BRIEF PRESENTED TO THE HONOURABLE JUSTICE LESAGE

August 2, 2011


Submitted by the Canadian Forces Grievance Board

PREFACE

Created thirteen years ago by amendments (Bill C-25) to the National Defence Act (R.S.C. 1985, c. N-5; hereinafter the NDA), the Canadian Force Grievance Board (the Board) is a federal body with quasi-judicial functions that is independent of the Department of National Defence (DND) and the Canadian Forces (CF); it reviews the military grievances referred to it and provides impartial findings and recommendations (F&R) to the Chief of the Defence Staff (CDS) and the grievor.

Since it began operations in June 2000, the Board has established itself as a centre of excellence for military grievance resolution and has developed, over the years, extensive expertise in a multitude of subjects related to the administration of the affairs of the CF. The Board has also acquired an impressive body of knowledge arising from its review of grievances and is able to identify trends and issues of a systemic nature which are passed on to the senior leadership of the CF.

The independent review of those provisions of the NDA affecting the grievance process represents an opportunity for the Board to share the experience and knowledge it has acquired through its review role as an independent quasi-judicial administrative tribunal. The Board hereby respectfully submits its comments and recommendations in relation to this review in order to assist in the interpretation and clarification of certain practical and legal aspects concerning the role and mandate of the Board; we also offer some observations on the entire CF grievance process.

I. Background

The genesis of the Board is the result of a number of inquiries and study groups that dealt primarily with issues related to military justice in the CF. The Special Advisory Group on Military Justice and Military Police Investigation Services that was chaired by the Right Honourable Brian Dickson submitted its report on March 14, 1997 to the Honourable Douglas Young, then Minister of National Defence (MND), who presented his report on Leadership and Management in the CF to the Prime Minister on March 27, 1997. The report formally recognized, amongst other things, that changes were required to the grievance system. The MND stated (Report to the Prime Minister on the Leadership and Management of the Canadian Forces by the Hon. M. Douglas Young, P.C., M.P., Minister of National Defence and Minister of Veterans Affairs (Ottawa, March 25, 1997) at 10):

As Minister of National Defence, I am, under the current system, the final arbiter in this grievance process. I do not believe this is appropriate. Furthermore, the system is too slow and must be made more transparent. Therefore, we will:

  1. Seek amendments to the National Defence Act to create an independent review Board as final arbiter in the grievance process and to streamline grievance procedures.

  2. Ensure that all improvements in the grievance process not requiring amendments to the National Defence Act are implemented immediately.

Bill C-25 (Canada, House of Commons, 1st Session, 36th Parliament, 46–47 Elizabeth II, 1997-98), an Act to amend the NDA and to make consequential amendments to other Acts, was subsequently tabled which included the statutory framework for the reform of the CF grievance process. The Board became and remains the first and only independent civilian administrative tribunal to review grievances within the military grievance process, external to and independent of both the CF and the DND. The Board, however, did not become the final adjudicator and its mandate was limited to issuing F&R to the CDS on certain types of grievances submitted by members of the CF.

Prior to these amendments, the grievance process involved too many levels of review, and ergo, was slow and unresponsive. In addition, the process was seen as being too closely linked to the chain of command and lacking any external input and impartiality. Bill C-25 also removed the Minister's involvement in the grievance process and established the CDS as the Final Authority.

The Makeup of the Board

The Board consists of Governor in Council (GIC) appointees who, alone or in panel, are responsible for reviewing grievances and issuing F&R.

Under the NDA, the GIC must appoint a full-time Chair, at least one full-time Vice-Chair, and one part-time Vice-Chair. In addition, the GIC may appoint any other full or part-time members the Board may require to carry out its functions. Appointments may be for up to four years and may be renewed. The Board currently has four part-time members.

