2012 Annual Report

Table of Contents

Message from the Chairperson

Picture of Chairperson, Bruno Hamel

I am pleased to submit the Canadian Forces Grievance Board's Annual Report for 2012.

As I reflect on last year's achievements and the Board's progress over the past several years, the title of this report "External Review of Military Grievances" seems particularly apt. First, it reflects our primary mandate: the review of military grievances. Second, in addition to emphasizing our raison d'être, the title underlines our independence from the Canadian Forces and the Department of National Defence.

As explained later in this report, the Board continues to improve its operational efficiency, notwithstanding the fact that in 2012 we received an increased number of grievances, many dealing with subject matters not usually referred. I am pleased to report on our results as I think they attest to the Board's maturity, credibility and expertise as an administrative tribunal specializing in the review of military grievances.

In all this, our efforts were supported in 2012, as in previous years, by sound management initiatives and activities consistent with Government of Canada's priorities and requirements, as well as with the Board's commitment to a healthy and productive workplace.

Our results attest to the Board's maturity, credibility and expertise as an administrative tribunal specializing in the review of military grievances.

We do more than just review. Our unique function allows us to identify inadequate policies or issues of broad concern. For example, this report highlights the delays in dealing with Canadian Forces members' compensation and benefits claims and grievances, the outdated and ill-defined Home Equity Assistance policy and the rigid procedures followed to recollect overpayments made to members of the military. These important issues continue to cause frustration and, in some cases, serious and irrevocable financial hardship. In the Board's view, these matters require immediate attention by Canadian Forces leadership.

The Board is committed to continuing its efforts aimed at increasing awareness of these issues, by communicating with stakeholders, issuing systemic recommendations and sharing lessons learned with decision-makers.

The Board is committed to continuing its efforts aimed at increasing awareness of [these] critical issues [affecting Canadian Forces members], by communicating with stakeholders, issuing systemic recommendations and sharing lessons learned with decision-makers.

The 2012 annual report marks the end of my first mandate as Chairperson and introduces the second one. Since March 2009, I have had the honour of serving in this position and I have been gratified to do so, thanks to the remarkable support and dedication of our staff. Without them, and without our committed Board members, we could not have achieved the progress we have proudly reported in the last several years, and that I am pleased to report again in the pages of this document.

I am honoured by the confidence placed in me to lead the Board for a second term, with the support of both the full-time Vice-Chairperson Jim Price, and the part-time Vice-Chairperson Denis Brazeau, whose terms at the Board were also renewed in 2012. I am confident that these reappointments will ensure continuity and contribute to preserving the knowledge and expertise accumulated by both Board members and staff.

We have worked hard over the past year to do our part in delivering a fair, and timely grievance process which Canadian Forces members deserve. We will continue to do so.



Bruno Hamel
Chairperson

For the purpose of this report, The acronyms most commonly used are:
CF: Canadian Forces / CDS: Chief of the Defence Staff / CFGB: Canadian Forces Grievance Board F&R: Findings and Recommendations / IA: Initial Authority / FA: Final Authority.

About the 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 Canadian Forces 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 statutory 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.

"It is very important to have your grievance reviewed by an external organization that has an unbiased view, irrespective of rank and seniority, and seeks only the facts... I hope the Canadian Forces Grievance Board staff knows how much they are appreciated by this Canadian Forces member."­

What happens when the Board receives a grievance file?

The Board's internal grievance review process consists of three steps: the grievance reception, the Board member's review, and the preparation and submission of findings and recommendations (F&R).

  • STEP 1 Grievance Reception:

    Upon receipt of a grievance, the grievor is contacted and invited to submit additional comments or other documents relevant to his/her case.

  • STEP 2 Board Member's Review:

    A case conference, which includes an assigned Board member reviews the grievance and identifies the issues. If necessary, additional documentation is obtained and added to the file and subsequently disclosed to the grievor. The Board member is assisted by a team leader, a grievance officer and legal counsel.

  • STEP 3 Findings and Recommendations:

    The Board member issues the final F&R which are then sent simultaneously to both the Chief of the Defence Staff (CDS) and the grievor. At this point, the Board no longer retains jurisdiction over the grievance, although the Board tracks its ultimate outcome. The grievor receives a decision directly from the final authority (FA) in the grievance process, the CDS or his/her delegate.

image of hand pulling document
image of Board member reviewing
image of Findings and Recommendations

The FA is not bound by the Board's F&R. However, in cases where the FA disagrees, reasons must be provided in writing to both the Board and the grievor.

At this point, the Board no longer retains jurisdiction over the grievance, although the Board tracks its ultimate outcome. The grievor receives a decision directly from the final authority (FA) in the grievance process, the CDS or his/her delegate.

The FA is not bound by the Board's F&R. However, in cases where the FA disagrees, reasons must be provided in writing to both the Board and the grievor.

Highlights

In 2012, the Board:

  • Issued 149 findings and recommendations;
  • Further reduced the average time needed to complete the review of a grievance;
  • Improved its productivity standard from six to four months to take into account productivity gains;
  • Secured continuity with reappointments of the Chairperson and the Vice-Chairpersons; and
  • Implemented various management measures in order to comply with government initiatives and priorities.

After reviewing more than 1500 files since it began operations in June 2000, the Board's accumulated knowledge and expertise were put to the test in 2012. A new approach for grievance referral was evaluated resulting in the Board dealing with an increasing number of grievances with subject matters not usually referred for its review. Despite this, the Board succeeded in further improving its efficiency, without compromising the quality of its findings and recommendations (F&R), as it reaped the benefits of strategic adjustments to its internal review processes made over the last four years.

The Board continued to identify critical issues affecting CF members and to bring them to the attention of decision-makers; several of these issues are featured in the pages of this report.

The Board also undertook a number of measures aimed at reinforcing its management in accordance with Government of Canada's priorities and initiatives.

A Fair and Timely Grievance Process

In 2012, the Board continued to participate in the evaluation of a new model for grievance referral which was proposed to the Armed Forces Council in 2011. Under this new process, the Board would review all grievances reaching the final authority (FA) level where the CF is unable to resolve the matter to the satisfaction of the grievorFootnote 1. As a result, the Board's workload increased in 2012, as cases belonging to non-mandatory categories were referred for the CFGB's review.

The Board was pleased that the implementation of this inclusive model of grievance referral, also called the "principled approach," was one of several recommendations made by the Honourable Patrick LeSage who conducted the Second Independent Review of Bill C-25 Footnote 2. In his report, tabled in Parliament in June 2012, Justice LeSage recommends that "the 'principled approach' should be permanently instituted. All files where the Director General Canadian Forces Grievance Authority would rule against the grievor should be reviewed by the Grievance BoardFootnote 3." The CFGB is hopeful that the CF will permanently adopt a model where all unresolved grievances at the FA level are referred to the Board for review. In the Board's view, this is a question of fairness and equal access.

