Aiming High: 2011 Annual Report

Table of Contents

• Message from the Chairperson
• The Canadian Forces Grievance Board
  • The Grievance Context
  • Board Structure
  • The Grievance Process
• The Year in Review
  • Supporting Improvements to the Grievance Process
    • “Principled Approach” Pilot Project
    • The Second Independent Review of Bill C-25
    • National Defence Act Amendments
  • Advancing the Board’s Strategic Priorities
    • Sustained Operational Efficiency
    • Communications Activities
  • Responding to Government Priorities
    • Measures Affecting CFGB’s Operating Budget
    • Strategic Investment
    • Stewardship of Resources
  • Operational Statistics
    • A Timely Review
    • An Independent Review
    • Key Results
    • Annual Workload
    • “Principled Approach” Initial Results
• Selected Case Summaries
• Recommendations on Systemic Issues
• Significant Federal Court Decisions
• 2011 Findings and Recommendations
  • Glossary
• Recommendations to Justice Lesage
• Annexes
  • Logic Model
  • Financial Table
• Board Members and Staff
• Contact Us

Message from the Chairperson

I am pleased to submit the Canadian Forces Grievance Board’s Annual Report for 2011.

The Board faced a shifting environment in 2011, primarily because of government wide efforts to control spending and reduce the deficit and the implementation, on a trial basis, of a new approach for the referral of grievances to the Board.

We have positioned ourselves to respond to these challenges by consolidating business processes and realigning our resources.

I am extremely satisfied with the preliminary results of the "principled approach" trial which began in January 2011. As you will see later in the pages of this report, these results clearly demonstrate that the Board has the capacity and expertise to provide an independent and timely review of all types of grievances. Although I was disappointed by the decision of the Canadian Forces (CF) to put the trial on hold in October, it is reassuring to know that the Armed Forces Council also indicated that the trial would recommence in 2012. I look forward to the resumption and ultimate adoption of the "principled approach" model, so that the benefits of an external review are available to all CF members whose grievances reach the Final Authority (FA) level, as well as to the Chief of the Defence Staff (CDS).

I am also gratified to see that both the significance of the Board’s role in the grievance process and the quality of our work were highlighted in a series of Federal Court decisions released in 2011. These decisions, outlined in some detail in this report, affirmed the obligation of the CDS, as the FA, to specifically address the Board’s findings and recommendations (F&R) when issuing his or her reasons for a decision. There was, as well, an important finding by the Federal Court that, when the CDS agrees with the Board’s F&Rs, he/she need only signify concurrence without further reasons. This potentially may result in the significant saving of time and resources for the CDS.

The Board responded to the Government of Canada’s Budget 2011 cost containment measures. The Budget required all departments to conduct a strategic and operational review with the aim of contributing to the reduction of the federal deficit. We began a process to revise business processes and invest in technology to realize savings. Notwithstanding reduced resources, our productivity continues to improve and the quality of our work remains undiminished.

The Board has ended 2011 well positioned to face the challenges that we will be confronted with in 2012. In these times of uncertainty arising from a transformed work environment and reduced financial resources, we will continue to focus on our primary mission, contribute to positive change and position our organization for success. For this, I rely on the extraordinarily dedicated and talented staff and members of the Board whose enthusiasm and professionalism have served the organization so well in the past and will continue, I am certain, to characterize our work for many years to come.

Bruno Hamel
Chairperson

The Canadian Forces Grievance Board

Mission

The Canadian Forces Grievance Board provides an independent and external review of military grievances. In doing so, the Board strengthens confidence in, and adds to the fairness of, the Canadian Forces grievance process.

Mandate

The Canadian Forces Grievance Board is an independent administrative tribunal reporting to Parliament through the Minister of National Defence.

The Canadian Forces Grievance Board reviews military grievances referred to it pursuant to section 29 of the National Defence Act and provides findings and recommendations to the Chief of the Defence Staff and the member who submitted the grievance.

The Grievance Context

Section 29 of the National Defence Act (NDA) provides a statutory right for an officer or a non-commissioned member who has been aggrieved, to grieve a decision, an act or an omission in the administration of the affairs of the Canadian Forces (CF). The importance of this broad right cannot be overstated since it is, with certain narrow exceptions, the only formal complaint process available to CF members.

Since it began operations, in 2000, the Canadian Forces Grievance Board (CFGB) has acted as the external and independent component of the CF grievance process.

The Board reviews all military grievances referred to it by the Chief of the Defence Staff (CDS), as stipulated in the NDA and article 7.12 of the Queen's Regulations and Orders for the Canadian Forces (QR&Os). Following its review, the Board submits its findings and recommendations (F&R) to the CDS, at the same time forwarding a copy to the grievor; the CDS is the final decision-maker. The CDS is not bound by the Board's report, but must provide reasons, in writing, in any case where the Board's F&R are not accepted. The Board also has the obligation to deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.

The types of grievances that must be referred to the Board are those involving administrative actions resulting in deductions from pay and allowances, reversion to a lower rank or release from the CF; application or interpretation of certain CF policies, including those relating to conflict of interest, harassment or racist conduct; pay, allowances and other financial benefits; and entitlement to medical care or dental treatment.

The CDS must also refer to the Board grievances concerning a decision or an act of the CDS in respect of a particular officer or non-commissioned member. Furthermore, the CDS has discretion to refer any other grievance to the Board.

Board Structure

The Board consists of Governor in Council (GIC) appointees who, alone or in panel, are responsible for reviewing grievances and issuing F&R.

Under the NDA, the GIC must appoint a full-time Chair, at least one full-time Vice-Chair, and one part-time Vice-Chair. In addition, the GIC may appoint any other full or part-time members the Board may require to carry out its functions. Appointments may be for up to four years and may be renewed.

Grievance officers, team leaders and legal counsel work directly with Board members to provide analyses and legal opinions on a wide range of issues. The responsibilities of the Board's internal services include administrative services, strategic planning, performance evaluation and reporting, human resources, finance, information management and information technology, and communications.

The Grievance Process

The CF grievance process consists of two levels and begins with the grievor's Commanding Officer (CO).

Level I: Review by the Initial Authority (IA)

• Step 1: The grievor submits a grievance in writing to his or her CO.
  
• Step 2: The CO acts as the IA if he or she can grant the redress sought. If not, the CO forwards the grievance to the senior officer responsible for dealing with the subject matter. Should the grievance relate to a personal action or decision of an officer who would otherwise be the IA, the grievance is forwarded directly to the next superior officer who is able to act as IA.
  
• Step 3: The IA renders a decision, and if the grievor is satisfied, the grievance process ends.

Level II: Review by the Final Authority (FA)

Grievors who are dissatisfied with the IA's decision are entitled to have their grievance reviewed by the FA, which is the CDS or his/her delegate.

• Step 1: The grievor submits his or her grievance to the CDS for FA level consideration and determination.
  
• Step 2: Depending on the subject matter of the grievance, the CDS may be obligated to, or may, in his or her discretion, refer it to the Board. If the grievance is referred for consideration, the Board conducts a review and provides its F&R to the CDS and the grievor. Ultimately, the FA makes the final decision on the grievance.

The Year in Review

In 2011, the Canadian Forces Grievance Board faced challenges arising from two major factors: the government wide efforts to restrict growth in spending and reduce the deficit; and the implementation, on a trial basis, of a new approach to grievance referral to the Board aimed at improving the fairness and transparency of the CF grievance process.

In response to these challenges, the Board reviewed and consolidated its business processes, realigned its resources to adapt to the grievance referral trial and initiated or took part in several internal and external initiatives aimed at contributing to the improvement of the grievance process. All the while, the Board remained focused on its priorities of ensuring maximum operational efficiency, reducing costs and maintaining exemplary management practices.

The Board closed 2011 with many positive and permanent accomplishments, and with the resolve to continue achieving the best possible results in operations and internal services.

Supporting Improvements to the Grievance Process

“Principled Approach” Pilot Project

In January 2011, the Board commenced a six month trial of a new approach for the referral of grievances, which had been approved by the Armed Forces Council, the senior executive body of the CF. Under this “principled approach,” the CF would refer to the Board all unresolved grievances that reach the FA level. Currently, the Board’s review is limited to only four types of grievances, which represent approximately 40% of the total number of grievances that reach the FA level.

An additional 53 files were referred to the Board under this new approach and the results were extremely encouraging: in 54% of the 50 cases received and completed in 2011, the Board’s F&Rs differed from that set out in the CF position. By examining these cases, which belong to types of grievances usually excluded from the Board’s review, the CFGB provided both the grievors and the FA with the benefits of an external opinion. These positive results, further detailed in the Operational Statistics chapter, validate the value-added of the Board’s role as an independent review body.

Regrettably, the CF suspended the pilot project in October with the intention of resuming the trial in 2012. The Board remains committed to the “principled approach” and is ready for a full-scale implementation of this new model which has proved to be beneficial to all parties involved. The Board is hopeful that the CF will permanently adopt the “principled approach” or any similar model which allows for all CF members whose grievances reach the FA level to have equal access to an independent review of their cases.

The Second Independent Review of Bill C-25^{Footnote 1}

In 2011, the Minister of National Defence appointed the Honourable Patrick LeSage, a retired Chief Justice of the Ontario Superior Court of Justice, to conduct the Second Independent Review of Bill C-25 which included provisions related to the military grievance process and the Board. The CFGB participated in this review and submitted several recommendations to improve certain aspects of the grievance process. The Board particularly noted that restricting its review to certain types of grievances, as per the current regulations, “may be impacting negatively on the perceived fairness of the grievance process.”

The Board also offered several suggestions intended to facilitate its work and enhance its efficiency, as outlined on pages 52 and 53. The Board is hopeful that the LeSage Report, which was submitted to the Minister of National Defence at the end of 2011, will lead to improvements in the timeliness, efficiency and fairness of the grievance process.

National Defence Act Amendments

The CFGB voiced its support of several suggested improvements to the grievance process in parliamentary hearings on Bill C-41^{Footnote 2}, which included provisions related to the military grievance process, the Board’s role, and a name change for the CFGB. In February 2011, the Chairperson of the Board testified before the Standing Committee on National Defence studying Bill C-41 and renewed the Board’s support of all recommendations made by the late Chief Justice Antonio Lamer^{Footnote 3}, particularly those aimed at improving the timeliness of the grievance process. In this regard, the Chairperson noted the CFGB’s success in drastically reducing the time required to review grievances at the Board, thus contributing its part to the overall efficiency of the grievance process. Bill C-41 later died on the Order Paper, because of the federal election. It was succeeded by Bill C-15 which was tabled in October 2011.

The CFGB continues to seek the implementation of three outstanding recommendations from the Lamer report, of particular interest to the Board, which were neither included in Bill C-41, nor in its successor Bill C-15. These three recommendations would allow Board members to complete their caseload after the expiration of their term; provide the Board with a subpoena power; and establish that the Board’s annual report be based on the fiscal year rather than the calendar year. Implementing these recommendations would enhance the Board’s efficiency.

Advancing the Board’s Strategic Priorities

Sustained Operational Efficiency

In 2011, for the third year in a row, the Board succeeded in further reducing the average time required for the review of grievances. This outcome was achieved even though the Board received more files and dealt with new types of grievances referred for its review as a result of the “principled approach.” Over the course of the last three years, the average time for the review of a grievance at the Board dropped from 9.6 months to 2.6 months, as of December 31, 2011. This represents an improvement of 73% over the Board’s productivity average of 2008. It is also an improvement of 55% over the Board’s current productivity standard of an average of six months.

Another significant achievement occurred in March 2011, when the Board did not have in its inventory any active grievances referred to it before 2011 (except for one complex case which was completed in August). This represents an improvement of seven months over 2010 during which the Board completed the review of all grievances referred to it before 2010 by the end of October.

The CFGB’s sustained efficiency improvements over the last five years are the result of the Board’s regular assessment of, and subsequent adjustments to, its internal review process. A knowledgeable and relatively stable workforce has also proven to be an asset for operational efficiency. These results, as well as others related to the Board’s operations, are described in more detail in the Operational Statistics section.

In 2012, the Board plans to review its current productivity standard of an average of six months to reflect its increased efficiency.

Communications Activities

The Board’s second strategic operational priority is to communicate its role and the results of its work, as well as sharing with stakeholders the CFGB’s perspective on issues that come to its attention while reviewing grievances. The Board’s key communications activities in 2011 included the following:

• New case summaries and recommendations on systemic issues were posted on the CFGB’s Web site (www.cfgb-cgfc.gc.ca). Summaries of the last three years provide the reader with a wealth of information on the Board’s interpretation of policies and regulations, as well as on grievance issues. Recommendations on systemic issues provide information on issues affecting not only the grievor, but other CF members and for which leadership intervention may be required. In both cases, the Board also posts the decisions of the FA;
• Two editions of Perspectives, a newsletter primarily directed to CF senior officers at DND Headquarters, were published in May and in November. Through Perspectives, the Board shares with CF decision-makers valuable information about grievance trends and areas of dissatisfaction that come to its attention during the review of individual grievances. Perspectives is also available on the Board’s Web site;
• Four editions of the electronic bulletin available exclusively through the Board’s Web site were also published. The eBulletin highlights current and interesting cases recently reviewed by the Board;
• The statistics page added to the Web site in 2010 was regularly updated to provide a global overview, in graphics and numbers, of the Board’s F&Rs for cases reviewed over the past five years, as well as CDS decisions on these cases; and
• The Board visited two CF bases (Gagetown and Esquimalt) as part of its communications strategy aimed at maintaining direct communication with members of the CF in their work environment.

At the same time, the Board implemented several initiatives aimed at obtaining feedback from its various audiences, in order to ensure the effectiveness of its communications. A survey developed for base personnel attending the Board’s presentations during base visits has already yielded positive results and led to some adjustments in these presentations. A new feedback tab was also added on the Web site to collect comments from users, particularly from readers of the Board’s publications posted online. This feedback will be used to ensure the Board’s products and messages remain relevant and consistent with its communications objectives.

