Special Reports
The Canadian Forces Grievance Process: Making It Right for Those Who Serve
May 2010
Analysis
Arguments Against Giving the Chief of the Defence Staff the Power to Grant Compensation
The following are arguments and reasons provided by certain entities within the Department of National Defence and the Canadian Forces to the Ombudsman’s Office as to why the Chief of the Defence Staff should not have the power to grant financial compensation under the grievance process.
A. “The military cannot be in charge of money”
When the Ombudsman investigative team met with Director Claims and Civil Litigation, they asked what prevented the Chief of the Defence Staff from being able to grant financial compensation as part of the grievance process. They were told that the “military cannot be in charge of the money.” They were told that as a matter of basic principle, the military cannot spend money without the approval of Parliament.
The Ombudsman’s Office has no desire to argue against the basic principle of ensuring democratic control of the armed forces – indeed, given the mandate of our office, it would be ridiculous to do so. However, it must be pointed out that military officials do exercise discretion with financial consequences within the context of a number of government policies. In fact, the previous Assistant Deputy Minister for Finance and Corporate Services at National Defence was an active Canadian Forces member. Moreover, as noted earlier, certain Judge Advocate General officers have the power to settle claims and make ex gratia payments. And many military officers are delegated other financial authorities, such as the authority to enter into contractual relationships, write off debts and provide hospitality. These, and other spending powers, have been delegated by the Deputy Minister and the Minister within the context of various laws and policies.
Ombudsman investigators have not been presented with any convincing arguments to demonstrate that permitting the Chief of the Defence Staff to exercise a clearly defined compensation power within the context of the grievance process, and with duties and accountabilities set out in a specific government policy, would frustrate the principle that the military must be accountable to Parliament for its budget and spending.
B. Reviewing monetary claims requires an expertise that the Chief of the Defence Staff does not have
It was also suggested that the Chief of the Defence Staff does not have the expertise required to determine the merits or the value of a specific claim, whereas the Director Claims and Civil Litigation does. Should this be the case, we believe that it is possible for the Chief of the Defence Staff to acquire the expertise. It is also possible for the Chief of the Defence Staff, when appropriate, to obtain advice from legal advisors with respect to determining the merits and the value of compensation appropriate in any given case.
More importantly, with regard to determining whether compensation is appropriate given the circumstances of a grievance, the Department of National Defence has argued that this requires legal expertise, as the analysis under the Treasury Board Directive on Claims and Ex Gratia Payments is legalistic. However, we believe that the application of this policy is one of the things that is unfair to Canadian Forces members. Given the disadvantages they face as a result of their unique legal employment status, financial matters arising as part of a grievance should not be determined by the legalistic approach required by the directive. Instead, we believe they should be determined according to the principles of the grievance process. The point is that the Chief of the Defence Staff is best placed to determine the grievance and to provide an appropriate remedy if the grievor was treated unjustly.
In fact, as a result of our investigation, we have come to the conclusion that the Director Claims and Civil Litigation does not have the expertise or the mandate to look at claims for monetary compensation within the spirit of the Canadian Forces grievance process. The result is often unfair to members of the Canadian Forces who may be told that they have been treated unjustly, but then find that there are only limited ways to make up for the injustice. The Department of National Defence has agreed that, if a different legislative or administrative scheme were established that provided funds based on principles in accordance with the grievance process, the Chief of the Defence Staff would likely be the appropriate authority to make these kinds of decisions.
C. Administrative remedies currently available under the grievance process are sufficient
According to the Director Claims and Civil Litigation, there is an attempt to have the Chief of the Defence Staff develop “creative” ways to make up for his lack of authority to grant compensation by using “administrative means.” These may include the granting of leave days – something the Chief of the Defence Staff has the discretion to do – in lieu of financial compensation. It was not clear if the creative remedies were related to the matters being grieved, or if they were intended as a substitute for remedies that the Chief of the Defence Staff is not capable of granting.
The Director General Canadian Forces Grievance Authority, who functions both as the delegated Final Authority and as the administrator for grievances where the Final Authority is the Chief of the Defence Staff, has characterized forms of compensation based on existing policies as administrative solutions. According to the information gathered by our investigative team, every attempt is made to resolve grievances administratively. In our opinion, the use of such “creative” measures is not appropriate. If a Canadian Forces member is actually entitled to receive monetary compensation, then that is what he or she should receive. It is not morally or ethically appropriate to substitute that entitlement with an ‘administrative remedy.’
At the same time, according to the Grievance Authority and the Canadian Forces Grievance Board, there are still a number of cases where a fair resolution cannot be achieved through administrative means. As a result, the entities involved in the grievance process have expressed, in principle, their support for former Chief Justice Lamer’s recommendation that would give the Chief of the Defence Staff the ability to grant financial compensation.
The use of the administrative measures demonstrates that the Chief of the Defence Staff does have powers with monetary implications, which are exercised within the bounds of the grievance process and other applicable policies. If this is possible, there is no good reason why he should be prevented from doing the same with monetary compensation when that is what is required to rectify an injustice.
Why the Chief of the Defence Staff Should Be Able to Grant Compensation
Our office has been presented with numerous reasons why the Chief of the Defence Staff should not be able to grant monetary compensation within the grievance process. However, we believe that, within an appropriate regulatory and policy framework, it is possible for the Chief of the Defence Staff to be given the power to grant monetary compensation in the context of a grievance. More than that, we believe that it is essential that the Chief of the Defence Staff has this authority in order to make the grievance process more responsive and fairer to members of the Canadian Forces.
Requiring grievors to submit a claim against the Crown after what is often a very long grievance process is unfair because it adds complexity and legality to what is supposed to be an informal, equitable process. Instead of the Chief of the Defence Staff’s decision being final, many grievors find out that they have to begin a new process, this time attempting to convince the Director Claims and Civil Litigation, a lawyer functioning in an advisory capacity, that they should get the compensation that the Chief of the Defence Staff could not grant.
In addition to being unnecessarily complex and lengthy, the problem in the case of grievances by Canadian Forces members is that, as a result of their unique employment status, there are many cases where the matter that they have grieved would not give rise to legal liability on the part of the Crown. So when the matter is considered outside of the grievance process and under the Treasury Board policy, it is difficult to justify a payment as the settlement of a claim.
For this reason, we have often seen letters from the Director Claims and Civil Litigation telling the grievor that they will not pay, but that if he or she wishes to pursue the matter, a legal action should be started. However, as we know, the legal action will very rarely succeed because, as the Director Claims and Civil Litigation pointed out in the first example, “The civil courts have stated that there is no employment contract between Her Majesty and members of the CF, that a person who enrolls in the military does so at the pleasure of the Crown and that such relations between Her Majesty and Her military members do not give rise to remedies in the civil courts.”
We have found that applying the claims settlement analysis to compensation within the Canadian Forces grievance process is unfair to Canadian Forces members. The grievance process was designed to determine if members of the Canadian Forces were treated according to standards voluntarily assumed by the Crown towards them, despite the lack of a conventional legal employment relationship. When that system determines that someone was treated improperly, but then bases the remedy on a policy that does not take this unique relationship into account, it is not fair.
Assessing financial compensation within the grievance process as a claim under the Treasury Board Directive on Claims and Ex Gratia Payments is also unfair to Canadian Forces members. A similar analysis under the same directive, if it were to be applied to a public servant making a similar argument, might yield a different result since the public servant’s claim might lead to a successful action in court. For example, the request for compensation of a government employee who had not received payment for hours he/she was improperly prevented from working might be granted as a claim under the directive because he/she might be able to sue the Crown for lost wages. But a similar request for compensation by a military member could not be considered as a claim because, as a Canadian Forces member, he/she is under a different employment regime.
In addition, the grievance process and the process for determining claims and ex gratia payments are significantly different. The Canadian Forces grievance process is a transparent administrative process with a statutory foundation and decision-maker, and a legal regime with commonly understood principles governing the consideration, decision-making, and review processes. Canadian Forces members make representations and have the right to see any counter-representations. When a final decision is reached, the member must be informed of the decision as well as the reasons behind it. The National Defence Act and the Federal Courts Act (R.S.C. 1985, c. F-7) set out the circumstances and manner of a court challenge to a grievance decision and, during the course of a judicial review, the court is able to look at the entire grievance file.
In contrast, the process by which the Director Claims and Civil Litigation considers whether compensation should be paid is not as transparent. The claimant submits a claim, which is reviewed by a lawyer who is not bound to inform the claimant what other information is being considered. The lawyer then applies a Treasury Board directive and informs the claimant of the decision, usually in a “without prejudice” letter, and with no duty to give reasons. The lawyer’s decision cannot be challenged, and the correspondence that the claimant has received cannot be used by the claimant in court should the claimant elect to pursue the claim there.
The system is also unfair because it creates a situation where challenging a decision is incredibly complex when compensation is denied. As a result of this complexity and unlikelihood of success, we believe that many Canadian Forces members are intimidated and discouraged from exercising all of their legal options.
Even if Canadian Forces members were to determine early on that the matter about which they would like to complain is not within the Chief of the Defence Staff’s power to remedy, it is unlikely that a court would accept to hear such a case without the Canadian Forces member having first attempted to use the Canadian Forces grievance process. This is because, as a matter of legal principle, courts require that a person exhaust internal departmental grievance procedures before they will consider the person’s claims arising out of their employment.
If a Canadian Forces member has gone through the grievance process and then started a claim against the Crown, which was denied by the Director Claims and Civil Litigation, it is not always clear what legal options are available. Should he or she challenge the decision of the Chief of the Defence Staff by way of judicial review? Or should the individual commence a claim against the Crown? This puts Canadian Forces members in a very difficult situation when they want to use the courts to pursue the monetary portion of their grievance.
At times, the answer to these questions is not clear even to the Federal Court. In at least one case involving a former Canadian Forces member, the court (incorrectly) assumed that the Canadian Forces grievance process was sufficient to deal with all aspects of his grievance, including monetary compensation. As a result, the Court ruled that the grievor’s claim was barred as an abuse of process since the matter had already been adjudicated by a competent tribunal. The case involved a claim for monetary compensation that was denied by the Chief of the Defence Staff during the grievance process. In answering the question, “Did the Chief of [the Defence] Staff have jurisdiction to grant relief under section 24 of the Charter?” the court replied:
… the plaintiff insists that the Chief of [the Defence] Staff ruled, in his decision, that he did not have jurisdiction to grant the monetary compensation requested ... I do not agree with such a broad interpretation as the plaintiff would give to the decision in question. To my way of thinking, it is clear, from the actual text of the decision, that any defect of authority that may have been invoked by the Chief of [the Defence] Staff in his decision is limited to the way in which the monetary compensation sought by the plaintiff was to be established, namely, "Monetary compensation to be determined by an arbitration board."
…
It is very clear to me, however, that the Chief of [the Defence] Staff thought he had the necessary jurisdiction to grant monetary compensation to the plaintiff, provided the facts and the applicable law allowed it.
…
There is no doubt that the Chief of [the Defence] Staff … had the requisite jurisdiction to determine, in the context of a claim for redress or a grievance, an officer's right to receive monetary compensation ....7
While this decision was overturned, 8 it illustrates the confusion that can easily arise when the Chief of the Defence Staff does not have the authority to deal with all aspects of a grievance. The system was confusing to the Federal Court, where Canadian Forces grievances and federal Public Service grievances are often challenged. How can we expect a Canadian Forces member fighting a battle against the chain of command, and usually without any legal assistance, to know what to do?
Finally, in this case, the court alludes to a very important principle underlying the Canadian legal system: namely, that there is no right without a remedy. Simply put, a proper review process must be able to not only determine whether someone was treated fairly or according to applicable standards, but must also be able to correct any unfair or improper treatment. Courts that are able to find someone guilty of a crime have the power to impose appropriate sanctions, and tribunals that determine if an individual’s rights were infringed are supposed to have the power to grant remedies for any infringement.
We believe that this legal principle meshes with an important military concept: Leaders must be given the tools and authority needed to accomplish the goals for which they are responsible. In the case of the Canadian Forces grievance process, the Chief of the Defence Staff has not been given the authority to act as the final authority with certain monetary aspects of grievances.
In this sense, the grievance process is deficient. We have seen complaints where there was a clear decision that the grievor was treated unfairly but the Chief of the Defence Staff had to inform the grievor that he was unable to grant the compensation sought, as he did not have the authority to do so. It is not fair to members of the Canadian Forces that the Chief of the Defence Staff can find that they have been treated unfairly but, in many instances, does not have the ability to grant the compensation that will, at least to some extent, make up for the unfair treatment. The chain of command, which is entrusted to ensure the well-being of our troops, must have the tools and authority it needs to take care of them. In turn, military members need to be confident that the chain of command has the ability to take care of them.
7. Bernath v. Canada, 2005 FC 1232, paragraphs 27-32, overturned by 2007 FC 104.
8. Bernath c. sa majesté la Reine 2007 CF 104 (FCA). The Federal Court of Appeal allowed the grievor’s claim to proceed, ruling that the Canadian Forces grievance system was not a “court of competent jurisdiction” as the Chief of the Defence Staff did not have the jurisdiction necessary to grant the remedy that the grievor sought, or an appropriate alternate remedy.
