Kreutzweiser v. Canada (Attorney General)

Kreutzweiser v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-01-17
Neutral citation
2018 FC 46
File numbers
T-57-16
Decision Content
Date: 20180117
Docket: T-57-16
Citation: 2018 FC 46
Ottawa, Ontario, January 17, 2018
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CHRISTOPHER L. KREUTZWEISER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 18.1 of the Federal Courts Act, RSC 1985, c F-7 [Act], for judicial review of the decision of the Chief of the Defence Staff [CDS], dated November 27, 2015 [Decision], dismissing the Applicant’s grievance of his medical release from the Canadian Armed Forces [CAF].
II. BACKGROUND
[2] The Applicant enrolled in the CAF on March 29, 2011. The CAF personnel file for the Applicant records that he was released from service on June 16, 2014. The reason for his release was that medical employment limitations [MELs] assigned to the Applicant by the CAF’s Director of Medical Policy [D Med Pol] meant that the Applicant was not compliant with the CAF’s principle of universality of service. He was therefore released under item 3(b) of art 15.01 of the Queen’s Regulations and Orders for the Canadian Forces [QR&O]. The Applicant alleges that his release is the consequence of a campaign of harassment and retaliation by members of the CAF.
A. Harassment Complaints
[3] The Applicant’s problems began in April 2011, shortly after his enlistment, when he alleges that two officers in his unit made anti-Semitic and anti-gay statements while endorsing fascism. After being turned down for placement as an officer cadet in June 2011, the Applicant expressed an intention to seek voluntary release from the CAF but retracted his intention the next day. The Applicant did seek voluntary release on medical grounds in October 2011, but was advised to submit a harassment complaint instead. In addition to the April incidents, the Applicant alleged that one of the officers who made pro-fascist statements threatened him with administrative release in response to the Applicant’s request to be made an officer cadet, and sexually harassed him during a return drive from a different CAF base. The Applicant attempted to withdraw this complaint three days later. Consequently, the Applicant was charged with making a false accusation and faced the prospect of release from the CAF as an administrative burden. The Applicant alleges that his initial complaint prompted a campaign of retaliation from members of his unit. He eventually submitted an expanded harassment complaint detailing all of his allegations on June 21, 2012.
B. Medical History
[4] The medical issues that led to the Applicant’s release began in November 2011 when he attended the emergency room at Royal University Hospital in Saskatoon complaining of depression and suicidal thoughts. He was admitted to the hospital’s psychiatric ward for five days before being discharged with diagnoses of adjustment disorder and narcissistic personality traits. On January 10, 2012, Major Jane Cruchley, a CAF doctor, examined the Applicant. Dr. Cruchley’s report diagnosed the Applicant with adjustment disorder but found he was medically fit to continue service. Dr. Cruchley examined the Applicant again on March 27, 2012 and referred him to a psychiatrist.
[5] In February of 2012, the Applicant overdosed by taking all of his thyroid medication and was again hospitalized. Dr. Cruchley became aware of the Applicant’s overdose by the time of her March 27, 2012 examination. Her notes from the examination indicate that she discussed the overdose with the Applicant and that he “decided to attempt suicide” and “feels that he is at high risk of suicide.” Therefore, on April 3, 2012, Dr. Cruchley added an addendum to her January 10, 2012 report that described the overdose as a “serious suicide attempt,” and referred to the Applicant’s “extensive past history of psychiatric problems,” and “strongly recommend[ed] that he not be re-enrolled… in the future.”
[6] Between March and June of 2012, the Applicant was taken to hospital and either assessed and released or admitted on four occasions. The Applicant also continued to meet with CAF medical personnel. At one meeting on July 18, 2012, Dr. Arun Nayar diagnosed the Applicant with adjustment disorder but provided the Applicant with a chit indicating that he was “[f]it for regular duties.” On July 25, 2012, Dr. Cruchley again met with the Applicant. She decided to await the results of reports from Dr. Brock and Dr. Prasad. The report from Dr. Brock is dated October 24, 2012 and diagnosed the Applicant with generalized anxiety disorder and “strongly recommended that he engage in long term therapy.”