On the operational side, the Board continued its efforts to improve efficiency in furtherance of its statutory obligation to review grievances "expeditiouslyFootnote 4." Notwithstanding an increase in the number of grievance referrals (the highest since 2002), the expiration of the terms of three Board members and the referral of new types of grievances, the Board nonetheless, for the fourth year in a row, reduced the average time required for the review of grievances. By December 31, 2012, this average dropped to 2.2 months for cases received and completed in 2012, a 77.1% improvement from 9.6 months in 2008, when the Board first introduced measures to better streamline its internal review processes. This result and others related to the Board's output in 2012 are described in further details in the report's Operational Statistics section (p.22).

"The Canadian Forces Grievance Board was able to discern the injustice exercised against me... Thank you, Canadian Forces Grievance Board staff for all your time and effort."­

National Defence Act Amendments

Bill C-15 Strengthening Military Justice in the Defence of Canada Act, an Act to Amend the National Defence Act and to make consequential amendments to other Acts passed second reading in the House of Commons in 2012, and was referred to the Standing Committee on National Defence (NDDN) for further consideration. The Board is expected to testify before the NDDN in 2013. As it has already done in a previous appearance in 2011 and at various occasions last year, the Board will raise two important points which, it believes, require amendments to the National Defence Act (NDA). These two points relate to the Lamer recommendations and the Board's independence:

The Lamer Recommendations

Like its predecessor Bill C-41, which died on the Order Paper in 2011 due to the federal election, Bill C-15 is intended to be the legislative response to the report submitted several years ago by the late Chief Justice Antonio LamerFootnote 5. The report included 18 recommendations related to the grievance process. Several of these recommendations have already been implemented and others are included in Bill C-15. Unfortunately, three recommendations, which specifically relate to the Board and which were intended to facilitate its work, do not appear in the Bill. One of these proposes that Board members be permitted to complete their caseload after the expiration of their term. A second would provide the Board with a subpoena power, while the third calls for the alignment of the Board's annual report with the fiscal year rather than the calendar year.

These three recommendations are important to the Board. For example, the negative consequences stemming from the inability of Board members to complete the review of their assigned files following the expiration of their term affected the Board in 2012. From file receipt, it takes on average two to three months for a Board member to issue their F&R report. Last fall, during the last three months of their tenure, three Board members were not assigned files, despite the fact that the Board had files requiring review.

The Board's Independence

One of the fundamental reasons for the creation of the Board was the provision of an external review to the CDS and to CF members who submit grievances. For that reason, the Board continues to seek the elimination of section 29.16(10) of the NDA which allows for the appointment of an officer or a non commissioned member, on secondment, to the Board as a Board member. In the Board's view, the appointment of a serving CF member to the Board would prejudice the CFGB's independence from the chain of command. The Board's position on section 29.16(10) is further detailed on p.59.

Communications: a Two-Way Process

The Board views its communications as a two way-process by which it:

  • Shares the results of its work, while creating an awareness throughout the CF of the Board's mandate and value-added; and
  • Gathers valuable information, through exchanges with members of the military and other stakeholders, thereby increasing its knowledge and understanding of the challenges faced by military personnel in their day-to-day activities.

Some of the Board's communications activities in 2012 included:

Electronic and Print Publications

Case Summaries: Posted on the Web site and regularly updated, case summaries provide the reader with the Board's position on grievances reviewed in the last three years. The FA decision is included when available.

Recommendations on Systemic Issues: Also available on the Board's Web site, these summaries provide information on issues affecting not only the grievor but other CF members and for which leadership intervention may be required. The Board also posts the decisions of the FA on any follow-up actions.

Perspectives: An edition of this newsletter primarily directed to senior officers at Department of National Defence Headquarters was published in April 2012. Through Perspectives, the Board shares valuable information with CF decision-makers about grievance trends and areas of dissatisfaction that come to its attention during the review of individual grievances. Perspectives is published both in print and electronic copies.

eBulletin: Four editions of this electronic bulletin, available through the Board's Web site, were published in 2012. The eBulletin highlights current and interesting cases recently reviewed by the Board, as well as grievance review statistics.

A Bulletin directed to CF members was also published in November 2012. The Bulletin's purpose is to contribute to a better understanding of the military grievance process and to provide CF members with information regarding the Board's role within this process. The publication of the Bulletin was announced in the Maple Leaf, the monthly national newspaper of the Department of National Defence and the CF.

Base Visits

The Board makes periodic visits to CF formations and units to learn about tasking and activities. During these visits the Board's members and staff see, first hand, military personnel in their operational environment. In turn, the Board holds briefings, both formal and informal, where all ranks are encouraged to participate in grievance related discussions. In 2012, delegations from the Board visited the Joint Task Force North (Yellowknife), Canadian Forces Base (CFB) Petawawa and CFB Edmonton.

"Our visit to Joint Task Force North (Yellowknife) early February 2012, the first of the Board north of the 60th parallel, was a great opportunity for understanding the unique challenges, work conditions and causes of discontent that are at the basis of grievances coming from this particular area. We had a very productive exchange of opinions and ideas."­

Meetings with Stakeholders

The Chairperson regularly meets stakeholders throughout the year to exchange information about the grievance process. These meetings allow the Board to remain appraised of potential issues or changes in the process that may affect the work of the Board or its workload. Stakeholder meetings are also an opportunity for the Board to share its perspective on the grievance process and to offer suggestions for improvement. For example, last year's meeting with the CF Chief of Military Personnel provided the Board with the opportunity to discuss the important issue of timelines at the initial authority level.

"The excellent work and determination of the people at the Canadian Forces Grievance Board contributed to several of the Canadian Forces recent successes. You should be proud of that."­

Strong Corporate Services Enable Efficiency

The Board's management services enable the organization's operational priorities by implementing sound processes, providing employees with the right tools to do their work and fostering a healthy and productive workplace. This ensures that the Board is delivering on its mandate in a professional and ethical manner and in accordance with government priorities, while remaining accountable to Canadians.

Contributing to Government Initiatives and Priorities

In 2012, the Board was fully engaged in government wide efforts to increase effectiveness and reduce costs. In particular, the Board laid the groundwork for moving toward government's Shared Systems and Shared Services, and other initiatives aimed at ensuring pan-government consistency and at realizing efficiencies.

Investment in innovative tools was one way for the Board to achieve efficiency and take advantage of new technologies. After completing the virtualization of its servers in 2011, the Board began preparing for the next phase of this project, which is the implementation of a virtual desktop environment. This Information Technology (IT) virtualization initiative is expected to reduce IT infrastructure costs (servers and desktops), while keeping the organization on the leading edge of IT systems.

In the areas of Human Resources and Information Management/Information Technology, the Board began preparing to move to PeopleSoft and to standardized and consolidated Enterprise Electronic Document and Records Management System.

As well, in response to Treasury Board's (TB) Policy on Internal Control, the CFGB in 2012 continued the review of its internal financial control processes in key areas, such as financial management reporting and assets management. Key business processes were tested to identify their integrity and to ensure they are consistent with established accounting standards and policies and compliant with legislation and regulations.

