# 2011-109 - De novo review, Procedural Fairness, Release - Compulsory, Release - Conduct/Performance

De novo review, Procedural Fairness, Release - Compulsory, Release - Conduct/Performance

Case Summary

F&R Date: 2011–12–20

The grievor was found guilty of an offence under the Criminal Code of Canada and was sentenced to 45 days imprisonment. The grievor was subsequently released under item 2(a) -Unsatisfactory Service, of the table to Queen's Regulations and Orders article 15.01.

The grievor argued that he was never given the opportunity to present his side of the story or make representations to the decision-maker before being released. Although he acknowledged that the Canadian Forces had the right to release him, he objected to being released under item 2(a) and requested a release item that would allow him to receive the Reserve Force Retirement Gratuity.

The initial authority (IA) noted that procedural fairness was not afforded the grievor during the administrative review (AR) process; however the IA indicated that the grievance process had rectified the omission and the grievor had therefore not been aggrieved. The IA stated that the grievor's 2(a) release was fully justified and did not support a change to the release item.

The Board stated that the procedural fairness generally requires that, before an administrative authority makes a decision affecting a person's interests, that person should be informed of the case and given the opportunity to respond. In the case at hand, evidence showed that the decision to release the grievor had already been made before any disclosure took place; there was no notification, no disclosure and no opportunity for the grievor to make representations, which, in the Board's view, amounted to a breach of procedural fairness.

The Board noted that in previous similar grievances, the Chief of the Defence Staff (CDS) and the Board had adopted the position that the grievance process could cure the breach by providing and completing a de novo review of the file, and then making a determination based on all the evidence, including the grievor's representations, as to whether the original decision was reasonable. As explained in some recent decisions, the Board's view is now that this principle has been misapplied, particularly in cases of compulsory release. The Board's current understanding of the jurisprudence is that a subsequent review process can only cure a breach of procedural fairness when the decision being challenged has not been finalized and when redress can still be effective. Consequently, given the circumstances in this case, the Board found that the breach of procedural fairness that occurred during the AR and release process could not be cured through the grievance process.

In applying to the grievor's case the principle enunciated in a recent Supreme Court of Canada decision in Dunsmuir, the Board found that the grievor's release should be considered as being void ab initio such that the grievor's service with the Reserve Force never ceased and the CDS should conduct a procedurally fair AR, resulting in a new decision which will be effective the day that decision is made.

After a thorough review of the file, the Board found no evidence to suggest that the grievor did not understand the nature and quality of his act at the time of the commission of the offence. Given that the grievor was convicted of a serious offence by a civilian court, the Board further found that the item of release assigned to the grievor was reasonable and found no justification warranting that it be modified.

The Board recommended that the CDS partially uphold the grievance.

The Board recommended that the CDS declare the grievor's release void ab initio and direct the original release decision be set aside.

Following the CDS's de novo review, the Board further recommended that the CDS order that the grievor be released under item 2(a).

CDS Decision Summary

CDS Decision Date: 2013–05–23

After conducting a de novo review, the CDS agreed with the Board's recommendation that the grievor be released under item 2(a). The CDS did not agree with the Board's recommendation that the release be considered as if lt had never occurred: he was of the view that the breaches of procedural fairness were cured through the grievance process.

Page details

Date modified: