Federal Court Decisions

    

     T-2530-96

BETWEEN:

     SERGE COUTURE

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

Nadon J.:

     The applicant seeks to set aside a decision dated March 11, 1996 rendered by Lieutenant-General R.N. Fischer of the Department of National Defence ("National Defence"). By his decision, Lieutenant-General Fischer denied the applicant"s application for release pursuant to the Canadian Armed Forces" Force Reduction Program 96.

     The applicant is a member of the Canadian Armed Forces which he joined in August 1977. He attended the Royal Military College in Kingston and obtained an undergraduate degree in May 1989. In September 1991, he obtained a master"s degree from Queens University. Since April 1992, the applicant has been working at the Canadian Armed Forces Aerospace Engineering Test Establishment in Cold Lake, Alberta. In 1992, the applicant was promoted to the rank of Captain.

     The applicant"s education, both at the undergraduate and graduate levels, was funded by the Department of National Defence. As a result, the applicant undertook to serve in the Canadian Armed Forces sixty (60) months in respect of his undergraduate degree and a further fifty (50) months in respect of his graduate degree.

     In November 1995, the Department of National Defence announced a force reduction program ("FRP 96"). The purpose of this program was to reduce personnel levels so as to meet the operational needs of the Armed Forces. The applicant, with the rank of Captain in aerospace engineering, qualified for the program. Of relevance to these proceedings is the fact that the program allowed for the waiver of obligatory service incurred by reason of undergraduate training by Aerospace Engineers with the rank of Captain:

         FRP 96

1.      General. To be eligible for FRP 96 consideration, applicants must meet the criteria below:

f.      not be serving on a period of obligatory service IAW CFAO 15-7 (see Annex A for exceptions for officer MOCs and Annex B for NCMs);

ANNEX A:

3.      a. 32 PLT

...

Note: Obligatory service incurred through undergraduate training is waived for approved applicants.

     On December 7, 1995, the applicant applied under FRP 96 for release from the Armed Forces. By his decision, Lieutenant-General Fisher dismissed the applicant's application for release. This decision, which the applicant seeks to set aside, reads as follows:

1.      I have personally reviewed your application for redress of grievance in which you request that your Force Reduction Plan (FRP) application be accepted unconditionally. You believe that you have served your Obligatory Service (OS) for Post Graduate training in view of the fact that FRP 96 waives the OS requirements for Undergraduate Training for your Military Occupation.

2.      As a result of reviewing all the appropriate documentation, including your rebuttal at Reference B to the briefing note, I believe that your interpretation of current policy is incorrect. I am satisfied that the periods of OS must be served consecutively and that the logical order is that the OS for Undergraduate Training must be served first followed immediately by the OS for incurred for Post Gradate [sic] Training. It is also clear to me that you are not permitted to substitute one period of OS for another. Correspondence at References D and E are very valid in that they provide clarification to current policy and apply to everyone.

3.      I do not believe that you have been treated unfairly or have suffered any injustice. Therefore, I do not support your request for redress.

4.      Should you not be satisfied with this response, you may request, through your normal chain of command, that your request be forwarded to the next higher level of adjudication, the Chief of the Defence Staff.

     Before I turn to the issues which this application raises, I will set out the relevant provisions of Canadian Forces Administration Order ("CFAO") 15 - 7, which deal with obligatory service. These provisions read as follows:

CFAO-15-7

2.In this order:

obligatory service

means that period of time, prescribed by the Chief of Defence Staff (CDS), that a member must serve after having attended a course on full-time paid duty and during which the member shall not be released on request under Item 4 of the Table to Article 15.01 of QR & O, unless there are special and unforeseen circumstances.

11.      The duration of a period of obligatory service following a course is dependent upon the length of the course and the needs of the Service. Unless otherwise specified, obligatory service is calculated on the basis of two months service for each month of training. To maintain CF effectiveness, the minimum period of obligatory service is 12 months. The maximum period of obligatory service that can be incurred for any one course or series of courses leading to a specific qualification is 60 months. Post graduate training on scholarship and the ROTP are two separate training plans, and in the case where the former immediately follows the latter, the total obligatory service is not restricted to 60 months. Periods of obligatory service are extended by any period of leave without pay which has been authorized while a member is serving an obligatory period of service.

