Fortin's lawyers cite Hajdu interview comment in legal fight over his firing

Maj.-Gen. Dany Fortin’s lawyers are citing Health Minister Patty Hajdu’s statements during a television interview in May in their fight to prove their client’s removal as head of Canada’s vaccine distribution campaign constituted improper political interference.

The interview on CTV’s “Question Period” aired on May 30, two weeks after Fortin was abruptly removed from his high-profile but temporary position at the Public Health Agency of Canada because of a military police investigation.

According to a transcript filed in Federal Court, Hajdu told interviewer Evan Solomon that she first learned of an investigation involving Fortin in March and agreed with PHAC president Iain Stewart’s decision to remove him in May.

“I was alerted to a further development in May and at that time agreed with the president that Maj.-Gen. Dany Fortin should be relieved of his duties with the Public Health Agency,” Hajdu said.

She later added: “As I found out more about the next steps, that's when I asked president Stewart to look into it more closely. And president Stewart advised me that he was asking Maj.-Gen. Dany Fortin to step aside, and I agreed with that decision.”

Fortin’s lawyers have been arguing that only acting defence chief Gen. Wayne Eyre had the power under the National Defence Act to remove their client from his position given that he was still a serving member of the Canadian military while working at PHAC.

They allege the decision to remove Fortin was unreasonable, lacked procedural fairness and involved Liberal government interference in the military chain of command, and are asking the court to reinstate him into his old role or an equivalent position.

The Department of National Defence announced in a terse statement on May 14 that Fortin was stepping down from his position at PHAC, which he had held since November. Military police referred his case to the Quebec prosecutor’s office five days later.

The government did not say at that time who decided to remove him. Defence Minister Harjit Sajjan would only say at the time that Eyre “has advised me that Maj.-Gen. Fortin has stepped aside.”

Fortin, a veteran of Afghanistan who more recently commanded a NATO training mission in Iraq, was formally charged in Gatineau, Que., on Aug. 18 with one count of sexual assault dating back to 1988. He has denied any wrongdoing.

His lawyers are now asking the court for permission to file Hajdu’s comments as evidence to back up their case and force the government to produce more documents on who made the decision to remove Fortin.

“The comments of the minister of health confirm her involvement in the decision to remove Maj.-Gen. Fortin from his secondment at PHAC. They confirm Mr. Stewart’s involvement,” lawyer Thomas Conway wrote to the court on Aug. 25.

Conway added that Hajdu’s comments support Fortin’s sworn affidavit stating the decision was not made by Eyre, and contradict previous assertions by government lawyers that the acting defence chief was “the sole decision-maker.”

Hajdu’s office did not dispute the minister’s involvement and instead indicated in a statement on Tuesday that she and Stewart were solely responsible for Fortin’s removal from his position overseeing the vaccine distribution campaign.

“In May, in discussion with the president of the Public Health Agency of Canada, it was agreed that Maj.-Gen. Fortin would be relieved of his duty as the vice-president of logistics and operations at the Public Health Agency of Canada as the matter was going to be referred to the director of public and criminal prosecution,” spokesman Andrew MacKendrick said in an email.

“At no time did Minister Hajdu speak with the acting chief of defence about this matter. … Additionally, to confirm for clarity, decisions regarding personnel at the Public Health Agency of Canada are under the responsibility of the agency’s president.”

An affidavit filed with the court from a senior military officer indicated Fortin remained under the military’s authority while seconded to the health agency to lead the vaccine rollout.

“At all times, Maj.-Gen. Fortin remained a member of the CAF under military command, as is customary when CAF members are assigned to organizations outside of the CAF either in Canada or abroad,” reads Brig.-Gen. Paul Prevost’s affidavit dated Aug. 12.

“As a CAF member, Maj.-Gen. Fortin's service continued at all times to be administered by the CAF,” Prevost added, noting Fortin’s most recent performance report, which included his time with PHAC, was completed by a senior officer and signed by Eyre.

A separate affidavit from the director general of human resources at PHAC, Daryl Gauthier, dated the same day indicated Fortin never formally worked for the health agency.

“I have reviewed staffing records and confirm that at no time was Maj.-Gen. Fortin an employee of PHAC nor was he seconded to PHAC pursuant to a formal secondment agreement,” reads Gauthier’s affidavit.

“Although he was publicly referred to as the vice-president operations and logistics (announced by the prime minister in late November 2020) he never formally occupied that position within PHAC.”

Hajdu’s spokesman declined further comment when asked about the affidavits, noting the matter is before the courts.

“I would again indicate that personnel matters with PHAC would fall under the responsibility of the agency’s president, as would CAF personnel matters fall under the responsibility of the (acting) chief of defence staff,” MacKendrick said.

The government has until Sept. 17 to respond to Fortin’s lawyers, with a court date scheduled for Sept. 28.

This report by The Canadian Press was first published Aug. 31, 2021.