Legal Issues
Class Action Lawsuits
- Due to the COVID-19 pandemic, proceedings before Canadian courts have been delayed to some degree.
- Activities have now resumed more regularly, but with measures to ensure safety for all concerned.
Jost Class Action (Reserve Force Pension Plan)
- National Defence is working to standardize and improve the release process across the Canadian Armed Forces.
- This will ensure that both Regular and Reserve Force releases are expedited and any issues or errors are addressed before a member releases.
- As this is a current litigation case, I cannot speak to its specifics.
Frenette Proposed Class Action (Racial Discrimination)
- We fully acknowledge the impact that racial harassment and discrimination has had on members of the Defence Team.
- This is why we have entered into settlement negotiations to bring closure, healing, and acknowledgement to the victims and survivors of racially-based harassment and discrimination.
- As negotiations are ongoing, however, I cannot speak to specifics details.
Logan Class Action (Disability Payments)
- Taking care of our members is our utmost priority and we will continue to take steps to improve services.
- National Defence is committed to ensuring that all Regular and Reserve Force military members receive their due benefits.
- Earlier this year, the Federal Court ruled that benefits calculated under the long-term disability policy include both salary and additional allowances for special occupations.
- Discussions are ongoing regarding a full and final settlement.
- Given this is an ongoing legal issue, it would be inappropriate for me to comment further at this time.
Key Facts
Jost Class Action
- June 30, 2017: Former Reservist and Regular Force member filed a class action lawsuit against Canada alleging chronic, unreasonable delays in the payment of military pensions.
- The Plaintiff is seeking $100M in damages on behalf of class members.
- November 4, 2019: The Federal Court certified the class action.
- November 14, 2019: Canada appealed the certification. The Appeal hearing will be held remotely on November 9th, 2020.
Frenette Proposed Class Action
- December 16, 2016: Three former Canadian Armed Forces (CAF) members filed a class action lawsuit alleging that the CAF failed to protect racial minorities and Aboriginal peoples from racism.
- January 2019: The parties agreed to suspend the litigation process and enter in settlement negotiations.
- August 2019: Parties reached an Agreement in Principle setting out the broad lines of a final settlement agreement.
- Parties are still negotiating a final settlement agreement.
Logan Class Action
- July 17, 2018: A former CAF member filed a class action lawsuit alleging the formula used to calculate long-term disability payments is incorrect, resulting in lost benefits.
- March 24, 2020: Federal Court ruled in favour of the Plaintiff but left it to the parties to negotiate the quantum of damages.
Details
Jost Class Action Lawsuit
- The Plaintiff alleges that Canada is responsible for chronic and excessive delays in the payment of pension entitlements to discharged members of the CAF and has not compensated discharged members for these delays.
- The class action was certified on behalf of all members of the CAF Reserve Force who were entitled, upon release, to Immediate Pension Entitlements from March 1, 2007 to present.
- In July 2016, the administration of CAF pension plans was separated from the CAF release process to allow faster processing of pension payments.
- Under this new process, all pension documentation received from CAF members is reviewed separately and in advance of the release process to ensure payment is ready upon a CAF member's release.
- In Strong, Secure, Engaged, the CAF committed to ensuring all benefits are in place before a member transitions to civilian life.
- National Defence continues to improve the release process to ensure expedited claims and that any issues or errors are addressed before a member releases from the CAF. There is currently no backlog of pension cases ready to be paid.
Logan Class Action
- The Plaintiff alleged that Canada breached the terms of the CAF Service Income Security Insurance Plan by calculating monthly long-term disability benefits based only on salary alone, omitting certain allowances from the calculation.
- Canada consented to the certification of the class action on March 1, 2019, and the parties agreed to proceed to the Federal Court for a determination of the interpretation of "monthly pay."
- On March 24, 2020, the Federal Court ruled that, when calculating long term disability, a member's allowances (e.g., additional allowances for special occupations) should be included in the member's long term disability monthly pay.
- Discussions are ongoing regarding a full and final settlement, consistent with the Federal Court ruling. As these discussions are ongoing, it would be inappropriate to comment on them in a public committee hearing.
- The Department of Justice will negotiate a settlement of the Logan class action. Funding of the settlement is separate from the annual premium.
Frenette Proposed Class Action
- The Plaintiffs allege that, while members of the CAF, they were subjected to racial discrimination and harassment based on race or Aboriginal status.
