Date: 20040922
Docket: T-2101-03
Citation: 2004 FC 1294
Ottawa, Ontario, Wednesday the 22nd day of September, 2004
PRESENT: The Honourable Justice Campbell
BETWEEN:
MAJOR GORDON D. DOYLE
Applicant
and
THE CHIEF OF THE DEFENCE STAFF
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present Application, by a decision dated September 22, 2003, the Chief of the Defence Staff dealt with the Applicant's claim for redress of grievance pursuant to s.29 of the National Defence Act, R.S.C. 1985, c.N-5 (the "Act"). In his grievance, the Applicant objected to being requested to use his annual leave to account for a portion of the time he spent away from his place of work in order to complete his relocation. In addition, he sought special leave to compensate him for time spent preparing his grievance and for pain and suffering he allegedly suffered before and during the grievance process.
[2] For the reasons which follow, I find that one isolated aspect of the Chief of the Defence Staff's decision was made in reviewable error.
A. Background history
[3] The history of the Applicant's grievance spans six years and involves a great deal of effort on both sides to reach a determination. To give a context for the decision which I have reached, I believe it is useful to provide the following chronological description.
[4] The Applicant is an officer in the Canadian Armed Forces ("Canadian Forces") holding the rank of major. The Canadian Forces transferred the Applicant from Trenton, Ontario to the position of Head Social Worker at the Canadian Forces Support Unit in Ottawa, effective April 1998. As the Applicant's new residence in Ottawa would not be available for occupancy before July, his family remained in Trenton until they could move to their new home.
[5] The Applicant received approval from his employer to move his household goods from Trenton to Ottawa. He spent eleven days away from work (July 16 to 30th inclusive) conducting the move, including time spent waiting for an electrician and attending a pre-closing inspection of his new home.
[6] In August 1998, the Administrative Officer of the Applicant's unit questioned the reason for the Applicant's eleven-day absence from work and insisted that the Applicant submit a leave pass for the time not covered by the five-day special leave allowed by the Canadian Forces Administrative Order 209-36. The Administrative Officer informed the Applicant that he would be charged with being absent without leave if he did not account for his entire absence by submitting a leave form.
[7] The Applicant characterized the treatment by the Administrative Officer as constituting intimidation and harassment in the form of being threatened with a charge of absence without leave because of a delay in the moving process that was beyond his control. On August 10, 1998, the Applicant submitted a memorandum complaining of harassment by the Administrative Officer and describing the circumstances surrounding his eleven-day absence from work.
[8] The following day, the detachment commander responded to the Applicant's memorandum, stating that Canadian Forces members are entitled to five days special leave to relocate their family and that he would grant the Applicant an additional two days of short leave; he required the Applicant to apply for four days annual leave to cover the remaining time the Applicant had spent away from his workplace. Finally, the detachment commander noted that if the Applicant wanted to pursue a harassment complaint against the Administrative Officer, he would order an investigation.
[9] The Applicant's superior officer approved the request for four days of annual leave on September 1, 1998.
[10] On September 29, 1998, the Applicant submitted a formal request for redress of grievance, asking the Canadian Forces to his restore four days of annual leave.
[11] A summary investigation of the circumstances surrounding the Applicant's absence from his place of work concluded on October 9, 1998, with a report recommending improvements in establishing and maintaining reporting relationships at the Applicant's place of work. The report contained no recommendations respecting the Applicant himself.
[12] On October 23, 1998, the Applicant's Commanding Officer forwarded the Applicant's request for redress and the result of the summary investigation to the Commander of the Canadian Forces Medical Group.
[13] In a memorandum dated February 19, 1998, the Commander of the Canadian Forces Medical Group denied the Applicant's request for redress. He applied Canadian Forces Administrative Order 209-36 which explicitly allows five days special leave for Canadian Force's members to move their family and that "if for personal reasons, more time is required,... annual leave must be taken in conjunction with the five days special leave". The Commander rejected the Applicant's claim that he was unaware of his entitlements or the requirement that he inform his superiors of his whereabouts. The Commander observed that, technically, the Applicant was absent without leave and could be subjected to administrative or disciplinary action. The Commander stated that the compromise solution authorizing the Applicant's two days of short leave and requiring him to take four days of annual leave was a generous compromise under the circumstances. The Commander also noted that the Applicant had not acted on his Commanding Officer's willingness to institute an investigation of any harassment complaint against the Administrative Officer.
