Maj.-Gen. Dany Fortin is challenging the federal government's decision to publicly terminate his secondment to lead Canada's vaccine rollout, arguing the process was unfair and tainted by politics.
Last month, the Department of National Defence issued a terse three-line statement on a Friday night saying that Fortin would be leaving his post with the Public Health Agency of Canada (PHAC) and his future would be decided by the acting chief of the defence staff.
Fortin's legal team argues the decision to publicly announce Fortin was leaving the vaccine rollout during a military police investigation was made for political purposes.
"The decision was arbitrary, not in the public interest and made solely for the personal and political gain of the Ministers of Health and National Defence and the Prime Minister," says a document filed in court today by Fortin's legal team.
The legal document calls on the federal government to give Fortin his old job back or find him another position suitable to his rank.
Fortin's lawyers filed an application today for a judicial review of his removal from his PHAC post.
According to the court application, Fortin learned on April 19 from a Canadian Forces National Investigative Service (CFNIS) investigator that CFNIS was looking into one allegation of sexual misconduct against him — about a month after being told by the acting chief of the defence staff that he was under investigation. The alleged incident was said to have occurred more than 30 years ago, the court document says.
The complainant didn't want to make the allegations public, according to the document.
The document says Fortin was assured in March by PHAC president Iain Stewart that the "investigation would run its course and that this would pass," that he was "entitled to due process" and that he was "presumed innocent."
He also warned Fortin that the health minister's office and the Prime Minister's Office could decide suddenly he would have to leave his post and told him to "keep [his] bags packed."
On May 12, according to the document, Fortin received another call from Stewart telling him the situation had changed and that the ministers of health and national defence wanted to remove him.
It is Fortin's understanding that the decision to terminate his secondment was made by the both ministers with "the collaboration" of the Prime Minister's Office and the Privy Council Office, according to the document.
That claim contradicts what Prime Minister Justin Trudeau said at a news conference last month.
"This is not an investigation out of my office or out of the privy council office." said Trudeau on May 18. "It's being handled by military leadership and the appropriate authorities."
At the time, Trudeau said he had highlighted his desire for the investigation to be "fair, complete and rigorous."
CBC News has requested comment from the PMO and the offices of Defence Minister Harjit Sajjan and Health Minister Patty Hajdu. Sajjan was grilled more than once during parliamentary committee hearings probing sexual misconduct in the military in the month before Fortin's removal.
"As this is an ongoing legal matter, it would be inappropriate for us to comment at this time," said Sajjan's press secretary Daniel Minden in a statement to CBC News. DND issued a similar statement declining to comment.
The document says Fortin met with acting Chief of the Defence Staff Lt.-Gen. Wayne Eyre on May 13. At that meeting, the document says, Eyre told Fortin the "political calculus" had changed and that the Prime Minister's Office had said he would have to be removed.
"[Eyre] stated that a statement would be released to the public regarding his departure; this was not negotiable," says the document, which added that the statement made it appear that Fortin had decided to step down on his own.
'Quash the decision'
The application for a judicial review argues that "Fortin was denied procedural fairness in the lead-up to the decision, which the respondents knew or ought to have known would have grave consequences on his life, reputation and career.
"The decision-maker(s) failed to give him an opportunity to be heard on why he should not be removed from his position at PHAC and not reassigned."
Fortin's legal team argued that "as a result of the unreasonableness of the decision" and "significant breaches of" Fortin's procedural fairness and right to privacy, the military should quash its decision to remove him from the PHAC post.
"Since the termination of his secondment, MGen Fortin has been without assignment at the CAF and has, de facto, been relieved from performance of military duty," reads the notice of application filed in court today.
Fortin first learned of investigation in March
On March 17, 2021 Fortin met with Eyre and was informed about an investigation by the Canadian Forces Investigation Service against him over sexual misconduct, but was not given any information about the allegation at the time, according to the court document.
The document details concerns about how the news leaked out.
On April 9, says the document, Fortin received a "call from his deputy who told him he had received a call from one of his subordinates."
"That subordinate had learned from a military police Sergeant that MGen Fortin was under investigation," says the document. "That Sergeant had learned of the investigations from a friend who was an investigator with the CFNIS."
Fortin then called Eyre's chief of staff "to express his displeasure that CFNIS was not ensuring the confidentiality of the investigation," says the court document.
The chief of staff promised to investigate the leak but it's not clear whether that happened or if the source was ever identified, the document says.
Fortin's legal team argues that the government's public statements on the matter "made it clear" that he was "under investigation for improper conduct, and it could easily be surmised that the improper conduct was sexual in nature."
A branch of the military police referred the matter last month to a Crown official to decide whether criminal charges should be laid.