The Mandate of the Board

The Queen's Regulations and Orders for the Canadian Forces (QR&O) (SOR/2000–0863 (June 8, 2000), ch. 7) provide for two levels of review: the Initial Authority and the Final Authority. The Board is involved only with files at the CDS (Final Authority) level. More specifically, the Board reviews all military grievances referred to it by the CDS, as stipulated in the NDA and article 7.12 of the QR&O. Following its review, the Board submits its F&R to the CDS, at the same time forwarding a copy to the grievor; the CDS is the final decision-maker. The CDS is not bound by the Board's report, but must provide reasons, in writing, in any case where the Board's F&R are not accepted. The Board also has the obligation to deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.

The CF is Canada's single largest employer; however, there are no unions or employee associations in the military. The jurisprudence has clearly established that persons who enroll in the CF enter into a unilateral commitment in return for which the CF assume no obligations. Furthermore, the relationship between the CF and military personnel is not governed by contract law, and in no way gives rise to a remedy in the civil courts (Gallant v. The Queen, 91 D.L.R. (3d) 695). The grievance system is, with a few exceptions, the only formal complaint system available to the CF members. The existence of a fair and responsive complaint system has a direct impact on morale and esprit de corps.

Under Chapter 7, section 7.12 of the QR&O, the types of grievances that must be referred to the Board are those involving administrative actions resulting in deductions from pay and allowances, reversion to a lower rank or release from the CF; application or interpretation of certain CF policies, including those relating to conflict of interest, harassment or racist conduct; pay, allowances and other financial benefits; and entitlement to medical care or dental treatment. Furthermore, the CDS has the discretionary power to refer any other type of grievance to the Board for review, and must refer to the Board any grievance in which the CDS is personally involved. The aforementioned categories of grievances amount to about 40% of those that are submitted to the Final Authority level.

The Review Process at the Board

The Board's internal grievance review process consists of three steps: grievance reception, Board review, and the preparation and submission of F&R.

Grievance Reception: Upon receipt of a grievance, the Board sends a letter of acknowledgement to the grievor disclosing the information contained in the file and inviting the grievor to submit additional comments or other documents relevant to his/her case.

Board Review: An assigned Board member reviews the grievance and identifies the issues. If necessary, additional documentation is obtained and added to the file and subsequently disclosed to the grievor. The Board member is assisted by a team leader, a grievance officer and legal counsel. While the Board has the power to hold hearings, almost all reviews are done on the basis of the written record.

Findings and Recommendations: The Board member issues the final F&R which are then sent simultaneously to both the CDS and the grievor.

At this point, the Board no longer retains jurisdiction over the grievance, although the Board tracks its ultimate outcome. The grievor receives a decision directly from the Final Authority in the grievance process, the CDS or his/her delegate.

The Work of the Board

As an administrative tribunal, the Board has the obligation to review every case fairly and impartially. Each file is reviewed carefully and on its own merits while taking into consideration the issues raised in the grievance, the relevant evidence and the submissions of both the grievor and the CF authorities.

Between 2003 and 2010, the Board issued F&R on 1014 grievances of which 43.4% (440 cases) had recommendations to uphold or partially uphold the grievance. In the remaining 55.3% (561 cases), the Board recommended to deny the grievance. Thirteen cases were without outcome, i.e. they were withdrawn by the grievor before F&R could be issued.

In reviewing individual grievances, the Board sometimes finds an issue with the content or the application of a policy or a regulation that affects more than one member. In these cases, the Board prepares a systemic recommendation, which is clearly stated and highlighted in the F&R, to inform the CDS that a broader problem may exist.

Finally, the Board recognizes the importance of having all parties benefit from its unique perspective on matters raised in grievances and as a public organization, the Board is committed to communicate the results of its work to the citizens of Canada, to whom it is ultimately responsible.