Responding to Government Priorities

Measures Affecting CFGB’s Operating Budget

Budget 2011 continued to build upon measures taken in Budget 2010 to return the Government of Canada (GOC) to a balanced budget. The launch of the one-year Strategic and Operating Review (SOR) moved the GOC towards balanced budgets while continuing to pay down debt and investing in the priorities of Canadians. All federal departments and agencies participated in the SOR to improve the efficiency and effectiveness of government operations and programs and to ensure value for taxpayer money.

The CFGB reviewed its operations and identified specific proposals under the SOR. The Board put in place measures to improve efficiency and realize savings through business consolidation, transforming business processes and investing in technology.

Strategic Investment

The Board successfully implemented several Information Management/Information Technology (IM/IT) projects this past year which resulted in improved alignment with federal government IM/IT standards and guidelines. One key initiative was the virtualization of the Board’s server infrastructure, which is the foundation for the development of a more efficient IT infrastructure and sets the stage for desktop virtualization and future opportunities for efficiencies and savings. The Board is now very well positioned for potential future shared services offerings, such as GCDocs and Cloud computing.

The Board also put in place a more effective way of managing information by rolling out a new desktop operating system and business software suite and by migrating the corporate network drive into the Board’s electronic records management system. This resulted in full Record Keeping compliance by managing all of the Board’s information and better meeting the Board’s internal business needs.

Stewardship of Resources

For the past few years, the Board has implemented a series of policies and processes aimed at enhancing financial governance and internal controls to ensure the integrity of its financial information. In 2011, the Board continued to ensure good stewardship and effective management of financial resources by embarking in a full scale review of its internal control processes in key areas, including financial management reporting and assets management. Measures are already in place to conduct testing of documented controls of key business processes, with the aim of validating the integrity of these processes and to ensure they are consistent with established accounting standards and policies and compliant with legislation and regulations.

As the final component of the Board’s work on IT security, an action plan in response to recommendations made in the Threat and Risk Assessment (TRA) was completed and most of these recommendations were implemented, with remaining items scheduled for completion in 2012.

As well, in 2011 the CFGB undertook an exercise aimed at ensuring its Web site is compliant with the internationally recognized Web Content Accessibility Guidelines required by Treasury Board under the updated Common Look and Feel 2.0 for the Internet standard, or CLF 2.0. This was an opportunity for the Board to rejuvenate its Web site, taking into consideration the GOC’s Open Government strategy and the importance of receiving user feedback. The Board also eliminated redundancy on the Web site and archived older documents which are not frequently accessed. Finally, new features were added including an advanced Search function. A self-assessment conducted by the Board at the end of the project in December showed complete compliance with the Web Accessibility standards.

Operational Statistics

Operational performance is a priority for the Board. It represents its ongoing contribution to the fairness and efficiency of the military grievance process and ensures the high quality and the timeliness of its F&Rs. The Board regularly assesses its internal review processes and closely monitors its production timelines, workload and planning assumptions to maintain optimum productivity and the quality of its services. This rigorous exercise allows the Board to remain agile and to quickly respond to changes in the environment.

A Timely Review

In 2011, the Board further increased its productivity bringing the average time to complete the review of grievances to 2.6 months per file, for cases received and completed in 2011. This represents a 73% improvement over the Board’s productivity average of 2008, when significant changes to the internal review processes were introduced. It also represents a 21.7% improvement over last year’s average of 3.3 months and a 55% improvement over the Board’s productivity standard of an average of six months.

Figure 1 shows the elapsed time taken on cases completed over the last five years.

Figure 1 notes

An Independent Review

As an administrative tribunal, the Board has the obligation to review every case fairly and impartially. Each file is reviewed carefully and on its own merits while taking into consideration the issues raised in the complaint, the relevant evidence and the submissions of both the grievor and the CF authorities.

Between 2007 and 2011, the Board issued F&Rs on 583 grievances of which 45.6% (266 cases) had recommendations to grant or partially grant the grievance (i.e., supported the position of the grievor). In the remaining 53.7% (313 cases), the Board recommended to deny the grievance.

Figure 2 sets out the distribution in percentage of the Board’s recommendations by year (583 F&Rs between 2007 and 2011, as of December 31, 2011).

Note: Totals may not add to 100% due to rounding.

Figure 2 notes

Key Results

In the last five years, the CDS issued decisions on 475 cases out of 583 reviewed by the Board. A total of 199 of these decisions addressed cases where the Board recommended that redress be granted or partially granted. The remaining 276 decisions addressed cases where the Board recommended that redress be denied.

In the 199 grievances where the Board recommended redress be granted or partially granted, the CDS agreed or partially agreed in 84% of the cases (168 files). For the remaining 276 grievances for which the Board recommended that redress be denied, the CDS agreed in 87% of the cases (241 files).

Figure 3 illustrates the distribution of the CDS decisions, in percentage, on each of these two categories, as of December 31, 2011.

Note: Totals may not add to 100% due to rounding.

Annual Workload

The number of cases referred to the Board increased as a result of the “principled approach” trial. In 2011, the Board received 139 files and issued 134 F&Rs. By the end of December, only 22 files received in 2011 were left in the Board’s inventory.

Completed Grievance Reviews

Figure notes

Categories of Grievances Received

Figure 4 shows the breakdown, by category, of the grievances received at the Board in the last three years (financial, general, harassment/discrimination and release). In 2011, grievances referred under the “principled approach” were classified under the general category; this accounts for the significant increase in this category compared to previous years.

Note: Totals may not add to 100% due to rounding.

CDS Decisions

In 2011, the Board received CDS decisions in response to 123 grievances. As shown in figure 5, in 80% of these cases the CDS agreed or partially agreed with the Board’s F&Rs. He disagreed with the Board in 10% of these cases. The remaining cases were either resolved or withdrawn by the grievors, after the issuance of the Board’s F&Rs.

Note: Totals may not add to 100% due to rounding.

“Principled Approach” Initial Results

Beginning in January 2011, the Board participated in the trial of the “principled approach,” a new model for grievance referral under which all grievances reaching the FA level and which were not fully granted by the CF (i.e., denied or partially granted) would be sent to the Board for review. A total of 53 cases were received by the Board under this model and the Board had completed the review of 50 of these cases by 31 December 2011.

In 54% of the completed files, the Board recommended to grant or partially grant the grievance. In other words, in 27 cases, the Board did not fully agree with the CF position. The CFGB’s independent review of those cases provided the grievors and the FA with the benefit of an external opinion. Although the FA decision has not been rendered in most of these cases, the CDS has so far agreed or partially agreed with the Board’s F&Rs in five out of the six decisions he has rendered to date in the “principled approach” files.

In the other 23 cases, the Board’s review validated the CF interpretation of policy/regulation related to the specific matters being grieved.

Another positive result was that the files referred to the Board’s review under the “principled approach” were completed within timelines similar to those reviewed under the current system.

Figure 6 sets out a comparison between the cases reviewed in the last five years, the cases reviewed in 2011 under the “principled approach” model and the cases reviewed in 2011 under the current model. As shown in this figure, the Board historically did not fully agree with the CF position in 46% of the cases reviewed since 2007. Although the 50 cases completed in 2011 under the “principled approach” represent a relatively small sample, it is worth noting that a similar trend is emerging with the new model, as the Board departed from the CF position in 54% of these cases, irrespective of the type of grievance reviewed.

