Beddows v. Canada (Attorney General)

Beddows v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-07-04
Neutral citation
2023 FC 919
File numbers
T-1683-21
Notes
A correction was made on August 22 2023
Digest
Decision Content
Date: 20230704
Docket: T-1683-21
Citation: 2023 FC 919
Ottawa, Ontario, July 4, 2023
PRESENT: Mr. Justice Pentney
BETWEEN:
MAJOR (RET'D) JOHN S. BEDDOWS
Applicant
and
ATTORNEY GENERAL OF CANADA Respondent
JUDGEMENT AND REASONS
I. Introduction [1] Major (ret'd) John S. Beddows served in the Canadian Armed Forces for 34 years. In November 2012, he was posted to Afghanistan where he served as J2 (the senior Intelligence Officer) with the Canadian Task Force as part of Operation ATTENTION, ROTO 2. As Major (ret’d) Beddows acknowledges, this was a difficult posting.
[2] In May 2013, Major (ret’d) Beddows was repatriated from Afghanistan prior to the scheduled end of his posting based on a report from his Commanding Officer, Colonel Steven MacDonald, which in turn referred to negative ratings based on events that occurred in theatre, as well as allegations of sexual harassment and a weapons offence that had been levelled against Major (ret’d) Beddows [Maj.(r) Beddows]. In March 2014, Maj.(r) Beddows filed a grievance, claiming that the process had been unfair and that his repatriation was unjustified. This launched the lengthy process that has landed his case before this Court.
[3] Following some procedural wrangling, which will be discussed in more detail below, the grievance was referred to the Military Grievance External Review Committee [the External Review Committee], which found that the allegations in his grievance were well founded, and recommended a variety of remedial steps. This report was referred to the Acting Chief of Defence Staff [A/CDS], General Wayne Eyre, for decision as the Final Authority [FA] in the grievance process.
[4] On October 18, 2021, the A/CDS issued his decision, which largely mirrors the External Review Committee’s findings. The specifics of the decision are discussed in greater detail below. At this stage, it is sufficient to note that the A/CDS found that Maj.(r) Beddows’ repatriation was unfair, and that his Commanding Officer [CO] and others generated several of the negative reports against him in order to build a case to justify the unwarranted decision to send him back to Canada, likely because of a personality conflict. The A/CDS also concluded that the proper process was not followed regarding the management of Maj.(r) Beddows’ performance of his duties, nor in the repatriation decision or the handling of the sexual harassment complaint. The A/CDS granted Maj.(r) Beddows many of the remedial measures he had requested.
[5] Maj.(r) Beddows seeks judicial review of the decision. He claims that the process was not fair, several of the findings made – and not made - by the A/CDS, are not consistent with the evidence in the record, and he also questions whether the A/CDS had the legal authority to act as FA in his case, because the National Defence Act, RSC 1985, c N-5. [NDA], reserves that authority to the CDS.
[6] The core of Maj.(r) Beddows’ position is that in light of the wrongdoing that was found by the A/CDS, the Canadian Armed Forces [CAF] should be required to take the necessary steps to fully and finally clear his name, to restore his reputation, and to undo some of the harm that was caused to him and his family. He also wants to ensure that those who have wronged him are held accountable for their actions, through appropriate military investigations according to the rules and standards that govern their conduct.
[7] After carefully reviewing the record, and considering the submissions made by the parties and having given the matter considerable and careful deliberation, I am granting his application for judicial review in part. I find that the A/CDS’s failure to explain why he did not order any financial compensation, or direct that a public letter of apology be provided to be unreasonable. While I am not persuaded that the process was unfair or that other aspects of the decision are unreasonable, as that term is understood under the Canadian law of judicial review, I have concluded that the absence of any analysis of these two elements is unreasonable, in view of the fact that they were central aspects of Maj.(r) Beddows’ claim from the very beginning.
[8] In the reasons that follow, I will lay out the history and background of this case in more detail, and then review the issues and legal framework that applies, before turning to a review of the evidence and arguments submitted by the parties.
II. Background [9] On June 21, 1986, Maj.(r) Beddows enrolled in the Canadian Armed Forces, and at the relevant period for the matter before the Court, he was serving as an Intelligence Officer at the rank of Major.
