that the Court lacked jurisdiction to certify the action because there are available legislative remedies within the CF and elsewhere. In its motion, the Crown sought to raise the barrier under the principle of “adequate alternate remedy”. The Crown argued that the Plaintiff failed to demonstrate some basis in fact of four of the five elements of the certification test under Rule 334.16 of the Federal Court Rules.
Part of the challenge that the Crown faced is that it initially conceded that the Plaintiff’s pleadings disclosed a reasonable cause of action. The Crown then tried to resile from that concession. The Crown sought to amend its Memorandum of Fact and Law to argue that the Plaintiff failed to meet all five of the elements of the certification test. However, the Court would not permit the Crown to resile from its earlier concession, and the Defendant did not have the right to do so unilaterally.
The Court identified three issues for its adjudication:
It is the first of these issues that is pertinent to our present discussion. The Court answered the second and third questions in the negative, and affirmative, respectively.
Thus, although this was not, strictly speaking, a motion by the AGC to strike or dismiss an action or application, the Crown opposed the certification arguing that the Federal Court should decline to exercise jurisdiction relying on the two arguments or positions that I mention above, and which the AGC routinely raises when seeking to strike or dismiss a proceeding brought by a CF member: (1) adequate alternate remedy in the CF grievance process; and (2) s 9 of the CLPA based upon compensation offered under statutory pension regimes.
Both arguments failed.
The first – adequate alternate remedy – failed due to the combination of several factors. One key factor was that the Plaintiffs demonstrated, through the provision in evidence of multiple reports commissioned by the Crown [Thomas, para 14], which demonstrated significant and ongoing delay in the adjudication of grievances and marked shortcomings in other remedial processes.
And this is an important factor. Despite repeated reviews identifying endemic and unresolved delay in the CF statutory grievance process – which has existed for years – the CF has failed to remedy the problem. As I have indicated previously in this Blog, the oldest CF grievance of which I am aware dates back to 15 March 2006. And I am intimately familiar with this grievance, because I am the grievor.
In Thomas, the AGC argued that the CF was addressing this shortcoming:
[25] 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.
The problem with this assertion is that the CF has not adequately addressed this shortcoming. And the CF has been aware of this ongoing shortcoming for years. Successive occupants of the position of the DND/CF Ombudsman have cited this ongoing shortcoming. The independent Reviews conducted, first, under Bill C-25, and, most recently, under s 273.601 of the NDA, have described this shortcoming and have noted that, despite repeated observations that delay remains endemic, the CF has done little to remedy the problem. Insisting, in 2024, that a Directive (that is not notoriously published nor available to the general public) published in 2021 will correct this deficiency rings more than a little hollow.
And it simply isn’t true. Recently, one of my clients, who grieved his compulsory release from the CF – which was both procedurally unfair and unreasonable – finally received his decision from General Wayne Eyre, the former Chief of the Defence Staff (CDS). In fact, he received the decision a couple of days before General Jennie Carignan succeeded General Eyre as CDS.
Throughout this grievance, my client repeatedly submitted comprehensive argument pointing out that not only was the initial, impugned decision procedurally unfair and unreasonable, but the adjudication of his grievance thereof repeated the same procedural and substantive errors. These arguments were largely ignored, and the eventual decision by the CDS suffered from many of the same flaws.
Putting aside the repeated errors regarding the fairness and reasonableness of the adjudication of the grievance, the reason why I mention this specific circumstance is that it is an object example of delay in the CF grievance process. The grievance was submitted in early 2018. My client received the determination from the final authority in August 2024, 6 ½ years later. This was over 3 years after the CDS’ “Directive for CAF Grievance System Enhancement” was issued. And this delay included large gaps of time in which my client received no communication or updates from the CF.
If I were a cynic – and, frankly, in my line of work it would be a miracle if I were not – I would speculate that the significant delay was because the relevant staff were attempting to ‘review-proof’ the final authority’s decision in the face of a decision by Director Military Careers Administration (“DMCA”) that was indefensible. The irony is that, despite taking years to adjudicate my client’s grievance, the FA and his staff failed to produce a fair and reasonable decision.