Note: Totals may not add to 100% due to rounding.

Figure 6 notes

Selected Case Summaries

Remedial Measures

Following a mess dinner where he had been seen consuming alcohol, the grievor was involved in a car accident and was subsequently charged with impaired driving. The following day, the grievor apparently expressed regret for his actions to his Commanding Officer (CO) and Deputy Commanding Officer (DCO). According to his DCO, the grievor also stated that he had no recollection of driving the vehicle. Based on the fact that the grievor had been charged with impaired driving, the CO placed him on counselling and probation (C&P) for "misuse of alcohol." The grievor did not contest the C&P.

One year later when the grievor's case was heard in civilian court, he was acquitted of all charges. Based on new information that came to light during the trial, the grievor submitted his grievance suggesting that he had been improperly placed on C&P based on false assumptions and inaccurate information. He claimed that he had absolutely no recollection of the night in question (due to a concussion he suffered in the accident), and had only assumed that he had been driving intoxicated based upon the police report of the incident and what others had told him. With the new information presented, he argued there was no evidence that he was driving while impaired, and there was doubt that he was driving at all on the night in question. He also contended that the decision to place him on C&P for the incident, rather than a lesser administrative measure, was unduly harsh given his impeccable 18-year service record.

The grievor requested that the C&P be rescinded, that his annual personnel evaluation report be amended to remove all reference to the C&P and that a supplemental selection board be conducted based on the new information.

The Initial Authority (IA) denied the grievance, stating that the grievor's acquittal did not invalidate the decision to place him on C&P. He found that whether the grievor was the driver or a passenger during the car accident was ultimately caused by a serious error in judgment on the grievor's part, made after consuming alcohol, and therefore amounted to misuse of alcohol.

Board Findings and Recommendations

The Board felt that the CO appeared to have assumed that because the grievor was charged, a conclusion could be drawn about the amount of alcohol consumed, resulting in measures taken on the presumption of misuse of alcohol. The Board also agreed with the grievor that C&P seemed unduly harsh in this case, given that the CF policy suggests a progressive series of measures to be taken in cases of misuse of alcohol; these steps were not taken in the grievor's case.

The Board found that the decision to place the grievor on C&P for misuse of alcohol was unjustified and unreasonable given the circumstances of the case. The Board had also serious concerns with several of the findings of the IA.

The Board recommended that the grievance be upheld.

Chief of the Defense Staff Decision

Pending.

Education Allowance for Reservists

The grievor, a member of the Regular Force (Reg F), was a Reservist at the time she submitted a grievance contending that she was unfairly excluded from applying for the Canadian Forces Personnel Assistance Fund (CFPAF). The grievor explained that one of the reasons why she transferred to the Reg F was so that she could be eligible to apply for the Education Allowance Loan Program (EALP). She argued that the CFPAF policy was discriminatory against Reservists as they were not eligible to apply for the EALP. She further submitted that the current CFPAF policy was neither consistent with the intent of s.39 of the National Defence Act (NDA), nor with the Total Force Concept of today's CF and that, regardless of the fact that she was a Reg F member, she had been aggrieved as a Reservist. As remedy, the grievor requested a review of the eligibility criteria governing the CFPAF EALP with the intent of allowing all Reservists to apply.

The Initial Authority (IA), the Chief of Military Personnel, rejected the grievance and informed the grievor that since she was a member of the Reg F, she was eligibile for the CFPAF program and therefore her complaint was not a grievable matter. The IA also informed the grievor that a feasibility study would be undertaken to review proposals to extend the program to all Reservists.

Board's Findings and Recommendations

As for the right to grieve, the Board observed that at an early stage in the handling of the grievance, the President of the Service Income Security Insurance Plan (SISIP) Financial Services informed the grievor that the issue grieved was not one that could be addressed under the grievance process. The Board noted that this statement was incorrect. The policy can be grieved in situations where a member is directly and personally affected by a policy adopted by the CF (or one of its emanations).

The Board also noted that a policy could not be grieved in the abstract and a member not personally affected did not have standing to grieve. The Board found that when the grievor was a member of the Reserve Force (Res F), she was directly and personally affected by the CFPAF rule regarding the eligibility of reservists for the EALP. Since the grievor was aggrieved, she was entitled under s.29 of the NDA to bring forward a complaint in the form of an application for redress. The Board found that the issue grieved was valid at the time the original grievance was filed.

On the merits of the issue raised by the grievor, the Board noted that the grievor, as a Reg F member, was eligible to apply for the EALP. In view of changes in the underlying fact situation, the Board concluded that the issues presented in the grievance were moot. The Board found that the issue being grieved was no longer valid and there were no grounds upon which to recommend that the CDS exercise discretion to consider the grievance. The Board recommended that the CDS reject the grievance without deciding on the merits of any issues raised and that the grievance file be closed.

On the role of Reservists, the Board observed that regardless of the status of the Res F in 1969 when the CFPAF policy was adopted, there could be no doubt that in 2011 members of the Res F play a critical everyday role in the operations and support arms of the CF. Reservists are fighting and dying abroad, and filling key positions at every CF level in Canada. They routinely patronize Reg F messes and are, no doubt, welcome patrons at the Canadian Forces Exchange System, meaning that they contribute to the coffers of the CFPAF as do their Reg F comrades. In the Board's opinion, it would appear that the policy in question has so far ignored these realities, leaving Reservists very much in the status of "second-class citizens." The Board was pleased to hear that a feasibility study would be undertaken, with the view of offering CFPAF programs or their equivalent to all Reservists.

Chief of the Defence Staff Decision

The CDS agreed with the Board's findings and its recommendation to deny the grievance.

Transitional Post Living Differential

The grievor complained that the procedure set out by Compensation and Benefits Instructions (CBI) 205.452 - Transitional Post Living Differential (TPLD) - whereby TPLD benefits for the National Capital Region (NCR) were to be reduced to zero had not been complied with. This created a situation where he and other CF members who transferred to the NCR after 1 April 2008 received no TPLD, while other members remained entitled. He therefore requested that he receive the TPLD from the date of his posting to Ottawa. The grievor also requested proof that Treasury Board (TB) had approved the freeze of TPLD rates.

The Director General Compensation and Benefits (DGCB), acting as the Initial Authority (IA), returned the grievance without rendering a decision on its merit, pointing out that the Department of National Defence had no authority to amend a policy approved by TB.

Board's Findings and Recommendations

The Board noted that it had examined cases in the past where it had concluded that the DGCB's interpretation of paragraph 7.01(1) of the Queen's Regulations and Orders (QR&Os) - Right to Grieve - was incorrect. In any case, the Board emphasized that TB directives are not Governor in Council regulations as stipulated in QR&O 7.01(1) and, as a consequence, CF members are not prohibited from grieving policies approved by TB. The Board concluded that the IA should have considered the merits of the grievance.

