The Applicant, Mr. Darren Blair, applied for judicial review of a decision of the Respondent, National Defence Canada. The Respondent had dismissed Mr. Blair from the Canadian Armed Forces on the basis he was Unsuitable for Further Service. Mr. Blair’s application for judicial review was dismissed.
Administrative law – Decisions of administrative tribunals – Government – Hearing de novo – Judicial Review – Jurisdiction – Military – Military committees – National defence Canada – Procedural requirements and fairness – Reasonableness – Standard of Review
Blair v. Canada (National Defence),  F.C.J. No. 36, 2017 FC 10, Federal Court, Calgary, Alberta, January 4, 2017, J. Gagné J.
The Applicant, Mr. Darren Blair, joined the Canadian Armed Forces (“CAF”) in 1989 and was a member until his voluntary release in April 2000. He rejoined the CAF in March 2003. Over the course of his years, the Applicant had several incidents involving the misuse of alcohol. In November 2010 he was released from the CAF as Unsuitable for Further Service due to the misuse of alcohol. There were a few procedural steps involved in this release.
First, the Applicant’s Commanding Officer recommended that he be released. An administrative review was then held and it resulted in a recommendation for release. The Applicant then made submissions and his Commanding Officer changed his recommendation. In spite of this change, the Director of Military Careers Administration (the “Director”) approved the Applicant’s release in September 2010.
Second, the Applicant filed a grievance. The grievance was denied by the Initial Authority in May 2011. The Applicant sought further review by the Final Authority. The Applicant made submissions to the Canadian Forces Grievance Board, which found there were breaches to procedural fairness that could not be cured by a de novo hearing. The Director General of the Canadian Forces Grievance Authority recommended the Final Authority set aside the Initial Authority’s decision and the Director’s decision, and conduct a de novo review of the grievance.
The Chief of the Defence Staff (the “Chief”) of the Respondent, the National Defence Canada, found the dismissal was reasonable and justified. The Chief held that he conducted a de novo hearing, which cured the past procedural unfairness. The Applicant then filed for judicial review of the Chief’s decision.
As a preliminary matter, the Court dismissed the Applicant’s request for restitution because it is outside the Court’s jurisdiction on a judicial review application.
The Court considered two principal issues.
First, the Court considered whether the previous breaches of procedural fairness were cured by a de novo hearing. The Court held the previous breaches were cured by the de novo hearing in this case.
Second, the Court considered whether the decision of the Chief was reasonable in upholding the Applicant’s release. The Applicant did not meet his onus to show the Chief’s decision was unreasonable. The Court held the Chief’s decision was within the range of possible, acceptable outcomes which are defensible in facts and law.
The Court dismissed the application for judicial review. The Court awarded costs to the Respondent in the amount of $500.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at https://www.harpergrey.com.
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