- Parties are currently in negotiating a final settlement agreement.
Military Justice – Independence of Military Judges
- Members of the Canadian Armed Forces, and all Canadians, can be assured that the military justice system continues to fulfill its purpose of maintaining the discipline, efficiency, and morale of the Canadian Armed Forces.
- Judicial independence of military judges is crucial for the maintenance of the proper administration of military justice.
- All defendants have the right to a fair trial before an independent and impartial tribunal in accordance with the Canadian Charter of Rights and Freedoms.
- National Defence remains dedicated to ensuring the impartiality and effectiveness of the military justice system.
If pressed on any particular case:
- It would be inappropriate to comment on any specific case within the judicial system.
Details
- October 2, 2019: The Chief of the Defence Staff designated, by order, the Deputy Vice Chief of the Defence Staff to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matters involving a military judge (CDS Order).
- There were six court martial decisions recently where defendants argued that the October 2, 2019 CDS Order violated the principles of judicial independence and impartiality guaranteed by section 11(d) of the Canadian Charter of Rights and Freedoms (Charter).
- In all cases, the courts concluded that the right of an accused to be tried by an independent and impartial tribunal protected by section 11(d) of the Charter was infringed by the October 2, 2019 CDS Order.
- Two of the six cases proceeded to trial because the Military Judges declared the CDS Order to be of no force and effect and allowed the trials to proceed because they were satisfied that the declaration was sufficient to alleviate concerns related to the finding of lack of independence.
- Stays of proceedings were ordered by military judges in four other cases. A stay of proceedings has the effect of a finding of not guilty.
- The Director of Military Prosecutions, on behalf of the Minister of National Defence, filed Notices of Appeal to the Court Martial Appeal Court of Canada in all four cases where a stay of proceedings was declared.
- September 15, 2020: In response to the decisions where stays of proceedings were granted, the Chief of the Defence Staff suspended the Order, dated October 2, 2019, pending the outcome of the appeals.
- October 14, 2020: In three cases since the suspension of the CDS Order, a Military Judge has dismissed the defendants' applications which alleged a lack of independence contrary to section 11(d) of the Charter.
National Defence Act Independent Review
- Section 273.601 of the National Defence Act (NDA) requires an independent review of certain provisions of the NDA, and their operation to be undertaken periodically.
- These provisions extend to the military justice system, military grievances and external review of grievances, military policing and police oversight.
- The importance of independent reviews was recently recognized by the Supreme Court of Canada in R. v. Stillman: "[t]he continuing evolution of [the military justice] system is facilitated by the periodic independent reviews mandated by s. 273.601 of the NDA, ensuring the system is rigorously scrutinized, analyzed, and refined at regular intervals."
- The National Defence Act has been independently reviewed twice before first by former Chief Justice of Canada, the late Antonio Lamer in 2003, and then most recently by the former Chief Justice of Ontario, Patrick LeSage in 2011.
- This first report of review contributed directly to legislative changes to the NDA. For example:
- An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act (Bill C-60)
- An Act to amend the National Defence Act (military judges) (Bill C-16); and
- The Strengthening Military Justice in the Defence of Canada Act (Bill C-15)
- Recommendations from the second report of review are reflected in Bill C-15 regulations and in revised policies.
- It is expected that the report of the next independent review authority will be tabled in June of 2021.
- National Defence is dedicated to assisting the independent review authority in their independent assessment and looks forward to their recommendations.
Key Facts
Reviews
- The National Defence Act requires a report of the independent review to be tabled in Parliament at regular intervals. The review process ensures the military justice system continues to reflect Canadian values.
- The last independent review was tabled in Parliament on June 8, 2012.
- The third independent review is expected to be tabled in Parliament in June of 2021.
Details
- Under Section 273.601 of the National Defence Act (NDA), the Minister of National Defence is required to initiate an independent review of specified provisions of the Act and its operation.
- The report from the independent review is to be tabled in Parliament within a specified timeline, pursuant to subsection 273.601(2) of the NDA.
- The report from the third independent review is expected to be tabled in June of 2021.
- The independent review may provide recommendations, however, it is the decision of the Government of Canada to accept the recommendations or not.
- Former Chief Justice LeSage's report included 55 recommendations. These recommendations pertained to military justice, the Military Police, the Military Police Complaints Commission, and the Canadian Armed Forces grievance process.
- The Government of Canada accepted majority of the recommendations.
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