NABIL RIFAI Applicant v. THE ATTORNEY GENERAL OF CANADA, 2014 FC 529

Date: 20140530 Dockets: T-580-12 T-581-12 Citation: 2014 FC 529 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, May 30, 2014 Present: The Honourable Mr. Justice Annis BETWEEN: NABIL RIFAI Applicant and THE ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS [ 1 ] In this decision, I am deciding on two applications for judicial review under

section 18.1 of the Federal Courts Act , RSC (1985), c F-7. [ 2 ] The first application, docket T-580-12, refers to military grievance 53856 filed by the applicant on January 25, 2010, regarding his release from the Canadian Forces Reserves (the “release grievance”). The decision to release him seems to have been made on November 30, 2009, and communicated to the applicant orally on or around December 8, 2009. After some discussion, LGen Devlin was appointed initial authority (IA) for this grievance.

The release grievance file never reached the point of decision, or the stage of final decision of the final authority (FA). [ 3 ] The second application, docket T-581-12, refers to the decision made on February 10, 2012, by Colonel (“Col”) Gauthier, the Director General of the Canadian Forces Grievance Authority (CFGA) and the delegate of the Chief of the Defence Staff (CDS), in grievance 54810 filed on March 19, 2010, regarding a remedial measure (the “remedial grievance”). The CDS is the FA with respect to any grievance, but may, in certain cases delegate this task.

So as to avoid confusion, the acronym “FA” will be used to designate the CDS and his delegate Col Gauthier, unless it is necessary to be more specific. [ 4 ] I am dealing with both applications in one decision because they influence each other and it is essential to understand the context of the issues that both factual chronologies be integrated. Furthermore, the two files were argued together. The applicant’s self-representation [ 5 ] Mr. Rifai had no legal representation when he filed his application.

He only hired counsel when he had difficulty following the Federal Courts Rules , SOR/98-106 (the “Rules”), regarding the filing of documents and faced a motion of the Attorney General that his applications be struck. It is a complex case and his counsel seems to have been given a limited mandate. Counsel did not sign the written submissions, including the applicant’s memorandum and seems to not have attempted to put the file in better order.

Consequently, serious deficiencies persist in the documentation submitted by the applicant, which makes the task of ruling on merits more difficult. [ 6 ] With respect to the documents supporting his application, the applicant seems to have done his best to follow the Rules . He cited six documents in support of his two applications.

However, he then filed two binders of documents, one for each application and each containing the same collection of nearly 400 pages, all presented without an affidavit. [ 7 ] The respondent then filed a motion including an affidavit in which were appended the documents filed by the applicant. The motion was presented in writing under

section 369 of the Rules and decided on the basis of claims in the motion file. The respondent asked the Court to require that the applicant number the pages, link each document to one or more of the allegations, and in general put his file in order. On June 28, 2012, Prothonotary Morneau ordered that the applicant serve and file an amended affidavit that would correct the deficiencies. [ 8 ] The applicant then filed two amended affidavits that referred to a large number of documents, but not the entirety of those that were originally filed.

In making its decision, the Court must limit itself to this documentation, which is filed before it by affidavits. [ 9 ] In the end, despite the filing of amended affidavits, the applicant did not file several essential documents; he did not even file the two grievances, or the recommendations of the independent Canadian Forces Grievance Board (“the CFGB” or “the Board”) regarding the remedial grievance—recommendations that were rejected in part by the FA by substituting a more serious measure than that which had been suggested by the Board. [ 10 ] The Attorney General did not file an affidavit.

He cross-examined the applicant on his affidavit. He took the opportunity to file the two grievances and additional submissions in one of the grievances, as well as an exchange of e-mails between the parties, which took place following the filing of the notices of application for judicial review. [ 11 ] The Attorney General apparently understood that there was a minimum duty to ensure that the background documents are in evidence so that the Court may know the nature of the grievances. However, the Attorney General did not make the effort to place into

evidence the rest of the essential documents, such as the recommendation of the Grievance Board that Colonel Gauthier had rejected. No document or other evidence was submitted to explain the slow processing of the release grievance. [ 12 ] The Court is concerned by how the evidence was submitted. It recognized that it is not able to make definitive findings, especially in light of the fact that the applicant was represented at the very end of the process. The fact remains that it is difficult to understand that the applicant, representing himself, almost had his application struck because of the lack of organization in his documentation. Apparently, he could have exercised his rights under

section 317 of the Rules to obtain all the documents relevant to processing both grievances, which he was allegedly then able to submit, thus ending the presentation problems in the file. [ 13 ] Without being aware of what occurred while the applicant was without legal assistance, the Court notes that the Attorney General of Canada has a duty to ensure that there is no denial of justice in the fact that a party who is self-represented does not know the basics that would prevent his application from being dismissed for procedural reasons. [ 14 ] The problem for self-represented parties, as an aspect of the desire to promote access to justice, is one of increasing concern and commentary from the courts.

The Canadian Judicial Council recently updated the Statement of Principles on Self-represented Litigants and Accused Persons, online: http://publications.gc.ca/collections/collection_2007/cjc-ccm/JU14-6-2006E.pdf.

The Council stated in this guide that … judges, court administrators, members of the Bar , legal aid organizations, and government funding agencies each have responsibility to ensure that self-represented persons are provided with fair access and equal treatment by the court; (Page 1) [Emphasis added] This includes the following obligation: Judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation. (Page 2) [Emphasis added] [ 15 ] As indicated, the Court has no knowledge of what happened during the preliminary steps preceding the application for judicial review.

However, the loss of employment by an applicant is a serious subject to which the courts attach particular importance, wishing to ensure that vulnerable parties do not experience any injustice because of difficulties with access to the courts resulting from not being represented. In this case, the applicant did not know that a procedure existed to request relevant documents, a procedure that someone could have easily brought to his attention so that not only would he have avoided the risk of having his application struck for procedural deficiencies, but also the Court would have benefitted from a complete record.

Remedies sought

(1) T-581-12: Remedial grievance [ 16 ] In the application relating to the remedial grievance, the applicant seeks “cancelation of any and all disciplinary actions invoked and issued against SLt Rifai.” [ 17 ] I consider that the central issue is whether the FA had acted reasonably in rejecting the Grievance Board’s recommendation that the remedial measure be upheld but simplified given that the mandatory procedure was not followed in issuing the measure, and in finding that it could nevertheless decide on an appropriate remedial measure. On the basis of the undisputed facts, I find that it was unreasonable and I set aside its decision.

(2) T-580-12: Release grievance [ 18 ] The application relating to the release grievance is an instance where the Court must allow the applicant some flexibility to ensure that his application is properly considered. First, the applicant was seeking in his application submitted in English: “a reinstatement, back pay, compensation, and an answer from the chief of land staff in this grievance.” The notice of application was corrected, apparently at the time of the submission, by adding to it in handwriting the sentence: “SLT Rifai requires a mandamus”. [ 19 ] In his memorandum, the applicant seeks a mandamus order.

However, the issues proposed by the applicant raise the theme of abuse of process: [ translation ] 42 . Do the armed forces unlawfully omit or refuse to make a decision regarding the applicant’s grievance or unreasonably delay the applicant’s file? 43 . Do the armed forces commit an abuse of process or law with respect to the applicant? [ 20 ] The application in T-580-12 explains that: SLt Rifai now seeks this enlightened court’s decision in this matter because the unjustified delays have compromised any and all faith SLt Rifai might have had in the grievance process.

SLt Rifai seeks this legal remedy because the grievance process has demonstrated that it has not acted impartially, cannot act impartially and refuses to act impartially in this matter. The deficiency in impartiality is so severe so as to bring the grievance process into disrepute.