[7] On October 29, 2012, Dr. Cruchley completed a Periodic Health Assessment and concluded that the Applicant required medical follow-up more frequently than every six months, recommended he be assigned MELs in the geographic and occupational categories, and forwarded the matter to the D Med Pol for review.
[8] Between Dr. Cruchley’s initial MELs recommendation and the Applicant’s medical release on June 16, 2014, the Applicant was taken to hospital by Saskatoon police six times.
C. Administrative Review
[9] On February 5, 2013, the D Med Pol approved the recommended MELs and determined that the Applicant was at high risk of not complying with the universality of service principle. Hence, the Director Military Careers Administration [DMCA] began an administrative review [ARMEL] of the Applicant’s assigned MELs. The Applicant was provided with a disclosure package on October 24, 2013. The Applicant wrote to the DMCA on November 20, 2013 declining the opportunity to submit representations. On December 3, 2013, the DMCA confirmed that the Applicant’s assigned MELs did not comply with the CAF’s universality of service principle and decided that the Applicant should be medically released no later than June 17, 2014.
D. Grievance Process
[10] On May 20, 2014, the Applicant grieved his medical release. He submitted a second grievance on June 16, 2014. In the second grievance, the Applicant wrote that “the first grievance is to object to my medical release, and to request future accommodation. The Primary purpose of this June 14 grievance is to remedy past treatment, through compensation and ADR resolution.”
[11] The Applicant’s commanding officer [CO] determined that he was not qualified to make judgments on the merits of the Applicant’s medical release. Therefore, on June 12, 2014, the Canadian Forces Grievance Authority determined that the appropriate initial authority for the Applicant’s grievance was the Director General Military Careers [DGMC].
[12] On October 30, 2014, the Director Military Careers Policy and Grievances 3 [DMCPG 3] provided the Applicant with disclosure and an opportunity to provide written submissions to the initial authority. The Applicant submitted written representations on November 20, 2014 and requested further time to review disclosure and submit further representations. The DMCPG 3 denied this request on November 28, 2014 and forwarded the grievance to the initial authority. On December 9, 2014, the DGMC, acting as initial authority, denied the Applicant’s grievance.
[13] On December 28, 2014, the Applicant submitted his grievance to the CDS. As required by art 7.21(a) of the QR&O, the Applicant’s grievance was referred to a Military Grievances External Review Committee [Committee].
E. The Committee’s Findings and Recommendations
[14] Because the Decision accepts the Committee’s findings and recommendations as its own, it is essential to review those findings.
[15] After laying out the facts and stating the positions of the Applicant and the initial authority, the Committee begins its analysis by explaining the universality of service principle. The liability of all CAF members to perform any lawful duty at all times is established by s 33(1) of the National Defence Act, RSC 1985, c N-5 [NDA]. This universality of service principle means that all CAF members must be able to perform basic military skills and be prepared for military conflicts arising at any time. CAF policy stipulates that meeting the universality of service principle requires being physically fit, employable, and deployable. The Committee explains that the principle is recognized by s 15(9) of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA], which makes the CAF’s duty to accommodate subject to the universality of service requirement.
[16] The Committee states that on February 5, 2013, the D Med Pol reviewed the Applicant’s medical documentation and assigned MELs in the geographic and occupational categories. The Committee notes that the D Med Pol’s report specifies that the MELs were assigned due to “a chronic medical condition that is of HIGH RISK of not complying with the Universality of Service.” The geographic issue was that the Applicant required “regular medical follow-up more frequently than every six months” and was therefore not deployable. The occupational issue was that the Applicant was “unfit for work in a military operational environment” and was therefore not employable. Thus, the assigned MELs called into question the Applicant’s ability to satisfy two of the three conditions of the universality of service principle.
