Codrin v. Canada (Attorney General), 2011 FC 100

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: September 14, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 100;(2011), 379 F.T.R. 302 (FC)

Codrin v. Can. (A.G.) (2011), 379 F.T.R. 302 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. FE.016

Mihai Codrin (applicant) v. Attorney General of Canada (respondent)

(T-1633-09; 2011 FC 100)

Indexed As: Codrin v. Canada (Attorney General)

Federal Court

O'Keefe, J.

January 28, 2011.

Summary:

The applicant applied for judicial review of a decision of the Chief of Defence Staff (CDS), wherein the CDS denied the redress sought by the applicant. The applicant requested, inter alia, an order compelling the Canadian Forces to grant the applicant the pay rates and retroactive commissioning as detailed in an enrolment message, and costs.

The Federal Court dismissed the application.

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - The applicant applied for judicial review of a decision of the Chief of Defence Staff (CDS) - He requested an order compelling the Canadian Forces (CF) to grant him the pay rates and retroactive commissioning as detailed in an enrolment message - The Federal Court held that the applicant was not denied procedural fairness due to a lack of impartiality by the CDS - The legislative duties imposed on the CDS were broad and included more than the judicial or quasi-judicial court-like functions of some administrative decision-makers - As such, the CDS was held to the lower standard of the duty of impartiality, that of the closed mind, rather than a reasonable apprehension of bias - The CDS referred to and considered the comments made by the applicant to the Canadian Forces Grievance Board (CFGB) during its investigative stage and the applicant's comments on its findings and recommendations - The CDS thus made himself aware of the applicant's view of the facts and position - The CDS also referred in his decision to the CFGB's findings and recommendations, which he was clearly aware of and with which he concurred in part - Regardless of any duty the CDS might have to maintain uniformity between officers, he did not have a closed mind in deciding the grievance and in deciding not to treat the applicant differently than his peers - See paragraphs 47 to 53.

Administrative Law - Topic 3349

Judicial review - General - Practice - Costs - The applicant applied for judicial review of a decision of the Chief of Defence Staff (CDS) - He requested an order compelling the Canadian Forces (CF) to grant him the pay rates and retroactive commissioning as detailed in an enrolment message - The Federal Court dismissed the application - While it was unfortunate that the applicant believed that he was joining the CF under different terms than those which he now received, he had not shown that the CDS's decision was unreasonable or incorrect - However, given the facts that gave rise to the application, the court was not prepared to award costs - The case resulted from incorrect information being given to the applicant - See paragraphs 68 and 69.

Armed Forces - Topic 2

General - Nature of employment - The Chief of Defence Staff concluded that he could not make a determination about a purported breach of contract or violation of labour laws in the grievance before him because members of the Canadian Forces were not in a contractual employment relationship with the Crown - The Federal Court held that this conclusion was reasonable and correct - See paragraphs 57 to 59.

Armed Forces - Topic 8402

Grievances - General - Jurisdiction - The applicant applied for judicial review of a decision of the Chief of Defence Staff (CDS) - He requested an order compelling the Canadian Forces (CF) to grant him the pay rates and retroactive commissioning as detailed in an enrolment message - The Federal Court held, inter alia, that the CDS acted within his statutory and regulatory jurisdiction when considering and denying the redress of the grievance - The CF grievance process was determined by the National Defence Act, the Queen's Regulations and Orders and the CF "Grievance Manual" - See paragraph 46.

Armed Forces - Topic 8402

Grievances - General - Jurisdiction - The applicant applied for judicial review of a decision of the Chief of Defence Staff (CDS) - He requested an order compelling the Canadian Forces (CF) to grant him the pay rates and retroactive commissioning as detailed in an enrolment message - The Federal Court held, inter alia, that the CDS did not err in declining to consider the applicant's claim against the Crown for negligent misrepresentation - The Queen's Regulations and Orders (QR&O) were promulgated for the National Defence Act - Section 19.41(1)(b) of the QR&O stated that: "(1) No officer or non-commissioned member shall, without the authority of the Minister: (b) accept liability on behalf of the Crown; for a loss or damage arising out of or occasioned by the performance of service duties by the member or by another." - The CDS was interpreting the regulations of his home statute in declining to address the applicant's claim of negligent misrepresentation against the Crown - He further indicated who the applicant could contact if he wished to pursue the claim - The CDS had expertise and experience in interpreting the QR&O and his interpretation of the limitations placed on his decision-making by s. 19.41(1)(b) was justified, transparent, intelligible and fell within the range of acceptable outcomes - See paragraphs 55 and 56.

Armed Forces - Topic 8402

Grievances - General - Jurisdiction - The applicant applied for judicial review of a decision of the Chief of Defence Staff (CDS) - He requested, inter alia, an order compelling the Canadian Forces (CF) to grant him the pay rates as detailed in an enrolment message - The Federal Court held that the CDS did not err in refusing to pay the applicant at the rate described in his enrolment message - Section 35(1) of the National Defence Act (Act) stipulated that officers' rates of pay shall be established by the Treasury Board - The applicant was paid according to the rates stipulated in the Compensation Benefits Instruction (CBI) - There was no discretion granted to the CDS in the Act or the Queen's Regulations and Orders to authorize a different pay rate - The CDS declined to change the applicant's rate of pay because he found that there was no provision in a CBI to waive the criteria or make an exception and he could not override the rate set by the Treasury Board - This decision was reasonable and correct - See paragraphs 60 to 62.

