Higgins v. Canada (Attorney General)

Higgins v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2016-01-08
Neutral citation
2016 FC 32
File numbers
T-2361-14
Decision Content
Date: 20160108
Docket: T-2361-14
Citation: 2016 FC 32
Ottawa, Ontario, January 8, 2016
PRESENT: The Honourable Madam Justice Elliott
BETWEEN:
CORPORAL J.J. HIGGINS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This is a judicial review of the decision dated September 22, 2014 by Colonel J.R.F. Malo of the Canadian Armed Forces (CAF) acting as Final Authority (FA) in which the Applicant was granted most, but not all, of the redress he sought in his grievance dated December 5, 2011.
[2] At the commencement of the hearing a motion to change the name of the Respondent to the Attorney General of Canada was granted. Otherwise, there were no preliminary matters.
I. Background [3] The Applicant is a corporal in the CAF who, at the time of the incidents at issue, was serving as a Second Lieutenant in the Reserve Force Cadet Instructor Cadre for the Cadet Administration and Training Service (COATS). COATS officers act as adult supervisors to non-military youth members of the Cadet program. The precipitating event was his suspension from 40 (Snowbird) Royal Canadian Air Cadets Squadron (RCACS) on August 30, 2011.
[4] On September 6, 2011 the Applicant filed a complaint of harassment and abuse of authority against his Commanding Officer (CO) and another officer, both of whom had had discussions with him concerning improper interactions he was alleged to have engaged in with cadets. His alleged failure to correct his actions precipitated his suspension. Unsatisfied with the report of the investigation of his complaint, the Applicant filed a grievance on December 5, 2011. He transferred to the Regular Forces (RF) the following day.
[5] The Applicant has persistently denied all allegations which led to his suspension. He grieved both the fact that he was suspended and the actions of his CO. He alleged the CO had failed to adhere to basic tenants of the principles of military procedural fairness and conducted a flawed investigation into his harassment complaint.
II. The Allegations, Complaint, and Grievance A. The Allegations against the Applicant [6] There were various allegations against the Applicant. They fall into two broad categories, one being inappropriate activities or conduct with cadets and the other being disrespecting or going outside of the Chain of Command (COC).
[7] During 2010 and 2011, the Applicant’s CO received a variety of complaints from parents of cadets about the Applicant’s conduct with their cadets outside of regular hours including such things as going for coffee with cadets, emailing cadets, contacting them through social networking sites, exchanging emails with them and inviting them to fly with him on his airplane. He also befriended some of the parents, which was viewed by his COC as an attempt to circumvent the requirement that the Applicant not engage with cadets outside of work hours. There was an allegation that the Applicant served alcohol to an underage cadet at the Applicant’s home and then allowed that cadet to drive home. Another allegation was that the Applicant took five cadets swimming after his request to do so was denied by the civilian oversight committee.
[8] In particular the Applicant denied using social media to contact the cadets. He vigorously denied having cadets to his house, serving them alcohol and watching a movie with them. As one of the complaints was that the Applicant was contacting cadets through his Facebook account, the Applicant demonstrated to his CO, that no cadets were friends on his Facebook account. The CO confirmed this to the Applicant by email on March 17, 2010.
[9] The Applicant was warned both verbally and in writing on a number of occasions to cease engaging in the conduct alleged although he never admitted to having so engaged. There were also concerns expressed to him that he was acting outside the COC by speaking with parents and others directly about internal COATS matters.
B. The Complaint [10] The Applicant’s complaint was submitted to the CO of Regional Cadet Support Unit (Prairie) (RCSU (Pra)). It alleged his CO and ACO were procedurally unfair to him, which resulted in harassment and abuse of authority in that they failed to provide him with specifics or evidence to support the various allegations regarding his interactions with cadets.
[11] The Training Services Officer RCSU (Pra) was assigned to investigate the complaint. On October 3, 2011 the Applicant submitted further information and documentation to support his complaint including emails and accounts of anecdotal evidence.