The Board also concluded that the freeze on TPLD rates had been authorized by TB and that, pursuant to the policies in effect, the grievor was not entitled to TPLD. However, the Board observed that, although the freeze was reflected in the table appended to CBI 205.452, it was not properly reflected in the wording of the CBI itself. The Board found that the result of this disparity was that CBI 205.452 and its table appeared to contradict each other.

The Board recommended that the CDS deny the grievance and direct a policy review in order to either implement the transitional methodology to further reduce TPLD benefits, or return to the practice of granting this allowance as it was before the TPLD methodology was introduced.

Chief of the Defence Staff Decision

The CDS agreed with the Board that the grievance be denied.

The CDS agreed with the Board's recommendation on the application of the provisions dealing with the TPLD and has ordered the Chief Military Personnel to liaise with DGCB and TB and quickly bring into line the situations of all posted members, thereby eliminating the sense of injustice caused by the imposition of a freeze in TPLD rates.

Separation Expense

The grievor received Separation Expense (SE) benefits while on Imposed Restriction (IR). It was later determined that he had no entitlement and had been overpaid. The grievor attested to his due diligence in providing all the necessary information regarding his family situation to his superiors. He indicated that he relied on Subject Matter Experts and the approving authority that authorized his IR status.

The grievor maintained that his parents qualified as dependants because they were "normally" resident with him. He pointed out that his parents did not cease to be his dependants simply because they remained in his residence at his old place of duty, during his posting to a new place of duty.

Paragraph 209.997(2) of the Compensation and Benefits Instructions (CBI) provides the entitlement to SE. It stipulates that a CF member is entitled to SE as compensation for additional expenses as a result of the separation from his/her dependants when he/she is posted to a new place of duty. One of the conditions is that the member must have a dependant as defined in paragraph (3) of CBI 209.80, who is normally resident with him/her at his/her place of duty.

Article 209.80 of the CBI provides, in part, that a dependant is a relative by blood, marriage or common-law partnership or adoption, legally or in fact, who is normally resident with the member and for whom the member may claim a personal exemption under the Income Tax Act or, a family member who is permanently residing with the member, but who is precluded from qualifying as a dependant under the Income Tax Act because the family member receives a pension.

CANFORGEN 019/05, which was cancelled in February 2011, also mentioned a number of factors that were to be considered in approving IR. It specified that when it was determined that a move was not in the best interest of the family, a member could be authorized to proceed to his new place of duty unaccompanied.

Board's Findings and Recommendations

The grievor explained to the Board why it was in his parents' best interest to remain at his home at his old place of duty. The grievor also provided an affidavit setting out that he has been advised by the tax authorities that he is eligible to claim a personal exemption, the Caregiver Amount (line 315), under the Income Tax Act.

As a result, the Board found that the grievor's mother qualified as a dependant under subparagraph 209.80 (3) (b) of the CBI. Moreover, the Board found that, definitions aside, the affidavit makes clear the parents were "normally" residing with the grievor having done so for many years and that they were, in fact, dependant on him for shelter, food, and other necessities of life.

The Board observed that the CBI are Treasury Board regulations that must be interpreted as written, not as one may wish them to read. Accordingly, the Board found that the grievor was qualified for the SE benefits under article 209.997 of the CBI during the period of his posting.

The Board recommended that the CDS uphold the grievance by directing that any further recovery from this grievor be ceased immediately and that all monies recovered be reimbursed to the grievor.

Chief of the Defence Staff Decision

Pending.

Posting Allowance

The grievor received Enrolment/Transfer - Posting (ETP) instructions approving his component transfer from the Reserve Force (Res F) to the Regular Force (Reg F) and indicating that he was loaded on the Qualification Level three (QL3) course in Gagetown. Upon completion of his QL3 course, the grievor was posted from Gagetown to Trenton. The grievor then requested the posting allowance (PA) for his relocation.

The Relocation Adjudication Section of the Director Compensation and Benefits Administration (DCBA) denied the grievor’s request based on article 3.4.03 of the CF Integrated Relocation Program (CF IRP) 2009, stating that the PA is not payable when the posting is to the first place of duty where CF members will be employed after re-enrollment or transfer to the Reg F.

The grievor submitted a grievance arguing that his situation met the intent of the PA policy, which is to compensate for the turbulence associated with a Reg F member’s relocation. He also argued that he met the career status conditions of article 3.4.03 of the CF IRP 2009 since he had completed his QL3 course in Gagetown and had completed three years of service during his Res F service.

There was no Initial Authority (IA) decision on file as the DCBA, the IA in this matter, was unable to respond within the time limit and the grievor did not agree to grant a second 180-day extension.

Board’s Findings and Recommendations

The Board found that the grievor met the two qualifying criteria as set out in Section 3.4.03 of the CF IRP. Specifically, he was a Reg F member being posted from one place of duty to another and he had attained “career status.”

As for the reason provided by the DCBA for denying the PA to the grievor, although not fully stated as such, the Board assumed that DCBA had concluded that the grievor was not “employed” at Gagetown because he was attending QL3 training. Based on that conclusion, DCBA then determined that the grievor’s subsequent posting to Trenton was actually his first place of duty where he would be “employed.” The Board was of the view that the term “employed” is not used in the CF lexicon, nor in the National Defence Act, when speaking of CF members. The Board further found that, while training in Gagetown, the grievor received wages for his efforts and was therefore considered to be “employed” on training.

Given that the Board found that the grievor was in fact employed and performing a duty while posted to Gagetown, the Board concluded that the grievor’s subsequent posting to Trenton represented his second place of duty where he would be employed after having transferred to the Reg F. The Board concluded that the grievor was entitled to the PA for his relocation from Gagetown to Trenton.

The Board recommended that the CDS uphold the grievance and that the grievor be paid the PA for his 2010 posting to Trenton.

Chief of the Defence Staff Decision

Pending.

Recommendations on Systemic Issues

In reviewing individual grievances, the Board sometimes finds that its recommendations with respect to a policy or a regulation may affect more than one member. In these cases, the Board makes the CDS aware that a broader problem may exist by issuing one or more systemic recommendation. The following table highlights five out of 22 systemic recommendations issued by the Board in 2011. The remainder of 2011 recommendations, as well as those issued since 2009, are available on the CFGB’s Web site: www.cfgb-cgfc.gc.ca.

Allowance for Loss of Operations Allowance

Issue

During the course of its investigation concerning the denial of the Allowance for Loss of Operations Allowance (ALOA) to a grievor, the Board found that the granting of this benefit was left entirely to the discretion of the responsible Task Force Commander (TF Comd). As such, the definition of “military casualty,” which a member must meet in order to be eligible for this benefit, was subject to different interpretations depending upon the TF Comd’s point of view. In addition, there appeared to be significant discrepancies in the manner in which various offices at National Defence Headquarters were interpreting the application of this benefit. Finally, there did not appear to be any review or oversight of the decisions made regarding this benefit, nor was a TF Comd required to provide reasons for his decision to grant or deny the benefit. The Board found that the administration of the benefit lacked clear guidance, review or oversight and that action should be taken to correct these shortcomings.

