A decision by the Chief of the Defence Staff dismissing a grievance pursuant to s. 29 of the National Defence Act is quashed

Administrative law – Decisions of administrative tribunals – Military Committees – Military – Promotions – Eligibility – Labour – Grievances – Judicial review – Compliance with legislation – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter

Zimmerman v. Canada (Attorney General), [2011] F.C.J. No. 163, 2011 FCA 43, Federal Court of Appeal, February 4, 2011, Sharlow, Layden-Stevenson and Stratas JJ.A.

The process for promotions within the Canadian Armed Forces is set out in the National Defence Act. The Act provides that once eligible candidates are identified and nominated, they must be assessed by an “appropriate authority” under s. 11.02 of the Act. The “appropriate authority” is responsible for recommending candidates for promotion, and the Chief of the Defence Staff may, but is not obliged, to promote a candidate who is recommended by an “appropriate authority”.

In 2003 and 2004, the appellant, Commander Zimmerman, was nominated for a promotion. This nomination was sent to the “appropriate authority”, in this case the Interfaith Committee on Canadian Military Chaplaincy. On both occasions, a candidate other than Commander Zimmerman was recommended for promotion. In 2005, Commander Zimmerman initiated a grievance pursuant to s. 29 of the Act. He challenged a number of aspects of the promotion procedures followed in 2003 and 2004 and questioned whether the candidate assessments were fair, competent, impartial and conducted with due diligence. In accordance with the legislation, Commander Zimmerman’s grievance was referred to an external board, the Canadian Forces Grievance Board, but was ultimately decided by the Chief of the Defence Staff.

The Canadian Forces Grievance Board expressed many concerns about the entire promotion process in 2003 and 2004 and recommended that the grievance be upheld and a remedy given. Despite this, the Chief of the Defence Staff dismissed Commander Zimmerman’s grievance on the basis that he could not determine whether the process followed in 2003 and 2004 was fair because of the absence of information given to him regarding what the Interfaith Committee did and exactly how and why it reached its promotion recommendations. Despite the absence of information available to him on the procedures followed, the Chief of the Defence Staff declared that he was “certain” that the interfaith committee nominated the “best  possible candidate”.

The Court of Appeal overturned the decision on the reasonableness standard. The court noted that Commander Zimmerman had complained about deficiencies and unfairness in the promotion procedures in 2003 and 2004, questioned the manner in which the candidate assessments were done in those years, and stated specific concerns about the promotion process that applied to him. However, because the Chief of Defence Staff found that he did not have sufficient information about the interfaith committee procedures to determine whether the process was fair, he did not consider the substance of Commander Zimmerman’s complaints and concerns. The court held that this was unreasonable and that the Chief of the Defence Staff should have considered Commander Zimmerman’s specific complaints. The Court quashed the decision and remitted it back to the Chief of Defence Staff with a direction to allow the grievance and determine the remedy that should be given to Commander Zimmerman.

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