It is difficult to take seriously claims that the CF is attempting to remedy delay in the adjudication of grievances when grievors still regularly face delays of 5 years or more.
It is obvious that Justice Zinn was not convinced either.
But delay alone is insufficient to render the grievance process inadequate. A remedy need not be perfect in order to be adequate. And bare assertions of inadequacy are insufficient to support a finding that the Court should not defer to the internal processes.
However, the Plaintiff relied upon Greenwood v Canada, 2020 FC 119 to argue that the Crown’s jurisdictional arguments could not succeed. Although Greenwood concerned mechanisms available to the RCMP, it is analogous to the CF, particularly as the current 2-tiered CF grievance process was modelled significantly on the RCMP’s grievance process. Where internal mechanisms fail to “provide a fulsome remedy, or any remedy, for the claims sought to be advanced”, the Court may exercise its jurisdiction. [Greenwood, para 39]
The Plaintiff argued that part of the allegations advanced in the class proceeding related to the inadequacy of the CF’s internal dispute resolution schemes. He submitted that it would be circular reasoning to decline certifying the class proceeding on the basis of seeking a remedy through the Defendant’s internal schemes when those very schemes form part of the dispute. Most of the Plaintiff’s evidence criticizing the internal processes related to delays and resulting backlogs. [Thomas, para 26]
The Defendant Crown’s argument relating to s 9 of the CLPA, which is raised by the AGC in the context of actions by CF personnel almost as frequently as “adequate alternate remedy”, also failed to dissuade the Court from exercising its residual jurisdiction. [Thomas, paras 35 to 51]
Consequently, the Class Action was certified and permitted to proceed.
This does not mean that the class action was successful; it is simply that two grounds that are often raised by the AGC as interlocutory motions to bar actions (and applications) from proceeding failed in this instance, and the class action was certified to proceed.
The AGC arguments failed because the plaintiff was able to demonstrate that the grievance process was not an adequate alternative remedy. The plaintiff was able to demonstrate that it could not provide a fulsome remedy in this particular instance. The Plaintiff demonstrated that delays in the grievance process were a central part of the problem faced by the class.
Similarly, the Plaintiff was able to distinguish between the remedies that the class might obtain from VAC for their MHD and the subsequent aggravation of those injuries due to stigmatization. Consequently, the court held that s 9 of the CLPA did not bar the action.
From my perspective, the argument raised by the AGC under s 9 of the CLPA was likely the stronger of the two barriers raised. At paras 43 and 44, Justice Zinn addressed argument from the AGC that aggravation of the MHD would fall within VAC-administered benefits:
[43] As outlined above, the Defendant submits that CAF members may receive additional compensation where they are already a recipient of disability benefits and claim their condition has worsened for whatever reason, including workplace discrimination or harassment. The VAC has authority to re-evaluate the degree of impairment, and subsequent amount of compensation, any time following receipt of VAC benefits. To the extent that the Plaintiff raises allegations of compensable harm for which he is not in receipt of VAC benefits, the Defendant submits that he is required to first make an application to VAC for compensation before commencing an action.
[44] The Plaintiff submits that section 9 of the CLPA does not apply as VAC only compensates “service-related disability” and therefore excludes compensation for harassment, abuse, discrimination, bullying, stigmatization and other pleaded harms that do not amount to a service-related disability.
The AGC took the position that the Pension Act and Veterans Well-being Act will compensate disability arising from the aggravating factors cited by the Plaintiffs. It appears that Justice Zinn distinguishes “… harassment, abuse, discrimination, bullying, stigmatization and other pleaded harms …” from “disability”, as they are harms that do not necessarily constitute disabilities, as defined under those respective statutes. The question then – and this will undoubtedly form part of the argument when the class action is tried – is whether the impugned actions or omissions on the part of the Crown constitute tortious misconduct.