[14] On May 28, 1999, the Applicant requested that a higher authority consider an expanded request for redress. In addition to his previous request that the Canadian Forces restore four days leave to his annual leave entitlement, the Applicant requested additional travel expenses, as well as time off work to compensate him for the time he spent preparing his request. The Applicant also requested written apologies from officials charged with interpreting and applying the relevant rules and policies and that the Canadian Forces provide adequate training to members interpreting and implementing relocation entitlements.
[15] On August 9, 1999, the Commandant of the Canadian Forces Support Unit, Ottawa, responded to the Applicant's request for redress. The Commandant supported the authorization of two additional days for the purpose of supervising the loading and unloading of the Applicant's possessions, however she did not consider the day spent waiting for the electrician or the day dealing with the Applicant's new home inspection to be part of his official move, and considered it appropriate that annual leave be utilised for those days. The Commandant was satisfied that the Applicant had received proper compensation for his travel and moving expenses and did not support the payment of additional claims. The Commandant concluded that there is no provision for compensatory leave to prepare a grievance, but stated that she would authorize two days short leave. She also asked whether the Applicant wished to mediate his dispute with the Administrative Officer or submit a harassment complaint.
[16] On November 9, 1999, the Applicant submitted his grievance to the Chief of the Defence Staff for adjudication, requesting the restoration of four days of annual leave, twenty one days special leave in compensation for the time spent preparing his grievance, and three months of special leave to compensate him for the pain and suffering allegedly suffered during the grievance process.
[17] Following receipt of the Applicant's grievance, the Directorate of the Canadian Forces Grievance Administration obtained an opinion from the Director of Pension and Social Programs on the application of leave policy to the Applicant's case. The opinion confirmed that, based on Canadian Forces Administrative Order 209-36, the Applicant was entitled to, and received, five days of special leave and that members requiring additional time must take annual leave. He concluded that while the Applicant's request for compensatory leave fell "somewhat beyond the scope" of his jurisdiction, there was no policy providing compensatory time off for time spent responding to a redress of grievance, and that in any event, the Chief of the Defence Staff could grant no more than thirty days of compensatory leave.
[18] When the Canadian Forces Streamlined Process for determining grievances came into force on June 15, 2000, the Chief of the Defence Staff referred the Applicant's request for redress to the newly established Canadian Forces Grievance Board ("CFGB").
[19] On November 1, 2000, the Applicant filed written submissions with the CFGB requesting production of a legal opinion and the names of Canadian Forces members who allegedly advised the Applicant of his move entitlements. The Applicant also took issue with the interpretation of Canadian Forces Administrative Order 209-36 and its application to his case.
[20] On October 31, 2002, the CFGB issued a report of its findings and recommendations concerning the Applicant's grievance. The CFGB found that the Canadian Forces properly applied Canadian Forces Administrative Order 209-36 in dealing with the Applicant's leave entitlements and that it was reasonable for the Applicant to spend eight days loading and unloading his household goods. It also found that the time spent waiting for an electrician and conducting a pre-closing inspection of his new home in Ottawa were not necessary components of the relocation and that the offer made by the Commandant of the Applicant's unit to grant two days of special leave was reasonable. Finally, it concluded that so far as the Applicant's grievance of harassment was concerned, it had "...not been subjected to an investigation during which the respondents would have the opportunity to respond".
[21] Based on its findings, the CFGB recommended that the Chief of the Defence Staff authorize two days of special leave for the extra time necessary for loading and unloading the Applicant's household goods. The Board also recommended that the Chief of the Defence Staff determine whether the Applicant had received the two short leave days for medical reasons set out in the Commandant's adjudication of the grievance. In all other respects, the CFGB recommended that the Chief of the Defence Staff dismiss the grievance. The Applicant received a copy of the CFGB's report and recommendations on November 21, 2002. (Affidavit of the Applicant sworn December 8, 2003, Applicant's Record, p. 35, para. 56)
[22] On September 19, 2003, a Staff Officer presented the grievance file concerning the Applicant to the Chief of the Defence Staff for adjudication. The material submitted to the Chief of the Defence Staff included the recommendations of the CFGB and copies of the submissions filed by the Applicant at every stage of the grievance process.
B. The decision under review
[23] By letter dated Sept. 22, 2003, the Chief of the Defence Staff responded to the Applicant's request for redress of grievance as follows:
I concur with the Grievance Board's findings and I agree with their recommendations that I grant you two days' special leave to compensate you for the extra time taken to load and unload your furniture and effects. I also agree with the Board's recommendation to restore the two days' annual leave to your account. The Board did not consider the day spent waiting for the electrician (17 July 1999) or the day of the pre-closing inspection of your new home in Ottawa (19 July 1999) to be periods of duty. I agree with that conclusion. I also directed the Commandant (Cmdt) CFSU(O) to review your records to confirm that you have been awarded the two days of short leave for medical reasons that the Cmdt CFSU(O) was prepared to award in August 1999, and if they have not been awarded, to ensure that you receive them now.
