Maj.-Gen Dany Fortin is fighting in Federal Court to get back his old job as head of Canada’s vaccine task force — even though the government says the role no longer exists.
Fortin was removed from the high-profile post after he was accused of sexual assault and subsequently charged.
Fortin’s legal defence made its arguments today during the start of a two-day virtual hearing, which Fortin attended with his camera off. His lawyer argued that if his former position is not available, he should be given another role that reflects his rank.
His lawyer Thomas Conway said that Fortin has not been given a new assignment and appears to have been bypassed for promotion since he was removed from the secondment. He said Fortin believes his career may be over.
Conway argued the decision to publicly announce that Fortin was leaving the vaccine rollout during a military police investigation was made for personal and political gain by Prime Minister Justin Trudeau, Health Minister Patty Hajdu, Defence Minister Harjit Sajjan and the clerk of the Privy Council.
The Department of National Defence publicly announced in May that Fortin was leaving his secondment with the Public Health Agency of Canada during a military police investigation into a sexual misconduct allegation.
Quebec prosecutors charged Fortin in August with one count of sexual assault in connection with an incident alleged to have taken place in 1988. Fortin denies the allegation and has said he’s been living through a “nightmare.”
While the criminal matter is adjourned until November, the separate legal battle at the Federal Court turns on an allegation of political interference in the decision to remove him from his federal government secondment.
Fortin’s legal team is asking the federal court to review the decision to remove Fortin from his secondment without reassignment and to publicly announce that the investigation was the reason for his removal.
That secondment was to officially expire on Oct. 31 but has been wound down already due to the accelerated vaccination rollout. The federal government’s lawyers argue Fortin’s claim is now moot because the job no longer exists.
Fortin’s lawyer, meanwhile, argues the claim is still valid because there is no proof before the court that the position has been eliminated and Fortin’s replacement, Brig.-Gen. Krista Brodie, is no longer in the role.
Federal government says military should handle the case
The case has opened up arguments about jurisdiction.
Federal government lawyers argued this morning that Fortin was never dismissed from his role in the military and continues to serve as a member. Lawyer Elizabeth Richards argued that the military’s grievance process is the proper venue to deal with the matter and is asking the judge to throw out the case.
“The military grievance process is an adequate alternative remedy that must be exhausted before military members can come before this court, except in very rare exceptional circumstances,” said Richards, adding that there is no exceptional circumstance in this case.
“The applicant cannot simply bypass that scheme and come to this court.”
Conway, disagreed and argued that the military’s grievance process is plagued by delays that would end up protecting the cabinet-level decision-makers involved.
“It would effectively protect the ministers from the political decision that they made in this case and there would be no effective remedy for Maj.-Gen. Fortin,” said Thomas.
WATCH: Trudeau reacts to allegations against Maj.-Gen Dany Fortin
‘It was an extraordinary thing to do’
Thomas argued that Fortin’s case is time sensitive and “publicly terminating” him had “huge repercussions not only for his military career, but for his reputation as a leader in the Armed Forces.”
“It was an extraordinary thing to do,” said Thomas. “Something that surely would not be condoned by the chain of command.”
Thomas argued that because the damage was public, it should be addressed in public.
Both Fortin and the federal government have said they would be seeking costs and want to deal with that matter at the end of the hearing, which is scheduled to wrap up tomorrow.
The criminal case against Fortin is scheduled to resume in court on Nov. 5.