Finally, the Board continued to monitor its compliance with TB's Web Accessibility standard and began preparing to participate in the Web Renewal Initiative launched by the government in the fall of 2012. This initiative is aimed at improving the efficiency and effectiveness of Web publishing, by reducing the number of federal government Web sites and by focusing on users' needs.

"I received clear and precise answers to all my questions (from the Board's staff)... I received a complete document (findings and recommendations)... I thank the Board for considering my file. This has great significance for me."­

Values and Ethics

In 2012, the Board adopted a Code of Conduct which was developed in accordance with the Public Servants Disclosure Protection Act. The act required that federal public sector organizations establish codes of conduct that are consistent with the Values and Ethics Code for the Public Sector implemented on 2 April 2012. In drafting the Code, the Board took into consideration the organization's specific business needs, as an administrative tribunal bound by the duty of fairness and transparency and by the obligation to protect CF members' personal information under its control. 

Investing in Our Workforce

The Board is a knowledge-based organization requiring specialized expertise to review military grievances. It is also a federal agency accountable for the management of its own corporate services and for meeting central agencies requirements. A knowledgeable and professional workforce is therefore crucial to ensure the Board's F&R are of the highest quality and its management practices are exemplary.

The Integrated Business and Human Resources Plan is the Board's tool to support career development of staff and proactively manage succession plans and knowledge transfer. In addition to individual training opportunities offered to all employees in 2012, the Board provided corporate training, such as a workshop on the Value of Managing Information at the CFGB and an internal information campaign to increase Access to Information and Privacy awareness.

The Board also holds various workplace activities. These include the Government of Canada Workplace Charitable Campaign. In difficult economic times, the Board's staff joins in this government-wide effort to give back in support of communities and individuals in need.

Finally, the Board launched a new version of Tribune, its intranet Web site and a primary communications tools with staff. The new Tribune is leaner and directly linked to the Board's Records, Documents and Information Management System, thus giving employees access to important information and key documents, without the need for a complex and costly Web site.

Smooth Transition in Corporate Services After a one-month period of knowledge transfer, a new Executive Director assumed duties as the Board's head of Corporate Services, which include the areas of Finance and Administration, Human Resources, Information Management/Information Technology, Strategic Planning/Performance Management, and Communications. « The knowledge transfer contributed to a smoother transition in this key position and it will be very beneficial for the Board, » said the Chairperson, Bruno Hamel.

Key Issues

In this section, the Board highlights four recurring key issues that were identified during the review of individual grievances, and which continued in 2012 to be cause for considerable concern. These issues are largely process-related or the result of outdated or flawed policies or regulations. In presenting and discussing these topics, the Board hopes that immediate action will be taken to address them, as they continue to affect morale and cause frustration and financial hardship.

Delays in Dealing with Compensation and Benefits Claims and Grievances

A considerable number of grievance files reviewed by the Board indicate that the Director General Compensation and Benefits (DGCB) is experiencing significant difficulty in responding to grievors within the 60 days provided for in the regulations. DGCB is one of the busiest initial authorities (IA) by volume of cases and deals with the important and often time-sensitive issues of benefits and allowances.

Currently, it is taking anywhere from 10 to 20 months for the DGCB to adjudicate grievances. When a grievance is received, the grievor is informed of the backlog situation and is asked to grant a standard 12 month extension.

Unfortunately, a similar backlog also exists at the Director Compensation and Benefits Administration (DCBA), who is responsible to adjudicate benefits and compensation related claims from CF members. This means that currently, CF members can wait as long as a year to receive a response to their initial claim and, if they disagree with the decision and grieve, they are then asked to wait another year to receive an IA decision.

Many CF members have expressed through their grievances their dissatisfaction with respect to these lengthy delays. One CF member in particular waited for 16 months for an IA decision, when he finally refused a third extension request. In his submission to the final authority (FA), the grievor stated:

"Please understand that this grievance is [with respect to] a cost move that occurred when my son was two months old. He turns four this May... This has been and, after almost three and a half years, continues to be the single most frustrating memory of my almost 19 year career."

Canadian Forces members are entitled to have their claims and grievances adjudicated within a reasonable time.

In cases where the claim is for a minimal sum or does not involve an amount already spent, the CF member may be more willing to wait for a decision by the DCBA or the DGCB. However, CF members will often prefer to forgo their right to an IA decision in the hope of receiving a quicker decision from the FA. Some CF members have not only denied an extension to the IA but some have even grieved the DCBA failure to respond in a timely fashion because they could no longer wait, the financial impact of the delay being too significant and sometimes, irreparable.

For example, the Board has reviewed a file where the CF member grieved a decision to recover $30,000 of benefits the DCBA felt he had received without entitlement. By the time the grievance reached the FA level, the grievor had taken his voluntary release in order to use his severance pay to reimburse the amount owed.

Unfortunately, even though the Board and later the CDS confirmed the grievor's entitlement to the benefits in question, he was no longer a serving member of the CF when he received restitution.

The Board is concerned with this backlog situation and its negative impact on grievors and their families, as well as on the CF grievance process. In the Board's view, CF members are entitled to have their claims and grievances adjudicated within a reasonable time; delays contribute to a lack of confidence in the system. While the CDS has indicated that he shares the Board's concerns in this regard, the Board has not been made aware of any measures put in place to improve the situation.

Home Equity Assistance

While the number of grievances regarding the Home Equity Assistance (HEA) policy has remained stable in 2012, the magnitude of the equity loss some CF members are experiencing on the sale of their homes in certain areas remains cause for significant concern. The Board has reviewed cases where CF members have incurred losses between $30,000 and $95,000 on the sale of their home while the maximum compensation is limited to 80% of the loss to a maximum of $15,000, as set out in the current CF Integrated Relocation Program (CF IRP) - a limit that has not been reviewed since 2002 (pilot program). The CF IRP does authorize compensation up to 100% of the loss if the house is located in a depressed market area. The CF IRP, which is the Treasury Board Secretariat (TBS) approved policy, defines a depressed market area as "a community where the housing market has dropped more than 20%." The policy does not however define the word "community" for the purposes of the CF IRP and thus, although a number of CF members have submitted evidence of more than a 20% market drop in what they consider to be their "community," TBS has nonetheless determined that there are no depressed market areas in Canada.

The Board firmly believes that something must be done to assist Canadian Forces members who have been affected by the Home Equity Assistance policy. The Board has suggested to the Chief of the Defence Staff that this significant issue requires a considered and timely response from both the Canadian Forces and the Government of Canada.

Documents obtained from the CF show that all cases have been rejected on the basis of a difference in interpretation and application of the HEA policy. Where the Board, the CDS and the grievor have accepted, for example, that Bon Accord, Alberta, a small town approximately 40 kilometers outside of Edmonton, is a community where the housing market dropped by more than 20% from 2007 to 2009, the TBS concluded that Bon Accord is part of the greater Edmonton area and, therefore, is not a depressed market. Given the TBS position that there are no depressed market areas in Canada, all claims from CF members for additional HEA compensation continue to be rejected by CF authorities, even those cases where the Board and the CDS have supported the CF member's submission.