[17] To clarify the definition of “unfit for work in a military operational environment,” the Committee quotes extensively from submissions provided by the D Med Pol in a similar grievance. The quotation explains that the D Med Pol uses the phrase to refer to limitations “where a member, because of his medical condition, cannot withstand the rigours and demands of a stressful, operational and, quite often but not always, a deployed environment.” In the mental health context, a CAF member who “may not be reliable, might have psychological triggers, or be unable in many ways, to maintain the ability to work in a mentally demanding setting” would be assigned MELs. The Committee finds these definitions relevant to understanding the mental health issues in the Applicant’s grievance.
[18] The Committee explains that the assignment of MELs left the Applicant subject to an administrative review. According to s 4.5 of Defence Administrative Order and Directive [DAOD] 5019-2, a CAF member subject to administrative review is to be notified of the review, provided with disclosure, allowed to make representations, have the information he or she provides considered, and provided with the administrative review decision. The Committee’s report reviews the procedural timeline of the Applicant’s administrative review documented in his file and finds that the ARMEL complied with DAOD 5019-2.
[19] When considering the reasonableness of the ARMEL decision, the Committee provides a table listing the Applicant’s interactions with military and civilian medical practitioners. The Committee finds that the references in the table establish that medical assessments took place before the ARMEL was initiated and this satisfies the Committee that the Applicant’s situation was taken seriously. The Committee acknowledges that lack of medical training renders it incapable of determining whether the diagnoses are correct, but finds sufficient basis in the Applicant’s file to justify the military doctors’ conclusions that the Applicant’s medical condition was incompatible with military service. The Committee notes that such decisions take into account the military contexts that are applicable to MELs. The proposition that the evaluation of a medical condition’s effect on a CAF member’s ability to perform military tasks is better left to military doctors is supported by the decision in McBride v Canada (National Defence), 2012 FCA 181 at para 38 [McBride]. The Committee cannot find evidence that the decision was arbitrary, made in bad faith, or made with animosity towards the Applicant.
[20] The Committee also considers medical reports submitted by the Applicant after he was informed of the result of the ARMEL. Based on meetings between the Applicant and a CAF doctor, and CAF internal communications referencing the reports, the Committee finds no reason to believe that the reports were not considered before the Applicant’s release. Because the Applicant was provided notice of the ARMEL decision, six months to gather additional reports, and was allowed to submit new information for consideration, the Committee concludes that the Applicant’s medical release was reasonable and followed applicable CAF policy.
III. DECISION UNDER REVIEW
[21] The Decision states that the matter grieved is the Applicant’s June 16, 2014 medical release from the CAF under item 3(b) of art 15.01 of the QR&O. The redress sought by the Applicant is to have his release considered void ab initio resulting in his reinstatement in the CAF.
[22] The Decision confirms that the grievance was referred to the Committee, that the Committee provided its findings and recommendations to the CDS, and that the Committee recommended that the grievance be denied. The CDS states that he considered the matter de novo and that his review consisted of the Applicant’s grievance file, including the initial authority’s decision and material that followed.
[23] Before analyzing the matter grieved, the CDS deals with a number of issues he considers preliminary. The CDS states that the grievance process is not the proper forum for the investigation of criminal accusations and that it would therefore be inappropriate for him to comment on the Applicant’s allegations of criminal wrongdoing by members of the CAF. Regarding the Applicant’s request that the CDS consider his grievance in light of past grievance decisions by the final authority, the Decision states that each grievance is considered individually and that grievors’ privacy must be protected. Therefore, the CDS does not comment on other grievances and limits his analysis to the Applicant’s medical release. The Decision notes the Applicant’s allegations of discrimination and harassment by members of the CAF, but the CDS states that these allegations were investigated and determined to be unfounded. The Decision finds no causal link between the Applicant’s harassment complaint and the matter grieved. The CDS considers the Applicant’s complaint to the Canadian Human Rights Commission [CHRC] the proper forum for his harassment concerns and therefore declines to address the Applicant’s harassment allegations.
