Maj.-Gen. Fortin in court demanding reinstatement as head of vaccine rollout

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.

Hislegal defence made its arguments Tuesday during the start of a two-day virtual hearing, whichFortin 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 hehas not been given a newassignment andappears to have been bypassed for promotion since he wasremoved 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 assignedto aposition as senior adviser forCommander 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'slegal team argued the decision to publicly announce thatFortinwas leaving the vaccinerolloutduring a military policeinvestigation was made for personal and political gain by Prime Minister Justin Trudeau,Health MinisterPatty Hajdu, DefenceMinisterHarjit Sajjanand theclerk of the Privy Council.

The Department of National Defencepublicly 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 withan incident alleged to have takenplace in 1988. The case was transferred to civilian courtbecause, at the timethe allegation was made, the military did not have jurisdiction oversexual 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 askedthe federal court today to review the decision to remove himfrom his secondment without reassignment and to publicly announce that the investigation was thereason for his removal.

That secondment was to officially expireon Oct. 31but has beenwound down alreadydue to theaccelerated vaccination rollout. The federal government's lawyers argue Fortin's claim is now moot because the job no longer exists.

Fortin's lawyers, meanwhile,arguethe claim is still validbecause 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 theDefence StaffGen.Wayne Eyrewas the one who had the proper authority to remove Fortin from his secondment. His lawyers also claimEyre wasn't able to make thatdecision due to political interference.

During the virtual hearing, one of Fortin's lawyersplayed a clip of Hajduon CTVspeaking to host Evan Solomon after Fortin's removal from his secondment.

In that clip, Hajdu saidthat 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 thatHajdu and Stewart were involved.

"It does implicate the minister in the decision that was made," hesaid.

The federal government'slawyers 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 isbefore 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 aboutjurisdiction.

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 dealwith 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 noexceptional circumstance in this case.

"The applicant cannot simply bypass that scheme and come to this court."

Conway, disagreed and arguedthat the military's grievance process is plagued bydelays 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 againstMaj.-Gen Dany Fortin

Trudeau reacts to allegations against former head of Canada's COVID-19 vaccine distribution project

3 years ago

Duration 1:39

Prime Minister Justin Trudeau says he has not been given a lot of details about the allegations against Maj.-Gen. Dany Fortin, former head of Canada's COVID-19 vaccine distribution effort.

'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, whichis scheduled to wrap up tomorrow.

The criminal case against Fortin is scheduled to resume in court on Nov. 5.