The Board is concerned that as a result of the rigid and perhaps unreasonable position taken by TBS, CF members will continue to suffer large losses on the sale of their homes upon posting. In the Board's view, ignoring losses of this magnitude does not respect the aim of relocating CF members at a reasonable cost to the public while imposing minimum detrimental harm on the CF member and his or her family. Imposing these losses on a CF member is contrary to the purpose of the CF IRP policy, especially in light of the fact CF members are compelled to move. Even a 10% loss of equity on the sale of a $450,000 home equates to an equity loss of $45,000, of which only $15,000 is covered. That leaves a shortfall of $30,000 for the CF member to absorb.

The Board has recommended that the CF IRP be reviewed in order to amend this outdated and unfair policy. The CDS has supported this recommendation, and we understand that discussions with TBS have taken place. Apart from a change in policy, the Board firmly believes that something must also be done to assist the CF members who have already been affected by this policy, some of whom have lost in excess of their life savings and are now making monthly payments on mortgage debt for a home they no longer own.

The Board has suggested to the CDS that this significant issue requires a considered and timely response from both the CF and the Government of Canada. Morale has evidently been affected; some CF members have begun to question whether they can expect fair treatment from the CF and a growing number are taking the position that perhaps they cannot afford to be posted in light of the financial burden they would be asked to bear. In our view, immediate action is required. CF members deserve fair and equitable compensation where relocation results in financial hardship.

Chief of the Defence Staff Financial Authority

In the Board's 2006 Annual Report, we reported a recurring problem within the grievance process: neither the initial authority nor the CDS, who is the final authority (FA), have claims adjudication authority. The authority to settle claims against the Crown or to give ex gratia payments to members of the CF has been delegated to the Director Claims and Civil Litigation (DCCL) from the Legal Advisor to the Department of National Defence (DND) and the CF. Therefore, in cases where the Board has recommended that grievors receive financial compensation as one of the remedies to their grievances, the CDS has been obliged to refer these cases to the DCCL for review and determination of the entitlement to such compensation.

In his National Defence Act Review and Recommendations dated 3 September 2003, late Chief Justice Antonio Lamer recommended that the CDS be given the authority to settle claims and to award ex gratia payments when he or she determines through the grievance process that the circumstances warrant such payments. This recommendation was supported by DND, which has since been working to have it implemented. In 2012, the recommendation was, in some small measure, accepted as the CDS was given the authority to award ex gratia payment in those exceptional cases where such payments are allowed.

The Board is disappointed that a recommendation by the late Chief Justice Antonio Lamer to give the Chief of the Defence Staff both the authority to settle claims and to award ex gratia payments was not fully implemented. Without the authority to settle claims against the Crown or to provide financial relief in cases where it is justified, the Chief of the Defence Staff will continue to be unable to completely and finally provide redress in certain grievances.

Unfortunately for CF members, this authority has a very limited application, as it cannot serve to fill gaps in policy and it cannot be used to compensate CF members where there may be legal liability on the part of the Crown. In other words, an ex gratia payment is a relief available only in those rare and exceptional cases where no other form of relief exists. The Board is disappointed that the recommendation, as suggested by late Chief Justice Lamer, was not fully implemented. Without the authority to settle claims against the Crown or to provide financial relief in cases where it is justified, the CDS will continue to be unable to completely and finally provide redress in certain grievances. Consequently, CF members who seek financial relief from the Crown will have to pursue legal claims in addition to, or instead of, the grievance process in order to receive compensation.

Considering that the CDS is the FA in the grievance process, the Board remains convinced that he or she must be given both the authority to settle claims and to award ex gratia payments when it is determined that the circumstances warrant such payments. Until then, many grievors will continue to be penalized by a grievance process that is inadequate and frustrates dispute resolution as it cannot provide a final and complete remedy when the circumstances warrant financial compensation.

Overpayment and Recovery

Since it began operations in 2000, the Board has seen a considerable number of grievances relating to overpayment of both pay and benefits. Errors on enrollment, miscalculated rate of pay on commissioning, relocation benefits paid with no entitlements are all examples of cases where CF members were led to believe by CF authorities and subject-matters experts that they were entitled to the money they received for months and sometimes years, to be later told that the amount had to be recovered. The overpayment of the Separation Expense benefit has been a particularly egregious problem with some CF members owing the Crown in excess of $100,000 despite the fact the payment of the benefit was authorized in the first place by CF authorities. In too many of these cases, the Board has observed a lack of compassion on the part of the CF authorities. While the CF will typically acknowledge the error as being "unfortunate," the position taken is usually that the CF member is not entitled to the money paid and that recovery action must be taken in every case "regardless of the impact" on the CF member.

Moreover, the current CF policy that allows the establishment of a reasonable repayment schedule is not consistently being used or applied; too often the overpayment is recovered in a lump sum, in short but substantial successive payments, or by a repayment schedule significantly shorter than that of the original overpayment, without any regard to the CF member's financial situation. For example, in one case, the CF member was overpaid during a period of almost three years; yet, the recovery was effected in one month. An amount of $33,000 was recovered in just two payments without ever contacting or consulting the CF member as to the impact of such action on his personal situation.

In the Board's view, a long-term solution for debt forgiveness would be to amend the National Defence Act to allow the Minister of National Defence to forgive debts owing the Crown under certain circumstances.

Since there is currently no formal direction or process in place to standardize the recovery of debts owed to the Crown, the Board is of the view that comprehensive guidelines need to be developed and promulgated. Also, the Board has indicated that no recovery action should be undertaken until a mandatory financial consultation has taken place to assess and determine a CF member's ability to repay a debt as well as the financial impact of the payment schedule on the CF member and his or her family. Once established, a repayment schedule should not be modified unless another financial consultation is undertaken.

Finally, the Board is concerned about the CF position regarding the possibility to seek remission of some of these debts. Unfortunately, through misunderstanding and misinterpretation of the legal framework of the remission process, the CF has considered this option to be unavailable for CF members. It is of some significance that, in 2004, in two grievance cases concerning overpayments, the CDS of the day concluded that seeking remission of the debt in question was the appropriate remedy and directed that the responsible CF department 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 the 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 of debt ought to be available to CF members and determined on a case by case basis by the TB ministers; it is not for CF authorities or TB staff to make a decision expressly 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, similar to provisions of the Canadian Forces Members and Veterans Re-establishment and Compensation Act which allow the minister to authorize 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 Board believes the CF should consider developing a policy on remission; guidelines or policies from other government departments could serve as templates.

Systemic Recommendations

The grievance system is to some degree a barometer of current issues of concern to CF members. Several recurring grievances on the same issue may indicate a poor policy, the unfair application of a policy or a policy that is misunderstood. In some cases, the underlying law or regulation may be out of date or otherwise unfair.