Accordingly, the Board has engaged in a variety of activities to meet these communications objectives, including:

  • Posting its case summaries and any recommendations made on issues of systemic nature on the Board's Web site. These summaries and recommendations provide the reader with a wealth of information on policies and regulations as well as on grievance issues;

  • Publication of Perspectives, a newsletter primarily directed to senior officers at DND Headquarters. Through Perspectives, the Board shares with CF decision makers valuable information about grievance trends and areas of dissatisfaction that come to its attention during the review of individual grievances;

  • Visits to CF bases to maintain direct communication with members of the CF in their work environment;

  • Publication of Bulletins inserted in the Maple Leaf, the weekly national newspaper of the DND and the CF. Through its Bulletins, the Board informs the CF community at large about its role and provides information on various aspects of the grievance process, including, for example, how to correctly submit a grievance, as prescribed by regulation.

A Timely review

One of the key issues for grievors in the CF grievance review process is the overall timeliness of the grievance review cycle. It is recognized that grievors do not necessarily make a distinction as to where their grievances are located in the grievance review process; therefore if there are delays internal to the Board or the CF, this negatively impacts on the grievors' perceptions with respect to the timeliness of grievance reviews.

In his report, Chief Justice Lamer had dedicated a number of pages addressing the efficiency of the new grievance process, concluding that the overall delays were unreasonable. However, at the time, the Final Authority was dealing with a backlog of 789 files, which included 200 unresolved grievances dating from 1999 and before, of which five were at least ten years old. In 2003, the Board also had a large inventory of over 250 files and the average time spent on a file at the Board was 18.2 months. As a result of his observations, Chief Justice Lamer had recommended that the entire grievance process be limited to one year, from the time a grievance is submitted to the commanding officer until the final decision; in 2010, the overall average was still over two years.

Having said this, every year since the Lamer report, the Board has identified operational efficiency as one of its strategic priorities, in order to respond to its obligation to review grievances expeditiously and to contribute to a fair and transparent military grievance process. In this respect, in 2010, notwithstanding the increase in the number of cases referred to it, the Board succeeded, for the second year, in further reducing the average time required for the review of grievances. By December 31, 2010, the elapsed time required for the Board to review a grievance and to issue F&R had been reduced to an average of 3.2 months. The table below shows the Board’s improvements since 2003.

Average review timeline by year grievance referred (Data as of July 26, 2011)
2003
(100%
completed)
2004
(100%
completed)
2005
(100%
completed)
2006
(100%
completed)
2007
(100%
completed)
2008
(100%
completed)
2009
(100%
completed)
2010
(99%
completed)
2011
(55%
completed)Figure note *
Elapsed time in months 18.2 18.2 14.7 8.9 9.8 9.6 6.1 3.2 2.2

Figure 1 notes

National Defence Act Review

As a result of the First Independent Review, Chief Justice Lamer made 88 recommendations in his report; 18 dealt specifically with the grievance process. Last year, Bill C-41 was tabled in Parliament, which introduced the majority of Chief Justice Lamer’s recommendations. Unfortunately, there were three recommendations, which directly affect the Board’s administration and operations that were not included in Bill C-41.

More particularly, the Lamer Report had recommended that:

  • Board members whose terms have expired be authorized to complete their caseloads (Recommendation 85);

  • The Board's annual report be required within three months of fiscal year end (Recommendation 86); and

  • The Board be given a subpoena power (Recommendation 87).

The implementation of these three recommendations would be most useful to this Board and will be discussed later.

Further, at the Board’s request, Bill C-41 also introduced a new name for the Board - the Military Grievances External Review Committee. This proposed change is important for the Board, which has been aware for some time that the current name does not reflect its unique and external role. Over the last decade, the Board has dedicated substantial efforts to eliminate a common misconception that it is an organization internal to the DND and the CF. The Board believes that the new name, when adopted, will lead to a better understanding of the specific role for which it was created.

Regrettably, Bill C-41 died on the Order Paper and none of the proposed amendments have yet been implemented. The Board is hopeful that the successor to Bill C-41 will also provide for the same changes.

