Date: 19980908
Docket: T-349-98
BETWEEN:
JAMES GORDON RYCROFT
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Ottawa, Ontario
on Wednesday, September 2, 1998, as edited]
ROTHSTEIN J.
[1] This judicial review concerns amendments to the grievance process provided for under the Queen's Regulations and Orders for the Canadian Armed Forces, P.C. 1970-10/11494 (QR & Os). Generally, the grievance process requires that a complaint be sent up the chain of command. If, after each stage, the grievor is dissatisfied with the decision made, he is entitled to submit the complaint to a higher authority. Before December 2, 1994, the highest level of authority was the Governor in Council. On and after December 2, 1994, recourse to the Governor in Council was eliminated and the highest level of authority was the Minister of Defence.
[2] In this case, the applicant was affected by a forces reduction plan. While he left the Armed Forces voluntarily in September 1994, he felt that the process wrongly denied him certain benefits amounting to some $69,000 before tax. He therefore filed a complaint.
[3] The complaint was filed on September 12, 1994. On September 13, 1994, aware of the fact that the grievance procedure was to change as of December 2, 1994, the applicant requested that the complaint be submitted to the Governor in Council. After the applicant submitted the complaint through the chain of command, it was finally disallowed by the Minister of Defence on May 22, 1996. In addition, the Minister refused to submit the complaint to the Governor in Council.
[4] The respondent makes a preliminary objection that the judicial review has been commenced out of time. It is not necessary to deal with that objection.
[5] Article 19.26(22) of the QR & Os effective December 2, 1994, provides:
| 19.26(22) Nothing in this article affects any right that an officer or non-commissioned member had prior to 2 December 1994 to have a complaint adjudicated by the Governor in Council, if the officer or non-commissioned member has requested that the complaint be submitted to the Governor in Council before that date. |
[6] The applicant says that because he had requested that his complaint be submitted to the Governor in Council prior to December 2, 1994, he had a vested right of recourse to the Governor in Council. However, Article 19.26(22) must be read in conjunction with Article 19.26(6) of the QR & Os dated September 1970, which was the provision providing for recourse to the Governor in Council and which was repealed as of December 2, 1996:
| 19.26(6) If the complainant does not receive from the Chief of Defence Staff the redress to which he considers himself entitled, he may submit his complaint in writing to the Minister and, if the complainant so requires, the Minister shall submit the complaint to the Governor in Council. |
[7] Under Article 19.26(6), the only way in which a complaint could be submitted to the Governor in Council was if a complainant, in submitting his complaint to the Minister of Defence, required that the Minister submit the complaint to the Governor in Council. It is that provision to which Article 19.26(22) of the new QR & Os must refer when it says:
| ... if the officer or non-commissioned member has requested that the complaint be submitted to the Governor in Council before that date. |
| (i.e. December 2, 1994) |
In other words, there is no at large right whereby a complainant, at any stage of a grievance, could request that his complaint be submitted to the Governor in Council. That would be the antithesis of the chain of command approach for grievances in the QR & Os. It is only in accordance with article 19.26(6) that this could be done. Under that provision, provided it was prior to December 2, 1994, the time when the right to have the complaint considered by the Governor in Council vested would have been when the complainant submitted the complaint to the Minister of Defence with a request that it be submitted to the Governor in Council. That was not done before December 2, 1994 in this case and therefore the applicant did not have a vested right of recourse to the Governor in Council.
[8] The applicant says that he had no control over the timing of the grievance process and potentially any decision maker in the chain of command could delay deciding the complaint until December 2, 1994. If it could be demonstrated that there was some bad faith delay by persons in the chain of command aimed at denying grievance access to the Governor in Council, perhaps the Court could grant relief. But here there is no such evidence.
[9] There are numerous levels of authority to which a complainant may grieve and it appears that in 1994 it was decided that the Governor in Council should no longer be one of those levels. Simply because a grievance started before December 2, 1994, with a request that it be submitted to the Governor in Council, does not mean the right to submit the complaint to the Governor in Council vested when the request was made. That right could only vest once a complainant was at the stage of submitting the complaint to the Minister of Defence and then only if this was done before December 2, 1994 with the request that the complaint be submitted to the Governor in Council. This grievance process did not reach that stage prior to December 2, 1994 and therefore there was no vested right to have the complaint considered by the Governor in Council.
[10] The judicial review is dismissed.
"Marshall Rothstein"
Judge
OTTAWA, ONTARIO
SEPTEMBER 8, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-349-98
| STYLE OF CAUSE: JAMES GORDON RYCROFT |
- and -
| THE ATTORNEY GENERAL OF CANADA |
DATE OF HEARING: WEDNESDAY, SEPTEMBER 2, 1998
PLACE OF HEARING: OTTAWA, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: TUESDAY, SEPTEMBER 8, 1998
APPEARANCES:
Mr. James Gordon Rycroft
For the Applicant
Mr. F.B. Woyiwada
For the Respondent
SOLICITORS OF RECORD:
James Gordon Rycroft
| Barrister & Solicitor |
| 324 Kennedy Lane East |
| Orleans, Ontario |
| K1E 3M3 |
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980908
Docket: T-349-98
Between:
JAMES GORDON RYCROFT
Plaintiff
- and -
| THE ATTORNEY GENERAL OF CANADA |
Defendant
REASONS FOR ORDER