[12] On November 1, 2011 a 4 page investigation report was released. It acknowledged the Applicant’s complaints of harassment and procedural fairness but did not directly address them. The report found the Applicant had demonstrated conduct deficiencies over a long period of time and “given the number of times he had been counselled between 2 Mar 10 and 16 Feb 11 it is reasonable to expect that on 30 Aug 11 2Lt Higgins would have been aware of the reasons that he was being asked to leave the squadron”. The investigation recommended, amongst other things, that the reasons for his removal be reiterated to the Applicant and that he be placed on Initial Counselling (IC) regarding expectations about his responsiveness to the direction of superior officers and his personal relationships with cadets. IC is a form of administrative action meant to formally record and provide the mentorship framework necessary to address conduct deficiencies.
[13] The investigation concluded that the Applicant had failed to respond to repeated attempts to assist him in overcoming the deficiencies noted. The report found the Applicant should be allowed to continue to serve, but in another unit as there had been an “irreversible effect on the trust between him and the CO.” (sic)
C. The Grievance [14] On December 5, 2011, the Applicant initiated a grievance contending that his COC did not adhere to basic principles of procedural fairness, did not properly investigate his harassment complaint, lied to the officer who reviewed his complaint and improperly distributed protected information about him. The grievance included a statement that the errors could not be cured by a subsequent review.
[15] Effective December 6, 2011, the Applicant re-enrolled in the regular component of the CAF. Ultimately it was determined by the Chief of Defence Staff (CDS) that this action rendered moot many of the issues raised in the Applicant’s grievance.
[16] On April 16, 2012, as a result of new information received through the disclosure process, the Applicant amplified his grievance to add requests that certain communications and documents be removed from his files and destroyed and that the CO and other officers of RCACS be subjected to administrative and/or disciplinary measures because confidential information about the Applicant was distributed improperly.
[17] The amplified grievance is the one which the CDS determined. It is the document underlying the decision which is the subject of this review application.
III. The CAF Grievance Procedure [18] The Applicant has alleged procedural unfairness. It is appropriate therefore to review the nature of the grievance procedure established by the CAF. The right to grieve and the grievance procedure prescribed for the CAF is set out in section 29 of the National Defence Act, R.S.C, 1985, c. N-5 (Act) and chapter 7 of the Queen’s Regulations and Orders for the Canadian Forces. They are supplemented by a Defence Administrative Order and Directive (DAOD) being DAOD 2017 - 1, Military Grievance Process which is an order that applies to all officers and non-commissioned members of the CAF. As such it is an integral part of the grievance system.
[19] There is also a Grievance Manual issued by the Director General, Canadian Forces Grievance Authority (DGCFGA) which was developed to assist in the preparation and submission of grievances. The manual explains what may and may not be grieved, the roles played by various parties in a grievance, including the Canadian Forces Grievance Board (CFGB) as it then was but which is now known as the Military Grievances External Review Committee. The manual sets out, in a fair level of detail, the process which will be followed with an explanation of each step. The manual clearly states it is not a legally authoritative document and has no force of law. It is merely a guide.
[20] The CAF grievance procedure is thorough and detailed as one would expect of a military organization. There are only two levels within the process with the authority to grant or deny a grievance. One is the Initial Authority (IA), which is usually the CO and the other is the FA, which is the CDS or, as in this instance, his delegate. If a grievor is dissatisfied with the decision of the IA they have the right to have the matter sent to the CDS for final determination. Assisting the CDS is the DGCFGA which provides analysis of the grievance and makes non-binding recommendations. On occasion, as was the case here, the CFGB also makes a report to the CDS. The CFGB is an external, independent, and arm’s-length legal body mandated under the Act to investigate and review grievances referred to it by the CDS. The CFGB provides findings and recommendations to the CDS who, under subsection 29.13(1) of the Act, is not bound by any finding or recommendation but shall provide reasons if they do not act on a finding or recommendation of the CFGB.
