Chapter 4 – The Military Grievance Process

  1. Overview
    1. Members of the Canadian Armed Forces (“CAF”) have fewer means of redress than civilians in other organizations. They are not permitted to unionize or otherwise collectively negotiate their working conditions.Footnote 681 They do not have employment contracts. And when they believe they have been aggrieved by any decision, act or omission of the CAF, they do not have recourse to an independent tribunal.Footnote 682
    2. Their main recourse is the right to file an individual grievance, on virtually any subject,Footnote 683 with their chain of command.Footnote 684 Most grievances pertain to compensation and benefits, personnel evaluation reports (“PERs”), career management, conduct, terms of service, health care, education and training, messes and institutes, and recruitment and selection.Footnote 685
    3. The military grievance process is defined in sections 29 to 29.28 of the NDA, Chapter 7 of the QR&O and DAOD 2017-1, Military Grievance ProcessFootnote 686 (“DAOD 2017-1”). It can be summarized this way:
      1. Prior to submitting a grievance, CAF members can submit a notice of intent to grieve (“NOI”) to their chain of command to seek resolution at the lowest possible level. The NOI and the initiation of an informal resolution process do not suspend the timelines to submit a grievance.Footnote 687
      2. CAF members are entitled to submit a grievance with their commanding officer within three months after the day on which they knew or ought reasonably to have known of the decision, act or omission that is the subject of the grievance.Footnote 688 The commanding officer, or the next superior officer who is responsible for dealing with the matter (“Initial Authority” or “Initial Authorities”), can, however, consider a grievance that is submitted after the expiration of the time limit if satisfied that it is in the interests of justice to do so.Footnote 689
      3. The commanding officer of a CAF member who submits a NOI or a grievance is required to assign without delay an assisting member to assist the grievor.Footnote 690 The Conflict and Complaint Management Services (“CCMS”) centresFootnote 691 can also help grievors submit, track, and resolve their grievances.Footnote 692
      4. Commanding officers who receive a grievance must determine whether they can act as the Initial Authority. If the grievance relates to the decision, act or omission of the commanding officer or if the commanding officer cannot grant the redress sought by the grievor, the commanding officer cannot act as the Initial Authority. The matter must then be referred to the Canadian Forces Grievance Authority (“CFGA”) for it to identify the appropriate Initial Authority. Initial Authorities can be at any level between Levels 1 and 4 in the CAF organizational chart.Footnote 693
      5. The Initial Authority is required to adjudicate the grievance within four months.Footnote 694 If the Initial Authority does not determine a grievance within the time limit, the grievor may request that the grievance be considered and determined by the Final Authority,Footnote 695 namely the CDSFootnote 696 or an “officer directly responsible to the Chief of the Defence Staff” to whom powers, duties or functions as Final Authority have been delegated by the CDS.Footnote 697 Until that request is made by the grievor, the Initial Authority remains seized of the grievance.
      6. If the grievance is granted by the Initial Authority, that ends the matter. If not, the grievor may, within 30 days of receiving the decision of the Initial Authority, request the Final Authority to consider and determine the grievance.Footnote 698 The Final Authority may also consider and determine a grievance that was submitted to the Initial Authority after the expiration of the time limit if satisfied it is in the interests of justice to do so.Footnote 699
      7. The Final Authority must refer to the Military Grievances External Review Committee (“MGERC”), an independent administrative body, any grievance relating to certain matters, including deductions from pay and allowances, reversion to a lower rank or release from the CAF; policies relating to harassment or racist conduct; pay, allowances and other financial benefits; the entitlement to medical care or dental treatment.Footnote 700 The Final Authority may also refer any other grievance to the MGERC. The MGERC reviews military grievances and provides findings and recommendations (“F&Rs”) to the Final Authority and the grievor.Footnote 701
      8. The Final Authority is not subject to any time limit for adjudicating a grievance, and is not bound by any F&Rs of the MGERC.Footnote 702 However, the Final Authority “shall provide reasons for his or her decision in respect of a grievance if [the Final Authority] does not act on a finding or recommendation of the [MGERC]”.Footnote 703 The Final Authority’s decision is final and binding, subject to judicial review.Footnote 704
      9. The Final Authority’s power of redress is limited. For example, the Final Authority cannot reinstate (with pay and benefits) members who were improperly released, Footnote 705 use its authority to make ex gratia payments to compensate a CAF member for the apparent limitations in any government instrument (act, regulation, policy, etc.), Footnote 706 or settle claims against the Crown that arise in the context of a grievance.Footnote 707
    4. The rationale for leaving decisions regarding military grievances in the hands of the chain of command, I was told, is to allow it to exercise its leadership in all aspects of CAF members’ lives. This shows the troops that the chain of command cares about the issues confronting them and, this, in turn, helps to ensure that CAF members remain willing to obey the lawful orders of their leaders. The CDS, in particular, is responsible for the welfare and morale of all members of the CAF and, it is said, therefore needs to be made aware of all grievances, directly or indirectly.Footnote 708
  2. The Main Problem: Delays
    1. The major impediment to achieving these goals is the CAF’s enduring problem with unacceptable delays in the military grievance process.
    2. Bill C-25,Footnote 709 enacted in 1998, introduced the two-tiered grievance process currently in place (Initial Authority, then Final Authority and MGERC). As Chief Justice Lamer, the First Independent Review Authority, noted in his 2003 report, “[r]educing delays relating to the redress of grievances was one of the major reasons behind the new grievance process established by Bill C-25”.Footnote 710 The reform largely failed, he concluded: “there remain[ed] major problems with the grievance process. In particular, the grievance process continue[d] to suffer from unacceptable delays, it [was] overly bureaucratic and continue[d] to lack transparency”.Footnote 711
    3. Chief Justice Lamer made five recommendations which he called “solutions” for the problem of delays, particularly at the Final Authority level.Footnote 712 All but one relied on the CAF to handle the problem internally. All but that one were implemented, either partially or completely.Footnote 713
    4. The one recommendation that was not implemented was meant to hold the chain of command accountable, at both levels of the grievance process. Chief Justice Lamer recommended that “there be a time limit of 12 months for a decision respecting a grievance from the date that a grievance is submitted to a commanding officer to the date of a decision by the Chief of Defence Staff or his delegate”.Footnote 714 He added that if “the one year time limit is not met, subject to the exception for grievances that the Chief of Defence Staff must personally adjudicate, a grievor should be entitled to apply to the Federal Court”.Footnote 715 To this day, the Final Authority is not subject to time limits or independent oversight, other than judicial review.
    5. Chief Justice LeSage, the Second Independent Review Authority, submitted his report in 2011. At the time of his report, most of the recommendations made by Chief Justice Lamer had still not been implemented. And the situation had not improved: “Unfortunately, many of the same concerns were raised by CF members at the bases I visited in the summer of 2011 and also in the submissions forwarded to me, now eight years after the Lamer Report”.Footnote 716
    6. The solution advocated by the CAF was to cut down the timeline for the grievor to submit a grievance, and increase the time limit for the Initial Authority to respond from three to four months.Footnote 717 Chief Justice LeSage supported these solutions. However, he also reiterated the recommendation made by his predecessor of a one-year time limit, from beginning to end:
      • There should be a time limit of one year for a decision respecting a grievance from the date the grievance is submitted to the date of a decision by the CDS or his delegate. I also recommend the grievor be regularly advised of the status of their grievance.Footnote 718
    7. This recommendation suffered the same fate as the identical recommendation by Chief Justice Lamer.
    8. My review comes 18 years after the first independent review and 10 years after the second. Yet the situation has not improved. I have met many CAF members who have complained about the delays in the grievance process. The data is similarly disappointing. In a directive dated March 3, 2021, the Acting CDS acknowledged that the problem of delays had not been addressed effectively:
      • 4. As of 1 February 2021, there were 654 grievances registered at the Initial Authority (IA) level and 696 grievances registered at the Final Authority (FA) level, for a total of 1350 grievances awaiting resolution across the CAF. Despite the challenges we all face as a result of operational demands, resource constraints and strategic threats like COVID-19, this is unacceptable, and does little to inspire the trust of our sailors, soldiers, and aviators. Collectively, we must do better. How we respond to this challenge can make or break our institutional credibility as well as our ability to re-build trust with those we lead.Footnote 719
    9. Despite the obligation of the Initial Authority to render decisions on grievances within four months, there has been an increase in the delays at this level over the past few years. Indeed, while the average delay was 200 days in 2017 (or approximately six months and a half), it was up to 267 days in 2019 (or approximately eight months and three-quarters), more than twice the prescribed time limit.
