Grivance Warning

[chief_of_da_fence]

Good day all. Just wanted to send this out FYI.  I had a grievance that needed to go to a judicial review.  I missed a dead line and ended up in the federal court of appeal. I could not get a lawyer and had to take it on my self.i did not win the appeal. The DND counselors informed the federal court of appeal that he wanted to teach members of the CF a lesson not to waist the federal court of appeals time. There lesson to me was an unusually high amount of court fees just under 4000.00. Just think of that at least I didn't pay for the lawyer as well. I assume If I had the lawyer I would of won. So yes I was punished by a employee of the CF for pursuing a grievance.

 

[PuckChaser]

Or you were punished for missing the deadline?

 

[Crispy Bacon]

Sounds like something the Ombudsman would like to hear about, if what you're saying is true.

http://www.ombudsman.forces.gc.ca

 

[Griffon]

Sounds like something the Ombudsman would like to hear about, if what you're saying is true.

http://www.ombudsman.forces.gc.ca

What are you basing this advice on?  We have no details whatsoever on what actually happened here.  I know there are allowances made in the NDA for judicial review after a decision has been rendered by the CDS.  By the sounds of it, the OP didn't like what the initial or final authorities had to say about the grievance and took it a step further, and the courts agreed with them to the point that the OP was ordered to pay the legal fees for wasting time.  If this is indeed the case, I wouldn't have high hopes that the Ombudsman would be wiling to take it on.  I would hope that the court wouldn't make you pay fees just because the DND counsellors wanted you to, but it does sound as though the court felt the same about it.

 

[Eye In The Sky]

Good day all. Just wanted to send this out FYI.  I had a grievance that needed to go to a judicial review.  I missed a dead line and ended up in the federal court of appeal. I could not get a lawyer and had to take it on my self.i did not win the appeal. The DND counselors informed the federal court of appeal that he wanted to teach members of the CF a lesson not to waist the federal court of appeals time. There lesson to me was an unusually high amount of court fees just under 4000.00. Just think of that at least I didn't pay for the lawyer as well. I assume If I had the lawyer I would of won. So yes I was punished by a employee of the CF for pursuing a grievance.

It sounds like the Federal Court of Appeal was the organization that applied the court fees.  This would have nothing to do with the CAF directly, no?

To get that far, you would have had to get to the Final Authority (CDS or DGCFGA acting on the CDS behalf as authorized) who denied your grievance, then exercised your right to make an application for Judicial Review under the Federal Courts Act (not the NDA) IAW DAOD 2017-1, Grievance Process Table, Para 11.

If a grievor is not satisfied with the determination of the FA, the grievor may make an application for judicial review under the Federal Courts Act.

See subsection 18.1(2) of the Federal Courts Act for the time limit in respect of the submission of an application under that Act.


While I can understand you are upset because (1) you lost the grievance at all possible levels and (2) you ended up with some unexpected court costs, I don't believe it is accurate to state you have been "penalized for submitting a grievance" by the CAF, as detailed in the link below (Art 7.01 Note A).

QR & O, Vol I, Chap 7 Grievances

Not knowing all the facts, it seems to me that you are pointing the finger in the wrong direction.  :2c:

I don't see a punishment here, sorry and if there is one it isn't one the CAF imposed.  Maybe you can appeal the Federal Court of Appeals Appeal decision?  :Tin-Foil-Hat:

 

[Griffon]

...make an application for Judicial Review under the Federal Courts Act (not the NDA)

NDA 29.15:
" A decision of a final authority in the grievance process is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court."

Sorry, I gave the wrong ref!  What EITS said...

 

[Eye In The Sky]

I think what you'd said was accurate, sorry if my post looked like I was nit-picking at it.  I was just trying to get the OP to see that, after the CDS decision, the CAF had nothing to do with the court ruling; a decision made by the court, not the CAF.

:warstory:

 

[Tibbson]

There is a well known case, at least within my Branch, where someone (a civilian) took a complaint against us up through the CAF/DND system and was still not satisfied with the resolution(s) rendered.  They chose, was was/is their right, to take it to an external oversight body who also dismissed it as a complaint without merit. 

After that the individual chose to take it to a Federal Court and, like you, were not entitled to any sort of legal representation.  That's because it is a Court matter and the rules of the Canadian civilian court system apply.  It's viewed as a personal issue and like any other personal issue before the Courts (especially a civil matter which these things are since they are not criminal in nature) the complainant is required to have or obtain their own representation.  Anyway, in the matter I am referring to the appeal was also denied and the Court not only denied it but assessed court fees on the person who brought the court case.  Court costs are normally only assigned when the Court feels the matter was without merit.  If the court felt there was even a shred of grounds, or reason for appeal, they do not normally assign court costs if the person loses.  Since you had court costs assigned then one can conclude your case was without merit. 

As a tax payer I have no problem at all with the DND lawyers, or even Crown Attorneys, requesting court fees.  DND and the Canadian Government incurred a fee because of your failed bid and, as I noted, if there was any merit to your appeal....and common sense grounds to appeal, the Courts would not have awarded fees against you.