[10] On November 2, 2012, Maj.(r) Beddows was posted to the J2 position with the National Command and Support Element and deployed to Afghanistan in Operation ATTENTION, ROTO 2. During that posting, a number of events occurred that resulted in his repatriation from Afghanistan earlier than its scheduled end. The timing and sequence of events is important, for reasons that will become clear below, and therefore it is important to review this in some detail.
[11] In December 2012, one of Maj.(r) Beddows’ subordinates shared his password(s) for accounts on the classified network system that the Intelligence Section used, so that other members of the section would have access while he was on leave. Although sharing of passwords was against CAF communication security policy, the practice developed during the previous ROTO, and Maj.(r) Beddows had authorized it to ensure timely access to intelligence information in situations where personnel were absent. This breach of policy resulted in an investigation. Subsequently, a common email account was created for the J2 section and Maj.(r) Beddows directed that the practice of sharing passwords cease.
[12] Toward the end of January 2013, a member of the J2 section under Maj.(r) Beddows’ command reported to the Camp Sergeant Major [CSM] that he was frustrated with Maj.(r) Beddows’ leadership, and that there were morale issues in the section. The CSM decided to appoint one of Maj.(r) Beddows’ subordinates as the new J2 Sergeant Major and directed him to conduct an informal investigation into the situation in the section and to meet with Maj.(r) Beddows to inform him of issues that needed to be addressed.
[13] Several events occurred on April 28, 2013 that set the stage for the decision to repatriate Maj.(r) Beddows. First, a sexual harassment complaint naming him as the wrongdoer was submitted to Maj.(r) Beddows’s CO. The essence of the complaint is that Maj.(r) Beddows allegedly made comments about the female complainant's appearance and stared at her inappropriately, making her feel uncomfortable. The complainant alleged that she no longer felt comfortable being in the same room with him, even when other people were around. Maj.(r) Beddows did not receive a copy of this complaint at this time, but he was advised of it by his CO.
[14] Second, Maj.(r) Beddows was issued a Personal Development Report (essentially a performance evaluation) that noted several strengths as well as areas for development. Third, he was issued a Recorded Warning for performance deficiency relating to his failure to take action as the Commander of the J2 section to stop the sharing of passwords for the classified network. Although the RW notes that the issue had already been addressed, Maj.(r) Beddows was directed to take a more active role as leader of his section to prevent any further breaches of communication security policy.
[15] Maj.(r) Beddows says that on the following day he was removed from his position as J2, his personal weapons were confiscated, and he was directed to not have any further contact with his former subordinates.
[16] On May 3, 2013, Maj.(r) Beddows received a Notice of Intention to Initiate Repatriation, which stated that it was based on the Personal Development Report and the Recorded Warning that had been issued to him on April 28, 2013. The next day, a Military Police investigation was commenced regarding Maj.(r) Beddows' alleged misuse of his weapon. He was said to have drawn his pistol and waved it at his personal computer on or about March 10, 2013.
[17] Two days later, on May 5, 2013, Maj.(r) Beddows submitted his written response to the Repatriation Notice, stating that the Personal Development Report and Recorded Warning had only been issued six days prior to the issuance of the Notice and so he had not had time to address any of the issues raised in the Development Report, and the password-sharing incident that formed the basis for the Recorded Warning had been addressed four months earlier. He argued that these issues were not a sufficient basis to warrant repatriating him from the posting. In addition, Maj.(r) Beddows stated that the other allegations mentioned by the CO (referencing the sexual harassment allegation and the alleged misuse of a weapon incident) had not been disclosed to him in writing, and therefore he was unable to respond to them. Maj.(r) Beddows did not request reinstatement to the J2 position but instead asked that he be allowed to remain in theatre at a different location until the investigations into these allegations were completed.
[18] The following day, May 6, 2013, the CO submitted a Repatriation Request Form to the Commander of the Canadian Contribution Training Mission – Afghanistan, stating: “[Maj.(r) Beddows] has been displaying below average leadership and poor decision making resulting in a loss of confidence from his subordinates and superiors.” That same day, the CSM and the subordinate he had asked to conduct the investigation into the section’s morale provided written statements regarding the issues and actions taken in late January 2013. The CSM’s report noted that after the subordinate’s investigation and meeting with Maj.(r) Beddows, he had noted a major improvement in the attitude and morale of personnel in the section.