[21] The grievance process with which the IA and CDS engage does not include hearing witnesses, examining or cross-examining on affidavits or documents. It is purely a written, documentary process where all the evidence considered is in writing. A procedural fairness requirement is contained in DAOD 2017-1, which orders that “the grievor has the right to be provided with all relevant documents and other information to be considered by a redress authority, to comment on this information, and to receive a well-explained, timely and impartial determination of their grievance.”
[22] The documentary process that was followed in this case was extensive. It included creating and sending to the Applicant at both the IA and FA stages disclosure documents and a grievance synopsis then receiving from him one or more detailed written responses. A similar process occurred at the CFGB stage. Throughout the entire process there was a lively exchange of documents between the Applicant and whoever was involved in the process at that time as the reviewing authority.
[23] The Applicant’s procedural complaint is, and has been from the beginning of the allegations against him, the fact that he has never received the names of the complainants or names of the cadets with whom he is alleged to have improperly engaged. He also says he never received the dates upon which the events in question took place. He still denies any improper activities occurred.
IV. Initial Authority Decision [24] The Applicant was provided with a grievance synopsis on May 2, 2012 to which he filed a response on June 1, 2012.
[25] The IA reviewed the grievance as well as comments of superiors in the COC and of senior staff at Headquarters. The comments were disclosed to the Applicant on May 2, 2012. On June 6, 2012 the Applicant’s reply to that disclosure was received.
[26] On July 11, 2012 the IA released his decision. With respect to the Applicant’s continuing complaint that he was not provided with specifics such as dates, names and locations for the events about which he had received counselling the finding was that he had been verbally briefed on a number of occasions and had received the “proper and appropriate level of procedural fairness”.
[27] The decision reviewed the very specific complaints made by the Applicant both initially and as amplified. While some of the Applicant’s contentions were supported, the majority were not. The decision was that the Applicant had not established to the satisfaction of the IA that he was grieved. The redress requested was not granted.
[28] The Applicant was advised of his right to forward the grievance to the CDS within 90 days. On August 7, 2012 he provided a response to the IA decision. On August 17, 2012 he requested review by the CDS.
V. Canadian Forces Grievance Board Findings & Recommendations [29] On January 3, 2013, the Applicant’s grievance was sent by the CDS as a discretionary referral to the CFGB. On May 30, 2013, Findings and Recommendations (F&R) by the CFGB recommending that the grievance be partially upheld were released. On June 4, 2013, the CFGB sent the F&R to the Applicant. It also disclosed to him his grievance file of 826 pages to assist him in preparing for the CDS decision. He was advised that after reviewing the materials he might wish to provide comments and/or other pertinent documents to the DGCFGA for consideration by the CDS. The F&R largely, but did not entirely, upheld the Applicant’s grievance.
[30] The issue as stated by the CFGB was:
. . . whether the decision to post the grievor from his unit was justified and in accordance with the policy, and whether the Remedial Measure he was issued was appropriate.
[31] The CFGB determined that as the Remedial Measure of an IC took place after the Applicant had already transferred to the RF it was of no force or effect and should be removed from the Applicant’s personnel files.
[32] The CFGB concluded that the initial investigation of the Applicant’s complaint was fundamentally flawed for several reasons. It found the conclusions were not justified, transparent, intelligible, or understandable, therefore the investigator’s conclusions were unreasonable. The CFGB recommended the investigation report be set aside and expunged from all unit files.
[33] The CFGB reviewed three documents which the Applicant had asked to be removed from his files. It concluded that there was no justification to remove them as they were appropriate actions for the CO to have taken. In addition the CFGB indicated it was not persuaded an apology which the Applicant sought from the CO and ACO was justified and, in any event, it had adopted a position against obliging a person to write a letter of apology.