    10. I was also informed of many cases that had remained at the Final Authority level for several years. In one case, a member of the CAF disagreed with his medical release. He filed a grievance in October 2009. The Initial Authority took two years to dismiss the grievance, in November 2011. The Final Authority took another two years to confirm the decision, in November 2013. The Federal Court was more expeditious. It heard the grievor’s application for judicial review in October 2014 and quashed the Final Authority’s decision in December 2014. The matter was referred back to the CDS, who was ordered to take the necessary measures for “the administrative review resulting in the applicant’s release to be undertaken from the beginning by different stakeholders”.Footnote 720 Over six years later, the matter is still pending.Footnote 721
    11. This is just one example. I was informed of several other cases that were referred to the Final Authority between 2012 and 2015 and that are still not resolved in 2021. Some involve difficult questions of policy and fundamental rights. Others appear to be more straightforward and concern issues of career management and compensation and benefits. But regardless of the complexity of each case, the delays are difficult to justify.
  3. CDS Directive for CAF Grievance System Enhancement
    1. The CDS Directive was issued on March 3, 2021, two months before the submission of this Report. It recognizes the “unacceptable” delays in the grievance process and proposes yet another action plan to help remedy the problem. The CFGA admits that my review was responsible for the timing of the CDS Directive. It also admits that the delays affecting the grievance process have not been a priority over the past 10 years:
      • It is acknowledged that the [CAF Grievance System] has only incrementally evolved since the last Independent Review in 2011. You might question why an action plan has only recently been formulated for implementation in the coming months just as the review was about to commence. The CDS makes decisions daily that speak to priority of effort. One only needs to reflect on the Deschamps Report as well as ongoing efforts regarding hateful conduct, workplace violence and victim’s rights to understand the magnitude of the issues facing the CAF as it continues its commitment to reflect the society it represents. This said, the decision to make only incremental change to the [CAF Grievance System] following the 2011 review was to a certain extent risk management given the multitude of much more pressing institutional change required in other areas.Footnote 722
    2. To remedy this, the CDS Directive proposes to “consider the reduction of adjudication timelines at the L3/L4 level from 120-days to 90-days” if the Initial Authorities fail, after eight months, to adjudicate 60 per cent of their grievances within the four-month time limit.Footnote 723 It also suggests “to afford L1 [Initial Authorities] as well as [Chief of Military Personnel] L2s 180-days to render a decision”, instead of 120 days.Footnote 724
    3. Yet the CDS Directive also recognizes that “an increase in [Initial Authority] adjudication timelines under a previous Independent Review of the NDA [which was advocated by the CAF] has ultimately resulted in a lower rate of compliance”.Footnote 725 It is thus difficult to imagine that a reduction of time limits for lower-level Initial Authorities, or an increased time limit for higher-level Initial Authorities, would achieve a different result. The main problem lies not with the length of the time limits, but with the lack of meaningful consequences resulting from their breach.
    4. The CDS Directive also requires Initial Authorities at Levels 3 and 4 who exceed their time limits to advise their superiors.Footnote 726 I imagine, however, that senior officers are already well aware of the low compliance rates of their Initial Authority subordinates. Increasing transparency in the way suggested in the CDS Directive is worthy, but I doubt that it would significantly solve the delay issue.
    5. At the Final Authority level, the CDS Directive refers to the “creation of a small Tiger Team and the development of an expedited process for low risk files that will see decision letters cut from the traditional 6 to 22 pages down to 2 to 4”.Footnote 727 I understand that similar initiatives have been tried before, notably during Operation RESOLUTION, which sought to reduce the backlog of grievances at the Initial Authority level.Footnote 728 While it succeeded in reducing the backlog for some time, the backlog started accumulating again, leading to where we are today.Footnote 729
    6. The rest of the CDS Directive either repeats some elements of the grievance process provided for in the QR&O and DAOD 2017-1Footnote 730 or states aspirational goals.Footnote 731 It does not provide for any additional resources for resolving delays.Footnote 732 I am concerned whether the aspirational goals set out in the CDS Directive can be achieved without allocating additional resources.
    7. The CDS Directive does, however, put forward two initiatives that are consistent with what I have heard from some of the CAF leadership, members of the CAF, grievance analysts, members of the personnel of CCMS centres and other experts. It provides for an off-ramp process for policy grievances and a streamlined process for grievances related to PERs. I will come back to these initiatives below.