[19] On May 7, 2013, the CO issued a Security Clearance Reliability Status Change of Circumstance Report, stating that the Chain of Command had determined that Maj.(r) Beddows had exercised poor judgment and a lack of trustworthiness. As a consequence of this, Maj.(r) Beddows was denied access to all network computer systems in theatre with the exception of the Defence Wide Area Network.
[20] The following day, May 8, 2013, Maj.(r) Beddows submitted a response to the CO’s repatriation request. He argued that the issues raised in the Development Report and Recorded Warning had been addressed and the allegations, which were apparently under investigation, were unproven and should not lead to his repatriation. Despite this, Maj.(r) Beddows indicated that, given all of the circumstances, he believed it was not in his or his family’s best interest for him to remain in theatre, and he requested a Category A repatriation (for career or administrative activities instead of Category D (a repatriation when the member’s continued presence is or could potentially be detrimental to the operational effectiveness of the deployed force).
[21] On May 9, 2013, a Category D Repatriation Order, signed by the Commanding Officer, Canadian Contribution Training Mission – Afghanistan, was issued to Maj.(r) Beddows ordering his immediate repatriation. The Order stated that Maj.(r) Beddows’ Chain of Command had lost confidence in his ability to perform effectively in theatre and that the circumstances met the criteria for a Category D repatriation.
[22] The following day, May 10, 2013, Maj.(r) Beddows was repatriated from Operation ATTENTION – ROTO 2.
[23] To complete the background, it is necessary to outline the steps taken on the harassment complaint and the investigation into the alleged misuse of a weapon.
[24] On the harassment complaint, although the complaint was dated April 28, 2013, Maj.(r) Beddows only received a copy on June 3, 2013, after his repatriation to Canada. Following some back and forth over who would take responsibility for dealing with the complaint, it was decided that Canadian Joint Operations Command Headquarters would take the lead. On January 21, 2014, Maj.(r) Beddows received clarification on the four allegations of harassment to which he was asked to respond. He provided his response on February 5, 2014, denying all of the allegations.
[25] On March 7, 2014, the investigation into the harassment complaint was closed, finding that harassment did not occur. The report indicated that following a situational assessment, three of the four allegations were found to not meet the criteria for harassment, and that there was insufficient evidence to conclude that the fourth incident had occurred. On that basis, the CO responsible for the matter found that harassment had not occurred, and closed the file. However, the Officer went on to "remind [Maj.(r) Beddows] to be conscious of his actions and comments and think about how they may be interpreted negatively, regardless of his intent."
[26] Regarding the alleged weapons offence, on October 2, 2013, the Military Police investigation found that the incident was “Founded Not Cleared”, and there is no indication of any follow-up being taken in relation to the incident.
[27] As noted earlier, Maj.(r) Beddows filed a grievance about his repatriation on May 26, 2014. He said that his CO in theatre had a bias against him as demonstrated by his dismissive and disrespectful treatment of him in front of his subordinates. Maj.(r) Beddows provided statements from colleagues in theatre confirming this pattern of mistreatment by the CO. He argued that this bias tainted the way the CO handled the allegations made against him regarding his performance, as well as the sexual harassment allegation and the alleged weapons incident. Maj.(r) Beddows sought a variety of measures to repair the damage done to his reputation and career.
[28] In early November 2014, the Initial Authority rejected Maj.(r) Beddows’ grievance because it had been submitted six months past the time limit. Maj.(r) Beddows then submitted additional information explaining why he delayed filing his grievance, and requested that it be accepted in the interests of justice. Maj.(r) Beddows explained that he had previously submitted a written a request for Redress of Grievance, which therefore met the time limit for submission. In February 2015, the Final Authority rejected Maj.(r) Beddows’ grievance because it was filed after the time limit. Maj.(r) Beddows sought judicial review of this decision, and in October 2015, this Court granted his application and returned the matter for reconsideration by a different decision-maker. The Federal Court of Appeal upheld the outcome of this decision in November 2016, but for different reasons (which are not relevant to the current matter). The Court of Appeal returned the matter to the CDS for reconsideration, but did not award costs.