[24] The CDS concludes that the Applicant was treated fairly and in accordance with the applicable CAF rules, regulations, and policies. Therefore, the CDS is not prepared to grant the Applicant’s requested redress.
[25] After briefly relating his understanding of the facts, the CDS accepts the findings of the Committee as his own. The CDS notes that the Applicant was diagnosed with adjustment disorder, narcissistic personality traits, and generalized anxiety disorder. The CDS finds that “[b]ased on [the Applicant’s] many representations” there is enough medical and psychological information in the file to justify the D Med Pol’s conclusion that the Applicant was unfit to serve on June 16, 2014.
[26] Regarding the conduct of the administrative review of the Applicant’s MELs, the CDS finds that the review was conducted fairly and in accordance with CAF policy. The CDS points out that on March 18, 2013 the Applicant was notified of the administrative review of the MELs he was assigned. The CDS concludes that this provided the Applicant sufficient time to counter the review’s findings. The CDS states that he is satisfied that the documents and assessments in the Applicant’s file demonstrate that the matter was taken seriously and considered appropriately.
[27] The CDS also finds that, given the findings that the Applicant did not meet the universality of service requirement and that there was no breach of procedural fairness during the ARMEL, the Applicant was properly released from the CAF. The CDS then states that he does not have the authority to reinstate former members of the CAF after their release. Therefore, he cannot grant the Applicant’s request to be reinstated. However, the CDS offers the following encouragement:
I do not have the authority to reinstate former members once they have been released from the CAF. However, if you were to submit new documentation to prove that you have overcome your medical limitations, I would encourage you to submit your application for re-enrollment.
[28] The Decision ends by noting that there is no appeal from a decision of the CDS acting as final authority but advises the Applicant that he can have the Decision reviewed by the Federal Court and thanks the Applicant for his contribution to the CAF and to Canada.
IV. ISSUES
[29] The Applicant submits that the following are at issue in this application:
What is the standard of review to be applied to the CDS’ jurisdictional and non-jurisdictional determinations?
Does the CDS have authority to deal with the Applicant’s harassment complaint?
Does the CDS have jurisdiction to reinstate the Applicant?
Is the CDS’ decision to adopt the Committee’s findings correct or unreasonable?
Is the CDS’ decision that the Applicant does not meet the universality of service requirement unreasonable?
Is the CDS’ decision that the ARMEL process was properly conducted unreasonable?
Is the CDS’ decision that the Applicant could not be reinstated in the CAF unreasonable?
Is the CDS’ decision that the Applicant’s harassment complaint has no causal link with his grievance unreasonable?
[30] The Respondent submits that the issues raised by the Applicant amount to the following:
What is the standard of review applicable to the Decision?
Is the Decision unreasonable?
Did the grievance process afford the Applicant sufficient procedural fairness?
V. STANDARD OF REVIEW
[31] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[32] The Applicant submits that in Bossé v Canada (Attorney General), 2015 FC 1143 at para 25, this Court held that the standard of review on the merits of the CDS’ decision when acting as final authority on a CAF grievance is reasonableness. But the Applicant points to Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [Alberta Teachers], where the Supreme Court of Canada reiterated that true questions of jurisdiction are to be reviewed on a correctness standard. The Applicant submits that the CDS’ determination that he did not have jurisdiction to consider the Applicant’s harassment complaint or reinstate the Applicant are true questions of jurisdiction subject to correctness review.
[33] The Respondent submits that decisions of the CDS acting as final authority in the CAF grievance process are questions of mixed fact and law to be reviewed under the reasonableness standard. See Moodie v Canada (Attorney General), 2015 FCA 87 at para 51 [Moodie]; Zimmerman v Canada (Attorney General), 2011 FCA 43 at para 21; MacPhail v Canada (Attorney General), 2016 FC 153 at para 8. The Respondent says that the CDS’ specialized expertise in CAF grievances should be afforded significant deference. See Stemmler v Canada (Attorney General), 2016 FC 1299 at para 30 [Stemmler]; Walsh v Canada (Attorney General), 2016 FCA 157 at para 14. The Respondent accepts, however, that questions of procedural fairness are reviewable under the correctness standard. See Mission Institution v Khela, 2014 SCC 24 at para 79 [Khela]; Moodie, above, at para 50; Shannon v Canada, 2015 FC 983 at para 37 [Shannon].