Qualizza v Canada, 2024 FC 1801 [Qualizza]
Thomas can be distinguished from the subsequent judgment in Qualizza v Canada, 2024 FC 1801 (Qualizza). Notwithstanding that some people may have characterized Qualizza as a class action, it was manifestly not brought under Rule 334.12 of the Federal Courts Rules, SOR/98-106. It was brought as an action with 330 plaintiffs, naming multiple defendants[27]. The plaintiffs claimed to have been adversely impacted by the CDS’ Directives regarding COVID-19 vaccination requirements.
The AGC was successful in striking the Statement of Claim. Unlike in Thomas, the plaintiffs in Qualizza failed to plead sufficient material facts to support each element of the claims brought. No material facts were pled, or evidence supplied, to support the allegations. No cause of action was disclosed, either by a close reading or by a holistic reading of the pleadings. The lack of particulars for each of the Plaintiffs was fatal to the action. Moreover, the facts that were pled for each Plaintiff failed to show how each Plaintiff was negatively impacted by the Directives that were impugned in the Statement of Claim. In short, the limited material facts pled for each Plaintiff fails to tie the Plaintiffs to the general allegations of harm asserted. [Qualizza, para 52].
Associate Judge Catherine A. Coughlan concluded that the pleadings not only did not disclose a reasonable cause of action, but that they employed vexatious language and some assertions constituted an abuse of process. She ordered that the pleading be struck in its entirety and that leave to amend the pleadings should not be granted. She concluded that there was no basis for the Court to exercise its residual jurisdiction to permit the action to proceed.
One of the principal distinctions between Thomas and Qualizza appears to have been the quality of the Statement of Claim.
Graham v Canada (Attorney General), 2024 CanLII 89508 [Graham]
The judgment in Graham v Canada (Attorney General), 2024 CanLII 89508 represents a bit of a middle-ground between Thomas and Qualizza. Scott Graham, a CF member (at least at the time that he brought his grievance and subsequent application), brought an application after he received the Findings and Recommendations (F&R) from the Military Grievances External Review Committee (MGERC). The MGERC is required to produce F&R for grievances referred to it by the final authority, whether such referrals are mandatory under art 7.21 of the QR&O or are referred based upon the final authority’s discretion.
It appears that the Part-Time Vice Chair of the MGERC (the MGERC member to whom Mr. Graham’s grievance was referred) produced F&R in late April 2022 and then sought to re-open the MGERC’s analysis in late September 2022. It appears that this may have been done due, at least in part, to a request from the (then) Director General Canadian Forces Grievance Authority (DGCFGA).
Mr. Graham clearly objected to this course of action. Among other outcomes to his application, Mr. Graham sought: (1) an Order in the nature of quo warranto requiring MGERC to show the authority he relied on to re-open the F&R process; (2) a declaration that the decision to re-open the F&R process was ultra vires and made in concert with the DGCFGA for an unauthorized or improper purpose and/or constituted an abuse of process; (3) an order in the nature of certiorari quashing all, or some, grievances referred to MGERC and to destroy all related records per the Library and Archives of Canada Act; (4) in the alternative, a stay of proceedings, for all, or some, grievances referred to MGERC and to destroy all related records per the Library and Archives of Canada Act; and, (5) also in the alternative, an Order in the nature of prohibition restraining MGERC from re-opening the F&R process, coupled with an Order in the nature of mandamus compelling the MGERC to submit its report to the CDS, and for the CDS, or another delegated officer separate from DGCFGA, to determine the subject grievance within 90 days or otherwise as the Court determines. [Graham, para 27]
The AGC brought a motion to strike the application, asserting that it was premature. In addition to relying on the arguments that are typically brought for such motions, the AGC also pointed out that the decision impugned by the application – the decision by the MGERC to re-open its F&R process – is not the final decision in the CF grievance process. And the AGC was correct in this regard: by virtue of sections 29.12 and 29.15 of the NDA, the final authority (the CDS or her delegate) makes the final decision in this process. What’s more, the CDS is not bound by any finding or recommendation by the MGERC (NDA, s 29.13).
Mr. Graham may have a valid argument that the MGERC does not have the authority to re-open its F&R process (with or without the consent of a CF authority such as Director Canadian Forces Grievance Authority (DCFGA), which replaced DGCFGA). But that can be argued within the grievance process and could also be raised once a determination is made by the final authority.
