Letter to Deputy Minister: Grievance Process

24 July 2014

Mr. Richard B. Fadden
Deputy Minister of National Defence
National Defence Headquarters
Major-General George R. Pearkes Building
Ottawa, Ontario K1A 0K2

 

Dear Mr. Fadden:

In 2010, my Office published a special report entitled The Canadian Forces Grievance Process: Making It Right for Those Who Serve. This report highlighted serious deficiencies in the grievance process that caused and continue to cause hardship for Canadian Armed Forces members whose grievances have been found to have merit.

More specifically, this Office concluded that the Chief of the Defence Staff (CDS) lacked authority to provide financial compensation as the final decision-maker in the grievance process and that this was unfair to those members whose grievance had been upheld without the possibility of remedy. Similar recommendations were made by the late Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, and, more recently, by the Honourable Patrick LeSage, former Chief Justice of the Ontario Superior Court of Justice, during their reviews of the National Defence Act.

After ten years of review and debate regarding the issue, and notwithstanding a nominal change approved by the Treasury Board Secretariat (TBS) in 2012 (described below), members whose financial grievances merit monetary resolution are still largely without recourse.

My predecessor corresponded with two Ministers of National Defence regarding this matter. Minister MacKay ultimately recognized the importance of granting the CDS the financial authority to deal with grievances and, in June of 2012, he submitted a proposal to the TBS; that the CDS be granted authority to make ex gratia payments within the grievance process. The TBS granted Minister MacKay’s submission later that month. While an important milestone, this development does not meet the intent of our special report’s recommendations nor did it provide the CDS with the flexibility to effectively resolve grievances that had a financial compensation component. We highlighted concerns with this model in a letter to Minister MacKay in August of 2012. Similarly, concerns were raised with Minister Nicholson on August 1, 2013.

As you are aware, in law, an ex gratia payment is a benevolent payment where there is no legal liability or obligation. Based on the 2012 Order in Council, the authority granted to the CDS contains an express limitation on his authority; it can only be exercised in cases where the payment is not used to fill perceived gaps or to compensate for the apparent limitations in any act, order, regulation, instruction, policy, agreement or other government instrument.

While I have not yet requested a formal follow up on this, discussions with the Director General Canadian Forces Grievance Authority indicate that, since the authority was granted, there have been approximately 12 grievances where the CDS determined financial redress was warranted. However, that remedy could not be provided as the CDS’ financial authority is too restrictive and, therefore, ineffective. Financial grievances upheld by the CDS continue to be referred to the Director Claims and Civil Litigation (outside the grievance process) to seek financial compensation, the very thing our recommendations were intended to resolve.

In July 2012, the Minister advised that the financial authority would be revisited in one year to confirm adequacy and responsiveness. I believe that is inadequate and intend to pursue the matter anew with the Minister. I am seeking your support in advance and ask that you review the special report and the current situation. I would be happy to provide you with any additional information you may require.

 

Sincerely,

Gary Walbourne
Ombudsman