Procedural Fairness and Natural Justice in Military Grievances

What is Procedural Fairness in the Military Context?

Procedural fairness, also known as natural justice or due process, is an essential concept of administrative law that ensures all parties affected by a decision in the Canadian Armed Forces are treated fairly and without bias. This fundamental principle protects CAF members from arbitrary or unfair decision-making and forms the cornerstone of the military grievance system.

In the military context, procedural fairness means that every CAF member has the right to know what is happening in their case, understand the evidence upon which decisions are made, have their side of the story heard and considered before any decisions are made, and receive reasonable notice of any hearing associated with their case. These rights apply whether you're facing administrative action, disciplinary measures, or filing a grievance against a decision.

As emphasized in "An Airing of Grievances," procedural fairness needs to be second nature to all decision-makers. If your work has a procedural fairness or natural justice flaw, the best outcome is you repeat a step and lose some time. The worst outcome is when everything you worked on gets thrown out because it isn't worth the paper it's written on.

Natural Justice: Ancient Principles in Modern Military Law

Natural justice is a legal concept that originated in ancient Greek and Roman law, and it continues to protect Canadian Armed Forces members today. These principles require decision-makers to be impartial, unbiased, and fair when making judgments on cases. In the military grievance context, natural justice ensures all parties can present their case with full disclosure of facts and evidence and a right to respond before making any decisions.

Natural justice also prevents bias or discrimination based on gender, race, or other personal characteristics unrelated to the issue. The principles of natural justice must be upheld by both parties involved, including those responsible for managing grievances or complaints within organizations, ensuring fairness throughout the process from start to finish without fear of retribution or prejudice.

The Federal Court of Canada has consistently upheld these principles in military grievance cases, including the landmark Baker v. Canada decision, which reinforced that administrative decision-makers must provide procedurally fair processes.

The Four Pillars of Procedural Fairness in CAF Grievances

Understanding the four pillars of procedural fairness is crucial for both grievors and decision-makers in the Canadian Armed Forces. These pillars form the foundation of fair administrative decision-making:

1. Right to Be Heard (Make Representations)

When facing any administrative action or filing a grievance, CAF members have the fundamental right to make their case. This can be done through in-person meetings or written submissions. The complainant must have adequate time and resources to prepare for this representation. Additionally, they should feel comfortable raising questions or concerns during the process.

The decision-maker must ensure that both parties are heard fairly and rationally, considering all relevant information before concluding how to resolve the issue at hand. In a military context where the decision-maker represents the same unit as the supervisor whose decision is being grieved, this principle becomes especially critical.

2. Unbiased Decision-Maker

The person making decisions about your grievance must be impartial and free from any actual or perceived bias. This means they cannot have a personal interest in the outcome, pre-existing opinions about the case, or relationships that could influence their judgment. In the CAF context, this can be challenging when decision-makers and grievors serve in the same unit, making vigilance against bias essential.

3. Disclosure of Evidence

CAF members have the right to know the case against them and to see all evidence that will be considered in making a decision. This includes documents, witness statements, policies, and any other materials the decision-maker will rely upon. Withholding disclosure is one of the most common procedural fairness errors in military grievances.

As noted in the grievance manual, failing to provide disclosure before a decision violates natural justice and can invalidate the entire process. The grievor must have the opportunity to respond to all evidence, not just be informed of it after the fact.

4. Reasons for the Decision

Decision-makers must provide clear, understandable reasons for their decisions. These reasons should demonstrate that they considered all relevant evidence, applied the appropriate policies and regulations, and reached a logical conclusion. Vague or template responses that don't address the specific issues raised constitute a procedural fairness violation.

Common Procedural Fairness Violations in Military Grievances

Based on years of experience analyzing CAF grievances, certain procedural fairness errors appear repeatedly. Recognizing these violations can help you identify when your rights have been breached:

Withholding Disclosure

One of the most frequent violations occurs when decision-makers fail to provide full disclosure of evidence before making a decision. This might include:

• Not sharing witness statements that influenced the decision
• Relying on policies or regulations not disclosed to the grievor
• Using personnel file information without the member's knowledge
• Considering emails or memos the grievor hasn't seen

Failure to Provide Opportunity for Representations

Sometimes decision-makers rush to judgment without giving the affected member a genuine opportunity to present their case. This violation includes:

• Making decisions without informing the member of the allegations
• Setting unreasonable deadlines for responses
• Ignoring requests for extensions when legitimate reasons exist
• Proceeding despite the member's inability to respond due to deployment or medical issues