[As an aside, I believe that the framework of the CF grievance process does permit the MGERC to re-open its F&R process, or for the final authority to refer a grievance back to the MGERC if the final authority believes that the MGERC has failed to conduct a sufficient review to assist the final authority. However, that is an issue best left for examination at another time.]
The AGC was largely successful in striking the application, including the applicant’s amended application. However, the application was granted leave to further amend his Amended Notice of Application with respect to his claim for a mandamus order only. In other words, the only thing that the Court would permit was for the applicant to seek an order to hasten the decision by the final authority (which, in light of the fact that, by the time that the application was heard, a further two years had passed, is understandable.)
Bernatchez c Canada, 2024 CF 1426 [Bernatchez]
Both Thomas and Qualizza can be distinguished from the judgment from the Federal Court in Bernatchez c Canada (Procureur général), 2024 CF 1426 (reported in French). Again, superficially, the matter in Bernatchez was an application for judicial review, while Thomas and Qualizza are/were actions. However, the principal distinction for the purposes of our discussion is the nature of the motion brought by the Crown. Unlike in Qualizza and Graham (and, after a fashion, Thomas), the AGC did not bring a motion to strike the application. Instead, the AGC brought a motion to stay the Application.
Rear-Admiral (RAdm) Bernatchez had been the Judge Advocate General of the Canadian Forces (JAG) from 2017 to 2023. At some point during her tenure, complaints were brought against her by at least two subordinates. These complaints were investigated by the Director Special Examinations and Investigations (DSEI), an office that falls under the supervision of the Assistant Deputy Minister – Review Services (ADM-RS), previously called Chief Review Services (CRS).
In light of RAdm Bernatchez’ position as JAG, it is understandable why the complaints were not addressed by a “Responsible Officer” under DAOD 5012-0 Harassment Prevention and Resolution. Arguably, the only person who could be the “Responsible Officer” would have been the CDS and, even then, the JAG was not responsible to the CDS for the performance of her duties. The JAG was (and is) responsible to the Minister of National Defence.
Based upon the investigation, ADM-RS concluded that one of the complaints against RAdm Bernatchez was founded.
RAdm Bernatchez brought an application for judicial review, alleging that the process was unfair and that the conclusions were unreasonable. I discussed this application back in January 2023 when news of it was first reported.
RAdm Bernatchez did not, initially, grieve the decision. That was not surprising – at least to me. There is a compelling argument that, even if RAdm Bernatchez brought her complaint before she retired, the CF grievance process would not have been an adequate alternate remedy. However, such a position does not accord with the Federal Court judgment in Fortin v Canada (Attorney General), 2021 FC 1061. More on that in a moment.
After RAdm Bernatchez brought her application, the AGC indicated the intention to seek to have the application struck out on the grounds that the CF grievance process presented an ‘adequate alternate remedy’. These were the same grounds argued unsuccessfully in Thomas and successfully in Qualizza. However, as those were both actions, perhaps it would be more a propos to observe that those grounds were argued by the AGC, successfully, in Graham, Fortin, and several previous applications.
Consequently, RAdm Bernatchez agreed to file a grievance de bene esse and to argue, as part of that process, the reasons why she believes that a grievance is not an appropriate remedy. In addition, she agreed to apply for a stay of her application for judicial review, with the consent of the AGC. The Court granted that application and ordered a stay of the proceedings, initially until July 20, 2023, and ultimately until April 15, 2024.
By May 2024, due to what she claimed were delays in the processing of her grievance, RAdm Bernatchez sought to reactivate her application for judicial review by withdrawing her consent to the stay of proceeding.
Instead of seeking to strike the application based upon the basis of an ‘adequate alternate remedy’ in the CF grievance process, the AGC objected to RAdm Bernatchez’ decision by filing a motion to stay the proceedings until a final decision is rendered on RAdm Bernatchez’s grievance.
Justice Grammond dismissed the motion. With such a motion, the Court may grant a stay “… if, having regard to all the circumstances, the interests of justice so warrant”: (Mylan Pharmaceuticals ULC v Astrazeneca Canada Inc., 2011 FCA 312, para 14).
