Whelan v Canada, 2026 FC 923
Some background will assist in understanding the trajectory of this litigation.
Background
Lieutenant-General (LGen) S. Whelan (retired) served in the CF for over 40 years, rising, eventually, to become Chief Military Personnel (CMP). In 2021, allegations were brought against him by a former subordinate relating to a time when LGen Whelan (ret'd) was then a Colonel. The charges were frequently characterized in the news media as "sexual misconduct" and they arose at a time when several senior officers in the CF were the subject of allegations of sexual misconduct. [As an aside, none of the senior officers who were accused of sexual misconduct, and who were fodder for media speculation, were ever convicted for any offence, and none were found guilty of sexual misconduct.]
In the interests of clarity, LGen Whelan (ret'd) was eventually charged, in 2022, with two counts contrary to s 129 of the National Defence Act (NDA) for conduct prejudicial to good order and discipline. Both charges arose from allegations brought in 2021 but which related to a period of time, a decade earlier, when LGen Whelan was a Colonel. Only one of the allegations could be characterized as falling within the scope of sexual misconduct, and it did not rise to the level of a Criminal Code offence such as sexual assault.
The complainant made two allegations against LGen Whelan. One allegation was that (then) Colonel Whelan sent the complainant (a subordinate) "improper emails". The emails were, and remain, subject to a publication ban. However, the arguments raised by counsel at the court martial are not, and the limited information that has been published points to emails of a flirtatious nature which a reasonable person could conclude were inappropriate, particularly when offered by a colonel to a sergeant, in a deployed environment.
The other charge was that LGen Whelan improperly intervened in the production of the subordinate's Performance Evaluation Report (PER) during a deployment.
It is note-worthy that, when LGen Whelan's court martial commenced at the end of September 2023, the military prosecutor withdrew, with limited explanation, the charge relating to the alleged improper emails. Nevertheless, most of the news media reporting on the court martial continued to characterize the prosecution as relating to "sexual misconduct". Moreover, the military prosecutor still attempted to present the emails into evidence regarding the charge relating to the subordinate's PER.
The remaining charge was eventually withdrawn on 2 October 2023, following a much-scrutinized voir dire. This terminated the court martial proceeding.
For more insight into this proceeding, see:
Rory Fowler, "Why is Lieutenant-General Whelan being court martialed?" (1 October 2023) online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/why-is-lieutenant-general-whelan-being-court-martialed/>
[The above-noted Blog post was published the day before the second charge was eventually withdrawn. Nevertheless, it anticipates the eventual result.]
LGen Whelan (ret'd) engaged various processes
LGen Whelan (ret'd) was subject to subsequent administrative processes, including an Administrative Review under Defence Administrative Order and Directive 5019-2. This review eventually led, on 6 March 2025, to LGen Whelan's compulsory release from the CF, against his wishes, under item 5(f) of the Table to article 15.01 of the Queen's Regulations and Orders for the Canadian Forces (QR&O). This is often colloquially referred to as a "5(f) release". While it still constitutes being released "honourably", it is viewed by most CF personnel to be an adverse decision. Certainly, LGen Whelan contested it. Normally, such administration (and any grievance arising therefrom) would not be notoriously published. However, in light of the very public nature of the prosecution, it should not be surprising that LGen Whelan (ret'd) and his legal team would offer public commentary on the decision.
According to Murray Brewster of the CBC, LGen Whelan's lead counsel told reporters that (according to Mr. Brewster): "... a 5F release classification is typically reserved for individuals convicted of serious offences or deemed irredeemable by the military". (Murray Brewster, "Top military officer Steven Whelan fights discharge in Federal Court" (12 February 2025) online: CBC <https://www.cbc.ca/news/politics/steven-whelan-federal-court-over-discharge-1.7457791>). That assertion is debatable. CF personnel convicted for serious offences are typically released under item 2(a) of the Table to art 15.01, which is a more adverse release item and is annotated "Service Terminated" rather than "Honourably Released", which is the annotation for release under item 5(f).
Approximately a year after the charges were withdrawn, on 29 October 2024, LGen Whelan (ret'd) brought a complaint to the Military Police Complaints Commission (MPCC). Although the complaint was made (just) outside the one-year limitation period, the Chair of the MPCC accepted the complaint, finding (among other reasons) that the delay was not significant, LGen Whelan (ret'd) offered a reasonable explanation for the delay, the allegations were serious, and there was minimal prejudice to the respondent. The Chair of the MPCC ordered a Public Interest Investigation, which remains ongoing.
LGen Whelan's Action
Approximately 7 1/2 months after the prosecution was abandoned by the Director of Military Prosecutions (DMP), on 21 May 2024, LGen Whelan's counsel brought an action for damages under various causes of action, including negligent investigation and malicious prosecution. It is this action that was the subject of Justice Nowak's above-noted decision.
In response, litigators for the Attorney General of Canada (AGC) representing His Majesty the King in Right of Canada, brought a motion to dismiss the action based on the doctrine of "adequate alternate remedy" and, when that failed, they brought a motion based upon justiciability relying upon s 9 of the Crown Liability and Proceedings Act (CLPA).
These are common tactics whenever a member (or former member) of the CF brings an action against the Crown in relation to matters arising from CF service. And the AGC frequently succeeds.
A leading case upon which the AGC consistently relies is Sarvanis v Canada, 2002 SCC 28. In that case, the Supreme Court of Canada (SCC) held that s 9 of the CLPA does not immunize the Crown from tort liability in all circumstances. However, it clarified that there is no Crown liability under ancillary heads of damages for an event already compensated, establishing the analytical framework upon which the AGC has frequently relied for more than two decades.