[29] Maj.(r) Beddows then filed a second grievance on February 17, 2017, seeking reimbursement for his legal fees associated with the appeal of the refusal to accept his first grievance. This was denied by the CDS acting as FA, and Maj.(r) Beddows’ application for judicial review was refused by this Court and his appeal to the Court of Appeal was dismissed.
[30] On May 5, 2017, Maj.(r) Beddows’ original grievance regarding his repatriation from Afghanistan was referred to the External Review Committee. Its decision, issued on February 21, 2018, is largely mirrored by the final decision of the A/CDS, which is reviewed in some detail in the next section, and so it will not be reviewed here. At this point, it is sufficient to note that the Committee largely agreed with the claims set out in the grievance, and recommended a range of remedial measures to redress the harms done to Maj.(r) Beddows.
[31] One final point should be mentioned noting here: on October 10, 2020, Maj.(r) Beddows retired from the CAF and ended his military service.
[32] With this background, we turn to the decision of the A/CDS on Maj.(r) Beddows’ grievance.
III. Decision Under Review [33] On October 18, 2021, the A/CDS acting as FA in the grievance process issued his decision upholding Maj.(r) Beddows’ grievance and granting a number of remedies that he had sought. This decision forms the basis for the application for judicial review before the Court.
[34] The decision begins by describing Maj.(r) Beddows’ grievance: “You contend that your removal and repatriation were unsubstantiated and inappropriate, and that, as a result, your career and reputation suffered grievous harm.” The decision then outlines the redress sought, before tracing the most recent aspects of the procedural history, noting that Maj.(r) Beddows had the opportunity to make submissions to him on the Review Committee’s report and recommendations. The A/CDS confirmed that as the FA, he had considered the case de novo: “In other words, any previous decision has been set aside, and I have made a new determination on the matter…”
[35] The A/CDS indicated that despite the fact that the grievance was originally filed beyond the legislated time limit, he had decided to accept it, in the interests of justice. The decision then sets out a succinct summary of the findings:
After considering your grievance, I determine that you have been aggrieved and I am prepared to partially grant the redress you seek. I find that in addition to not being accorded the procedural fairness that is warranted, there is a discrepancy between the facts concerning the timing of events and the allegations that you "[had] been displaying below average leadership and poor decision making[,] resulting in a loss of confidence from [your] subordinates and supervisors."° As such, I find that, on a balance of probabilities, the manner in which you were repatriated to Canada was unfair. Consequently, I am prepared to grant redress to remedy your situation as best I can.
[36] The A/CDS then listed the remedies he was granting, including re-categorizing the repatriation to a Category A, removing the Personal Development Report and Recorded Warning from Maj.(r) Beddows’ personnel file, and removing other records relating to the deployment, including the harassment complaint and investigation.
[37] The A/CDS’s key findings can be grouped under the relevant incidents or actions that relate to the grievance, which are set out below.
A. The Repatriation decision [38] The A/CDS finds that the decision did not comply with CAF policy because Maj.(r) Beddows was denied procedural fairness in that he was not provided with sufficient information about all of the grounds relied on in making the decision, nor was he provided a reasonable opportunity to provide representations. The decision goes on to state:
Moreover, I find, as did the Committee, that much of the reasoning used to reach their decision is seriously flawed and that it was more likely than not influenced by a negative personal bias held against you by your superior. I agree with the Committee that the chain of command's lack of proper and timely intervention raises doubts as to the necessity and urgency to repatriate you months after many of the events had occurred. As a result, I determine that you have been aggrieved by the maladministration of your repatriation from theatre.
B. Was repatriation justified in the circumstances? [39] The A/CDS conducted an independent review of the grounds on which the repatriation decision was based.
