T-1688-96
Christopher C. Hutton (Applicant)
v.
The Chief of Defence Staff (Respondent)
Indexed as: Huttonv. Canada (Chief of Defence Staff) (T.D.)
Trial Division, Rothstein J."Ottawa, May 20 and July 31, 1997.
Armed Forces — Judicial review of denial of applicant's grievances by Chief of Defence Staff (CDS) — Career Medical Review Board (CRB(M)) recommending applicant's release from Armed Forces as unable to meet physical requirements for infantry — Applicant filing grievance — Superiors disagreeing as to whether applicant could be transferred to another occupation — Second CRB(M) convened, decision recommending release rendered within 24 hours — Applicant not notified — Subsequently denied promotion; application to join militia refused because of low medical release suitability — Application not premature — Recourse to Minister provided under Queen's Regulations & Orders for the Canadian Forces (QR&O) not adequate alternative remedy since QR&O precluding Minister from acting on complaint because outstanding complaint under Canadian Human Rights Act — Failure to notify applicant of second CRB(M), give opportunity to make submissions, breaching natural justice principles — Second CRB(M) not rendering independent recommendation; device of officers opposed to applicant's retention to force CDS to conclude had to be released — CDS explicitly referring to second CRB(M), holding no impropriety in process — Since breaches of natural justice, mistaken about validity of process — Court unable to say CDS not relying on CRB(M) in making decision to release — CDS not considering promotion in context of any other occupation — Decisions to release, not promote related — Court would not speculate as to CDS's conclusions if disregarded second CRB(M).
Administrative law — Judicial Review — Certiorari — Denial of applicant's grievances by Chief of Defence Staff (CDS) — Application not premature — Applicant using internal grievance procedure under National Defence Act, s. 29 — Queen's Regulations and Orders for the Canadian Forces (QR&O), art. 19.26 permitting complaint to Minister if not satisfied with redress — Although normally recourse to Minister adequate alternative remedy, applicant also filing complaint with Canadian Human Rights Commission — QR&O, art. 19.26(16), (17) providing as long as complaint under Canadian Human Rights Act outstanding Minister precluded from acting on complaint — Recourse to Minister not adequate alternative remedy since precluded from acting — Respondent's decision invalid — Explicitly referring to second career medical review board (CRB(M)) decision — CRB(M) breaching natural justice principles as applicant given neither notice of hearing, nor opportunity to make submissions — Not rendering independent recommendation but device of officers opposed to applicant's retention to force CDS to conclude must be released — Respondent stating no impropriety — Clearly mistaken — Court unable to say respondent not relying on CRB(M) decision in making decision to release applicant — Decision to release, not promote applicant related.
This was an application for judicial review of the respondent's denial of the applicant's grievances. The applicant was in the infantry in the Canadian Armed Forces. When he was unable to meet the physical requirements of the job, his situation was referred to a career medical review board (CRB(M)), which recommended that he be released from the Forces because he was unable to meet the bona fide occupational requirements of his occupation. The applicant grieved, following which conflicting positions were taken by various officers as to whether he could or should be transferred to another occupation in logistics. Instructions were issued for a second CRB(M), which was convened on less than 24 hours' notice and a decision recommending release rendered the same day. The applicant was not informed that the second CRB(M) was being convened, and therefore made no submissions to it. Subsequently the applicant was informed by the Director Personnel Careers Administration (DPCA) that he would be promoted. At a later meeting between the DPCA, Directorate Personnel Careers Officers (DPCO) staffs and Director Law/Personnel, a military lawyer, it was decided that the applicant should not be promoted and commissioned. The applicant grieved this decision, alleging that the denial of his promotion was unjust because DPCA was the competent authority to promote and commission him, and rescinding the direction to promote and commission him constituted a violation of fairness and equity, and of a legitimate expectation of process. After the applicant's release, he was advised that he had been assigned a medical release suitability classification which barred him from militia service. He was informed that the restriction would stand on the basis that he could not meet the requirement of the universality of service principle, as was determined by the second CRB(M). The applicant filed his final grievance, submitting that the medical release suitability classification assigned to him was wrong, the universality principle applied only with respect to the Regular Force and not to service in the militia, and that the second CRB(M) was convened without proper authority and misapplied the universality of service principle. The respondent denied all three grievances.
The respondent made a preliminary motion to dismiss the application on the ground that it was premature. The applicant brought his complaints under National Defence Act, section 29, which permits grievances to be dealt with by superior authorities. The Queen's Regulations and Orders for the Canadian Forces (QR&O), article 19.26(9), provides that if the decision of the Chief of Defence Staff (CDS) does not afford the redress that the applicant thinks is warranted, the applicant may submit a complaint to the Minister.
The issues were (1) whether the application was premature because the applicant had an adequate alternative remedy which had not been exhausted; and (2) whether the CDS's decision was invalid because of its reliance on the second CRB(M) which, it was conceded, offended the principles of natural justice.
