The CF’s New Grievance Policy – More of the Same

31 March 2026

 

On 1 April 2026, the Canadian Forces (CF) will adopt its ‘new’ grievance policy, superseding Defence Administrative Order and Directive (DAOD) 2017-1.

I have placed inverted commas around the word ‘new’ because the policy doesn’t really offer much that is new.  It is principally a restatement of the existing policy, with a bit more detail, and which identifies a couple of limited changes to the legislative foundation of the process.  Perhaps most importantly, there is little, if anything, in the new policy that will ameliorate the two principal shortcomings in the determination of grievances in the CF: (1) delay; and, (2) unreasonable intransigence by CF decision-makers.

The announcement of the new policy offers an opportunity to discuss what is changing, what hasn’t changed, and the implications, if any, of the ‘new’ policy.  In particular, I will address the following issues or factors:

• Why is the new policy presented as a policy manual and not simply an amended DAOD?
• What are the key changes that are announced?
• What’s missing?
• What are some of the key factors that haven’t changed?
• Does this signal any meaningful change?

 

Why is the new policy not a DAOD?

Defence Administrative Orders and Directives, or DAOD, have been around for nearly 30 years.  The intent behind the creation of DAOD was to replace increasingly dated Canadian Forces Administrative Orders (CFAO), Civilian Personnel Administrative Orders (CPAO), and myriad other administrative orders and instructions – many of which had different formats, variable clarity, and which were presented in a variety of different platforms – with one common, standardized format.  This coincided with increased digitization of CF administration.  The intent was that these administrative orders and directives, applicable to the CF, the Department of National Defence (DND), or both, would be located on the same platform, utilizing a unified “common look and feel”, and would aid in consistency and efficiency of administration.

Remember, prior to wide-spread digitization and broad use of computer workstations, regulations, orders, and directives like the Queen’s Regulations and Orders for the Canadian Forces (QR&O), CFAO, etc. were printed and held in hard copy.  When they were updated, hard copy updates had to be produced and sent to all CF units and Departmental offices that held regulations, orders, and directives.  Anyone with a significant administrative role had binders with QR&O, CFAO, and other directives on their shelves.[1]  And these updates had to be completed and tracked manually.

Increased digitization – e.g., widespread use of email, computer-based applications, intranet- and internet-based information – both required, and could support, improved efficiency.  One of those initiatives was the creation of DAOD with a “common look and feel”.  The intent was to aid with consistency and was also necessary for standardization of web-based policy direction.

In the present instance, I don’t know why the CF opted for a PDF manual, published on the Government of Canada website, rather than amending DAOD 2017-1.[2]  I do not have access to inside information.  I do know that, 30 years after the DAOD initiative was launched, the CF has still not replaced all CFAO.  Unfortunately, unlike DAOD, CFAO are not publicly available.  One must seek authorized versions from Director Strategic Corporate Services (DSCS), which also manages QR&O and DAOD.  They are purportedly available via the Defence Wide Area Network (DWAN) at http://corpsec.mil.ca, but one must be a member of the CF or a Departmental employee for access to a DWAN work-station.  Thus, CFAO are not truly publicly available.

One common observation was that select CFAO were not replaced because of difficulty in identifying the appropriate Approval Authority and Office of Primary Interest (OPI) for select CFAO.  At least, that was the public excuse.  What it really meant was that some offices refused to take responsibility for updating a CFAO as a DAOD.  And, in some cases, the OPI for a particular policy no longer existed, and the relevant successor office might either be unclear or unwilling to acknowledge that it was responsible for a particular subject.  Frankly, in some circumstances, apathy dominated.

Thus, select CFAO remain in force, and those responsible for ensuring that appropriate steps were taken to update a CFAO as DAOD had other priorities.

That explains why some CFAO remain and have not been converted to DAOD, but it does not explain why the CF is issuing a ‘policy directive’ rather than amending the existing DAOD.  After all, DAOD are often amended.  And, reviewing the content of the new policy, it looks an awful lot like a DAOD.  So – why didn’t the CF simply amend DAOD 2017-1?

We are forced to speculate, because an explanation has not been offered publicly.

One plausible rationale is to distinguish between the ‘old regime’ and the ‘new regime’ coming into force on 1 April 2026.

But that isn’t a particularly convincing explanation.

First, When DAOD 2017-1 is superseded by the new grievance policy, I anticipate that the existing version of DAOD 2017-1 will be removed from the DAOD website and replaced by a notification that it has been superseded.  An example of such notification is DAOD 5019-5, Sexual Misconduct and Sexual Disorders, which was cancelled and ‘replaced by’[3] DAOD 9005-1, Sexual Misconduct Response.  DAOD 5019-5 is still listed on the DAOD 5000 series webpage, notwithstanding that it was repealed over 5 years ago.  The content of the DAOD has been removed.

That doesn’t mean that it is impossible to obtain a ‘point in time’ version of DAOD 5019-5.  It is just difficult to do so.  One must write to DSCS to obtain an archived version.

My point is that the same could have been done for DAOD 2017-1.  A new, amended, version of the DAOD could have been prepared and posted on 1 April 2026 with older versions held by DSCS.  After all, we can anticipate that DAOD 2017-1, in the form that exits prior to 1 April 2026, will be removed from the DAOD webpage on 1 April 2026.

