An appeal by Maj.-Gen. Dany Fortin concerning a bid to have himself reinstated as the head of Canada's vaccine rollout task force will go ahead, after a Federal Court of Appeal judge adjourned a government motion to quash it.
The government, represented by the attorney general, had sought to cut short Fortin's appeal, arguing it was "moot" — that the role he once held no longer exists.
The Federal Court of Canada ruled in October of last year that Fortin should use the military grievance process to make his case, but his legal team appealed the ruling later that month.
Fortin's legal team has argued that the military grievance process is the wrong venue because of how long it takes for cases to be resolved. CBC News reported last month that some military members have waited almost a decade to have the defence department process their grievances.
Fortin was removed as head of the vaccine task force in May 2021, and days later military police referred an investigation around sexual assault allegations to the Quebec prosecution service. He was formally charged in August with one count of sexual assault that relates to an alleged incident in 1988.
Fortin maintains he is innocent. The criminal case will be back in court Jan. 24.
Case to go ahead sometime in spring, lawyer says
The separate case concerning his reinstatement to the task force role, or something equivalent, is likely to move forward to a panel hearing sometime this spring, according to his lawyer, Natalia Rodriguez. Rodriguez called the government's motion "pointless" given the Federal Court of Appeal could have considered the idea the appeal was moot during their decision on its merits.
Ruling on the government's attempt to dismiss the appeal, Federal Court of Appeal Justice Anne Mactavish chose to adjourn the motion, meaning the appeal's merits with be heard by a hearing panel. The panel hearing the appeal can still consider the question of mootness in coming to its decision.
Fortin argues that he was in effect relieved of his duties in May 2021 and has not been reassigned to a position commensurate with his rank, nor has he been asked to report to work or produce any sort of work product. He also contends that his removal was due to political interference.
"This application is not just about the personal interest of Maj.-Gen. Fortin," Rodriguez said in September, when the application was first argued in court. "This application also raises serious question about improper interference in the military chain of command by political actors."
Government lawyers countered that while politicians' views were taken into consideration, the decision to remove Fortin belonged to then-acting chief of the defence staff Gen. Wayne Eyre. Eyre is now the permanent chief of the defence staff.