[40] Starting with the Recorded Warning, the A/CDS found that CAF policy was not followed because it was not issued within a reasonable period of time after the password-sharing incident, and Maj.(r) Beddows was not given time to overcome any identified deficiencies, since the Notice of Intention to Repatriate was issued to him the day after he received the Recorded Warning. The delay between the incident and the Warning, contrasted with the speed with which it was followed by the Repatriation Notice, led the A/CDS to question the intent behind it. The A/CDS agreed with the External Review Committee that “it is more likely the chain of command issued you the Recorded Warning to ‘build a case’ to support their predetermined decision to repatriate you from theatre.” In addition, the A/CDS noted that Maj.(r) Beddows had taken proactive steps to find a technical solution to the problem he had inherited from the previous rotation, and had rectified it. The Recorded Warning was therefore null and void, and the A/CDS ordered it to be removed from Maj.(r) Beddows personnel files.
[41] On the merits of the decision to repatriate Maj.(r) Beddows, the A/CDS noted that four main reasons were cited by Maj.(r) Beddows’ chain of command to justify the decision: the password-sharing event; concerns regarding Maj.(r) Beddows’ leadership of the J2 section; the harassment complaint; and the weapons incident. In light of his previous findings that the Recorded Warning was null and void, the A/CDS stated he would not consider the password-sharing incident in assessing the repatriation decision.
[42] Regarding the issues of morale and dissension in the J2 section, the A/CDS listed his concerns with the approach that was taken to address these matters. The fact that the CSM took it upon himself to appoint one of Maj.(r) Beddows’ subordinates as the J2 Sergeant Major, and then directed him to conduct an investigation and meet with Maj.(r) Beddows to discuss these issues, gave rise to three concerns. First, it likely undermined Maj.(r) Beddows’ credibility as a leader in the eyes of his subordinates. Second, the CSM overstepped his bounds: “It was highly unprofessional, not to mention inappropriate, to have a subordinate conduct an investigation into your leadership and then proceed to counsel you on your shortcomings.” Third, the A/CDS found that Maj.(r) Beddows’ supervisor had a personal bias against him, which manifested in part by being distant and failing to provide support, guidance, or mentorship. The A/CDS noted that Maj.(r) Beddows had taken some responsibility for the leadership challenges he encountered early on in the deployment, but also that he had worked to overcome them. The improved morale within the section was noted by the CSM in his report to the CO.
[43] The A/CDS expressed some concern that Maj.(r) Beddows was not aware of the morale problems in his section, stating that “(a)s a leader, you ought to have sensed that morale was poor in your organization and taken proactive measures to correct it”. Despite this, he concluded that this did not excuse the actions taken by the chain of command, which he found had “severely undermined [Maj.(r) Beddows’] ability to effectively lead [his] section and that the situation deteriorated as a result.”
[44] In relation to the harassment complaint, the A/CDS determined that Maj.(r) Beddows’ chain of command in theatre had mishandled the matter, and that the severity of the allegations were “greatly exaggerated and that they were used as a means to support and justify your repatriation.”
[45] Finally, on the weapons misuse incident, the A/CDS noted that the allegation was that Maj.(r) Beddows had unholstered his pistol and waved it at his computer on March 10, 2013. However, the incident was not reported until May 4, 2013, and when asked why, the member who witnessed it stated that he had not viewed Maj.(r) Beddows as dangerous and he did not want to put himself in a position that could be perceived to be a conflict of interest. However, the member stated, “[a]fter talking to the [CSM], he convinced me to report the incident because Maj Beddows had several complaints against him from different members…”
[46] The A/CDS noted that the Military Police investigation did not result in any charges, but rather the matter was “Founded Not Cleared”, which he understood to mean that the events occurred as described. While acknowledging that any weapons offence is serious and cannot be condoned, the A/CDS found that “the act of soliciting the report almost two months after the incident had occurred to be evidence that your chain of command was building a case to justify their predetermined decision to have you repatriated.” He concluded that the incident, as reported, was insufficient to justify Maj.(r) Beddows’ repatriation.
[47] As for Maj.(r) Beddows’ allegation that he had been subject to harassment by his supervisor, LCol MacDonald, the A/CDS found that no harassment complaint was filed about these alleged incidents, and thus he was not in a position to render a decision on that aspect of the matter.
