Frequently Asked Questions

In short, the MGERC is the only grievance authority that:

• Has jurisdiction over grievances specified under the National Defence Act (NDA), as lodged by current members of the CAF;
• As an administrative tribunal, has a statutory mandate to review grievances in a quasi-judicial setting;
• Is the only organization to which the CDS must refer certain grievances;
• Is the only grievance authority that must forward its findings and recommendations to the CDS for final adjudication.

Both organizations are separate and distinct entities, each with a very different mandate.

The significant difference between the Committee and the Ombudsman's office is that a member of the CAF must first submit a grievance (in matters that are subject to the grievance process) before he or she submits a complaint to the Ombudsman. That is, he or she must usually exhaust the grievance process available to them before approaching the Ombudsman.

A grievance is submitted pursuant to the provisions of the NDA and regulations, whereas a complaint to the Ombudsman is of an administrative nature and is presented under the authority of a ministerial directive and Defence Administrative Order and Directive. Further, the authority of the Committee is derived from the NDA whereas the Ombudsman's authority is found entirely within Ministerial Directives.

While the Committee must deal with all grievances submitted to it, the Office of the Ombudsman may refuse to deal with a complaint. However, the Ombudsman can intervene in grievable matters if he considers there are compelling reasons to do so, such as undue hardship caused a member of the CAF. And finally, the Committee forwards its findings and recommendations to the CDS, whereas the Ombudsman forwards his reports on complaints to the competent DND or CAF authority.

A CAF member may use any form of redress available, for example, Alternative Dispute Resolution, but as a quasi-judicial tribunal, only the Committee has the power to recommend a decision to the CDS that is legally binding and may initiate a policy change.

Grievances referred to the Committee may relate to one or more of the following matters, as outlined in article 7.21 of the Queen's Regulations and Orders for the Canadian Forces (QR&O):

• Administrative action that results in forfeiture of, or deductions from, pay and allowances; reversion to a lower rank or release from the CAF;
• Application or interpretation of CAF policies relating to expression of personal opinions, political activities, and candidature for office, civil employment, conflict of interest and post-employment compliance measures, harassment or racist conduct;
• Pay, allowances and other financial benefits;
• Entitlement to medical care or dental treatment.

The CDS shall also refer every grievance concerning a decision or an act of the CDS that relates to a particular officer or non-commissioned member to the MGERC for its findings and recommendations. As per section 29.12 (1) of the NDA, the CDS may also refer any other grievance to the Committee.

Yes, the following issues cannot be grieved:

• Any decision of a Summary Trial, Court Martial, or the Court Martial Appeal Court;
• A matter that must be addressed by another process, as stipulated under the terms of the NDA;
• A decision of any board, commission, court or tribunal not created under the NDA (e.g., Canadian Human Rights Commission, Privacy Commission, Access to Information Commissioner and Official Languages Commissioner);
• Decisions, acts or omissions made by the Government of Canada (because they are beyond the authority of the CDS).

The grievance system is, to some degree, a barometer of current issues of concern to members of the CAF. Several recurring grievances on the same issue may indicate a poor policy, or the unfair application of a misunderstood policy. In some cases, the underlying law or regulation may be out of date or otherwise unfair.

The Committee's mandate, places it in an ideal position to identify systemic causes. Its full-time focus on grievances, its in-depth analysis of every case, its grievance-tracking systems, its ability to investigate all aspects of the apparent cause of a particular grievance, and its ever-growing library of precedents make it easy to recognize when certain types of grievances seem to be clustering around a systemic stumbling block.

As such, the Committee's findings and recommendations may address both the individual grievance and systemic changes, as addressed in our 2004 and 2005 Annual Reports. The Committee decided that where recurring grievances appeared to be triggered from systemic issues of which the CDS might be unaware, it would be useful to flag them in the findings and include recommendations that the CDS consider for further investigation. If DND could address a given issue, the likely result would be better working conditions, improved morale, and ultimately, the elimination of future grievances related to the subject.

As per the NDA (S. 29.2), the Committee makes findings of Facts and Law and then provides recommendations that result from these findings, so that the grievance can be resolved.

As per section 29.15 of the National Defence Act, a decision of a final authority in the grievance process is final and binding and, except for judicial review as per section 18.1 (4) under the Federal Courts Act, is not subject to appeal or to review by any court.

The Committee has been in existence since June 2000 and is already seeing the difference it can make. For example, the final report of the first independent review of the legislation that created the Committee, Bill C-25, states that "The Grievance Board is to be commended for establishing in a relatively short time frame a grievance review process that is recognized as providing well-reasoned and thorough findings and recommendations."

Further to this, the CDS himself acknowledges that many of the issues raised by the Committee merit broader consideration within the Forces; issues such as procedural fairness, to the treatment of Reservists in comparison with their counterparts in the Regular Force, to entitlement to various allowances and benefits are just a few examples of recommendations made by the Committee that the CDS asked DND authorities to examine.