This is not the same as the test for a motion to strike. Indeed, Justice Grammond distinguished between a motion for a stay and a motion to strike, indicating [my translation]: “… if the Attorney General considers that the application should be summarily dismissed, he must bring a motion to strike. He cannot bring a motion to stay proceedings in order to avoid arguing the motion to strike.” [Bernatchez, para 9]
It is unclear why counsel for the AGC did not bring a motion to strike in a manner similar to several other comparable applications. As I mention, supra, a notable comparator is the aforementioned of Fortin v Canada, in which the application of a General Officer of the same rank (though different rank designation) as RAdm Bernatchez was dismissed because the judge concluded that the CF grievance process is an ‘adequate alternate remedy’.
In so doing, the AGC has inadvertently created a double-standard: Other CF personnel faced motions to strike applications and actions that were purportedly “premature”, but RAdm Bernatchez did not.
Notwithstanding that some seeming inconsistencies have arisen in judgments regarding motions to strike based upon the principle of ‘adequate alternate remedy’, this particular double-standard has arisen from tactical litigation decisions by the AGC regarding the approach adopted for the specific litigation, rather than from the judgments themselves.
But there remains an unanswered question: if the AGC had brought a motion to strike, rather than the motion for a stay, what would the outcome have been? And I ask this hypothetical because I doubt that the AGC will bring a motion to strike RAdm Bernatchez’ application. According to the Federal Court’s online records, this past December, the AGC brought an informal application for interlocutory relief to stay the proceedings until 10 March 2025 (and that appears to have been brought with the consent of the Applicant, RAdm Bernatchez).
Tangent: Comparison with Fortin v Canada
I take the position that, if the AGC were to bring a motion to strike RAdm Bernatchez’ application, it should fail.
And that statement might be met with some incredulity from people who follow this Blog, or who follow public and administrative law pertaining to the CF. After all, such an outcome would be inconsistent with the judgment of Justice McDonald in Fortin v Canada.
Respectfully, I contend that Justice McDonald’s conclusion was wrong. And I base my contention on the same analysis by which I conclude that a motion to strike RAdm Bernatchez’ application would fail.
After receiving Justice McDonald’s judgment, Major-General (MGen) Dany Fortin filed an appeal with the Federal Court of Appeal. The conduct of that appeal was adjourned indefinitely while Dany Fortin faced criminal prosecution before the Superior Court in Quebec. He was eventually acquitted in a manner that called into question why the prosecution had proceeded. His legal team then brought an action for damages before the Ontario Superior Court of Justice on 15 March 2023. That action was not heard by the court. It was resolved when the Federal Crown settled the matter out of court and, as is typical, that settlement appears to have been subject to a non-disclosure agreement. The Appeal of Justice McDonald’s judgment was discontinued on 25 October 2023.
We won’t benefit from a Federal Court of Appeal review of the judgment in Fortin.
In light of RAdm Bernatchez’ application and lack of an appellate decision for MGen Fortin’s earlier application, there is merit in examining my contention that neither MGen Fortin’s application, nor that of RAdm Bernatchez, should have been (or should be) struck based upon the premise that the CF grievance process is an adequate alternative remedy.
And the analysis isn’t all that complex. I contend that, in both circumstances, the CF statutory grievance process cannot be relied upon as an adequate alternate remedy as the decision-makers in question are not subject to the direction or supervision of the final authority in the CF grievance process: the CDS.
MGen Fortin’s application was predicated upon the assertion in his pleadings that the impugned decision to remove him from his position with the Public Health Agency of Canada (PHAC) was made by the Prime Minister, the Minister of National Defence, and the Minister of Health as part of a “political calculus”. He indicated that he was not afforded adequate procedural fairness or provided a reasonable explantion for the decision. When last I checked, none of these political office holders take their marching orders from the CDS. In fact, the CDS takes her marching orders from the Minister of National Defence[28].
RAdm Bernatchez complained of a decision made by ADM-RS. ADM-RS is responsible to the Deputy Minister of National Defence, not the CDS. Though the inadequacy of the CF grievance process is not as starkly obvious in RAdm Bernatchez’ circumstances as it was in those of MGen Fortin, it is still clear that the CDS cannot issue any binding direction to ADM-RS.