[48] Having concluded that Maj.(r) Beddows had been mistreated by his chain of command, and that his repatriation from Afghanistan was not justified, the A/CDS turned to the appropriate redress. Noting that Maj.(r) Beddows had submitted a lengthy, detailed and growing list of requested redress measures, the A/CDS found that the ultimate decision rests with him as the FA in the grievance process. The following remedies were ordered:
Repatriation Category: will be changed from “D” to “A” and all documentation concerning the original repatriation decision to be removed from Maj.(r) Beddows’ files;
Removal of Documentation: all documentation pertaining to Maj.(r) Beddows’ early repatriation will be removed from his files; in addition, the Recorded Warning, Personal Development Report and Security Clearance/Reliability Status Change of Circumstances Report are removed from his files;
[49] The A/CDS declined to order a number of redress measures that Maj.(r) Beddows had requested, including:
Requests for Investigation: the A/CDS refused to order investigations into the conduct of Maj.(r) Beddows’ former CO and the complainant in the harassment investigation. On the harassment allegation, the A/CDS stated:
With respect to the harassment complainant, I see no reason to initiate an investigation into the complainant's conduct. I realize that you were taken aback and were personally affronted by the submission of her complaint against you. However, l must remind you that it was her fundamental right to submit such a claim. While, in this instance, the harassment complaint process was fraught with errors, I find that the complaint process was eventually concluded in accordance with policy
In relation to the conduct of Maj.(r) Beddows’ former supervisor, the A/CDS concluded:
…I see no evidence in your file that would lead me to conclude that [LCol MacDonald’s] actions were malicious or criminal in any way. I find that, on a balance of probabilities, the personality conflict between the two of you led to an erosion of trust and seeded his loss of confidence in, and bias towards, you. Once confidence and trust are lost, they are extremely difficult to regain. For this reason, and based on the fact that these events occurred more than nine years ago, I see little value in ordering an investigation at this time and will therefore not order one.
Theatre Personnel Evaluation Report/Reconvening of 2013 Merit Board: Maj.(r) Beddows claimed that these events harmed his opportunity for promotion, and asked that the 2013 Merit Board be reconvened to properly assess his performance and potential. The A/CDS agreed that the 2012-2013 Performance Evaluation Report was likely tainted by the unfair treatment, and ordered that it be removed from his files and replaced with a Report showing that Maj.(r) Beddows was exempt from evaluation during this period. Based on this, the A/CDS also directed that an assessment take place to determine whether a supplementary Merit Board was required, but declined to call one immediately.
Financial Compensation: Maj.(r) Beddows had requested the pay, allowances, and financial benefits he lost as a consequence of the early repatriation, including the tax-free status he lost by being forced to leave Kabul, Afghanistan early. The A/CDS declined to grant this, because he “[does] not have the authority to grant pay, allowances and financial benefits under these circumstances.”
Opportunity to Share Lessons Learned: Maj.(r) Beddows had asked to be given a formal opportunity to contribute to the ROTO 2 After Action Report and lessons learned, however, the A/CDS found that this had been rendered moot by the significant passage of time and the end of the Canadian mission in Afghanistan.
Request for Promotion and Restoration of Credibility and Reputation: Maj.(r) Beddows had requested a promotion to the rank of Lieutenant-Colonel, with an effective date of January 1, 2016. Noting that competition for promotion to LCol is intense, and based on his review of Maj.(r) Beddows’ performance reports from before and after his deployment, the A/CDS concluded that he would not have scored high enough for promotion in 2016. While the A/CDS recognized that based on his review of the file, Maj.(r) Beddows was a strong performer with strong potential, he also noted “some self-admitted lapses in leadership during [Maj.(r) Beddows’] deployment.” Overall, the A/CDS found that Maj.(r) Beddows’ performance evaluations were “progressive and strong, but they were not exceptional.” Based on this, he declined to order a promotion.
[50] In summary, the A/CDS acknowledged that he had not granted Maj.(r) Beddows all of the redress he had sought, but stated, “I sincerely believe that what I have granted you is fair.”
[51] Maj.(r) Beddows seeks judicial review of this decision.
IV. Issues and Standard of Review [52] Maj.(r) Beddows raises three main issues: that the decision is unreasonable on several different grounds; that he was denied procedural fairness because of a failure to make full disclosure; and that the A/CDS did not have the legal authority to make the decision in question. This is a useful way to group the submissions that Maj.(r) Beddows put before the Court, and I will address them in that order.
