Brown v. Canada ( Attorney General )
T-228-98
Hargrave P.
8/4/98
20 pp.
Motion to strike originating motion for review of Director of Military Careers' decision on basis applicant not exhausting military grievance procedure, remedies-Applicant enrolling in Regular Officer Training Program with understanding required to serve in Canadian Forces for five years after graduation in return for university education-Eligible to seek earlier voluntary release in special, unforeseen circumstances, and if exigencies of service permit (Canadian Forces Administrative Orders, 15-7)-Applicant requesting voluntary release to accept position with World Association of Girl Guides and Girl Scouts-Career Review Board denying voluntary release in December 1997-Director of Military Careers reviewing, confirming Board's decision applicant required to complete obligatory service-National Defence Act, s. 29 giving officer with any cause for grievance right to seek redress from superior authorities as prescribed by regulation-Queen's Regulations and Orders, art. 19.26 defining "redress authority" as Commanding Officer, officer commanding formation or command, Chief of Defence Staff or Minister-Requiring complaint be submitted through chain of command; redress authority to act as expeditiously as possible-In each instance, complainant may seek redress at next stage of chain of command-That judicial review quicker main reason for this proceeding-(1) As to whether respondent can strike out application for judicial review brought by originating notice of motion, Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588, leaving open possibility of striking out originating notice of motion where it was "so clearly improper as to be bereft of any possibility of success"-(2) As to adequacy of alternative remedy, must ask whether chain of command leading eventually to Chief of Defence Staff, then Minister of Defence, adequate forum in which to resolve grievance-Factors to consider including procedure, who makes decision, powers, manner in which might likely be exercised, burden of previous findings, expeditiousness, cost-In Anderson v. Canada (Armed Forces), [1997] 1 F.C. 273, Court of Appeal holding delay, cost, stress not such as to warrant Court's intervention with military grievance procedure-Gayler v. Canada (Director Personnel Careers Administration Other Ranks, National Defence Headquarters), [1995] 1 F.C. 801 (T.D.), holding delay through meaningless set of appeals up chain of command sufficient to induce Court to exercise discretion to hear application, distinguished-In Gayler Formation Commander, Officer commanding Command could only make recommendations-Here Director of Military Careers, outside chain of command and making own decision-Since whole chain of command vested with power of redress not futile for applicant to submit complaint to Commanding Officer-As stated in Anderson, procedure simple, straightforward: complaint made on basis of written statement of facts, statement of redress sought, written statement from any individual being relied upon to substantiate complaint, copies of any documents-Applicant also disputing required length of military service-To say military grievance procedure may only deal with procedural matters, involving policy, not with substantive matters involving law, would reduce grievance system envisioned by National Defence Act, s. 29 to shambles-By necessary implication military tribunals in chain of command, dealing with grievances, must be able to deal with essential questions of law-Applicant also submitting Charter, ss. 15, 24 apply on basis discriminated against, and that those making up grievance procedure not able to consider Charter arguments-Charter not engaged as applicant not attacking legislation as discriminatory, but decision of Director of Military Careers-S. 15 protecting rights framed in terms of law, not decision which might be discriminatory-Even assuming restricted release policy discriminatory, applicant not showing discrimination related to personal characteristics, or analogous grounds whereby suffering social, political, legal disadvantage-By reason of alternative remedy, application for judicial review so improper as to be bereft of any possibility of proceeding-Canadian Forces Administrative Orders, 15-7-Queen's Regulations and Orders for the Canadian Forces (1994 Revision), art. 19.26-National Defence Act, R.S.C., 1985, c. N-5, s. 29 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 43)-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 15, 24.