National Defence Committee on Feb. 16th, 2011

[Pierre Daigle]

I don't readily have the numbers. I've heard from my staff working on that, again recently, that we've not talking about a large sum of money. I don't know the numbers.

[Ken Dryden, Liberal, York Centre, ON]

So in many ways it is annoyance, as opposed to hardship, in terms of the amounts of money involved. It's annoyance, which would relate to morale instead of hardship.

[Pierre Daigle]

Well, it is, in a sense, and when people have been wronged.... For instance, a lot of those cases have to do with wages or a reimbursement of expenses.

For instance, we have the case of a reserve officer who was removed from duty for a certain length of time. The investigation proved that he should not have been removed from duty, but being a reserve officer, he lost a lot of money, so he put in his request for redress, saying that he was unfairly removed of duty, and the redress was upheld by the CDS. They agreed that it was the wrong decision, but he lost salary during those days, and the CDS had no authority to give back the pay that he should have had.

So it does cause hardship in that sense, but mainly it's a leadership issue, and a big morale issue.

[Ken Dryden, Liberal, York Centre, ON]

I think you're saying that all of this could be a fairly simple matter and could be simply dealt with, and whether it is dealt with more sympathetically under the current chain with a lawyer deciding it or whether the Chief of the Defence Staff has the ultimate authority, in either case they should be reacting much more sensitively to a matter that seems fairly inconsequential, at least to National Defence--

[Pierre Daigle]

Absolutely. The grievance process was intended to be effective, fair, informal, and expeditious. Now when people grieve the unfairness they have experienced, even though there is the chain of command and their leaders agree it was wrong, if there is money attached to it, the Chief of the Defence Staff, who is in charge of the armed forces, cannot authorize payment.

[Ken Dryden, Liberal, York Centre, ON]

Thank you.

[The Chair, Conservative, Maxime Bernier]

Mr. Bachand.

[Claude Bachand, Bloc, Saint-Jean, QC]

Thank you, Mr. Chairman.

I want to welcome General Daigle, who moreover is an eminent citizen of Saint-Jean-sur-Richelieu. It's always a pleasure to see our fellow citizens here.

Mr. Daigle, you provide a very interesting viewpoint, and I would like to pursue the example you cited of the reservist who was suspended from his duties without pay and who went all the way up the chain of command to the Chief of the Defence Staff, who told him: "You're right; you shouldn't have been suspended from your duties; so I'm going to correct that." He probably erased the remarks on the subject from his file, but he could do nothing about repaying him all the money he had lost.

However, I want to address another stage because you didn't refer to it. That's the one I want to hear you talk about. We see that the Chief of the Defence Staff referred the case, at that point, to the director of claims and civil litigation. Could you explain that director's duties to me?

[Pierre Daigle]

The director of claims and civil litigation is a lawyer who reports to the deputy minister of Justice. He is outside the chain of command and provides support to the Department of National Defence. So he is not part of the grievance process.

Since the Chief of the Defence Staff at National Defence has no authority in this regard, the case is submitted to that lawyer. All that lawyer can tell the individual is that, if you believe there has been an unfairness, you can file a claim against the crown. It may have been agreed before the courts that

there is no enforceable contract with the crown.

Even if you submit your claim,

there is no liability by the crown, so you're not going to get your claim.

At that point, the individual's last resort is to go to Federal Court, but it has also held that, since the matter falls within the Canadian Forces' grievance system, there's nothing to do.

So a member of the Canadian Forces who files a grievance in a system that is established to provide a mechanism to solve internal problems, that is outside the legal system and the courts, finds that, if there is a resolution that merits financial compensation, it's as though he were dealing with three systems. Not only did they want to ensure that the system is more efficient, but if the CDS cannot solve his problem, he has to turn to a Department of Justice lawyer at National Defence, who, if there is no liability against the crown, will not submit his claim. He recommends that he go to court, which will dismiss his application because he has no contract.

So it's recommended that the soldier institute proceedings, knowing in advance that that will not solve his problem.

[Claude Bachand, Bloc, Saint-Jean, QC]

So it's a dead end wherever he turns.

I'd like us to talk for a few minutes about the civil courts. In fact, it states here that the civil courts have stated that there is no employment contract between Her Majesty and members of the Canadian Forces and that a person who enrols in the military does so at the pleasure of the crown and that such relations between Her Majesty and her military members do not give rise to remedies in the civil courts.

I understand that they're not given access to the civil courts, but even if there were recourse, the court would probably dismiss the claim very quickly, stating that they cannot sue the Queen.

When you know that there is no employment contract, it seems to me that, when a soldier enrols in the armed forces, he signs a contract for a number of years. So there is an employment contract. Is there a legal void that precludes pursuing his claims right to the end?