[34] As stated by the Respondent, questions of procedural fairness are reviewed on the standar of correctness. See Khela, above, at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa].
[35] The standard of review applicable to the CDS’ determination of the substance of the Applicant’s grievance is reasonableness. See Moodie, above, at para 51.
[36] The CDS’ determination that he did not have authority to reinstate the Applicant is not a true question of jurisdiction. Rather, it is a question of statutory interpretation to be reviewed under the reasonableness standard. The Applicant is correct that Alberta Teachers held that true questions of jurisdiction are still subject to correctness review. This, however, is subject to the qualification that “true questions of jurisdiction will be exceptional”: Alberta Teachers, above, at para 42. Justice Rothstein also held that “unless the situation is exceptional… the interpretation by the tribunal of ‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review”: Alberta Teachers, above, at para 34. This approach was followed by the Supreme Court of Canada in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 at para 26. The CDS’ decision that he lacks authority to reinstate the Applicant derives from his interpretation of s 30(4) of the NDA. Therefore, the presumption of reasonableness is not rebutted.
[37] The CDS’ determination that the CHRC is the appropriate body to investigate the Applicant’s harassment complaint, with potential adjudication of the complaint before the Canadian Human Rights Tribunal, is a question of the jurisdictional line between two specialized tribunals. Such a question still rebuts the presumption of reasonableness and continues to be subject to correctness review. See Alberta Teachers, above, at para 30; Dunsmuir, above, at para 61.
[38] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Khosa, above, at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS
[39] The following provisions of the NDA are relevant in this application:
Right to grieve
Droit de déposer des griefs
29 (1) An officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.
29 (1) Tout officier ou militaire du rang qui s’estime lésé par une décision, un acte ou une omission dans les affaires des Forces canadiennes a le droit de déposer un grief dans le cas où aucun autre recours de réparation ne lui est ouvert sous le régime de la présente loi.
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Final authority
Dernier ressort
29.11 The Chief of the Defence Staff is the final authority in the grievance process and shall deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.
29.11 Le chef d’état-major de la défense est l’autorité de dernière instance en matière de griefs. Dans la mesure où les circonstances et l’équité le permettent, il agit avec célérité et sans formalisme.
Referral to Grievances Committee
Renvoi au Comité des griefs
29.12 (1) The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council, and every grievance submitted by a military judge, to the Grievances Committee for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievances Committee.
29.12 (1) Avant d’étudier et de régler tout grief d’une catégorie prévue par règlement du gouverneur en conseil ou tout grief déposé par le juge militaire, le chef d’état-major de la défense le soumet au Comité des griefs pour que celui-ci lui formule ses conclusions et recommandations. Il peut également renvoyer tout autre grief à ce comité.
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Chief of the Defence Staff not bound
Décision du Comité non obligatoire
29.13 (1) The Chief of the Defence Staff is not bound by any finding or recommendation of the Grievances Committee.
29.13 (1) Le chef d’état-major de la défense n’est pas lié par les conclusions et recommandations du Comité des griefs.
Reasons
Motifs
(2) The Chief of the Defence Staff shall provide reasons for his or her decision in respect of a grievance if
(a) the Chief of the Defence Staff does not act on a finding or recommendation of the Grievances Committee; or
(b) the grievance was submitted by a military judge.
(2) Il motive sa décision s’il s’écarte des conclusions et recommandations du Comité des griefs ou si le grief a été déposé par un juge militaire.
