A key argument from government lawyers last week as to why the Federal Court should not reinstate Maj.-Gen. Dany Fortin as head of Canada's vaccine rollout campaign was that if he wasn't happy with the decision, he should have filed a grievance with his commander.
The comment was a reference to the military's grievance process, the only legal recourse Canada's rank and file have to raise concerns about everything from their work environment or a performance evaluation to disciplinary action taken against them -- including being kicked out of uniform.
"That's exactly what this process is intended to deal with," Justice Department lawyer Elizabeth Richards said of Fortin's demand during the two-day Federal Court hearing, in which the senior military officer was asking Justice Ann Marie McDonald to quash his removal from the vaccine effort in May.
Edwards later warned that if the judge agreed to Fortin's request, other troops would try to sidestep the very process that Parliament set out for Canada's military to address complaints from the troops.
Yet only four months ago, a retired Supreme Court justice, following a review of Canada's military justice system ordered by Parliament, had saved some of his sharpest criticisms for that very grievance system, calling it "broken" and asserting that Canadian troops deserve better.
While Morris Fish would not comment on Fortin's case, he told The Canadian Press in an interview this week that his sentiments about the grievance system remain unchanged -- and that immediate reforms are needed to ensure the military is properly treating those in uniform.
"Canada owes them an acceptable alternative to the rights and obligations of which they're deprived," Fish said.
"I attach great importance to the need for reform of the grievance system. I think it's urgent."
In his report, Fish noted Canadian military personnel have fewer ways to express concerns or complaints than civilian Canadians do.
They cannot unionize or collectively negotiate working conditions, pay and benefits. They also don't have an independent body to seek redress if they have been treated unfairly.
Their main recourse is to file a grievance, "on virtually any subject," to a superior who did not make the original decision, who has four months to respond.
If time expires or the complaint is rejected, it can be appealed to the chief of defence staff or a proxy, who does not face a deadline.
In his report Fish argued that while -- or perhaps because -- Canadian troops give up some of their rights by putting themselves under the military's disciplinary system and setting aside normal labour rights, they are owed some way of bringing up legitimate complaints and concerns.
"The military grievance system, in particular, has not done that for decades and it does not do so now," he wrote.
Fish is not the first retired Supreme Court justice to take aim at the military grievance system.
In fact, it received sharp criticism from two other top court justices who were charged with reviewing the military justice system in 2003 and 2011 and reporting their findings to Parliament.
Much of the concern has revolved around a backlog of grievances that have yet to be addressed. In 2003, that number stood at nearly 800.
By last March, it had ballooned to 1,350, with many cases having sat in the queue for years.
Retired colonel Michel Drapeau, now a lawyer specializing in military cases, noted that equates to one grievance for every 50 to 60 full-time service members.
"Such a high plurality is unknown even in a unionized work environment and should be cause concern," Drapeau said in an email. "For a regular force with barely over 60,000 members, this is an astonishing number that may demonstrate either a leadership crisis, or a morale crisis, or both."
Fish's report cites one example of a service member fighting his forced retirement for medical reasons. The initial grievance was filed in October 2009 and finally rejected four years later.
The Federal Court heard the case and sent it back to the defence chief in December 2014 for a second look.
"Over six years later, the matter is still pending," Fish wrote. "This is just one example. I was informed of several other cases that were referred to the (defence chief) between 2012 and 2015 and that are still not resolved in 2021."
Fortin's lawyers in Federal Court referenced the backlog and Fish's report last week in explaining why their client had not brought a grievance about his removal from the vaccine campaign, though they contended the bigger reason was because the decision was political and thus not subject to the grievance system.
The commander of Canada's Armed Forces himself, acting chief of defence staff Gen. Wayne Eyre, acknowledged in March that the overall grievance situation was "unacceptable, and does little to inspire the trust of our sailors, soldiers and aviators."
To that end, Eyre ordered commanders to triple the number of grievances they are processing by November, warning that a failure to "demonstrate commitment to getting their grievance house in order" could lead to consequences. A "Tiger Team" was also created to work on the backlog.
Justice Department lawyers highlighted Eyre's plan in Federal Court, suggesting it had addressed the concerns raised by Fortin's lawyers.
Yet Fish, in his report, raised several questions about Eyre's plan.
In addition, of the 12 recommendations that Fish made for fixing the system, the military has so far committed to implementing less than half.
Among those it has not committed to is establishing a working group to look at the creation of an independent tribunal, a move supported by the Defence Department's top bureaucrat, deputy minister Jody Thomas, among many others.
Defence Minister Harjit Sajjan's spokesman Daniel Minden says the government has accepted all of Fish's recommendations "in principle," and that an update will be provided to a parliamentary committee and the public in due course.
Eyre, in his directive, made no secret of where he stood on an independent tribunal as he warned commanders if they didn't do better, the system would be taken out of the military's hands.
"The status quo could result in the removal of the grievance system from the CAF for execution by a civilian external, independent body," he wrote.
"The failure to afford our personnel a CAF-owned mechanism through which to provide recourse for its members calls into question our very status as a profession and undermines the very principles of command."
This report by The Canadian Press was first published Oct. 2, 2021.
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