Frankly, there are compelling arguments that refute the AGC’s frequent assertions regarding just how comprehensive the CF grievance process purportedly is. However, I need not present those arguments to address the issue as it applies to the circumstances of MGen Fortin and RAdm Bernatchez. And that is because the decisions that they sought to challenge by application for judicial review were decisions by political decision-makers (MGen Fortin) or decision-makers who are accountable to political actors, and not to the CDS (RAdm Bernatchez).
An “alternate remedy” need not be perfect; it need only be adequate for the court to defer to that process. But to be adequate, the process must provide a fulsome remedy for the claims advanced. [Strickland v. Canada (Attorney General), 2015 SCC 37, para 59]
Justice McDonald applied the test from JP Morgan, identified supra, and granted the AGC’s motion to strike because MGen Fortin had failed first to exhaust the CF’s statutory grievance process. Her conclusions were captured in paras 45 to 47 of her judgment:
[45] Contrary to the facts in Caruana, as MGen Fortin has not yet filed a grievance and there is no direct evidence as to the timeliness of the process available for his particular circumstances. Accordingly, his complaints about the process are at this point, purely speculative. As noted by the Court in Moodie, “[i]t is simply premature to assume that a remedy could not be provided through the administrative processes when the applicant has failed to take advantage of them” (at para 38).
[46] Ultimately, the issues raised by MGen Fortin relate to his military service, his professional reputation and his military career. The remedies he seeks can be provided within the CAF grievance process. The military context is unique and highly specialized and the issues raised are best considered by the Grievances Committee who has the ability to make recommendations to the [Acting CDS]. The [Acting CDS] ultimately has the ability to grant the remedies sought by MGen Fortin.
[47] As a final point, I would note the comment of the Supreme Court in Strickland where the court states that parties are not guaranteed a perfect alternative remedy, but rather an adequate remedy (at para 59). Here the remedy available to MGen Fortin while perhaps not perfect, is nonetheless adequate.
However, I contend that Justice McDonald overlooked a couple of critical factors. First, the Court will strike a notice of application for judicial review only where it is “… so clearly improper as to be bereft of any possibility of success …” [JP Morgan, para 47]. Second, a motion to strike must proceed on the basis that facts alleged in the originating Notice of Application be taken as proven [JP Morgan, para 52].
MGen Fortin’s Application articulated that the impugned decision was made by the Prime Minister and Ministers of the Crown. It articulated that MGen Fortin was provided no disclosure and no articulable reasons.
At para 48 of her judgment, Justice McDonald concluded:
[48] MGen Fortin argues that there are exceptional circumstances in his case because the political actors who made the decision are outside the CAF chain of command. He argues that the grievance process would effectively immunize the true decision-makers. However, I note that despite the allegations of political interference, MGen Fortin does not seek a remedy against the “political” decision-makers. Rather, he seeks an order quashing the decision and reinstating him to his secondment at PHAC and/or a position commensurate with his rank. In the alternative, he seeks an order referring the matter to the [Acting CDS] for a re-determination consistent with the Court’s reasons. These are remedies that can be addressed though the grievance process.
Respectfully, this conclusion appears to split hairs. MGen Fortin was clearly seeking a remedy “against” the political decision-makers. The Acting CDS (who exercised the powers and functions of the CDS) had no authority to grant the remedies sought by MGen Fortin. Although Justice McDonald was correct that MGen Fortin (or any other CF member) is not entitled to a “perfect” remedy, that wasn’t the operative issue. In light of the nature of the impugned decision, the Acting CDS was not in a position to offer any meaningful remedy. The Acting CDS was the person who informed MGen Fortin that his position with PHAC was terminated, and MGen Fortin’s pleadings alleged that the Acting CDS was acting on the instructions of the Prime Minister, Minister of Health, and Minister of National Defence.