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Decision is final
Décision définitive
29.15 A decision of a final authority in the grievance process is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
29.15 Les décisions du chef d’état-major de la défense ou de son délégataire sont définitives et exécutoires et, sous réserve du contrôle judiciaire prévu par la Loi sur les Cours fédérales, ne sont pas susceptibles d’appel ou de révision en justice.
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Reinstatement
Réintégration
30 (4) Subject to regulations made by the Governor in Council, where
(4) Sous réserve des règlements pris par le gouverneur en conseil, la libération ou le transfert d’un officier ou militaire du rang peut être annulé, avec son consentement, dans le cas suivant :
(a) an officer or non-commissioned member has been released from the Canadian Forces or transferred from one component to another by reason of a sentence of dismissal or a finding of guilty by a service tribunal or any court, and
a) d’une part, il a été libéré des Forces canadiennes ou transféré d’un élément constitutif à un autre en exécution d’une sentence de destitution ou d’un verdict de culpabilité rendu par un tribunal militaire ou civil;
(b) the sentence or finding ceases to have force and effect as a result of a decision of a competent authority,
b) d’autre part, une autorité compétente a annulé le verdict ou la sentence.
the release or transfer may be cancelled, with the consent of the officer or non-commissioned member concerned, who shall thereupon, except as provided in those regulations, be deemed for the purpose of this Act or any other Act not to have been so released or transferred.
Dès lors, toujours sous réserve des règlements, il est réputé, pour l’application de la présente loi ou de toute autre loi, ne pas avoir été libéré ou transféré.
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Liability in case of regular force
Obligation de la force régulière
33 (1) The regular force, all units and other elements thereof and all officers and non-commissioned members thereof are at all times liable to perform any lawful duty.
33 (1) La force régulière, ses unités et autres éléments, ainsi que tous ses officiers et militaires du rang, sont en permanence soumis à l’obligation de service légitime.
[40] The following provision of the CHRA is relevant in this application:
Universality of service for Canadian Forces
Universalité du service au sein des Forces canadiennes
15 (9) Subsection (2) is subject to the principle of universality of service under which members of the Canadian Forces must at all times and under any circumstances perform any functions that they may be required to perform.
15 (9) Le paragraphe (2) s’applique sous réserve de l’obligation de service imposée aux membres des Forces canadiennes, c’est-à-dire celle d’accomplir en permanence et en toutes circonstances les fonctions auxquelles ils peuvent être tenus.
[41] The following provisions of the QR&O are relevant in this application:
7.06 – TIME LIMIT TO SUBMIT GRIEVANCE
7.06 – DÉLAI POUR DÉPOSER UN GRIEF
(1) A grievance shall be submitted within three months after the day on which the grievor knew or ought reasonably to have known of the decision, act or omission in respect of which the grievance is submitted.
(1) Tout grief doit être déposé dans les trois mois qui suivent la date à laquelle le plaignant a pris ou devrait raisonnablement avoir pris connaissance de la décision, de l’acte ou de l’omission qui fait l’objet du grief.
(2) A grievor who submits a grievance after the expiration of the time limit set out in paragraph (1) shall include in the grievance reasons for the delay.
(2) Le plaignant qui dépose son grief après l’expiration du délai prévu à l’alinéa (1) doit y inclure les raisons du retard.
(3) The initial authority or, in the case of a grievance to which Section 2 does not apply, the final authority may consider a grievance that is submitted after the expiration of the time limit if satisfied it is in the interests of justice to do so. If not satisfied, the grievor shall be provided reasons in writing.
(3) L’autorité initiale ou, dans le cas d’un grief qui n’est pas visé par la section 2, l’autorité de dernière instance peut étudier le grief déposé en retard si elle est convaincue qu’il est dans l’intérêt de la justice de le faire. Dans le cas contraire, les motifs de la décision doivent être transmis par écrit au plaignant.