Held, the application should be allowed.
Recourse to the Minister of National Defence would have been an adequate alternative remedy for the applicant, except that he had filed a complaint with the Canadian Human Rights Commission with respect to the decision of the CDS. QR&O, articles 19.26(16) and (17) provide that as long as the applicant's complaint under the Canadian Human Rights Act is outstanding, the Minister is precluded from taking any action on a complaint filed with him by the applicant. Notwithstanding concerns about the applicant being able to manipulate the process so as to circumvent the principle that where an expansive internal resolution mechanism such as the grievance process herein already exists, the plaintiff may not turn to the civil courts for relief until he has exhausted that process, if the Minister may not take action on the applicant's complaint but the Court on judicial review is not so precluded, as between the Federal Court and the Minister, the Minister cannot be considered an adequate alternative remedy.
The second CRB(M) was not an inadvertent breach of principles of natural justice. It was clearly an attempt to circumvent the arguments of certain officers that the applicant should be considered for occupational transfer to logistics. The second CRB(M) relied on the "universality of service" principle derived from subsection 33(1) of the National Defence Act , to hold that the applicant could not be considered for occupational transfer. This was a matter of interpretation and its application was not obvious. In this context, the haste with which the second CRB(M) was convened and the speed with which it rendered its decision created a number of concerns. In addition to the failure to notify the applicant of the proceedings and give him an opportunity to make submissions, it was questionable whether the second CRB(M) was rendering an independent recommendation, or merely a device of officers opposed to applicant's retention to prevent the CDS from considering the issue of vacancies in logistics, and to force him to conclude that the applicant must be released on account of the universality of service principle.
The CDS explicitly referred to the second CRB(M). If no reliance was placed on information obtained in breach of the natural justice principles, there would be no possibility that the result was affected and the decision should not be set aside. The decision of the CDS was brief and, in this respect, obscure. In it the CDS concurred "with the statement of DPCA . . . in his memo . . . with respect to the second CRB(M) and his finding that no impropriety took place in the process". Since there were breaches of natural justice, the CDS was mistaken about the validity of the process of the second CRB(M). It could not be said that the CDS did not rely upon the reasons or decision of the second CRB(M) in making his decision respecting the applicant's release. With respect to promotion, the decision of the CDS indicates that the applicant did not meet the medical conditions for promotion. The decision not to promote and commission was based on the applicant's occupation in the infantry only, because the decision to release was based in part on the CDS's conclusion that he could not be transferred to another occupation. Obviously, the CDS did not consider the question of promotion in the context of any other occupation. The decision to release and not to promote were related. The Court would not speculate as to what conclusions the CDS might have formed with respect to the issues of release and promotion if he had not been mistaken and had clearly disregarded the second CRB(M). The decision of the CDS was quashed and the matters of release and promotion were remitted for reconsideration by the CDS.
As the basis of the human rights complaint may now have disappeared, the Canadian Human Rights Commission must decide whether the substance of the applicant's complaint is sufficiently certain to enable it to proceed and render a decision on that complaint. One way of dealing with the matter would be for the Commission to dismiss the complaint without prejudice to the right of the applicant to reapply if necessary. This would enable the CDS to reconsider the matter expeditiously, and only if the applicant was of the view after a new decision that a human rights complaint was necessary and warranted would he have to proceed with that alternative.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
National Defence Act, R.S.C., 1985, c. N-5, ss. 29 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 43), 33 (as am. idem, s. 60), 34 (as am. idem).
Queen's Regulations and Orders for the Canadian Forces (1968 Revision), art. 19.26(9),(16),(17).
cases judicially considered
applied:
Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353.
distinguished:
Anderson v. Canada (Armed Forces), [1997] 1 F.C. 273; (1996), 141 D.L.R. (4th) 54; 205 N.R. 350 (C.A.); Canadian Cable Television Assn v. American College Sports Collective of Canada, Inc., [1991] 3 F.C. 626; (1991), 81 D.L.R. (4th) 376; 4 Admin. L.R. (2d) 61; 36 C.P.R. (3d) 455; 129 N.R. 296; 4 T.C.T. 6177 (C.A.).
considered:
Mobil Oil Canada Ltd. v. Canada—Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; (1994), 115 Nfld. & P.E.I.R. 334; 111 D.L.R. (4th) 1; 360 A.P.R. 334; 21 Admin. L.R. (2d) 248; 163 N.R. 27.
referred to:
Villeneuve v. Canada, [1997] F.C.J. No. 634 (T.D.) (QL); Pereira v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 308 (F.C.T.D.); Kulyk v. Toronto Board of Education (1996), 139 D.L.R. (4th) 114; 24 C.C.E.L. (2d) 63; 11 O.T.C. 161 (Ont. Gen. Div.); Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; (1996), 136 D.L.R. (4th) 129; 96 CLLC 230-034; 36 C.R.R. (2d) 189; 198 N.R. 1; [1996] R.R.A. 537.