II. Sections Review and Recommendations

Section 29

  1. An officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.

  2. There is no right to grieve in respect of
    1. a decision of a court martial or the Court Martial Appeal Court;
    2. a decision of a Board, commission, court or tribunal established other than under this Act; or
    3. a matter or case prescribed by the Governor in Council in regulations. [Emphasis added]
  3. A grievance must be submitted in the manner and in accordance with the conditions prescribed in regulations made by the Governor in Council.

  4. An officer or non-commissioned member may not be penalized for exercising the right to submit a grievance.

  5. Notwithstanding subsection (4), any error discovered as a result of an investigation of a grievance may be corrected, even if correction of the error would have an adverse effect on the officer or non-commissioned member.

Comment:

A number of cases have been referred to the Board where Initial Authorities have dismissed grievances on the grounds that a CF member cannot grieve a decision made in accordance with a statute or a regulation, for example a Treasury Board (TB) regulation. NDA paragraph 29(2)c), set out above, stipulates that “there is no right to grieve in respect of… a matter or case prescribed by the Governor in Council in regulations.”

The Board has had to repeatedly issue F&R explaining that NDA 29(2)c) does not prevent CF members from submitting grievances concerning matters governed by regulations made by the GIC. Rather, it enables the GIC to make regulations excluding specific matters or cases from the grievance process.

The French version of the clause states that: “Ne peuvent toutefois faire l’objet d’un grief ... les questions ou les cas exclus par règlement du gouverneur en conseil ”, which means, translated literally, that questions or cases excluded by a GIC regulation cannot be grieved.

When comparing the English and French versions of the NDA, it is reasonable to conclude that the word “prescribed” was meant to mean “excluded”, rather than “enacted”. Thus, the Board is of the view, that the proper interpretation of the above clause is that a decision taken in accordance with a regulation can be grieved unless the GIC has specifically stated, in a regulation, that the issue or matter is excluded from the grievance process. The CDS has agreed with the Board’s position on this issue.

Recommendation:

The Board recommends that paragraph 29(2)c) of the NDA and QR&O 7.01(1) be amended to reflect that “a matter or case excluded by the Governor in Council in regulations” cannot be grieved to prevent any misinterpretation.

Section 29.11

The Chief of the Defence Staff is the final authority in the grievance process.

First Comment:

This section identifies the CDS as the Final Authority in the grievance process. In the last ten years, the Board has had to review a number of grievances involving personal decisions or actions of the CDS. In accordance with section 29.14 and article 7.12 of the QR&O, the CDS must refer cases in which he has been personally involved to the Board for a review. Further, these provisions indicate that the CDS cannot delegate his power to adjudicate cases that must be referred to the Board. Therefore, grievances submitted in respect of personal actions or decisions of the CDS must be decided by the CDS personally. Recently, a CF member who applied for judicial review of a CDS decision challenged this scheme in the Federal Court of Canada and the Federal Court of Appeal (Zimmerman v. Canada (Attorney General), F.C. 1298, [2011] F.C.A. 43). The CF member “objected to the involvement of the CDS in adjudicating the grievance because he would be adjudicating upon his own conduct”. Stratas J.A. determined that the NDA specifically provides for the CDS “to decide on promotions and to determine grievances and in these circumstances he cannot delegate either task: see sections 29.11 and 29.14 of the Act and subsection 7.12(2) of the QR&O”.

While the Board accepts this ruling regarding the CDS statutory authority to review his own decisions, the Board is of the view that there is a perception of bias and lack of independence when the CDS adjudicates a matter in which he has been personally involved. Similarly, the Board is of the view that, since the CDS is charged with “the control and administration of the Canadian Forces” (subsection 18(1) of the NDA), having one of his subordinates act as the Final Authority in these cases, would also raise the issue of independence. In other words, one might question the ability to be truly impartial in adjudicating a grievance in which the CDS has been personally involved.