[Pierre Daigle]

In legal terms, there is no employment contract between a member and National Defence—and I'm not a legal expert or a lawyer. Furthermore, the member does not have the same legal recourse as his civilian counterpart because he belongs to a military formation. Consequently, if he is wounded in the performance of his military duties, the crown is not held liable. That is due to the fact that there is no employment contract. If the individual believes that he has been unfairly treated and files a claim against the crown, as that claim is outside the grievance process system and this grievance resolution policy is not part of the system, he therefore has no solution through that system.

[Claude Bachand, Bloc, Saint-Jean, QC]

All right. So your way of remedying the matter is to tell the Chief of the Defence Staff that you are ultimately the last resort and that it is now necessary to go to the additional stage in order to compensate individuals. Does that therefore mean that this is the end of the director of claims and civil litigation?

[Pierre Daigle]

The director of claims is nevertheless a legal advisor within National Defence. He reports to the legal advisor of the Canadian Forces and is also an advisor to the deputy ministers and so on. If the Chief of the Defence Staff at National Defence had the authority to order monetary compensation, it is understood that he could ask a lawyer for legal advice. Currently, however, he cannot even request advice because he does not have authority to do so. Legal advice is therefore still required.

[Claude Bachand, Bloc, Saint-Jean, QC]

The director of claims and civil litigation will continue his work, but he will no longer be the person who decides that a soldier cannot sue the crown because the Chief of the Defence Staff will not have been given authority to close the loop.

[Pierre Daigle]

We are indeed mixing two systems. The grievance process is not a system of justice or a legal system. Consequently, when someone files a complaint to obtain satisfaction for an unfairness that he has suffered, the Chief of the Defence Staff, who is nevertheless mandated to control the administration of the Canadian Forces, cannot bring redress of his grievances to a conclusion if it is necessary to correct the error by means of monetary compensation. I could tell you about certain cases in which people have come to our office because it had been decided that the Canadian Forces had not been fair with them and that compensation was part of that decision, but that the chief could not authorize it.

[Claude Bachand, Bloc, Saint-Jean, QC]

In closing, I also believe that you are going further by seeking a degree of retroactivity or a review of cases that have been poorly handled. And pending a final decision, you are suggesting that the department begin work to open this up. Once the final decision is made, it will be possible to proceed more quickly with cases where there has been unfairness.

[Pierre Daigle]

Absolutely, because the new redress of grievance system was put in place in 1998. It was much more complex before that. It's must simpler now. All the information on these people is in data bases. So we can start working on the issue in order to render justice to those who have been hurt by this question.

[Claude Bachand, Bloc, Saint-Jean, QC]

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Daigle. Thank you, Mr. Bachand.

Mr. Harris, go ahead, please.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair, and thank you, General Daigle, or Mr. Daigle. I don't think in your current role you use “General”, although many retired generals do, but I recognize your service and your rank while there.

Can I just put this to you, first of all? I'm quoting from Chief Justice Lamer in a very important case. He said:

The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with the matters that pertain directly to the discipline, efficiency and morale of the military.

Would it be fair to say that the establishment of an internal grievance system has as a purpose to pertain to the efficiency and morale of the military as well, particularly when we have a situation that, as you pointed out, has no recourse to the courts because there's no employment contract? I believe it is correct that they cannot form a union either, and have a grievance process under the general law of collective bargaining. Is there some parallel between this statement about military justice and the grievance procedure?

[Pierre Daigle]

You raise exactly a good point. When they instituted this grievance process, it was intended exactly to examine informally and expeditiously any issue that might affect a member of the Canadian Forces--any unfairness, and so on--without having to resort to any court outside the Canadian Forces.

It is not a negative thing within the Canadian Forces. The grievance process is a positive thing. The colonel in charge of the Canadian Forces Grievance Authority.... It's positive, because when people complain about injustice, they also bring forward a pretty good point that could also help modernize some policies and so on. This was the intent exactly, to facilitate the communication, and leadership in the forces can have a direct impact on the well-being of the troops when there's an injustice. That has been shown.

[Jack Harris, NDP, St. John's East, NL]

On the military justice side they talk about speedy trials, efficient processes, and giving them quick punishment because morale demands it. Wouldn't the same thing be said for grievances--that there should be a speedy way of dealing with grievances, the opportunity for redress? I mean, on the military side they can put you in detention.

You're saying that there is no procedure for redress involving money without a lawyer saying yes or no. Who is this lawyer? Is this a JAG lawyer?

[Pierre Daigle]

No, he is not a JAG lawyer; he is CCL. He is the director of....

[Mary McFadyen, General Counsel, National Defence and Canadian Forces Ombudsman]

Claims and civil litigation.

[Pierre Daigle]

This position reports to DND/CF LA, the Canadian Forces legal adviser office. These civilian lawyers are from the Department of Justice, but they support the Department of National Defence.