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7.21 – TYPES OF GRIEVANCES TO BE REFERRED TO GRIEVANCES COMMITTEE
7.21 – CATÉGORIES DE GRIEFS DEVANT ÊTRE RENVOYÉS AU COMITÉ DES GRIEFS
For the purposes of subsection 29.12(1) of the National Defence Act, the final authority shall refer to the Grievances Committee any grievance relating to one or more of the following matters:
Pour l’application du paragraphe 29.12(1) de la Loi sur la défense nationale, l’autorité de dernière instance renvoie au Comité des griefs tout grief qui a trait à l’une ou l’autre des questions suivantes:
(a) administrative action resulting in the forfeiture of or deductions from pay and allowances, reversion to a lower rank or release from the Canadian Forces;
a) les mesures administratives entraînant la suppression ou des déductions de solde et d’indemnités, le retour à un grade inférieur ou la libération des Forces canadiennes;
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15.01 – RELEASE OF OFFICERS AND NON-COMMISSIONED MEMBERS
15.01 – LIBÉRATION DES OFFICIERS ET MILITAIRES DU RANG
(1) An officer or non-commissioned member may be released, during his service, only in accordance with this article and the table hereto.
(1) Un officier ou militaire du rang ne peut être libéré au cours de son service militaire qu’en conformité du présent article et du tableau s’y rapportant.
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Item 3
Numéro 3
Medical
Raisons de santé
Reasons for Release
Motifs de libération
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(b) On medical grounds, being disabled and unfit to perform his duties in his present trade or employment, and not otherwise advantageously employable under existing service policy.
b) Lorsque du point de vue médical le sujet est invalide et inapte à remplir les fonctions de sa présente spécialité ou de son présent emploi, et qu’il ne peut pas être employé à profit de quelque façon que ce soit en vertu des présentes politiques des forces armées.
VII. ARGUMENT
A. Applicant
(1) Harassment Complaint
[42] The Applicant submits that the CDS had jurisdiction to consider his harassment complaint and apply the provisions of the CHRA. The Applicant points to Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 at para 14 [Tranchemontagne], where the Supreme Court of Canada stated that “statutory tribunals empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly in front of them.” A majority of the Court therefore held that the Ontario Social Benefits Tribunal had to decide whether a provision of one of its governing statutes was rendered inapplicable by the Ontario Human Rights Code, RSO 1990, c H.19, since the tribunal was “presumed to have the jurisdiction to consider the whole law”: Tranchemontagne, above, at para 40. The Applicant accepts that the issue before the CDS was his medical release, but says his release was a consequence of the harassment he suffered. Therefore, although the complaint may also be consider by the CHRC, the Applicant says the CDS could also consider and apply relevant provisions from the CHRA. The Applicant says that this jurisdiction is reinforced by DAOD 5516-0, Human Rights, which states that the Department of National Defence and the CAF are committed to respecting the rights of CAF members that are protected under the CHRA.
(2) Reinstatement
[43] The Applicant submits that the CDS has jurisdiction to declare his release void ab initio and to reinstate him. The Applicant acknowledges that reinstatement was statutorily barred in Stemmler, but argues that Stemmler is distinguishable because the grievor in Stemmler did not meet the universality of service requirement. The Applicant says that he has provided medical evidence of his suitability for military service which was not considered and that in such circumstances reinstatement is not barred. The Applicant points to an online summary of a previous CAF grievance, Case #2010-92, which indicates that the external grievance committee in that case recommended to the CDS that the grievor’s release be considered void ab initio and the grievor be treated as if he were never released.
(3) Acceptance of the Committee’s Findings and Recommendations
[44] The Applicant submits that the Decision does not provide sufficient reasons for accepting the Committee’s findings and recommendations and that this amounts to the CDS failing to conduct the required de novo hearing. Contrary to the CDS’ statement that the Committee’s findings were thorough, the Applicant says that the Committee failed to identify the conditions that could limit the Applicant’s fitness for work in a military environment, ignored medical evidence that contradicted its findings, and made an incorrect finding of fact regarding the Applicant’s alleged suicide attempt. The Applicant says that the Decision’s blanket adoption of the Committee’s findings fails to meet the standard for sufficiency of reasons articulated in Law Society of New Brunswick v Ryan, 2003 SCC 20, a decision rendered before the Supreme Court of Canada’s more recent statements on the adequacy of reasons in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses]. However, in the context of a decision of the CDS, the Applicant points out that in Stemmler, above, at para 55, this Court held that “Newfoundland Nurses and its progeny is not an invitation to the Court to provide reasons that were not given, nor is it a license to guess what findings might have been made or to speculate as to what a decision-maker might have been thinking.”
