Case # 2009-062

Administrative Action, Board of Inquiry, Impartiality, Procedural fairness

Case Summary

F&R Date: 2010-03-08

A Commander of a Command convened a Board of Inquiry (BOI) into an accident. Although the grievor was not directly involved in the accident itself, the BOI found that his lack of action was a contributing factor. After the BOI was approved by the Chief of the Defence Staff (CDS), the Convening Authority issued the grievor a Letter of Performance Deficiency (the “Letter”) with direction that it was to remain on the grievor’s unit personnel file (UPF) permanently.

The grievor contended that the Letter should not remain on his UPF because: the Letter was inconsistent with the Canadian Forces (CF) policy on remedial measures; and he was not granted procedural fairness due to the BOI process and composition.

The grievor argued that, given that CF-wide remedial administrative measures identify and allow sufficient time to resolve a deficiency, including a letter of closure that typically states that the deficiency has been overcome, the Letter falls outside the approved policy with a deficiency permanently identified with no hope of closure. The grievor explained that, contrary to CF policy on the composition and conduct of a BOI, one of the BOI members could have been placed in a conflict of interest. This BOI member was the subject matter expert (SME) from whom he had sought advice on the very subject area for which the BOI had found him deficient and for which the Letter was issued.

As redress, the grievor requested the Letter be removed from all his personnel and other files; or, failing that resolution, that the permanency of the Letter on his files be reconsidered in light of the BOI’s acknowledgement that he was inadequately trained.

The Board found that:

• the BOI provided the grievor with all the information to which he was entitled prior to providing his comments to enable him to know the case against him and make his representation;

• the SME being a member of the BOI raised concerns about fairness; however, it was not sufficiently serious to nullify the results;

• the Letter was deficient in the way it was delivered and administered;

• there could be an appearance of conflict of interest if the Director General Canadian Forces Grievance Authority dealt with this grievance as the FA in the exercise of his delegated CDS authority; and

• there is no conflict or other impediment in respect of the CDS personally acting as the FA for this grievance.

The Board recommended that:

• the grievance be upheld;

• that a letter containing a clear and unequivocal statement to the effect that the grievor has overcome the deficiencies noted in the Letter be placed on the grievor's UPF.

CDS Decision Summary

CDS Decision Date: 2010-07-07

The FA agreed with the Board's findings and recommendation to partially uphold the grievance.