Ombudsman Concerned with Lack of Progress in Giving CDS Power to Grant Financial Compensation within the Grievance Process

May 7, 2012

The Honourable Peter MacKay, P.C., Q.C., M.P.
Minister of National Defence
National Defence Headquarters
Major-General George R. Pearkes Building
13th Floor, North Tower
101 Colonel By Drive
Ottawa, Ontario
K1A 0K2

Dear Minister MacKay:

In May 2010, I published a special report on the Canadian Forces (CF) redress of grievance process, entitled The Canadian Forces Grievance Process: Making It Right for Those Who Serve, highlighting deficiencies in the grievance process that are causing further hardship for CF members who have already been wronged.

As a result of the investigation, we found that the redress of grievance process – which is supposed to provide soldiers, sailors, airmen and airwomen with a quick and informal mechanism to challenge CF actions and resolve matters without the need of the courts or other processes – is incomplete, flawed and unfair.

Specifically, it was determined that the Chief of the Defence Staff (CDS), who is the final decision-maker in the grievance process, does not have the authority to provide financial compensation to fully resolve unfairness. Instead, when a request for financial compensation arising from a grievance is made, it is a government lawyer – not the CDS – who determines if compensation should be paid to the CF member. These two processes are completely separate and independent, and government lawyers are not bound by the position taken by the CDS.

As a result of the investigation, I concluded that it is necessary that the CDS be able to grant financial compensation for the simple reason that, in certain circumstances, fairness cannot be achieved by any other means. Commanders must have the tools and authority to take care of their people and CF members must have confidence that their commanders will take care of them.

It has been more than two years since the Ombudsman’s report was published. At the time, you wrote that even if you agreed with the recommendations, finding the most appropriate way to implement this concept was not obvious, that there would be a need to identify the proper regulatory mechanism and to define the parameters within which this authority could be used.

You advised that you asked a working group to study the matter, and that you hoped to be able to share, in the near future, their recommendations on the way forward. You concluded that it was time to bring closure to the matter, one way or the other. I wholeheartedly agree with you and even went as far as to quote your intentions during my own appearance before the Standing Committee on National Defence on February 16, 2011.

Unfortunately, the Department of National Defence has not implemented any of the recommendations from the Ombudsman’s 2010 special report, and the matter is no closer to being resolved. We have numerous cases where the CDS agrees that CF members were fundamentally treated unfairly and determined that their grievances merited financial compensation for their losses, but he could do no more than uphold their grievances and apologize for his inability to offer any type of monetary disbursement. This just does not make sense.

When we request updates on the status of our recommendations, we are assured that all of the relevant decision-makers agree with the main recommendation – that the CDS should be given the power to grant financial compensation within the grievance process. However, as of March 31, 2012, my office was informed that there was still no agreement on how to grant that power.

Given the passage of two years, I am concerned that this lack of progress suggests that the file may no longer be a departmental priority. If there truly is a willingness to repair this fundamental unfairness, as senior department officials repeatedly assure us, an appropriate mechanism must be found to implement the recommendations in short order.

I am therefore requesting that you lead the way in implementing the recommendations without further bureaucratic delay. Doing so would repair a fundamental unfairness to Canadian Forces members with grievances where redress might involve financial compensation.

Yours sincerely,

Pierre Daigle

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