Recommendation

The Board recommended that the CDS order a review of the process by which the ALOA is being administered to ensure that decisions of whether CF members meet the eligibility criteria found at CBI 205.536, including the definition of a “military casualty,” are consistent with one another and with the intent of the benefit itself. This review could include the issuance of guiding principles, the imposition of a mandatory consultation with appropriate medical authorities and/or centralizing the approving authority.

Final Authority Decision

The CDS agreed with the Board’s systemic recommendation that the process for administering ALOA be reviewed, and he directed the Director General Compensation and Benefits to conduct the review.

Loss of Benefits Due to Large Geographical Area

Issue

As a result of changes to Post Living Differential (PLD) and Transitional PLD (TPLD) policies, some CF members living in the National Capital Region (NCR), who were posted to the area before 1 April 2008, continue to receive TPLD to compensate for higher cost of living while others, posted to the NCR after 1 April 2008, do not receive the benefit. The current application of the PLD/TPLD has created a system of “haves” and “have nots.” This unfairness is not limited to the NCR. Rather, there are other TPLD areas in Canada which are affected in the same way.

Recommendation

The Board recommended that the CDS direct a review of the TPLD concept to determine whether it is to be fully implemented or if the CF will simply revert to the PLD construct as it existed prior to the policy changes which led to the current unfairness. The aim must be to restore fairness in each PLD/TPLD area by providing equal benefits to all CF personnel posted to the same areas.

Final Authority Decision

The CDS was satisfied that the Director General Compensation and Benefits was currently reviewing this issue with TB. Nonetheless, in an attempt to expedite this process, the CDS directed that the Chief of Military Personnel liaise with Treasury Board to verify the current status of TPLD, with a view to determining its future and to restore equity among those affected.

De-linking Rations and Quarters

Issue

The grievor submitted a request to de-link rations and quarters (R&Q) which was denied on the basis that he did not have access to a "full kitchen facilities" since there was no traditional stove in the barracks kitchenette area. The grievor explained that he had access to all the necessary countertop appliances to replace a traditional stove. The evidence on file suggested that all requests for de-linking from CF members were being denied on the basis that cooking in the barracks could lead to safety, hygiene and health concerns.

Canadian Forces Administrative Order 36–14 - Entitlement to Meals and Public Rations - paragraph 5 and CANAIRGEN 012/09 - Linking of Rations and Quarters - provide the possibility for CF members to de-link R&Q. However, those policies do not provide any criteria on which to base de-linking requests. As indicated above, de-linking requests have been denied on the basis of safety, hygiene and health reasons. Although these represent valid concerns, the evidence on file and the arguments presented did not justify a policy under which all requests to de-link R&Q are being systematically denied.

Recommendation

The Board recommended that the CDS order a review of the de-linking policy to clarify its intent, keeping in mind that it may be possible to address the safety, hygiene and health concerns without imposing the linking of R&Q. If it is determined that linking of R&Q must continue to be imposed, the policy review should include the issuance of guiding principles and a clear indication of the circumstances under which a request for de-linking would be approved to foster consistency in the decisions taken.

Final Authority Decision

Pending.

Relinquishment of Rank for Military Training Plan

Issue

The grievor, a senior officer, was accepted for a Military Training Plan (M Plan) under CF Administrative Order (CFAO) 9-62 - Military Dental, Legal, Medical, Chaplain and Pharmacy Training Plans. The M Plan requires that admitted applicants voluntarily relinquish their rank to captain on the start of training and prior to the actual occupational transfer (OT) on completion of training. The grievor explained that while he had expressed his willingness to relinquish his rank, he did not actually make a request to do so and thus no relinquishment could have taken place. The grievor had been retroactively reverted to the rank of captain some 26 months after starting the training.

The Board found that the relinquishment was not administered in accordance with regulations and was thus null and void.

The Board agreed that there were valid reasons for imposing relinquishment of rank upon OT under the M Plan but questioned the requirement for relinquishment at the commencement of training.

The Board found that there appeared to be no regulatory, financial or military reason to demand that M Plan candidates at the rank of major or higher relinquish their rank at the start of the M Plan training, in some cases years prior to any actual OT.

Recommendation

The Board recommended that the CDS direct a review of the CFAO 9-62 policy regarding the rank required while undergoing training.

The Board also recommended that the CDS direct that a formal process be put in place for senior officer M Plan candidates to request permission to relinquish their rank and for the CDS to approve or deny it, in order to conform to regulations.

Final Authority Decision

Pending.

Canadian Forces Policy on Remission of Debts

Issue

Since its inception, the Board has seen a considerable number of grievances relating to overpayment of both pay and benefits. The debt, in some of these cases, might qualify for and be deserving of remission, yet through misunderstanding and misinterpretation, this avenue of redress appears not to be available to CF members. It is of some significance that in two grievance cases concerning overpayments, in 2004, the CDS of the day concluded that seeking remission of the debt in question was the appropriate remedy and directed that appropriate CF officials explore the feasibility of a submission to Governor in Council with the recommendation of Treasury Board (TB) to seek remission of the overpayment. The CDS went on to further issue direction to explore the feasibility of amending the National Defence Act (NDA) and the CF Superannuation Act to adopt a standardized and comprehensive approach to the recovery of overpayments.

Although the two cases were in fact submitted to TB for consideration, TB staff did not support the requests based on the fact that the CF members in the two cases did not meet the "stringent criteria" required for remission; however, when personnel at the Board questioned TB staff on the authority for the criteria used to deny the requests for remission, no clear response was given. It remains the Board's view that the remission criteria are applied on a case by case basis by the TB Ministers and it is not for the staff to make a decision given by statute to Ministers.

In the Board's view, a long-term solution for debt forgiveness would be to amend the NDA to allow the Minister of National Defence to forgive debts owing the Crown, along the lines of the Canadian Forces Members and Veterans Re-establishment and Compensation Act allowing for the full or partial relief of a debt under certain circumstances. In the meantime, since the DND/CF does not have published criteria or guidelines for the consideration of debts for remission, the CF should consider developing such a policy. Guidelines or policies from other government departments could serve as templates.

Recommendation

The Board recommended that the CDS direct that a DND/CF policy on remission be formulated and publicized.

Final Authority Decision

Pending.

Significant Federal Court Decisions

As explained earlier, in adjucating a grievance that has been reviewed by the CFGB, the CDS or his/her delegate is not bound by the Board’s F&R, and if he or she does not agree with the Board, reasons must be provided. Section 29.15 of the National Defence Act, provides that the decision of the final authority (FA) is then final and binding and, “except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.” This means that, unless a member applies for judicial review, FA decisions – whether they agree with the Board or not – are final.

In 2011, a number of dissatisfied grievors applied for judicial review and were relatively successful. The resulting judicial decisions provide significant direction regarding the subjects considered. Issues that featured prominently included the adequacy of reasons, procedural fairness and bias. Even in cases where the court agreed with the CDS, the decisions were informative as they provided guidance or support with respect to decisions made or processes followed.