Another possible reason – and one that is more likely – is that a PDF policy document is easier to include in any relevant collection of documents, such as a Certified Tribunal Record, which is typically requested whenever a CF member seeks judicial review for a determination of a grievance by the final authority.  Including a formatted PDF is easier (and, arguably, clearer) than reproducing a DAOD from a website.

However, I believe that the principal motivation or rationale arises from two related, but distinct, factors.  First, whenever a DAOD is amended, it must be reviewed by Department of Justice (DoJ) counsel at the Office of the DND/CF Legal Advisor (often truncated to “CFLA”).  This is a Department of Justice Legal Services Unit (LSU) assigned to the DND and CF, and which is distinct from the Office of the JAG.

All federal departments have a DoJ LSU assigned to them.  They are typically the principal legal advisors to that Federal Department, ensuring consistency of legal advice in concert with the DoJ “mothership”.  For most federal departments, they are the first, and last, word on legal advice.

That’s not the case with the DND and CF.  There is also the JAG (and, under him, the Office of the JAG), who is the “… legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law.”[4]

Sometimes, the meaning of “military law” is not disputed.  The Code of Service Discipline, for example, is military law.  The CF grievance process is military law.  But law is rarely restricted to clearly defined silos.  Grievances will often touch upon liability and constitutional law considerations, such as rights under the Canadian Charter of Rights and Freedoms (Charter)[5] or the Canadian Human Rights Act (CHRA)[6].  Responsibilities for advising decision-makers can be disputed.  And the nature of those disputes can vary with the degree of collegiality and cooperation exhibited between the OJAG and CFLA.

The responsibility for advising on the content of a DAOD may be relatively clear, or it may be disputed.  For example, it’s likely not disputed that the responsibility for advising on the content of DAOD 7006-1, Conduct Sheets, and DAOD 7006-1, Preparation and Maintenance of Conduct Sheets falls to the OJAG.

But here’s the thing: responsibility for advising on the form of a DAOD and ensuring that it complies with the Government of Canada common look and feel, falls to CFLA.  And, sometimes, CF decision-makers, policy-makers, and leaders can become impatient with the time that such review takes.

Additionally, “policy manuals” and “policy documents” are increasingly becoming all the rage.  The process for the so-called Military Justice at the Unit Level, or MJUL, is defined as much by policy (the MJUL Policy 2.0) as it is by legislation, distinguishing it from its predecessor, the Military Justice at the Summary Trial Level, was defined largely in regulation.  And, when decisions, acts, and omissions by CF decision-makers are disputed before the Federal Court (or other courts), the CF (and the Attorney General of Canada) will typically turn to published manuals to justify their actions.  I anticipate that the CF (and Attorney General of Canada) will rely on the new Grievance Policy much as they have relied on the MJUL Policy 2.0 in future litigation.  And a PDF policy manual makes that a little bit easier.

 

What are the key changes that are announced?

Not much will change.

Let’s start with what the CF has announced in CANFORGEN 052/26, entitled “CAF Grievance Policy Updates”.  And, for clarity, I will provide the entire text of the CANFORGEN (though without the “ALL CAPS” text).

 

CAF GRIEVANCE POLICY UPDATES

UNCLASSIFIED

Refs: A. National Defence Act section 29 Grievances

B.(QR & O) VOL I – Chapter 7 Grievances

C. (DAOD) 2017-0, Military Grievances

D. CAF Grievance Policy, 1 April 2026

E.  CDS (Chief of the Defence Staff) Directive for CAF (Canadian Armed Forces) Grievance System Enhancement, 3 March 2021

1. 1. The purpose of this message is to highlight the modifications to Canadian Armed Forces (CAF) grievance regulations and policies. These regulatory and policy changes are intended to create a more streamlined and effective grievance process.  These changes come into effect on 1 Apr 2026.
   2. The purpose of the Canadian Forces Grievance System (CFGS) is to maintain the operational effectiveness of the CAF, including their efficiency and morale.
   3. The following modifications to the CAF grievance system will be implemented:

a. Updated QR&O Volume 1 – Chapter 7 Grievance;

b. Updated DAOD 2017-0 Military Grievances (Policy);

c. Repealed DAOD 2017-1 Military Grievance Process (Instructional)

d. Publication of the CAF Grievance Policy.

1. 4. The CAF Grievance Policy replaces the former DAOD 2017-1 and includes all procedural and administrative details that are more appropriately managed through internal processes. The creation of the CAF Grievance Policy is part of the continuous modernization of the CAF Grievance System.  These updates are the result of extensive internal and external consultation.
   5. The CAF Grievance Policy introduces several improvements to enhance fairness, efficiency, and clarity. Key updates that support a more responsive and transparent grievance system include:

a. Enabling proactive resolution by commanding officers (CO) prior to formal grievance submission;

b. Providing guidance on the interests of justice test when assessing later grievances;

c. Providing specific direction for grievances related to sexual misconduct;

d. Clarification of the standard of disclosure required at both initial authority (IA) and final authority (FA) levels;

e. Better defining the provision of representations by grievors;

f. Introduction of a new request process for final authority review;

g. Clarifying procedural fairness considerations;

h. Aligning the grievance process with the digital grievance submission form.

1. 6. Implementation: Grievances submitted before 1 April 2026 will be processed in accordance with DAOD 2017-1. Grievances submitted on or after 1 April 2026 will be processed under the CAF Grievance Policy.
   7. The CAF Grievance Policy is available online and in PDF.
   8. In support of the modifications to the documents listed in para 3, updates have been made to the following forms and will be effective 1 Apr 2026:

a. CAF Digital grievance form 1.5 (DGF);

b. Final authority review form.

1. 9. Should questions arise regarding the modifications to the regulations and policies, members are encouraged to contact their chain of command (CoC) and consult a Conflict and Complaint Management Services (CCMS) representative before submitting a grievance. The CO) and IA are encouraged to reach out to the Grievance Centre of Expertise (COE) if assistance is required.
   10. Signed by Lieutenant-General J.PR. Prevost, CPCC.

 

First, kudos to Chief Professional Conduct and Culture (CPCC) for using a CANFORGEN for its intended purpose: to make an announcement, rather than to try to use it as a policy document.  Unfortunately, that is one of the few kudos that I will be offering in relation to this announcement.

CANFORGEN 052/26 may sound like there has been a significant policy shift, but there hasn’t been.  And the so-called Canadian Armed Forces (CAF) Grievance Policy doesn’t present many material changes compared to the existing policy.  And there are also a few recurring myths arising in the policy.

[As an aside, it did not escape my notice that CPCC’s announcement refers to both the “Canadian Forces Grievance System” and the “CAF Grievance System”.  This is an object example of what arises from dogmatic use of the acronym “CAF” when half the nomenclature regarding the Canadian Forces uses the acronym “CF”.]

CANFORGEN 052/26 suggests changes that are purportedly being made to improve the timeliness, fairness, and reasonableness in the adjudication of grievances.  And make no mistake, the likely purpose of these so-called ‘improvements’ is so that the CF leadership can hold this up as a material response to the findings and recommendations offered by The Honourable Morris Fish in Chapter 4 of the Third Independent Review of the NDA.[7]  And I suspect that it will not come as an earth-shattering surprise for readers to learn that I am largely skeptical of any such claims.

Specifically, I will examine the following claims or assertions made (or hinted at) in the CANFORGEN:

• The changes to the process for submitting grievances
• The use of a Notice of Intent (NoI) to Grieve
• The supposed enabling of CO to offer proactive resolution of complaints
• The “interests of justice test”

 

Submission of a Grievance

Arguably, the single biggest change is the increased reliance on digital process, including digital submissions.  And that can offer some improved efficiencies, though any improvement will be limited.  The new ‘CAF Grievance Policy’ reflects an upcoming amendment of art 7.08 of the QR&O.

The current version of art 7.08 states:

7.08 – SUBMISSION OF GRIEVANCE

(1) A grievance shall be in writing, be signed by the grievor and be submitted to the grievor’s commanding officer.

(2) A grievance shall include

(a) a brief description of the decision, act or omission that is the subject of the grievance, including any facts known to the grievor;

(b) a request for determination and the redress sought;

(c) if a person can substantiate the grievance, a statement in writing from that person;

(d) a copy of any relevant document in the possession of the grievor; and

(e) if the grievance is submitted after the expiration of the three-month time limit set out in paragraph 7.06(1), reasons for the delay.

(3) A grievance shall not be submitted jointly with any other grievor.

(4) A grievance shall not contain language or comments that are insubordinate or otherwise constitute a breach of discipline, unless the language or comments are necessary to state the grievance.

(G) [P.C. 2000-863 effective 15 June 2000; P.C. 2014-0575 effective 1 June 2014]

 

For over 25 years, since Bill C-25 introduced significant material changes to the CF grievance process, the method of submission of a grievance has been the same.  (In fact, this was the method that predated Bill C-25).  The specific article of Chapter 7 of the QR&O describing submission may have changed, but the three foundational requirements remained the same.  The grievance:

• Must be reduced to writing;
• Must be signed by the grievor; and,
• Must be submitted to the grievor’s CO.

 

The new version of article 7.08 will include select amendments, highlighted below:

(1) A grievance shall be submitted to the Canadian Forces Grievance Authority.

(1.1) If it is not practical for the grievor to submit their grievance in accordance with paragraph (1), the grievor may submit it to their commanding officer.

(2) A grievance shall include

(a)  a brief description of the decision, act or omission that is the subject of the grievance, including any facts known to the grievor;

(b) an indication of the redress sought;

(c)  if a person can substantiate the grievance, a statement in writing from that person;

(d) a copy of any relevant document in the possession of the grievor; and

(e)  if the grievance is submitted after the expiration of the time limit set out in paragraph 7.06 (1), reasons for the delay.

(3) A grievance shall not be submitted jointly with any other grievor.

(4) A grievance shall not contain content that constitutes insubordinate behaviour or a breach of discipline, unless it is necessary to state the grievance. [emphasis added]

 

The most significant change is that, as of 1 April 2026, grievors will be expected to submit their grievance directly to the Canadian Forces Grievance Authority (CFGA) rather than to the CO.  And the expectation is that the grievor will use the digital platform for such submissions.  Hence, a grievance need not be reduced to writing as a ‘hard copy’ signed by the grievor.  The CO will remain an alternative where a grievor cannot submit a grievance directly to the CFGA.

For example, if a grievor is subject to administrative or remedial measures that prohibit the grievor from attending their normal place of duty or accessing the Defence Wide Area Network (DWAN), the grievor may be functionally prohibited from submitting a digital grievance directly to the CFGA.  Other circumstances might make it infeasible for a grievor to submit a grievance, digitally, to the CFGA.  In such circumstances, the grievor may submit a grievance, reduced to writing and signed by the grievor, to the grievor’s CO.

Conceivably, this change in process could improve the efficiency for some grievances.

For example, recently, I encountered a thin-skinned and defensive CO who refused to accept a grievance from one of her subordinates.  The grievor challenged decision-making by the CO that was both unreasonable and procedurally unfair, and the grievance identified the errors made by the CO to this effect.  After receiving the grievance, the CO directed her Adjutant to review the grievance, highlighting allegedly “insubordinate language” as well as “irrelevant arguments” raised by the grievor.  The CO then refused to accept the grievance based upon these two factors.

First, whether argument is “irrelevant” is not a valid ground to refuse to accept a grievance.  And the determination of the merit of any argument falls to the initial authority (IA).  In the case where the grievance challenges a decision, act, or omission by a CO, the CO will not be the IA.  Consequently, it does not fall to a CO to evaluate the merit of an argument or to refuse to accept a grievance, and transmit it to CFGA, based upon such irrelevant considerations.

Second, where a CO acts in an unfair and/or unreasonable manner, it is entirely appropriate for a grievor to identify the decisions, acts, or omissions that are unfair and/or unreasonable, and to explain why they are unfair and/or unreasonable.

In this example, the CO’s defensive petulance delayed the transmission of the grievance to the CFGA for the identification of the appropriate IA, and required my intervention.  Such transmission is supposed to be accomplished within 10 days.[8]  Unfortunately, the QR&O do not create any specific consequences for any CO who fails to do so.  And I have yet to encounter any circumstance where a CO has faced any administrative action or similar consequence for tardiness (or intransigence) in transmitting a grievance to the CFGA.

Moreover, even if a grievance is submitted directly to the CFGA, delay can arise.  Art 7.10 of the QR&O requires the CFGA to “… forward the grievance to the appropriate authority as expeditiously as possible with any additional information received from the commanding officer …”.  Presumably, this requirement will remain materially unchanged in the forthcoming amendments. The term of art “… as expeditiously as possible …” is inherently flexible.  There is no express limitation period.  Nor is there any adverse consequence for the CF if this action is not completed in a timely fashion.

In the past couple of years, I have encountered grievances in which CFGA took 4 months or longer to refer a grievance to an appropriate IA.  To put that in context, the limitation period imposed on an IA for the determination of a grievance is four months.[9]  That limitation period begins to run only once the grievance is received by the IA.  Consequently, a delay of 4 months to assign a grievance to an IA effectively doubles the grievor’s wait time.

Ironically, in the examples to which I allude, the grievors had clearly identified the likely IA, which ought to have assisted the staff at the CFGA in identifying the appropriate course of action.  You can lead a horse to water …

So, is the change in the submission process something that could ‘streamline’ the adjudication of grievances?  Maybe.  To a limited extent.  But that is not the principal cause of delay in the determination of grievances, nor is it the source of unfair and unreasonable adjudication of grievances.

 

Notice of Intent to Grieve

The use of a “Notice of Intent to Grieve” is nothing new.  This optional step, of marginal utility, already exists in DAOD 2017-1.  It’s also a largely pointless policy.  I have commented on this before:

Rory Fowler, “Grievance Myths – ‘Mandatory’ Use of a NoI to Grieve” (29 July 2021), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/grievance-myths-mandatory-use-of-a-noi-to-grieve/>

 

And little has changed to alter that criticism.

A Notice of Intent (NoI) to Grieve does not suspend the limitation period at art 7.06 of the QR&O.  That would have required regulatory amendment.  And, in light of the fact that select provisions in Chapter 7 of the QR&O were amended, one might wonder why no effort was made to amend the calculation of the limitation period if a NoI to grieve were submitted.  While I expand below on the “interests of justice test” regarding grievances submitted after the expiration of the limitation period at art 7.06 of the QR&O, I would suggest that a grievor’s earlier reliance on a NoI to Grieve would be a relevant consideration when considering “cause of delay”.  More on that later.

I challenge the assertion at para 1.9.3 of the CAF Grievance Policy that “… Submitting an NOI to grieve allows for the timely assignment of an assisting member in accordance with paragraph 2.9.1, ensuring the member has access to support both in determining whether a formal grievance is required and, if applicable, in preparing the grievance submission.”

How is that any different than simply requesting assistance for the submission of a grievance?  This sounds an awful lot like a policy searching for a justification.  True, if a grievor submits a NoI to Grieve, followed by a grievance 2 weeks later, the CO and CoC will have had a “2 week head start” to identify and assign an assisting member for the actual grievance.  However, that supposed ‘efficiency’ is largely superficial, particularly as the NoI to Grieve does not affect the limitation period for the grievance.  It seems overly bureaucratic to require submission of a NoI to Grieve just so a CF member can request the assistance to which they are entitled.  It also infantilizes grievors.

Part of the problem is that the function of “notice” generally applies to the decision-maker, not the person who is subject to a decision.