The Board believes that the NDA should be amended to authorize an entity, outside the CF chain of command, to act as Final Authority in those limited and exceptional number of cases where an act, decision or omission of the CDS is at issue. Fairness, transparency and a potential perception of bias and lack of independence dictate that, in these cases, the decision-maker should be a person other than the CDS who should act as Final Authority and not one of his subordinates.

Recommendation:

The Board recommends the amendment of section 29.11 NDA to authorize an entity, outside the CF chain of command, to act as Final Authority in those limited and exceptional cases where an act, decision or omission of the CDS is at issue.

Second Comment:

Although the CDS is the Final Authority in the grievance process, the CDS does not have the authority to grant relief in a case where the grievance is seeking, as redress, financial compensation. Claims against the Crown and ex gratia payments, are within the authority of the Attorney General of Canada under the Department of Justice Act (R.S.C. 1985, c. J-2) and the Financial Administration Act (R.S.C. 1985, c. F-11). Under the Policy on Claims and Ex Gratia Payments (Canada, Policy on Claims and Ex gratia Payments, Treasury Board Secretariat, June 1, 1998, s. 6), the CDS does not have the necessary delegation of authority to award financial compensation resulting from a claim against the Crown.

The Board had raised this issue with Chief Justice Lamer during his First Independent Review of Bill C-25, which was endorsed in recommendation 81 in his report (Canada, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25, An Act to Amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c.35, submitted to the Minister of National Defence, September 3, 2003). The Board had argued that since many grievances require this type of relief, this lack of authority from the CDS undermines the integrity of the decision-making process. Absent such authority, the CDS must refer the issue of financial compensation to a third party, i.e. the Director Claims and Civil Litigation at DND. While the CF have supported Chief Justice Lamer’s recommendation 81, they have been unable to implement it. The Board wishes to reiterate its recommendation on this issue.

Recommendation:

The Board recommends that the statutory authority of the CDS as Final Authority be amended in such a way so as to ensure that he has an appropriate financial delegation. This will enable him to make a decision on financial compensation where this form of relief is sought as redress.

Section 29.12

  1. The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council to the Grievance Board for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievance Board.

  2. When referring a grievance to the Grievance Board the Chief of the Defence Staff shall provide the Grievance Board with a copy of
    1. the written submissions made to each authority in the grievance process by the officer or non-commissioned member presenting the grievance;

    2. the decision made by each authority in respect of the grievance; and

    3. any other information under the control of the Canadian Forces that is relevant to the grievance.

Comment:

When the NDA was amended by Bill C-25 (Bill C-25, An Act to Amend the National Defence Act and to Make Consequential Amendments to Other Acts, S.C. 1998, c. 35), the Board was created as an external body to review military grievances, outside of the chain of command. It was a means of assuring CF members that their grievances would receive a fair, independent and timely review. The added advantage was that the Board was seen by Parliament and the CF as a mechanism to strengthen the impartiality of the adjudication process, and thereby would help build confidence in the grievance process.

As stated in NDA section 29.12, the CDS shall refer every grievance that is of a type prescribed in regulations made by the GIC to the Board for its F&R and may, at his discretion, refer any other grievance to the Board. The NDA places no restrictions on the types of grievances that must be referred to the Board. However, the implementing regulations, outlined in article 7.12 of the QR&O (Queen's Regulations and Orders for the Canadian Forces, SOR/2000--0863 (June 8, 2000), c. 7), limit the Board's review to only four types of grievances, which represent approximately 40% of the total number of grievances that reach the Final Authority level. Hence, QR&O article 7.12 has a direct jurisdictional impact on the Board’s operations and resources.

The types of grievances listed in QR&O article 7.12 are the same today as they were when these regulations were enacted in 2000. This means that, under the current regulations, a majority of CF members do not benefit from an independent and external review of their grievance by the Board before a final decision is rendered, unless the CDS chooses to refer cases on a discretionary basis.

