Federal lawyers argue Maj.-Gen. Dany Fortin’s lawsuit over his removal as head of Canada’s vaccine distribution campaign is now moot because the job no longer exists.
In a newly filed Federal Court submission, government lawyers say that since it is no longer possible for Fortin to be returned to the vaccine post, there’s no reason for the court to review the matter.
The Department of National Defence announced in a terse statement on May 14 that Fortin was stepping down from his position at the Public Health Agency of Canada, which he had held since November.
Military police referred his case to the Quebec prosecutor’s office five days later.
Fortin was formally charged in Gatineau, Que., on Aug. 18 with one count of sexual assault dating back to 1988. He has denied any wrongdoing.
Global News has been at the forefront with its coverage on the Canadian military’s sexual misconduct crisis.
Fortin’s lawyers allege the decision to remove him from the vaccine post was unreasonable, lacked procedural fairness and involved Liberal government interference in the military chain of command.
The federal submission filed late Friday says the role Fortin played in the vaccine effort was always intended to be temporary in nature and “no longer exists.”
Furthermore, the Public Health Agency is not filling the job because all responsibilities of the position “have been taken over by others in the Public Service.”
Federal lawyers also argue Fortin has failed to exhaust the remedies available to him through the military grievance process and, in any event, the decision to cancel his temporary posting “was reasonable and fair.”
“The vaccine rollout was critical to the public health of Canadians and no loss of public confidence in the uniformed leader of the vaccine rollout could be tolerated during the COVID-19 global pandemic,” the government submission says.
Acting chief of the defence staff Wayne Eyre, recently promoted to general, considered all relevant factors, including the risk to workplace safety, Fortin’s strong desire to continue in his role and the historical nature of the allegation against him, the filing says.
“Another factor was the risk of loss of public confidence in the vaccine rollout if a sexual assault allegation against (Fortin) were to emerge. At a certain point, that risk became too great.”
In arguments filed with the court earlier this month, Fortin’s counsel said Eyre was succinct in relaying news of the removal to their client: It’s a “fait accompli,” he told Fortin.
The evidence points to the inescapable conclusion that the decision to remove the veteran military officer was made by the ministers of health, national defence, the prime minister and the Privy Council clerk, Fortin’s lawyers say.
However, under the military chain of command, the decision should have been made by Eyre alone, they argue.
The decision-makers prevented Eyre from doing so, which constituted “improper political interference in the military chain of command,” Fortin’s submission says.
“Regardless of who made the decision, it is objectively unreasonable and cannot stand.”
Fortin’s lawyers also disagree that a grievance is the proper avenue of recourse.
“The grievance process will be a meaningless exercise because the Canadian Armed Forces did not make the decision in question, cannot make a decision in relation to it, and cannot provide an effective remedy.”
In addition, the grievance process will be time-consuming and slow because of systemic delays, Fortin’s counsel say.
The federal filing says there is no dispute that Eyre consulted and received input from other government officials regarding the effect of the Fortin matter on the whole-of-government response to the COVID-19 vaccine rollout.
“The impact of those consultations and even arguments that they amounted to interference or a failure to make the decision, are all matters that can be examined in the grievance process.”