De Novo Review

In the Zeidler case, the grievor, a Commanding Officer, was removed from command, based primarily on an e-mail that the grievor sent to his subordinates which was found to be insubordinate and insulting to his chain of command. He submitted a grievance claiming that there had been a lack of procedural fairness and bias in relation to the decision to remove him from command. Having reviewed the matter, the Board concluded that although not all of the relevant administrative procedures had been followed, it did not result in procedural unfairness. The Board recommended that the CDS deny the grievance. The CDS concurred with the Board’s F&R. Among other things, the CDS agreed with the Board that procedural fairness was afforded to the grievor. He found that while some documents had not been disclosed to the grievor prior to his removal, this breach had been cured during the grievance process, and no evidence of bias could be found. The CDS decided that the decision to remove the grievor from command was reasonable. The grievor applied for judicial review.

The Federal Court (FC) indicated that the CDS Guidelines on Removal from Command create legitimate expectations regarding the procedures to be followed. The FC also held that the decision to remove the grievor from his command position seemed to have been taken before he could respond to the Notice of Intent.

The FC found that “the CDS failed to live up to its mandate to provide a de novo review.” It further stated that the CDS appeared to have merely adopted the original decision without considering that it had been rushed and made without respecting procedures. The FC disagreed that the procedural breaches had been cured and found that the evidence was sufficient to conclude that there was apprehension of bias in this case. Accordingly, the FC held that the CDS decision to deny the grievance was unreasonable. The grievor’s application for judicial review was allowed, and the matter was referred back to the CDS for reconsideration.

Fairness and Transparency – Promotion process

The Zimmerman case involved the promotion process for Chaplains to the rank of colonel. While the grievor, a Commander, was ranked first by his 2003 selection board, under the Chaplain promotion process, the CDS had relied on the recommendation of the Interfaith Committee on Canadian Military Chaplaincy’s (ICCMC) and had promoted the member who had placed second on the Selection Board’s list. The grievor contended he was unfairly by-passed for promotion in 2003 and again in 2004. The grievor argued that the reliance on the ICCMC recommendation was unfair because its process was not transparent and there were no established and published criteria.

The Board found that the process used by the ICCMC to make the nomination which ultimately resulted in a promotion in 2003/2004 was not transparent and, therefore, there was no assurance it was fair. The Board recommended that the grievance be upheld. The CDS disagreed, concluding that despite the absence of information available to him regarding what the ICCMC did and exactly how and why it reached its promotion recommendations, he was “certain” that the ICCMC nominated the “best possible candidate” in the years in question.

The grievor applied for judicial review. The FC rendered its decision on 22 December 2009, and determined that the CDS decision was reasonable. However, on 4 February 2011, the Federal Court of Appeal (FCA) overturned the FC decision. As in the Tainsh case (next), the decision turned significantly on the adequacy of the CDS’s reasons. The FCA wrote that the CDS was obligated to provide reasons as to why he departed from the Board’s F&R. The FCA also noted that the CDS’s main reason for not accepting the grievance was the lack of information regarding ICCMC process. For the FCA, this raised issues of fairness and called into question whether the ICCMC had any criteria at all for its recommendations. For these reasons, the FC decision was set aside, the CDS decision was quashed and the matter was remitted to the CDS to determine the remedy that should be granted to the grievor.

Adequacy of Reasons

The Tainsh and Riach decisions deal with the adequacy of the CDS’s reasons in the grievance process. In the first case, the grievor had been released under item 5(e) of the table to article 15.01 of the Queen’s Regulations and Orders for the Canadian Forces – Irregular Enrolment, on the basis that she was dependent on a sleeping medication prior to her enrolment and had failed to disclose her condition.

Upon review of the file, the Board found it had not been established that the grievor was dependent on the drug in question and found that her medical issues did not justify a release for Irregular Enrolment or a medical release. Accordingly, it recommended that the CDS uphold the grievance.

The CDS disagreed with the Board’s F&R and concluded that it had not been established that the grievor was “not” dependent prior her enrolment. Therefore, he was of the view that the release was appropriate. The grievor applied for judicial review.

The FC noted that the CDS had relied on the Director of Medical Policy opinion and had not fully explained why the Board’s finding that there was no chronic medical condition, based on two doctors’ opinions, was rejected. The FC held that CF members “have a procedural entitlement to adequate reasons” which is recognized by the National Defence Act. Given its determination on this issue, the FC sent the file back to the CDS for reconsideration.

On the other hand, in the Riach case, the FC stated that it is not necessary for the CDS to write a comprehensive decision if he agrees with the Board’s F&R. In that case, the grievor had grieved the Notice of Intent to recommend release he had received from his unit administration officer (Admin O), alleging that the Admin O was biased against him as she had a personal relationship with his ex-common-law spouse. The Board reviewed the grievance and found no evidence of bias toward the grievor. It explained that the simple fact that the Admin O and the grievor’s ex-common-law spouse knew each other was insufficient to demonstrate that bias, real or apprehended, existed. The Board recommended that the grievance be denied and the CDS agreed.

The grievor applied for judicial review, contending that the CDS did not apply the correct test for bias. The Attorney General agreed that the CDS was not clear in his formulation, but he added that since the CDS endorsed the Board’s findings, which formulated the correct test, it did not have an impact on the outcome. The FC concluded that the CDS’s decision could lead to confusion, but added that the Board’s formulation and application of the test for bias were not disputed. Furthermore, the FC confirmed that, when the CDS endorses the Board’s F&R, there is no requirement for the CDS to expand further.

Conclusion

These four cases have confirmed the rights of members to be treated fairly when important decisions are being made, such as removal from command and promotion decisions. They have also reinforced the CDS’s statutory obligation to provide reasons for rejecting a Board finding or recommendation, while confirming that the CDS can simply adopt the Board’s F&R when he agrees with them – this is an important validation of the Board’s work and could significantly reduce timelines at the Final Authority (FA) level. By endorsing the Board’s F&R in lieu of developing a separate decision, the FA could effect a quicker turnaround, especially considering that the CDS has agreed with the Board in more than 75% of the cases in the past 10 years.

2011 Findings and Recommendations

The following table lists all 134 findings and recommendations (F&R) issued by the Board in 2011 and provides an overview of the types of grievances reviewed and the CFGB’s position with regard to each case. A full summary of these cases, including the decision of the Final Authority (FA), can be found on the Board’s Web site: www.cfgb-cgfc.gc.ca.