[ 21 ] The applicant adds that: First by the respondent’s behavior they have brought the grievance process into disrepute and this to a point where no applicant could ever believe or expect to receive an impartial adjudication in a grievance with the Canadian Armed forces. [ 22 ] In light of the circumstances of writing the application and the fact that the applicant as represented only late in the process, I consider that it is appropriate to show flexibility in interpreting the description by the applicant of his application. I use as a model Justice Décarie in Canada v Roitman , 2006 FCA 266 ( Roitman ).

The Court wrote in paragraph 16: [16] A statement of claim is not to be blindly read at its face meaning. The judge has to look beyond the words used, the facts alleged and the remedy sought and ensure himself that the statement of claim is not a disguised attempt to reach before the Federal Court a result otherwise unreachable in that Court. . . . [ 23 ] I am aware that in Roitman , the issue was to establish the meaning of a document in the context of an application for an [ translation ] “impossible” result.

In this case, where the issue is to protect the interests of justice, the principle applies with even greater force; it must be ensured that the application is interpreted according to its true intention. [ 24 ] The applicant properly positioned this Court in the context of a mandamus application the issue of whether the respondent intentionally acted in bad faith and committed an abuse of the grievance process by delaying the treatment of the release grievance for the illegitimate reason of discouraging the applicant and preventing him from continuing to the end.

FACTUAL CONTEXT Transfer to the Reserve [ 25 ] The applicant enrolled in the Canadian Forces in September 2005 as an Infantry Officer in the regular force. Facing difficulties relating mainly to his family situation, he wanted to transfer to the reserve force in early 2008. He took steps with three different reserve units in Montréal.

He worked as a volunteer with the first one, les Fusiliers Mont-Royal (FMR), during the training year from fall 2008 to spring 2009, but ended up finding a place with the third unit, the 4th Battalion, Royal 22e Régiment (4 R22eR). [ 26 ] In the fall of 2009, officers of the regular force and the reserve force approved the transfer and a message to this effect was issued. To complete the transfer procedure, the applicant had to leave the regular force and be enrolled in the reserve force.

He became an officer of the 4 R22eR as of September 18, 2009. [ 27 ] At that time, the applicant right away accepted a deployment contract offer of six months to participate in Operation Podium (OP), an operational mission of the Forces with the 2010 Winter Olympics in Vancouver. [ 28 ] In circumstances that will be described below, the applicant was released from the Forces on or around December 8, 2009. The underlying facts of both military grievances provide the account of what happened.

Questioning on the transfer and qualities of the applicant [ 29 ] The applicant’s problems started the morning of September 22, when Lieutenant-colonel (LCol) Roy, commander of the FMR, contacted LCol Boisvert of the staff du Land Force Quebec Area (LFQA) and questioned the qualities of the applicant, who was newly enrolled as an officer of the 4 R22eR, as a candidate for transfer to the reserves. [ 30 ] The LFQA includes regular and reserve army formations and units that are based in Quebec, in particular the 34 Canadian Brigade Group (34 CBG), a reserve formation that groups together the reserve units of western Quebec, among them the 4 R22eR and the FMR.

The headquarters (HQ) of the LFQA are in Montréal. [ 31 ] The applicant described the role of LCol Roy in his amended affidavit as follows: [ translation ] 97. Since this matter began, it has become clear that this entire matter took place because SLt Rifai’s supervisor who wanted to give a written warning in July 2009, LCol Roy, was not happy that the SLt decided to change to another unit for his transfer, furthermore from FMR to 4 R22eR. 98. Therefore, he undertook a hidden campaign against the SLt with another senior member of the Canadian Forces to create this situation. 99.

This campaign took place without SLt Rifai’s knowledge. [Emphasis added] [ 32 ] Following his conversation with LCol Roy, LCol Boisvert requested that Mr. Rifai’s record be sent to LFQA HQ . LCol Dufour, Chief of Staff of 34 CBG , requested explanations before he had the record sent to LFQA. Between September 22 and October 1, in a series of e-mails, LCol Boisvert explained to LCol Dufour that only the Commander (Comd) of LFQA could authorize the applicant’s enrolment in the reserve force.

The transfer message had been sent on September 1 based on assurances that there was no problem in the individual’s file, but in fact there were problems. [ 33 ] Following his conversation with LCol Roy, LCol Boisvert noted that the applicant withdrew from Phase 4 of basic training as Infantry Officer in 2008 and that his memo of February 22, 2008, requesting authorization to withdraw was a pretext for his inability to manage stress. The commentary by the infantry school approving the withdrawal had indicated that the applicant did not have the ‘moral fibre’ to be an Infantry Officer [Emphasis added].

LCol Boisvert had also noted in the record that a remedial measure had been issued

with respect to the applicant during the past 12 months and noted that rather than [ translation ] “facing the music” the applicant had changed his transfer to go to another unit. In addition, the applicant had communicated directly with the commander of the 4 Health Services Group during its search for another unit. Given this, the staff found itself in an illegal situation, the applicant having enrolled as a reservist without formal authorization. The remedial measure of October 2009 [ 34 ] At the end of September 2009, the applicant was sent on a training exercise in preparation for Op Podium.

On October 15, another officer working on the operation, Major Blanchet, communicated with a colleague, Major Siket, about the applicant. Major Blanchet stated that he had to have a conversation with Mr. Rifai relating to his performance and conduct and that Mr.

Rifai [ translation ] “is fully aware that our bde currently needs him, in our Coy Op Podium, as DO.” [ 35 ] The next day, on October 16, 2009, in an e-mail sent at 7:55 a.m., LCol Dufour said to Major Blanchet and Major Siket: [ translation ] Dear Sirs, I would like to make it quite clear that in my mind, we hear his too often for a SLt. [I] know that we are short AOs. But the Coy Podium will not lead to a problem situation in Vancouver and the question is what are the chances that he will goof off once he gets there? And if he goofs off, the Comd will ask us if we expected it and if so, why we sent him.

We must ask ourselves the question. In short, we have to keep an eye on him. [ 36 ] Later the same day, LCol Dufour placed the applicant under counselling and probation (C&

P) for not complying with the directives. The written record of the action states: [ translation ] 1. You have demonstrated a ( check one ) ___ conduct or x performance deficiency . 2.

The detailed description of the deficiency is as follows: When he was employed as a duty officer during the Athlète Rusé ex at Valcartier, as part of the training of Coy Tac Res JTFG of Op Podium, SLt Rifai showed on several occasions his inability to comply with issued directives (non-recurring dispatch task, obtaining any material on the equipment list before arriving on duty, using his personal vehicle against issued orders), despite the fact that he received appropriate and repeated directives requiring that he pay attention to the orders issued. [Emphasis added] [ 37 ] The form then specified that “If you fail to overcome the above-mentioned deficiency, you may be subject to further administrative action”, after which was added by hand the words [ translation ] “including release from the forces”. [ 38 ] There is no evidence in the record detailing the conduct targeted by the remedial measure.

The impugned decision relating to this measure (in docket T-581-12) described some facts, but they are not confirmed by any evidence, including the findings of facts drawn by the Grievance Board, which we will discuss below. The procedure for remedial measures [ 39 ] The Forces’ remedial measures are imposed under the Defence Administrative Orders and Directives (DAOD) 5019-4, “Remedial measures” (the “Directives” or the “DAOD 5019-4”). They are not disciplinary punishments but are administrative actions that aim to correct conduct or performance deficiencies.

There are three levels of remedial measures that may be imposed on a member of the Forces. In increasing order of severity, they are: initial counselling (IC), recorded warning (RW), and Counselling and Probation (C&P).

An initiating authority may select the appropriate remedial measure without being required to go from an IC to a RW then to a C&P. [ 40 ] The Directives stipulate that the C&P, the most serious measure, has repercussions on careers; it is accompanied by ineligibility for promotions, most professional training courses, and postings (apart from operational deployments) during at least the minimum monitoring period, which is six months.

The Directives order that each deficiency, whether of performance or conduct, is the subject of a separate remedial measure: A deficiency shall be categorized as a conduct deficiency or a performance deficiency, but not both. Identification of the CF member’s deficiency serves to focus on the monitoring objectives and to facilitate any staff or third party review of the CF personnel record.

