OTTAWA -- Maj.-Gen. Dany Fortin鈥檚 request for reinstatement as the head of Canada鈥檚 COVID-19 vaccine rollout has been struck down by the Federal Court, stating Fortin must first pursue a grievance over his removal with the Canadian Armed Forces.
In a decision issued on Tuesday, Justice Ann Marie McDonald threw out Fortin鈥檚 request, ruling that his case was premature as the senior military officer 鈥渕ust exhaust the internal grievance process prior to seeking a remedy鈥� in court.
The 20-page judicial review ruling comes after the court heard Fortin鈥檚 legal team and the government dispute who was responsible for the senior military officer鈥檚 removal, over two days of hearings in September.
With the review, Fortin was asking to either be reinstated to his former secondment, or be moved into an equivalent posting with the Canadian Armed Forces.
Fortin鈥檚 lawyers had alleged political interference by Prime Minister Justin Trudeau, Health Minister Patty Hajdu and Defence Minister Harjit Sajjan, as well as a lack of due process or privacy in the decision to remove him. It was a decision that, based on chain of command, was Acting Chief of Defence Staff Lt.-Gen. Wayne Eyre鈥檚 to make, but Fortin alleged that was not the case.
In Tuesday鈥檚 ruling McDonald found that Fortin鈥檚 allegations 鈥渁re not exceptional circumstances that allow him to bypass the internal grievance process.鈥�
McDonald鈥檚 decision agreed with the argument made by the attorney general; that the lawsuit should be thrown out because there is an established grievance process under the National Defence Act and the Queen's Regulations and Orders for the Canadian Forces. Government lawyers framed this as an 鈥渁dequate alternative remedy.鈥�
鈥淢Gen Fortin has not demonstrated that the decision to remove him from his PHAC position cannot be redressed through the CAF grievance process. Therefore, he must avail himself of the grievance process before proceeding on judicial review,鈥� McDonald wrote Tuesday. 鈥淭he grievance process as outlined鈥� provides the proper avenue through which MGen Fortin can and should seek recourse.鈥�
Natalia Rodriguez, one of Fortin鈥檚 lawyers with Conway Litigation, said her team is reviewing the decision and considering next steps.
鈥淲e are determining whether we appeal the decision, that is always open to a litigant at the federal court that has an unfavourable decision,鈥� she told 麻豆影视 Channel鈥檚 Power Play later in the day.
鈥淲e don鈥檛 agree with the decision, our position has always been that the military grievance process cannot determine the issues that were raised in this application.鈥�
According to an cited in the court documents, 鈥渢here were at least 1304 outstanding grievances in the CAF in mid-2020.鈥�
鈥淢Gen Fortin has not demonstrated that the decision to remove him from his PHAC position cannot be redressed through the CAF grievance process. Therefore, he must avail himself of the grievance process before proceeding on judicial review,鈥� McDonald wrote Tuesday.
The senior military officer was removed from his role as Canada鈥檚 vice-president of logistics and operations with the Public Health Agency of Canada (PHAC) in May, after military police initiated an investigation into a sexual misconduct claim made against him which dates back to early 1988 when he was a student at the Royal Military College in Saint-Jean, Que.
In a sworn affidavit submitted as part of the federal case, Fortin stated that his reputation has been 鈥渋rreparably tarnished,鈥� and his career is 鈥渙ver鈥� as a result of the government鈥檚 decision to remove him and reveal that he was under investigation.
Brig.-Gen. Krista Brodie was tapped to replace Fortin as head of the national vaccine distribution effort at PHAC鈥檚 National Operations Centre.
Days after Fortin was removed, the Canadian Forces National Investigation Service referred the matter to the Quebec criminal prosecution service. In August, Fortin was charged in Gatineau, Que. with one count of sexual assault.
Fortin has denied any wrongdoing and has vowed to defend himself 鈥渧igorously鈥� against the charge. The next court date in this separate criminal matter is scheduled for Nov. 5.
With files from 麻豆影视鈥� Sarah Turnbull and The Canadian Press
