Wednesday, July 20, 2016

The Colonel Ouellette Affair. Justice delayed, justice denied?

The Canadian Broadcasting Corporation (CBC) has published a critical exposé on the CF Grievance System and in particular the failure of the CDS to act expeditiously in the determination of a grievance first submitted in 2010. 

In the online article "Military Grievance Board undercut in case of officer's alleged affair" the CBC chronicles the case of now retired Colonel Bernard Ouellette who submitted a grievance under section 29 of the National Defence Act on November 4, 2010, The grievance was brought upon following his removal from command in June of that year from the dual appointments of Commander [Canadian] Task Force Port au Prince, Haiti and Chief of Staff to the United Nations Stabilization Mission, in Haiti.  

          On December 29, 2011, the independent Military Grievances External Review Committee (MGER) released its Findings and Recommendations to the Chief of Defence Staff (CDS) as the Final Authority. 

           The MGER concluded that Colonel Ouellette had been wrongfully relieved from command and recommended that the CDS not only uphold the grievance but offer apologies to Colonel Ouellette for the manner in which he was treated and removed from command.

In closing, I have to say that I was shocked by the manner in which the grievor was treated. Whether I look at this case from a procedural aspect or on its merit, this grievor did not deserve this treatment. Moreover, I am troubled by the absence of any direct senior leadership intervention as well as the decision of the Comd CEFCOM to act, having no regards to procedural fairness, on allegations submitted by CF officers who had bypassed the chain of command. As I do not believe this is representative of command and of how the CF treat their members, I hope the CDS will take this opportunity to personally fix this unfortunate situation.”

            In February 2014, the CDS issued a decision but as the Initial Authority in the CF Grievance Process dismissing the grievance. Oddly, he then invited Colonel Ouellette to ask for reconsideration to the Final Authority in the same CF grievance process, who in this case, is also the CDS.

            This decision by the CDS was challenged before the Federal Court of Canada in a Judicial Review Application [We acted as counsel for Colonel Ouellette].  In October 2015, the Federal Court of Canada (See: Ouellette v. Attorney General of Canada, 2015 FC 1185 ) directed the CDS to use the Findings and Recommendations of the MGER to make a final determination of the said grievance. The Court also noted

[65] The Court wishes to stress [that] the particular fact scenario of the present case as the CDS was involved in the decision to remove Colonel Ouellette from command, would have been the Initial Authority, and is the Final Authority. The CDS was thus part of the decision to remove Colonel Ouellette from command, and is the decision maker, at both levels, in reviewing this very decision. An independent review by the Committee thus understandably appears even more necessary.

[71] In this case, given that the CDS was involved at the decision-making level and possibly at both levels of the review process, the Court is satisfied an Initial Authority decision was not mandatory and that it was unreasonable to conclude otherwise.

[76] For the aforementioned reasons, this application for judicial review will be allowed and the matter referred back to CDS for a Final Authority decision, using the Findings and Recommendations issued by the Committee in December 2011.

The CDS has yet to render a decision concerning this grievance which is now close to being six ( 6) years old.  This exaggerated amount of time taken by the CDS to adjudicate the grievance is, to say the least, most unusual, particularly when one considers that the entire Second World War (WWII) was only six years in length!  

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