If a CF member demonstrates different deficiencies at the same time, each deficiency shall be dealt with separately . . . . [ 41 ] According to the Directives, to impose a remedial measure, it is necessary to first issue a notice form. In the case of a C&P, it is Form DND 2827 - Notice of Intent to Place on Counselling and Probation (Form B) , which gives notice of the intent to adopt the measure.

It is followed by Form 2826 (Form A), which details the measure taken. [ 42 ] When the initiating authority gives members who are subject to the remedial measure Form B, it must also send them copies of all the documents that justify adopting the proposed C&P and that will be reviewed to make a final decision. Members must then be given a reasonable deadline, of at least 24 hours, so that they may present arguments in writing to the initiating authority. Members may

request assistance or extra time to present their arguments. The initiating authority must examine the member’s arguments , as appropriate, and must then decide whether a remedial measure should be imposed and if so, which one. If the decision is made to impose a C&P, the initiating authority must then fill out Form A and give it to the member. [ 43 ] In this case, no prior notice using Form B was given as required by the regulations.

The applicant was not entitled to the 24 hour period or to an opportunity to present his arguments before the initiating authority and he was not entitled to assistance as required by the policy. It was all done immediately. [ 44 ] The applicant states in his affidavit that during the meeting of October 16, it was suggested that he would perhaps be more comfortable in the ranks than as an officer, but that he refused. Cancellation of the Class C contract relating to the OP [ 45 ] A few days later, the applicant’s deployment was terminated and he returned to Montréal.

The applicant described the termination of his Class C contract for the OP in his amended affidavit in docket T-580-12 as follows: [ translation ] 51. In October, SLt Rifai verbally notified these superiors that family problems were developing in his home. His spouse had some concerns that possibly had to be addressed by SLt Rifai. 52. His superiors advised him that family situations developed for them as well and that he should not worry about them too much. 53. It became increasingly clear that his participation in this operation was not welcome by his superiors. 54.

SLt Rifai sought advice from his colleagues and superiors. He advised his superiors that he would possibly request his removal from Coy Tac Res JTFG. 55. On October 16, 2009, SLt Rifai received a remedial measure, counselling and probation, from LCol Dufour, the new Chief of Staff of 34 CBG. 56. The remedial measure that is also before this court (T-581-12). 57. During this meeting, it was suggested by his superiors that SLt Rifai should hand over his commission and join the members of the rank. SLt Rifai refused. 58.

SLt Rifai then requested leave days, which were granted, but with termination of the Class C contract by his superiors. 59. SLt Rifai left the operation to return to his home. [ 46 ] On November 13, 2009, Major Blanchet informed LCol Dufour by email that he had conducted a second follow-up interview with the applicant with respect to a prior remedial measure, but that given the C&P of October 16, this measure seemed to have failed, and that any subsequent follow-up had to be with reference to the C&P.

Major Blanchet finally noted: [ translation ] “ I also believe that we must be honest with the individual and tell him of the intent not to keep him in the CF (Canadian Forces). I would like to speak to you in person regarding this file.” [Emphasis added] [ 47 ] No evidence on file shows that the applicant was notified at that date that the Forces intended to fire him.

Cancellation of enrollment [ 48 ] On November 23, 2009, the Colonel Commandant of the 34 CBG, Colonel Lapointe , sent a letter for execution by LFQA HQ and for the information of 34 CBG HQ and Comd of 4 R22eR, saying that despite the unapproved transfer from the regular force, the applicant’s Class C contract had been kept because he was needed for Op Podium. However, he then voluntarily withdrew from this operation. His record called into question his leadership.

A decision of the LFQA Commander was still expected, but in the meantime Colonel Lapointe recommended reconsidering given that irregular enrollment was being cancelled. The relevant passages of the letter are: [ translation ] 1. Following the acceptance of the authorization message in reference A, ( service number ) SLt Rifai was transferred from the regular force to the reserve force, on September 18, 2009, as part of 4 R22eR. 2. The e-mail exchange between LCol Boisvert and LCol Dufour (attached) confirms that the Comd had not approved his transfer from the Regular force to the Primary Reserve. 3.

The member was retained at Class C as part of OP PODIUM so as not to negatively impact operations. 4. SLt N. Rifai requested to voluntarily withdraw from Coy Tac Res of OP PODIUM. His class C employment ended on October 30, 2009. We are entitled to question his leadership skills and his dedication to the Canadian Forces .

5. Knowing that the record is still waiting for the decision of the Comd , we recommend by this letter that you kindly reconsider, even cancel the enrollment of the above in the Primary Reserve. [Emphasis added] [ 49 ] On November 30, Colonel Lapointe wrote to the Comd of 4 R22eR, LCol de Sousa, to give him the documents noted in his letter in support of his recommendation for cancellation, and the original of the C&P remedial measure of October 16 and the recorded warning (RW) that had been given to the applicant on July 7, 2009, while he was performing voluntary service with the Fusiliers Mont- Royal.

Colonel Lapointe expected LCol de Sousa to undertake administrative follow-up. [ 50 ] A hand-written note from LCol de Sousa affixed to the letter and dated November 30, 2009, gives the order to cancel the enrollment: [ translation ] “In light of this new information, please cancel SLt Rifai’s enrollment”. [ 51 ] On December 8, LCol de Sousa notified the applicant for the first time, orally , that his enrollment application in the reserves had never been completed and that following the events, the chain of command had decided not to continue with his enrollment.

The applicant states in his affidavit that: [ translation ] 60. On December 8, 2009, SLt Rifai was notified by the Comd of 4 R22eR, LCol De Soussa, that the enrollment application had not yet been properly completed and that the chain of command had decided following the events and recommendations that his enrollment in the primary reserve would not be completed. 61. He was informed that since his exit from the regular force was properly done and that his enrollment in the primary reserve force was poorly done, that SLt Rifai is now no longer member of the Canadian Forces. 62.

Furthermore, SLt Rifai was ordered not to present himself to any function or activity, operation or anything of the Canadian Forces. Filing of the applicant’s two grievances [ 52 ] On December 10, 2009, the applicant submitted an application for assistance in initiating a grievance. In his amended affidavit, he described several factual situations, supported by documentary evidence, in support of his allegation of bad faith in the grievance process. First, he described the applicant’s refusal to provide the officer with the assistance he sought. [ translation ] 63.

On December 10, SLt Rifai made a request for assistance in initiating a grievance with 4 R22eR, as is his right under the Queen’s Regulations and Orders for the Canadian Forces (QR&Os) (P-41). 64. None of the three people named by SLt Rifai for assistance was provided. SLt Rifai was categorically informed that the three people were outside the country and were not available. 65. SLt Rifai then asked one of the people named by him.

He informed him that he was in the country, that no such request was made by the chain of command and that notwithstanding the precedent that he was not comfortable getting involved in the file given the people involved (P-42). 66. SLt Rifai had not yet received any response on this issue of assisting officers and on the fact that he was lied to regarding this application by the Department of National Defence. 67. SLt Rifai has not yet received a reply to this application. . . . 85.

Given the seriousness and the passing of time, SLt Rifai went ahead with the grievance, although he had not received the assistance and advice that would have allowed him to better prepare and make his requests. [ 53 ] On January 25, 2010, the applicant filed an application for redress of grievance contesting his release from the Canadian Forces (T-580-12, the release grievance).