  4. Solutions Within the Current Military Grievance Process
    1. Notice of Intent to Grieve and Informal Resolution
      1. The NOI can be sent prior to the filing of a formal grievance. It seeks to ensure “that every effort is to be made to resolve issues early, locally and informally, before they escalate to higher and more formal levels”.Footnote 733 If this works well, the use of the NOI can declutter the grievance process. This led Chief Justice LeSage to “urge grievors to utilize and the chain of command to actively welcome and engage in [the NOI] as a practical tool in the early resolution of what could otherwise become a long and frustrating process”.Footnote 734
      2. A few issues have been raised with me about this process.
      3. Grievance analystsFootnote 735 and members of the personnel of CCMS centres have told me that the chain of command does not always react to a NOI; that intermediaries between the grievor and the commanding officer often try to resolve a NOI without the commanding officer’s knowledge, in order to “protect” their commanding officer; and that CCMS centres, which can provide guidance to CAF members, are not sufficiently used.Footnote 736 More importantly, they also suggested that the NOI should be mandatory.
      4. I agree that making the NOI mandatory would provide significant advantages. It would allow the chain of command and the members of the personnel of CCMS centres to ensure that a matter is grievable; to set conditions for informal resolution; to trigger the early assignment of an assisting member; and to inform commanding officers of issues under their command without engaging the formal process. Making the NOI mandatory would also ensure that grievances are only used when there is “no other process for redress”, which forms part of the very definition of a grievance.Footnote 737 Grievors should not be able to file a grievance about something that the chain of command is ready, willing and able to fix.
      5. Finally, some members of the CAF told me they had already been involved in informal resolution processes for a long period of time when they learned that their 90-day delay for filing a grievance had lapsed.Footnote 738 This is not conducive to promoting the informal resolution of grievances and to instilling trust in the process.Footnote 739
        • Recommendation #86. Members of the Canadian Armed Forces who intend to file a grievance should be required to submit a notice of intent to grieve. The notice of intent to grieve should be sent directly to the members’ commanding officers, with a copy to the local Conflict and Complaint Management Services centre. The submission of a notice of intent to grieve should suspend the time limit within which a grievance must be submitted. The modalities of the suspension and resumption of delays should be determined by the Canadian Armed Forces, in consultation with the Integrated Conflict and Complaint Management. The Queen’s Regulations and Orders for the Canadian Forces and DAOD 2017-1, Military Grievance Process should be amended accordingly.
      6. Another problem that was signalled to me was the fact that grievors are not provided with disclosure of all relevant information during the informal resolution processes. This could result in an imbalance in the information available to the two sides. This is not consistent with the object of the grievance process which, as Chief Justice Lamer stated, is to “be approached by the grievor, the Canadian Forces, including the CDS and the Canadian Forces Grievance Authority (“CFGA”), as well as the Grievance Board in a cooperative manner”.Footnote 740
      7. Section 4.1 of DAOD-2017-1 provides “that every effort is to be made to resolve issues early, locally and informally”. This should require the parties to participate in the process in good faith, to be transparent with each other, including regarding the information in their possession, and to cooperate actively in searching for a solution.
    2. Triage of Grievances
      1. Many high-ranking officers, members of the CAF and external commentators have indicated that a triage system should be implemented to initiate different processes for different categories of grievances (for example, grievances related to PERs, policy grievances, grievances pertaining to improper release, grievances of general interest, etc.).
      2. The CDS Directive puts in place an “off-ramp” initiative that would divert grievances “whereby the grievor’s only request for redress is that a [Treasury Board] policy be amended or interpreted contrary to the plain language of the article” – as opposed to the policies’ interpretation or application – outside of the grievance process, before or when they reach the Initial Authority.Footnote 741 That process would see grievances for which the Final Authority has no power of redressFootnote 742 flagged early and diverted to receive a policy analysis. A mandatory NOI would greatly help in that regard.
      3. This initiative would achieve two important goals.
      4. First, although grievances of this sort form less than 1 per cent of all grievances,Footnote 743 they are often complex. To divert them outside the grievance process would contribute to reducing the workload of the Initial Authorities and the Final Authority.
      5. Second, and most important, this process would help identify systemic problems and injustices related to Treasury Board policies and other governmental instruments early on in the process. This would in turn allow the CDS to engage “any implicated external departments to give weight to reforms”.Footnote 744
    3. Initial Authority Timelines and Consequences of Non-Compliance
      1. If the Initial Authority fails to adjudicate grievances within the time limit, the grievors have a right to request that their grievance be determined by the Final Authority. This is a double-edged sword because the Final Authority itself is not subject to any time limit. As a result, many CAF members prefer to leave the matter in the hands of the Initial Authority. Others feel pressured to do so. And even when they are not, some feel compelled, when asked, to give more time to the Initial Authority, who, after all, is in their chain of command. These are valid concerns. I believe that more meaningful consequences should be imposed on Initial Authorities for failing to meet the time limit.