Bias or Appearance of Bias

Even the perception of bias can violate procedural fairness. Common scenarios include:

• Decision-maker has a personal relationship with parties involved
• Previous negative interactions that could influence judgment
• Public statements indicating a predetermined outcome
• Involvement in the events leading to the grievance

Inadequate or No Reasons Provided

Decisions that lack proper reasoning violate procedural fairness by preventing meaningful review. Problems include:

• Generic template responses that don't address specific issues
• Conclusions without explanation of the reasoning process
• Failure to address key arguments raised by the grievor
• Reasons that don't connect the evidence to the decision

De Novo Review: Fixing Procedural Fairness Errors

When procedural fairness errors are identified in a grievance, the solution often involves a de novo review - a fresh examination of the original issue without relying on the flawed decision. This approach, accepted by Canadian Federal Courts, allows the grievance process to cure procedural defects while still addressing the substantive issues.

How De Novo Review Works

A de novo review essentially starts from scratch. The reviewing authority doesn't simply examine whether the original decision was correct; instead, they make their own independent decision based on all available information. This process involves:

1. Acknowledging the Error: The decision-maker explicitly recognizes the procedural fairness violation
2. Setting Aside the Flawed Decision: The original decision is quashed and not relied upon
3. Fresh Examination: All evidence is reviewed independently
4. New Decision: A completely new decision is made following proper procedures

With this approach, you can remedy all the procedural fairness errors in the file. If there are multiple errors, each should be mentioned so it's clear what is being corrected.

Important Limitation

It's crucial to understand that a procedural fairness error does not automatically mean a grievance will be upheld. The focus of the decision always revolves around the action that brought on the administrative action. Procedural fairness issues are serious, but they are not enough on their own to overturn an action if the underlying facts support it. The grievor must still dispute the facts to successfully challenge the substantive decision.

Federal Court Recognition of Procedural Fairness

The Federal Court of Canada has consistently recognized and enforced procedural fairness principles in military grievance cases. Understanding this judicial backing strengthens your position when identifying violations.

Key Federal Court Principles

The courts have established several important principles regarding procedural fairness in military contexts:

• Variable Standard: The level of procedural fairness required varies based on the nature and impact of the decision
• Administrative Context: Military decisions are subject to administrative law principles, not criminal law standards
• Burden of Proof: Administrative decisions require proof on a balance of probabilities (50% + 1), not beyond reasonable doubt
• Remedial Approach: Courts prefer remedying procedural errors through proper process rather than simply quashing decisions

Judicial Review Rights

If procedural fairness violations aren't corrected through the grievance process, CAF members retain the right to seek judicial review from the Federal Court. The court will examine whether:

• The decision-maker followed proper procedures
• Natural justice principles were respected
• The decision falls within a range of reasonable outcomes
• Adequate reasons were provided

Practical Guide: Protecting Your Procedural Fairness Rights

Whether you're filing a grievance or responding to administrative action, protecting your procedural fairness rights requires vigilance and documentation. Here's how to safeguard these rights throughout the process:

Before Filing a Grievance

During the Grievance Process

After Receiving a Decision

Real-World Examples: Procedural Fairness in Action

Understanding how procedural fairness violations occur in practice helps identify them in your own situation. Here are anonymized examples based on actual CAF grievance cases:

Example 1: Failure to Disclose Evidence

Example 2: Biased Decision-Maker

Example 3: Inadequate Opportunity to Respond

Example 4: No Reasons Provided

Frequently Asked Questions About Procedural Fairness

Additional Resources on Procedural Fairness

Key Legal References

• Baker v. Canada (Minister of Citizenship and Immigration) - Landmark Supreme Court case on procedural fairness
• Dunsmuir v. New Brunswick - Establishes standards of review for administrative decisions
• QR&O Chapter 7 - Queen's Regulations and Orders governing CAF grievances
• DAOD 2017-1 - Defence Administrative Orders and Directives on military grievances

Support Resources

• Canadian Forces Grievance Authority (CFGA) - Helpline: 1-866-474-3867
• Military Grievances External Review Committee (MGERC) - Independent review body
• DND/CAF Ombudsman - Independent oversight and assistance
• Conflict and Complaint Management Services (CCMS) - Early resolution support

Related Topics

For more information on related aspects of the grievance process, explore these resources:

• Complete CAF Grievance Process Guide
• How to File a Grievance in the CAF
• Understanding MGERC Reviews
• Administrative Investigations vs Grievances