He sought to [ translation ] “reverse the decision not to complete his enrollment in the primary reserve force within the 4 R22eR” and to have [ translation ] “restitution of the amounts, promotion and other things that he would have received”. He requested [ translation ] “more assistance in writing, understanding and following the steps of the grievance process and to understand all the remedies available”. [ 54 ] The applicant states that on February 7, 2010, he received a notice of release under

article 5E of the Queen’s Regulations and Orders for the Canadian Forces (QR&Os). This document was not before the Court. However, the applicant filed a document entitled [ translation ] “Description of reasons for release; Guide for employment insurance” in which are indicated the various reasons for release including the following three relevant examples: [ translation ] Reason Description Explanation

5(

d) Cannot be employed in a profitable manner Mainly for administrative reasons only, the reasons may be the failure of one training level, administrative burden OUT of the member’s control, etc. 5(

e) Regular enrollment Several reasons such as level of education not met, existing medical problem at the time of enrollment. 5(

f) Unable to continue service Applies to any member who, because of factors IN HIS POWER, imposes an excessive administrative burden without showing improvement in his conduct. Generally considered to be a disciplinary release. [ 55 ] On February 16, 2010, the applicant filed an addendum to his release grievance referring to the notice received on February 7.

He requested [ translation ] “an audit of the procedure that led to these circumstances”. [ 56 ] On March 19, 2010, the applicant filed an application for redress of grievance disputing the C&P of October 16, 2009 (T-581- 12, the remedial grievance); he requested the cancellation of the remedial measure. [ 57 ] The applicant filed a second addendum to his release grievance of April 26, 2010. First, he requested a copy of the correspondence cited above by the Court, which had been mentioned in the documents that he had received, as well as any other relevant document.

Afterward, he described in his notice of application that he had not received the following documentation: Sixth not all of the relevant information although in their possession was submitted to SLt Rifai. An email detailing a knowingly unlawful act committed to SLt Rifai by higher ranking military personnel that could have had an incidence on SLt Rifai was not given to him.

And this also serves as motive for the continuing oppression …. [ 58 ] He also raised in this addendum his objection to LFQA HQ acting as initial authority (IA) (the first level decision-maker in the grievance process) for the release grievance. In his amended affidavit, the applicant explained his reasoning, alleging bad faith: [ translation ] 74. In addition, at the time of filing his grievance, there was an issue regarding the initial authority.

SLt Rifai twice objected to the issue of initial authority because he did not believe that the initial authority chosen was the most appropriate (P-44, P-45 and P-46). 75. And twice the Department of National Defence advised that the most appropriate initial authority had been chosen. [ Note from the Court: The applicant refers to two letters that LCol Boisvert wrote. ] 76. Since the grievance was filed, it has become clear that the person and level chosen was the person and level involved at the centre of this subject, of this grievance (P-47 and P-48). 77.

The original initial authority, although he claimed to be impartial and removed from the subject was involved at the centre of the dispute from the start, believing that their involvement would always remain hidden behind different levels of hierarchy. 78. The one and only reason for the insistence on the original initial authority was to find a way to cover their tracks and ensure that the grievance ended with the final authority for adjudication.

The processing of the two grievances [ 59 ] It would seem that the IA responsible for the remedial grievance was unable to make a decision within the deadline of 60 days authorized by QR&O 7.07. The applicant refused to grant an extension. Therefore, the record was sent directly to the FA. The FA chose to refer it to the independent Board (the grievance scheme will be assessed below). [ 60 ] The file submitted to the Court does not provide other information on this grievance besides what can be found in the decision of the FA made on February 10, 2012.

However, it is indicated that the decision of the FA that in November 2011 the Board had given its opinion that the remedial measure of October 16, 2009, was invalid and had to be cancelled and had found that the circumstances allegedly gave way to a less severe measure by two levels, i.e. initial counselling (IC) rather than C&P. [ 61 ] The FA accepted the Board’s opinion that the measure had not been issued in accordance with the Directives and was thus not valid. Nevertheless, it continued the analysis by undertaking a ‘ de nov o’ review of the underlying facts.

Differentiating his situation from that of the Board with respect to the breach of the Directives, it imposed on the applicant a remedial measure of recorded warning (RW), which was more severe than the measure recommended by the Board. He found that the applicant’s conduct had been [ translation ] “reprehensible” and declared that [ translation ] “this is not the conduct of an officer”. [ 62 ] During this time, the release grievance remained with an IA in Ottawa.

On March 1, 2012, the sixth extension that the applicant had consented to ended without anyone asking whether he was granting another. [ 63 ] On March 20, 2012, the applicant filed these applications for judicial review—docket T-581-12 (the release grievance) and docket T-581-12 (the remedial grievance)—with the Federal Court. [ 64 ] He gave the following explanation why he filed his applications: [ translation ] 107. The grievance was submitted in good faith and SLt Rifai has been waiting for a reply from the initial authority (the second) for more than 18 months now.

108. In the past, the initial authority, the Chief of Land Staff (CLS) requested an extension several times; however, at the time of the last expiration no application was made. And SLt Rifai had to turn to this honourable court. 109. The CLS refuses or neglects to provide a reply to the grievance. Goes beyond the statutory periods. 110. According to SLt Rifai the initial authority prefers not to give a reply and thereby forces the grievance to the last level, the final authority, the head of National Defence. 111.

A grievance sent to the final authority must necessarily pass through the defence grievance board and issue a recommendation that the final authority is not required to follow. 112. In addition, given all the circumstances of this file, it is clear that the impartiality and the capacity of the grievance system to adjudicate this grievance are no longer possible. [ 65 ] On March 22, 2012, the grievance management authority communicated with the applicant by e-mail to know whether he wanted to approve a final extension for processing the release grievance by the IA.

It was not explained why, after 18 months of waiting, the IA was able to make a decision before the end of the next month, just after the application for judicial review was filed. [ translation ] Dear Mr. Rifai, The CLS has not yet made his decision on your grievance. He is currently away and will be back next week. Therefore, I request a final extension until April 30, 2012, to allow the CLS to make his decision. I await your confirmation. Thank you. [ 66 ] The applicant replied that the date was already [ translation ] “past due” and that he had initiated legal proceedings on March 20.

The officer of the CFGA sent a second e-mail to verify whether he wanted to say if he was allowing the deadline.

He was also asked, in case he would not allow the IA the delay to continue processing the grievance, if he wanted to exercise his right to require that the grievance be sent directly to the FA so that he could make a decision. [ 67 ] The officer also offered as an alternative that the applicant could withdraw his grievance, without explaining why after the whole process that he had followed and after filing an application in court, the applicant would want to accept this suggestion. [ translation ] Dear Mr. Rifai, I have noted your comments. However, you have not answered my question.

Would you allow the delay or not? If not, would you like your file to be sent directly to DGCFGA, i.e. the final authority for grievances? Or do you want to withdraw your grievance ? Please let me know. Thank you. [Emphasis added] [ 68 ] Mr. Rifai replied that he was expecting the grievance to be suspended while waiting for the Federal Court’s decision. The grievance process [ 69 ] Military grievances are governed by the National Defence Act , RSC (1985), c N-5, and the QR&OS. The relevant legislation is reproduced at Appendix A.

I mainly quote the QR&Os. [ 70 ] Complainants present their grievance to their commanders. If commanders have the authority to act, they act as initial authority (IA). If not, grievances must go up to officers at the next higher rank who may act as IA. The CFGA in Ottawa will designate these officers. In this case, the docket before the Court does not explain who the IA was for the remedial grievance, as this level was passed very early anyway. As explained, LGen Devlin was appointed IA for the release grievance. [ 71 ]

Article 7.07 of the QR&Os obliges the IA, within 60 days following receipt of the grievance, to inform the complainant in writing of the decision and supporting reasons. If the IA cannot make a decision within the statutory period, the complainant has the

right to request that his grievance be sent directly to the higher level, that being the final authority (FA). Also, if the complainant remainsdissatisfied following the IA’s decision, he may request that his grievance goes up to the FA. As indicated above, the FA is the Chief ofDefence Staff (the CDS), designated as such in

article 7.08 of the QR&Os. In practice, however, the function is often performed by adelegated officer such as Colonel Gauthier, the officer who decided the remedial grievance in this case. [72]

Section 29.16 of the National Defence Act created the Canadian Forces Grievance Board (the “CFGB” or the “Board”). TheBoard is composed of a chair, at least two vice-chairs and other members required to perform its functions. Its members are appointed bythe Governor in Council. Those who work full time are exclusively devoted to performing the functions of the Board.

