CFGB’s Contribution to the Transparency of the CF Grievance Process

A Canadian Bar Association’s Newsletter Highlights CFGB’s Contribution to the Transparency of the CF Grievance Process

The role of the Canadian Forces Grievance Board (CFGB) as an independent review board and its contribution to a more transparent, fair and robust military grievance process were recently highlighted in the Sword and Scale newsletter published by the National Military Law Section of the Canadian Bar Association.

In the article entitled Like throwing darts at a dartboard: The promotion system at the Department of National Defence, and the interplay between the Canadian Forces Grievance Board and the Chief of Defence Staff, the author, Joshua Juneau, discusses the Zimmerman case involving the promotion process in the Canadian Forces (CF). After his grievance was rejected by the Chief of the Defence Staff (CDS), contrary to the Board’s recommendation to upheld it, the grievor applied for a judicial review and was finally successful on appeal.

Mr. Juneau writes that the Board "considers the merits of a grievance transparently, and after careful consideration, provides a report detailing their findings.… By acting transparently, the CFGB ensures that the aggrieved’s Charter–protected right of procedural fairness is respected."

The Zimmerman case is one of several cases featured in the Board’s 2011 Annual Report.

Like throwing darts at a dartboard: The promotion system at the Department of National Defence, and the interplay between the Canadian Forces Grievance Board and the Chief of Defence Staff

By Joshua Juneau

Abstract

Commander George Zimmerman was a Padre with the Canadian Forces Chaplain Branch who, despite being first on the promotions’ list, was denied a promotion to the rank of Captain (Navy) in 2003 and again in 2004. Why? Because a recommendation made by the Interfaith Committee on Canadian Military Chaplaincy said so. The reasons for this Committee’s decision have never been made known.

On being denied promotion the second time, Commander Zimmerman filed a grievance. At the Final Authority (FA) level, the Canadian Forces Grievance Board (CFGB) recommended that, in the interests of fairness, Commander Zimmerman should be promoted, in accordance with the decision of the Merit Review Board. However, this recommendation was denied by the Chief of Defence Staff (CDS), who acts as the FA for all grievances for members of the Canadian Forces (CF). The reasons why the CDS acted out of accordance with the Grievance Board have never been made known.

Zimmerman v Attorney General challenges the unilateral power of the CDS to decide against the recommendations of the CFGB, when acting as the final authority in the CF grievance process.

The Canadian Forces promotion process

Eligibility for promotion in the CF requires that a candidate first be in the Promotion Zone for the next higher rank. This requires that the candidate serve a minimum period in his current rank. Second, it requires that the candidate be physically and medically fit. Next, it requires, that the person’s Performance Evaluation Reports be assessed as to their relative merit against those of his or her peers. After these three steps are complete, a nomination list for the current year is prepared which lists those qualified in an order of merit.

In 2003 and 2004, the promotion of a Padre in the CF involved two additional processes. First, all candidates in the Promotion Zone were considered by the Military Selection Board who used a universal, transparent, and defined set of criteria to generate a merit ranking list of all candidates. In 2003 and 2004, Commander Zimmerman was ranked first among his peers for promotion from the rank of Commander to the rank of Captain (Navy).

Second, separate and apart from the Military Selection Board, the Interfaith Committee then met and made its own recommendation to the CDS about whom they felt was best suited for a promotion. The Interfaith Committee used no set criteria to determine their nomination and they did not give reasons for their decision. In both 2003 and 2004, though Commander Zimmerman was ranked first for promotion by the Military Selection Board, he was passed over for promotion by the CDS due to recommendations made by the Interfaith Committee who, obviously, selected officers further down the list than Commander Zimmerman.

The Canadian Forces grievance process

Because Commander Zimmerman felt that his right to natural justice and procedural fairness had been violated, in January 2005, he filed a grievance. After three years and nine months, in October 2008, the CFGB finally made a recommendation that the process used by the Interfaith Committee was unfair and opaque, and recommended that the CDS either reconvene the board to re–hear the matter, or promote Commander Zimmerman to Captain (N). Note: The fairness implications concerning the three years and nine monthsFootnote 1 taken for a recommendation to be made by the CFGB will not be considered by this article.

Despite the recommendation of the CFGB, six months later, in April 2009, the CDS upheld his original decision, noting that he was "certain" that the Interfaith Committee had nominated the "best possible candidate" and that he could not conclude as to the unfairness of the promotion process.

Federal Court

Having exhausted all avenues of internal appeal, Commander Zimmerman then applied for judicial review in the Federal Court. The reviewing judge concluded that the Interfaith Committee decision was not unfair. Surprisingly, the Court also held that the absence of reasons by the Interfaith Committee to justify its ranking does not lead to a conclusion of unfairness. Further, the court held that the CDS was permitted, under legislation, to reject the CFGB findings and recommendations. The court held that because the outcome was within the range of possible outcomes of the CDS, the CDS’ decision to deny Commander Zimmerman his promotion was valid, and there was no need to provide reasons for his decision.

