Ombudsman Encourages Minister to Enshrine CDS's Authority to Grant Financial Compensation into the National Defence Act

August 17, 2012

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

Dear Minister MacKay:

Thank you for your letter of July 26, 2012, informing me of the recent Treasury Board decision to grant approval for the Chief of the Defence Staff to make ex-gratia payments as part of the Canadian Forces grievance process. This is an important milestone in the continuing development of the military grievance system.

Although I view the implementation of this interim financial tool as a positive step, it does not fully meet the intent of the recommendations made by the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, myself and, more recently, by the Honourable Patrick J. LeSage, former Chief Justice of the Ontario Superior Court of Justice. In my 2010 report, The Canadian Forces Grievance Process: Making It Right For Those Who Serve, I provided you with five specific recommendations to re-establish fairness in the grievance process. The ability of the Chief of the Defence Staff to make ex-gratia payments only partially supports one of my recommendations.

I am concerned that the effectiveness of ex-gratia payments as a compensation tool may be restricted due to the limitations inherent in their application. In my report, I argued that the Final Authority should be able to assess compensation using the same principles of fairness that guide the grievance process. Former Chief Justice Lamer recommended that  “the CDS be given the necessary financial authority to settle financial claims in grievances.” (emphasis added) In his Report, former Chief Justice LeSage recommends that  “the CDS should be given the authority to grant relief in a case where the grievor is seeking, as redress, financial compensation.” (emphasis added) The ex-gratia program is very limited in its ability to provide financial payments and this notion was reinforced in the decision of the Treasury Board, which states that: 

The CDS ex-gratia authority can only be exercised in cases where the payment is not used to fill perceived gaps or to compensate for the apparent limitations in any act, order, regulation, instruction, policy, agreement or other government instrument.”  

Furthermore, I believe that the ability of the Chief of the Defence Staff to award compensation will be further restricted based on the policy requirement that a legal opinion is required prior to authorizing an ex-gratia payment within the grievance process. 

I am also concerned with the fact that retroactivity has not been authorized by the Treasury Board; although this was one of the tenets of my 2010 recommendations. As part of the data collected during a Working Group to study this matter, the Director General Canadian Forces Grievance Authority and the Director Claims and Civil Litigations have identified over 100 cases where Canadian Forces members have grieved issues related to financial matters and where the Chief of the Defence Staff had no ability to provide resolution. More specifically, my 2010 report provides three concrete examples where the Chief of the Defence Staff recognizes that Canadian Forces members have been aggrieved but that he has no ability to provide any financial compensation. Canadian Forces members have limited rights and limited access to recourse mechanisms compare to their counterparts in the Public Service. Therefore, the ability to rectify past unfairness remains an essential component in order to make the process fair to those who serve.

Finally, I encourage the Department to build on the existing momentum of this initiative to enshrine into the National Defence Act the Chief of the Defence Staff’s authority to grant financial compensation. It may be opportune to include the authority of the Chief of the Defence Staff in Bill C-15, which is currently awaiting second reading. This would be a great opportunity to bring final resolution to this issue that has been ongoing for almost a decade.  

Yours sincerely,
 

Pierre Daigle
Ombudsman

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