Ombudsman Addresses Lack of Action Towards Chief of the Defence Staff's Financial Authority

August 22, 2011

The Honourable Peter MacKay, P.C., Q.C., M.P.
Minister of National Defence
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
13th Floor, North Tower
Ottawa, ON K1A OK2

Dear Minister MacKay:

Thank you for your response, on June 27, 2011 to my February 10, 2011 letter concerning our special report, entitled The Canadian Forces Grievance Process: Making It Right for Those Who Serve. As you will recall, I reiterated concern over the Chief of the Defense Staff’s (CDS) inability, under the proposed amended law, to fully resolve unfairness by means of awarding financial compensation as part of the Canadian Forces (CF) grievance process. I further noted that despite ongoing discussions amongst senior officials at the Department of National Defence, there had been no decision made, nor a solution identified to address this longstanding issue. I am writing to follow-up on this important matter.

You introduced Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts, in the House of Commons. In introducing this Bill, you announced that it contained recommendations made in the 2003 Lamer Report. In February, 2011, Bill C-41 was under review by the Standing Committee on National Defence (the Committee). I appeared before the Committee on February 16, 2011 to provide my views regarding the CDS’s inability to fully resolve unfairness as part of the CF grievance process.

As a result of this (and other) testimony, the Committee agreed on March 23, 2011, to report the proposed legislation back to the House of Commons with a number of changes, including amending Clause 6 to allow the CDS to  “"(a) decide all matters relating to a grievance, including financial matters…”. The House of Commons did not have the opportunity to vote on Bill C-41 (with the proposed amendments from the Committee) prior to Parliament being dissolved on March 26, 2011, for a federal election.

On June 23, 2011, I met with the Honourable Patrick J. LeSage, who is conducting the Second Independent Review as required by section 96, Statutes of Canada, c. 35 (Bill C‑25). Section 96 requires an independent review to be conducted and a report to be tabled before Parliament every five years. My understanding is that your March 25, 2011, Ministerial Direction restricts the mandate of the Second Independent Review Authority to only reviewing the recommendations of the First Independent Review Authority which “have already been implemented and there is some operational record upon which to ground a review.” 

One of the issues I raised with the Second Independent Review Authority was the fact that the CDS does not have the ability to settle financial claims under the grievance process. As mentioned above, this recommendation was made by the First Independent Review Authority, the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada. While this recommendation has not yet been implemented, it was my submission to the Second Independent Review Authority that there was an operational record upon which he may conclude that the CDS should have this delegation in order for the grievance process to function properly and fulfill its important role within the CF.

On June 24, 2011, more than a year after you had asked a working group to study this matter, my Office contacted the co-chairs of the working group, namely Mr. Michel Lapierre, Director of Claims and Civil Litigation and Colonel Alain Gauthier, Director General of the Canadian Forces Grievance Authority, in order to request an update regarding their review. Very little information was obtained in terms of progress on this review.

As per your June 27, 2011, letter where you confirmed that interim measures were being taken to  “...ensure that CF members obtain appropriate and timely resolution to their grievances” and outlined what that process would entail, further follow-up was conducted by my Office on July 8, 2011. I received a reiteration of the planned interim measures, but no additional details about their practical application.

The proposed interim measures in no way address the very important - and still outstanding - issue of the CDS’s authority to award financial compensation within the grievance process. I am disappointed that in the past year, the working group has made no substantial progress in resolving this issue. Furthermore, the proposed interim measures do not address the recommendations submitted in my 2010 report, nor do they offer any remedy for CF members whose grievances have been upheld and yet continue to await corrective measures.

On July 12, 2011, I met with the Vice Chief of the Defence Staff (VCDS) and officials from his office to further discuss this matter. He explained that the Department was actively working on a submission to Treasury Board with a view to granting financial authority to the CDS within the grievance process. I was pleased to learn that aTreasury Board Submission to obtain authority is being developed. Obtaining financial authority for the CDS through the appropriate regulatory instruments is certainly a step in the right direction toward improving the CF grievance process in cases where financial compensation is warranted.

During this meeting, the VCDS also committed to ensuring you would be fully briefed regarding his proposed solution prior to my meeting with you on September 1, 2011. I look forward to meeting with you as I consider this matter a priority in ensuring the fair treatment of men and women of the CF.

Yours truly,

Pierre Daigle

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