 

[chief_of_da_fence]

I was prepared to pay some costs until the DND lawyer turned it into a lesson for the entire CF at my expense. I spoke to a crown prosecutor and they said the fees were excessive.  There is confusion because the DND lawyer employed by HQ is a lawyer out of the Justice Department. What I can say is my grievance has not actually been seen by the CFGA technically no one has seen my grievance. Just one administrative hiccup after I am a another. I am a victim seeking justice . Sorry for the rant I merely wanted to advise what can happen. Just remember the NDA does state you may not reprimand  a member of the CF for pursuing a grievance if the DND lawyer would of kept his mouth shut instead of turning a normal administrative fee into a punishment I wouldn't be here warning people..

 

[dapaterson]

With the exception of uniformed lawyers in the CAF, all Government of Canada lawyers practising as such work for Justice, and it turn are assigned client departments.

 

[Griffon]

I was prepared to pay some costs until the DND lawyer turned it into a lesson for the entire CF at my expense. I spoke to a crown prosecutor and they said the fees were excessive.  There is confusion because the DND lawyer employed by HQ is a lawyer out of the Justice Department. What I can say is my grievance has not actually been seen by the CFGA technically no one has seen my grievance. Just one administrative hiccup after I am a another. I am a victim seeking justice . Sorry for the rant I merely wanted to advise what can happen. Just remember the NDA does state you may not reprimand  a member of the CF for pursuing a grievance if the DND lawyer would of kept his mouth shut instead of turning a normal administrative fee into a punishment I wouldn't be here warning people..

Ok...so you submitted the grievance outside of the six month period then?  That's my guess at this point.  By the terms of the grievance process you were no longer entitled to submit it for review within that mechanism.  It sounds like you didn't like the fact that your grievance was dismissed and requested a judicial review, and the system told you that it wasn't their problem that you didn't submit within the pre-defined guidelines.  This, in itself, does not make you a victim seeking justice, it's the same system that has been in place for years.

And as EITS said, the judicial review is not a part of the grievance process, and is not governed by the NDA.  The courts made you pay the fees for both sides most probably because of the reasons outlined by Schindler's Lift. The real question that needs to be asked is "Why wasn't your grievance submitted in the six month period allotted"?  If it was because you were in a coma in a hospital somewhere, then submit it to the Ombudsman.  But if you had the time to submit the grievance within that period - and it's more than enough time, in my experience - then you need to address that with yourself.

 

[George Wallace]

....... turning a normal administrative fee into a punishment I wouldn't be here warning people..

I can not grasp why you feel an "administrative fee" is somehow a "punishment".  You did not win your case.  Someone has to pay.  It only seems natural that it is you.  As for it being an "excessive fee", that is only an opinion, not a fact.

 

[chief_of_da_fence]

If only it were that simple 90 days of the delay was the fault of the CFGA . The CFGA omitted 75 % of the grievance. The Ombudsman will not touch it because of the involvement of the Justice department. The matters grieved that were omitted were two T6 false medical category or T6 without any diagnosis . These false T6 cost me being employed during the Vancouver Olympics.I was denied a claim for compensation because as there was no diagnosis so there was no injury. Long story short this will not be rectified in this forum . I am seeking ministerial assistance. Its a real shame that its come to this.

 

[Griffon]

Hmmm....maybe I should have submitted a grievance that I wasn't deployed on Op Libeccio because I was posted to a new unit, and requested compensation for that!

You'd have to prove that you were removed from the Vancouver operation due to the T-Cat, that the T-Cat imposed was erroneous and due to negligence, and, more importantly, that you were entitled to such employment and compensation, which you were not.  Your CoC made a decision based on the information at hand at the time, which was that you were not fit for the op.  But good luck with that ministerial action.

 

[Eye In The Sky]

If you had to pay fees assessed by the Federal Court of Appeal, that is not the CAF "penalizing you for submitting a grievance".

I know, from personal experience, how frustrating the grievance process can be.  :2c:

 

[chief_of_da_fence]

I will also add that one of my arguments was that I would of gone to the Ombudsman after the Grievance process  Long story Short the Chief Justice of the federal court of appeal ruled that the ombudsman could not help in the grievance process. Words to the effect of it clearly states that the only course of action when not satisfied with a grievance is a judicial review. The Ombudsman has no say.

 

[Eye In The Sky]

The Ombudsman doesn't have any power to overturn a FA decision, and CF members are mandated to use existing mechanisms (such as the Grievance System) *before* going to the Ombudsmen.

Read this stuff on the Ombudsman mandate, and the DAOD for CAF members on the Office of the Ombudsmen.

http://www.ombudsman.forces.gc.ca/en/ombudsman-questions-complaints-faq/index.page?

Redress of Grievance (ROG)

I am concerned about my ROG going through the Chain of Command. Can I bring my ROG to the Ombudsman for review instead?