The Board feels a particular obligation to identify issues of widespread concern which may affect the morale of CF members and, where appropriate, provide recommendations for remedial action to the CDS.

The following section presents ten systemic recommendations out of 28 issued by the Board in 2012. The remaining 18, as well as all the Board's systemic recommendations issued since 2009, are available on the CFGB's Web site: www.cfgb-cgfc.gc.ca.

Succession Planning in the Canadian Forces
Issue

In the recent review of a grievance concerning allegations that the grievor had been passed over for subordinate command/executive development assignments, the Board found that the succession planning process employed by the Royal Canadian Navy in 2008 discriminated against the grievor on the basis of age (a prohibited ground of discrimination). In the Board's opinion, the process could not be saved either as a bona fide Occupational Requirement or, as a reasonable limitation pursuant to section 1 of the Canadian Charter of Rights and Freedoms.

Based on the evidence on file, as well as the Royal Canadian Navy's response to additional inquiries, the Board noted that the discriminatory practice - use of the age-driven parameter of years remaining to serve (YRS) - was not confined to the grievor's individual case and that it appeared that this practice continues. It also seems, although the details were not clear since they were not directly relevant to the grievance in question, that similar processes are employed in the Canadian Army and the Royal Canadian Air Force. There was also some mention in the case at hand that the Royal Canadian Navy, at least, intends to introduce a similar process to address succession planning for non-commissioned members.

Recommendation

The Board recommended that succession planning processes in the CF be changed to eliminate the indirect age discrimination resulting from the use of YRS as an assessment criterion in determining whether a CF member will be afforded more favourable career treatment than his peers.

Final Authority Decision

Pending

Director Military Careers Administration - Administrative Review Process
Issue

In 2011 [Board file 2010-071], the Board had recommended to the CDS that he forward to the Director Military Careers Administration (DMCA) a copy of the Board's findings and recommendations outlining the manner in which the DMCA administrative review (AR) process was failing to follow the provisions of Defence Administrative Order and Directive (DAOD) 5019-2 - Administrative Review, notably the obligation to provide reasons when making important career decisions, such as the release of a CF member. In his decision, the CDS agreed to do so.

In 2012, while reviewing another release grievance, and notwithstanding the CDS decision mentioned above, the Board observed that the DMCA was continuing to approve the AR release recommendation without providing written reasons as is required by the DAOD. Upon verification, the DMCA staff confirmed that no changes to the current DMCA AR process had been directed, nor were any being contemplated.

The Board reiterated its position that conducting a thorough and fair AR process is essential to reach a fair and well-reasoned decision by the Release Approving Authority.

Recommendation

The Board recommended that the CDS direct the Chief of Military Personnel to take the necessary steps to ensure the DMCA AR process complies with DAOD 5019-2 as a priority.

Final Authority Decision

Pending

Evidence in an Administrative Review Process
Issue

Defence Administrative Order and Directive (DAOD) 5019-2 - Administrative Review, describes the process used by the CF to determine if an administrative action is appropriate as a result of an incident, a special circumstance or a professional deficiency. Key in reaching such a determination is the use of, and the probative value given to, the evidence available to the decision-maker.

The Board has, in the past, raised concerns with the current administrative review (AR) process in cases where the evidence consists of charges or allegations and when a decision-maker makes findings of fact or credibility based on untested statements or military police reports. In the Board's view, the fundamental problem with the use of such statements or police reports is the absence of a fact-finding process. Police reports or statements simply provide untested and unproven allegations that need to be further examined or corroborated by other direct evidence before deciding what weight to attribute to the information.

As the AR process can lead to serious consequences such as compulsory release from the CF, the Board concluded that it is of utmost importance to ensure proper procedural protections are in place for CF members.

Recommendation

The Board recommended that, where appropriate, a formal hearing be ordered in cases where prosecutions do not proceed or in the absence of a guilty verdict, but where it nonetheless appears a CF member may have engaged in misconduct.

Final Authority Decision

Pending

Right to Severance Pay and Reserve Force Retirement Gratuity
Issue

Members with 30 years of service in the Regular Force who continued to serve in the Primary Reserve have been denied the Reserve Force Retirement Gratuity (RFRG) benefit on the basis that they have received the maximum 30-year Regular Force severance pay benefit.

A plain reading of the current and original (1997) versions of the CF Compensation and Benefits Instructions (CBI) 204.54 - Reserve Force Retirement Gratuity does not reveal any provision that would deny reservists the RFRG to which they are entitled based on their Reserve service, even though the combined qualifying time of their Regular Force severance pay and RFRG benefits may exceed the maximum of 210 days for 30 years of service provided for in the CBI.

Treasury Board staff acknowledged that, prior to a July 2011 decision revising the relevant CBI effective 1 October 2011, there was no bar to a reservist collecting the RFRG in addition to a maximum 30-year severance pay for those reservists released prior to 1 October 2011.

The Board was concerned that, since 1 April 1997, a number of reservists may have been wrongly denied the Reserve Force Retirement Gratuity benefit based on their combined Regular Forces and Primary Reserve service having exceeded 30 years.

Recommendation

The Board recommended that the CDS direct that similar grievances or inquiries be dealt with administratively.

Final Authority Decision

Because of an informal resolution, the systemic recommendation was left unanswered.

Real Estate Commission Paid on the Purchase of a Replacement Residence
Issue

Following the review of a grievance concerning the denial of reimbursement of real estate commission involving the 2009 CF Integrated Relocation Program (CF IRP) policy, the Board concluded that real estate commission fees were not reimbursable when purchasing a residence, and that ministerial discretion should not be used. However, the Board also found that greater clarity should be provided to CF members by amending the CF IRP policy and its supporting documents; consequently, the Board recommended the insertion of an explanatory note into the policy and the manual entitled "It's Your Move."

The CDS agreed with the Board's recommendation and, in a decision letter dated 15 September 2010, directed the Director General Compensation and Benefits to ensure the following note was inserted in future relocation policies and manuals: " Real Estate commission paid by a contractor or the CF member to a real estate agent is not reimbursable when purchasing a replacement residence. "

While reviewing a more recent grievance concerning the same issue, the Board noted that after almost two years, during which two relocation policies were issued, no action or follow-up had occurred on the matter by the appropriate CF authorities. The Board found it troubling that CDS orders would not be followed by subordinates in a timely manner, especially given that the insertion of the note could help CF members who move every year and who should be able to rely upon updated and clear policies.

Recommendation

Given that no action had been taken on the CDS direction, the Board reiterated its previous recommendation that the CDS direct the following note be inserted in future relocations policies and manuals: " Real Estate commission (REC) paid by a contractor or the CF member to a real estate agent is not reimbursable when purchasing a replacement residence. "

Final Authority Decision

Pending

Difference Between Imposed Restriction and Separation Expense
Issue

In the course of examining several grievances on the issue of Separation Expense (SE) benefit, the Board noted that the difference between the Imposed Restriction (IR) status and the SE benefit was generally not well understood and pointed out that errors arising from this misunderstanding often had disastrous financial consequences for military personnel.

