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DAOD 7004-1, Claims and Ex gratia Procedures

Table of Contents

  1. Introduction
  2. Definitions
  3. Reporting of an Incident
  4. Investigation of an Incident
  5. Resolution of a Claim
  6. Recovery and Disciplinary Action
  7. Visiting Forces Act and NATO Claims
  8. Special Cases
  9. References

1. Introduction

Date of Issue: 2003-10-17

Application: This is a directive that applies to employees of the Department of National Defence (DND) and an order that applies to officers and non-commissioned members of the Canadian Armed Forces (CAF members).

Supersession:

Approval Authority: This DAOD is issued under the authority of the Department of National Defence/Canadian Forces Legal Advisor (DND/CF LA).

Enquiries: Director, Claims and Civil Litigation (DCCL) or the nearest representative of the Judge Advocate General (JAG).

2. Definitions

claims (réclamations)

Claims include requests for compensation to cover losses, expenditures or damages sustained by the Crown or a claimant, including requests or suggestions that the Crown make an ex gratia payment.

Claims do not include claims made under other governing instruments or policies, for example:

Crown servant (fonctionnaire de l'État)

Crown servant has the same meaning as set out in the Treasury Board Policy on Claims and Ex gratia Payments made by the Treasury Board. DND employees and CAF members are Crown servants. Persons engaged under contracts for services are not Crown servants.

Ex gratia payment (paiement à titre gracieux)

Ex gratia payment means a benevolent payment made to anyone in the public interest by the Crown under the authority of the Governor in Council for loss or expenditure incurred for which there is no legal liability on the part of the Crown.

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3. Reporting of an Incident

When to Report

3.1 If an incident related to DND or the CAF occurs which may result in a claim by or against the Crown, the commanding officer (CO) whose personnel or materiel are involved in the incident shall forward a report in accordance with this DAOD to DCCL or the nearest regional JAG representative.

Note - The requirement to report under this DAOD does not take the place of any other requirement under QR&O, other DAODs or CFAOs to report to higher headquarters in the event of an incident.

Motor Vehicle Accidents

3.2 Motor vehicle accidents shall be reported in accordance with the procedures set out in A-LM-158-005/AG-001, Transportation Manual, Mobile Support Equipment, Chapter 7, Volume 4, Annexes M and N, using forms DND 423, Driver's Report of Accident, and DND 424, MSE Accident Report.

Serious Injury or Death

3.3 For incidents that might lead to claims by or against the Crown that involve serious injury or death, including motor vehicle accidents, the CO shall notify, within 48 hours:

  1. DCCL; and
  2. the Assistant Judge Advocate General (AJAG) of the region where the incident occurred, including AJAG Europe if applicable.

What to Report

3.4 The following information shall be included in the report of an incident:

  1. name and address of persons involved;
  2. date and time of incident;
  3. precise location;
  4. brief statement of damage and/or injury, and approximate damage estimate;
  5. brief statement of particulars of incident;
  6. police agency involved if any; and
  7. recommended mode of investigation, or if a board of inquiry (BOI) or a summary investigation (SI) has already commenced for other service-related reasons, a statement to that effect.

4. Investigation of an Incident

Commencing Investigation

4.1 Upon becoming aware of an incident which could lead to a claim, the officer in command of a unit or other element shall contact DCCL or the regional AJAG at the earliest opportunity to discuss whether an investigation is required and what level of investigation is appropriate. Before the investigation commences, the following shall be reviewed and provisions incorporated as necessary in the terms of reference of the investigation:

  1. QR&O Chapter 21, Section 4, Claims By and Against the Crown;
  2. Policy on Claims and Ex gratia Payments, Treasury Board;
  3. CFAO 24-6, Investigation of Injuries or Death; and
  4. DAOD 7002 series.

4.2 Investigations for claims purposes may take place apart from any other investigation required by regulations or orders made under the National Defence Act.

Copy of Report to DCCL and Regional AJAG

4.3 If a BOI or SI is investigating an incident that may lead to a claim, the CO shall forward one copy of the investigation report to the regional AJAG and one copy to DCCL.

Solicitor-Client Privilege

4.4 Unless otherwise specified, investigations for claims purposes shall be conducted in contemplation of litigation and therefore their contents are protected by solicitor-client privilege. This shall be assured to the greatest extent possible by including in the terms of reference of the BOI or SI the following statement:

"This investigation is being conducted for claims purposes in contemplation of litigation and its contents are protected by solicitor-client privilege."

Required Information

4.5 All investigations of claims against the Crown should include, as appropriate, copies of:

  1. any reports, including witness statements, made to the police or made by the police in connection with the incident; and
  2. form DND 424, MSE Accident Report.

