Judge refuses to reinstate Fortin
General told to file grievance with military
• A judge has thrown out Maj.-gen. Dany Fortin’s attempt to have the Federal Court reverse his firing as head of Canada’s COVID-19 vaccine rollout, saying he needs to go through the military grievance process first.
“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,” Justice Ann Marie Mcdonald wrote in a 20-page decision released Tuesday.
In a statement, one of Fortin’s lawyer, Natalia Rodriguez, said they are “disappointed” in the ruling and are considering potential next steps.
“It is unfortunate that the Court did not address the merits of Major-general Fortin’s case and instead determined that the grievance was an adequate alternative remedy,” Rodriguez said in an email.
Fortin was removed from his secondment at the public health agency back in May, months after he was informed that he was under investigation by military policy for alleged sexual misconduct for an incident that dates back decades.
In the spring, Fortin asked the federal court to review the decision and order the government to reinstate him to his job at PHAC or for the Canadian Armed Forces to assign him to a post of equivalent military grade.
But the attorney general asked the federal court to throw out the application, arguing that his lawsuit was premature because he had not filed a military grievance first.
“Parliament has established a broad and comprehensive scheme within the Canadian Armed Forces for resolving complaints about the administration of the Canadian Armed Forces,” lawyer Elizabeth Richards said about the military grievance process during the first day of hearings two weeks ago.
“And the applicant cannot simply bypass that scheme and come to this court unless he establishes exceptional circumstances, and none exist” in Fortin’s case, she added.
In her decision, Mcdonald agreed with Richards.
“The reinstatement request made by Mgen Fortin is more properly considered by the CAF and not by the Courts. Mgen Fortin is and has always been a member of the CAF and the essential nature of the issues he raises are clearly service-related matters that should be addressed internally,” Mcdonald wrote.
In August, Quebec prosecutors charged Fortin with one count of sexual assault for an event that allegedly occurred in 1988 while he was still a student in military college. Fortin denies any wrongdoing and his criminal case is expected to return to court on Nov. 5.
Throughout the case, Fortin alleged that his firing was the product of political interference from the Prime Minister’s Office, the health minister, the minister of national defence as well as the Clerk of the Privy Council, rather than the sole decision of Canada’s acting Chief of Defence Staff, Gen. Wayne Eyre.
During the court hearing, Fortin’s lawyers argued that the decision to fire him was based on an improper “political calculus,” that it was not “justified, intelligible or transparent,” and that the government did not use the “appropriate” considerations when removing him.
Government lawyers disagreed, arguing that the decision was made solely by Eyre, though many other stakeholders’ views were considered.
Because she ruled on the government’s motion to strike Fortin’s application, Mcdonald did not rule on Fortin’s claim of political interference. But she said that the allegation still did not allow Fortin to jump over the regular grievance process.
“In my view, the high-profile nature of Mgen Fortin’s position and the allegations of political interference are not exceptional circumstances that allow him to bypass the internal grievance process,” reads the decision.
Fortin’s lawyer disagreed on Tuesday.
“Our position continues to be that the military grievance process cannot quash a decision made outside of the military chain of command and that it lacks authority over the ministers who made the decision to remove Major-general Fortin from his secondment,” Rodriguez said.
HE MUST AVAIL HIMSELF OF THE GRIEVANCE PROCESS.