Section 29.21confers on the Board the powers of an independent Tribunal; it may summon witnesses, administer oaths and receive the requiredevidence. [73] In accordance with

article 7.12 of the QR&Os, the FA may send some grievances to the Board and must send some othergrievances to the Board, in particular those that concern release from the Forces. Therefore, the Board reviews the case and makesrecommendations. In this case, the FA had chosen to send the remedial grievance to the Board; he was obliged to send the releasegrievance to the Board. The Board presented its recommendations to the FA and to the complainant. In this case, no information wasprovided to the Court regarding the reasons that pushed the FA to refer the remedial grievance to the Board, given the deadline that thisnecessarily implies. [74] In accordance with

section 29.13 of the National Defence Act, the FA is not bound by the conclusions and recommendationsof the Board. However, if he chooses to disregard them, he must provide reasons for his choice in his decision. [75] In accordance with

article 7.16 of the QR&Os, the processing of any grievance must immediately be suspended if thecomplainant uses a remedy under a federal law other than the National Defence Act. This includes both applications for judicial review tothe Federal Court filed by the applicant in this case. Issues [76] In application T-581-12 – the remedial grievance: 1. Was Colonel Gauthier’s decision reasonable given that he accepted the opinion of the Board regarding the procedural error in theoriginal measure? 2.

Was Colonel Gauthier’s decision reasonable despite the fact that he cancelled the measure based on performance and created a newmeasure based on conduct? [77] In application T-580-12 – the release grievance: 1. Could an abuse of power by delaying a decision justify a mandamus order? 2. If so, do the facts in this case show an abuse of power by the defendant in the delay caused to the release grievance?

Standard of review [78] The standard of review applicable to application T-581-12 (review of the remedial grievance decision) is that adopted by thisCourt in Tainsh v Canada (Attorney General), 2011 FC 1180 at paragraphs 22 and 23: [22] The adequacy of reasons may be regarded as one aspect of procedural fairness and therefore subject to review based oncorrectness (see Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009 CarswellNat 434 at para 43). [23] This Court held in Smith v Canada (National Defence), 2010 FC 321, 363 FTR 186, that the decisions of the CDS are questions ofmixed fact and law reviewable on a standard of reasonableness.

As articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1SCR 190 at para 47, reasonableness is “concerned mostly with the existence of justification, transparency and intelligibility within thedecision-making process” as well as “whether the decision falls within a range of possible, acceptable outcomes which are defensible inrespect of the facts and law.” [79] As regards T-580-12, the possibility of obtaining mandamus orders is determined by the correct application and the principlesof the relevant facts.

The test for an allegation of unreasonable delay in making a decision is described in Liang v Canada (Minister ofCitizenship and Immigration), 2012 FC 758 at paragraphs 24, 26: [24] Mandamus is a discretionary, equitable remedy.

The parties agree on the legal test for mandamus, as set out in Apotex Inc vCanada (Attorney General), (FCA), [1994] 1 FC 742 at para 45 (CA), aff’d (SCC), [1994] 3 SCR1100, which has been applied in the immigration context (see for example Conille v Canada (Minister of Citizenship and Immigration), (FC), [1999] 2 FC 33; Vaziri v Canada (Minister of Citizenship and Immigration), 2006 FC 1159): 1. There must be a public legal duty to act. 2. The duty must be owed to the applicant. 3. There is a clear right to performance of that duty, in particular: (

a) the applicant has satisfied all conditions precedent giving rise to the duty; (

b) there was (

i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright;and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay;

4. Where the duty sought to be enforced is discretionary, the following rules apply: (

a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”; (

b) mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”; (

c) in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations; (

d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and (

e) mandamus is only available when the decision-maker’s discretion is “spent”; i.e., the applicant has a vested right to the performance of the duty. 5. No other adequate remedy is available to the applicant. 6. The order sought will be of some practical value or effect. 7. The Court in the exercise of its discretion finds no equitable bar to the relief sought. 8.

On a “balance of convenience” an order in the nature of mandamus should (or should not) issue. . . . [26] The parties agree on the test for whether there has been an unreasonable delay, as articulated in Conille , above, at para 23 : ... three requirements must be met if a delay is to be considered unreasonable: (1) the delay in question has been longer than the nature of the process required, prima facie ; (2) the applicant and his counsel are not responsible for the delay; and (3) the authority responsible for the delay has not provided satisfactory justification.

Application T-581-12 Decision on the remedial grievance [ 80 ] The grievance concerning the remedial measure was analyzed by the Board under

article 7.13 of the QR&Os. The conclusions and recommendations of the Board are not included in the evidence before this Court. However, it is recognized in the final decision on the grievance that the Board had recommended to cancel C&P and had found that an IC had been adequate in the circumstances.

According to Colonel Gauthier’s reasons, the Board had based itself on the applicant’s junior rank and the fact that there was no evidence on the record showing whether it was a repeat offence or the applicant had already been counselled on this conduct. [ 81 ] The applicant had stated in his additional comments of October 10, 2011, that the notice of intention process in force under DAOD 5019-4 was not followed before imposing the measure and that, consequently, the measure was invalid and should be permanently cancelled. This argument was rejected by the Board.

In November 2011, the applicant received a copy of the Board’s conclusions and recommendations. After reviewing them, Col Gauthier made his decision on February 10, 2012.

There was no evidence besides the text of the decision that would indicate the process followed by the FA to come to his decision. [ 82 ] Col Gauthier explained that, in his reasoning, he consulted several sources, including senior staff officers of the applicant’s chain of command in Montréal and officer advisors to National HQ in Ottawa, before making his decision: [ translation ] I have examined all the available correspondence and taken note of the comments of the senior staff officers from your chain of command and National Defence Headquarters (NDHQ) mandated to advise me on the issues raised in your grievance.

I also took into account the additional comments that you submitted throughout the process, including your comments of October 10, 2011. I also reviewed the conclusions and recommendations submitted by the Canadian Forces Grievance Board (CFGB) which, pursuant to

article 7.12 (Discretionary Referral to the Grievance Board) of the Queen’s Regulations and Orders for the Canadian Forces, completed an independent analysis of your request. In accordance with the principles of procedural fairness, you have received disclosure of this correspondence, along with the conclusions and recommendations of the CFGB.

Finally, I note that you have chosen not to provide any additional comments following receipt of the conclusions and recommendations of the CFGB by choosing not to send us the reply form, as requested of you in the letter from the CFGB of November 25, 2011. [ 83 ] Col Gauthier noted that he shared the majority of the observations, conclusions and recommendations issued by the Board in his report and that he is satisfied that the Board’s

summary of the relevant facts is “complete and faithfully represents my understanding of the issues in your case”. Unfortunately, this

summary is not before the Court. [ 84 ] The Colonel accepted the Board’s view that the original remedial measure is invalid because of the deficiencies in the process required by DAOD 5019-4. He noted that: [ translation ]

Since DAOD 5019-4 leaves no discretion in this regard to the initiating authority, it is the Board’s view that this C&P was not issued inaccordance with the procedure in force and that, consequently, it must be cancelled. I agree with this conclusion. [85] However, he was of the view that he could correct this procedural error. He explained: [translation] Since you have now had several opportunities to share your comments regarding the faults alleged against you, I consider this breach ofprocedural fairness corrected.

Therefore, I will conduct a de novo assessment myself of the facts alleged against you to determinewhether a remedial measure is in order and, if so, which one. [86] Regarding the circumstances of the recorded warning of July 7, 2009, the colonel sees no link with the deficiencies alleged inthe cancelled C&P.

