Tuesday, December 6, 2016

Judicial Review of the Canadian Military Grievance System at work

In a recent decision, Stemmler v. Canada (Attorney General), 2016 FC 1299, the Federal Court of Canada ruled on an Application for Judicial Review filed by RCAF Corporal (retired) Paul Stemmler, concerning a 2010 grievance. His grievance dealt with his accelerated release (discharge) from the military during a pre-approved period of accommodation necessitated by the award of Medical Employment Limitations (MEL) and a reduced medical fitness category by the military health authorities. When Stemmler's period of accommodation (retention) was suddenly cut short by two years, he grieved.

Eventually, his grievance was settled by the Chief of the Defence Staff (CDS) acting as the Final Authority. The CDS granted Cpl Stemmler an ex gratia payment of $25,000. In Court, Stemmler argued that this grant was insufficient to compensate him for the loss of two years worth of salary.

While sympathizing with Corporal Stemmler, the Federal Court dismissed the Application noting that "having regard to all the circumstances" the CDS decision represents a 'reasonable outcome based on the law and the evidence."

[74]           The CDS decision to grant an ex gratia payment is consistent with a reasonable interpretation of the [Treasury Board (TB)] Order and Conditions, and it suffices to conclude that it falls within the range of possible, acceptable outcomes. Doubtlessly, Cpl. Stemmler would have preferred to see more reasons explaining the amount of $25,000. But, in the context of the Order and the TB Conditions, the CDS did not have to go further in order to meet the requirements of a reasonable decision. Given the high degree of deference to which the CDS is entitled, this is not a situation justifying the Court’s intervention.  [Our emphasis]

Yesterday, the Canadian Broadcasting Corporation provided its own summary of the case "Ex-Soldier who investigated child porn in military slams $25K "shut up and go away" money."


  1. "...Given the high degree of deference to which the CDS is entitled, this is not a situation justifying the Court’s intervention..."

    Is this a justifiable reason in a democracy? What happened to 'Be ye never so high, the law is above you'?

    1. The Canadian Forces, through the lack of moral fibre of its Chief of Defence Staff, is weakened with actions such as these. I bet the CDS would not have been able to tell the retired corporal, in person, that he only deserved $ 25,000 for the situation that he lived, the loss of salary and the legal costs. DND is happy with such decisions as they claim it protects the taxpayers. Politicians are happy when there's no general issue and this one is an isolated case which electors won't care too much for.

      To make things short: it's too hard to do what's right.


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