In respect of your request for 21 days of special leave for the preparation of your grievance file for its submission, I agree with the Grievance Board's conclusion that there is no regulatory basis for compensating you for voluntarily having taken this course of action and I am not prepared to grant your request.
In my review of the correspondence on file, I also noted your expressions of frustration with the matter in which your situation has been handled by the administrative staff. In response, you were twice offered the opportunity to bring your allegations forward within the CF harassment guidelines, but there is no evidence that you have done so. As there is no substantiation to support your allegations, I do not grant your request for three months of special leave for the pain and suffering resulting from the alleged harassment.
(Letter from the Chief of the Defence Staff to the Applicant dated September 22, 2003, Applicant's Record, p. 159)
[24] The Chief of the Defence Staff directed officials to take the corrective action set out in his response to the Applicant's grievance. (Memorandum to distribution dated September 22, 2003, Respondent's Record, p. 9).
[25] In the judicial review Application filed, the Applicant takes issue with each of the findings of the Chief of the Defence Staff. However, as is detailed in Section F below, in the end result, all but one issue has a firm foundation.
C. Relevant legislative provisions and administrative order
[26] The Chief of the Defence Staff is the most senior officer in the Canadian Forces. All orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister must be issued by or through the Chief of the Defence Staff. Under the authority of s.18 of the Act, the Chief of the Defence Staff issues the Canadian Forces Administrative Orders. In the present case, the relevant Canadian Forces Administrative Order is 209-36, the pertinent portions of which read as follows:
ADDITIONAL TRANSPORTATION ENTITLEMENTS ON RESTRICTED POSTINGS
Purpose
1. This order amplifies QR & O 209.831.
General
2. When a member is serving at a place of duty within Continental North America to which he proceeded unaccompanied on a restricted posting, he is entitled to the benefits prescribed in this order when the move of his dependants to his place of duty is later authorized except when the member utilized the full House Hunting Trip (HHT) benefit (member and spouse return trip) under CFAO 209-45.
Duty Time
3. A member may be granted five days special leave for the purpose of proceeding to the place where his dependants are residing to assist and accompany them for the journey to his place of duty. If for personal reasons, such as the mode of transportation chosen, more time is required, annual leave must be taken in conjunction with the five days special leave.
4. For the accompanied journey:
a. when travel is by private motor vehicle (PMV), travelling time under CFAO 209-26 paragraph 4 may be granted only where no travelling time was granted for the unaccompanied trip by PMV on posting to the new place of duty ie. PMV travelling time may be granted only once for each posting; and
b. when travel is by other authorized modes of transportation, required travelling time will be granted.
...
(Canadian Forces Administrative Order 209-36, Applicant's Record, p. 146)
[Emphasis added]
[27] The Applicant brought his complaints under s.29 of the Act, which permits grievances to be dealt with by superior authorities in the Canadian Forces. As provided by s.29.11, the Chief of the Defence Staff is the final authority in the grievance process. The Chief of the Defence Staff has the authority, within limits prescribed in the Act and the Queen's Regulations and Orders, to correct errors discovered as a result of an investigation of a grievance. He may also grant certain forms of leave, such as special leave not exceeding 30 days pursuant to Queen's Regulations and Orders 16.20(a). Under s.29.15 of the Act, a decision of the Chief of the Defence Staff respecting a grievance is final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal or review by any court.
[28] Under s.29.12, the Chief of the Defence Staff must refer certain grievances to the CFGB for its findings and recommendations before the Chief of the Defence Staff determines the grievance. The Chief of the Defence Staff is not bound by the findings and recommendations of the CFGB, but must provide reasons if, in the decision disposing of the grievance, he or she decides not to act on those findings or recommendations.
D. The standard of review
[29] The Applicant, who is self represented, did not address the issue of standard of review in written submissions.
[30] The Respondent argues that the appropriate standard of review of a decision taken by the Chief of the Defence Staff under s.29 of the Act with respect to a grievance requesting leave is patent unreasonableness. The Respondent takes the position that such a decision is a discretionary decision, and, therefore, deserves a high degree of deference. The Respondent submits that a reviewing court cannot intervene where the Chief of the Defence Staff has acted in good faith, in accordance with the law, and on the basis of relevant criteria of evidence.
