AIR LAW |
Doyle v. Canada (Chief of the Defence Staff)
T-2101-03
2004 FC 1294, Campbell J.
22/9/04
20 pp.
ARMED FORCES Judicial review of Chief of Defence Staff's decision dealing with applicant's claim for redress of grievance pursuant to National Defence Act (Act), s. 29--In grievance, applicant objected to request to use annual leave to account for portion of time spent away from workplace in order to complete relocation--Applicant major in Canadian Armed Forces--In 1998 transferred from Trenton to Ottawa--Spent 11 days away from work conducting move--Administrative officer insisted applicant submit leave pass for time not covered by five-day special leave allowed by Canadian Forces Administrative Order 209-36 or would be charged with being absent without leave--Applicant characterized such treatment as intimidation and harassment because delay in moving process beyond his control--Detachment commander then granted two days' short leave in addition to five days' special leave to relocate, but required applicant to apply for four days' annual leave to cover remaining time applicant away from workplace--Request for four days' annual leave approved-- Applicant submitted request for redress of grievance--Request denied--Commander rejected claim applicant unaware of entitlements or requirement that he inform superiors of whereabouts--Observed that technically applicant absent without leave and could be subjected to administrative or disciplinary action--Applicant submitting expanded request for redress to include time off for preparation of request-- Commandant satisfied applicant received proper compensation for travel, moving expenses and concluded no provision supporting compensatory leave to prepare grievance-- Applicant submitted grievance to Chief of Defence Staff, requesting restoration of four days of annual leave, 21 days' special leave in compensation for time spent preparing grievance, three months' special leave for pain and suffering --Director of Pension and Social programs providing opinion, based on Forces Administrative Order 209-36, applicant entitled to, and received, five days of special leave and members requiring additional time must take annual leave-- Based on Canadian Forces Grievance Board (CFGB)'s recommendation, Chief of Defence Staff dismissing grievance except to extent of granting two days' special leave--As applicant agrees did not conform with requirements of Forces policy on harassment, no foundation for argument for positive discretionary finding for pain, suffering--As no regulatory basis for compensation with 21 days' special leave for preparation of grievance, no error on this aspect by Chief of Defence Staff--As to exercise of discretion, applicant arguing Chief of Defence Staff's decision to not grant further two days for necessary components of relocation patently unreasonable --CFGB finding two days related to waiting for electrician and pre-closing inspection not "necessary components of the relocation"--Applicant arguing this finding erroneous and, since accepted without question by Chief of Defence Staff, such acceptance patently unreasonable--Evidence including documentation provided at time of relocation, containing expectations of members of Forces--Based on that evidence, not possible to find on balance of probabilities electrician and pre-closing inspection expectations not necessary components of relocation--CFGB erred in finding these expectations fulfilled for "personal reasons"--This single, isolated acceptance of CFGB's erroneous finding by Chief of Defence Staff patently unreasonable--Application allowed to this limited extent--National Defence Act, R.S.C., 1985, c. N-5, s. 29 (as am. by S.C. 1998, c. 35, s. 7).