      2. One solution would be to provide a deemed outcome: if the grievance is not adjudicated within the prescribed time limit of four months, the grievance would be deemed dismissed. The grievor would be notified and could then forward the grievance to the Final Authority. Systematic delays at the Initial Authority level would lead to an increased – and unnecessary – workload for the Final Authority. This could be a strong incentive for Initial Authorities to adjudicate promptly.
      3. It could be argued, however, that there are cases that are not easily adjudicated within a four-month time period, whether “due to the nature of the grievance or the exigencies of the service”.Footnote 745 This concern could be addressed by allowing the Initial Authority to ask an independent actor – the MGERC, for example – to extend the time limit.Footnote 746 Another option, which I prefer, would be to allow the Initial Authority to ask the grievor for an extension in writing, with a copy to the local CCMS centre in order for it to advise the grievor. This request would have to specify that the grievor is not obliged to consent and may not be the subject of reprisals of any kind for refusing to do so.
      4. I believe that this solution provides the best balance between the interests of the grievors and those of the CAF: it promotes accountability and helps resolving the problem of delays at the Initial Authority level, while maintaining CAF leadership on the process.
        • Recommendation #87. The Initial Authority should be allowed to request an extension of its time limit from the grievor. The requests should state that the grievor is not obliged to consent and may not be the subject of reprisals of any kind for refusing to do so. They should be made in writing and sent directly to the grievor, with a copy to the local Conflict and Complaints Management Services centre.
        • If an Initial Authority has not adjudicated a grievance or requested an extension from the grievor within the time limit to consider and determine the grievance, the grievance should be deemed to have been dismissed by the Initial Authority.
      5. There is another solution that could help with delays at the Initial Authority level. The QR&O provide for a single four-month timeline for the adjudication of all grievances at that level.Footnote 747 This is a long time, particularly for less complex grievances, which form the bulk of the workload.
      6. Given that increasing the Initial Authority time limit from 60 days to 120 days has been counterproductiveFootnote 748 and that Initial Authorities should now be able to ask grievors for an extension of their time limit, I would normally have suggested that the general time limit be reduced to 90 days.
      7. However, the CDS Directive has proposed an interim plan: Initial Authorities at the Levels 3 and 4 have eight months to reach a compliance rate of at least 60 per cent, failing which the Acting CDS will consider reducing their time limit from 120 days to 90 days. I would have set the bar higher on the compliance rate, but I nevertheless commend this initiative. I would recommend, however, that the time limit be automatically set at 90 days in the regulations if the prescribed compliance rate is not met, irrespective of the Initial Authority’s level or identity.
        • Recommendation #88. If the Initial Authorities fail to meet the objective and timeline determined at paragraph 13(a) of the CDS Directive for CAF Grievance System Enhancement regarding their compliance rate with the time limits prescribed by subsection 7.15(2) of the Queen’s Regulations and Orders for the Canadian Forces and section 9.8 of DAOD 2017-1, Military Grievance Process, these provisions should be amended to prescribe that an Initial Authority must consider and determine a grievance within 90 days of its receipt.
      8. I would also have been inclined to recommend a shorter time limit – 60 days – for grievances related to PERs, that are less complex and less time-consuming. However, the CDS Directive formulates another suggestion: “The development of an alternate PER adjudication process outside of the [CAF grievance process]. […] Intent is to create a process that keeps the majority of PERs out of CFGA while still affording members procedural fairness, minimizing the perception of bias and giving members a voice”.Footnote 749
      9. This initiative is consistent with Chief Justice LeSage’s recommendation that “[c]onsideration […] be given to imposing a "fast track" process for dealing with grievances of PERs”.Footnote 750 In the design of the alternate adjudication process, much care will need to be taken, however, to ensure that the principles of fundamental justice are respected.
    4. Final Authority Timelines and Consequences of Non-Compliance
      1. The Final Authority does not have a time limit to adjudicate grievances. This is a problem that both my predecessors addressed by recommending the imposition of a time limit of one year from the date a grievance is submitted to a commanding officer to the date of a decision by the Final Authority.
      2. I agree with my predecessors that a time limit should be imposed on the Final Authority. I also believe that there should be consequences for the failure to respect it.
      3. It was suggested to me that the F&Rs of the MGERC should be deemed accepted if the Final Authority fails to abide by its time limit. I agree with that solution, particularly considering that the Final Authority agrees or partially agrees with the MGERC’s F&Rs in 90 per cent of cases.Footnote 751
      4. I also recommend that this deemed acceptance rule be applied after 90 days. Indeed, by the time the Final Authority has the F&Rs of the MGERC in hand, it should not take long to determine whether or not to accept them. In cases where they are not accepted, the Final Authority should remain bound to provide reasons.