The Committee's value for the CAF lies in its influence on the way issues will be dealt with in the future and the underlying causes of grievances, and its proposed changes aimed at preventing the recurrence of similar grievances.

CAF members cannot submit a grievance to the Committee directly; they are first required to submit their grievances to their Commanding Officer. The first adjudication level is with the Initial Authority (IA). If the grievor is not satisfied with the decision rendered there, he or she may submit the grievance directly to the CDS for review. Then, according to article 7.12 of the QR&O, grievances will be referred to the MGERC by the CDS.

The grievance process is a two-level process that works as follows:

Level I: Review by the IA within the CAF

A common misconception about the CAF grievance procedure is that a grievor can submit a grievance directly to the Committee. In fact, the process begins not with the Committee, but with the grievor's Commanding Officer (CO):

• Step 1: The grievor submits the grievance to his or her CO.
• Step 2: If the CO cannot act as the IA, he submits the grievance to someone who can act as the IA, i.e., the next superior officer having the responsibility to deal with the matter. If the grievor is satisfied with the IA's decision, the grievance process ends there.

Level II: Review by the CDS

Grievors who are dissatisfied with the IA's decision may request to have their grievance reviewed by the CDS, whose decision is the final stage in the grievance process.

Grievors initiate this second level of review as follows:

• Step 1: They submit their request for a second level of review.
• Step 2: For those grievances that fall within the Committee's mandate, the Director General Canadian Forces Grievance Authority (DGCFGA) forwards the grievor's file (on behalf of the CDS) to the MGERC.

The Committee's Procedural Response

When the Committee's Registrar receives the grievor's file from the DGCFGA, the Committee will send a letter of acknowledgement to the grievor, and in accordance with the rules of procedural fairness, will disclose to the grievor the information the file contains. The Committee will also invite the grievor to submit additional information related to the case. Should the Committee acquire new information, it will be disclosed to the grievor.

Processing the Grievance

A grievance officer conducts an in-depth analysis, which may involve a lawyer, following which the assigned Committee Member develops the final findings and recommendations. These are subsequently forwarded simultaneously to both the grievor and the CDS. In addition, should the Committee deem it necessary, it can hold formal hearings and call witnesses. The CDS, who may accept or reject the Committee's findings and recommendations, will communicate the decision(s) directly to the grievor, with a copy sent to the Committee. If the CDS chooses to disagree with the Committee, the reason(s) must be set out in the decision(s).

The Lamer Report recommended that grievances should be answered within 12 months of receipt by the CDS. The Committee agrees that this is reasonable and works towards this deadline.

However, the Committee must also deal with factors beyond its control that affect its ability to meet the deadline. These factors include:

• The expediency with which a grievance is referred to the Committee once filed at the CDS level.
• The complexity of a grievance. Many grievances can be very complex, requiring Committee staff to conduct more research and gather additional information.
• The promptness with which the Committee receives a response from parties from whom it has requested additional information.
• The number of Committee Members at any given time.

The last six years have proven to be invaluable to the Committee's organizational development and business strategy and each year has seen the Committee steadily increase its production and closure rate. For example, 81.5% of the files received and completed in 2006, were done so in less than six months. Much of what the Committee has learned has been systematically funnelled into three key areas:

1. Increased procedural efficiency
2. An established library of precedents
3. The maintenance of quality findings and recommendations

The Committee acknowledges that grievances need to be reviewed in the timeliest manner possible, but not at the expense of a fair grievance process. The Committee also works cooperatively with the Grievance Authority within the Department of National Defence to reduce delays in the overall grievance review.

When your grievance comes to the Committee, you will receive general information about how the process works in a letter of acknowledgement.

As for timelines, the NDA does not bind the Committee to deadlines because of the several factors relevant to the review, including those that are outside of the Committee's control. Each case is particular in its circumstance. However, once your file is assigned to a grievance officer, he or she will be in a better position to provide you with time frames according to the work that is to be completed.

Contact with the Committee occurs during the disclosure process and the grievor will also receive the Committee's findings and recommendations at the same time they are sent to the CDS.

The 12-month limit for grievance resolution is deemed reasonable; and the Committee does work towards this end. However, the Committee's primary requirement is to comply with the rules of natural justice; as such fairness guides the process before expediency. Each grievance file is evaluated according to what is necessary to ensure a fair and transparent review. The terms of this particular recommendation need to be assessed against external factors such as procedural fairness, disclosure or public hearings, all of which can be time consuming.

Source: Lamer Report

The Committee's annual reports and case summaries section provide samples for various grievances that have been received throughout the year, including the decision received from the CDS.

The Committee consists of Governor in Council appointees. Under the National Defence Act, the Governor in Council must appoint a full-time Chairperson and at least two Vice-Chairpersons. In addition, he may appoint any other members the Committee may require to carry out its functions. Appointments may be for up to four years and may be renewed.