I also dispute the assertion at para 1.9.2 that “The NOI formalizes the process of finding a proactive resolution at the lowest level and is the optimal mechanism for an early and local resolution of issues within the CoC.”

What a bunch of malarky.

I am in favour of resolving complaints quickly, efficiently, and at a low level.  When I was a young infantry officer (at least, younger than I am now), I informed subordinates that they were welcome to bring complaints to my attention prior to submitting a grievance.  I was well aware of how long a grievance could take to resolve.  I told my subordinates that, while I might not necessarily agree with their analysis on an issue, I would hear them out and, if I believed that there was merit with their concern, I would exercise what authority I had to resolve the matter.  And I told them that I would be as transparent as possible, including in circumstances where I either disagreed with their position or where I lacked the authority to remedy the matter.  I’d even offer to assist as their assisting officer, where that would not be in conflict of interest.

That’s just basic leadership.  It didn’t make me an exceptional leader.  It simply made me a reasonable one, who understood my role in the administration of the affairs of the CF.

But anyone with any experience with grievances and complaints resolution is aware that the matters that become grievances are matters in which a CF member has generally tried informal resolution.

An NoI to Grieve does little or nothing in the face of a CO or chain of command that lacks the authority or the willingness to resolve a matter.

The suggestion that an NoI to Grieve “formalizes” the process amounts to word games.  First, the so-called “formal” process is the grievance.  Second, the only material impact of an NoI is that it reduces the statistics of the number of grievances that have been submitted.

 

Proactive Resolution of Grievances

Just as the NoI to Grieve represents a hollow benefit that already exists within the current grievance structure, the capacity of a CO to resolve a matter before it becomes a grievance already exists.  Nothing in the ‘new’ CAF Grievance Policy alters this existing capacity.  Art 19.12 of the QR&O recognizes than an “… officer or non-commissioned member may, upon application, see the member’s commanding officer on any personal matter.”  This regulation has existed for decades.  It recognizes that a CF member may bring any concern to the attention of their CO.

I have represented grievors who have attempted to do just that when faced with intransigence, hostility, and maladministration by their immediate supervisors.  They have attempted to bring concerns to their CO instead of resorting to a statutory grievance.  Yet, when they have attempted to do so, leaders at various levels have created artificial barriers to frustrate such attempts.

The problem is not an absence of a policy or structure for doing so.  The problem is a lack of will and defensiveness on the part of the chain of command.

How many times has a CF member, faced with unreasonable or unfair decision-making, been told: “If you don’t like it, you can grieve it?”

The new CAF Grievance Policy does not add any new power or capacity to a CO.  And the suggestion that the so-called NoI to Grieve somehow facilitates such “proactive resolution” is nonsense.  That non-statutory (and non-mandatory) step has existed for a decade.  And there is no evidence that it has offered any material improvement on the timeliness, efficacy, fairness, or reasonableness of grievance adjudication.

One of the recurring problems with grievances is that CO and other decision-makers erroneously believe that, once a grievance is submitted, they cannot do anything regarding the subject of the grievance, particularly if the CO is not the IA.  That erroneous belief is subtly reinforced in the new CAF Grievance Policy, even though that belief contradicts the actual policy.

Para 2.5.1 c. of the CAF Grievance Policy states that “… a CO is expected to … make reasonable efforts to resolve grievances informally …”.  That does not represent a policy change.  Para 6.1 c. of DAOD 2017-1 states: “…a CO is expected to … informally resolve grievances if reasonable in the circumstances …”.  Para 3.1.7 of the CAF Grievance Policy stresses the importance of informal resolution of grievances, including that it may be attempted at any time.  Again, that is presently captured (nearly verbatim) at para 8.12 of DAOD 2017-1.  It is therefore surprising that, when informal resolution is actually attempted, it is almost always at the end of the grievance process, often when CF decision-makers are advised that there is an elevated risk of litigation arising from a grievance.

A problem that I encounter frequently is that, once a CF member submits a grievance, their chain of command immediately “wash their hands” of the matter and adopt the position that the grievance is with the IA (or final authority, as appropriate).  Some have gone as far as suggesting that, once a “formal” grievance is submitted, they are precluded from “intervening”.

And that is just nonsense.  Not only is there no legislative or policy provision, presently, that would preclude a CO from correcting her or his own error, but the existing grievance regime expressly encourages such action.

For example, if a CO issues a remedial measure for a subordinate, and the subordinate submits a grievance indicating that the remedial measure was unfair and unreasonable, it remains within the purview of the CO to recognize their error and correct it by withdrawing the remedial measure.  Personally, I’d be gobsmacked if a CO demonstrated such objective humility, but it is permissible.

 

The “interests of justice test”

The “interests of justice test” described at paras 2.3.2 and 2.3.3 of the CAF Grievance Policy is merely a summary of the judgment of the Federal Court of Appeal in Canada v Beddows, 2016 FCA 2016 [Beddows] a decade ago.  [NB: the hearing of this matter by the Federal Court was decided by endorsement, and it is unreported.]  Interestingly, in both Beddows and in Simms v Canada, 2016 FC 770, Federal Court judges adopted what could be characterized as a permissive approach to this test in determining whether an initial authority or final authority should accept a grievance that is submitted after the expiration of the legislated limitation period.  The limitation period applicable in Beddows was six months; by the time that the grievance was submitted in Simms, the limitation period for the submission of a grievance had been reduced to three months.  In comparison, the limitation period for filing a Notice of Application before the Federal Court under s 18.1 of the Federal Courts Act was (and remains) 30 days.  And, in my experience, Federal Court judges can be draconian in the application of this limitation period.