APPLICATION for judicial review of the respondent's denial of the applicant's grievances concerning his release from the Canadian Armed Forces, the denial of a promotion, and the assignment of a low medical release suitability which precluded his acceptance into the militia. Application allowed.
counsel:
Ronald D. Lunau and Tara Erskine for applicant.
Yvonne Milosevic for respondent.
solicitors:
Gowling, Strathy & Henderson, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Rothstein J.: The applicant seeks judicial review of a June 10, 1996 decision of General John Boyle, then Chief of the Defence Staff (CDS), denying the applicant's claim for redress of grievance. The applicant's request for redress of grievance arises out of the applicant's release from the Canadian Forces, a refusal to promote him, and the assignment of a low Medical Release suitability rating.
PRELIMINARY MOTION
At the outset of the hearing on the merits of the judicial review application, the respondent made a preliminary motion to dismiss the application on the ground that it was premature. The applicant brought his complaints under section 29 of the National Defence Act, R.S.C., 1985, c. N-5 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 43].1 As such, his grievance has been dealt with thus far by various members of the Canadian Forces within the internal grievance process of the Canadian Forces. Under the relevant regulations, Queen's Regulations and Orders for the Canadian Forces (1968 Revision) (QR&O) article 19.26(9), if the decision of the CDS does not afford the redress that the applicant thinks is warranted, the applicant may submit a complaint to the Minister of National Defence. Article 19.26(9) provides:
Where an officer or a non-commissioned member has submitted a complaint in writing to the Chief of the Defence Staff and the decision of the Chief of the Defence Staff does not afford the redress that, in the opinion of the member, is warranted, the member may submit a complaint in writing to the Minister.
The respondent says that a complaint to the Minister of National Defence is an adequate alternative remedy for the applicant and that the Court should not grant judicial review when such remedy has not been exhausted.
In Anderson v. Canada (Armed Forces), [1997] 1 F.C. 273 (C.A.), Stone J.A. considered the issue of adequate alternative remedy in lieu of judicial review in the context of the Canadian Forces. See also the decision of McKeown J. in Villeneuve v. Canada, [1997] F.C.J. No. 634 (T.D.) (QL).
With the exception of one fact which distinguishes this case from Anderson, I have little doubt, having regard to the dicta of Stone J.A. in that case, that the Minister of National Defence is an adequate alternative remedy for the applicant in this case. Anderson directs that if it is possible, it is preferable that a complaint be dealt with within the Canadian Forces. The grievance process provided for under section 29 of the National Defence Act is seen to be an expansive resolution mechanism. Where such an expansive mechanism already exists, it is only when the plaintiff is not satisfied with the final outcome of the process that he or she may turn to the civil courts for relief. Considerations of cost and expediency also favour internal resolution. One of the important concerns in this regard is that if the applicant is successful on judicial review, the matter must be remitted for redetermination. Costs may be minimized and a result obtained earlier if internal procedures are exhausted first.2
However, this case is distinguished from Anderson by the fact that here the applicant has filed a complaint with the Canadian Human Rights Commission (Commission) with respect to the decision of the CDS. After one day of argument on the preliminary motion, the Court asked the parties to address QR&O articles 19.26(16) and (17) which had not previously been raised by either of them. Articles 19.26(16) and (17) provide:
(16) A redress authority in receipt of a complaint of an officer or a non-commissioned member under this article shall suspend any action in respect of the complaint where a member initiates an action, claim or complaint under an act of Parliament, other than the National Defence Act, in respect of the matter giving rise to the member's complaint under this article.
(17) A redress authority who has suspended action in respect of a complaint pursuant to paragraph (16) shall resume action under this article in respect of that complaint where the other action, claim or complaint has been resolved.
By reason of these provisions, as long as the applicant's complaint under the Canadian Human Rights Act, R.S.C., 1985, c. H-6 is outstanding, the Minister of National Defence is precluded from taking any action on a complaint filed with him by the applicant. Accordingly, counsel for the respondent conceded that the Minister of National Defence is not an adequate alternative remedy for the applicant in the present circumstances. Here, however, the applicant himself filed the human rights complaint which precludes the Minister of National Defence from dealing with the matter. I have some concern that the applicant should be able to manipulate the process so as to circumvent the principle enunciated in Anderson. Nonetheless, if the Minister of National Defence may not take action on the applicant's complaint but the Court on judicial review is not so precluded, as between the Federal Court and the Minister of National Defence, the Minister of National Defence cannot be considered an adequate alternative remedy to judicial review. The preliminary application to dismiss on the grounds of prematurity must therefore be dismissed.
