# 2013-072 - Administrative Review, Administrative Review Process, Career Action, Counselling and Probation (C&P),...

Administrative Review, Administrative Review Process, Career Action, Counselling and Probation (C&P), Official Languages Act

Case Summary

F&R Date: 2014–02–28

The grievor was released, pursuant to an Administrative Review, for having failed to rectify performance deficiencies following progressive Remedial Measures.

The grievor submitted a grievance arguing that the Administrative Review had breached his rights to procedural fairness in that it did not address his arguments and did not provide him with sufficient reasons for its decision. The grievor also alleged that his struggles with the English language were essentially at the source of his deficiencies.

There was no Initial Authority decision in the present case as the grievor did not grant an extension.

The Committee looked at the process used during the Administrative Review and identified breaches of procedural fairness, in contravention of the Defence Administrative Orders and Directives (DAOD) 5019-2 – Administrative Review.

The Committee found that the breach of procedural fairness was serious enough to warrant the setting aside of the original release decision and that a de novo review (anew from the beginning) was required.

In reviewing the grievor's case, the Committee made the following key findings:

• The grievor's performance deficiencies were not attributable to a language barrier;

• Procedural fairness was afforded to the grievor during the administration of remedial measures;

• The Canadian Armed Forces (CAF) provided the grievor with adequate support and tools to be successful in the military; and

• The CAF complied with their statutory linguistic obligations.

The Committee concluded that the grievor's shortcomings and performance deficiencies were such that he should be released from the CAF.

The Committee recommended that the CDS order that the grievor be released under item 5(d) effective the date he renders his decision.

CDS Decision Summary

CDS Decision Date: 2014–05–26

The CDS partially agreed with the Committee's recommendation: he was not ready to order that the grievor's 5(d) release be effective the date he renders a new decision on the release. Although the CDS recognized that the grievor was aggrieved by a breach of procedural fairness in the administrative review leading to his release, the CDS referred to the Federal Court of Appeal decision in McBride and determined that this breach was cured by the grievance process. The CDS set aside the original release decision and rendered a new one which concluded that the release was justified, but he was satisfied that the original release date remained appropriate.

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