In October 2010, acting on the recommendation of a CF working group which included representation by the Board, the Armed Forces Council, the senior executive body of the CF, approved the introduction, on a trial basis, of a new approach for the referral of grievances. Under this new "principled approach," the CF refers to the Board unresolved grievances of all types that reach the Final Authority level. However, given that the regulations have not been amended, the CF is currently using the discretion of the CDS to refer these cases to the Board. Should this new approach be implemented, NDA amendments may be required as it has been argued that the interpretation of the term “types” used in the current statute may not permit the proposed scheme to be set out in regulations. Should it not be approved or delayed, the referrals will continue to depend on the exercise of the discretionary authority.

There are other concerns in using the regulatory framework to define which “types” of grievances would come to the Board. One issue is that it may be impacting negatively on the perceived fairness of the grievance process since some CF members benefit from an external, independent and impartial review while others do not. During the Board’s base visits, many members have questioned the rationale behind the decision to restrict the Board’s review to certain types of grievances. The Board has also seen a number of cases where grievors have requested specifically that their case be referred to the Board – not knowing that their case would only be referred if the matter grieved fell within one of the four types found in the QR&O. It is difficult for the Board to explain to grievors why a grievance regarding relocation benefits must be reviewed by the Board, but a decision to remove an officer from command, which could potentially have long-term career implications, does not.

Another problem with the present scheme is that the Board and the CF have had differing interpretation as to what constitutes a particular type of grievance. For example, the Board’s position is that a grievance involving “acting pay” must be mandatorily referred pursuant to QR&O 7.12(1)a); the CF, on the other hand, have interpreted this issue as one of “acting rank”, and have considered it a promotion issue, and hence not falling within those types of grievances that must be referred.

In summary, the Board’s position on this issue is that, in order to ensure that the benefits of an independent review apply to all, the NDA should be amended to provide that all unresolved files be referred to the Board prior to a final decision. This would ensure that all grievances at the Final Authority level are subject to the same process and give CF members equal access to an external and impartial review and thereby enhance confidence in the grievance system.

Recommendation:

The Board recommends that the statute be amended to reflect that all unresolved grievance files must be referred to the Board prior to the decision of the Final Authority.

Section 29.14

The Chief of the Defence Staff may delegate to any officer any of the Chief of the Defence Staff’s powers, duties or functions as final authority in the grievance process, except

  1. the duty to act as final authority in respect of a grievance that must be referred to the Grievance Board; and

  2. the power to delegate under this section.

First Comment:

Pursuant to section 29.14 of the NDA, the CDS has over the last eleven years, delegated his powers, duties and functions to the Director General – Canadian Forces Grievance Authority (DGCFGA) (an officer holding the rank of Colonel) to be the Final Authority for grievances other than those which must be referred to the Board. The delegation document precludes the current DGCFGA from acting in cases where grievances are submitted by a military judge, an officer higher than the rank of Colonel, and an officer of the rank of Lieutenant-Colonel where one possible remedy of the grievance includes a promotion to Colonel (Appointment Order of the Director General Canadian Forces Grievance Authority dated 9 July 2010). However, there is no restriction preventing the delegate from overturning a decision taken by a superior officer or another Colonel. The Board is of the view that this situation is problematic and raises an issue of institutional independence leading to a perception of bias. A grievor or a neutral observer could well perceive that, in a highly hierarchal organization based on a rank structure, a Colonel could be reluctant to overturn a decision taken by a General.

While the Board understands that the DGCFGA is acting on behalf of the CDS in those cases where he renders decisions as the Final Authority and therefore, has the same powers as the CDS, the Board is concerned that having a delegate at a lower rank than the officer whose decision is being grieved raises an apprehension of bias. In particular, in cases where the DGCFGA agrees with the officer in question, an inference may be drawn that it was the rank difference that stayed his or her hand.

