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Government Law - Armed forces - Personnel - Conditions of service - Promotion - Release from service - Military law - Military administrative law - Grievances - Appeals and judicial review

Thursday, January 26, 2017 @ 7:00 PM  

Application by Corporal Mousseau for judicial review of a decision by the Director General Canadian Forces Grievance Authority (DGCFGA) confirming his reversion in rank. The applicant volunteered to join the Canadian Armed Forces in 2001. He served two tours in Afghanistan. In 2010, the applicant was appointed to the rank of Master Corporal. In 2012, he was transferred for medical follow-up and treatment due to a diagnosis of post-traumatic stress disorder (PTSD) with related limitations. In 2014, the applicant was medically released as a Corporal rather than as a Master Corporal. The reversion in rank was due to the applicant lacking a required qualification, the Armoured Crew Commander Course, at the time of his release. The applicant’s medical employment limitations had resulted in a temporary assignment that prevented his attendance and completion of the required Course. The Chief of the Defence Staff refused to exercise discretion to waive the Course requirement. The applicant grieved the reversion in rank. The grievance was denied at first instance and on external review. In 2015, the DGCFGA reviewed the grievance and determined the applicant was treated fairly, and that the reversion to the rank of Corporal should stand. The applicant sought judicial review.

HELD: Application allowed. The required Course involved armoured vehicles and explosives directly related to the applicant’s PTSD diagnosis and symptoms. He was clearly unable to take the Course. Performance reviews indicated the applicant did an exemplary job training other soldiers during his acting capacity as Master Corporal, regardless of not having taken the Course. The DGCFGA did not address the evidence regarding the applicant’s job performance. The refusal to permit the applicant’s retirement without reversion of rank was unreasonable given the evidence of the applicant’s particular circumstances regarding his condition, the nature of the Course and his job performance, and the lack of transparency regarding other similarly situated personnel. The matter was returned to a different decision maker with the applicant permitted to file new evidence regarding his medical condition.