Fortin's lawyers fight bid to toss his lawsuit over removal from vaccine post

OTTAWA -

Maj.-Gen. Dany Fortin's lawyers are fighting a federal attempt to quash their client's lawsuit over his removal as head of Canada's vaccine distribution campaign.

In a newly filed Federal Court submission, they say the government's motion to toss out his case has no merit.

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's lawyers allege the decision to remove him was unreasonable, lacked procedural fairness and involved Liberal government interference in the military chain of command. They are asking the court to reinstate him in his old role or an equivalent position.

In arguments filed with the court Friday, Fortin's counsel say acting chief of the defence staff Wayne Eyre, recently promoted to general, was succinct in relaying the news to their client: It's a "fait accompli," he told Fortin.

The evidence points to the inescapable conclusion that the decision to remove Fortin was made by the ministers of health, national defence, the prime minister and the Privy Council clerk, the submission says.

However, under the military chain of command, the decision should have been made by Eyre alone, it contends.

The decision-makers prevented Eyre from doing so, which constituted "improper political interference in the military chain of command," the submission says.

"Regardless of who made the decision, it is objectively unreasonable and cannot stand."

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.

Federal lawyers argue Fortin's application for judicial review is premature because the grievance process established under the National Defence Act and the Queen's Regulations and Orders for the Canadian Forces provide an adequate alternative remedy.

Fortin's lawyers disagree.

"The grievance process is not an adequate alternative remedy in this case," they argue.

"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, the submission adds.

This report by The Canadian Press was first published Sept. 3, 2021.