        • Recommendation #89. The National Defence Act, the Queen’s Regulations and Orders for the Canadian Forces and DAOD 2017-1, Military Grievance Process should be amended to prescribe that a Final Authority must consider and determine a grievance within 90 days of the receipt of the findings and recommendations of the Military Grievances External Review Committee.
        • When the Final Authority fails to meet this time limit, the findings and recommendations of the Military Grievances External Review Committee should be deemed to constitute the decision of the Final Authority.
      5. But what about grievances which the MGERC does not review? The solution recommended by Chief Justice Lamer could be adopted: if the Final Authority time limit is not met, “a grievor should be entitled to apply to the Federal Court”.Footnote 752 I prefer, however, to adopt another recommendation of the MGERC which would resolve the conundrum. The MGERC recommended that:
        • the NDA and related regulations be amended to provide that all grievances forwarded to the FA, except those related to PER, be reviewed by the Committee prior to a final decision. This would ensure that all grievances at the FA level are subject to the same process and benefit from the Committee’s external and independent advice. Essentially, it gives CAF members equal access to an impartial review. This would further augment confidence in the grievance system.Footnote 753
      6. I agree with this recommendation.Footnote 754 It is consistent with the principled approach mentioned by Chief Justice LeSage, which was “to afford all grievors the opportunity to have their grievance reviewed by an external body”.Footnote 755
        • Recommendation #90. The National Defence Act and the Queen’s Regulations and Orders for the Canadian Forces should be amended to provide that all grievances referred to the Final Authority should be reviewed by the Military Grievances External Review Committee before the Final Authority considers and determines the grievance.
    5. Electronic Filing, Tracking and Handling and Involvement of Local Conflict and Complaint Management Services Centres
      1. I was advised by members of the CAF, grievance analysts and members of the personnel of CCMS centres that despite the progress made with the Integrated Complaint Registration and Tracking System, much of the grievance process has yet to be fully digitized. Neither grievances nor the information shared between the parties have to be submitted, tracked or transferred electronically. I understand that some of the military grievance process is still paper-based. This makes it harder for all involved to track grievance files in the system.
      2. In 2021, I believe every effort should be made to have a fully-digitized system, particularly in the technologically-savvy CAF, which is so large and dispersed across the country and globe.
      3. A fully-digitized electronic system would have many advantages. I was advised that the involvement of the local CCMS centres was uneven because their agents are not always informed of the submission of a NOI. CCMS agents are a great resource for grievors, their chain of command and the persons who are the subject of grievances. If CCMS agents were advised as soon as a NOI is filed, they could help members of the CAF resolve matters informally, prepare their grievances and navigate the formal grievance process. This would help articulate the complaints, filter out ill-founded and non-remediable grievances and bring clarity to the process. An electronic file would also help monitor compliance with time limits. I was told that consideration would have to be given to ensure that privacy requirements are complied with. These are practical problems which can be resolved.
        • Recommendation #91. The military grievance process should be fully digitized. Members of the Canadian Armed Forces should only submit their notice of intent to grieve and grievances electronically, directly to their commanding officer, with a copy to the local Conflict and Complaint Management Services centre.
        • All documents shared between a grievor, the Initial Authority and the Final Authority should be recorded in an electronic file to which the grievor, the commanding officer, the Initial Authority, the Final Authority and the local Conflict and Complaint Management Services centre should have access.
    6. Training of Assisting Members, Support and Awareness
      1. Many officers and non-commissioned members of the CAF, including senior leaders, as well as grievance analysts and members of the personnel of CCMS centres have told me that there should be better training for assisting members. Some recommended that this training be made mandatory and base its contents on the existing course for grievance analysts.
      2. With the creation of the CCMS centres, I find myself asking whether assisting members still serve a useful purpose in the process. Is this a good use of their time, or should their role be assumed by specialized CCMS agents? I have not heard enough submissions about their respective roles to make a firm recommendation on this question.
        • Recommendation #92. The Canadian Armed Forces should examine the respective roles of assisting members and Conflict and Complaint Management Services agents to determine whether the former still serve a useful purpose in the military grievance process.
        • If they do, a formal Assisting Member Certification Training should be developed and lead to a renewable certification. The course should include practical exercises.
        • Each unit of the Canadian Armed Forces should establish a roster of assisting members who have successfully completed the Assisting Member Certification Training. Grievors should be invited to select their assisting members from this roster. They should, however, maintain the right to request the appointment of other persons after having been informed of their lack of training and certification. Efforts should nonetheless be made to offer the Assisting Member Certification Training to non-roster appointees where the circumstances allow it.