Similarly, the CF grievance process does not offer any remedy that could be viewed as adequate for RAdm Bernatchez. The final authority in the CF grievance process is the CDS (or her delegate). The CDS is not, and was not, in a position to overturn a decision made by the ADM-RS any more than the CDS could overturn a decision by the Prime Minister, Minister of National Defence, or the Minister of Health.
Does this create a double-standard regarding a CF member’s obligation to first exhaust the statutory grievance process?
Perhaps.
But that double-standard arises from the fact that an unfair or unreasonable decision by the commanding officer of a unit or a commander of a formation can be reviewed by someone higher in the CF chain of command and, potentially, could be remedied by a CF officer up to, and including, the CDS.
For example, if the CO of 1 PPCLI places “Captain Bloggins” on a remedial measure, and that decision was unfair and/or unreasonable, Commander 1 CMBG (or Commander 3rd Canadian division, or the Commander of the Canadian Army, or the CDS) can quash that decision.
The CDS cannot quash the decision of the Prime Minister or ADM-RS. And, if the most that the CDS can do is ask said decision-maker to reconsider the decision, then the CDS isn’t actually making a “final decision” in the adjudication of the grievance, is she?
An Aside Regarding Delay …
As an aside, I must confess that, when I read the judgment in Bernatchez I was struck by the irony of her complaint about delay. Based upon the information posted on the Federal Court website, the first stay was ordered, on consent of both parties, on or about 10 May 2023. A subsequent stay was ordered on or about 24 July 2023. By May 2024, it appears that RAdm Bernatchez’ grievance had not advanced satisfactorily, and her patience was (understandably) exhausted. Her desire to proceed with her application gave rise to a motion by the AGC. This, in turn, gave rise to Justice Grammond’s decision on 11 September 2024. [And, eventually, it gave rise to a subsequent stay of the proceeding, apparently on consent of both parties, in December 2024.]
By the time of the AGC’s motion, RAdm Bernatchez had been waiting for a little over a year for something to be done with her grievance. And we don’t know what, precisely, was, or was not, done in relation to this grievance. We can safely assume that it was not resolved and that RAdm Bernatchez did not receive an answer regarding her presumed representations regarding why the grievance process was not an “adequate alternative remedy”.
And I certainly have some sympathy for RAdm Bernatchez’ position. I’ve had to wait for an inordinate amount of time to receive a determination of grievances that I have submitted. I have (and have had) clients who have had to wait an inordinate amount of time to receive a determination of a grievance. As I mention, supra, a current client had to wait 6 ½ years to receive a determination from the (then) CDS that was both procedurally unfair and unreasonable.
So, I get it.
But here’s the thing: many of my clients have little or no influence over decision-making in the CF. The JAG is responsible for legal advice to the CF and its decision-makers for matters of military law, including the military grievance process. And, during her tenure, I did not get the impression that RAdm Bernatchez was overly concerned about the inefficiencies or ineffectiveness of the CF statutory grievance process.
And that is consistent with what I have observed about the attitudes of a great many senior decision-makers in the CF. When they are told – through grievances or other complaint mechanisms – that those complaint mechanisms are ineffective, inefficient, or that they suffer from closed-minded decision-making, their responses are nearly uniformly: “… you have been treated fairly and in accordance with CF regulations and policies …” (or words to that effect).
These same decision-makers saw no problem with unlawfully withholding from junior CF personnel the right to elect trial by court martial when they were entitled to such an election. These same decision-makers saw no issue with using Administrative Review under DAOD 5019-2 as a problematic substitute for the Code of Service Discipline. CF personnel, accused of disciplinary wrong-doing, and investigated by the military police, have frequently been ‘prosecuted’ using Administrative Reviews. Instead of being afforded the opportunity to make full answer and defence under the Code of Service Discipline, which includes an opportunity to cross-examine their accusers, these CF members are subject to an administrative process that is manifestly ill-suited to testing evidence when the ‘accused’ contests the allegations.
These senior decision-makers do not seem to have any problem with “business as usual” in the CF … right up until they are the object of the questionable decision-making. Then, they are quick to lament the deterioration of the rule of law in the administration of the affairs of the CF.
As sympathetic as I am regarding the delay that RAdm Bernatchez encountered with her grievance, part of me cannot help but to view this circumstance as “chickens coming home to roost”. Moreover, if RAdm Bernatchez believes that a year of delay is unacceptable regarding the adjudication of her grievance – and, frankly it is – then I am reminded of a oft-used colloquialism: A year of delay may be bad, but, frankly, those are rookie numbers. Come talk to me when five years has passed without an answer.
Conclusion
As is likely obvious from the commentary above, delay can be problematic. Discussion of these judgments has been a long time coming, and I am not having to catch-up on long overdue review. And much more can, and needs, be said regarding the extent to which the CF grievance process is an “adequate alternate remedy” for CF personnel.
However, in light of some recent news reporting, I will necessarily have to shift my focus from grievances to the ongoing shortcomings of military police conduct and, equally importantly, the failure to hold military police accountable for their misconduct. That will be the subject of my next blog entry.
And, notwithstanding the fact that Bill C-66 died on the Order Paper when Parliament was prorogued earlier this month, there is still much that can be said regarding some of the shortcomings of that proposed legislation.
There are no shortage of topics for discussion in the coming weeks, and I will endeavour to provide meaningful and timely commentary.
[1] P Hogg, P Monahan, W Wright, Liability of the Crown, 4th Ed (Toronto: Carswell, 2011), 7-8, 152.
[2] Ibid, 5-8.
[3] Crown Proceedings Act, 1947, 10 & 11 Geo 6, c 44.
[4] Hogg, Monahan, and Wright, n 1, 9.
[5] Ibid.
[6] Crown Liability and Proceedings Act, RSC 1983, c C-50 [CLPA].
[7] Hogg, Monahan, and Wright, n 1, 9-10.
[9] There have been select cases of successful derogation from this general principle: Rouleau c. Canada (Procureur général) (Ministère de la Défense nationale), 2016 QCCS 4887 (CanLII) [Rouleau], per Toth J.
[10] CLPA, n 6, para 3(a)(i) and 3(b)(i).
[11] Ibid, para 3(a)(ii) and 3(b)(ii).
[12] Hogg, Monahan, and Wright, n 1, 153-157.
[13] McArthur v The King, [1943] 3 DLR 225, Ex CR 77, 1943 CanLII 296 (FC); Tremblay v The King, [1944] 2 DLR 338, 1943 CanLII 300 (FC). NB: the reverse, in which the Crown sought per quod damages for injuries caused to a soldier by a private actor, was permissible, principally due to a statutory provision permitting such claims: The King v Richardson, [1948] SCR 57, 1948 CanLII 37 (SCC).
[14] SC 1952-53, c 30.
[15] Hogg, Monahan, and Wright, n 1, 157-8.
[16] JP Morgan Asset Management (Canada) Inc. v Canada (National Revenue), 2013 FCA 250 [JP Morgan] para 66; Dakota Plains First Nation v Smoke, 2022 FC 911, para 6.
[17] National Defence Act, RSC 1985, c N-5 [NDA].
[18] C.B. Powell Limited v Canada (Border Services Agency), 2010 FCA 61, paras 30 to 31 [C.B. Powell]; Picard v Canada (Attorney General), 2019 CanLII 97266 (FC), at paras 20-22 [Picard];
Harelkin v University of Regina, [1979] 2 SCR 561.
[19] Vaughan v Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 at para 39 [Vaughan].
[20] Wilson v Atomic Energy of Canada Limited, 2015 FCA 17, paras 31 to 32.
[21] JP Morgan, n 16, para 47.
[22] JP Morgan, n 16, para 50.
[23] An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c C-35.
[24] P Hogg, P Monahan, W Wright, n 1, 264.
[25] Pension Act, RSC 1985, c P-6.
[26] Veterans Well-being Act, SC 2005, c 21.
[27] The sole proper defendant was His Majesty the King in Right of Canada.
[28] NDA, n 17, s 18(1): “… the Chief of the Defence Staff, who shall hold such rank as the Governor in Council may prescribe and who shall, subject to the regulations and under the direction of the Minister, be charged with the control and administration of the Canadian Forces.”