In other words, he concluded that the facts of October 2009 should be retained. [87] However, Col Gauthier does not agree with the Board’s opinion that an IC would have been adequate in the circumstances.He gave the following description of the applicant’s deficiencies: [translation] According to the note of Captain (capt) B. Leclerc, your company (Coy) Comd, you demonstrated reprehensible conduct on October 4,2009. In addition to not following the directives that you received you did not seem to take them seriously. This incident alone wouldhave been sufficient to place you in IC.

You were told at this time that there would be consequences if this conduct was repeated. I amsatisfied that this was a clear message, with a witness, and that you knew you had been warned, although a formal IC was not written. During the next week, once again you disobeyed the orders by not looking for other duties, as you were ordered to do, when your dutyofficer work shifts were ending. Again, instead of taking responsibility for your actions, you responded nonchalantly that you hadfinished your “number”.

This is not the conduct of an officer, however junior he might be. [Emphasis added] [88] Col Gauthier considered [translation] “that a RW is the minimum remedial measure that must be given to you in thecircumstances.” He criticized the applicant for his conduct, writing in his decision: [translation] You are an officer. Although it may be recognized that at the rank of second lieutenant you may lack some knowledge and experiencethat may influence your performance, your conduct, however, must be irreproachable.

That has not been the case in the events inquestion. [Emphasis added] [89] Col Gauthier ordered that the original C&P be cancelled and that it be replaced by [translation] “a RW for conductdeficiencies which would use the same terms as the C&P”. This seems to imply that the new RW would include the handwritten notethat the consequence for a repeated offence may include release from the forces. Analysis of the decision [90] I am of the view that the application for judicial review in this record must be allowed because the procedural deficiencies ofthe DAOD cannot be corrected in retrospect by the FA.

In addition, the FA exceeded its authority by replacing an invalid measure ofperformance with a new measure of conduct. A. Procedural fairness required by the DAOD applies to the FA and the Board. [91] The Directives detail the elements of procedural fairness that must be present when a remedial measure is issued.

This createslegitimate expectations with respect to the procedure to follow (see Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, 174 DLR (4th) 193, at para 26). [92] In this case, several important elements of procedure were not followed when the remedial measure was imposed on theapplicant: he was not given written notice of the intent to adopt counselling and probation, or copies of all the documents that wouldjustify the adoption of the proposed C&P and that would be examined so as to make a final decision.

The applicant was also not eligiblefor the reasonable period of at least 24 hours after receiving the written notice to make arguments in his defence, was unable to exercisehis right to request assistance and an additional period to present his arguments, and did not have opportunity to present arguments toLCol Dufour, who was the initiating authority. The applicant received only a verbal warning on or around October 15 from MajorBlanchet and the evidence does not show that it was specified that a remedial measure was planned.

Then, on October 16 the C&P wasimposed. [93] These procedural deficiencies are significant and compromise the procedural fairness of the decision. The applicant did nothave the opportunity to be heard and have his arguments considered before a final decision was taken. In addition, he was deprived of thepossibility of being informed in advance by the initiating authority and to see the documents relevant to the remedial measure. [94] Therefore, I consider that Colonel Gauthier acted reasonably in accepting the opinion of the Board that the measure wasinvalid.

However, I reject his conclusion that the breaches in fairness had been corrected during the redress of grievance process and thathe could conduct a new analysis and rule on the grievance. [95] In Schmidt v Canada (Attorney General), 2011 FC 356 (Schmidt) at para 16-20, Justice Barnes explained that the Canadian

Forces grievance process may remedy procedural errors that have affected the initial decision when it “does afford to a grievor recourse to a true de novo assessment of the case” (para 20).

Justice Barnes quotes at para 16 three paragraphs of the decision Taiga Works Wilderness Equipment Ltd v British Columbia (Director of Employment Standards) , 2010 BCCA 97 ( Taiga Works ), where the British Columbia Court of Appeal discusses this point: [36] The above review of the jurisprudence demonstrates that Cardinal does not stand for the broad proposition put forward by the employer that an appellate tribunal has no power to cure breaches of the rules of natural justice and procedural fairness.

It is apparent from Supermarchés Jean Labrecque Inc. and Mobil Oil that the Supreme Court of Canada accepted that Harelkin (and King ) and Cardinal can stand side by side.

The fact that the Supreme Court of Canada mentioned both Harelkin and Cardinal with approval means that Cardinal cannot be taken to have overruled the proposition established by Harelkin (and King ) that a breach of the rules of natural justice or procedural fairness can be cured by an appellate tribunal in appropriate circumstances. [37] I think it is fair to say that Cardinal stands for the proposition that a breach of the rules of natural justice or procedural fairness cannot be overlooked on the basis that the reviewing court or appellate tribunal is of the view the result would have been the same had no breach occurred .

As demonstrated by the post- Cardinal authorities to which I have referred, Harelkin and King continue to stand for the proposition that appellate tribunals can, in appropriate circumstances, cure breaches of natural justice or procedural fairness by an underlying tribunal. The question then becomes how one should determine whether such breaches have been properly cured. [38] As did Huddart J.A. in International Union of Operating Engineers and Berger J.A. in Stewart, I prefer the approach advocated by de Smith, Woolf and Jowell in Judicial Review of Administrative Action .

One should review the proceedings before the initial tribunal and the appellate tribunal, and determine whether the procedure as a whole satisfies the requirements of fairness .

One should consider all of the circumstances, including the factors listed by de Smith, Woolf and Jowell. [Emphasis added] [ 96 ] In McBride v Canada (Minister of National Defence) , 2012 FCA 181 ( McBride ) the Court also declared that the grievance process of the Canadian Forces may remedy procedural errors that have affected the original decision, in the following words: 3- If there was any unfairness, whether it was cured by subsequent disclosure prior to the decisions of the Grievance Board and the CDS? [41] Mr.

McBride argues that the deficiency of procedural fairness that occurred in this case was not remedied by the subsequent disclosure of the specific records relied upon by the Director, Medical Policy, in imposing the MELs. He relies on the decision of the British Columbia Court of Appeal in Taiga Works Wilderness Equipment Ltd. v. British Columbia ( Director of Employment Standards ), 2010 BCCA 97 , [2010] B.C.J. No. 316 [ Taiga ] in support of this position.

In particular, he says that when the factors enumerated below are considered, the proper conclusion is that the procedural defect in the earlier proceedings was not remedied by the Canadian Forces’ subsequent disclosure. These factors are taken from Stanley A. De Smith, Sir Harry Woolf & Jeffery A. Jowell, Judicial Review of Administrative Action , 5th ed. (London: Sweet & Maxwell, 1995) and are quoted in Taiga :

i) the gravity of the error committed at first instance; ii) the likelihood that the prejudicial effects of the error may also have permeated the rehearing; iii) the seriousness of the consequences for the individual; iv) the width of the powers of the appellate body; and

v) whether the appellate decision is reached only on the basis of the material before the original decision maker or by way of re-hearing de novo . [42] The difficulty is that these factors are to be considered only in cases where the question at issue is whether the original deficiency of procedural fairness has been cured by an appeal proceeding.

The relevant passage reads as follows: Whilst it is difficult to reconcile all the relevant cases, recent case law indicates that the courts are increasingly favouring an approach based in large part upon an assessment of whether, in all the circumstances of the hearing and appeal, the procedure as a whole satisfied the requirements of fairness.

At one end of the spectrum, when provision is made by statute or by the rules of a voluntary association for a full rehearing of the case by the original body (constituted differently where possible) or some other body vested with and exercising original jurisdiction, a court may readily conclude that a full and fair rehearing will cure any defect in the original decision .

