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Maj.-Gen. Dany Fortin leaves Gatineau's police station after being processed on Aug. 18, 2021.Justin Tang/The Canadian Press

Major-General Dany Fortin’s bid to be reinstated as the leader of the federal government’s vaccine rollout – while still facing a charge of sexual assault – has been quashed by the Federal Court.

The case was dismissed based on a question of procedure rather than on the substance of the arguments put forward by Maj.-Gen. Fortin’s legal team, which accused the government of political interference in the decision to remove him from his post. In Justice Ann Marie McDonald’s Tuesday decision, she agreed with the government’s arguments and said Maj.-Gen. Fortin should have first challenged his dismissal from the vaccine distribution campaign using the internal grievance process for the Canadian Armed Forces.

“As Maj.-Gen. 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,” Justice McDonald said in her written decision.

In a short statement, the Department of National Defence said it is reviewing the court’s decision and had no further comment. Natalia Rodriguez, a partner at Conway Litigation and one of Maj.-Gen. Fortin’s lawyers, said they are disappointed by the decision and are weighing their next steps, including but not limited to an appeal or filing an internal Canadian Armed Forces grievance – which she said they believe is not appropriate because of the alleged role that cabinet played in his removal.

Maj.-Gen. Fortin challenged his dismissal in court after the Department of National Defence and the Canadian Armed Forces announced in a brief statement on May 14 that he left his position “pending the results of a military investigation.” Military police referred a complaint against him to the Quebec prosecutor’s office, and in August he was charged with one count of sexual assault, which he said he would “vigorously” defend himself against.

In a sworn affidavit, provided to The Globe and Mail, Maj.-Gen. Fortin said he was informed by a military police investigator on April 19 that he was being investigated for one instance of sexual misconduct that was “alleged to have occurred more than 30 years ago.”

Justice McDonald’s decision follows a two-day hearing in September in which Maj.-Gen. Fortin’s lawyers and the government’s disputed who had made the final decision to remove the senior military officer from his high-profile post and the reason for the decision.

Maj.-Gen. Fortin’s legal team argued before Justice McDonald that Prime Minister Justin Trudeau and members of his government secretly decided to have him turfed from his temporary position at the Public Health Agency of Canada for political reasons.

In the sworn affidavit, Maj.-Gen. Fortin said then PHAC president Iain Stewart told him on May 13 that Health Minister Patty Hajdu and Defence Minister Harjit Sajjan “wanted to remove me” from the job. That evening, Maj.-Gen. Fortin said, acting chief of the defence staff General Wayne Eyre told him “the ‘political calculus’ had changed and that the [Privy Council Office] had said I would have to be removed.”

His legal team argued the government’s actions constituted inappropriate political interference in the military’s internal affairs and violated Maj.-Gen. Fortin’s rights to due process, presumption of innocence and privacy; consequently, he should be reinstated as head of the vaccine rollout campaign or to a similar post.

Those concerns, though, weren’t enough to justify skipping the military’s internal grievance process, Justice McDonald decided.

“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 Maj.-Gen. Fortin to bypass the grievance process and seek a preliminary remedy in this Court,” Justice McDonald wrote.

Government lawyers had asked Justice McDonald to throw out the lawsuit because they maintained Gen. Eyre made the decision in the interests of the vaccine rollout and a police investigation into Maj.-Gen. Fortin’s conduct – and that if he wasn’t happy with the move, he should have raised that issue internally with the military, rather than the courts.

“It is unfortunate that the court did not address the merits of Maj.-Gen. Fortin’s case,” Ms. Rodriguez told The Globe. “Our position continues to be that the military grievance process cannot quash a decision made outside of the military chain of command and that it lacks authority over the ministers who made the decision to remove Maj.-Gen. Fortin from his secondment.”

The decision from Justice McDonald makes it less likely Maj.-Gen. Fortin could be reinstated to his post leading the vaccine rollout before the secondment to the Public Health Agency of Canada expires in October, Ms. Rodriguez said.

“It would seem like that ship has sailed, but stranger things have happened, I don’t know,” Ms. Rodriguez said, adding that the government or armed forces could reverse his dismissal.

Maj.-Gen. Fortin was not reassigned after his dismissal from PHAC and Ms. Rodriguez said he has been “effectively relieved of the performance of military duty” but he was not afforded the proper process for such a move.

With reports from The Canadian Press

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