One recent example (and one consistently cited by the AGC since it was handed down) of reliance on the doctrine of "adequate alternate remedy" is Graham v Canada (Attorney General), 2024 CanLII 89508 (FC). A recent example of the AGC's reliance on non-justiciability arising from s 9 of the CLPA is the Crown's successful motion to dismiss a proposed class action in Dunn v Canada (Attorney General), 2025 FC 652.
The doctrine of "adequate alternate remedy" can be invoked by the Crown where a process available to the plaintiff or applicant (often established in statute) can be employed before recourse to the courts. Recourse to the courts for a remedy such as judicial review (which is a discretionary remedy) will generally only be permitted if there is no adequate alternative remedy available to the aggrieved applicant: Harelkin v University of Regina, [1979] 2 SCR 561.
And, as a general rule, courts will not interfere with ongoing administrative proceedings by entertaining judicial review when administrative remedies are provided for by the administrative scheme in place: Canada (Border Services Agency) v C.B. Powell Limited, 2010 FCA 61.
And the remedy available in the "adequate alternate remedy" need not be identical to the remedy sought by the applicant or plaintiff: Strickland v Canada (Attorney General), 2015 SCC 37.
It should come as no surprise, then, that the AGC will frequently rely on the doctrine of "adequate alternate remedy" to seek to dismiss actions and applications brought by CF (and former CF) personnel.
Section 9 of the CLPA offers another shield to the Crown. This section states:
No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.
This section is intended as a bar to double recovery. It is a broad provision. It insulates the Crown from litigation. And it is worth noting that it potentially serves to limit the scope of recovery by a plaintiff. For example, if a plaintiff alleges a tort on the part of the Crown, which could conceivably merit damages in the order of $1,000,000, but the plaintiff is compensated under a statutory regime, paid from the Consolidated Revenue Fund, in the amount of $250,000, then the plaintiff would be barred from seeking greater damages.
[As an aside, historically, the Crown was not liable in tort. That common law prohibition was gradually reduced, often through statute, during the latter 19th Century and early 20th Century. The Crown can be held liable in tort (and contract) principally due to s 3 of the CLPA.]barrier
There have been some noteworthy exceptions to the AGC's consistent reliance on these doctrines. In Thomas v Canada (Attorney General), 2024 FC 655, Justice Zinn rejected the AGC's motion to dismiss a proposed class action and certified a class action brought by veterans claiming damages for stigmatization for mental health injury. In that case, the AGC relied, unsuccessfully, upon both the doctrine of adequate alternate remedy and s 9 of the CLPA. Justice Zinn rejected both grounds, holding that: (a) internal dispute resolution schemes were not available to all of the class claimants; (b) based upon the plaintiff's claim, the inadequacy of the internal dispute resolution mechanisms were a key factor contributing to the stigmatization; and, (c) the remedies offered by Veterans Affairs Canada (VAC) for mental health injury do not independently compensate for the separately pleaded harms like abuse, harassment, and discrimination.
The action brought by LGen Whelan was the object of both of the tactics frequently employed by the AGC.
First, the AGC brought a motion to strike LGen Whelan's action, asserting that the CF grievance process presented an "adequate alternate remedy". On 21 May 2025 - a year to the day from when the action was commenced - Justice McDonald issued an order and reasons, without personal appearance, dismissing the AGC's motion. [Regrettably, this decision is not available on an open source platform. Nevertheless, the decision is is summarized at para 7 of the Justice Nowak's 2026 decision.] Justice McDonald found that LGen Whelan's action disclosed reasonable causes of action based on recognized torts and the action could not be said to be scandalous, frivolous, vexatious or an abuse of process. She found that the CF grievance process was not the appropriate mechanism to address the Plaintiff’s claims as the action, as pleaded, fell outside of the realm of an employment dispute.
[The author of this commentary does not have access to a copy of the judgment. However, a further - and compelling - reason why the CF grievance process would be inadequate is that the action, as pleaded, concerns a series of decisions made in relation to the Code of Service Discipline. Such decisions are expressly exempt from the CF grievance process: QR&O, art 7.03.]
When that tactic failed, the AGC brought a motion for summary judgment on the basis that LGen Whelan is receiving compensation that is based on the same factual foundation as the action and is therefore barred under section 9 of the CLPA. The AGC argued that the plaintiff was in receipt of disability benefits from VAC, payable from the Consolidated Revenue Fund, pursuant to the Veterans Well-being Act and VAC compensation schemes. The AGC also argued, in the alternative, that the claim was barred by s 92(2) of the Veterans Well-being Act.
However, Justice Nowak held that the grounds raised by the Crown - which focused on the argument that compensation under tort would represent 'double recovery' - were not unequivocally established on the limited record before her (and which is permitted for such motions).
To be clear, this decision was not determinative of the merits of LGen Whelan's claim (nor should it have been). The issue before the judge was whether there was no genuine issue for trial and/or if the claim had no reasonable chance of success. And the judge could only draw such a conclusion if the claim was clearly barred by statute or the facts, as pleaded (and which must be assumed as true for the purposes of the motion), failed to disclose actionable harm.
Justice Nowak held that any issue of double recovery should be addressed at trial and that the action be allowed to proceed given that its progress has been stalled by two preliminary motions.
However, that did not conclude the AGC's reliance on this tactic. On 20 July 2026, less than 2 weeks after Justice Nowak handed down her decision, the AGC filed a notice of Appeal with the Federal Court of Appeal.
There is a reasonable possibility that the Federal Court of Appeal's judgment may have significance for CF personnel and veterans.
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