Armed Forces - Topic 8402

Grievances - General - Jurisdiction - The applicant applied for judicial review of a decision of the Chief of Defence Staff (CDS) - He requested, inter alia, an order compelling the Canadian Forces (CF) to grant him retroactive commissioning as detailed in an enrolment message - The Federal Court held that the CDS did not err in refusing to retroactively commission the applicant to the rank of second lieutenant - The promotion of an officer from officer cadet to second lieutenant was a discretionary decision of the CDS - Section 28 of the National Defence Act stipulated that officers could be promoted by the Minister or such authorities as prescribed by the Regulations - Promotion to any rank lower than brigadier-general required the CDS's approval (Queen's Regulations and Orders (QR&O), s. 11.01(2)) - No officer shall be promoted to a higher rank unless there was an appropriate vacancy in the total establishment for the member's component, the member was recommended by the appropriate authority and the member met such promotion standards and such other conditions as the CDS might prescribe - However, QR&O s. 11.02(2) stated that "... in any given circumstance, the Chief of Defence Staff may direct that the requirement to meet any promotion standards be waived" - The applicant met the basic requirement of entry into the CF under the Continuing Education Officer Training Plan (CEOTP) - He was not granted a higher rank, incentive pay category or time counting for promotion in recognition of previous service or training - As such, he was promoted to second lieutenant upon completing his Basic Officer Training Program, which was the normal course of commissioning - The CDS declined to use his discretion to waive the promotion standards and retroactively promote the applicant - His stated reason for declining to do so was that he did not want to treat the applicant in an advantageous manner compared to his CEOTP peers whose effective commissioning dates had been granted in accordance with the applicable policies - The use of discretion in this context required deference from the court - The CDS's decision was justified, transparent and intelligible and fell within the range of acceptable possible outcomes - See paragraphs 63 to 68.

Armed Forces - Topic 8542

Grievances - Procedure - Right to a fair hearing - [See Administrative Law - Topic 2272 ].

Armed Forces - Topic 8562

Grievances - Judicial review - Standard of review - The applicant applied for judicial review of a decision of the Chief of Defence Staff (CDS) - He requested an order compelling the Canadian Forces (FC) to grant him the pay rates and retroactive commissioning as detailed in an enrolment message - The Federal Court held, inter alia, that whether the CDS could accept liability for any alleged negligent misrepresentation of the Crown and whether CF members were in a contractual relationship with the Crown, were both questions of law - While, typically, questions of law were reviewed on a correctness standard, the reasonableness standard applied here - For the question of negligent misrepresentation, the CDS was interpreting its home statute, the National Defence Act (Act) - Further, deference applied where the decision-maker had special expertise regarding the discrete administrative regime, such as in the CF grievance process - Respecting the contractual relationship between the Crown and CF members, the CDS applied the common law - There was a privative clause and the question of law was within the decision-maker's specialized area of expertise - Thus, deference applied - Changing the applicant's pay rate and denying him the retroactive promotion were issues of mixed fact and law and reviewable on the reasonableness standard - Further, the Act granted the CDS discretion which he used in denying the applicant's retroactive promotion - As such, deference was required - See paragraphs 40 to 45.

Cases Noticed:

Armstrong v. Canada (Attorney General) (2006), 291 F.T.R. 49; 2006 FC 505, refd to. [para. 40].

New Brunswick (Board of Management) v. Dunsmuir, [2008] S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, appld. [para. 40].

Hudon v. Canada (Attorney General) (2009), 364 F.T.R. 49; 2009 FC 1092, refd to. [para. 44].

Compagnie pétrolière Impériale ltée v. Québec (Ministre de l'Environnement), [2003] 2 S.C.R. 624; 310 N.R. 343; 2003 SCC 58, refd to. [para. 47].

Cie pétrolière Impériale v. Québec (Tribunal Administratif) - see Compagnie pétrolière Impériale ltée v. Québec (Ministre de l'Environnement).

Pelletier v. Canada (Attorney General), [2008] 3 F.C.R. 40; 376 N.R. 360; 2008 FCA 1, refd to. [para. 48].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 52].

Mitchell v. R, [1896] 1 Q.B. 121, refd to. [para. 57].

Pilon v. Canada (1996), 119 F.T.R. 269 (T.D.), refd to. [para. 58].

Statutes Noticed:

National Defence Act, R.S.C. 1985, c. N-5, sect. 19.41(1)(b) [para. 55].

Counsel:

Mihai Codrin, on his own behalf;

Susan Eros, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Winnipeg, Manitoba, for the respondent.

This application was heard at Winnipeg, Manitoba, on September 14, 2010, by O'Keefe, J., of the Federal Court, who delivered the following decision on January 28, 2011.