Contrary to the apparently prevailing interpretation within the CF, the Board explained that granting an IR status to a CF member does not entail automatic payment of the SE benefit.

The Board provided that in order to be eligible to the SE benefit, CF members must meet all the conditions in Compensation and Benefits Instructions Article 208.997 - Separation Expense (formerly Article 209.997).

The Board considered that an information campaign would be appropriate and beneficial.

Recommendation

The Board recommended that the CDS ask the Chief of Military Personnel to publish a General Message (CANFORGEN) explaining the difference between an imposed restriction status and the SE allowance, taking particular care to clarify that the benefit is not automatically granted and that a CF member could be on an IR status and not be entitled to the SE benefit.

Final Authority Decision

Pending

Accuracy of Information Given to Prospective Enrollees
Issue

The grievor enrolled in the Reserve Entry Training Program as an Officer Cadet (OCdt); he had been erroneously informed by the CF Recruiting Centre (CFRC) that he would be paid as a Second Lieutenant during his military training.

A significant number of cases have been seen by the Board where errors made by recruiting centres when enrolling new applicants have led to subsequent recovery of pay or unilateral changes to a military member's original and agreed upon conditions of employment by CF authorities; these errors are usually discovered after enrollment. By that point, the affected CF members are left with few options; typically money is recovered and the individual continues to serve until lawfully released.

The Board has expressed its opinion in previous files that, once an enrollment error has been discovered, the error and its consequences should be verified and immediately brought to the attention of the CF member. He or she should then be allowed to choose between continuing to serve under the new conditions of service (with financial compensation for the damages that have resulted from the error) or to be released with no penalty. There should also be financial compensation to cover all expenses required to restore the CF member to the position he/she was in prior to enrollment.

Although the number of such cases may be small, significant enrollment errors continue to be made by recruiting centres; in the Board's view, a policy dealing with this matter is required.

Recommendation

The Board recommended that the CDS direct the development of a regulation or policy to allow CF members who are victim of an enrollment error to opt out of their obligation to serve. The Board also recommended that such a regulation or policy include a provision allowing the CF to restore these military members to the same position they would have been in had the enrollment error not occurred.

Final Authority Decision

Pending

Consistent Interpretation of " Normally Resident" for Benefit Purposes
Issue

Since 2006, the Board has reviewed a number of grievances where CF members were denied benefits based on an erroneous interpretation of the term "normally resident" found in the definition of dependant (Compensation and Benefits Instructions (CBI) 208.80, formerly CBI 209.80).

In each of these individual grievances, the Board has reiterated that the term "normally resident" could not be interpreted simply on the basis of a mathematical calculation, but rather on a number of factors that must be considered in order to determine whether a CF member has dependants or not. In agreeing with the Board, several Chiefs of the Defence Staff found the facts regarding a child's residential situation to be determinative and that he/she may be "normally resident" even when the time spent with each parent is shared equally.

The CDS having provided clear guidance on the interpretation of this CBI, the grievance process should enable CF authorities to be proactive and adopt the CDS' position. CF members should not have to grieve issues already decided by the CDS.

Unfortunately, CF members are still being denied benefits to which they are entitled and cases involving the interpretation of a dependant "normally residing" with a CF member continue to be referred to the Board.

Recommendation

The Board recommended that the CDS direct the Chief of Military Personnel to ensure that:

  • CBI 208.80 (formerly CBI 209.80) be interpreted and applied in accordance with the CDS' decisions and directions; and
  • CF members are made aware of the appropriate meaning of "normally resident" so that they may understand the conditions required for their children to be considered dependants according to the CBI.

Final Authority Decision

Pending

Expansion of the Spectrum of Care for Infertility Treatments
Issue

During the review of a recent grievance concerning the reimbursement of costs relating to in vitro fertilization and intracytoplasmic sperm injection treatments, the Board noted that, in 1997, in vitro fertilization was added to the Spectrum of Care (SoC) for CF members with bilateral tube blockage for a maximum of three cycles, which mirrored the Province of Ontario's coverage at that time. As well, as a result of a Federal Court decision, the CF added intracytoplasmic sperm injection to its coverage (with certain conditions) in 2008. These benefits for CF members remain in effect. However, in August 2010, the Province of Quebec expanded its coverage to include in vitro fertilization and intracytoplasmic sperm injection treatments up to a maximum of three cycles, no matter what the cause of infertility. On 18 April 2011, the SoC Review Committee met to review this new development, but decided to support the status quo and did not expand CF coverage.

The stated intent of the SoC is to provide CF members with comprehensive health care "comparable" to that guaranteed to other Canadians, and to ensure that public funds are used to provide access to a standard of health care comparable to that received by Canadians under provincial health care plans. In fact, the Board noted that, up to 2010, the CF's approach vis-à-vis the notion of providing "comparable" health care was to provide "identical" or "as good as" provincial care as it pertains to in vitro fertilization.

In the Board's opinion, the CF refusal to update its health care so as to be "comparable" to the most recent changes in Quebec is not in line with its commitment under the SoC.

Recommendation

The Board recommended that the CDS direct that the SoC coverage for in vitro fertilization and/or intracytoplasmic sperm injection be expanded to include three cycles of treatment, regardless of the infertility cause, effective 18 April 2011, the date the last SoC review took place.

The Board also recommended that the CDS direct that the SoC be amended to reflect this new coverage.

Final Authority Decision

Pending

30-Day Entitlement to Annual Leave - Past Reserve Force Service
Issue

In 2006, the Board first noted that the CF leave policy does not provide credit for past Reserve Force service to qualify for 30 days of annual leave, but does so for other increments of annual leave (file 2006-057). At that time, the Board concluded that excluding Reserve Force service from the calculation of the 30-day annual leave entitlement was unfair. The Board was informed that the policy was scheduled to be reviewed in 2008. However, the Board has since received two other cases with respect to this issue and it now appears, seven years later, the policy review has still not taken place.

Although the Board acknowledged that the CDS had said (in a previous decision) that any change would not be retroactive, the Board has asked him to reconsider his position given the CF's failure to address the matter. CF members should not be penalized for CF inaction for such a lengthy period. The Board recommended that the new leave policy be backdated to 2008 when the review ought to have been completed.

Recommendation

The Board made two systemic recommendations:

  1. That the CDS direct the revision of the CF leave policy such that Reserve Force time is taken into account for the calculation of the 30-day annual leave entitlement and that he set a fixed delivery date for that revision to be implemented; and
  2. That the CDS reconsider his position on the retroactivity of such a revision such that:
    • The retroactivity be established back to 2008, the original date of the scheduled policy review; and
    • Those CF members affected by the retroactive change have their annual leave entitlement adjusted accordingly.