This, however, does not automatically mean that the Court should proceed with the judicial review. The outstanding complaint to the Commission under the Canadian Human Rights Act poses procedural complications. For example, if the applicant is successful on judicial review, the Court will quash the decision of the CDS and remit the matter for redetermination. However, articles 19.26(16) and (17) preclude the CDS from redetermining the matter until the Commission disposes of the human rights complaint. A quashing of the decision of the CDS will, at the least, create some confusion before the Commission as proceedings before the Commission must relate, at least in part, if not entirely, to the quashed decision of the CDS.
On the other hand, in the judicial review application, the applicant alleges breaches of natural justice which are proper issues to bring before this Court.3 Counsel for the respondent made no application to stay proceedings in this Court pending a decision of the Commission. Had such an application been made, I think the preferable course of action would have been to stay these proceedings as a decision favourable to the applicant would likely result in the matter being remitted to the CDS for redetermination, which, by virtue of articles 19.26(16) and (17), he is precluded from doing as long as the human rights complaint is outstanding. At the hearing of this matter, I ruled that I would proceed to deal with the natural justice issues raised by the applicant and proceed to do so now.
THE DECISION OF THE CDS AND THE PROCESS LEADING TO THE DECISION
The decision of the CDS states:
Mr. C.C. Hutton
APPLICATION FOR REDRESS OF GRIEVANCE
As requested, I have considered your Application for redress of grievance of 24 February 1995 concerning your release from the Canadian Forces on medical grounds.
Disclosure of comments has been provided to you pursuant to Canadian Forces Administrative Order 19-32. In my review, I have considered your initial complaint and your other comments which followed, as well as those from your former superiors at the various levels in the chain of command, and of senior staff at this Headquarters with responsibility for such matters.
Unfortunately, your medical condition has placed restrictions upon your employment in the Infantry occupation, and severely restricts employment in any other occupation. Your request to have your Medical Release suitability classification changed from Suitability "C" can not be supported as the application of Universality of Service applies equally to the Regular Force as well as the Reserve Force. As well, I concur with the statement of DPCA as he explains in his memo of 16 Jan 96 with respect to the second CRB(M) and his finding that no impropriety took place in the process.
Notwithstanding the fact that the Director Personnel Career Administration (DPCA) informed you of his intention to have you promoted and commissioned, and the fact that DPCA was an approving authority in this matter, you did not meet the medical conditions for promotion. In these circumstances, DPCA had no jurisdiction to commission you and, as such, his decision was made without proper authority.
Nevertheless, I am directing that the Obligatory Service associated with your initial academic subsidization be cancelled upon your release on medical grounds.
Based on my review, I am satisfied that you have been treated in a fair and equitable manner. Therefore, I deny further redress.
While that is so, I want to thank you for your service in the Canadian Forces, and wish you well in your future endeavours
J.E.J. Boyle
General
The facts leading to the decision of the CDS are these: In February, 1990, the applicant sought to enroll in the officer training program of the Canadian Forces. In a pre-enrolment medical examination he was diagnosed as having a cancerous tumour in his chest. He had surgery in April 1990. In October 1990, the applicant enrolled as a Private in the Canadian Forces as an infantryman with the Cameron Highlanders of Ottawa, a Reserve Force militia regiment. The applicant had further surgery in December 1990. In 1991, he applied for and was transferred to the Regular Force. On becoming a member of the Regular Force, the applicant was accepted in the Regular Officer Training Program (ROTP). His occupation was "infantry". The applicant experienced difficulty with the physical requirements of the job. By January 1994, the applicant's occupational medical category was determined to be permanent G2 O3 (geographical limitation G2 and occupational limitation O3) which was below the minimum infantry standard of G2 O2. The applicant was withdrawn from further infantry training and his situation was referred to a career medical review board (CRB)(M). By decision approved September 1, 1994, the CRB(M) recommended that the applicant be released from the Canadian Forces:
. . . as he is unable to meet the following Bonafide Occupational Requirements (BFORs) required for retention of his present occupation: . . . and is fit 0% of position for rank. He is fit 5% of positions for next higher rank/MOC. LOG [logistics], INT [intelligence] and PAFF [public affairs] [other occupational classifications considered for the applicant] are closed to occupational transfer of ROTP candidates.
An initial release instruction for the applicant was issued September 8, 1994 with a release date of June 1, 1995, was subsequently extended to January 22, 1996.
The applicant commenced redress of grievance procedures under the QR&O's on February 24, 1995. Following the filing of the grievance, it appears that conflicting positions were taken by different officers in the Canadian Forces as to whether the applicant could or should be transferred to another occupation. While there was a strong view that the recommendation of the CRB(M) should stand, there were also views expressed that the applicant had been treated unfairly and that contrary to the CRB(M) finding, there was a requirement for junior logistics officers in the Navy.4
By memo dated November 14, 1995, Lieutenant Colonel P. Pellicano, Director of Human Rights and Anti-Harassment Complaints (DHRAHC) wrote to Colonel L. G. Pestell, Director Personnel Careers Administration (DPCA) advising that another officer cadet (Logan) had been re-enrolled in the logistics occupation and recommended that it would be preferable to retain the applicant, transferring him to logistics in the Navy. On November 15, 1995, Colonel Pestell wrote Lieutenant Colonel Pellicano advising there were no vacancies in logistics, that the applicant's case had been thoroughly reviewed and that the matter should be placed before the CDS for a decision without further delay.
