All Administrative Reviews Require Procedural Fairness

Topic

All Administrative Reviews Require Procedural Fairness

Case number

• 2022-308 (F&R date: 2024-08-23)

Description

The Committee has reviewed previous files that included the posting avoidance Administrative Review (AR) process and noted the lack of procedural fairness for the affected member.¹ More recent files indicate that there remains a need for the Canadian Armed Forces (CAF) to incorporate procedural fairness in the posting avoidance AR process.

The principles of procedural fairness applying to administrative decisions affecting individuals has been long established by the Courts.² The Final Authority (FA) has recognized those principles and stated that “In general, as the potential consequences of an administrative action become more severe, the member's entitlement of procedural fairness increase”.³

Section 4.4, General Principles, of the Defence Administrative Orders and Directives (DAOD) 5019-2, Administrative Review, describes the importance that the CAF places on procedural fairness in administrative decisions as follows: “The CAF is committed to an AR process that is fair”. The Committee strongly supports the commitment the CAF has made to fairness in the AR process, but notes that it cannot be fully achieved while some AR, including the posting avoidance AR, are still not procedurally “fair”.

Procedural fairness must apply to all administrative decisions affecting a member's interests, particularly where they may negatively impact or affect the rights, interests, or privileges. This is regardless of the purpose of the AR and irrespective of how the AR may be handled. The CAF acted on this same principle when they determined that all Remedial Measures considerations deserved a fair process and not just the most serious Counselling and Probation measure.

For that reason, the procedural fairness process described in section 4.7 of DAOD 5019-2 must apply to any administrative decision affecting a member's interests.

Recommendation

The Committee recommended that the FA direct that all posting avoidance AR be conducted in accordance with the provisions of DAOD 5019-2.

The Committee also recommended that DAOD 5019-2 and paragraph 41 of Annex A to Canadian Forces Administrative Order 15-2, Release – Regular Force, be revised to clearly convey the requirement that all CAF AR must provide members with procedural fairness commensurate the administrative decision being contemplated

1. Committee File no. 2019-175, CAF File no. MG201676; Committee File no. 2018-050; CAF File no. MG201411.
2. Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
3. Committee File no. 2021-286, CAF File no. MG214868.