Recommendation:

The Board recommends that the statute be amended to reflect that the officer(s), to whom the powers, duties and functions as Final Authority are delegated, be one rank above the rank of the officer whose decision is being grieved.

Second Comment:

At present, the DGCFGA acts as a tri-function entity. First, he administers the CF the grievance system for the Vice-Chief of the Defence Staff. Accordingly, he is responsible for the overall process, issuing of policies and directives affecting the process, provides training to Initial Authorities and units, keeps a register of all grievance files in the system and reports annually regarding the efficiency of the system.

Secondly, he is the Final Authority’s delegate for those grievances that do not have to come to the Board, and, finally, he advises the CDS in those cases that do come to the Board. As a result of these multitudes of functions, the DGCFGA staff provides support and training to the Initial Authorities; reviews their decisions and sometimes provides their own analysis of the file. The DGFCGA staff also decides which files must come to the Board for review, analyzes the Board F&R prior to the final decision and prepares the file for final adjudication by either the CDS or the delegate.

The administrator of the grievance process should not, in the Board’s view, act as the Final Authority’s delegate nor should he be the CDS advisor. This has recently created a problematic situation where a file in which the CF had taken the position that the grievance should be denied, but where the Board disagreed having taken into consideration the CF position, the DGCFGA staff re-analyzed the issue and re-recommended a denial. The same staff then prepared the file for the CDS decision, which was ultimately a reiteration of the DGCFGA staff position, without addressing the Board’s reasoning. The Board is of the view that this process was not contemplated by the NDA. Subsection 29(2) provides that the Board must provide its F&R in writing to the CDS and the grievor.

While we understand that the CDS and his delegate may require a team to help in processing and preparing files for adjudication, we do not believe that it should be the same staff as that of the administrator; nor should it be members who have already been involved in the review of the file prior to its referral to the Board. The Board is of the view that, by re-analyzing the Board’s F&R prior to the final decision, the DGCFGA has been given a role that undermines the Board’s mandate and affects the integrity of the process, as well as the integrity and fairness of the final decision.

The Board is of the view that the DGCFGA should not be involved in the review and adjudication of grievances, once they are reviewed by the Board - but should simply redirect the files to the appropriate Final Authority. Therefore, an officer other than the administrator of the system should be appointed to adjudicate grievances on behalf of the CDS.

Recommendation:

The Board recommends that the statute be amended to reflect that the delegate acting as Final Authority should not be the same officer as the administrator of the grievance process for the CDS.

Section 29.16

1. There is established a Board, called the Canadian Forces Grievance Board, consisting of a Chairperson, at least two Vice-Chairpersons and any other members appointed by the Governor in Council that are required to allow it to perform its functions.

[...] 3. A member is eligible to be re-appointed on the expiry of a first or subsequent term of office.

[...] 10. An officer or a non-commissioned member who is appointed as a member of the Grievance Board shall be seconded to the Grievance Board in accordance with section 27.

First Comment:

There is at present no transitional measure that would allow Board members who are not re-appointed at the end of their term of office to complete their work and the cases that were assigned to them. A number of other federal statutes, governing boards and administrative tribunals, include a provision that can be used to avoid such complications of an administrative and jurisdictional nature. For example, see section 154 of the Immigration and Refugee Protection Act (S.C. 2001, c. 27, s. 154), which could serve as a model to remedy this situation.

The Board had raised this issue with Chief Justice Lamer during his review of Bill C-25, which was endorsed in recommendation 85 in his report. While the CF authorities supported Chief Justice Lamer’s recommendation 85, it has not been implemented yet. The Board reiterates its position on this issue.

Recommendation:

The Board recommends the amendment of subsection 29.16(4) of the NDA by including a transitional measure that would enable members who are not re-appointed to complete the cases that are assigned to them.

