Fortin appeals judge’s ruling on reinstatement

Maj.-Gen. Dany Fortin is challenging a Federal Court judge’s ruling that struck down his request for reinstatement as head of Canada’s COVID-19 vaccine distribution campaign.

The senior military officer’s legal team filed a notice of appeal on Friday, arguing Justice Ann Marie McDonald erred in her ruling last week that Fortin needed to submit a complaint to the military before bringing his case to court.

“The judge made numerous and grave legal errors in her decision, which Maj.-Gen. Fortin is asking the Federal Court of Appeal to overturn,” lawyer Natalia Rodriguez said in a statement.

Fortin has been fighting for reinstatement after he was abruptly removed as head of the vaccine rollout effort in May, five days before military police announced they had referred an investigation of alleged sexual misconduct to Quebec’s prosecution service.

The senior military officer, who previously served in Afghanistan and commanded a NATO training mission in Iraq before being assigned last November to lead the federal government’s vaccine rollout effort, was formally charged with one count of sexual assault in August.

That case, which relates to an alleged incident dating from 1988, is due back in a Quebec court Nov. 5.

Fortin has maintained his innocence and in challenging his removal in Federal Court, accused Prime Minister Justin Trudeau and other senior members of the Liberal government of having turfed him from the vaccine campaign for purely political reasons.

During two days of court hearings last month, Fortin’s legal team argued that the military’s grievance system was the wrong venue for deciding whether his removal was appropriate, given the political nature of the decision.

His lawyers also raised concerns about the military grievance system, citing a recent review by retired Supreme Court justice Morris Fish that found long delays and ultimately described the entire system as “broken” and in need of urgent reforms.

But McDonald rejected those arguments, writing: “In my view, the high-profile nature of Maj.-Gen. Fortin’s position and the allegations of political interference are not exceptional circumstances that allow him to bypass the internal grievance process.”

As for concerns about the grievance system, McDonald noted acting defence chief Gen. Wayne Eyre had instituted new orders to address the problems identified in Fish’s report, adding any concerns about unnecessary delays were “purely speculative.”

In challenging McDonald’s decision at the Federal Court of Appeal, Fortin’s lawyers argue the judge made several mistakes in determining the grievance system was the appropriate forum for hearing the case.

Among their arguments is that the grievance system was not designed to address decisions made outside the military’s chain of command, in this case by politicians. They also say the judge did not fully appreciate the time sensitivities around the case.

Fortin’s lawyers are asking that the case be sent back to the Federal Court for a different judge to hear.

Defence Minister Harjit Sajjan’s office declined to comment.