[34] With respect to the various allegations involving inappropriate contact with cadets, the CFGB acknowledged they were poorly handled but had become moot as the Applicant had transferred to the RF. It did note that the allegation of serving alcohol to a minor had not been properly investigated and that the CAF may wish to consider whether to pursue the matter.
[35] Dealing with the decision to remove the Applicant from his unit, the CFGB again found the situation had been poorly handled and was not properly justified as a proper and fair investigation had not been made. However as result of the Applicant’s transfer to the RF the CFGB again found this matter to be moot.
[36] The only recommendation made by the CFGB was that the CDS partially uphold the grievance by ordering “That the Initial Counselling form and the “Review of [the Grievor’s] Complaint” along with any reference to those documents be removed from the Applicant’s personnel file and disposed of in accordance with the National Archives of Canada Act.”
VI. Final Authority Decision [37] On June 13, 2014 the DGCFGA wrote to the Applicant to confirm the accuracy and completeness of the information it held and to confirm its understanding of the issues being grieved and the redress sought. The Applicant was provided with the information that the CDS would be considering and was invited to provide a response if desired. A synopsis of the grievance to that date was enclosed with the letter. The synopsis included a review of the redress sought, the relevant facts including alleged activities with cadets, the findings of the investigation report, the fact that the IA synopsis had been disclosed to the Applicant who had received the IA decision as well as the CFGB F&R. Within the disclosure package were copies of emails between and amongst various members of the COC concerning the Applicant and the allegations against him as well as internal notes to file detailing various meetings and discussions about the matter.
[38] The grievance synopsis set out the applicable laws and policies and reviewed them in the context of the Applicant’s grievance. The summary and recommendation provided in the synopsis was somewhat different than but largely consistent with the F&R of the CFGB. The recommendation to the CDS was to partially grant the redress by removing and destroying documentation related to the investigation and also the three records of discussion from all files and remove the Initial Counselling but issue a Recorded Warning instead. Major Vallée, the analyst writing the synopsis, recommended the CDS order a military police investigation on the allegation of providing alcohol to minors.
[39] The Applicant provided a thorough response to the synopsis and disclosure on July 7, 2014.
[40] On September 22, 2014 the CDS provided his decision (Decision). He indicated he had conducted a de novo review setting aside previous decisions and starting afresh. The CDS confirmed that he reviewed the entire grievance file including the most recent reply information received from the Applicant. He reviewed the nature of the grievance and the redress being sought and decided that, to a certain extent, the Applicant had been aggrieved but not for the reasons put forward by the Applicant.
[41] The CDS decided to partially grant the redress sought as the Applicant had been aggrieved to a certain extent. He looked at four issues:
• whether the Applicant’s suspension was appropriate;
• whether the investigation was properly conducted;
• whether procedural fairness was applied from March 2, 2010 until December 12, 2011; and
• whether the remedial measure issued was justified and legal.
[42] The CDS found the decision to transfer the Applicant to another unit was not the proper way to deal with the situation as the proper remedial measures procedure had not been followed, but, the matter was moot. The CDS found the CO RCSU (Northwest (NW)) reacted promptly and according to regulation by ordering an investigation, but he did not provide written terms of reference, leaving the investigating officer without proper guidance. As a result, the CDS found the investigation into the harassment complaint conducted by RCSU (NW) was flawed and appeared to be biased. The redress was granted and the report of the investigation together with any related documents were to be removed from all files and destroyed.
[43] With respect to procedural fairness, the CDS found the Applicant had been treated fairly throughout. He had been made aware of deficiencies and counselled on how to improve his behaviour. He received at every stage a chance to explain his actions and all available documentation was disclosed to him together with a fair chance to comment each time.
[44] With respect to the remedial measure, the CDS found it to be well documented that the Applicant was advised in person or via email on nine occasions about the same standard of conduct deficiencies which he did not correct. The CDS reviewed the nature and purpose of a remedial measure and the factors to be considered in both initiating a remedial measure and selecting the appropriate measure. The CDS agreed a remedial measure was required but that the Applicant’s chain of command had been “overly accommodating” by not acting quickly enough. He found the Initial Counselling was issued without proper authority as it was done after the Applicant’s transfer to the Regular Forces, therefore he quashed it. The CDS then determined that, at the very least, a Recorded Warning was appropriate to administer.
