COVID-19 and the Canadian Forces grievance process

Recently, several Canadian national news media platforms have reported on a series of Findings & Recommendations (F&R) produced by a member of the Military Grievances External Review Committee (MGERC), Nina Frid, regarding several grievances submitted by members of the Canadian Forces (CF) who faced adverse administrative action, up to and including compulsory release from the CF for declining or refusing vaccination against COVID-19.

These F&R - and the national news media coverage of them - are noteworthy for a variety of reasons.  Mandatory vaccination against COVID-19 in certain circumstances remains a contentious subject.  Nearly 300 CF personnel were compulsorily released from the CF on these grounds.  Yet, the CF subsequently halted such action for other pending releases.

Notwithstanding that section 126 of the National Defence Act expressly creates a Code of Service Discipline offence for refusing vaccination without reasonable excuse, no one was ever charged or prosecuted for refusing COVID-19 vaccination.  This is also noteworthy in light of the "disciplinary language" employed when CF members were subject to adverse administrative consequences for their refusal.

One of the most significant facets of the F&R produced by Ms. Frid is that she produced three analytical Annexes of broad application to these grievances.  These Annexes refer to policies and practices as well as law and legal principles.  They are not specific to any particular grievance.  They do not disclose personal information relating to specific grievants.  Consequently, these Annexes can be, and have been, made public.  This has fueled further discourse on the merit of both the CF polices (and their implementation) and the MGERC F&R.

However, the MGERC is not the final decision-maker or adjudicative authority for these grievances.  The MGERC merely provides F&R.  The Chief of the Defence Staff (CDS) is the final authority in the CF statutory grievance process and he is not bound by the MGERC F&R.  There is a marked likelihood that the CDS will be inclined to reject all or part of the F&R relating to these grievances, although he will have to provide adequate reasons for doing so.  This could likely trigger judicial review before the Federal Court.  The F&R does not constitute the "last word" on this issue.  However, Ms. Frid's now-public F&R will likely be the subject of further discussion and judicial review.

For a more detailed examination of the decision-making dynamic between the MGERC, the CF, and the CDS: 

Rory Fowler, MGERC Findings & Recommendations: Myths & Misconceptions, 9 August 2023