The Ombudsman’s Office is set up as a method of last resort, so you must use the existing grievance system first to attempt to resolve your complaint. We may be able to intervene in lieu of existing complaint mechanisms if, in the Ombudsman’s opinion, your circumstances are compelling. See section 13 of the Ombudsman’s mandate.


CF members and DND civilian employees have the right to access assistance from an assisting officer in the preparation of their grievance.


CF members have the right to access information regarding the Canadian Forces Streamlined Grievance Process. This information can be found in Chapter 7 of the Queen’s Regulations and Orders and the Canadian Forces Grievance System website.


You can also contact the Director General Canadian Forces Grievance Authority (DGCFGA) at  1-866-474-3867  with your questions on the Canadian Forces Streamlined Grievance Process.

DAOD 5047-1, Office of the Ombudsman

Failure to Comply

Evidence or a complaint that this DAOD, including Annex A, may have been breached shall be reported to the applicable commanding officer or manager who will assess the requirement for further investigation, including a police investigation.

Failure by a CF member or DND employee to comply with this DAOD, including Annex A, may result in administrative and disciplinary action.


Ombudsman Mandate and General Duties and Functions

Existing Mechanisms

13. (1) Except in compelling circumstances, the Ombudsman shall not deal with a complaint if the complainant has not, within the applicable time limit, first availed himself or herself of one or more of the following existing mechanisms available to the complainant
a.the CF redress of grievance process;
b.the public service grievance and complaints process;
c.the Security Intelligence Review Committee; or
d.the complaint process under Part IV of the National Defence Act.

(2) For the purpose of determining whether there are compelling circumstances under subsection (1), the Ombudsman shall consider if
a.access to a complaint mechanism will cause undue hardship to a complainant;
b.the complaint raises systemic issues; or
c.the complainant and the competent authority agree to refer the complaint to the Ombudsman.

(3) For the purpose of paragraph (1)(b), the public service grievance and complaints process includes formal complaints mechanisms and rights of appeal under the Public Service Employment Act, rights of grievance and appeal under the Public Service Staff Relations Act, review and appeal procedures in relation to workers compensation under the Government Employees Compensation Act and rights of appeal to Management Review Boards of the public service health and dental plans.


Look, I know from this stuff is frustrating and takes a toll on the member who feels wronged.  Sometimes you have to decide to let something go and move forward.  You've already past the point of a judicial review and were denied;  this might be the time to consider the "moving on" part.

:2c:

 

[chief_of_da_fence]

Hmmm....maybe I should have submitted a grievance that I wasn't deployed on Op Libeccio because I was posted to a new unit, and requested compensation for that!

You'd have to prove that you were removed from the Vancouver operation due to the T-Cat and, more importantly, that you were entitled to such employment and compensation, which you were not.  Your CoC made a decision based on the information at hand at the time, which was that you were not fit for the op.  But good luck with that ministerial action.

I had just been cleared medically a few weeks prior , post medical after a TAV in KAF. That medical disappeared from my medical files. As for My COC the CDS  stated they treated me unfairly and with a lack of transparency. As for your claim I fully support it but I don't know if removing a sarcastic discomfort is claimable.

 

[Tibbson]

I was prepared to pay some costs until the DND lawyer turned it into a lesson for the entire CF at my expense. I spoke to a crown prosecutor and they said the fees were excessive.  There is confusion because the DND lawyer employed by HQ is a lawyer out of the Justice Department. What I can say is my grievance has not actually been seen by the CFGA technically no one has seen my grievance. Just one administrative hiccup after I am a another. I am a victim seeking justice . Sorry for the rant I merely wanted to advise what can happen. Just remember the NDA does state you may not reprimand  a member of the CF for pursuing a grievance if the DND lawyer would of kept his mouth shut instead of turning a normal administrative fee into a punishment I wouldn't be here warning people..

Sorry but in my experience you don't have a leg to stand on by claiming the DND lawyer is out to get you and punish you for taking your matter to a federal appeals court.  I just went and checked the blog site for the grievance I noted above that the complainant chose to take to federal court as you did, and his fees amounted to $16,000.  And there wasn't even a DND lawyer involved.  I suspect as well if you look you will find the lawyers involved with your matter should have been Justice Department lawyers as they represent DND in all civil litigation. 

Anyway, you can call it what you want but I'll still say the ruling for costs in your matter is in keeping with all other such chases when the Court feels the case brought before it was without merit. 

 

[Tibbson]

If only it were that simple 90 days of the delay was the fault of the CFGA . The CFGA omitted 75 % of the grievance. The Ombudsman will not touch it because of the involvement of the Justice department. The matters grieved that were omitted were two T6 false medical category or T6 without any diagnosis . These false T6 cost me being employed during the Vancouver Olympics.I was denied a claim for compensation because as there was no diagnosis so there was no injury. Long story short this will not be rectified in this forum . I am seeking ministerial assistance. Its a real shame that its come to this.

<inside voice - ON>  :-X