Recommendations on Systemic Issues
TopicJurisdiction concerning time limits for submission
Case number2009-076 (F&R Date: 2010-02-03)
For some time, the Board has been receiving files where the Director General Canadian Forces Grievance Authority (DGCFGA) reviewed the issue of time limits to determine whether grievors had submitted their grievances within the time limits provided in articles 7.02 and 7.10 of the Queen's Regulations and Orders (QR&O). The Board noted that, in a certain number of files referred to the Board, the DGCFGA determined that the grievance had been submitted outside the time limit but decided that it was in the interests of justice to consider the grievance nonetheless. Thus, a number of files considered late were referred to the Board for review. The Board is not concerned so much about the files that were referred but about the files that were not referred and that, under the National Defence Act (NDA), should have been.
In grievance files under the categories listed in article 7.12 of the QR&O, grievances that must be referred to the Board, the Board is of the view that the DGCFGA does not have the authority to determine whether it is in the interests of justice to consider a late grievance submission. Under article 29.14 of the NDA and article 7.09 of the QR&O, "the Chief of the Defence Staff may delegate to any officer any of the Chief of the Defence Staff's powers, duties or functions as final authority in the grievance process, except... the duty to act as final authority in respect of a grievance that must be referred to the Grievance Board..."
A late grievance submission remains valid but raises a procedural issue that requires the deciding authority to agree to "consider" the grievance. In the Board's view, it would be illogical for the regulations to permit the DGCFGA to make this determination in place of the Chief of the Defence Staff (CDS), while the NDA explicitly prohibits the former from reviewing grievances that must be referred to the Board. This determination can only be made by the final authority (FA); in this case, the CDS.
The Board sees only the files that are referred to it. It is therefore very likely that the DGCFGA has, in the past, denied late grievance submissions that should have been referred to the Board under the NDA. The grievors in those files had their grievances denied without the benefit of an independent review by the Board and a decision by the CDS, the FA, as prescribed by the NDA.
The Board is of the view that all grievances that the current DGCFGA denied must be reviewed.
The Board recommended that the grievances under the categories listed in article 7.12 of the QR&O that were denied by the DGCFGA be referred to the Board for a new determination about the time limits (and the interests of justice, if required). These files will be independently reviewed by the Board so that conclusions and recommendations will be forwarded to the CDS, who is the appropriate FA for this decision.
Final Authority Decision
The CDS partially agreed with the Board’s systemic recommendation. He supports the fact that for late grievance submissions that are included in the mandatory categories set out in article 7.12 of the QR&O, the DGCFGA does not have the authority to determine whether it is in the interests of justice to consider them. However, the CDS did not support the part of the recommendation that all grievances refused by the DGCFGA based on time limits, but which should have been referred to the Board pursuant to article 7.12, be reconsidered.