13.      Normally a member is not permitted to incur an additional period of obligatory service prior to the completion of a previously incurred period of such service, Requests for exception should be included in the application for the training in question and directed to the Director General Military Careers (DGMC). Where such an additional period of obligatory service is incurred prior to a member completing a previously incurred period of service, the total obligatory period of service then in effect is the sum of the unexpired portion of the first period plus the second period of service. A member cannot concurrently incur and serve obligatory service. Where more than one period of obligatory service is incurred, the total period, calculated as above, shall be served consecutively commencing the day the second period of training is completed. A member will not be selected for subsidized training when the period of obligatory service to be incurred as a result of such training would extend beyond the date on which the member will acquire a statutory right of release. In some circumstances however, it will be possible for a member to convert his or her terms of service so that the date the member acquires a statutory right of release will be extended to a date following the anticipated completion date of a period of obligatory service.

CFAO 15-7

ANNEX A

PERIODS OF OBLIGATORY SERVICE REQUIRED OF MEMBERS WHO HAVE ATTENDED A COURSE OF INSTRUCTION AT PUBLIC EXPENSE AS PRESCRIBED BY THE CDS IN ACCORDANCE WITH QR & O 15.07
Serial	Class of Member	Type of Training	Period of Service Required
9.	Officers taking postgraduate training (PGT)(CFAO-9-33)	a.      Postgraduate courses on scholarship immediately following graduation from a subsidized undergraduate training plan (ROTP, UTPLNCM, UTPO);	a.      Two months service for each month of training to a maximum of 60 months commencing the date postgraduate training is completed. CFAO 15-7, paragraph 13 applies with respect to multiple periods of obligatory service;

     I now turn to the issues. The first issue is whether Lieutenant-General Fischer's interpretation of FRP-96 and CFAO-15-7 is correct. The applicant argues that Lieutenant-General Fischer's interpretation was wrong and that his outstanding obligatory months of service should have been waived. The respondent, obviously, is in agreement with Lieutenant-General Fischer"s interpretation.

     A second issue was raised by the respondent. The respondent submits that I should dismiss the applicant"s application for judicial review "on the ground that the applicant has an adequate alternate remedy, namely redress of grievance to the Chief of Defence Staff and ultimately to the Minister of National Defence". In support of his submission, the respondent refers to section 29 of the National Defence Act and articles 19.26 and 19.27 of the Queen"s Regulations and Orders ("Q.R. & O."), which provide as follows:

National Defence Act:

29. Except in respect of a matter that would properly be the subject of an appeal or petition under Part IX or an application or appeal under Part IX.1, an officer or non-commissioned member who considers that he has suffered any personal oppression, injustice or other ill-treatment or that he has any other cause for grievance may as a matter of right seek redress from such superior authorities in such manner and under such conditions as shall be prescribed in regulations made by the Governor in Council.

Queen"s Regulations and Orders:

         19.26 - REDRESS OF GRIEVANCE

(1)      In this article, "redress authority" means a commanding officer, an officer commanding a formation or command, the Chief of Defence Staff or the Minister.

(2)      Subject to paragraph (12), a complaint under this article shall be submitted through the chain of command.

(3)      Every redress authority to whom a complaint is submitted under this article shall cause it to be investigated as expeditiously as possible.

         [...]

19.27 - RULES FOR STATING GRIEVANCES

(1) A complaint in writing submitted by an officer of non-commissioned member under article 19.26 (Redress of Grievance) shall contain:

( a)      a statement of the facts of the situation giving rise to the complaint;

( b)      a statement of the redress sought;

( c)      a written statement from any individual upon whom the member is relying to substantiate the complaint; and

( d)      a copy of any document upon which the member is relying to substantiate the complaint.

(2)      A complaint in writing shall not be considered by a redress authority where the complaint:

( a)      is made jointly by two or more officers or non-commissioned members;

( b)      is made anonymously;

( c)      contains a statement known to the officer or non-commissioned member to be untrue; or

( d)      includes language or comments that are insubordinate or subversive of discipline, except to the extent that may be necessary for an adequate statement of the complaint.

(3)      Where a complainant requests assistance in the preparation of a complaint, the commanding officer shall detail an officer or non-commissioned member to assist in its preparation.

(4)      Where practical, a commanding officer shall detail under paragraph (3) an officer or non-commissioned member chosen by the complainant.

     I will deal firstly with the second issue.

     Pursuant to paragraph 19.26(2), a member of the Armed Forces, must submit his complaint "through the chain of command". That is, he must submit his complaint first to his commanding officer, then if not satisfied with the decision rendered, to the Chief of the Defence Staff, and finally if not satisfied with the decision of the Chief of the Defence Staff, the member may then submit his complaint to the Minister of National Defence. In the present matter, the applicant did not submit his complaint to the Chief of the Defence Staff nor to the Minister of National Defence.

     The applicant submitted his release application on December 7, 1995. His acting commanding officer, Lieutenant-Colonel R.P. Cowen, forwarded the application to the Personnel Career Officer of Aerospace Engineering, indicating that he supported the application.

