OTTAWA — Maj.-Gen. Dany Fortin's battle for reinstatement as head of Canada's COVID-19 vaccine distribution campaign can go on now that the Federal Court of Appeal has agreed to consider his case.
Government lawyers had asked the Appeal Court to quash Fortin’s case after the senior military officer’s legal team appealed a Federal Court ruling in October that rejected his request for reinstatement to the vaccine rollout effort, or a similar position.
Appeal Court Justice Anne Mactavish instead cleared the way for Fortin's case to move ahead, saying in a decision released Friday that the government’s request should be handled by the same three-judge panel that will hear his appeal.
“I am satisfied that, in these circumstances, it is preferable that the merits of the (government’s) motion to quash be determined by the panel hearing the appeal,” Mactavish wrote in her decision.
While a date has not been set, Fortin’s lawyer Natalia Rodriguez said she expects the appeal to be heard in the spring. Fortin's legal team is asking the case be sent back to the Federal Court for a different judge to hear.
“This means Maj.-Gen. Fortin’s appeal will be heard and the panel hearing the appeal may consider the arguments in the (government’s) motion in making its decision,” Rodriguez said of Mactavish’s decision.
Fortin has been fighting for reinstatement since he was abruptly removed from his post at the Public Health Agency of Canada in May 2021, five days before military police announced they had referred an investigation of alleged sexual misconduct to Quebec's prosecution service.
The senior military officer, who previously commanded a NATO training mission in Iraq before being assigned in November 2020 to lead the vaccine rollout effort, was formally charged with one count of sexual assault in August.
The case, which relates to an alleged incident dating from 1988, is due back in Quebec court Jan. 24.
Fortin has maintained his innocence and, in challenging his removal in Federal Court, accused Prime Minister Justin Trudeau and other senior members of the Liberal government of having turfed him from the vaccine campaign for purely political reasons.
During two days of court hearings in September, Fortin's legal team argued that the military's grievance system was the wrong venue for deciding whether his removal was appropriate, given the political nature of the decision.
His lawyers also raised concerns about the military grievance system, citing a recent review by retired Supreme Court justice Morris Fish that found long delays and ultimately described the entire system as "broken" and in need of urgent reforms.
But McDonald rejected those arguments in October, writing: "In my view, the high-profile nature of Maj.-Gen. Fortin's position and the allegations of political interference are not exceptional circumstances that allow him to bypass the internal grievance process."
As for concerns about the grievance system, McDonald noted then-acting defence chief Gen. Wayne Eyre, who has since been appointed to that position, had instituted new orders to address the problems identified in Fish's report, adding any concerns about unnecessary delays were "purely speculative."
Fortin’s legal team subsequently filed a notice of appeal in October, arguing McDonald erred in her ruling on several grounds and asking that the Appeal Court send the matter back to the a different Federal Court judge.
In asking the Appeal Court to reject the case, government lawyers argued the issue was “moot” as the position Fortin held with the vaccine campaign no longer exists. They also say he is currently serving in a position suitable for his rank.
Fortin’s lawyers have in turn argued their client, who is listed as serving in a temporary position as a senior adviser to the commander of the Canadian Joint Operations Command, has not been ordered to do anything for the military — including report to work — since last May.
This report by The Canadian Press was first published Jan. 10, 2022.
Lee Berthiaume, The Canadian Press