Second Comment:

Subsection 29.16(10) provides for an officer or non-commissioned member of the CF to be appointed a member of the Board. Although this has not happened to date, the Board’s position is that it would not be advisable given the Board’s role as an external agency.

Last February, the Board was invited to make representations to the Standing Committee on National Defence (SCND) for the review of Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts. During the Parliamentary process involving Bill C-41, there was considerable discussion about the Board’s independence from the CF. During these discussions, the content of Subsection 29.16(10) was raised and debated.

On March 23, 2011, the SCND, in its seventh report to Parliament (before the General Election was called) proposed an amendment to subsection 29.16(10) to ensure that no officer or non-commissioned officer could be appointed as Board member.

However, because the general election was called, Bill C-41 died on the order paper. The Board is of the view that appointing active members of the CF as Board members could give a perception of bias and partiality. Hence, the Board agrees that subsection 29.16(10) should be removed from the NDA.

Recommendation:

The Board recommends that section 29.16 be amended by striking paragraph 10 in its entirety.

Section 29.21

The Grievance Board has, in relation to the review of a grievance referred to it, the power

  1. to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things under their control that it considers necessary to the full investigation and consideration of matters before it;

  2. to administer oaths; and

  3. to receive and accept any evidence and information that it sees fit, whether admissible in a court of law or not.

Comment:

The Board already relies on the CF's statutory obligation under subsection 29.12(2) of the NDA to provide the Board with “any other information under the control of the Canadian Forces that is relevant to the grievance”. However, the Board cannot compel a third party to provide a document in his/her possession without holding a hearing, as specified in Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn. (Canadian Pacific Air Lines Ltd v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724).

This situation restricts the Board’s duty to deal with “all matters before it as informally and expeditiously as the circumstances and the consideration of fairness permit”, as stated in subsection 29.2(2) of the NDA. To allow more flexibility, the Board requires an amendment to section 29.21 to be able to require, by way of a subpoena duces tecum, the production of documents or things without having to hold a hearing.

The Board had raised this issue with Chief Justice Lamer during his review of Bill C-25, which was endorsed in recommendation 87 in his report. In response to this recommendation, the CF authorities had indicated that it required further study and consultation. However, last spring, a CF Working Group established by the Vice-Chief of the Defence Staff to review the grievance process, examined this particular recommendation and came to the conclusion that it should be implemented. The Board reiterates its position on this issue.

Recommendation:

The Board recommends that section 29.21 of the NDA be amended to allow the Board to require, by way of subpoena duces tecum, the production of documents or things without the requirement to hold a hearing.

Section 29.28

  1. The Chairperson shall, within three months after the end of each year, submit to the Minister a report of the activities of the Grievance Board during that year and its recommendations, if any.

  2. The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.

Comment:

As drafted, subsection 29.28(1) of the NDA requires that the Board submit an annual report of its activities on the basis of the calendar year while the government's budget planning is done on the basis of a fiscal year. This has a significant impact on the planning of the operational budgets and the allocation of the human and financial resources.

The Board had raised this issue with Chief Justice Lamer during his review of Bill C-25, which was endorsed in recommendation 86 in his report. Although this recommendation was supported by the CF authorities, it has not been implemented yet. The Board reiterates its position on this issue.

Recommendation:

The Board recommends that subsection 29.28(1) of the NDA be amended so that the date on which the annual report is tabled correlates to the activities completed during the fiscal year rather than the calendar year.

III. Conclusion

These comments and recommendations are intended to assist in the Second Independent Review of Bill C-25. Giving effect to the proposed recommendations would also greatly help the Board in carrying out its mandate of fair, impartial, informal and expeditious review of grievances, in order to help enhance the redress of grievance process in the CF.

After almost ten years in operation, the Board has developed a unique expertise in the review of military grievances and gained recognition for its contribution to the fairness and transparency of complaint resolution within the CF. In the years to come, the Board will remain committed to maximizing its contribution to the military grievance process and the well-being and morale of CF members.

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