[45] The CDS found that because the allegations with respect to providing alcohol to minors had not been properly investigated there would always be “some doubt” which could have a negative impact on both the Cadet organization and the Applicant. Therefore, he felt that matter should be re-considered. The CDS therefore directed that the appropriate CO contact the local military police unit and explore the value in opening an investigation with respect to the allegation that the Applicant provided alcohol to a minor.
[46] The CDS directed the three documents about which the Applicant complained be removed from all files because keeping them in the file would go against the spirit of the directive of the Chief of Military Personnel with respect to a Unit Personal File, the purpose of which is to protect CAF members.
[47] The CDS agreed with the CFGB with respect to not ordering an apology and that the COC acted appropriately despite committing administrative errors. He also found it inappropriate for him to deal with possible administrative and disciplinary measures against the CO or other officers in the context of the grievance. He preferred to leave the matter of any performance supervision to the appropriate authorities.
[48] Dealing with the specific redress sought by the Applicant, that any policy or procedure calling for disciplinary action based solely on an allegation be rewritten, the CDS found that the Applicant had not demonstrated he had been treated unfairly. He also specifically found the policies and procedures relating to procedural fairness were sound.
[49] In the result, the CDS directed all the records of discussion, the Initial Counselling form, the Review of Complaint (the investigation report) and any reference to those documents be removed from the unit personnel record and the Applicant’s unit personal record. The removed documents were to be disposed of in accordance with the Library and Archives of Canada Act. In all cases once these matters were completed a report was to be made to the Applicant and the DGCFGA as well as the Applicant’s CO.
[50] On November 14, 2014, the Applicant filed his application for judicial review of the Decision.
VII. Issues [51] The Applicant submits the issue is whether it is appropriate for the Court to quash the Decision and the recommendation provided therein with respect to issuance of a Recorded Warning.
[52] The Respondent phrases the issues somewhat differently but the parties and the Court are in agreement that the issues to be considered on this judicial review are:
A) Is the decision by the Final Authority reasonable?
B) Did the Final Authority or the CAF breach the rules of procedural fairness by not providing adequate disclosure and details of the allegations to the Applicant during the grievance process?
VIII. Standard of Review [53] The first question for the Court to address is what is the appropriate standard of review for each issue?
A. Reasonableness of the Decision [54] The Federal Court of Appeal has previously held that decisions of the CDS with respect to grievances are reviewable on the reasonableness standard (Zimmerman v Canada (Attorney General), 2011 FCA 43 at para 21). In Dunsmuir v New Brunswick, 2008 SCC 9 (Dunsmuir) at paragraph 57, direction is provided that if the standard of review has previously been determined it need not be canvassed again. This review will therefore proceed on the basis that reasonableness is the standard of review for the Decision and deference is owed to the decision-maker.
B. “Adequacy of Reasons” [55] In oral argument, counsel for the Applicant raised as an issue that the reasons provided by the CDS were not adequate, particularly as there was no specific finding of fact that the Applicant actually engaged in the conduct as alleged. The Applicant also submitted the standard of review for adequacy of reasons should be correctness. This position was arrived at with reference to the trial judgment in Rifai v Canada (Attorney General), 2014 FC 529 (subsequently overturned on appeal) which referred to paragraph 22 of Tainsh v Canada (Attorney General), 2011 FC 1180, which cited paragraph 43 of Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 to hold that “the adequacy of reasons may be regarded as one aspect of procedural fairness and therefore subject to review based on correctness”. However, both Tainsh and Khosa were decided before Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (Nfld. Nurses) in which Justice Abella described the standard of review when dealing with that part of a decision being challenged on the grounds of “adequacy of reasons” or, the lack thereof, this way at paragraph 22:
[22] It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. (emphasis in original)
[56] As Nfld. Nurses is the accepted authority in dealing with a question of whether reasons are adequate, I will review whether the reasons provided by the CDS were adequate or not on the basis that it is part of my review and analysis of the overall reasonableness of the Decision.