[31] As mandated by the Supreme Court in Pushpanathan v. Canada (M.C.I) [1998] 1 S.C.R. 982 and Dr. Q v. College of Physicians and Surgeons of B.C. [2003] 1 S.C.R. 226, it is necessary to undertake a pragmatic and functional analysis in determining the appropriate standard of review. Factors to be considered on a pragmatic and functional analysis are as follows: first, the presence or absence of a privative clause insulating, to a greater or lesser degree, from judicial intervention the decision under review; secondly, the expertise of the tribunal in relation to the Court's expertise; thirdly, the purpose of the law underlying the decision under review, and of the particular provisions of that Act; and finally, the nature of the issues before the Court.
[32] Given the just described broad nature of the Chief of the Defence Staff's expertise and authority, and the limited review possibility of decisions rendered, I agree with the following argument of the Respondent with respect to the standard of review of the Chief of the Defence Staff's decision:
54. Applying the functional approach, decisions of the CDS attract a high degree of deference when the CDS must consider whether a grievor [sic] should receive leave. In such cases, the general principles constraining the exercise of discretionary power apply. The CDS must exercise his discretionary powers in good faith, in accordance with the law and on the basis of relevant criteria o evidence. If the CDS complies with those requirements, no reviewing court can intervene or substitute its views for his or hers, even if it considers the decision unwise or wrong. In other words, such decisions will not be overturned unless they are "patently unreasonable". (Memorandum of Fact and Law of the Attorney General of Canada, pp.17 - 20)
E. Conclusions reached during the course of the oral hearing
[33] As mentioned, in the present Application the Applicant takes issue with each of the findings of the Chief of the Defence Staff. Very detailed written argument was supplied by both the Applicant and Counsel for the Respondent. Each of the issues raised in the decision under review were canvassed in detail during the course of the oral hearing, a transcript of which is available. My purpose in making this point is to say that, during the course of the oral hearing, I decided upon each issue, save and except only one relating to the exercise of discretion by the Chief of the Defence Staff. Indeed, on each issue except the one, the transcript can be consulted by interested persons to learn of the details. Since the parties to the judicial review are already apprised of my decision on all issues but one, I will only provide a cursory analysis in these reasons.
1. Leaves granted
[34] As it certainly works in his favour, and as the end result of the dialogue conducted during the oral hearing, the Applicant does not contest the granting of the five-day special leave provided by the Canadian Forces Administrative Order 209-36, except with respect to its relevance with regard to the Chief of the Defence Staff's failure to grant a discretionary remedy on the "not necessary components of the relocation" issue last dealt with below. For the same reasons, the Applicant does not contest the granting of the two-day special leave to compensate for the extra time taken to load and unload furniture and effects, nor the restoration of the two-days annual leave to his account.
2. The harassment complaint
[35] The Applicant agrees that he did not conform with the requirements of the Canadian Forces policy on harassment (OAFC 19-39) either with respect to the procedure required by s.13 of the Order or the parallel procedure mandated by s.43 of the Order. As a result, I find no error in the Chief of the Defence Staff's decision with respect to the harassment issue. As a result, I find the Applicant's argument for a positive discretionary finding for pain and suffering is without foundation, and, therefore, it is dismissed.
[36] As the Applicant is unable to provide any regulatory basis for the Chief of the Defence Staff to compensate him with 21 days of special leave for preparation of his grievance, I find the Chief of the Defence Staff was not in error in reaching his finding that no such regulatory basis exists. As a result, I dismiss this aspect of the Applicant's argument.
F. Is there a reviewable error in the Chief of the Defence Staff's application of discretion?
[37] This issue was not decided during the course of the oral hearing.
[38] The heart of the Applicant's grievance from the outset is that he was required to take four days of holidays to meet the requirement that he account for the eleven days of service he missed due to the move. Prior to the Chief of the Defence Staff's decision, the Applicant has been successful in obtaining favourable grievance decisions to cover off seven of the eleven days. While the Applicant accepts the success he has had in having the Chief of the Defence Staff grant him two days of compensatory leave and the restoration of two days of annual leave to his account, thus leaving only debate about two days of holidays, the Applicant argues that the Chief of the Defence Staff's decision is patently unreasonable in not granting the further two days for necessary components of the relocation.
1. "The necessary components of the relocation" issue
[39] In the end result, the present Application turns solely on this consideration. The following finding of the CFGB is the source of the Applicant's patently unreasonableness argument:
The Board finds, on a balance of probabilities, that the available evidence does not support the grievor's [sic] position that the two days related to waiting for the electrician (July 17, 1998) and the pre-closing inspection of the new home in Ottawa (July 22, 1998) were necessary components of the relocation. Those two days were used for "personal reasons" (CFAO paragraph 209-36(3)).