However, where the rehearing is appellate in nature, it becomes difficult to do more than to indicate the factors that are likely to be taken into consideration by a court in deciding whether the curative capacity of the appeal has ensured that the proceedings as a whole have reached an acceptable minimum level of fairness. Of particular importance are (

i) the gravity of the error committed at first instance, (ii) the likelihood that the prejudicial effects of the error may also have permeated the rehearing, (iii) the seriousness of the consequences for the individual, (iv) the width of the powers of the appellate body and (

v) whether the appellate decision is reached only on the basis of the material before the original tribunal or by way of rehearing de novo. Taiga , cited above, at para 28, (emphasis added). [Emphasis by the Court of Appeal] [43] In this case, both the Grievance Board and the CDS considered the matter de novo and in each instance, made a fresh decision on the basis of Mr. McBride’s entire file and the submissions made at each level. In my view, the proceedings were not, therefore, appellate in nature and so the factors identified by Mr. McBride, while useful, are not a template for assessing whether the original deficiency of

procedural fairness was remedied. [44] I think it is more useful to frame the question in terms of whether, given the circumstances as a whole, the procedure was fair . I have no hesitation in concluding that it was. [Emphasis added] [45] Before the Grievance Board considered Mr. McBride’s case, he received the disclosure he had requested during the AR/MEL process. He was invited to make submissions to the Grievance Board and he did so, with full knowledge of both the contents of his health record and the specific records that the Director, Medical Policy, relied on in imposing the MELs.

The same is true of the proceedings before the CDS. Each of these proceedings was a de novo consideration of Mr. McBride’s file, culminating first in a non-binding recommendation that his grievances be dismissed, and then in a final decision by the CDS that his grievances be dismissed. In the circumstances, I find that the deficiency of Mr.

McBride’s right to procedural fairness was cured by these subsequent de novo hearings. [ 97 ] In this case, it is impossible for me to conclude that “in all the circumstances of the hearing and appeal, the procedure as a whole satisfied the requirements of fairness” ( McBride at para 42 ) when these circumstances include the possibility for the decision- maker to be exempted from the requirements of fairness. [ 98 ] Procedurally, given that the respondent did not take care to ensure that the entire file that went before the Board was part of the evidence submitted in these proceedings, the Court is not able to “determine whether the procedure as a whole satisfies the requirements of fairness” ( Taiga Works , above, at para 38 ).

I note that when it is a de novo analysis where the decision-maker must justify his decision beyond a procedural error committed previously in the process and that the respondent before the Court tried to defend this decision, it is the respondent’s obligation to ensure that the entire file is before the panel so that the Court may make the required analysis. [ 99 ] In short, the Court is unable to determine from the file before it in this case what evidence was put before the Board, which were the exact terms of the Board’s recommendation, or whether the applicant had been advised of the possibility that the FA could conduct a de novo analysis and notified him that he had to write his replies accordingly. [ 100 ] Furthermore, in my view, the original omission of following the Directives is a breach procedural fairness that cannot then be repaired and that invalidates the entire procedure.

As I described above, the purpose of the Directives is to guarantee procedural fairness so that the members of the Forces may dispute remedial measures that have a major impact on their careers. [ 101 ] In this case, it seems that, among other problems, the applicant had not received the assistance that he had requested to prepare his two grievances; assistance that would have allowed him to put forward additional arguments from the beginning.

The Court does not have, in the record, evidence that would demonstrate what assistance was provided to the applicant, whether by an assisting officer or counsel or a paralegal. [ 102 ] I am of the view that the Federal Court of Appeal did not intend, in McBride , to allow the Board or the FA to justify retroactive relief of the fairness requirement at all times. In McBride , it was possible to produce the documents requested before the final stage of revision and the applicant was thus fully aware of it and of the possibility of basing his arguments on them.

In this case, it is impossible for the applicant to go back and receive the notice sent 24 hours before the imposition of the disciplinary action and the assistance of an assisting officer or counsel to defend himself before the final decision was made. Furthermore, the initiating authority cannot do an about-face and provide him with the documents justifying the action or review these documents, because it allegedly seems that no relevant documentation was written. [ 103 ] Finally, a critical point; it is not clear that

section 29.13 of the National Defence Act accepts that an FA conduct a de novo review, even in a situation where the procedural fairness requirements do not invalidate the entire process. Read carefully, nothing in this

section suggests that the FA is authorized to start the analysis again without constraints. [ 104 ] I am of the view that

section 29.13 provides that the FA will show some restraint toward the Board. Except in cases of recommendations that are clearly erroneous or that attract unexpected consequences, the FA should not deviate from the conclusions drawn from the law and the facts by the Board to undertake a de novo process or substitute its opinion for that of the Board. It is a specialized tribunal with powers enabling it to come to conclusions in the area of military remedial measures. The FA, however, does not have any expertise in law or in the area of making findings of fact based on evidence. The intent of the legislation could not be, through

section 29.16, to allow the FA to set aside the Board’s decisions without showing that these decisions were not reasonable. [ 105 ] Therefore, I do not understand how rejecting the Board’s recommendation for procedural reasons could allow the FA to then substitute its opinion to that of the Board with respect to substantive findings .

In addition, how could the applicant imagine that the procedural errors of the Board that he exposed would end up in the FA inflicting a more severe remedial measure on him? [ 106 ] First, the FA should have shown some error in all the Board’s reasoning that invalidated its conclusion that an IC was the most appropriate remedial measure, so as to be able to review the evidence de novo . It did not do so.

Rather, it substituted its opinion for that of the Board, alluding to a part of the evidence without explaining how it found the erroneous recommendation based on all of the evidence before the Board. [ 107 ] Moreover, I do not agree that Colonel Gauthier had sufficiently informed the applicant regarding the process that he would follow in considering the Board’s report. He described the basis for his analysis as follows: [ translation ] … Finally, I note that you have chosen not to provide additional comments following receipt of the conclusions and recommendations of

the CFGB by choosing not to send us the reply form, as requested of you in the letter from the CFGB of November 25, 2011. [ 108 ] It was hardly clear what the applicant was to do in the circumstances. He seems to have been satisfied with the result regarding the Board, which would have little impact on his career and, thus, he would not have seen the need to present additional submissions.

Did he have to repeat the submissions seeking that the Board’s recommendation would be invalid because of procedural errors, without knowing that, if they were accepted, Colonel Gauthier would use this reasoning to undertake a de novo consideration? [ 109 ] I also find worrisome the comments of the FA that he had [ translation ] “read the comments of the officers . . . from National Defence HQ whose duty it is to advise me as to the topics raised in your grievance”.

It seems that the applicant should have been informed of the content of these comments if they had an effect on the decision; otherwise, he was not aware of what was said and had no opportunity to reply. The record does not contain any evidence showing what information was provided to Colonel Gauthier or how he used it in coming to his decision. [ 110 ] As a final point, I would make another observation regarding procedural fairness in passing, although I do not base anything in my decision on this point.

Col Gauthier stated that he had based his decision on comments from senior staff officers of the applicant’s chain of command.

Many of these officers would seem to have prejudices that weigh heavily against the applicant of which he was not informed and that were used as hidden reasons justifying his release. [ 111 ] Indeed, and it will be discussed below, some of these officers, as can be seen in the respondent’s documents, seem to have gone to the point of carrying out the applicant’s release from the Canadian Forces for the unreasonable and fictitious reason that he had himself chosen to resign from the regular force so as to join the reserve force and that through an accident of bureaucracy completely unrelated to the applicant, his subsequent enrollment in the reserve force was never completed, despite working and being paid in the position for two months.

The real reason for his release was that his senior officers did not believe that he had the moral fibre required to be an officer. [ 112 ] It is my opinion that if the applicant’s senior officers did not make the effort to treat him with fairness and candor with respect to his release, I do not see how an opinion based on their comments could serve as a basis for Col Gauthier’s decision. [ 113 ] However, there is no evidence on this issue in the remedial grievance given the fact that the issue relates mainly to the release grievance.

Therefore, I will simply remark that there was the appearance of a problem of procedural fairness that was not raised. [ 114 ] Nevertheless, for the reasons described above, I set aside Col Gauthier’s decision and I return the file to the FA with the directive that the applicant’s grievance will be allowed and the corollary remedies to this decision implemented. B.

