ARMED FORCES
Judicial review of decision of Chief of Defence Staff (CDS), dated September 25, 2003, denying redress of applicant’s grievance, accepting findings and recommendations made by Canadian Forces Grievance Board (Board)—In July 1997, complaint of sexual harassment filed against applicant—Investigations by investigating officer and police ending with decision not to file any charge for lack of evidence, Deputy Chief of Staff of Cadets (DCOS Cad) declaring file closed on August 15, 1997—Decision published in media October 17, 1997, applicant informed of decision October 30—Complainant reopening case, questioning treatment reserved for sexual harassment complaints process within Canadian Forces, saying she wished to appeal decision—Commander Land Force Quebec Area (Comd LFQA) ordering summary investigation be held to shed light on situation—In report dated February 25, 1998, investigating officer finding conclusion in initial inquiry should be upheld but that applicant’s behaviour antagonized female members of camp—On March 23, 1998, Comd LFQA concluding complaint founded, applicant’s social behaviour, leadership in relation to female staff inappropriate—Complainant informed of decision that same day and, on March 30, media informed—Notice of intention to adopt counselling and probation measures presented to applicant by DCOS Cad on April 21, 1998—Applicant demanding cancellation of measure—Saying not informed in writing of result of investigation and not knowing why there was review, thus preventing him from submitting arguments—On February 4, 2000, new Comd LFQA reviewing applicant’s file, concluding his conduct was inappropriate, ordering counselling and probation measure—On September 25, 2003, CDS accepting Board’s recommendation to deny applicant redress of grievance—CDS finding applicant treated fairly, equitably, not suffering any injustice—Application allowed—Record of disclosing applicant aggrieved by some breaches of principles of procedural fairness resulting from violation of natural justice, CDS erring in not recogni-zing them—Principles of procedural fairness and natural justice, and their application, are function of facts and applicable statutory scheme: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653—Certain tests developed in case law favour in this instance rigorous application of principles of procedural fairness and natural justice by decision-making authorities: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495—In this case applicant not having opportunity to be heard, make full presentation of position—Failure to disclose to applicant information in file so that he could be genuinely able to present arguments—Applicant deprived of disclosure of documents of crucial importance: complainant’s letters seeking review of case and investigation reports—Clearly, without benefit of adequate, timely disclosure, applicant unable to present arguments in context of investigation, imposition of counselling and probation measure—In so far as couunselling concerned, applicant deprived of right to hearing as decision effectively taken March 23, 1998, not until April 21, 1998 that he was asked to present arguments—Further shortcomings in processing of complaint: authorities took considerable amount of time before officially informing applicant of result of both first, second investigations; internal memorandum says that considering approaches made by complainant to MGen Forand, Department of National Defence, Prime Minister and media; uproar can be expected and that it will not be possible to justify position of Department—Finally, applicant cooperated with authorities, answering questions and providing information, without knowing real objective of proceeding.
Lagueux v. Canada (Chief of Defence Staff) (T-2026-03, 2005 FC 180, Blanchard J., order dated 7/2/05, 16 pp.)