Parisé v. Canada
T-949-96
Noël J.
2/7/97
17 pp.
Application for judicial review of Minister of National Defence's decision dismissing grievance of applicant, member of Armed Forces for 27 years-Applicant had been returned to his unit for lack of honesty and integrity as had allegedly altered his examination (during chief's course for senior non-commissioned officers) during review period-Had allegedly added answer in margin-Applicant alleging process leading to finding had cheated was incomplete and precipitous, without regard to right to hearing and to seriousness of charge against him-In fact, investigation held on same day and in expeditious manner-Immediate superiors found him guilty of cheating notwithstanding testimony of two students who were sitting beside applicant, and who said in their opinion, applicant had not cheated-Examination had been seen by two correctors who say they had carefully reviewed examination to see whether applicant could have obtained passing mark (lacked only two points), and consulted two other correctors who confirmed there was no reply in margin where there now is one-In subsequent reports, immediate superiors either said nothing about testimony of two students or say they did not corroborate applicant's version-Application allowed-Documentation showing procedure leading to decision initiated and concluded on very day of incident, that applicant was in attendance for only very brief portion of investigation, that not given an opportunity to present his witnesses and that all instructors queried, with one exception, queried outside his presence-Purpose of proceeding not to decide whether or not applicant cheated, but to determine whether Minister could, in light of process, dismiss applicant's grievance as he did-Decision, albeit apparently administrative in nature, entails duty to act fairly if likely to have significant repercussions on person affected and duty proportionate to seriousness of those repercussions-No justification for decision to try applicant forthwith, thereby depriving him of full answer and defence-Fact that documentary evidence indicating only witnesses hostile to the applicant were contacted by those who had to assess merits of grievance likewise indicative of spirit in which process unfolded-Minister therefore acted in violation of law in his outright dismissal of applicant's grievance-Since applicant left Armed Forces in course of proceedings, order will be limited to quashing Minister's decision, setting aside finding of cheating and ordering applicant's terms of departure be adjusted to concord with rank he held before characterized as a cheat, to extent such rank would have entailed different terms of departure.