The Court held that a rehearing and decision rendered by a final authority in a Canadian Forces grievance did not rectify the error committed by the initial authority and therefore the grievor was denied procedural fairness. The applicant was severely injured while driving to activate her Family Care Plan which she had been requested to prepare by the Canadian Forces. She applied for disability benefits which were denied by the Department of Veterans Affairs. The applicant filed a grievance which was referred to the Director General, Personnel and Family Support in error. The applicant then chose to have the matter referred to the final authority which upheld the dismissal. The Court held that the decision was not fully informed, and that the board failed to consider all the appropriate circumstances and precedents in reaching its decision.

Administrative law – Decisions of administrative tribunals – Military Committees – Grievances – Government – Pensions – Eligibility – Employment law – Government employees – Benefits – Policies – In and out of the course of employment – Judicial review – Compliance with legislation – Procedural requirements and fairness – Natural justice

Fawcett v. Canada (Attorney General), [2012] F.C.J. No 1027, 2012 FC 750, Federal Court, June 18, 2012, Rennie J.

The applicant, Captain Kimberly Y. Fawcett, sought judicial review of a decision of the Director General, Canadian Forces Grievance Authority (“DGCFGA”) denying her redress sought in grievance submitted pursuant to s. 29 of the National Defence Act.

The applicant, an air logistics officer in the Canadian Forces, was asked to prepare a Family Care Plan (“FCP”) along with her husband, who was also in the Canadian Forces, to accommodate their daycare needs and readiness requirements for the Canadian Forces. On February 21, 2006, the applicant contacted her supervisor to inform him that she would be activating her FCP and would be arriving at work later than usual. While driving her son to daycare that morning, the applicant was involved in a catastrophic motor vehicle accident, in which her son was killed and she required amputation of her right leg.

The applicant applied to the Department of Veterans Affairs for disability benefits in June 2006, and her application was denied in October 2006. A summary investigation had concluded that she was on duty at the time of the accident but the finding was overturned by a Canadian Forces Commander. The applicant filed her grievance in June 2009. The grievance was initially determined by the Director General, Personnel and Family Support, which was later held to be the improper authority as any initial authority (IA) must be a military officer. The applicant was then asked if she would like the matter forwarded to the Final Authority (FA) or restarted at an appropriate IA. She chose the former. The grievance was referred to the Canadian Forces Grievance Board, which recommended it be dismissed as the applicant was not on duty at the time of the accident, noting that the FCP was not a military order and her injuries did not arise out of military service. The Grievance Board also noted that the applicant had not been denied procedural fairness. The applicant sought judicial review of the denial of her grievance.

The application was allowed, as it was held that the applicant was denied procedural fairness. There was no valid decision at the IA level, and the subsequent decision by the FA did not rectify the error as the applicant was unable to make an informed choice. Further, the Grievance Board failed to consider all the circumstances and appropriate precedents in determining whether the applicant’s injuries were attributable to military service.

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