I note that, although select provisions of QR&O Chapter 7 have been amended – notably art 7.08, reflecting a change in the submission of grievances – no one saw fit to amend the provision at art 7.06, regarding the limitation period for the submission of grievances, to accommodate reliance on a NoI to Grieve.

The CAF Grievance Policy encourages grievors to employ a NoI to Grieve, suggesting (without any material evidence in support of the contention) that this would make the adjudication of grievances more efficient.  However, the Policy also expressly indicates – in two separate and redundant paragraphs on the same page, namely paras 1.8.2 and 1.9.4 – that submission of an NoI to Grieve does not suspend or prolong the limitation period at art 7.06 of the QR&O.

Nor does Part 2.3 of the Policy, which addresses “Time Limits”, offer any comment regarding the institutional position regarding the relevance of the use of a NoI to Grieve in terms of evaluating whether a grievance submitted after the expiration of the limitation period at art 7.06 of the QR&O would be in the “interests of justice”.

Presumably, the CF would rely upon the articulation of this Policy in future litigation.  If the CF truly wished to encourage the use of a NoI to Grieve, it could have requested that the Governor in Council amend art 7.06 to include a provision suspending the calculation of the limitation period pending the resolution of a NoI to Grieve.  Or the provision could have been amended to equate the submission of a NoI to Grieve as satisfying “submission of a grievance”.  Alternatively, even if the CF did not wish to take such a definitive step, the Policy could have included commentary to the effect that, where a grievor had first attempted to resolve a complaint with a NoI to Grieve, such a step should be considered strongly persuasive when considering the “cause of delay” under the “interests of justice test”.

The failure to pursue such legislative amendment, or even to offer commentary in the Policy, exposes the hollow nature of the NoI to Grieve, and demonstrates that the grievance process remains much more a “litigation avoidance mechanism” for the benefit of the CF rather than a tool to encourage maintenance of morale through timely and effective resolution of complaints.

 

Sexual Misconduct Grievances

Art 7.13 of the QR&O will be amended to exclude grievances from a complainant/victim of sexual misconduct as that term is defined under DAOD 9005-1.  Presently, art 7.13 of the QR&O directs that three types or classes of grievance must be submitted directly to the final authority:

• A grievance by a military judge;
• A grievance concerning a decision, act, or omission of an officer who is directly responsible to the Chief of the Defence Staff (CDS) [e.g., a grievance pertaining to a decision by the Commander of the Canadian Army]; or,
• a grievance concerning a decision, act or omission of the CDS.

 

The intent of the anticipated amendment is, presumably, to streamline grievances raised by complainants/victims of sexual misconduct.  Whether this achieves that intent is a separate matter.

After all, there is no time limit for the adjudication of grievance by the final authority (whether art 7.13 applies to the grievance or not).  Certainly, it lies within the power of CF decision-makers to make such grievances a priority.  And I suspect that they will be.

But that won’t improve the timeliness, fairness, or reasonableness of the adjudication of grievances generally.  And if an officer or NCM is subject to unfair and/or unreasonable decisions, acts, or omissions when the officer or NCM is a respondent to an allegation of sexual misconduct, well they can wait with everyone else.  Line forms at the rear, sunshine.

And lest y comments be misconstrued as not being sufficiently sympathetic to victims of military sexual trauma (MST), let me stop you right there.  Victims of MST deserve timely, fair, and reasonable resolution of their complaints.  But so does every member of the CF.  And the failure to resolve such complaints in a timely, fair, and reasonable manner is not unique to MST, and is indicative of a broader problem.  And focus principally on MST risks failing to recognize these broader problems.  As I have attempted to explain previously: impunity is the problem.

Rory Fowler, “(It’s) the Impunity, Stupid” (9 April 2021), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/its-the-impunity-stupid/>

 

It is also not clear from the new Policy whether the previous direction from Bill Blair (when he was Minister of National Defence), announced on 15 August 2023, remains in force.  You may recall that the (then) Minister directed that “… any Canadian Armed Forces members who have experienced sexual harassment, sexual misconduct or any other form of discrimination based on sex/gender while performing their duties have a new path to justice available to them. They can choose to bring their complaint directly to the Canadian Human Rights Commission (CHRC).”

There is no mention that this direction has been rescinded.  But the new Policy is silent on this specific issue.

 

What is not mentioned?

Most factors and processes in the grievance process remain unchanged.  The CAF Grievance Policy is largely a restatement of existing policy, with some limited changes regarding the submission of grievances.

There is nothing in the CAF Grievance Policy that offers compelling indication that this policy will improve the timeliness, reasonableness, or fairness of the adjudication of grievances.