Final Authority Decision

Pending

Operational Statistics

Operational performance is a top 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 findings and recommendations (F&R). 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.

A Timely Review

The Board had originally established a productivity standard of an average of six months to complete the review of a grievance. Refinements implemented in recent years have streamlined processes and increased efficiency, bringing this average down to 2.2 months for cases received and completed in 2012. This represents 77.1% improvements from the 2008 average of 9.6 months. To account for the improved timelines, the Board decreased its productivity standard to an average of four months, effective 1 January 2013.

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

Figure 1 - Average review timeline by year grievance referred
2008 2009 2010 2011 2012Figure 1 note *
Elapsed time in months 9.6 (100% completed) 6.1 (100% completed) 3.3 (100% completed) 2.7 (100% completed) 2.2 (77% completed)

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 applicable policies and regulations, the relevant evidence and the submissions of both the grievor and CF authorities.

Between 2008 and 2012, the Board issued F&R on 633 grievances of which 49.9% (316 cases) had recommendations to grant or partially grant the grievance (i.e., supported the position of the grievor). In 49.0% of the cases (310 cases), the Board recommended the grievances be denied.

Figure 2 sets out the distribution in percentage of the Board's recommendations issued between 2008 and 2012 (633 cases as of 31 December 2012).

Figure 2 - Distribution of the Board’s recommendations in the last five years
CFGB F&R 2008 2009 2010 2011 2012
Grant and partial grant 48% (59) 42% (45) 45% (53) 56% (75) 56% (84)
Denied 52% (65) 56% (60) 55% (66) 43% (58) 41% (61)
Cases ClosedFigure 2 note * 0% (0) 2% (2) 0% (0) 1% (1) 3% (4)

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

Figure 2 notes

Key Results

In the last five years, the CDS rendered decisions on 470 cases out of 633 reviewed by the Board. A total of 214 of these decisions concerned cases where the Board recommended that redress be granted or partially granted. The remaining 256 decisions addressed cases where the Board recommended that redress be denied.

In the 214 grievances where the Board recommended redress be granted or partially granted, the CDS agreed or partially agreed in 86% of the cases (184 files). For the remaining 256 grievances for which the Board recommended that redress be denied, the CDS agreed in 85% of the cases (218 files).

Figure 3 illustrates the distribution of the CDS decisions issued between 2008 and 2012, in percentage, on each of these two categories, as of 31 December 2012.

Figure 3 - Distribution of the CDS decisions on cases completed in the last five years
CFGB F&Rs Grant and partial grant Denied
CDS agrees and Partially agrees with CFGB’s F&R 86% (184) 85% (218)
CDS does not agree with CFGB’s F&R 13% (27) 6% (15)
Cases withdrawn at CDS Level 1% (3) 9% (23)

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

Annual Workload

Completed Grievance Reviews

The following table outlines the distribution by recommended outcomes of the 149 cases completed by the Board in 2012.

Grievance Categories

Denial

Partial Grant

Grant

No Jurisdiction

Not Grievable

Total

Total

61

32

52

1

3

149

Financial

28

16

33

0

3

80

General

24

10

12

1

0

47

Harassment-Discrimination

1

4

0

0

0

5

Release

8

2

7

0

0

17

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 2012, discretionary referrals were classified under the general category. Grievances under this category and those related to financial issues represent the majority of files in 2012.

Figure 4 - Categories of Grievances received
Categories of grievances 2010 2011 2012
Financial 54 (56%) 55 (40%) 77 (47%)
General 23 (24%) 67 (49%) 60 (37%)
Release 13 (13%) 10 (7%) 17 (10%)
Harassment/Discrimination 7 (7%) 4 (3%) 9 (6%)

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

CDS Decisions Received in 2012

Figure 5 The Board received CDS decisions in response to 94 grievances. As shown in Figure 5, the CDS agreed and partially agreed with the Board's F&R in 82% of these cases and was in disagreement in 11% of these cases. In 3% of the cases, the CF were able to informally resolve the grievances after the Board issued its F&R.

Figure 5 - Chief of the Defence Staff ( CDS) decisions received between 1 January 2012 and 31 December 2012
CFGB F&Rs CDS agrees with CFGB's F&Rs CDS partially agrees with CFGB's F&Rs CDS does not agree with CFGB's F&Rs CF Informal Resolution Case withdrawn at the CDS level No authority to adjudicate
Grant and partial grant 63% 19% 11% 3% 3% 1%

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

2012 Findings and Recommendations

The following table lists all 149 findings and recommendations issued by the Board in 2012 and provides an overview of the types of grievances reviewed and the CFGB's position with regard to each case. full summary of these cases, including the decision of the final authority, can be found on the Board's Web site: www.cfgb-cgfc.gc.ca.

2012 Findings and Recommendations
 

CFGB File No.

Topic(s)

Outcome

Summary of CFGB's Findings and Recommendations

1.

2011-047

Discrimination

Selection Boards

Succession Planning

Grant

The Board concluded that the Naval Succession Planning Process results in less favourable treatment of older officers and, consequently, it was discriminatory on the basis of age. Regarding the bona fide occupational requirement, the Board found no evidence that an individual must have greater years remaining to serve to be able to perform the duties of any particular Navy billet. Further, the Board found that the Naval Succession Planning Process could not be saved as being a reasonable limit under section 1 of the Charter of Rights and Freedoms. The Board recommended to the CDS that succession planning processes in the CF be changed to eliminate the age discrimination resulting from the use of years remaining to serve.

2.

2011-110

Procedural Fairness

Release - Medical

Grant

The Board concluded that the decision to terminate the grievor's period of retention was premature and in breach of procedural fairness. Since this breach could not be cured through the grievance process, the Board found that the grievor's release should be considered void ab initio. The Board recommended that the CDS direct a review to determine if the grievor should be retained according to his original period of retention. If not, the grievor's release date should be effective starting on the date the new decision is made.

3.

2011-115

Administrative Review Process

Release - Conduct/Performance

Grant

The Board found that in the absence of reasons, it was impossible to conclude that the Director Military Careers Administration's decision to release the grievor was not tainted by consideration of the quashed counselling and probation which was still on the file. The Board recommended that the release decision be set aside and that the grievor be considered to never have been released. Further, a new investigation was considered necessary in the circumstances.

4.

2011-116

Mortgage Loan Insurance Premium

Denial

The Board found that the grievor was clearly a renter, living in a married quarter with his family at the time he was released from the Regular Force and purchased his house as his Intended Place of Residence. The Board concluded that the grievor did not qualify for the reimbursement of Mortgage Loan Insurance from the core envelope, as article 8.3.10 of the Integrated Relocation Program 2009 clearly indicates that, for a renter at origin, the reimbursement of Mortgage Loan Insurance is a custom benefit.

5.