     On December 18, 1995, the applicant was informed that the Aerospace Engineering Career Manager, Major Antonietta Morra, was of the view that the applicant had only served his obligatory term incurred in respect of his undergraduate studies. Thus, according to the career manager, the applicant was not eligible for release under FRP 96 since he had not completed his obligatory post-graduate service. On January 4, 1996, the applicant requested a formal response from the career manager, which he received on January 22, 1996.

     On January 22, 1996, the applicant submitted a request for redress of grievance to his commanding officer, Lieutenant-Colonel Cowden. By a letter dated January 25, 1996, Lieutenant-Colonel Cowden advised the applicant that he could not support his application for redress of grievance. Lieutenant-Colonel Cowden further advised the applicant that, should he not be in agreement with his decision, he had the right to forward his application to the next level of authority, namely the Assistant-Deputy Minister "through your normal chain of command".

     By letter dated January 25, 1996, the applicant applied for a redress to the next level, the Senior Assistant-Deputy Minister. The application was forwarded to the Assistant-Deputy Minister by Lieutenant-Colonel D.I. Tudor, the then acting Commanding Officer.

     By letter dated March 11, 1996, the Senior Assistant-Deputy Minister, Lieutenant-General Fischer, denied the applicant"s application for redress of grievance. Lieutenant-General Fischer advised the applicant that, should he not be satisfied with his decision, he could request through the normal chain of command that his application for redress be forwarded to the Chief of the Defence Staff. As I indicated earlier, the applicant did not ask that his application for redress be forwarded to the Chief of Defence Staff.

     The respondent submits that the applicant ought to have submitted his application for redress to the Chief of the Defence Staff and, if need be, to the Minister of Defence. Thus, according to the respondent, the applicant has not exhausted the remedies that were open to him and, as a result, his application for judicial review should be dismissed.

     In support of this position, the respondent relies on a number of authorities but principally on the decision of the Federal Court of Appeal in Anderson v. Canada (Minister of National Defence) (1996) 205 N.R. (3d) 350. In Anderson, the Court of Appeal considered Section 29 of the National Defence Act and article 19.26 of the Q. R. & O. With respect to Section 29 of the National Defence Act, Mr. Justice Stone, for the Court, made the following comment at 354:

The policy is apparent, that a complaint such as the one here in issue is to be dealt with within the Canadian Forces in the manner prescribed by the Regulations.

     The Regulations alluded to by Mr. Justice Stone in the above passage are the Q. R. & O.

     In Anderson, a member of the Armed Forces ("the member") had submitted an application for redress of grievance following the issuance of a counselling and probation caution of six months by the Commander, Fourth Maritime Operations Group, D.E. Collinson. The member"s application for redress was examined by the Commander, Maritime Forces Pacific, Rear Admiral Johnston who advised the member that he did not support the application. As a result, the member commenced judicial review proceedings in the Trial Division of this Court seeking to set aside Rear Admiral Johnston"s decision. The Department of Justice, acting on behalf of the Armed Forces, brought an application to strike the judicial review proceedings on the ground, inter alia , that the member had available to him an adequate alternative remedy which he had not exhausted, namely the submission of his application for redress of grievance to the Commander, Maritime Command, as provided at Article 19.26(7) of the Q. R. & O.

     The application to strike the judicial review proceedings was dismissed by the trial judge whose decision is reported at (1996) 103 F.T.R. 27. In dismissing the application to strike, the trial judge stated at 36 that:

[21] If the applicant continued to push his grievance up to the CDS and the Minister, the recourse to judicial review would be premature at this stage. However, by seeking judicial review at this stage, the applicant has quite naturally notified the respondents that he opts not to expend the time, resources, money and nervous stress to push up through the chain of command. Believing that the initial impugned decision was and is illegal, the applicant wastes no more of the above, but attacks that decision as soon as he discovers that the first level of authority declines to support the grievance, or in other cases the first time a higher authority so declines.

     That decision was appealed to the Court of Appeal.

     After reviewing the circumstances of the case, Mr. Justice Stone concluded that:

[i]t was open to the respondent [the member] to seek redress at the next step in the chain of command above Rear Admiral Johnston, namely to the Commander, Maritime Command, who, like Rear Admiral Johnston, was endowed with the same authority of redress if "... personally satisfied of the justice of the complaint". It seems to me that the power to quash a C & P [Counselling and Probation] on the ground the process under which it was imposed was defective is vested in the Commander, Maritime Command, under subparagraph 10(a)(ii ) to the same extent that it was vested in Rear Admiral Johnston.