The CDS, as final authority, still lacks any capacity to settle claims against the Crown or award any damages.  Indeed, the CAF Grievance Policy doesn’t even mention the final authority’s capacity to grant an ex gratia payment under Order in Council 2012-0861.  And that omission is telling.  Although it appears that this power was employed, very selectively, in the initial years following its creation, there is little indication that it has been used more recently.  As I have argued previously, the constraints placed on its use by the Treasury Board are strongly indicative of the intent that it should not be used.  And it appears that the final authority has abandoned its use:

Rory Fowler, “Grievance Myths – A Remedy for Canadian Forces Personnel?” (28 July 2021), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/grievance-myths-a-remedy-for-canadian-forces-personnel/>.

 

In fact, there is nothing in this policy that discusses any form of financial compensation for any harm arising from a decision, act, or omission that is the subject of a grievance.  And that is demonstrative of a gap in the grievance process.  Some grievors are aware that the CDS, as final authority, lacks the capacity to settle claims against the Crown.  Some believe, erroneously, that this is why the CDS was granted the authority to make ex gratia payments when resolving grievances.  However, the Treasury Board has expressly prohibited the CDS from using this power where the Crown is liable for damages.  I recently discussed this limitation in the context of my own, still-unresolved, grievance.

That constraint did not prevent an Ontario Superior Court judge from declaring that the CDS’ power to grant ex gratia payments somehow changed the context.  In Kleckner v Canada, 2014 ONSC 322, Justice McKinnon held:

[43]           Whether Captain Kleckner must first avail herself of the grievance procedure made available under the National Defence Act was the subject of lengthy submissions. Cutting to the core of these arguments, Ms. Gerami, counsel for the plaintiff, argues that because Captain Kleckner is seeking damages pursuant to the Charter of Rights and Freedoms and because the Chief of Defence Staff does not have the power to award damages, this court should assume jurisdiction over Captain Kleckner’s claim. On behalf of the Attorney General of Canada, Ms. Marchildon submits that the weight of authority requires Captain Kleckner to exhaust the remedies available pursuant to the grievance procedures set out in the National Defence Act before seeking damages in this court or seeking judicial review in the Federal Court of Canada. Ms. Marchildon submits that it is premature to assume that the grievance procedure will not be capable of satisfying Captain Kleckner’s complaints and that in any event, due to recent changes in legislation, the Chief of Defence Staff now has the power to award “ex gratia” payments in appropriate cases.

 

The court was presented with the judgment of Noel J in Bernath v Canada, 2007 FC 104, aff’d 2007 FCA 400, in which Noël J held that the plaintiff was entitled to maintain his action in the Federal Court on the basis that he was claiming damages due to Charter breaches and that the provisions of the National Defence Act did not provide for the granting of monetary compensation.  Noël J. held that in such circumstances the civilian court may intervene.

In Kleckner, Justice McKinnon held:

[51]           The decision of Noël J. and that of the Court of Appeal dealt with the specific point whether the Chief of Defence Staff could award damages for Charter breaches. Noël J. held that there was no power to do so and the Federal Court of Appeal agreed. In my view, the terrain has now changed since the Chief of Defence Staff has power to make ex gratia payments in appropriate circumstances, including for the infringement of Charter rights. More importantly, Captain Kleckner has not yet availed herself of the grievance procedure set out in the National Defence Act and it is entirely premature to assess how her claims might be resolved.

 

The problem with this conclusion is that the ex gratia payment power cannot be used to compensate a grievor for Charter damages (and that has been the case since the power was first conferred on the CDS in 2012).  And, as I have described previously, the so-called comprehensive remedial power of the CF grievance consistently claimed by the Attorney General of Canada in litigation involving CF personnel is an exaggeration predicated upon judgments arising before Bill C-25 markedly changed the CF grievance process:

Rory Fowler, “Happy Birthday, Grievance – Delay in the Adjudication of CF Grievances” (15 March 2025), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/happy-birthday-grievance-delay-in-the-adjudication-of-cf-grievances/>.

 

Not only does the CAF Grievance Policy not describe the very power that was asserted in Klecker as having changed the terrain of the CF grievance process, but it does not offer any description of any process by which the CF purports to remedy claim of financial losses by CF personnel.  And this is particularly interesting in light of the problematic mechanism or process that the CF appears to use in select circumstances, and which is noticeably not discussed in the CAF Grievance Policy.  And that problematic process merits discussion in a separate Blog post.

Another factor that is not mentioned anywhere in the new Policy is the problematic “Consent Form” that many grievance analysts insist a grievor must complete in order for their grievance to proceed.  I have discussed this problematic form before.

Rory Fowler, “Grievance Myths – Mandatory ‘Consent’ to Disclose Personal Information” (31 July 2021), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/grievance-myths-mandatory-consent-to-disclose-personal-information/>.

 

It is entirely possible that the CF, institutionally, has abandoned this practice.  After all, the requirement for a grievor to complete such a consent form is not established under the NDA.  It is not established under the QR&O.  And it is not required under DAOD 2017-1.  It is not mentioned in the new CAF Grievance Policy, and we are assured in the message from DGCFA on page 2 of the Policy that:

This Policy provides essential guidance on the grievance process, including submission, determination, and implementation. It is important to note that this policy is not a stand-alone document. Rather, it supplements existing provisions outlined in the National Defence Act (NDA), the Queen’s Regulations and Orders for the Canadian Forces (QR&O) and the Defence Administrative Orders and Directives (DAOD). Together, these instruments provide a comprehensive framework to ensure that grievances are addressed with integrity, consistency and procedural fairness. [emphasis added]

 

Presumably, if the infamous ‘Consent Form’ were required, the form, and its use, would be described in the legislation and policy that provides this comprehensive framework.

I suppose time will tell.

 

An interesting comment regarding the MGERC

One thing that the CAF Grievance Policy does describe, at Part 3.7 of the Policy (among other portions), is the Military Grievances External Review Committee (MGERC).  And footnote 14 on page 31 of the Policy states: “The Military Grievance External Review Committee (MGERC) is a politically appointed independent body who reports to Parliament through the Minister of National Defence (MND).”

What odd phrasing.

The so-called “independence” of the MGERC is often raised by the Attorney General of Canada in litigation.  The MEGERC likes to describe itself as “independent”.  And independence seems to be all the rage whenever the administration of the affairs of the CF is discussed in Ottawa.  As I have explained many times previously, “independence” is best viewed on a sliding scale.  The MGERC is not as independent as, say, a military judge.  But the MGERC is, at least, arm’s length from the CF (even is the full-time and part-time Vice Chairs are retired officers, their General Counsel is a retired legal officer, and a significant portion of their staff are former CF members).

But that’s not what I found odd about the phrasing.  The comment that the MGERC is “politically appointed” comes across as some subtle shade being cast on them.  It is true that the Chair, Vice-Chairs, and members of the MGERC are appointed by the Governor in Counsel through Orders in Council.  And that might be a more accurate means of characterizing them.  However, I suppose that does make them “political appointees”.

But here’s the thing: do you know who else is appointed by the Governor in Council and, therefore, according to the logic of “footnote 14”, is a “political appointee”?  The Chief of the Defence Staff (CDS).[10]  And not just the CDS.  The JAG is also appointed by the Governor in Council.[11]  So are military judges.[12]  And the Director of Military Prosecutions (DMP) and the Director of Defence Counsel Services (DDCS) are appointed by the Minister of National Defence.[13]  And Bill C-11, currently before Parliament, proposes to alter the legislative regime so that DMP and DDCS are appointed by the Governor in Council.[14]

I’m uncertain why DGCFGA or CPCC felt obliged to call the MGERC “political appointees”, but those aren’t the only political appointees involved in these processes.

 

Does this signal meaningful change?

In a word: no.  It signals “business as usual”.  The ‘new’ Policy doesn’t really change much.  It will permit digital submission of grievances directly to the CFGA, which will then, presumably, assign the grievance to an IA.  There may be some marginal improvement in efficiency, at least regarding the submission of grievances.  But that does not guarantee that CFGA will assign the grievances to an IA in a timelier manner.  And the amendment of art 7.08 of the QR&O won’t address the principal causes for delay or the intransigence in decision-making.

The Policy also ‘skips’ the IA for grievors who are victims/complainants of sexual misconduct.  It is silent on whether the earlier policy from the MND, permitting complaints directly to the CHRC without first exhausting the grievance process, remains in force.  Whether this will truly improve the timeliness, fairness, or reasonableness of such determinations is yet to be seen.  But I have my doubts.

The Policy provides a bit more direction regarding the submission of grievance outside of the limitation period established at art 7,06 of the QR&O, insofar as it expressly summarizes key factors from the decade-old judgments of Beddows and Simms.  However, in light of the extent to which the Policy (like the existing DAOD 2017-1) encourages potential grievors to rely upon the NoI to Grieve (which has dubious merit), it appears odd that no effort was made to establish a provision to suspend the limitation period at art 7.06 where a NoI to Grieve is submitted or, at the very least, expressly indicate that this should be considered as an important factor in the “interests of justice test”.

In sum, the limited changes that have been made to both the regulatory and policy framework do not deliver much of what is purportedly ‘promised’ in CANFORGEN 052/26.

 

[1] I find it both illustrative and amusing that, in my experience, decision-makers and staff seemed more inclined to review relevant legislation and policy when they were obliged to consult hard-copy manuals held in their offices.  Digitization has allowed for relevant and up-to-date legislation and policy to be readily available to decision-makers and staff.  Yet, it is often obvious when those decision-makers and staff have not actually reviewed the relevant legislation and policy, notwithstanding improved and universal access.

[2] As of 30 March 2026, this manual was not available on the relevant web-site: <https://www.canada.ca/en/department-national-defence/corporate/policies-standards/caf-grievance-policy.html>.  However, I anticipate that, as of 1 April 2026, it will be.

[3] I use the term ‘replaced’ in inverted commas because DAOD 9005-1 didn’t actually replace DAOD 5019-5.  The newer DAOD serves a different function than DAOD 5019-5.

[4] National Defence Act, RSC 1985, c N-5, s 9.1 [NDA].

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

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

[7] The Honourable Morris J. Fish, CC, QC, Report of the Third Independent Review Authority to the Minister of National Defence Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5 (30 April 2021), online: Government of Canada <https://www.canada.ca/en/department-national-defence/corporate/policies-standards/acts-regulations/third-independent-reviews-nda.html>.

[8] QR&O, art 7.09.

[9] QR&O, art 7.15(2).

[10] NDA, n 4, s 18.

[11] NDA, n 4, s 9.

[12] NDA, n 4, s 165.21.

[13] NDA, n 4, s 165.1 and s 249.18.

[14] Bill C-11, The Military Justice Modernization Act, clause 15 and clause 40.