Background
Marnie Camille Noel served in the Canadian Armed Forces Reserve Force from 2006 until her medical release in 2019, holding the rank of Master Corporal (also recorded as Master Sailor) at 4 Canadian Ranger Patrol Group (4 CRPG). In October 2016, the CAF posted Reserve Employment Opportunity (REO) 0-27943 for the position of Group Superintendent Clerk at 4 CRPG, requiring the rank of Sergeant. Noel, ranking two levels below Sergeant, did not apply. A second posting for the same position, REO 0-32013, was made in July 2017; this posting nominally permitted under-ranking, but Noel was screened out because qualified Sergeant-ranked candidates had applied, making under-ranking unavailable under CAF policy.
Noel filed a grievance in September 2017 under the National Defence Act, arguing the rank-based restrictions were discriminatory, arbitrary, and foreclosed her advancement. The Initial Authority denied the grievance in 2018. After referral to the Military Grievances External Review Committee (MGERC), which in February 2019 recommended denial, the Final Authority (FA) adopted MGERC’s conclusions and denied the grievance on September 26, 2024. Noel did not receive the decision until July 25, 2025—nearly eight years after filing her grievance.
Noel brought this application for judicial review, arguing the FA’s decision was unreasonable, that she was denied procedural fairness (including through reliance on undisclosed extrinsic evidence, violated legitimate expectations, and inordinate delay), and raising Charter arguments and allegations of post-grievance reprisals. The Respondent, the Attorney General of Canada, defended the decision as reasonable and procedurally fair throughout.
The Court’s Holding
Justice Blackhawk dismissed the application. On reasonableness, the Court found the FA’s decision transparent, intelligible, and justified under the Vavilov framework. With respect to REO 0-27943, Noel’s failure to apply was held determinative: she could not complain of exclusion from a competition she never entered, and under-ranking was in any event unavailable as a matter of discretion when the policy required it only where no qualified candidate at rank was available. With respect to REO 0-32013, the inclusion of under-ranking language was found to be an error in the posting, and because Sergeant-ranked candidates applied, the policy did not permit under-ranking regardless. The argument that Noel would have been selected and promoted was found to be pure speculation.
On procedural fairness, the Court rejected each ground in turn. The allegation of reliance on undisclosed extrinsic evidence was unsupported by the record. The legitimate expectations doctrine did not assist Noel because the Policy clearly stated that under-ranking was discretionary and exceptional, and no clear, unambiguous representation to the contrary was made. On delay, while the nearly eight-year gap between grievance and decision was noted, Noel failed to adduce objective evidence of significant prejudice—bare assertions of psychological distress and reputational harm were insufficient to satisfy the Abrametz test.
The Court declined to entertain the Charter arguments because they had not been raised before the IA, MGERC, or FA, and in any event Noel failed to demonstrate engagement of section 7 (economic interests do not attract that protection) or section 15(1) (rank distinctions in employment are not enumerated or analogous grounds of discrimination). Allegations of post-grievance reprisals were found to be outside the scope of the grievance and therefore not properly before the Court. Costs of $2,000 were awarded to the Respondent.
Key Takeaways
- Under CAF policy, under-ranking is discretionary and available only where no qualified candidate at the required rank is available; once a rank-qualified candidate applies, under-ranked applicants may properly be screened out.
- An applicant who does not enter a staffing competition cannot grieve their exclusion from it — failure to apply is determinative even where the posting’s rank requirement is challenged as unfair.
- Delay in a military grievance process, standing alone, does not constitute an abuse of process; the applicant must demonstrate inordinate delay causing significant prejudice supported by objective evidence, not bare assertions.
- Charter arguments not raised before any level of the internal grievance process will generally not be entertained for the first time on judicial review; and distinctions based on military rank or employment category do not constitute enumerated or analogous grounds under section 15(1).
- Allegations of post-grievance reprisals that were never included in or added to the original grievance fall outside the scope of judicial review of the grievance decision.
Why It Matters
This decision reinforces the highly deferential posture courts take toward military grievance decisions under the Vavilov reasonableness standard, and it clarifies the interplay between discretionary under-ranking policies and the procedural rights of lower-ranked CAF members in competitive staffing processes. For reserve force members, the case underscores the importance of actually applying to a competition—even when the outcome seems unlikely—before any grievance of exclusion can be meaningfully pursued.
More broadly, the ruling reaffirms that delay in military administrative proceedings, however prolonged, will not ground relief absent concrete, evidenced prejudice, and that Charter arguments must be raised at the earliest opportunity within the internal process or risk being shut out entirely. Counsel advising CAF members on career-related grievances should note both the stringent evidentiary requirements for abuse-of-process claims and the Court’s unwillingness to treat rank as a proxy for protected grounds of discrimination under section 15.