     Mr. Justice Stone then examined whether the remedy afforded to the member, pursuant to the redress of grievance procedure set out at Article 19.26 of the Q. R. & O., constituted an adequate alternative remedy. He pointed out that the motions judge had concluded that the remedy was inadequate because of the time required to pursue the complaint through the chain of command and by reason of the "cost and stress for the respondent in so doing". Although he recognized that the time required to pursue the matter by way of judicial review would probably be less than that required to pursue the matter through the grievance process, at 357, Mr. Justice Stone concluded that:

In the circumstances, I am satisfied that the factor of delay is not such as to warrant the Court"s intervention at this stage.

     Mr. Justice Stone then went on to state that he did not believe that the cost and stress involved in pursuing the complaint through the chain of command justified interference with the process set out at Article 19.26. This is how he put it at 358:

Nor am I satisfied that the cost and stress of pursuing the complaint of the chain of command justifies the Court in interfering with that process. Although the motions judge regarded these as valid factors, there was no evidence before him in relation to either of them. Indeed, his view was based to some degree on speculation that the respondent does not have "the resources to push onward and upward". More ever, I do not understand the complaints procedure as unduly costly. ...

     Mr. Justice Stone then concluded that part of his reasons as follows at 358:

In summary, I am of the view that the process mandated by Section 29 of the National Defence Act and as laid down in Articles 19.26 and 19.27 of the Q.R. & O. did afford an adequate alternative remedy and, secondly, that the application for judicial review should be struck.

     I do not see how I can distinguish the facts in Anderson from the facts in the present matter. There is no evidence before me regarding those factors which Mr. Justice Stone considered in coming to his conclusion, i.e. the time, the costs and the stress of pursuing the complaint through the chain of command. Consequently, like Mr. Justice Stone in Anderson, I am of the view that the process prescribed by Section 29 of the National Defence Act and Articles 19.26 and 19.27 of the Q. R. & O. affords an adequate alternative remedy.

     A few words, however, must be said in regard to an argument made by the applicant to counter the respondent"s submission that I should follow the Court of Appeal"s decision in Anderson . The applicant brought to my attention Article 19.26(16) of the Q. R. & O. which provides that:

(16)      A redress authority in receipt of a complaint of an officer or non-commissioned member under this article shall suspend any action in respect of the complaint where the member initiates an action, claim or complaint under an Act of Parliament, other than the National Defence Act, in respect of the matter giving rise to the member"s complaint under this article.

     The applicant submits that it does not appear that Article 19.26(16) was brought to the attention of the Court of Appeal in Anderson. Counsel argues that it is clear from Article 19.26(16) that the Q.R. & O. and specifically the grievance procedure under Article 19.26, was not designed to prevent a member of the Armed Forces from seeking a remedy before the Courts. I cannot agree with this view. Article 19.26(16) simply provides, in my view, that a redress authority must suspend "any action in respect of the complaint" when the person who submitted the complaint has instituted an action, a claim or a complaint under an Act of Parliament.

     Put another way, the redress authority must suspend until such time as the Court of law has decided the issue brought before it by the complainant. Paragraph 16 cannot be taken to mean that a member can, at his discretion, abandon the grievance process provided under Article 19.26. He must, in my view, follow that process unless the circumstances are such that the process does not constitute an adequate alternative remedy. In the present case, no such circumstances have been brought to my attention. I am therefore of the view that the respondent must succeed on this point.

     Like Mr. Justice Stone in Anderson, there is no necessity to consider the first issue. However, I will do so in the event that I am wrong regarding the existence of the alternate remedy.

     The first issue is whether Lieutenant-General Fischer was wrong in construing CFAO-15-7 and FRP-96. For the reasons that follow, I am in agreement with his interpretation.

     It is not disputed that the applicant incurred 110 months of obligatory service. At the time of his release application, the applicant had served 55 months of obligatory service. As of the time of the present application, he had served 65 months. The applicant contends that as 55 of these months were served in an engineering position requiring a Master"s Degree, he had, at the time of his application for release under FRP-96, already served the 50 months which he had undertaken to serve in respect of his graduate studies. Consequently, he argues that the remaining 55 months constitutes obligatory service in respect of his undergraduate studies and FRP-96 provides that such service is waived "for approved applicants".

     The respondent"s position is simple. He relies on paragraph 13 of CFAO-15-7 which clearly states that where a member of the Armed Forces incurs more than one period of obligatory service, the total obligatory period of service is the sum of all periods incurred. Paragraph 13 goes on to provide that the total period is to be served "commencing the day the second period of training is completed".

