Maj.-Gen. Dany Fortin appeals court decision in bid to return as head of Canada’s COVID-19 vaccine rollout

Maj.-Gen. Dany Fortin is appealing a court decision that found he must first go through the military grievance process to try to get back his position as head of Canada’s COVID-19 vaccine rollout.

Fortin was removed from the role in May during a military police investigation into an allegation of sexual misconduct.

In August, Fortin was charged with one criminal count of sexual assault regarding an incident that allegedly took place in 1988. He has denied the allegation.

Fortin claimed he was denied due process and that federal politicians inappropriately interfered in his removal. He took his case to Federal Court, where he asked to be reinstated either as head of the vaccine rollout or to a position commensurate with his rank.

Justice Ann Marie McDonald ruled last week that Fortin must first go through the military’s internal grievance process before coming to the courts.

McDonald sided with the federal government and agreed to strike Fortin’s application for judicial review of the decision to remove him.

In a notice filed Friday with the Federal Court of Appeal, Fortin’s lawyers asked that his case be sent to a different Federal Court judge for a full hearing of his judicial review application.

“The judge made numerous and grave legal errors in her decision which Maj.-Gen. Fortin is asking the Federal Court of Appeal to overturn,” one of Fortin’s lawyers, Natalia Rodriguez, said in a statement Friday.

Fortin maintains that the decision to remove him was not made by the acting chief of the defence staff, but rather by Health Minister Patty Hajdu, Defence Minister Harjit Sajjan, Prime Minister Justin Trudeau, and the office of the clerk of the Privy Council.

The group is identified as the “decision-makers” in the notice, which lists eight grounds of appeal.

Fortin’s lawyers argue that McDonald applied the wrong legal test when determining whether the grievance process was an adequate alternative for Fortin.

And in her analysis, McDonald “erred” in finding that allegations of improper political interference did not constitute “exceptional circumstances” in order to bypass the military grievance process, the lawyers argue.

They also argue she erred in finding that the grievance process could provide Fortin with an “adequate remedy” and would also be able to address the alleged political interference, and that she made a mistake in finding that the grievance process could apply to decisions made outside of the military chain of command.

“The judge failed to consider that the military grievance process does not grant the (acting chief of the defence staff) any authority to quash a decision by the decision-makers and that the allegations of political interference in the military chain of command would render the grievance process open to further allegations of improper political interference,” Fortin’s lawyers argue.

Fortin became the face of Canada’s COVID-19 vaccine rollout last year while providing regular briefings to the public in his position as vice-president of logistics and operations at the Public Health Agency of Canada.

He was relieved of his duties on May 14, five days before the findings of a military police investigation into allegations of sexual misconduct were referred to the Quebec prosecution service, which determines whether criminal charges should be laid.

He was charged with sexual assault in August. The criminal case is due back in court in November.

Hajdu’s office has previously stated that it was agreed in May with Iain Stewart, then-president of the Public Health Agency of Canada, that Fortin would be relieved of his duty.

But government lawyers argued in Federal Court last month that the decision to remove Fortin was made by the acting chief of the defence staff, Gen. Wayne Eyre.

McDonald found that the issues raised by Fortin are “service-related matters” to be dealt with by the military grievance system.

The process would involve an external review committee that has the power to summon witnesses and compel evidence. The committee would then make recommendations to the chief of the defence staff, who is not bound to follow them but must provide written reasons if he or she does not.

McDonald noted the chief of the defence staff’s decision could then be reviewed by the court.


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