Case # 2010-019

Administrative Action, Administrative Review, Procedural fairness

Case Summary

F&R Date: 2010-06-30

Due to complaints and rumours concerning the grievor's relationship with a subordinate Corporal (Cpl), he was interviewed and cautioned by his supervisor about such a relationship. Six months later, due to ongoing rumours, coupled with information that the grievor had separated from his wife, an investigation into the relationship was conducted. The investigation concluded that there was no personal relationship between the grievor and the Cpl, but that the grievor had displayed poor judgement on a couple of occasions and should be counselled. The grievor received a verbal warning concerning superior-subordinate relationships and the investigation was closed. The grievor and the Cpl were both deployed to separate units in Afghanistan.

A couple of months later, the grievor's estranged wife provided the grievor's former supervisor with notes she had taken from his diary indicating that there was indeed a personal relationship between the grievor and the Cpl. The supervisor re-opened the investigation, during which, additional evidence of a relationship was discovered. The investigation concluded that a personal relationship did exist between the grievor and the Cpl and since it existed during the time they were superior-subordinate it was an adverse personal relationship which required reporting in accordance with the regulations. The grievor was repatriated from Afghanistan and his supervisor requested the Director Military Careers Administration and Resource Management conduct an administrative review (AR) of the situation. The decision of the AR was that the grievor was to be placed on recorded warning (RW) for lying to his supervisor, counselling and probation (C&P) for failing to report an adverse personal relationship, his promotion was to be deferred, and his posting cancelled.

The grievor argued that he had been subject to an invasion of privacy since the diary notes, which the Canadian Forces (CF) had used to re-open the investigation, were stolen from him by his estranged wife and the CF had no right to use them. He contended that his privacy was further breached by CF authorities providing his wife information about the investigation. He challenged the administrative measures taken against him as being too severe for what he was alleged to have done.

The Board determined that the grievor's rights were not infringed upon since neither the Charter of Rights, nor the relevant Privacy Acts applied to the situation because his estranged wife was not acting on behalf of the State. The Board found no evidence that the CF provided information to the grievor's wife that would be considered a breach of privacy.

The Board found that an adverse personal relationship had existed between the grievor and his subordinate Cpl. The Board also concluded that the grievor had failed to report the relationship and that he had lied to his supervisor, and the investigating officer, on multiple occasions when questioned about it.

The Board found that the RW and C&P were reasonable and fully justified remedial measures and that the deferred promotion and cancelled posting were a normal consequence of being placed on C&P.

The Board recommended the grievance be denied.

CDS Decision Summary

CDS Decision Date: 2011-01-17

The Final Authority (FA) partially agreed with the Board's recommendation to deny the grievance. The FA was of the opinion that the C&P issued to the grievor for failing to report an adverse personal relationship was not justified, and directed that it be removed from the grievor's records and be disposed of in accordance with the Library and Archives of Canada Act. As a consequence of quashing the C&P, and in the absence of any disciplinary measures taken by the grievor’s chain of command on any of the issues raised, the FA considered that the deferral of the grievor’s promotion to LCol was not supported. The FA directed that the promotion be retroactively awarded to December 2007. The Board questioned the grievor's early repatriation which was based on the fact that the mere presence of the other party would necessarily infringe his judgement, and on speculation that the grievor might order up transport to visit this person. Contrary to the Board's finding on that issue, the FA viewed the decision to repatriate the grievor as the Comd's prerogative who, based on the unethical behaviour, lost trust in the grievor.