        • The Canadian Armed Forces should ensure that assisting members are provided with sufficient time, in light of their other duties, to adequately assist grievors in the preparation of their grievance and throughout the process.
      3. It was also suggested that the training of all members of the CAF should include a component on the military grievance process. In particular, it was recommended that each posting season, each member be informed of the existence and functions of the CCMS centres. This is a valid suggestion considering that members of the CAF must exercise their right to grieve individually, without the assistance of a union.
        • Recommendation #93. A section on the military grievance process should be included in the training curriculum for Canadian Armed Forces recruits. It should include information on the matters which are grievable, the limits of the remedial powers of the Initial Authority and Final Authority, the procedure and timelines applicable to a grievance, and the rights of the grievor, both within and beyond the military grievance process (including judicial review).
        • Recommendation #94. The Conflict and Complaint Management Services centres should organize outreach activities each posting season to inform the members of the Canadian Armed Forces assigned to local units of their existence and functions.
    7. Remedial Powers
      1. The MGERC and others have indicated that the NDA does not provide the Final Authority with adequate remedial powers, including the power to grant financial relief as a remedy to a grievance. This problem was identified by Chief Justice Lamer and Chief Justice LeSage.Footnote 756
      2. I have already stated that the proposed off-ramp for grievances “whereby the grievor’s only request for redress is that a [Treasury Board] policy be amended or interpreted contrary to the plain language of the articleFootnote 757 should allow the CDS to engage external departments in the pursuit of reforms. This may address by other means the question of whether the CDS should be able to authorize ex gratia payments to fill perceived gaps in government instruments. I also believe that whether the Final Authority should be provided with the authority to settle claims against the Crown falls somewhat outside the purview of my mandate.
      3. However, the lack of authority to reinstate members who were improperly released is an issue that should be addressed immediately. Currently, subsection 30(4) of the NDA provides for reinstatement in cases related to the disciplinary system. The member of the CAF is then “deemed for the purpose of this Act or any other Act not to have been so released or transferred”.
      4. In 2013, Bill C-15 introduced an amendment that would extend this power to administrative releases:
        • 12 Subsection 30(4) of the Act is replaced by the following:
        • (4) Subject to regulations made by the Governor in Council, the Chief of the Defence Staff may cancel the release or transfer of an officer or non-commissioned member if the officer or non-commissioned member consents and the Chief of the Defence Staff is satisfied that the release or transfer was improper.
        • Deeming provision
        • (5) An officer or non-commissioned member whose release or transfer is cancelled is, except as provided in regulations made by the Governor in Council, deemed for the purpose of this Act or any other Act not to have been released or transferred.
      5. The amendments are still not in force. This is unfair to CAF members who may be improperly released. Worse, due to the Statutes Repeal Act,Footnote 758 the amendments could be repealed by operation of law in 2022. This should not be allowed to happen.
        • Recommendation #95. Section 12 of the Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24 should come into force without further delay.
    8. Subpoena Powers
      1. In its submissions, the MGERC indicated that under section 29.21 of the NDA, it cannot compel a third party to provide a document in its possession without holding a hearing. It states that this “is neither practical nor efficient in light of the Committee’s practice of conducting the vast majority of its grievance reviews through the consideration of written evidence, without holding a hearing”.Footnote 759 This was also a recommendation in the Lamer Report.Footnote 760 This is an anachronism that should be corrected.
        • Recommendation #96. Section 29.21 of the National Defence Act should be amended to allow the Military Grievances External Review Committee to compel the production of documents or things without the requirement to hold a hearing.
  5. Epilogue: Discussion on a More Modern Approach
    1. Many instruments enshrine the fundamental right to have one’s entitlements and obligations determined by an independent tribunal.Footnote 761 CAF members, however, do not now have that right regarding disputes relating to their working conditions.Footnote 762 Granting them that right would not interfere with the CAF’s operational needs. It would enhance the trust and confidence of members in the fairness and impartiality of their main recourse against wrongful or unwarranted treatment. And that, it seems to me, would increase rather than impair the discipline and morale of the troops. As for efficiency, I need hardly repeat here that handling grievances internally has for decades resulted in unacceptable delays.