     The respondent submits that the total period of obligatory service herein is 110 months which commenced immediately after the applicant completed his graduate studies. Thus, according to the respondent, the applicant, at the time of his application for release under FRP-96, had already completed his obligatory service incurred as a result of his undergraduate studies. Therefore, when the applicant applied for early release, the period of obligatory service relating to his undergraduate studies could not be waived as it had already been served.

     The thrust of the applicant"s arguments appear from paragraphs 29 to 33 of his memorandum of fact and of law which read as follows:

29.      We respectfully submit that while paragraph 13 of CFAO 15-7 carefully and methodically identifies the total obligatory period of service as being the sum of the first and the second period, and further refers to the periods being served consecutively, there is no reference whatsoever to the ORDER in which the periods must be served. Specifically, there is no restriction preventing the post-graduate period from being served prior to the undergraduate period. In this regard, we respectfully submit that Lieutenant - General Fischer was incorrect in reading in a term with respect to the order in which the periods of obligatory service must be served, when all that is required is that the periods be served consecutively.

30.      It is our respectful submission that as of June 13, 1996 Couture would have occupied a post-graduate position at the Aerospace Test Establishment for 50 months, and that in consideration of the purpose of the Canadian Forces Administration Order 15-7, namely that officers who receive education must provide an equitable return of service, this time should be recognized as the equitable return of service for his post-graduate training. The remaining obligatory service, as it was incurred through undergraduate training, should qualify for waiver pursuant to the FRP 96.

31.      Further, Lieutenant - General Fischer"s conduct indicates that he took into account irrelevant considerations; specifically, that Couture obtained a master"s degree in addition to an undergraduate degree and that this fact alone precludes his ability to have his undergraduate obligatory service waived.

32.      Further, Lieutenant - General Fischer failed to take into account relevant considerations; specifically, that Couture had served, as of November, 1996, 65 months of obligatory service, the last 55 of which were served in a position requiring a master"s degree.

33.      With reference to the CFAO 15-7, it should be recognized that the purpose of obligatory service is to provide an equitable return of service. If Couture had completed his undergraduate training and had served only 1 month of obligatory service, he would undoubtedly be eligible for the FRP 96. In fact, Couture had, as of November, 1996, served 65 months, and has been advised that he is ineligible because the Canadian Forces will only apply the 65 months to his undergraduate training and not his post-graduate training. This approach, in our respectful submission, is not equitable.

     At the hearing of this application, counsel for the applicant relied heavily on Annex A of CFAO-15-7 which provides that a member must serve two months for each month of training, to a maximum of sixty months "commencing the date post-graduate training is completed". Counsel argues that there can be no doubt that the obligatory service for post-graduate training commences on the day that the post-graduate studies are completed. Thus, according to counsel, the first fifty months of service completed by the applicant were those months of service incurred in respect of his post-graduate studies and the outstanding months of service are those which he undertook to serve in consideration of his undergraduate training. The applicant therefore submits that the outstanding months of service, pursuant to FRP-96, are waived as he was an approved applicant.

     I cannot subscribe to the applicant"s point of view. Firstly, a fair reading of CFAO-15-7, and in particular paragraph 13 thereof, can only lead to the conclusion that the applicant, like any other member of the Armed Forces who has received undergraduate and graduate funding, must serve the period of service required for each level of funding. According to paragraph 13 of CFAO-15-7, "where an additional period of obligatory service is incurred prior to a member completing a previously incurred period of service, the total obligatory service then in effect is the sum of the unexpired portion of the first period of service plus the second period of service". In this particular case, those periods are sixty and fifty months for a total of 110 months of obligatory service. Upon completion of his post-graduate course, the applicant was obliged to serve 110 months in the Armed Forces "commencing the date post-graduate training is completed". In my view, the applicant had to start with month number 1 of the 110 months. At the time of his application for release, the applicant had completed the period of service undertaken in consideration of his undergraduate studies. The remaining months of service are those which he undertook to serve in respect of his post-graduate studies. Thus, at the relevant time, the period relating to the undergraduate degree could not be waived because it had been served.

     I agree with the respondent that FRP-96 does not allow the applicant to decide if he will serve the undergraduate or post-graduate period first. Further, there is nothing in FRP-96 "which ties obligatory service to a particular job or position to which a member is posted".

     For these reasons, this application shall be dismissed.

    

         "MARC NADON"

     JUDGE

Ottawa, Ontario

October 10, 1997

     T-2530-96

Ottawa, Ontario, this 10th day of October, 1997.

Before the Honourable Mr. Justice Marc Nadon

BETWEEN:

     SERGE COUTURE

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     ORDER

     This application is dismissed.

     "MARC NADON"

     JUDGE