Notwithstanding Colonel Pestell's letter to Lieutenant Colonel Pellicano, the matter did not go forward to the CDS. Instead, on November 16, 1995, Lieutenant Commander J. D. Lemieux, a DPCA officer subordinate to Colonel Pestell, issued instructions for a second CRB(M):
1. In preparation of a submission to the CDS, a review of this file indicates that some information germane to the request may not be current, which in turn could impact on the decision. Specifically, it would appear that OCdt Hutton does not meet the "universality of service" principle now applied during CRB(M) board deliberations.
2. Accordingly, to assist in determining a valid career disposition for OCdt Hutton, it is requested that a new CRB(M) be convened. CRB(M) results will be used to form the basis for recommendations to the adjudicating authority.
The second CRB(M) was convened on November 16, 1995. The decision of the second CRB(M) rendered on the same date states:
PROTECTED B
CAREER REVIEW BOARD (MEDICAL)"NCM
1. General Information
a. B42 220 889OCdtHutton 23U
(SN) (RANK) (SURNAME&INIT) (OCCUPATION)
b. 3027 Op Ren
(UIC-SUFFIX-ELI) (PRESENT UNIT)
2. Reason for submission/recommendation follows:
a. OCdt Hutton was assigned a med cat of G2: no geographical limitation; and 03: no heavy physical work for more than two (2) hrs without rest. OCdt Hutton's case was reviewed by the CRB (M) held 1 Sep 94. Its decision was to release OCdt Hutton with a retirement leave to commence 1 jun [sic] 95. The date to commence retirement leave was amended to 18 Dec 95 as result of extensions granted to OCdt Hutton in order to partly solve the manning situation in the Op Ren cell;
b. OCdt Hutton has grieved the CRB (M) decision to release him from the CF. As a result of this grievance, DPCA 4 has expressed concerns wrt [sic] the application of the universality of service principle. This CRB (M) is generated solely to assist the adjudicating authority in determining a valid career action for OCdt Hutton;
c. OCdt Hutton is fit for 0% of the posns for his present occupation and rank;
d. the subsect 33 (1) of the NDA requires all CF members to perform any lawful duties. The employment limitation "no heavy physical work for more than two (2) hrs without rest" drastically restricts the member's capacity to perform the full spectrum of the GMDs;
e. the CF has a BFOR for all its officers requiring them to perform physical demands ranging from normal to extremely high depending on the duties. The CF has a BFOR for Inf offr to be able to perform heavy physical duties for prolonged periods; and
f. the member cannot be considered for an occupation transfer since his assigned employment limitation is in breach of the universality of service. This essential criterion was not given proper consideration in the deliberations of the original Board. [Emphasis added.]
CAREER REVIEW BOARD (MEDICAL)
DECISION SLIP
1. The circumstances concerning the above named member of the Canadian Forces have been reviewed by the Career Review Board members listed hereunder. The Board recommends that:
Based on this information, the Board would have no other option but to recommend release. Since the outcome of this review still leads to a recommendation for release, we recommend that the previous findings of the CRB(M) held 1 Sep 94 be maintained.
The applicant was not informed that the second CRB(M) was being convened and therefore made no submissions to it. He found out about the second CRB(M) subsequently.
After the decision of the second CRB(M), the applicant's promotion and release classification issues arose. He filed additional grievances in respect to each matter.
The first additional grievance concerned the applicant's promotion and commission. On December 14, 1995, he was informed personally by Colonel Pestell (DPCA) in a meeting that he would be promoted from Officer Cadet to Second Lieutenant. Subsequently, the Directorate of Personnel Careers Officers (DPCO) staff objected to Colonel Pestell's view. A meeting was held on January 18, 1996 between DPCA, DPCO staffs and DLaw Per [Director Law/Personnel], a military lawyer. The result of the meeting was that the applicant should not be promoted and commissioned. The applicant learned of this decision and filed an intention to grieve on January 22, 1996.
On February 21, 1996, the applicant received a letter from Lt.-Col. Moffatt, DPCA 3, which refers both to Colonel Pestell's direction to promote the applicant, and the meeting of January 18, 1996:
Capt Pachett's opinion was that you did meet promotability criteria and that was subsequently briefed to DPCA, Col Pestell, who, based on that advice, directed that you be promoted to 2Lt.
Subsequent to that direction, DPCA 2 and DPCO 7 questioned this decision. That prompted a meeting involving all of the aforementioned personnel, and an interpretation by DLaw Per which advised that you should not be promoted.