    2. Most civilians would never accept their employers having final say over disputes concerning their compensation, benefits or termination.Footnote 763 There is no compelling reason for soldiers to do so. In the words of Chief Justice Lamer, dealing with the CAF grievance system in his report, “[s]oldiers are not second class citizens”.Footnote 764
    3. The Deputy Minister of National Defence agrees with me that it is time to consider whether grievors should have recourse to an independent tribunal. Chief Justice LeSage, who has studied the CAF’s grievance systemFootnote 765 and is aware of its troubled history since, supports the idea as well. So does Brigadier-General (retired) Kenneth Watkin, a reputed author on military law and justice who was Judge Advocate General from 2006 to 2010, and other experts on military law whom I consulted.Footnote 766 Members of the CAF who attended my town hall meetings expressed the same sentiment.Footnote 767 Even the CFGA acknowledges the advantages of having an independent tribunal adjudicate grievances, although it contends that there would be disadvantages as well.Footnote 768 It recognizes that this would increase neutrality and decrease bias in the decision-making process. It also posits that this would “free up military personnel from CFGA and L1/L2 grievance staff to support the other CAF capabilities” and eliminate the risk of judicial review for Final Authority decisions.Footnote 769
    4. The Acting CDS and other senior officers, however, object to the concept of access to an independent tribunal. The CDS Directive argues that “failure to afford our personnel a CAF-owned mechanism through which to provide recourse for its members calls into question our very status as a profession and undermines the very principles of command”.Footnote 770 I am unable to share this view.
    5. First, recourse to an independent tribunal, except for the role of the Final Authority, is essentially compatible with the current grievance system of the CAF. It would relieve the CDSFootnote 771 of a time-consuming burden that the CDS has historically failed to discharge in a timely manner. And the creation of an independent tribunal would not prevent the CDS from receiving regular reports on the grievances of members and thus “keeping his finger on the pulse” of his troops as to the systemic issues they confront.
    6. Second, the Acting CDS argues that the introduction of an independent tribunal would undermine the principle of command. In my respectful view, it would underline rather than undermine the principle of command by distinguishing between command as an instrument of obedience and command as an inappropriate substitute for impartiality and due process in resolving the grievances of CAF members.
    7. Third, the Acting CDS argues that external oversight calls into question the CAF status as a profession. But the ability of a profession to self-regulate on matters of conduct and discipline, which is well-established, should not be conflated with the ability to adjudicate its members’ rights and obligations with respect to working conditions.
    8. One solution would be to convert the MGERC into the Military Grievances Review Board. This new board would review decisions made by Initial Authorities, while the current Final Authorities would be free to make submissions whenever they wished. In this model, the leadership, experience and expertise developed by the Final Authorities and their staff would continue to contribute to the grievance process.Footnote 772
    9. The model would also free up some of the leadership’s time to focus on resolving systemic issues and shape CAF policy. As Chief Justice Lamer stated, “[e]xpecting the CDS to devote his time to catching up on grievances from the Grievance Board, in addition to defending Canada and meeting Canada’s international commitments as regards Canada’s contributions to international peace and security, makes no sense”.Footnote 773
    10. The MGERC is prepared to assume this role. It is independent, it exercises quasi-judicial functions and its only role and expertise is to review grievance files.Footnote 774 This solution is supported by the current Chairperson and Chief Executive Officer of the MGERC, Christine Guérette, and by the MGERC’s Director General of Operations and General Counsel, Colonel (retired) Vihar Joshi. This was also the role that the MGERC was supposed to have before Bill C-25, when the then Minister of National Defence indicated that he would “[s]eek amendments to the National Defence Act to create an independent review board as final arbiter in the grievance process and to streamline grievance procedures”.Footnote 775
    11. The creation of an independent board would thus seem to have many advantages. However, I did not have the benefit of many submissions on the matter. The fact that other Five Eyes countries have not yet adopted that solution also gives me pause. So does the fact that interesting alternatives were proposed.Footnote 776
    12. All things considered, I believe that a working group should be established to determine the appropriateness of creating recourse to an independent tribunal. The working group should also consider whether all grievances, or only certain categories,Footnote 777 should fall within the purview of that body. It should also determine the remedies that could be ordered by the tribunal, including the possibility of awarding damages,Footnote 778 which is not currently open to the Final Authority.Footnote 779
      • Recommendation #97. A working group should be established to evaluate the appropriateness of providing grievors with recourse to an independent tribunal. The working group should consider whether all grievances, or only certain categories, should be subject to the jurisdiction of that tribunal. It should also consider the integration of this route in the current grievance process and the remedies available pursuant to that recourse. The working group should include an independent authority, representatives from the Military Grievances External Review Committee and representatives from the Canadian Armed Forces. The working group should report to the Minister of National Defence.
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