[53] The standard of review that applies to the merits of the decision is reasonableness, under the framework set out by the Supreme Court of Canada in Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
[54] There are many dimensions to judicial review under the reasonableness standard as articulated in Vavilov and applied in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 [Canada Post]. The most important guideposts for this case are that the review must begin with the reasons for decision, and assess whether the decision-maker (here, the A/CDS) applied the right law to the important facts of the case, and whether the decision-maker's chain of reasoning is internally coherent and rational. Put another way, the relevant law and the key facts of the case establish the space within which the decision must be made (Vavilov at paras 85, 99; Canada Post at para 31). If a review indicates that the decision-maker went outside of that box, by applying the wrong law, or not taking into account the most important relevant facts, then the decision may be found to be unreasonable.
[55] In addition, the process of analysis must show that the decision is justified. This includes whether a reviewing court can follow the internal logic of the decision and understand how the decision-maker came to its conclusion (Vavilov at paras 81, 85). One way of describing this was set out by Justice Rennie in Komolafe v Canada (Citizenship and Immigration), 2013 FC 431 at paragraph 11, when he stated that a reasonable decision is one where a reviewing court can “connect the dots on the page [so that] the lines, and the direction they are headed, may be readily drawn.” If there are no dots, or their direction is not clear, then the decision may well be found to be unreasonable.
[56] The burden is on the Applicant to satisfy the Court “that any shortcomings or flaws relied on… are sufficiently central or significant to render the decision unreasonable” (Vavilov at para 100, cited with approval in Canada Post at para 33). A reviewing court is not to supplement its own reasons or make findings of fact that were not made by the decision-maker (Vavilov at para 97).
[57] In addition, prior case-law has confirmed that the CDS is entitled to a high degree of deference from the reviewing Court: Higgins v Canada (Attorney General), 2016 FC 32 at paras 75-77, followed in Bond-Castelli v Canada (Attorney General), 2020 CF 1155 [Bond-Castelli] at para 31, followed in Filizola v Canada (Attorney General), 2021 FC 1368 [Filizola] at para 45. Under this approach, “a wide margin of appreciation must be accorded to the FA in exercising its grievance jurisdiction” (Bond-Castelli at para 31, followed in Filizola at para 45).
[58] Questions of procedural fairness attract a standard that is similar to correctness. The ultimate question to be answered by a reviewing Court is whether the procedure was fair in all the circumstances, and that this is similar to correctness review (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [Canadian Pacific] at paragraphs 54 and 56.
[59] On the issue of whether the A/CDS acted beyond his statutory authority in making the decision under review, no standard of review will be applied because the matter is being raised for the first time before the Court. Maj.(r) Beddows raises a binary question: either the A/CDS had the requisite authority or he did not..
[60] One final administrative matter arose regarding the style of cause. The style of cause will be amended, with immediate effect, to reflect that the appropriate respondent in this matter is the Attorney General of Canada, rather than “Canada (Attorney General) as representative of General Wayne Eyre, Acting Chief of Defence Staff of the Canadian Armed Forces”. This has no practical impact on the nature or scope of the proceeding, nor does it limit the remedies the Court can award if it upholds the application.
V. Analysis A. Is the decision unreasonable? [61] Maj.(r) Beddows submits that the decision is unreasonable because:
i. the A/CDS’s finding that his CO did not act with “malice” is not consistent with the evidence;
ii. the extraordinary delay in the process has compounded the injustice and demonstrates both a failure to apply the law and bad faith on the part of the Chain of Command; and
iii. the failure to provide him full redress has perpetuated the wrongdoing.
[62] I will discuss these claims in turn, starting with a summary of the parties’ arguments before conducting my own analysis.
(1) The finding that the CO did not act with malice [63] Maj.(r) Beddows argues that the reasoning behind the finding that LCol MacDonald did not act with malice is seriously flawed and cannot be allowed to stand. He contrasts the ongoing reputational damage he and his family have suffered with the fact that LCol MacDonald received a prestigious posting to Washington D.C., despite the findings made by the A/CDS.