That, as you know, was relayed to SO Op Ren. We are still conducting a search to determine what happened to the file in which the above decisions were discussed. Should we find that file, the applicable documentation will be provided to you.
In his redress of grievance filed on February 26, 1996, the applicant alleged that the denial of his promotion was unjust because DPCA was the competent authority to promote and commission him, and rescinding the direction to promote and commission him constituted a violation of fairness and equity, and of a legitimate expectation of process.
The applicant's final grievance arose with respect to the Medical Release suitability classification. This classification pertains to whether, if the applicant is released, he can engage in further service with the Canadian Forces either with the Regular Force or the Reserve Force. According to the evidence of Captain Burton William Matthews, an officer in the Directorate of Military Careers at National Defence headquarters, Ottawa:
When a CF member is released, regardless of the reason for the outgoing member's release, his suitability for re-enrolment in the event of an emergency situation must be assessed according to the following factors:
Suitability "A" employable in a military occupation classification without restrictions;
Suitability "B" employable in a military occupational classification with restrictions; or
Suitability "C" not employable.
After the applicant's release on January 22, 1996, he made inquiries as to the possibility of joining a Militia unit. He was advised that he had been assigned a Medical Release suitability classification of "C", which barred him from Militia service. He made further inquiries whether the requirement could be waived, and was informed by the Directorate of Recruiting and Educational Training (DRET) on March 3, 1996 that the restriction would stand on the basis that he could not meet the requirement of the universality of service principle, as was determined by the second CRB(M).
This decision caused the applicant to file his final redress for grievance on March 13, 1996, in which he submitted that the Medical Release suitability classification assigned to him was wrong, the universality principle applied only with respect to the Regular Force and not to service in the Militia, and that the second CRB(M) was convened without proper authority and misapplied the universality of service principle. He asked that his suitability classification be changed from "C" to "A" or "B", that he be permitted to enrol in the Militia, and that all DRET documents referring to the second CRB(M) be purged.
The grievances came before the CDS who denied all three in his decision of June 10, 1996.
THE SUITABILITY "C" ISSUE
At the hearing before this Court, counsel for the CDS informed the Court that the CDS did not wish to defend the suitability "C" decision. She advised that the CDS has undertaken that he would, outside of the grievance process, upgrade the applicant's medical release suitability classification from "C" to "B" as soon as possible.5 In view of the CDS's position, that portion of his decision of June 10, 1996, not to change the applicant's suitability classification from "C" to "B" is quashed. The matter is not remitted for reconsideration in view of the undertaking of the CDS to voluntarily upgrade the applicant's classification from "C" to "B".
THE RELEASE AND PROMOTION ISSUES
I next consider those portions of the decision of the CDS denying the applicant redress respecting his release and for the refusal to promote him. At the judicial review hearing the respondent conceded that the second CRB(M) convened on November 16, 1995 was flawed on the basis that it offended the principles of natural justice. Therefore, the question to be decided is whether the decision of the CDS is in turn invalid because of its reliance on the flawed second CRB(M). Although the flaws of the second CRB(M) were conceded, the circumstances surrounding its convening, timing and process are set out for the purpose of context.
In his November 15, 1995 memo to Lieutenant Colonel Pellicano, Colonel Pestell expresses frustration at the amount of time and resources that have been devoted to the applicant's grievance. In that memorandum, he indicates that the matter should be referred without delay to the CDS. I find no fault to this point. However, for some reason, Lieutenant Commander Lemieux then instructed that a second CRB(M) be convened to assist in determining a valid career determination for the applicant, the results of which were to form the basis of a recommendation to the CDS.
This rather elaborate procedure which involved six senior officers of the Canadian Forces, including an officer with the rank of Brigadier General, appears to have been convened on less than 24 hours' notice with a decision being reached and approval given by the Brigadier General on the same day. This compares to the first CRB(M) which was initiated in or about April 1994 and concluded its deliberations and recommendation in September of 1994, an elapsed time of over four months.
The second CRB(M) procedure is not a case of an inadvertent breach of principles of natural justice. It was clearly an attempt to circumvent the arguments made by Lieutenant Colonel Pellicano and others, that the applicant should be considered for occupational transfer to logistics. The basis relied on in the second CRB(M) is that because of the "universality of service" principle derived from subsection 33(1) of the National Defence Act ,6 the applicant cannot be considered for occupational transfer. This is a matter of interpretation and its application is not obvious. In this context, the haste with which the second CRB(M) was convened and the speed with which it rendered its decision create a number of concerns. In addition to the failure to notify the applicant of the proceedings and give him an opportunity to make submissions, I question whether the second CRB(M) was rendering an independent recommendation. Rather, it seems it was a device of some officers opposed to retaining and transferring the applicant to prevent the CDS from considering the issue of vacancies in logistics, about which there seemed to be some doubt, and which might have resulted in the CDS redressing the grievance of the applicant, and to force him to conclude that the applicant must be released on account of the universality of service principle.
