Fortin appeals ruling on firing from PHAC
OTTAWA — Maj.-gen. Dany Fortin is appealing a Federal Court decision to throw out his application to have him reinstated as head of Canada’s COVID-19 vaccine rollout, claiming the judge made “numerous and grave” legal errors.
“The judge made numerous and grave legal errors in her decision which Majorgeneral Fortin is asking the Federal Court of Appeal to overturn,” Fortin’s lawyer Natalia Rodriguez said in an email sharing the appeal application.
Two weeks ago, Federal Court Judge Ann Marie Mcdonald ruled in favour of the federal government’s lawyers, who argued that Fortin’s application for judicial review of his removal from his job at the Public Health Agency of Canada (PHAC) should be thrown out because he did not first go through the military grievance process.
“Mgen 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,” the judge wrote in her Oct. 12 ruling.
Fortin was suddenly removed from his secondment
as vice president logistics and operations at PHAC in May, months after he was informed that he was under investigation by military police for alleged sexual misconduct.
Shortly after, he asked the federal court to judicially review his removal, arguing that it was the product of political interference and based on an improper “political calculus” rather than the decision of his military superior,
acting Chief of Defence Staff Gen. Wayne Eyre.
He hoped the Federal Court would order the government to reinstate him to his former job at PHAC or any military job suited to his rank.
Government lawyers denied all those allegations in court, but because the Federal Court threw out Fortin’s applications, the judge did not rule on the military member’s claims surrounding his removal.
Fortin has since been charged by Quebec prosecutors in separate legal proceedings for one count of sexual assault for an event that allegedly occurred in 1988. He has denied any wrongdoing and that case is expected back in court on Nov. 5.
In the new filing to the Federal Court of Appeal, Fortin’s lawyers list eight different reasons why the Federal Court decision should be quashed and sent back to a new judge for redetermination.
Among the arguments, his lawyers allege that the judge applied the wrong legal test to determine that the military grievance process was in fact an adequate alternative remedy.
They also argue that Mcdonald misapprehended established exceptions that normally allow a military member to bypass the grievance process, and that she erred when she determined that a grievance could lead to an adequate remedy for Fortin.