C. Procedural Fairness [57] The Applicant has alleged there was a breach of fairness to him because he did not know the particulars of the allegations against him. He submits that he did not have even a minimal opportunity to respond to the allegations because he did not know who complained, with which cadets he was alleged to have been inappropriately involved, the nature of the inappropriate conduct, the dates it occurred and where it took place. He also claims he was not given any reason why such involvement was inappropriate.
[58] The standard of review for issues of procedural fairness is correctness. (Mission Institution v Khela, 2014 SCC 24 at para 79 and Moodie v Canada (Attorney General), 2015 FCA 87 at para 50). However, recent jurisprudence of the Court of Appeal recognizes that even on a correctness standard when a decision-maker has considerable experience and expertise the margin of appreciation to be applied is considered contextually. When the specific statutory context of the decision-maker is considered it may cause the review to be more like a reasonableness review. (Maritime Broadcasting System Limited v Canadian Media Guild, 2014 FCA 59 at para 51).
[59] Most recently, the state of the standard of review for issues of procedural fairness has been described as “unsettled” and “a jurisdictional muddle” in Bergeron v Canada (Attorney General), 2015 FCA 160 at paragraph71. Here it is not necessary to try to sort out the “muddle”. I have determined, for the reasons which follow, that the procedure followed was fair and it was correct, which means it was also reasonable.
IX. Positions of the Parties on the Issues A. Applicant’s Submissions (1) Reasonableness of the Decision [60] Counsel for the Applicant asked the Court to keep in mind that the Applicant was self-represented until after he filed his application for judicial review at which time he retained counsel to cross-examine the Respondent’s affiant and then to represent him at the hearing.
[61] Counsel also submits there is no evidence substantiating the events alleged. The Applicant has maintained throughout the various stages of this matter that he did nothing wrong. He has not admitted to inappropriate conduct with cadets. There is no agreement that the allegations are true or that the events in question actually occurred.
[62] The Applicant submits that what occurred was he was repeatedly warned for actions which he denied and therefore could not correct; the “proof” of his misbehaviour is found only in the repeated warnings he received.
[63] In support of his position, the Applicant points to the CFGB F&R that states the initial harassment investigation was fundamentally flawed, procedural fairness had not been provided as the draft report was not submitted to the Applicant for comment or review, and the conclusions of the investigation were found to be unreasonable.
(2) Adequacy of Reasons [64] The Applicant says that although he was chastised by his superiors for not “correcting” his behaviour with respect to the cadets, he could not correct something that was not occurring. Counsel said it is in fact “absurd” to substantiate the finding of the CDS without the misconduct first being proven and a specific finding being made by the CDS including recitation of the underlying particulars and events.
(3) Procedural Fairness [65] The Applicant says that at no time did he receive adequate particulars to enable him to properly defend himself. He agrees fraternizing is inappropriate but steadfastly maintains he is not guilty of it.
[66] The Applicant relies upon R v Stinchcombe, [1991] 3 SCR 326 (SCC) for the proposition that he is entitled to know the “who, what, when etc.” He says he did not know the case he had to answer and it was not clear in the decision whether the CDS, Col. Malo, knew it either.
[67] In his written submissions, the Applicant relied solely upon the foregoing lack of details supporting the allegations to submit that he did not receive even a minimum level of fairness to which he says he was entitled. He relies generally on the factors set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 (SCC) in support of that assertion without specifying anything further as to its application.
[68] The Applicant also stated in his notice of application that a de novo consideration (in this case by both the CFGB and the CDS) cannot save the procedural unfairness which occurred. He cites no authority in support of that position.
