# 2014-031 - Class A Reserve Service, Loss of Pension Benefit Upon Transfer to the Supplementary Reserve, Pension...

Case Summary

F&R Date: 2014–08–22

The grievor signed her release documentation, including a form in which she elected to transfer from the Primary Reserve to the Supplementary Reserve (Supp Res). In doing so, she was unaware that she would be unable to receive her pension benefits for a period of 12 months or until released from the Supp Res.

Upon becoming aware, the grievor released from the Supp Res and began to receive her pension, but not before she lost approximately $4,500.00 in pension benefits while enrolled in the Supp Res. The grievor sought to be compensated $4,500 for her loss.

The Initial Authority (IA), the Acting Chief of Military Personnel (CMP), denied the grievance, explaining that Release Clerks in Reserve units do not have authority to provide pension advice, and that the grievor had the responsibility to read and understand what she was signing. The IA also stated that a release date cannot be approved retroactively, therefore, the grievor's release date cannot be changed.

The Committee first found that there were numerous problems with the administration of the grievor's release that were outside of her control, and that although she was proactive in seeking information about her impending retirement, she was unable to secure accurate information. For example, she was given incorrect information by the unit Chief Clerk concerning the consequences of transferring to the Supp Res. The Chief Clerk could have confirmed the answer or sought information from the Pension Office, but failed to do so. The Committee therefore rejected the IA assertion that the grievor was solely responsible for her predicament because she failed to read and understand the consequences of signing the Release Form.

The Committee took the view that the grievor had the right to rely on the Chief Clerk's advice and counsel. Further, the grievor had approximately 15 minutes to go through the process which was not a reasonable amount of time to carefully read these important documents or to obtain further advice prior to being rushed into signing them.

Finally, the Committee also noted that the delay in the Chief Clerk sending the release documents for processing after having rushed the grievor into signing them also harmed the grievor, since it delayed her realization that her pension payments would not commence for 12 months.

The Committee found that the grievor ultimately acted on erroneous release advice provided by the unit Clerks, and that the Canadian Armed Forces (CAF) and the Minister of National Defence must assume responsibility for CAF individuals in positions of trust who offer advice that is subsequently relied upon by CAF members to their detriment. The Committee concluded that the CAF cannot, as a responsible and reputable “employer”, turn a blind eye to its obligations towards members such as the grievor when they are negatively affected by acting on such incorrect information, regardless of who the CAF considered to be the official pension administrator.

The Committee noted that the Chief of the Defence Staff (CDS) has held in a previous decision [Committee File no. 2011-072, CAF File no. 5080-1-09-N-52883] that it is unfair for CAF members to be held accountable for mistakes when relying on the advice of specialized CAF experts.

The Committee observed that the exercise of the Minister's authority under section 92 of the Canadian Forces Superannuation Act (CFSA) to correct the error would be entirely appropriate in this case and recommended that the CDS ask the Minister to do so.

Finally, in the event that no remedial action under the CFSA is taken by the Minister, the Committee recommended that the CDS authorize an ex gratia payment to the grievor to compensate for the pension payments she did not receive. This would restore her to the position she would have been in had she not received erroneous information from the Chief Clerk.

CDS Decision Summary

CDS Decision Date: 2016–05–16

The CDS did not agree with the Committee's findings and recommendations. The CDS found that the grievor's loss of pension was mostly due to an inattention on her part for not reading the documentation provided in the form and by relying on the information given by the Chief Clerk. Therefore, the CDS found that the grievor's transfer to the Supp Res could not be cancelled and that her release date could not be amended. Therefore, an ex gratia payment was neither possible nor to be considered in this case. The CDS agreed with the Committee's systemic recommendation that the release form be amended to place the relevant clause at the beginning of the form and that it be formatted to capture the reader's attention.