Federal Court of Appeal

More than five years after filing his original grievance, in February 2010, Commander Zimmerman appealed this Federal Court decision to the Federal Court of Appeal. The Federal Court of appeal sat to hear this matter the following year, in February 2, 2011, over six years from the initial filing of the grievance.

During the appeal process and at the hearing, fairness was again the central theme. Commander Zimmerman knew that because of the presumption of fairness, he was faced with the challenge of proving unfairness. The primary argument presented to the Court of Appeal was the notion that if a reverse onus is placed on an appellant to prove unfairness, as is the case here, the threshold to prove unfairness should be low.

Commander Zimmerman submitted that on balance, his Constitutional right to procedural fairness greatly outweighed the right of the CDS to follow a procedure which he knew, or ought to have known, to be flawed and unfair from the very start. Justice Sharlow agreed, at one point equating the current system of promotion selection in the CF to being as random as, "throwing darts at a dartboard": without reasons being provided, there can be no assurances of safeguards to prevent unfairness.

A second argument presented by Commander Zimmerman was the lack of procedural fairness by the Interfaith Committee and the Office of the CDS. Because of the structure of the grievance system, the CDS, acting as the FA, was effectively reviewing his own decision. This point, however, was not endorsed by the courts.

In the end, the Federal Court of Appeal unanimously overturned the Federal Court decision. In granting the appeal, the court directed the CDS to "allow the grievance and determine the remedy that should be given to Commander Zimmerman." Commander Zimmerman was promoted to Captain (N) retroactive to 2004, and was accordingly awarded back pay, an updated pension entitlement and legal costs.

Analysis and implications

In Zimmerman, central to the Federal Court of Appeal decision was the need for transparency and procedural fairness when making decision affecting the rights of an aggrieved. Further, for decisions that affect the rights of an individual, reasons and rationale for that decision must be given. In this regard, the decision in Zimmerman may extend the scope of transparency to the CF selection or promotion processes.

The CDS’ departure from the CFGB finding and recommendation must be buttressed by good reasons. Consider that between 2006 and 2010, the CDS accepted over 85% of the findings and recommendations made by the CFGB. In Zimmerman, the Federal Court of Appeal makes it clear that, though the CDS may depart from a CFGB recommendation, reasons for doing so must be sound and clearly identified. This strengthens the role of the CFGB because it gives much greater weight to a CFGB recommendation.

Lending more weight to findings and recommendations made by the CFGB represents a step in the right direction for the CF grievance process. The CFGB is an independent 'civilian' board who considers the merits of a grievance transparently, and after careful consideration, provides a report detailing their findings; this may present partial justification for the time taken to make the said findings and recommendations. By acting transparently, the CFGB ensures that the aggrieved’s Charter–protected right of procedural fairness is respected.

The Federal Court of Appeal also considered occasions where the CDS, acting as FA was effectively reviewing his own decision and ruled that this is permissible, provided that reasons are given at all stages of the decision making process.

Current reform

The decision in Zimmerman may have caused legislative reform. Consider that Bill C–15, currently before the House of Commons, proposes to augment section 29.13(2) of the National Defence Act to give greater weight to the provision that, "the Chief of Defence Staff shall provide reasons for his or her decision in respect of a grievance if [they] do not act on a finding or recommendation of the Grievance Committee."

However, Bill C–15 also takes a step backwards by proposing to permit the CDS to delegate his function as FA in the grievance process, and thus to permits the CDS to assign an agent to look after his responsibility of looking after the troops, who he has the power to put in harm’s way. Notwithstanding Zimmerman, the CDS, as Canada’s top soldier, should not delegate his role as FA. Consider: How can the CDS be expected to lead, when he is out of touch with the needs and concerns of his troops?

Conclusion

The Zimmerman decision represents a step to ensure that the common law principles of fairness and transparency are respected in the military grievance system. Because of the Zimmerman decision, the CDS must now give reasons if departing from a CFGB recommendation, and in doing so, may not rely on a recommendation that is void of procedural fairness and the duty to give reasons.

In consideration of a board recommendation, a decision maker has a duty to act with transparency and give reasons for their decision. Failure to do so is acting on 'blind faith' which, as the Federal Court of Appeal outlines in Zimmerman, is not in concert with the court’s interpretation of the common law doctrine of fairness, but was more akin to "throwing darts at a dartboard".

Joshua M. Juneau is a lawyer at Michel Drapeau Law Office.

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