Jurisdiction Concerning out-of-time Grievances

Topic

Jurisdiction Concerning out-of-time Grievances

Case number

Description

For some time, the Board has been receiving files where the Director General Canadian Forces Grievance Authority (DGCFGA) reviewed the issue of time limits to determine whether grievors had submitted their grievances within the time limits provided in articles 7.02 and 7.10 of the Queen's Regulations and Orders (QR&O). The Board noted that, in a certain number of files referred to the Board, the DGCFGA determined that the grievance had been submitted outside the time limit but decided that it was in the interests of justice to consider the grievance nonetheless. Thus, a number of files considered late were referred to the Board for review. The Board is not concerned so much about the files that were referred but about the files that were not referred and that, under the National Defence Act (NDA), should have been.

In grievance files under the categories listed in article 7.12 of the QR&O, grievances that must be referred to the Board, the Board is of the view that the DGCFGA does not have the authority to determine whether it is in the interests of justice to consider a late grievance submission. Under section 29.14 of the NDA and article 7.09 of the QR&O, "[t]he Chief of the Defence Staff may delegate to any officer any of the Chief of the Defence Staff’s powers, duties or functions as final authority in the grievance process, except ...the duty to act as final authority in respect of a grievance that must be referred to the Grievance Board..."

A late grievance submission remains valid but raises a procedural issue that requires the deciding authority to agree to “consider” the grievance. In the Board’s view, it would be illogical for the regulations to permit the DGCFGA to make this determination in place of the Chief of the Defence Staff (CDS), while the NDA explicitly prohibits the former from reviewing grievances that must be referred to the Board. This determination can only be made by the final authority (FA); in this case, the CDS.

The Board sees only the files that are referred to it. It is therefore very likely that the DGCFGA has, in the past, denied late grievance submissions that should have been referred to the Board under the NDA. The grievors in those files had their grievances denied without the benefit of an independent review by the Board and a decision by the CDS, the FA, as prescribed by the NDA.

Recommendation

The Board recommended that the grievances under the categories listed in article 7.12 of the QR&O that were denied by the DGCFGA on the basis of being out-of-time be referred to the Board for a new determination about the time limits (and the interests of justice, if required). These files will be independently reviewed by the Board so that findings and recommendations will be forwarded to the CDS, who is the appropriate FA for this decision.

Final Authority Decision

On this preliminary issue, the CDS disagreed with the Board's systemic recommendation that the grievances under the categories listed in article 7.12 of the Queen's Regulations and Orders denied by the current DGCFGA be referred to the Board for a new determination about the time limits and the interests of justice if required.

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