I return to the decision of the CDS. There is no question that the CDS considered the second CRB(M). He makes explicit reference to it. However, the respondent argues that in order to determine the validity of the CDS's findings, each component of his decision must be considered separately as to whether reliance was placed on the second CRB(M) in each case. The respondent's position is that, although the portions of the decision which mention the validity of the second CRB(M) and the Medical Release suitability classification may be tainted, the CDS did not rely on the second CRB(M) in making the decision to deny the applicant further redress with respect to his release and promotion.
The respondent relies on Canadian Cable Television Assn v. American College Sports Collective of Canada, Inc., [1991] 3 F.C. 626 (C.A.) in which MacGuigan J.A. held that the Copyright Board denied no principle of natural justice, in spite of the fact that one member had obtained outside information (indeed, had met privately with officials from the CRTC for this purpose) and made use of some of the material in his dissenting reasons. MacGuigan J.A. observed at page 639 that the member had made a "serious mistake of judgment which could certainly have had the effect of invalidating the Board's decision for lack of fairness." However, he then turned to consider whether the conduct of the one member vitiated the entire decision of the Board. He stated at pages 651-652:
. . . I believe the [Canadian Pacific Ltd. v. British Columbia Forest Products, Ltd., [1981] 2 F.C. 745 case in this Court stands for the proposition that an applicant must show that the Board "placed at least some reliance on the information" in question (at page 757). Here there is no evidence at all of such reliance. Indeed, quite the contrary.
If a final word needs to be said, let it be that an inconsequential error of law, or even a number of them, which could have no effect on the outcome do not require this Court to set aside a decision under paragraph 28(1)(b) of the Federal Court Act. In Schaaf v. Minister of Employment and Immigration, [1984] 2 F.C. 334, at page 342, Hugessen J.A., after setting out the text of subsection 28(1), commented as follows:
In my view, nothing in the words used makes them other than attributive of jurisdiction. They create the power in the Court to set aside decisions which offend in one of the stated ways but do not impose a duty to do so in every case.
. . .
In my view, the Board made no error of law by infringing the principle of audi alteram partem in this case, but if, hypothetically, the actions of Latraverse could somehow be attached to the whole of the Board, I think any error attributable to the Board would be inconsequential, a mere technical breach, and should not be a basis for judicial reversal. The authorities have all required a real possibility that the result was affected.
From this, the respondent asserts the proposition that where there is a "mere technical breach" of a principle of natural justice by one member of a tribunal, the whole decision is not vitiated unless it is shown that there was a "real possibility that the result was affected" by the breach. The respondent's position, therefore, is that in considering whether the decision of the CDS should be set aside on the basis of a mere technical breach of natural justice, this Court must ask whether there was a real possibility that the CDS relied on the second CRB(M) in deciding the issues of the applicant's release and promotion, and thus dealt with the applicant unfairly.
In Mobil Oil Canada Ltd. v. Canada— Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at page 228 Iacobucci J. held that a breach of natural justice may be ignored by the courts only in exceptional cases; when the decision is inevitable. However, I interpret the respondent's argument to be that the general principle in Mobil Oil that natural justice may not be ignored need not be applied where there is no reliance on the information obtained in breach of natural justice principles. The respondent's position is that if there is no reliance on the information obtained in breach of natural justice principles, there is no possibility that the result was affected and Canadian Cable Television applies.
Assuming this to be a correct expression of the law, to what extent did the CDS rely on the decision of the second CRB(M) in deciding the applicant's grievances respecting release and promotion? The decision of the CDS is brief and in this respect obscure. The record, on the other hand, is extremely complicated. Counsel for the CDS made submissions to the effect that the Court was entitled to look at the record where the decision is unclear to reconstruct how he must have come to his decision and what he relied on. However, such a task would give the CDS the benefit of his obscurity, and would require the Court to engage in speculation as to what was in the mind of the CDS in forming his conclusions. Whereas the Court in Canadian Cable Television was able to clearly determine that the majority members of the Board made their decision without reliance upon the information considered by the dissenting member and the flawed information received only slight mention by the member in dissent, in this case the CDS as the sole decision maker made explicit reference to the second CRB(M).
In his decision, the CDS concurred "with the statement of DPCA . . . in his memo of 16 Jan 96 with respect to the second CRB(M) and his finding that no impropriety took place in the process." Since there were breaches of natural justice, the CDS was mistaken about the validity of the process of the second CRB(M). Certainly, the reason for the second CRB(M) was, in the words of Lieutenant Commander Lemieux, "to assist in determining a valid career disposition for OCdt Hutton", and the decision of the second CRB(M) provides: "the Board would have no other option but to recommend release." The reasons of the second CRB(M) deal with occupational transfer, finding that the applicant could not be considered for transfer in view of the universality of service principle. I therefore cannot say that the CDS did not rely on the reasons or decision of the second CRB(M) in making his decision respecting the applicant's release.