B. Respondent’s Submissions (1) Reasonableness of the Decision [69] The Respondent submits that not only is the decision of the CDS owed a high degree of deference, the Applicant is simply asking the court to re-weigh the evidence or to be very selective with respect to the evidence. The Respondent urges the Court to look at the totality of the evidence as was done by the CDS. In that case, the Respondent alleges there is more than sufficient evidence upon which the CDS could and did base his decision.
[70] Relying on Rompré v Canada (Attorney General), 2012 FC 101 (Rompré) the Respondent submits the CDS is entitled to significant discretion with respect to grievances and determination of the appropriate remedies.
(2) Adequacy of Reasons [71] As this issue first arose at the hearing, the Respondent did not make any written submissions with respect to this allegation but did say, relying on Dunsmuir, that as the nature of the grievance process is a specialized process within a specialized body and the standard of review of the Decision is reasonableness, the reasons are justified and intelligible.
(3) Procedural Fairness [72] In support of the process having been fair to the Applicant the Respondent points to the extensive disclosure which took place and the opportunity provided to, and taken up by, the Applicant at every critical juncture for input and reply. Additionally, by the time the CDS considered the matter it was a de novo review and the Applicant had received either the actual names of the complainants and informants there was enough information revealed to easily ascertain their identities. All known to him either professionally or personally.
X. Analysis [73] In addition to the Notice of Application and the usual Memorandum of Argument and Law from each party, the record before me included a transcript of the cross-examination of the DGCFGA Grievance Analyst, Major Michel Vallée, who was responsible for reviewing and providing analysis of the Applicant’s file to the CDS, as well as an extensive Certified Tribunal Record containing over 1000 pages, many of which were replicated several times and interspersed throughout with each disclosure.
A. Reasonableness of the Decision [74] It is well-settled that reasonableness is a deferential standard in which the Court must recognize that questions which come before administrative tribunals may not lend themselves to one specific, particular result, but can give rise to a number of possible, reasonable conclusions. My review of whether the decision of the CDS is reasonable will be concerned with determining by a review of the reasons he provided whether they are justified, transparent and intelligible within the context of the decision-making process and whether the decision which was rendered falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir at para 47).
[75] Mr. Justice Noël in Bernath v Canada, 2007 FC 104 (aff’d in Canada v Bernath, 2007 FCA 400) conducted an extensive examination of the nature of the grievance process established by Parliament for the Canadian Forces under the National Defence Act and the Queen’s Regulations and Orders for the Canadian Forces, volume 1, chapter 7. He found at paragraph 42 that the grievance process is:
…an internal grievance resolution system unique to the Canadian Forces. The competent authority at each decision-making level is the superior, in the hierarchical order established within the Canadian Forces, of the grieving officer or non‑commissioned member. In fact, there is no independent decision-maker, in the legal sense of the term, who is called on to decide a dispute between the parties. (my emphasis)
[76] Under section 18(1) of the Act, the CDS is given very broad powers in that he is “charged with the control and administration of the Canadian Forces” subject only to the regulations and under the direction of the Minister.
[77] Given this degree of autonomy and the particular expertise of the CDS within a highly specialized process and unique organization, it is my view that the degree of deference to which he is entitled is what is referred to as “a wide margin of appreciation”. In Canada (Attorney General) v Boogaard, 2015 FCA 150, Stratas, J.A. when dealing with review of a decision of the Commissioner of the RCMP (which position I find is a reasonable parallel to that of the Chief of the Defence Staff of the Canadian Forces) found that the Commissioner was entitled to a very broad margin of appreciation. In my opinion the same holds true, for the same reasons, with respect to decisions of the CDS.