4.6 The following information is required in the assessment of a claim if it is not included in the police report or form DND 424, MSE Accident Report:

  1. a full statement of the duties of any Crown servant involved;
  2. if Crown property is involved, detailed information relating to its use and the authority for such use;
  3. names, addresses, phone numbers and statements from Crown servants and other persons having any knowledge of the circumstances;
  4. a description of the incident and such plans, sketches or photographs as may be necessary to understand the exact nature of the incident;
  5. description of third party vehicles involved in a motor vehicle accident, including:
    1. licence number, province and year of licence;
    2. make, model and year of vehicle;
    3. name, address and permit number of drivers;
    4. name, address and telephone number of vehicle owners;
    5. brief description of damage; and
    6. name of insurance company, policy number and agent if known;
  6. the nature and extent of any injuries reported;
  7. copies of any medical, dental or hospital bills;
  8. a medical certificate confirming that the claimant was unable to work during the period in question and, if the claimant was employed at the time of the incident, a statement from the claimant's employer detailing weekly or daily rate of pay and the actual time lost; and
  9. any further information and documents as may be required for a legal opinion.

Damage to Property

4.7 If a claim is for damage to property, the following information is required:

  1. invoices or receipts indicating the actual cost of repair or replacement of the property, or estimates to support such a claim;
  2. the date of purchase of the property;
  3. original purchase price; and
  4. a statement indicating whether the property was insured and, if so, the amount recovered.

General Damages

4.8 A claim may be made against the Crown for pain and suffering or general damages arising from permanent or partial disability. In such a case, DCCL or the nearest regional AJAG may request, with the authorization of the claimant, that a statement from a qualified medical practitioner be provided to establish the particulars of the nature and extent of the disability. The statement should be provided at the expense of the claimant.

4.9 A statement should also be obtained from the claimant or the claimant's solicitor indicating the amount of the damages claimed.

Loss of Property

4.10 If a claim is for the loss of use of property, the following information is required:

  1. the nature of the claimant's use of the property;
  2. if the property was used to make a living, the average net gain per day using the property;
  3. the number of days the claimant was denied the use of the property and the reasons for the denial of use;
  4. if replacement property was hired, the cost of that rental or hiring supported by receipts or vouchers; and
  5. if a vehicle was involved, the number of days during which the vehicle was held in a garage undergoing repairs.

Underwriters Adjustment Bureau Ltd

4.11 The Governor in Council has granted authority to have incidents that may give rise to claims by or against the Crown in Canada investigated by the Underwriters Adjustment Bureau Ltd (UAB).

4.12 Only DCCL may request the services of the UAB.

5. Resolution of a Claim

Legal Opinion for a Claim By or Against the Crown

5.1 If a claim has been reported and investigated, DCCL or the regional AJAG, in accordance with the authorities prescribed in DAOD 7004-0, Claims By or Against the Crown and Ex gratia Payments, shall provide a legal opinion addressing:

  1. the liability, if any, of the Crown and any Crown servants, and that of any individuals or corporations potentially subject to a claim by the Crown;
  2. the steps, if any, that should be taken to resolve the claim, taking into account the cost-effectiveness of any such steps; and
  3. the terms and conditions on which it would be advisable to resolve the claim.

Approval or Denial of Claim

5.2 A decision is made to approve payment or deny the claim in accordance with the applicable criteria in the Policy on Claims and Ex gratia Payments.

Interim Payments

5.3 In appropriate circumstances, as determined by DCCL, interim payments may be made to a claimant pending the final resolution of a claim. This should only be considered if the legal opinion clearly establishes Crown liability.

Indemnification of Crown Servants

5.4 Under the Policy on Indemnification of and Legal Assistance for Crown Servants, Crown servants are indemnified against personal civil liability incurred by reason of an act or omission. Provided the Crown servant has met the criteria set out in the Policy, the Crown makes no claim against that Crown servant who may be personally liable.

5.5 Pursuant to the designation made by the Deputy Minister, DCCL shall determine if a Crown servant involved in an incident may be indemnified in accordance with the Policy. All requests for indemnification of a Crown servant shall be forwarded to DCCL.

5.6 Nothing above affects any obligation of a Crown servant in respect of the care, custody or control of money, or the application of QR&O Chapter 38, Liability for Public and Non-Public Property.

Claim against a Crown Servant - Demand for Payment

5.7 Following a determination that a claim against a Crown servant should proceed, a demand for payment shall be made.

5.8 If the Crown servant fails to provide payment as demanded, a determination shall be made if legal authority exists to permit the amount claimed to be recovered from any money that may be due or payable by the Crown to the Crown servant.

5.9 If legal authority exists, the applicable delegated authority shall:

  1. notify the Crown servant of the proposed recovery and of the Crown servant's right to make representation; and
  2. consider the Crown servant's representation, if any, before making a final decision.

Applicable Delegated Authority

5.10 The applicable delegated authority for recovery from any money due or payable by the Crown to a DND employee is the Civilian Personnel Officer (CPO). In the case of a CAF member, the applicable delegated authority is the Directorate Accounts Processing, Pay and Pensions (DAPPP).

Release by the Crown

5.11 In accordance with DAOD 7004-0, Claims By or Against the Crown and Ex gratia Payments, DCCL or the regional AJAG may sign a release as a condition of payment being made to resolve a claim by the Crown.

