T-1680-95
OTTAWA, ONTARIO, THIS 20th DAY OF JUNE 1997
PRESENT: MR. JUSTICE J.E. DUBÉ
BETWEEN:
J. RONALD CARRIÈRE,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent,
- and -
MINISTER OF NATIONAL DEFENCE,
Mis en cause.
O R D E R
The application for judicial review is dismissed.
Judge
Certified true translation
C. Delon, LL.L.
T-1680-95
BETWEEN:
J. RONALD CARRIÈRE,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent,
- and -
MINISTER OF NATIONAL DEFENCE,
Mis en cause.
REASONS FOR ORDER
DUBÉ J.:
In his application for judicial review, the applicant is seeking to have set aside a decision of the Minister of National Defence of Canada (the "Minister") dated July 7, 1995, dismissing his application to the Governor in Council as the final grievance level on the ground that this seventh and final level was abolished when the grievance settlement procedure was amended.
In the instant case, the applicant enrolled in the Canadian Forces in 1981 and received a recorded warning in November 1983 and a counselling and probation report on February 8, 1994, for inadequate performance and poor attitude. At the time, the Queen's Regulations and Orders for the Canadian Forces (the "QR & O") (P.C. 1970 - 10/1494, dated September 9, 1970) provided for a grievance procedure that consisted of seven levels, in the applicant's case. The applicant went to the first six levels, from the officer commanding the First Commando to the Minister. His grievances were dismissed at every level except the sixth, at which the Minister allowed the applicant's grievance in part.
By Order in Council (P.C. 1994-1944, dated November 22, 1994) that came into force on December 2, 1994, articles 19.26 and 19.27 of the QR & O were repealed and replaced by a new grievance procedure. Thus on July 7, 1995, the applicant was informed by a person in the Minister's office that his grievance could not be submitted to the Governor in Council.
The applicant's argument is limited to one fundamental point: since the regulation abolishing the final level was published not in the Canada Gazette, but only on military bases, it cannot be applied against him since, as he was not a member of the Canadian Forces at the time, he was not aware of the amendment.
In order to respond to that assertion, we must review the various provisions of the applicable statutes and regulations. First, subsection 11(1) of the Statutory Instruments Act, R.S.C. 1985, c. S-22, provides that "subject to any regulations made pursuant to paragraph 20(c), every regulation shall be published in the Canada Gazette". Paragraph 20(c) provides that the Governor in Council may make regulation exempting from the application of subsection 11(1) any regulation where the Governor in Council is satisfied that the regulation affects only a limited number of persons and that reasonable steps have been taken for the purpose of bringing the purport thereof to the notice of those persons affected by it. Section 7 of the Statutory Instruments Regulations, C.R.C., c. 1509, exempts certain classes of regulations, including, in paragraph 7(a), "regulations made under the authority of section 12 of the National Defence Act", R.S.C. 1985, c. N-5, from registration. Section 12 of that Act allows the Governor in Council to make regulations for the discipline of the Canadian Forces. Section 29 of that Act provides that a member who considers that he has 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".
Subsection 15(1) of the Statutory Instruments Regulations provides that "classes of regulations being classes that are exempt from registration are hereby exempt from publication". Subsection 51(1) of the National Defence Act provides that all regulations issued to the Canadian Forces shall be held to sufficiently notified to any person whom they may concern "by their publication, in the manner prescribed in regulations made by the Governor in Council, in the unit or other element in which that person is serving". Paragraph (a) of article 1.21 of the QR & O, which is entitled "Notification by receipt of regulations, orders and instructions", provides that all regulations issued to the Canadian Forces shall be held to be published and sufficiently notified to any person whom they concern if they are received at the base, unit or element at which that person is serving.
Subsection 11(2) of the Statutory Instruments Act provides that "no regulation is invalid by reason only that it was not published in the Canada Gazette". However, that subsection also provides that "no person shall be convicted of an offence consisting of a contravention of any regulation that at the time of the alleged contravention was not published in the Canada Gazette" unless, under paragraph 11(2)(b), "reasonable steps had been taken to bring the purport of the regulation to the notice of those likely to be affected by it". However, it must be noted that this provision is of no benefit to the applicant since the issue in this case is not a conviction, but a grievance.
The applicant also relied on subsection 52(2) of the National Defence Act, which provides that all regulations affecting a member of the reserve force shall, when sent to the member by registered mail, be held to be sufficiently notified. The applicant is not a member of the reserve since he was released from the Canadian Forces in 1984. There is no statutory or regulatory provision imposing an obligation to inform former members of the Canadian Forces who have returned to civilian life of the purport of a new regulation.
Lastly, it must be noted that the regulations in question contained a transitional provision, which is set out in article 19.26(22) of the QR & O, and reads as follows:
| (22) Nothing in this article affects any right that an officer or non-commissioned member had prior to 2 December 1994 to have a complaint adjudicated by the Governor in Council, if the officer or non-commissioned member has requested that the complaint be submitted to the Governor in Council before that date. |
It must be noted in this instance that the applicant could have exercised his right before December 2, 1994, but did not request that his complaint be submitted to the Governor in Council before that date.
Accordingly, the application for judicial review is dismissed.
O T T A W A
June 20, 1997
Judge
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-1680-95
STYLE OF CAUSE: J. RONALD CARRIÈRE
v.
HER MAJESTY THE QUEEN et al.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 11, 1997
REASONS FOR JUDGMENT OF DUBÉ J.
DATED JUNE 20, 1997
APPEARANCES:
JEAN LAURIN FOR THE APPLICANT
NADINE PERRON FOR THE RESPONDENT
SOLICITORS OF RECORD:
JEAN LAURIN FOR THE APPLICANT
MONTRÉAL, QUEBEC
GEORGE THOMSON FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA