# 2011-115 - Administrative Review, Administrative Review Process, Misuse of Alcohol, Procedural Fairness, Release -...

Case Summary

F&R Date: 2012–02–09

Pursuant to a prior grievance, the grievor's 1998 counseling and probation (C&P) for misuse of alcohol was quashed by the Chief of the Defence Staff (CDS).

Following alleged incidents relating to the misuse of alcohol, the grievor was returned to his unit (RTU) and a Progress Review Board (PRB) held in his absence confirmed the RTU decision. Based on the PRB, and unaware that the prior C&P had been quashed, the grievor's Commanding Officer (CO) issued the grievor a notice of intent to recommend release. As a result, the Director Military Careers Administration (DMCA) conducted an administrative review (AR) which recommended the grievor's release.

In his response to disclosure of the AR, the grievor challenged the AR's legitimacy because it referred several times to the quashed C&P and to several other unproven negative incidents. He also challenged the PRB on a lack of procedural fairness. After reading the grievor's comments, the CO changed his recommendation to retention on C&P. Despite receiving the grievor's and CO's comments, the AR was not amended to reflect them. The Decision Authority, the DMCA, agreed with the AR recommendation to release and so directed. The DMCA did not provide any written reasons for his decision.

The grievor argued that the AR and his subsequent release were unfair because the DMCA had failed to address his representation, had ignored his CO's revised recommendation for retention and had improperly considered his quashed C&P.

As redress, the grievor requested that he be re-enrolled.

The initial authority (IA), the Acting Director General Military Careers, denied the grievance. He referred to the CO's initial release recommendation and stated that the DMCA had found so many alcohol-related incidents it was impossible to believe the grievor's career was salvageable. The IA stated that the quashed C&P had had no bearing on the grievor's release. The IA agreed that the DMCA must review the grievor's representations but argued that the purpose of the decision message is just to convey the decision, not to respond to the grievor's representations.

The Board found that:

• Without written reasons from the DMCA, it could not be concluded that the release decision was not tainted by consideration of the quashed C&P and it must, therefore, be set aside;
• the breach of procedural fairness in the AR and the release decision cannot be cured through the grievance process;
• the grievor's release should be rendered void ab initio such that the grievor's employment relationship with the CF never ceased;
• the PRB, which triggered the AR, also denied the grievor his right to procedural fairness and, therefore, the resulting RTU decision must also be set aside;
• the evidence considered during the AR is fatally flawed and cannot be used to justify the grievor's release; and
• it was, therefore, now open to the CDS to direct an investigation of the circumstances leading to the PRB and, should the grievor be found to have misused alcohol or otherwise misbehaved, the appropriate remedial action should be taken

.

The Board recommended that the grievance be upheld, the release decision set aside and the grievor be considered to never have been released. The Board further recommended that a summary investigation be directed to examine the circumstances leading to the PRB. Should the grievor be found to have abused alcohol or otherwise misbehaved, appropriate action should be taken in accordance with the applicable regulations and policy.

CDS Decision Summary

CDS Decision Date: 2013–12–18

The CDS did not agree with the Committee's recommendations. The CDS found that the grievor has been treated fairly. Although there was a breach of procedural fairness during the release process, including the administrative review, the CDS was of the opinion that by conducting a de novo (anew) review of the events and evidence, he cured this breach. The CDS also found that while he understood the concerns with respect to procedural fairness, particularly with the DMCA decision, the proper approach is an assessment of whether, given the circumstances as a whole, the procedure was fair. The CDS relied on a 2011 Supreme Court case to rebut the Committee's finding, stating that adequacy of reasons is no longer considered a breach of procedural fairness. Therefore, the CDS did not agree with the Committee that the grievor's release was void ab initio (void from the begining).

While he acknowledged a few errors in some documents, the CDS found that they did not change any of the substantive facts: after its de novo review of the incidents, he was of the view that, on a balance of probabilities, the grievor displayed inappropriate off-duty. Coupled with his continued denial of wrongdoing and lack of desire to improve his conduct, the CDS found that the grievor's conduct deficiencies were incompatible with service in the CAF. Consequently, the CDS concluded that the grievor 's release under item 5(f) was the appropriate action.