Hawco v. Canada ( Attorney General )
T-2082-94
MacKay J.
12/6/98
21 pp.
Judicial review of decision to release applicant from service in Armed Forces-Applicant received notice of intent to recommend release alleging personal weaknesses and impairing behaviour-Filed notice of objection to release-Commanding Officer and Base Commander completed recommendation for compulsory release-Subsequently, Base Commander forwarded additional observations for consideration of Career Review Board-Career Review Board approving release-Applicant released May 1993-Record including request by applicant for assistance of Assisting Officer and written request concerning redress of grievance about release, requesting copy of all documentation-Applicant challenging release decision on basis certain officer sitting as Career Review Board lacking authority to release applicant-When respondent agreed, originating notice of motion dismissed on consent on understanding recommendation would be reconsidered-Second Career Review Board considering applicant's suitability for continued service-Although applicant assured Board would not have information before it related to previous judicial review proceedings, and Board would be composed of three members, two-member Board contacting applicant's counsel, referring to judicial review proceedings, recommending release-Director General Personnel Career Other Ranks (DGPCOR) approving recommendation for release-Applicant not having opportunity to address DGPCOR directly-Application dismissed-(1) Application not precluded by applicant's failure to exhaust military's internal grievance procedure-Failure to pursue grievance not attributable entirely to applicant, except in most formal sense-Applicant did seek to initiate process, filing objections to release with Commanding Officer who did not respond-Did seek Assisting Officer-While failure to respond to grievance meaning grievor may pursue matter at next level, no evidence either applicant or Assisting Officer aware of this-No one concerned with review of career concerned with facilitating grievance process-In these circumstances, judicial review application should not be dismissed on basis alternative remedy existed-Nearly four years since application filed-In interest of justice most expeditious disposition of matter to consider application on merits-(2) Certified record provided by respondent described as documents before Career Review Board-No material purporting to be that which was in front of DGPCOR before Court-In absence of any evidence decision-maker either failed to consider material that should have been before him or considered material that should not have been before him, failure on part of decision-maker to provide certified record in accord with R. 1613 not warranting automatic quashing of decision in this case-Circumstances here warranting inference submissions on behalf of applicant submitted for consideration of Career Review Board, before DGPCOR when made decision applicant be released-(3) Miller v. Director General Posting and Career Officers et al. (1994), 76 F.T.R. 15 (F.C.T.D.) holding standard of procedural fairness in administrative processes leading to dismissal of member of Armed Forces met without direct access of person concerned to decision-maker-Procedural fairness in circumstances not requiring applicant be given opportunity to make submissions directly to decision-maker, so long as able to make submissions to Career Review Board, and those submissions before decision-maker-No legal requirement Board be composed of certain members-Correspondence relating to proposed composition of Board not giving rise to claim of legitimate expectation about Board's composition justifying Court's intervention-No evidence applicant would have behaved differently had he been aware case would be considered by two-member Board rather than by three members as indicated-No basis for arguing reasonable apprehension of bias arising from inclusion on Board of Colonel Brown-Where allegations of bias or reasonable apprehension of bias, must be some evidence upon which reasonable person could conclude decision-maker will not bring impartial mind to bear upon issue-In absence of more compelling evidence of possible bias, Colonel Brown's awareness of procedural history leading up to second Career Review Board not enough in itself to lead reasonable observer, knowing circumstances, to conclude applicant would not be dealt with fairly-Federal Court Rules, C.R.C., c. 663, R. 1613 (as enacted by SOR/92-43, s. 19).