[64] In connection with his grievance, Maj.(r) Beddows had asked for an investigation into the “actions, conduct and treatment” of LCol MacDonald to determine whether his treatment, including his actions towards Maj.(r) Beddows and execution of administrative processes to repatriate him satisfied the criteria for breach of service discipline, including criminal harassment and abuse of subordinates as defined by the Queen’s Regulations and Orders [QR&O].
[65] Maj.(r) Beddows notes that the A/CDS found that the actions of LCol MacDonald were motivated by bias, involved an attempt to bolster a pre-determined decision by soliciting reports and complaints from Maj.(r) Beddows’ subordinates, and exaggerated the gravity of the allegations made against him, all of which was contrary to CAF rules and policies. In light of these findings, Maj.(r) Beddows submits that the conclusion that LCol MacDonald did not act with malice cannot stand. He says that he was the J2 for ROTO 2, the Senior Intelligence officer for the mission, and was wrongfully removed from this career-defining posting in an unwarranted and unfair manner. At the hearing, Maj.(r) Beddows stated that these actions are the very definition of malice.
[66] In support of his argument that the wrongdoing by LCol MacDonald was more than sufficient to warrant an investigation, Maj.(r) Beddows points to the evidence of colleagues who observed the CO’s treatment of him during the deployment. These statements corroborate his claims that he was mistreated by his CO, who treated him in a demeaning manner and criticized him openly in front of subordinates, all of which is contrary to CAF policy. Maj.(r) Beddows claims that the evidence supports the conclusion that LCol MacDonald deceived his superiors when he advanced the Repatriation Report based on complaints he had instigated, and whose gravity he greatly exaggerated. He says that the Chain of Command did not catch this or prevent it, and so they acted on the basis of these unjustified claims.
[67] Maj.(r) Beddows submits that the A/CDS’s decision softens the findings of the External Review Committee regarding the sexual harassment complaint. The decision fails to mention that the Committee Report found that the “essential elements of a [sexual harassment] complaint… are not present, nor do the allegations, as stated, meet the definition of harassment, in my view.” He argues that by not referring to the totality of the External Review Committee’s findings, the A/CDS failed to give proper effect to the misuse of the harassment process that was relied on by his Chain of Command in the repatriation process.
[68] Additionally, Maj.(r) Beddows submits that the A/CDS’s finding that he had not submitted a harassment complaint relating to LCol MacDonald’s conduct was wrong. He points to the copy of the harassment complaint he filed that is in the record before the Court.
[69] Based on the totality of this, Maj.(r) Beddows argues that the finding that LCol MacDonald did not act with malice is unreasonable, and this is important because the A/CDS cited this as a basis for not ordering an investigation into the CO’s conduct. On this point, Maj.(r) Beddows asked the Court to issue a directed verdict requiring the FA to make findings that his CO had acted with deliberate malice against him, that the decision be changed to state this clearly and unequivocally, and that all documents prepared by the CO must be assessed on that basis.
[70] The Respondent contends that the decision is reasonable, noting that it is a lengthy, detailed, and thorough review of Maj.(r) Beddows’ grievance, which largely upheld his complaints. As a general matter, the Respondent asserts that the redress granted by the A/CDS is responsive to his findings about the circumstances surrounding Maj.(r) Beddows’ repatriation from theatre.
[71] On the specific issue of the failure to find malice, the Respondent points out that the A/CDS clearly found that the manner in which Maj.(r) Beddows was repatriated from Afghanistan was not in accordance with CAF policies, and was based on flawed reasoning that was more likely than not influenced by a negative personal bias. The Respondent argues, however, that while the A/CDS acknowledged he had the authority to order an investigation, he found that there was no evidence that LCol MacDonald’s actions towards Maj.(r) Beddows were “malicious or criminal in any way.” Instead, he found that the mistreatment Maj.(r) Beddows experienced was the result of a personality conflict, which led to his CO’s loss of confidence in and bias towards him. Because of this and the fact that the incident had occurred nine years ago, the A/CDS declined to order an investigation, a decision that the Respondent submits was reasonable in the circumstances.
[72] Dealing with the specific claim about the lack of a finding of malice, the Respondent argues that “malice” and “