Federal Court Justice Ann Marie McDonald issued the ruling on Tuesday, siding with federal government lawyers who had argued that Fortin’s application for a judicial review of his removal from the role should be struck down, and the military’s grievance process used by him instead.
“It is clear that the issues raised in the application are service-related matters and the allegations of political interference are not ‘exceptional circumstances’ that would allow MGen Fortin to bypass the grievance process and seek a preliminary remedy in this Court,” McDonald ruled.
“Accordingly, as MGen Fortin has not yet availed himself of the CAF grievance process on these issues, the Court will not consider the merits of his application as it has been brought prematurely.”
Fortin’s legal team and government lawyers argued for two days in September about the case, which lays out allegations that Fortin was removed from his high-profile post at the Public Health Agency of Canada in May because of what his lawyers call “political interference.”
Fortin’s lawyers allege he was denied the right to due process, the presumption of innocence, and privacy, and have demanded he be reinstated as head of the vaccine rollout, or put in a similar post.
Government lawyers in turn asked McDonald to throw out Fortin’s lawsuit.
They maintained that acting defence chief Gen. Wayne Eyre made the decision to remove Fortin in the interests of the vaccine rollout effort and a police investigation into Fortin’s conduct.
And they said that if he wasn’t happy with the move, he should have taken it up with the military.
McDonald noted in her ruling that while any findings through the grievance process are not binding on the chief of the defence staff — meaning Eyre would not be forced to reinstate Fortin as a result of any potential findings — any decision Eyre might make after that process plays out is what would be eligible for review in the Federal Court.
One of Fortin’s lawyers, Natalia Rodriguez with Conway Litigation, said both Fortin and his legal team are “disappointed” in the decision but did not say what they plan to do next.
“He remains steadfast in his position. This decision has not deterred him in that respect,” she said of Fortin’s view that he was not given procedural fairness in his removal from the role.
“There are different considerations here and so we have yet to see what we will do about it. But I would say, stay tuned. I don’t know that this is the end of the road for Maj.-Gen. Fortin. I could be wrong, but it seems to me that this story has not been fully written yet, and there is more to come.”
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 of looking the other way that experts say has allowed it to flourish.
The Federal Court decision is separate from the battle that Fortin is fighting in criminal court after Quebec police charged him last month with one count of sexual assault in relation to an alleged incident dating back to 1988 that was initially investigated by military police.
That case is due back in a Quebec court on Nov. 5.
With files from The Canadian Press.