Maj.-Gen. Fortin in court demanding reinstatement as head of vaccine rollout
Federal government says the role no longer exists
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 tied to an alleged incident decades ago and subsequently charged.
His legal defence made its arguments Tuesday during the start of a two-day virtual hearing, which Fortin attended with his camera off.
Fortin's lawyers argued that he was unfairly removed from his post due to political meddling, and if his former position is not available, he should be given another role that reflects his rank.
His legal team said that he has not been given a new assignment and appears to have been bypassed for promotion since he was removed from his position with the Public Health Agency of Canada.
"To remove an officer from an assignment and not reassign him is precisely the meaning of relief from performance of military duty," said Natalia Rodriguez, one of Fortin's lawyers. "This is akin to a suspension or a leave of absence."
The Department of National Defence confirmed to CBC News that Fortin was temporarily assigned to a position as senior adviser for Commander Canadian Joint Operations Command at headquarters in Ottawa.
On Wednesday, the federal government's lawyers argued the case is "clearly moot" because Fortin already has what he's asking for.
Lawyer Elizabeth Richards presented documents in court that she argued showed Fortin returned to a position matching the military rank he held before his posting with the vaccine task force. But Fortin's team said that role doesn't match his rank and that he hasn't been given any work to do.
"He may not be happy with the position he's in, but ... he's already in a position that matches his rank," said Richards.
Fortin's lawyers allege political meddling
Fortin's legal team 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. The case was transferred to civilian court because, at the time the allegation was made, the military did not have jurisdiction over sexual assault claims in the ranks.
Fortin denies the allegation and has said he's been living through a "nightmare."
While the criminal matter is adjourned until November, Fortin's legal team asked the federal court today to review the decision to remove him 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 lawyers, meanwhile, argue 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.
Fortin's legal team argues that Acting Chief of the Defence Staff Gen. Wayne Eyre was the one who had the proper authority to remove Fortin from his secondment. His lawyers also claim Eyre wasn't able to make that decision due to political interference.
During the virtual hearing, one of Fortin's lawyers played a clip of Hajdu on CTV speaking to host Evan Solomon after Fortin's removal from his secondment.
In that clip, Hajdu said that she was made aware of an issue regarding Fortin in March and was assured there was a process in place to manage the allegations. Hajdu said she was then told of a further development in May and "agreed" with the president of the Public Health Agency of Canada, Iain Stewart, that Fortin "should be relieved of his duties with the Public Health Agency."
Fortin's lawyer Thomas Conway argued that Hadju's comment clearly shows Eyre did not make the decision to remove him and that Hajdu and Stewart were involved.
"It does implicate the minister in the decision that was made," he said.
The federal government's lawyers argued Wednesday that the acting chief of defence staff is the one who made the decision to remove Fortin from his post at the Public Health Agency of Canada.
Hajdu's office said because the case is before the courts, there will be no additional comment at this time.
Federal government says military should handle the case
The case has also 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. 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 Conway.
WATCH: Trudeau reacts to allegations against Maj.-Gen Dany Fortin
'It was an extraordinary thing to do'
Conway 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 Conway. "Something that surely would not be condoned by the chain of command."
Conway 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.
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