Release by Claimant

5.12 A release shall normally be obtained from a claimant in consideration of payment being made to settle a liability claim. For ex gratia payments a release is not normally required.

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6. Recovery and Disciplinary Action

Recovery Action

6.1 Recovery action may be taken against a CAF member pursuant to QR&O Chapter 38, Liability for Public and Non-Public Property.

6.2 Unit authorities shall consult DCCL or the nearest regional JAG representative prior to any recovery action being taken under Chapter 38.

Disciplinary Action

6.3 Proposed or ordered recovery action does not prejudice disciplinary action against the Crown servant concerned.

7. Visiting Forces Act and NATO Claims

Interpretation

7.1 The terms "civilian component", "receiving state" and "sending state" have the same meaning in this DAOD as prescribed in Article I of the NATO Status of Forces Agreement. The term "visiting force" has the same meaning in this DAOD as prescribed in section 2 of the Visiting Forces Act.

Claims against Visiting Forces in Canada

7.2 Under Part III of the Visiting Forces Act, claims arising out of the activities of certain visiting forces in Canada are dealt with in the same way as claims that result from activities of the CAF in Canada.

7.3 Incidents which arise out of the activities of a visiting force, and which may result in claims against the Crown, should be investigated by the authorities of that visiting force and reported to the nearest CAF unit and to DCCL. COs of CAF units shall provide such assistance as may be required.

Claims Involving NATO Countries outside of Canada

7.4 Under the NATO Status of Forces Agreement, the receiving state deals with claims against the sending state that result from activities of the sending state in the receiving state in the same way as the receiving state deals with claims arising out of the activities of its own forces.

7.5 If a DND employee who is a member of the civilian component or a CAF member is involved in an incident in a receiving state which may give rise to a claim against Canada as the sending state, the incident shall be immediately reported to:

  1. AJAG Europe, Geilenkirchen, Germany for incidents that occur in NATO countries other than Canada or the United States (US);
  2. DCCL for incidents in the US; and
  3. the supervisor of the DND employee or the CO of the CAF member.

7.6 In the US the claim should be sent to the nearest US military installation.

7.7 All investigations by Canada of claims involving NATO countries shall be reported and investigated as prescribed by this DAOD.

8. Special Cases

Per Quod Claims

8.1 If a CAF member is injured or killed due to the deliberate conduct or the negligence of another person, the Crown may be able to recover medical expenses, pay received by the member while disabled and burial expenses where applicable from the responsible party. This is known as a "per quod servitium amisit" claim. The Crown has such a claim even if the member is injured or killed while not performing military duties.

8.2 Per quod claims are only permitted if the incident occurred in the province of Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, or Newfoundland and Labrador.

8.3 If the Crown may have a per quod claim, the CO shall provide to DCCL or the nearest regional JAG representative, as requested, the following:

  1. the monthly rate of pay and allowances of the CAF member from the date of injury to the date of return to duty, release or death, as applicable;
  2. the inclusive dates of all periods spent by a CAF member in hospital, on sick leave or absent from duty, including half days off duty, that are attributable to the injury;
  3. particulars of any medical or dental expenses incurred other than in a hospital in treating the injured CAF member; and
  4. receipts, forms and other documents detailing the expenses incurred by the Crown in treating the injured CAF member in a CAF or civilian hospital.

Drivers of the Canadian Corps of Commissionaires

8.4 The National Master Standing Offer (the "Offer") between the Crown and the Corps of Commissionaires sets out the responsibilities of the parties with respect to claims in the provision of Commissionaire services to the Crown.

8.5 Under the Offer, the Corps is responsible to indemnify the Crown for third party claims for damages, losses, costs and expenses relating to the injury or death of any person, or to property, arising from the performance of services supplied to the Crown.

8.6 Under the Offer, a Commissionaire may be required to operate a motor vehicle owned by the Crown. In such instances, the Crown is responsible for the damages if the Commissionaire:

  1. was granted authority to operate CAF vehicles;
  2. used the motor vehicle for the purposes of performing the work;
  3. was a qualified driver;
  4. had a clear driving record;
  5. did not wilfully or deliberately damage the vehicle; and
  6. obtained written authorization from the client representative and did not use the motor vehicle without justification.

8.7 A Commissionaire using a DND vehicle outside the requirements of the Offer between the Corps and the Crown, such as making personal or other use of the vehicle, shall be personally liable for all damages sustained during any such unauthorized use.

Non-Public Property Claims

8.8 Incidents arising which involve non-public property (NPP) as defined in section 2 of the National Defence Act, and which may result in claims by or against the Crown, shall be reported to:

  1. DCCL or the nearest regional JAG representative; and
  2. Non-Public Funds, Canadian Forces Personnel Support Agency (CFPSA), National Defence Headquarters.

9. References

Acts, Regulations, Central Agency Policies and Policy DAOD

Other References

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