(Respondent's Record, Volume 1, p.36)
The Applicant's argument is that the CFGB's finding is erroneous and, as a result, since it was accepted without question by the Chief of the Defence Staff, the Chief of the Defence Staff's acceptance is patently unreasonable. I agree with this submission.
a. waiting for the electrician
[40] In the "pre-move information package" given to persons in the Applicant's moving situation in 1998, the following statement is made:
In order that Carrier liability be valid your Origin contractor Subcontractor will arrange for the certification and servicing of your electrical, electronic, and mechanical equipment and appliances by established professionals in the fields of appliance/electronic and computer repair as noted on your "Servicing and Certification" form. The estimator will complete this form with you during the Pre-Move survey. (Respondent's Record, Volume 1, p.157)
The Applicant stated during the course of oral argument that he felt compelled to ensure that the electrical certification was accomplished as a necessary component of his relocation. In this respect, the Applicant referred to a guide in which an explanation of his "rights and responsibilities" with respect to the "pre-move package" are stated as follows:
"The member must sign for /read this package entirely, paying particular attention to documentation procedures" (Respondent's Record, p.152).
[41] Based on the Applicant's belief that he was required to officiate over the electrical certification, he argues that the Chief of the Defence Staff should have taken this into consideration and awarded him one day discretionary leave.
b. attending the pre-closing inspection
[42] The Applicant referred to a document he received at the time of his relocation containing the following statement:
It is the expectation of DND that all CF members be present at the closing of their real estate transaction (purchase or sale). As such, attending fees or charges for the preparation of a Power of Attorney are not normally reimbursable.
In exceptional circumstances where a member cannot be present at the closing of the real estate transaction for reasons beyond the member's control, reimbursement of attending fees for another lawyer to witness the signing of documents at the member's location may be authorized to a maximum of $50.00. (Respondent's Record, p.155)
With respect to this document, the Applicant also referred to a document called "Helpful hints for People on the Move" which includes the following statement:
You will be provided with a pre-move package from your contractor- READ IT ALL AND READ IT CAREFULLY!!! If you still have questions ask your contractor to explain. (Respondent's Record, p.153)
[43] With respect to both the "waiting for the electrician" and "attending the pre-closing inspection" concerns, in the course of the oral argument the Applicant stressed that, as a member of the military, at the time of his relocation he felt obliged to comply with the expectations set. Counsel for the Respondent did not object to me accepting this statement as true. As a result, I find that the Applicant believed that he was required to follow the expectations set as necessary components of his relocation. There is no doubt on the record that the Applicant tried to make this point in the grievance process.
[44] In my opinion, on the evidence on the record, it is not possible to find on a balance of probabilities that the electrician and the pre-closing inspection expectations were not necessary components of the relocation. I agree with the Applicant's argument that it is erroneous to find, as the CFGB did, that these expectations were fulfilled for "personal reasons".
[45] As a result, since the Chief of the Defence Staff accepted the CFGB's erroneous finding, I agree with the Applicant that this single isolated acceptance, which forms a decision in the Chief of the Defence Staff's resolution of the grievance, is patently unreasonable. As a result, I find that, to this limited extent, the Chief of the Defence Staff's decision was made in reviewable error.
[46] In the course of oral argument, both the Applicant and Counsel for the Respondent agreed that, if I decide in favour of the Applicant on the "the necessary components of the relocation" issue, then only this issue should go back to the Chief of the Defence Staff for reconsideration.
ORDER
Accordingly, I set aside the Chief of the Defence Staff's decision to accept the CFGB's finding respecting the "electrician" and "pre-closing inspection" (Respondent's Record, Volume 1, p.36), and refer "the necessary components of the relocation" issue back to the Chief of the Defence Staff for careful reconsideration, and possible granting of two further days of discretionary compensatory leave.
While the Applicant did not press an argument for costs should he be successful on any issue in the Application, I find that it is only fair that he receive compensation for disbursements in relation to the one issue on which he has been found to be successful.
Accordingly, I award costs to the Applicant in the sum of $500.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2101-03
STYLE OF CAUSE: MAJOR GORDON D. DOYLE v. THE CHIEF OF THE DEFENCE STAFF
PLACE OF HEARING: Ottawa, Ontraio
DATE OF HEARING: September 20, 2004
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE CAMPBELL
DATED: SEPTEMBER 22, 2004
APPEARANCES:
Major Gordon D. Doyle APPLICANT
Mr. Brian R. Evernden FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Major Gordon D. Doyle APPLICANT ON HIS OWN BEHALF
Ottawa, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada