Comparative law note: In the United States, military personnel may file a complaint for redress of wrong through the chain of command under Article 138, UCMJ. These rarely produce relief. Personnel may also seek the correction of error or removal of injustice from the services' civilian boards for the correction of records under 10 U.S.C. § 1552. Some court cases hold, incorrectly, that such an application must be filed before suing in federal district court under the Administrative Procedure Act. The better rule is set forth in Standage v. Braithwaite (D. Md. 2021) (collecting cases). Exhaustion is not required if the case seeks money damages and is filed in the U.S. Court of Federal Claims under the Tucker Act.
Whether or not the grievance system is 'broken' is not a principal determining factor in this specific case. Most of the basis for the allegation that the grievance process is 'broken' is the inordinate delay in the adjudication of grievances (although there are other shortcomings). One of the principal issues that was argued by both counsel for the Applicant and counsel for the Attorney General of Canada, was whether the grievance process is an adequate alternative remedy in these circumstances.
ReplyDeleteIf, as is alleged by the Applicant, and appears to be the case based upon the unchallenged evidence that the Applicant has presented, the decision was made by Ministers of the Crown, and not by the CDS, and that decision had the effect of relieving MGen Fortin from the performance of military duty (which, arguably, should have been done under art 101.09 or art 19.75 of the QR&O), then the grievance process could not have been an adequate alternative remedy, even if it did not experience delay.