[78] As the CFGB had done, the CDS found the initial investigation was flawed and did not follow the proper policy and process. He determined that the investigation including any related documents should be removed from all files and destroyed. While the Applicant has submitted that the flawed investigation shows the decision by the CDS was not reasonable, I disagree. Neither the CFGB finding nor the Decision leads to that conclusion as they both considered the allegations against the Applicant afresh. In the case of the CFGB, they found nothing “untoward or unfair” in the action by the CO to change the Applicant’s unit responsibilities and restrict his involvement with cadets outside the Cadet program. The CFGB also found there was nothing untoward in the November 2, 2010 and February 16, 2011 Records of Discussion that would warrant removing those documents from the Applicant’s files. Both documents dealt with the alleged behaviour of the Applicant and the discussion with respect to it. The reasons the investigation was found to be flawed related to lack of procedural process, not the gathering of evidence, most of which consists of written materials in the form of letters, emails, or records of discussion. It does not follow that the fact that the initial investigation was flawed has any impact at all on the subsequent decisions. Both the CFGB and the CDS considered the evidence without considering any of the findings of the investigation report, which they each confirmed was to be removed from the Applicant’s records because of its flaws.
[79] I have reviewed the record before the CDS and find that it more than adequately supports his findings. Even if the margin of appreciation had been narrow rather than wide, the Decision is defensible on the facts and law. The Decision addresses each issue raised by the Applicant or by previous decision-makers in the process. There is sufficient detail and explanation to be able to understand why the CDS arrived at the conclusions he did.
[80] Contrary to the submissions of the Applicant at the hearing, reasons were provided by the CDS where there was any disagreement with the recommendations of the CFGB F&R the only two of which were as follows:
1. the CDS decided documents should be removed from the Applicant’s file and destroyed contrary to the CFGB F&R that there was nothing untoward in the documents and no justification to remove them.
The reason provided by the CDS was that to leave them in the file went against the spirit of the directive to protect members.
2. the CFGB F&R found the remedial measure of Initial Counselling was of no force and effect because of his transfer to the RF and so it should be removed from the Applicant’s record. The CDS agreed with that finding but went further and directed issuance of the new remedial measure of a Recorded Warning (RW), which is more serious than Initial Counselling.
The CDS provided a very detailed explanation of his decision to issue a RW which culminated with his conclusion that the Applicant had not reached the appropriate level of professional maturity and did not have a clear understanding of the line that must separate personal from professional relationships.
[81] With respect to this latter finding Counsel for the Applicant submitted the CDS did not have the authority to replace the IC with a RW. However, in Rifai v Canada (Attorney General) 2015 FCA 145, the Court of Appeal set aside the trial judgment that had arrived at a similar conclusion with respect to a case involving a military grievance and a remedial measure. In doing so, the Court specifically found at paragraph 4 that:
replacing a remedial measure relating to performance with one relating to conduct falls within the discretion and expertise of the CDS.
[82] In other words, substituting one form of remedial measure with another form of remedial measure is within the purview of the CDS. As a result this action by the CDS is reasonable given the authority he had, the evidence he considered, and the reasons he gave for removing the IC and for issuing a RW. Those decisions were well within the special expertise and authority of the CDS and are defensible on the facts and law.
[83] Although he succeeded with respect to most of his grievances, the Applicant was unable to persuade the CDS that the allegations that he had behaved improperly with cadets were unsubstantiated. With respect to those allegations the CDS found it was “well documented” that the Applicant was “advised in person or via email on nine occasions about the same standard of conduct deficiencies” and, on a balance of probabilities, the Applicant did not correct his deficiencies. While the Applicant and his counsel say the CDS made no explicit finding that the allegations were proven and did not address the issue that particulars were still not provided, it is clear from the portion of the Decision dealing with Background, as well as the reasons provided throughout the Decision, that the CDS did find the allegations were substantiated even though the investigation was flawed.
[84] The record clearly supports such a finding by the CDS. While counsel for the Applicant would have preferred the decision of the CDS state the underlying particulars of the allegations by chapter and verse rather than refer to them at a high level, there is no doubt that the CDS made a specific finding that the allegations were p