*Acronyms are explained in the Glossary

Glossary

ADM

Assistant Deputy Minister

ADM (HR-Mil)

Assistant Deputy Minister (Human Resources – Military)

ADM (Per)

Assistant Deputy Minister (Personnel)

AF

Assessment Factors

ALOA

Allowance – Loss of Operational Allowances

AR

Administrative Review

AWSE

Acting While So Employed

C&P

Counselling and Probation

CANAIRGEN

Canadian Air Force General Order

CANFORGEN

Canadian Forces General message

CBI

Compensation and Benefits Instructions

CDS

Chief of the Defence Staff

CE

Continuing Engagement

CF

Canadian Forces

CF H Svcs

Canadian Forces Health Services

CF IRP

Integrated Relocation Program

CFAO

Canadian Forces Administrative Orders

CFPAS

Canadian Forces Personnel Appraisal System

CFSA

Canadian Forces Superannuation Act

CO

Commanding Officer

COS

Change of Strength

COT

Compulsory Occupational Transfer

CT

Component Transfer

DAOD

Defence Administrative Orders and Directives

DCBA

Director Compensation and Benefits Administration

DCCL

Director Claims and Civil Litigation

DGCB

Director General Compensation and Benefits

DGCFGA

Director General Canadian Forces Grievance Authority

DIVGA

Diving Allowance

DMCARM

Director Military Career Administration and Resource Management

DND

Department of National Defence

DPM PS

Deputy Provost Marshal Professional Services

EOD

Explosive Ordnance Disposal

EPZ

Enter promotion zone

EXPRES

EXercise PREScription

GIC

Governor in Council

HEA

Home Equity Assistance

HG&E

Household Goods and Effects

IA

Initial Authority

IC

Initial Counselling

ICSI

Intra cytoplasmic sperm injection

ILM&I

"Interim Lodging, Meals and Incidentals"

ILQ

Intermediate Leadership Qualification

IPC

Incentive Pay Category

IPR

Intended Place of Residence

IR

Imposed Restrictions

IVF

In Vitro Fertilization

MATA-PATA

Maternity and Parental Allowance

MDI

Mortgage Default Insurance

MEL

Medical Employment Limitation

MLI

Mortgage Loan Insurance

MND

Minister of National Defence

MOC

Military occupation

MOSID

Military Occupational Structure Identification Specific Training

MPFS

Minimum Physical Fitness Standard

NCR

National Capital Region

NDA

National Defence Act

NDHQ

National Defence Headquarters

OS

Obligatory Service

P Res

Primary Reserve

PA

Posting Allowance

PDR

Personnel Development Review

PER

Personnel Evaluation Report

PF

Potential Factors

PLAR

Prior Learning Assessment Review

PRB

Progress Review Board

Reg F

Regular Force

Res F

Reserve Force

Res Svc

Reserve Service

RMC

Royal Military College

RTU

Return to Unit

RW

Recorded Warning

SCA

Special Commuting Assistance

SCP

Special Commissioning Plan

SDA

Special Duty Area

SE

Separation Expense

Supp Res

Supplementary Reserve

TB

Treasury Board

TBS

Treasury Board Secretariat

TCP

Time Credit for Promotion

TDRA

Temporary Dual Residence Assistance

TOS

Terms of Service

TPLD

Transitional Post Living Differential

U of S

Universality of Service

UTPNCM

University Training Plan – Non-Commissioned Members

Recommendations To Justice Lesage

In August 2011, the Board submitted the following ten recommendations to the Honourable Patrick LeSage who was appointed by the Minister of National Defence to conduct the Second Independent Review of Bill C-25. The full CFGB’s submission to Justice LeSage is available on the Board’s Web site: www.cfgb-cgfc.gc.ca.

The right to grieve:

• The Board recommended that paragraph 29(2)c) of the National Defence Act (NDA) and the Queens Regulations and Orders for 7.01(1) be amended to reflect that “a matter or case excluded^{Footnote 4} by the Governor in Council in regulations” cannot be grieved to prevent any misinterpretation.

The Final Authority:

• The Board recommended the amendment of section 29.11 of the NDA to authorize an entity, outside the CF chain of command, to act as Final Authority in those limited and exceptional cases where an act, decision or omission of the CDS is at issue.
• The Board recommended that the statutory authority of the CDS as Final Authority be amended in such a way so as to ensure that he/she has an appropriate financial delegation. This will enable him/her to make a decision on financial compensation where this form of relief is sought as redress.

Equal access to an external review for all grievances at the Final Authority level:

• The Board recommended that the statute be amended to reflect that all unresolved grievance files must be referred to the Board prior to the decision of the Final Authority.

Delegation of the Final Authority’s powers, duties and functions:

• The Board recommended that the statute be amended to reflect that the officer(s), to whom the powers, duties and functions as Final Authority are delegated, be one rank above the rank of the officer whose decision is being grieved.
• The Board recommended that the statute be amended to reflect that the delegate acting as Final Authority should not be the same officer as the administrator of the grievance process for the CDS.

Board members:

• The Board recommended that section 29.16^{Footnote 5} of the NDA be amended by striking paragraph 10 in its entirety.
• The Board recommended the amendment of subsection 29.16(4) of the NDA by including a transitional measure that would enable Board members who are not re-appointed to complete the cases that are assigned to them.

Subpoena power:

• The Board recommended that section 29.21 of the NDA be amended to allow the Board to require, by way of subpoena duces tecum, the production of documents or things without the requirement to hold a hearing.

Annual Report:

• The Board recommended that subsection 29.28(1) of the NDA be amended so that the date on which the annual report is tabled correlates to the activities completed during the fiscal year rather than the calendar year.

Annexes

A. Logic Model

Logic Model – Canadian Forces Grievance Board
(click on image to enlarge)

B. Financial Table

December 31, 2011. Actual expenditures will vary from the planned spending.

Board Members and Staff

Chairperson
Bruno Hamel

Mr. Hamel was appointed Chairperson of the Board on March 2, 2009. A retired Canadian Forces officer, he has a lengthy and varied experience in military complaint resolution after many years spent as a senior grievance analyst and, later, as Director Special Grievances Enquiries & Investigations within the Director General Canadian Forces Grievance Authority. He has also served as Director General of Operations in the Office of the Ombudsman for the Department of National Defence and the Canadian Forces.

Full-time Vice-Chairperson
James Price

Mr. Price brings to his position extensive experience as a Canadian Forces officer in all areas of military law, including the military justice system, administrative law, international law and operational law. After serving as Assistant Judge Advocate General for Europe, he was appointed military judge, presiding over cases involving both service offences and offences under the Criminal Code of Canada.

Part-time Vice-Chairperson
Denis Brazeau

Mr. Brazeau retired from the Canadian Forces after 30 years of service, which included many deployments abroad and a position as Chief of Staff of the Secteur du Québec de la Force terrestre. He was appointed an Officer of the Order of Military Merit by the Governor General in 2004.

Part-time Member
Michael Auger

A retired artillery officer, Mr. Auger headed the Military Occupation Structure Review and served as Executive Assistant to the Assistant Deputy Minister of Human Resources Military. He currently mentors junior officers at the Canadian Forces Land Staff College.

Part-time Member
Carina Anne De Pellegrin

Ms. De Pellegrin is a legal professional, former Canadian Forces aeronautical engineering officer and a graduate of the Royal Military College. She has also advised on human rights complaints before the Canadian and Ontario Human Rights Commissions.

Part-time Member
Frederick Blair

A retired senior military lawyer, Mr. Blair was called to the Bar of Ontario in 1970. He later served in various positions within the office of the Judge Advocate General and deployed in Europe as Senior Legal Adviser.

With diverse backgrounds and a broad range of professional experience, the Board employees work together to fulfill its mandate and achieve its vision.

Contact Us

Canadian Forces Grievance Board

60 Queen Street
10th floor
Ottawa, Ontario
K1P 5Y7

cfgb-cgfc@cfgb-cgfc.gc.ca

613-996-8529
Toll Free: 1-877-276-4193
TTD: 1-877-986-1666
Fax: 613-996-6491
Toll Free: 1-866-716-6601

www.cfgb-cgfc.gc.ca

Footnotes