Federal Court rejects Maj.-Gen. Fortin's bid to challenge removal as head of vaccine rollout
Judge says Fortin must use military grievance system
The Federal Court of Canada has told Maj.-Gen. Dany Fortin that the military grievance process is the appropriate avenue to address his claim that political interference led to his removal as head of the vaccine rollout.
In a written ruling released today, Justice Anne Marie McDonald said the career soldier had not fully taken advantage of the redress mechanism already in place for members of the Armed Forces.
"I conclude that this is an appropriate case for the Court to exercise restraint," she wrote. Maj.-Gen. Fortin "must exhaust the internal grievance process prior to seeking a remedy in this Court," she added.
As a consequence, the justice has sided with federal lawyers and granted the government's request to strike down the application for a judicial review.
- Government lawyers argue politicians did not interfere in Maj.-Gen. Fortin's removal from pandemic post
Fortin was removed as the head of the vaccine rollout task force last May, two months after an investigation was launched into a complaint of sexual misconduct against him.
In August, Fortin was charged with one count of sexual assault tied to an incident alleged to have taken place in 1988, when he was a student at the Royal Military College Saint-Jean.
He went to court to challenge the decision to remove him from his temporary role leading the vaccine rollout at the Public Health Agency of Canada (PHAC) after the military decided to hand his case over to Quebec prosecutors.
His lawyers argued his dismissal was due to political interference and were asking that their client be restored to his former position or to something equivalent.
Judge finds no 'exceptional circumstances' in Fortin's case
Fortin's legal team also argued that the military grievance process is too cumbersome a vehicle to deal with a case like his.
The judge disagreed.
"In my view, the high-profile nature of [Maj.-Gen.] Fortin's position and the allegations of political interference are not exceptional circumstances that allow him to bypass the internal grievance process," McDonald wrote.
"The decision to remove him from the [Public Health Agency of Canada] position was the [acting chief of the defence staff's] decision to make."
Justice McDonald also said the matter of Fortin's reinstatement "is more properly considered by the CAF and not by the Courts" and that the entire matter is service-related and "should be addressed internally."
McDonald ruled Fortin had not demonstrated that the decision to remove him from his PHAC position could not be redressed through the CAF grievance process.
Fortin's lawyer didn't say whether there will be an appeal.
"We are disappointed in the outcome," said Natalia Rodriguez in a media statement.
"We are reviewing the decision with Major-General Fortin to determine next steps. It is unfortunate that the Court did not address the merits of Major-General Fortin's case and instead determined that the grievance was an adequate alternative remedy."
Rodriguez said she and her client maintain that the military grievance process cannot quash a decision made outside of the military chain of command and that the redress system lacks authority over the government ministers who chose to remove Fortin from his secondment.
Also on Monday, one the country's highest ranking military officers — who had been investigated for sexual misconduct and was not charged — took his case for reinstatement public in an interview with The Globe and Mail.
Admiral Art McDonald, who remains on leave after military police declined to lay charges in a decade-old misconduct complaint, said in an interview that he had been "exonerated."
Military police said last summer that their investigation did not reveal evidence to support the laying of a criminal or administrative charge.
McDonald, who had demanded his old job back in a statement following the conclusion of the investigation, said in the article published Monday that he wanted to return to duty and called on the federal government to "start a dialogue around an alternative approach."
He did not define what he meant by "alternative approach."
McDonald voluntarily stepped aside from his post as the country's top military commander in late February after it was revealed he was under investigation. He had assumed the role six weeks before.