Col Gauthier’s decision is based on an assessment of the applicant’s conduct despite the fact that the scope of the remedial measure was limited for reasons of performance [ 115 ] I am of the view that the decision seems to have gone beyond the parameters of the grievance as described in the C&P. This was a remedial measure regarding performance and not conduct.

It would seem that the Board made the same error, since Col Gauthier described his reasoning as follows: [ translation ] The CFGB, after comparing what is alleged against you in the RW [of July7, 2009] and the C&P, found that there was no link between the deficiencies of one or the other. In its view, the RW refers more to performance deficiencies while the C&P relates to conduct. [ 116 ] The Directives clearly provide that performance and conduct must be dealt with separately, explaining that “[a] deficiency shall be categorized as a conduct deficiency or a performance deficiency, but not both. . . .

If a CF member demonstrates different deficiencies at the same time, each deficiency shall be dealt with separately”. In this case, only the performance category was checked. Further, the description of deficiencies—[ translation ] “inability to comply with the directives”—does not suggest bad conduct. [ 117 ] However, the reasoning of Col Gauthier is based on conduct deficiencies. In his decision on the grievance, Col Gauthier referred to several moments where he found that the applicant demonstrated [ translation ] “reprehensible conduct”.

He even made a distinction between the applicant’s performance and conduct: [ translation ] “Although . . . you may lack the knowledge and experience that may influence your performance , your conduct must be irreproachable”. [ 118 ] In my view, the Board’s conclusion, [ translation ] “that the C&P affects conduct” should not have led to a de novo analysis of conduct; rather, it should have led Col Gauthier to note that the original measure was invalid if the description of the deficiencies were really at odds with the chosen category. [ 119 ] Finally, if the replacement action must be understood to include the possibility of passing directly to release in the case of a repeated offence, it seems as disproportionate as the original invalid measure.

Request T-580-12: Release grievance

(1) Could an abuse of power in delaying a decision justify a mandamus order? [ 120 ] In his memorandum, the applicant seeks a mandamus order, relying on the innovative argument that the respondent had committed an abuse of process by delaying the decision on the release grievance. I repeat his submissions regarding this dispute: [ translation ] 42. Are the armed forces illegally neglecting or refusing to make a decision on the applicant’s grievance or are they unreasonably delaying the applicant’s file?

43. Are the armed forces committing an abuse of process or of right with respect to the applicant? [121] Normally the issue of an intentional delay that would constitute an abuse of process would be treated separately as an issue ofprocedural fairness and would not rely on a mandamus remedy. It is a separate cause of action that may give rise to remedies that includea stay of the grievance process, which would dispose of the remedial grievance. However, the Court, in interpreting this applicant’sargumentation, is not prepared to consider this issue as purely an issue of abuse of process.

The application is for a mandamus order andit is a remedy that is solidly based in the arguments presented. [122] The question for the Court, in assessing the applicant’s arguments, is whether an allegation of intentional delay may be taken asa factor that should be considered in a mandamus application and may correct other deficiencies in the application, such as theconsequences here of the applicant’s consent to several extensions and his choice not to exercise his right to have the file passed to theFA. [123] In my view, it is logical to accept the applicant’s submissions, with a view to supporting the integrity of the redress of grievanceprocess and in the interests of justice.

For example, if the applicant may demonstrate that the delays caused by the repeated applicationsfor extensions by the respondent were part of an intentional strategy aiming to exhaust him and motivate him to abandon his grievance,then his consent to the extensions should not pose an obstacle to a mandamus order in his favour. [124] Therefore, the issue is to apply the mandamus principles to a factual situation, without having to modify these principles.

I thinkthat the scenario before the Court is rare, even unique, because in most cases applicants would instead seek a stay of the grievanceprocess if they are able to show bad faith in the processing of their file. In this case, the manner of presenting the issue relies above all onthe self-represented applicant’s lack of legal knowledge, in an attempt to pose a complex issue in a specialized field. Further, he wouldlike the case to be decided by LGen Devlin in person, which would be exceptional for a grievance from an officer of his rank, sinceLGen Devlin was the commander of the land forces.

He made his application with this purpose. [125] Therefore, I ultimately agree that an allegation of bad faith or an abuse of process may excuse an applicant from having to showsome of the elements required for a mandamus order, when the factual situation leads to such flexibility.

(2) Do the facts of this case show abuse of power by the respondent in the delay caused by the release grievance? [126] The principles that govern the mandamus orders are set out in Apotex Inc v Canada (Attorney General), (FCA), [1994] 1 FC 742, [1993] FCJ No 1098 (FCA) (Apotex), especially at para 45. The decision of Justice Tremblay-Lamer in Conillev Canada (Minister of Citizenship and Immigration), (FC), [1999] 2 FC 33, [1998] FCJ No 1553 (QL) (TD) (Conille)is also very relevant to this case.

I quote the relevant excerpts as follows: Apotex at para 45: [45] Several principal requirements must be satisfied before mandamus will issue. The following general framework finds support inthe extant jurisprudence of this Court (see generally O’Grady v. Whyte, (FCA), [1983] 1 F.C. 719 (C.A.), at pages722-723, citing Karavos v. Toronto & Gillies, (ON CA), [1948] 3 D.L.R. 294 (Ont. C.A.), at page 297; and Mensingerv. Canada (Minister of Employment and Immigration), (FC), [1987] 1 F.C. 59 (T.D.), at page 66. . . . 3. There is a clear right to performance of that duty, in particular: . . .

b) there was (

i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright;and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; see O’Grady v. Whyte, supra, citingKaravos v. Toronto & Gillies, supra; Bhatnager v. Minister of Employment and Immigration, (FC), [1985] 2 F.C. 315(T.D.); and Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), supra. . . . 6. The order sought will be of some practical value or effect: Friends of the Oldman River Society v.

Canada (Minister of Transport), (FCA), [1990] 2 F.C. 18 (C.A.), per Stone J.A., at pages 48-52; affd (SCC), [1992] 1 S.C.R. 3, perLa Forest J., at pages 76-80; Landreville v. The Queen, [1973] F.C. 1223 (T.D.); and Beauchemin v. Employment and ImmigrationCommission of Canada (1987), 15 F.T.R. 83 (F.C.T.D.). . . . 8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue.

Conille at para 23: [23] From the reasons of the Court, it appears that three requirements must be met if a delay is to be considered unreasonable: (1) the delay in question has been longer than the nature of the process required, prima facie; (2) the applicant and his counsel are not responsible for the delay; and (3) the authority responsible for the delay has not provided satisfactory justification.

[ 127 ] Without the allegation of abuse of process related to the delay in processing the grievance, I would immediately reject the application for a mandamus . The applicant granted numerous extensions in a process that gives him the right to go up to the next level of review by simply refusing to continue to the first level. He then initiated an application for judicial review without communicating a last time with the grievance authority or declaring a clear time frame. [ 128 ] I do not consider the offer by the respondent to provide a decision in five or six weeks.

This offer was made after the submission of the notice of motion and should not be part of the tribunal record. It is in fact an offer of settlement agreement through which the respondent proposes to do what he should have done without waiting for the applicant and in a rather short period. Besides the offer to settle, I agree to consider the documents dated after the notice of application filed by the respondent because they also contain evidence supporting the applicant’s arguments.

If the Attorney General wants to put before the Court a document assisting the opposing party, I will not stop him. [ 129 ] Following the criteria in Conille , I find that the applicant meets the first and third part of the test. As regards the third factor, the respondent filed no evidence to justify the delay in this case. [ 130 ] For the first factor, I note that the time that the army commander took to process the release grievance is considerably longer than the time that the delegate took to process the remedial grievance.

The release grievance was first filed two months before the remedial grievance and it is much more important for the applicant. Indeed, the remedial grievance is essentially not applicable if the applicant does not succeed in the release grievance. Thus, a wait period of more than two years (

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