# 2015-303 - Administrative Review, Medical Employment Limitation (MEL), Release - Medical

Administrative Review, Medical Employment Limitation (MEL), Release - Medical

Case Summary

F&R Date: 2016–02–26

The Federal Court allowed the grievor's application for judicial review and quashed the CDS's decision that rejected the grievance contesting the grievor's release under item 3(b) Medical. The Federal Court found that the CAF had assigned the grievor Medical Employment Limitations (MELs) based on an overall impression of the mental illness he suffered from, without considering his specific condition, contrary to the CAF's own policy regarding this matter. The Federal Court recognized the expertise of the Director Medical Policy (D Med Pol) in assigning MELs, but noted that he is not an expert diagnostician and that he did not explain why he rejected the opinion of the treating physician. The Federal Court noted that the CDS, who approved the MELs on the advice of the D Med Pol, also neglected to specify the reasons behind his decision to reject the advice of the treating physician. The Federal Court concluded that the process and the administrative review that followed were both flawed. The file was returned so that the MELs assignment process and the administrative review could be redone.

Following that Federal Court decision, a re-assessment was conducted, by instruction from the CDS, and led to more restrictive MELs. As well, the administrative review concluded, based on the new MELs, that the release item 3(b) was still valid. The grievor submitted a grievance contesting that decision, and the Canadian Forces Grievance Authority (CFGA) sent the file to the Committee for a second review.

The Committee noted that the most recent process for assigning MELs had been completed even before the CDS had issued his instructions and did not meet the requirements set out in those instructions. The Committee concluded that the new MELs, like the preceding ones, had been assigned based on a general impression of the grievor's illness, rather than by considering his specific condition. The CAF medical opinion was based on the assumption that the illness from which the grievor suffers is invariably incompatible with military service, regardless of the degree of severity of his illness, whereas the diagnosis made by a specialist indicates that the grievor has a lesser degree medical condition and is able to function without medication or any other constraint. Therefore, the most recent MELs assignment still contravened the CAF policy and did not correct the error pointed out by the Federal Court. The Committee pointed out that the grievor's record, even after the diagnosis, does not lead to the conclusion that he is unfit to serve in conditions of higher-than-normal fatigue and stress.

The Committee reiterated its recommendations to reverse the grievor's release and to submit the file to the Director, Claims and Litigation to evaluate whether the grievor is entitled to be compensated. It also recommended that the MELs be re-examined based on the grievor's specific medical condition, unless the CDS deems that he is able to come to a favourable conclusion based on the conclusions and recommendations formulated by the Committee in the first file. In the event that this re-examination leads to the assignment of new MELs, the Committee recommends that the administrative review that would follow take into account the risk matrix (medical) designed for use in such cases, and that the principles of procedural equity be respected.

CDS Decision Summary

CDS Decision Pending

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