eBULLETIN - July 2017
Contents
See our Case Summaries List or Systemic Recommendations for further information about recent and past MGERC cases.
Highlights
Dental Work Prior to Medical Release (case no. 2015-169)
The grievor argued that he did not receive prompt and fair dental treatment and that the Canadian Armed Forces should have completed all of the dental work that was started prior to his medical release. The grievor also complained that he was not given more time to complete his dental treatment plan prior to release.
Kitchen Appliances as Capital Improvement Expenditures (case no. 2016-144)
The grievor requested that the appliances he replaced as part of the kitchen modernization project be considered as capital improvement expenditures. The initial authority explained that a fridge and a stove could not be considered as such given that they are not permanently affixed to the house.
Helicopter Pilot Training (case no. 2016-208)
The grievor contested the decision to cease his Helicopter Pilot Training. The grievor claimed that his ability to meet the required standard and continue training was adversely affected by poor flight and instructor continuity, a new and untested training plan, and a missed review flight that resulted in reduced practice time.
Case Summaries
Dental Work Prior to Medical Release
Committee Findings and Recommendations
The grievor argued that he did not receive prompt and fair dental treatment and that the Canadian Armed Forces (CAF) should have completed all of the dental work that was started prior to his medical release. The grievor also complained that he was not given more time to complete his dental treatment plan prior to release.
The initial authority (IA) denied the grievance, pointing out that the dental treatment provided to the grievor was limited by his dental phobia and by his active dental disease. The IA explained that the grievor was not entitled to receive comprehensive dental care post release and that his treatment plan was delayed as a result of the grievor's dental condition and the availability of dental specialists to do the work. The IA concluded that the grievor was advised on multiple occasions that he would be responsible for the completion of any treatment started but not completed at the time of his release.
The Committee found that the grievor was twice offered a period of retention which would have afforded him additional time to complete his dental treatment. He refused both offers. The Committee noted that the grievor's medical release was ultimately delayed by eight months to better facilitate his transition to civilian life [he was deemed “severely ill/injured with complex transition needs”
]. The Committee concluded that the grievor's release date was administered correctly, that the grievor was not entitled to comprehensive dental treatment after his release, and that he received a reasonable standard of dental care.
Final Authority Decision
The Chief of the Defence Staff agreed with the Committee's findings and recommendation that the grievance be denied.
Kitchen Appliances as Capital Improvement Expenditures
Committee Findings and Recommendations
The grievor requested that the appliances he replaced as part of the kitchen modernization project be considered as capital improvement (CI) expenditures. The grievor submitted that the intent behind article 8.2.10 of the Canadian Forces Integrated Relocation Program (CFIRP) is to include anything and everything that could need to be replaced in order to completely modernize a kitchen and which remains with the house when it is sold.
The initial authority explained that while the CFIRP does not explicitly detail what is included as a CI eligible for reimbursement, the examples provided in the article imply that the items should be permanent structural improvements that increase the property's overall value and useful life, and therefore, a fridge and a stove could not be considered as such given that they are not permanently affixed to the house.
The Committee noted that, according to article 8.2.10 of the CFIRP: “The following is an all-inclusive list of eligible capital improvements: … Complete modernization – kitchen (new cupboards, countertops, sink, taps, etc.)”
. In order to determine if the grievor's stove and refrigerator could be considered CI like the cupboards, countertops and sink, it was therefore important to interpret the generic term “etc.”
of that article.
The Committee applied the three conditions of the ejusdem generis (limited class) interpretation rule and examined other sections of the CFIRP, and took into consideration the intent of the policy.
The Committee found that the grievor's appliances could not be considered CI as they were not part of an identifiable class inferred from the identified items (new cupboards, countertops, sink, taps). In other words, they would have had to be fixed or have a permanent structural condition. Considering the appliances CI would render the list of items meaningless, as one could argue that anything, from custom made blinds to a special coffee maker, could be regarded as a complete modernization of the kitchen.
The Committee recommended that the grievance be denied.
Final Authority Decision
The final authority agreed with the Committee's findings and recommendation that the grievance be denied. He concurred that the term “etc”
in the policy includes other items than those listed, but only if they are affixed or part of a permanent structure. He noted that items such as a refrigerator and stove can be removed at the time of sale and therefore should be classified as household effects, not capital improvements.
Helicopter Pilot Training
Committee Findings and Recommendations
The grievor contested the decision to cease his Helicopter Pilot Training. The grievor claimed that his ability to meet the required standard and continue training was adversely affected by poor flight and instructor continuity, a new and untested training plan (TP), and a missed review flight that resulted in reduced practice time.
The Commandant (Cmdt) of 3 Canadian Forces Flying Training School stated that there was no evidence that the lack of flight continuity or of instructor consistency contributed to the grievor's deficiencies, as the instructor continuity complained of was in the early phase of training where the grievor had no difficulties, and any gaps in flight continuity were overcome with review trips. The Cmdt also disagreed that TP 3.3 was detrimental to the grievor's training and stated that the new TP provided both more overall hours and more consistent training than the previous TP. The Director of Air Force Training found that the grievor had been given every opportunity to succeed and noted that the grievor's deficiencies were well documented and his inconsistent flying behaviour was not trainable within the “building block approach”
used in Royal Canadian Air Force Pilot Training.
The Committee found that the information in the grievance file did not demonstrate, on a balance of probabilities, that the grievor's ability to meet the standard was adversely affected by a lack of flight and instructor continuity. Neither was it negatively impacted by a lack of review flights or the introduction of a new TP.
Rather, the Committee found that the grievor encountered difficulties in his training that were primarily attributable to his own deficiencies rather than external factors. Accordingly, the Committee concluded that the grievor had failed to achieve the required standard within the allocated time and therefore the decision to cease the grievor's Helicopter Pilot Training was justified and policy compliant.
Final Authority Decision
The Commander Royal Canadian Air Force, acting as the final authority, agreed with the Committee's findings and recommendation that the grievance be denied.
Statistics
| Categories of grievances | 2015 | 2016 | 2017 |
|---|---|---|---|
| Careers | 21% | 33% | 42% |
| Harassment | 4% | 5% | 5% |
| Medical and Dental Care | 2% | 1% | 3% |
| Other | 6% | 6% | 6% |
| Pay and Benefits | 61% | 47% | 35% |
| Releases | 6% | 8% | 8% |
Note: Totals may not add to 100% due to rounding.
| MGERC F&R | Aggrieved | Not Aggrieved | |||
|---|---|---|---|---|---|
| Recommend No Remedy | Recommend Remedy | Recommend No Remedy | Recommend Remedy | Recommend Grievance Be Denied | |
| Releases | 0 | 1 | 0 | 0 | 3 |
| Pay and Benefits | 0 | 8 | 1 | 0 | 9 |
| Others | 0 | 2 | 0 | 0 | 0 |
| Medical and Dental Care | 0 | 1 | 0 | 1 | 2 |
| Harassment | 0 | 0 | 0 | 0 | 1 |
| Careers | 2 | 21 | 0 | 0 | 19 |
| CDS agrees with Committee's F&R | CDS disagrees with Committee's F&R | CDS partially agrees with Committee's F&R | Withdrawn at CDS level | |
|---|---|---|---|---|
| 68% | 12% | 13% | 7% |
Note: Totals may not add to 100% due to rounding.
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