[45] The Applicant says that the Decision is unreasonable because it fails to acknowledge the deficiencies and contradictions in the Committee’s findings. In these circumstances, only a reasoned and detailed explanation that addresses these concerns could meet the sufficiency of reasons required. The Applicant submits that the failure to do so also amounts to a failure to conduct the required hearing de novo.
(4) Universality of Service
[46] The Applicant submits that the CDS’ conclusion that he is unable to meet the universality of service requirement is unreasonable. The Decision does reference that the Applicant was diagnosed with adjustment disorder, narcissistic personality traits, and generalized personality disorder, and states that the CDS found enough evidence to justify the conclusion that the Applicant was unfit to serve in the CAF. But the Applicant says that the Decision ignored Dr. Cruchley’s initial January 10, 2012 report and Dr. Nayar’s July 18, 2012 report, both of which said that the Applicant could return to duties. The report by Dr. Helmer, which found that the Applicant’s condition was treatable through continued therapy, and which the Applicant argues was commented on positively by Captain Ron Padua in 2014, is similarly ignored. The Decision does not comment on further reports by Dr. Rahmani, Dr. Lizon, and Dr. Blackshaw. The Applicant submits that the CDS’ emphasis is on his medical conditions, instead of their effect on his ability to meet the requirements of military service, lacks transparency and intelligibility. He says that there is no analysis beyond reliance on the CDS’ own expert, and no reasons provided for the D Med Pol’s determination.
[47] The Decision notes the “many representations made” by the Applicant, but does not elaborate on what those representations were. The Applicant says that this prevents the Court’s determination of what facts the CDS relied on and contributes to the Decision’s unreasonableness.
(5) Conduct of the ARMEL
[48] The CDS finds that the Applicant had “ample opportunity to submit medical evidence to counter the [administrative review’s] findings” and observes that there was evidence in the Applicant’s file that medical assessments had taken place. The Applicant interprets this as suggesting that the CDS found that the Applicant did not provide evidence. He says that such a finding is unreasonable even if the evidence he submitted was considered insufficient. Such a situation is distinguishable from Shannon, above, at para 53, as that decision held that the CDS is entitled to prefer the evidence of CAF experts where the decision has “fairly weighed the medical evidence.” The Applicant says that the CDS fails to weigh the medical evidence that supported his position and is therefore not entitled to prefer the CDS’ expert, particularly when some of the Applicant’s evidence comes from other CAF doctors.
(6) Causal Connection between Harassment and Medical Release
[49] The Applicant also says that the record is replete with evidence of the harassment he suffered and demonstrates a causal connection between the harassment and his medical release. The Decision does not provide an explanation for finding that there is no causal link between the harassment, and the Applicant argues that such a finding is only available if the CDS considered the evidence and made findings of fact about whether the harassment occurred. The CDS’ decision that he did not have jurisdiction to consider the harassment allegation precluded this investigation and therefore suggests that such an investigation did not occur. The Applicant submits that to then find that there is no causal link between his harassment and his medical release is both a denial of natural justice and unreasonable.
(7) Remedy
[50] The Applicant requests the following relief:
a) An order staying his medical release from the CAF;
b) An order quashing the Decision;
c) An order directing the final authority to rehear the matter with guidance from this Court; and
d) Costs in the application.
B. Respondent
[51] The Respondent submits that, in addition to the Applicant’s allegation that he was not afforded sufficient procedural fairness, the grounds of review raised by the Applicant can be summarized as four iss