Maj.-Gen. Dany Fortin is appealing the Federal Court ruling that directed him to take concerns to the military grievance system over his removal as head of the COVID-19 vaccine rollout earlier this year.
Fortin’s legal team filed a notice of appeal on Friday, arguing the Federal Court justice made “numerous and grave legal errors” in her decision to strike the case, effectively siding with government lawyers.
Federal Court Justice Ann Marie McDonald ruled on Oct. 12 that Fortin’s allegations saying he was denied due process and that political interference played a role in his removal were service-related matters and as such, the military’s grievance process should be his first venue for a complaint.
“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 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.
In the notice of appeal, his legal team argues McDonald erred in eight aspects of her ruling, which said Fortin’s allegation of political interference did not meet the threshold of “exceptional circumstances” to warrant circumventing the military grievance process.
Fortin’s lawyers say because they allege there was external political interference in the decision to remove him, which came amid a military police investigation into an allegation of sexual misconduct, the case should not need to go through the military grievance process.
Government lawyers want McDonald to throw out Fortin’s lawsuit.
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 in August with one count of sexual assault in relation to an alleged incident dating back to 1988 that was investigated by military police and then referred to civilian prosecutors.
That case is due back in a Quebec court on Nov. 5.