With respect to promotion, the decision of the CDS indicates that the applicant did not meet the medical conditions for promotion. According to the evidence of Captain Matthews, eligibility for promotion for the commissioned rank of second lieutenant is contingent on the officer cadet being medically fit and able to meet the medical standards for his or her minimum occupational classification (MOC). While the MOC for infantry is G202, for logistics it is G303. It is obvious that the decision not to promote and commission is based on the applicant's occupation in the infantry only, because the decision to release was based in part on the CDS's conclusion that he could not be transferred to another occupation. Obviously, the CDS did not consider the question of promotion in the context of any other occupation. I am not satisfied that the decision to release and not to promote are unrelated.
The Court cannot now speculate as to what conclusions the CDS might have formed with respect to the issues of release and promotion if he had not been mistaken and had clearly disregarded the second CRB(M). Such speculation would constitute a significant departure from the principle laid out by Le Dain J. in Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, at page 661.
The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
In Canadian Cable Television, the exercise of determining what the result might have been without reliance upon the information obtained in breach of natural justice was not speculative. MacGuigan J.A. had before him the Board's majority decision, which was not tainted by any mention of the flawed information or by any reliance upon it. I do not have such an untainted decision before me. Perhaps if the CDS had been more specific as to the precise information upon which he relied for the release and promotion decisions, the respondent's argument might have more weight. In the circumstances of this case, I cannot accede to it.
CONCLUSION
I would allow the judicial review. The decision of the CDS is quashed and the matters of release and promotion are remitted for reconsideration by the CDS presently occupying that position.
I return to the procedural difficulties in this case. There is presently a complaint before the Canadian Human Rights Commission. The CDS may not reconsider the matter by virtue of QR&O paragraph 19.26(16). This decision may result in the basis of the human rights complaint now having disappeared. It will be for the Commission to decide whether the substance of the applicant's complaint is sufficiently certain to enable it to proceed and render a decision on that complaint. One way of dealing with the matter would be for the Commission to dismiss the complaint without prejudice to the right of the applicant to reapply if necessary. This would enable the CDS to reconsider the matter expeditiously, and only if the applicant was of the view after a new decision that a human rights complaint was necessary and warranted would he have to proceed with that alternative. These will be decisions for the applicant and the Commission to make.
Finally, the Charter arguments made on the judicial review were not pursued by the applicant for the reasons explained in note 2. In view of the resolution of the natural justice issue in favour of the applicant, it is unnecessary to deal with the Charter arguments.
1 S. 29 of the National Defence Act provides:
29. Except in respect of a matter that would properly be the subject of an appeal or petition under Part IX or an application or appeal under Part IX.1, an officer or non-commissioned member who considers that he has suffered any personal oppression, injustice or other ill-treatment or that he has any other cause for grievance may as a matter of right seek redress from such superior authorities in such manner and under such conditions as shall be prescribed in regulations made by the Governor in Council.
2 While the applicant was out of time to file a complaint with the Minister of National Defence, counsel for the respondent assured the Court that the necessary extension would be granted if her argument was successful on the issue of prematurity.
3 The judicial review application also includes allegations that s. 33 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60] and 34 [as am. idem] of the National Defence Act violate the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and that the exercise of discretion by the CDS in this case breaches s. 15 of the Charter which protects against discrimination on account of physical disability as an enumerated ground. To the extent there is any basis for these Charter arguments in this case, it is clear they are similar if not the same as complaints made to the Commission under the Canadian Human Rights Act. The parties were not prepared to deal with whether the Court should consider a Charter challenge under s. 15 while a complaint concerning the same matter is before the Commission. This issue has been the subject of some recent jurisprudence (see Pereira v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 308, a February 24, 1997 decision of Cullen J. of this Court; Kulyk v. Toronto Board of Education (1996), 139 D.L.R. (4th) 114, a decision of the Ontario Court General Division; and Béliveau St-Jacques v. Fédération des employées et employés de services public inc., [1996] 2 S.C.R. 345). In the circumstances, the Court was not prepared to proceed with the Charter arguments before resolving this issue. In view of the disposition in respect of the natural justice issues, the Charter arguments need not be addressed.
4 Generally, amongst others, views favourable to the applicant were expressed by Rear Admiral Summers, Lieutenant Colonel Pellicano, Lieutenant Colonel LaPierre; and views unfavourable by Major General Armstrong, Colonel Pestell and Lieutenant Commander Lemieux. Doubts about the universality of service principle were expressed by Lieutenant Colonel Rivard and Colonel Holt.
5 Notwithstanding the complaint under the Canadian Human Rights Act, art. 19.26(16) and (17) do not preclude the CDS from upgrading the medical release classification of the applicant outside the grievance process as he has undertaken to do.
6 S. 33(1) of the National Defence Act states:
33. (1) The regular force, all units and other elements thereof and all officers and non-commissioned members thereof are at all times liable to perform any lawful duty.