One month after stepping aside as the head of Canada’s COVID-19 vaccine rollout, Maj.-Gen. Dany Fortin is asking the Federal Court to overturn that decision, alleging he did not get “procedural fairness.”
The application for judicial review was filed with the court on June 14, exactly one month after the Department of National Defence announced that Fortin “has left his assignment with the Public Health Agency of Canada, pending the results of a military investigation.”
The department later confirmed the probe related to an allegation of sexual misconduct, but the details of the investigation have largely remained hazy.
Now, legal experts say the court case could force the government to lay out more details about how the decision was reached to have Fortin leave the position, including what role Prime Minister Justin Trudeau and two prominent cabinet ministers might have played in the matter.
Here’s what we know so far.
Fortin took on role amid military sexual misconduct reckoning
In November 2020, Fortin was seconded from the Canadian Forces to the Public Health Agency of Canada to take on the role as head of Canada’s COVID-19 vaccine rollout.
The posting was expected to last one year.
Throughout the role, Fortin oversaw the logistics of rolling out millions of COVID-19 vaccines to the provinces and territories as the country grappled with a second and third wave of the pandemic.
Meanwhile, he remained a serving member of the Canadian Forces.
But starting in February 2021, the military was confronted by what experts have described as an institutional “crisis” of multiple allegations of sexual misconduct against senior leaders following exclusive reporting by Global News.
The allegations sparked a national reckoning over long-standing sexual misconduct within the Canadian Forces and a culture that has allowed it to flourish. As part of that, the federal government came under fire over accusations that Trudeau and Defence Minister Harjit Sajjan had failed to act on a 2018 allegation against Gen. Jonathan Vance, then-chief of the defence staff.
Vance denies any inappropriate behaviour. He is the subject of a military police probe into two allegations of inappropriate behaviour, one of which is the allegation raised in 2018.
Fortin alleges lack of fairness, ‘political interference’
Fortin left the role as head of the vaccine rollout on May 14, 2021.
At the time, there was very little information available apart from the fact he was stepping aside amid a military investigation. Five days later, though, the military referred the matter to the director of prosecutions in Quebec, who is responsible for weighing whether to lay criminal charges, and confirmed it was a probe into an allegation of sexual misconduct.
One day before that referral, Trudeau said he had been aware of the allegation for “several weeks.”
Iain Stewart, head of the Public Health Agency of Canada, also said on May 21 that he learned of a potential “issue” facing Fortin in late March.
The court filing says Fortin was made aware of an allegation of sexual misconduct against him on March 17 by Lt.-Gen. Wayne Eyre, who is the acting chief of the defence staff.
It also says Fortin spoke to Stewart on March 18 to let him know about the investigation, and that Stewart told him that he was “OK for now.”
“However, Mr. Stewart told MGen Fortin to prepare himself ‘for the moment when they determine that you need to be let go,” according to the Federal Court filing.
It says Stewart then told Fortin: “Keep your bags packed.”
On April 19, the court filing says military police told Fortin the name of the complainant and that the allegation was “alleged to have occurred more than thirty years ago,” the court filing states.
Fortin learned that Sajjan and Health Minister Patty Hajdu wanted to remove him from his position on May 13 from Stewart, according to the filing. Later that evening, it says Eyre told him the “political calculus” had changed, but that no one would tell Fortin whether the investigation had wrapped up.
“PCO had said that he would have to be removed,” the court filing states, referring to the Privy Council Office, which is the bureaucratic department supporting the Prime Minister’s Office.
Fortin was given a choice of two statements on May 14, the court filings add.
“Ultimately, he chose the statement in which it appeared that he had decided to step down and resign his assigned military duty at PHAC,” according to the document.
However, Fortin claims he was actually “terminated” and that he was denied “procedural fairness.”
He also alleges the decision came as a result of “improper political interference in the military chain of command,” and that Eyre had not actually made the decision to remove him.
Trudeau, Sajjan, Hajdu and the top bureaucrat at the Privy Council Office “circumvented” Eyre’s authority to decide what to do with Fortin, the court documents allege, then “effectively prevented” Eyre from reassigning Fortin somewhere else.
Fortin says the terms of his secondment state he could only be terminated with cause.
Eyre has been the acting chief of the defence staff ever since Adm. Art McDonald stepped aside pending the outcome of a military police investigation into an allegation of sexual misconduct against him.
The Department of National Defence has confirmed Fortin is still receiving his “normal salary.”
On Monday, Trudeau’s office passed a request for comment on the case to the Department of National Defence. A spokesperson for Sajjan said they could not comment.
“As this is an ongoing legal matter, it would be inappropriate for us to comment at this time,” they said.
Case may force feds to disclose more information: experts
Experts say at the core of the case is the balance between procedural fairness — the right of employees to be heard during an investigative process — and the broader cultural reckoning facing the military.
Malini Vijaykumar, an employment and labour lawyer at Nelligan Law, said if an individual alleging lack of procedural fairness can show they did not get the chance to be heard prior to being removed from a position, then there could be legitimate questions about procedural fairness.
At the same time, she said the questions around the atmosphere and systemic challenges facing the military can still be relevant.
“They have to be looked at as sort of different ends of the balancing scale,” she said.
“On the one side of the scale, there is the interest — a very important interest — in making sure that complainants are given a voice.
“But then, on the other hand, it is still crucial to afford individuals the right to procedural fairness.”
Vijaykumar said often, individuals in a public or prominent role are asked to take an administrative leave or suspended while an investigation plays out but are not formally removed from the role at that time.
She added she’ll be watching carefully to see what information the government provides in their legal response to Fortin’s application to the court, and whether that sheds more light on the timeline of the investigation and how the decision to remove him was actually made.
Lia Moody, managing partner at the Vancouver office of Samfiru Tumarkin LLP, also specializes in employment law and said the question of the timeline of the investigation could be important.
“The application that has been brought seems to indicate a suggestion that the decision was made not because of some conclusion being reached in an investigation, but for optics,” she said.
“If that’s the case, then I do think that there are some live issues of procedural fairness there.”
Moody said the burden of proving the removal was justified is on the government in this case and that if Fortin was removed based only on the existence of an allegation, that could be “legally problematic.”
At the same time, she said the case raises “thorny” questions.
“This is part of a national reckoning where we are encouraging individuals to come forward, encouraging people to believe survivors of sexual harassment, and so I think it’s tricky to do anything other than bring forward some form of disciplinary measure against the individual who’s accused of it,” she said.
“In this particular setting, the optics for somebody who is in a senior, public-facing role could be enough to constitute a reason to terminate.”
—With a file from The Canadian Press.