2011-117

Administrative Process Leading to Compulsory Releases

Release - Compulsory

Sexual Misconduct

Unauthorized Drug Use

Denial

The Board noted that the problem with the use of police reports in administrative proceedings is that they simply relate allegations and do not include a fact-finding process. If a subject objects to or denies information contained in a police report, a paper exercise cannot do justice to an assessment of credibility nor weigh evidence. Notwithstanding, the Board found that the decision to release the grievor was reasonable in the circumstances and in accordance with policy.

6.

2011-118

Education Allowance

Denial

The Board explained that wherever compatible education, representative of Canadian standards, is readily available and free, CF members posted outside Canada are expected to use those services. The Board noted that the grievor did not demonstrate that two non-fee paying primary schools in the area of his posting were not compatible for his daughter.

7.

2011-119

Delays at Initial Authority Level

Home Equity Assistance

Grant

The Board discussed and interpreted the Home Equity Assistance (HEA) policies. In the absence of an expressed intent, the Board concluded that it was sufficient to incur a loss on the selling of a home to be entitled to HEA. The Board recommended, amongst other things, that the grievor receive the reimbursement of HEA from the grievor's core envelope.

8.

2011-120

Military Medical Training Plan

Pay

Denial

In the Board's view, under the Military Medical Training Plan (MMTP), only one pay increment increase can be granted to an Acting sub-Lieutenant who is enrolled as a Direct Entry Officer, as was the case with the grievor. Despite the fact that Compensation and Benefits Instructions 204.211(12) affords the CDS the discretion to grant up to two additional pay increments, the Board found that this discretion is limited to situations where a CF member cannot complete training in his current military occupation due to military reasons which was not the case here. As for the grievor's promotion, the Board found that sub-paragraph 30(c) of CF Administrative Orders 11-6 did not allow an officer from the MMTP to be promoted until completion of his medical training.

9.

2011-122

Door-to-Door Move

Integrated Relocation Program

Grant

The Board found that the grievor produced an effective and well-coordinated plan for a door-to-door move and that the delays in the availability of the new accommodations were unanticipated and attributable to CF authorities.

As for the early delivery of the grievor's Household Goods and Effects, the Board found that the situation was rare, unforeseen and beyond the grievor's ability to control.

10.

2011-123

Imposed Restriction

Overpayment

Separation Expense

Grant

The Board concluded that the grievor's spouse was normally resident with him at his place of duty prior to his posting in July 2003 and that therefore she complied with the definition of dependant set out in subparagraph (2)(a) of Compensation and Benefits Instructions 209.997. The Board found that the grievor was eligible for Imposed Restrictions status and resulting Separation Expense benefit for the period 2003 to 2005, but not for his two subsequent postings, since he did not have a dependant at his place of duty. However, the Board found that it would be unreasonable to collect the benefits received between 2005 and 2010 and recommended that a submission be presented to Treasury Board requesting support for the remission of the remaining debt, as per section 23 of the Financial Administration Act.

11.

2011-124

Allowances and Benefits

Personal Motor Vehicle

Storage Fees

Denial

The Board found that, according to article 9.3.02 of the Integrated Relocation Program, a CF member is entitled to ship a Personnel Motor Vehicle if he/she uses a commercial carrier as the primary mode of travel to the new location, which the grievor did not do. Consequently, the Board found that the grievor was not entitled to ship his Personnel Motor Vehicle and, therefore, he was not entitled to the incentive benefit.

12.

2011-126

Maternal/Parental Leave

Termination Class B Reserve Service

Denial

The Board found that the grievor's period of Class B service had ended as scheduled while she remained on Maternity/Parental Leave and that there was no automatic entitlement to further employment. Therefore, the Board concluded that the grievor did not suffer any prejudice by the lack of the 30-day written notice of Class B service termination. Finally, the Board found that the grievor was not unfairly or otherwise denied an opportunity to apply and compete for continued employment with her unit.

13.

2011-127

Medical Employment Limitation

Promotion

Denial

The Board found that not being able to attend training on the basis of a service related injury did not amount to a training delay for military reasons. The Board concluded that the grievor's failure to complete the training was attributable to medical reasons. The Board found that such delay could not be taken into account for promotion purposes.

14.

2011-128

Incentive Pay Category

Pay Protection

Pilot's Backdated Promotion to Captain

Promotion

Retroactive Pay

Partial Grant

Given that paragraph 11.02(2) of the Queen's Regulations and Orders for the Canadian Forces on promotion takes precedence over CF Administrative Orders 11-6, the Board found that it was, and remains, open to the CDS to direct the backdated promotion of any pilot to Captain rank prior to the date the pilot qualified at Wings Standard. Regarding the Captain pilot Incentive Pay Category (IPC) calculation, the Board found that, in accordance with subparagraph 204.03(5)(c) of the Compensation and Benefits Instructions, the grievor's IPC anniversary date was the date that he achieved Wings standard.

15.

2011-129

Mortgage Loan Insurance Premium

Relocation Expenses

Denial

The Board found that the vehicle towed by the grievor was not a trailer, but a powered vehicle registered as a Personnel Motor Vehicle. The Board also found that the grievor was not entitled to Mortgage Loan Insurance reimbursement because he did not transfer the equity generated by the selling of his former residence into the new one.

16.

2011-130

Military Foreign Service Instruction

Mission Subsistence Allowance

Denial

The Board acknowledged that the UN offers a more advantageous financial package than certain contingents, including Canada. However, the Board explained that the existence of a difference in financial benefits does not mean that the grievor suffered prejudice. The Board found that the grievor had been treated in accordance with chapter 10 of the Compensation and Benefits Instructions - Military Foreign Service Instruction.

17.

2011-131

Integrated Relocation Program

Temporary Dual Residence Assistance

Grant

The Board found that Clarification Bulletins should only be used to clarify potentially confusing articles of the Integrated Relocation Program, not to change, in a very significant and questionable manner, definitions like "actively marketed." Further, the Board found that Clarification Bulletin #4 had not been approved by Treasury Board and therefore had no bearing on the grievor's entitlement to Temporary Dual Residence Assistance.

18.

2011-132

Clarity of Information - Integrated Relocation Program

Personal Motor Vehicle

Relocation Expenses

Grant

The Board found that there was a duty to provide the grievor with an accurate estimate of the shipping cost of his second Personnel Motor Vehicle and this failure fatally altered the relationship between the grievor and the Crown servants who engaged the grievor's liability without his authorization.

19.

2011-133

Progress Review Board

Denial

The Board found that the Progress Review Board complied with the basic principles of procedural fairness and the decision to re-course the grievor was reasonable.

20.

2011-134

Class B Reserve Service

Respect of Procedures/Policies

Denial

The Board found that grievor's experience/qualifications were considered during the selection processes and that he suffered no injustice by the selection of another candidate.

21.

2011-135

Allowances and Benefits

Special Operations Allowance

Denial

The Board found that the designation of positions entitled to Special Operation Allowance, whether individually or by entire units, is not something to be done in response to requests from individual unit members, but rather must be the result of CF requirements. However, since the issue of designating the unit in question for the purpose of receiving the environmental allowance had been ongoing for too long, the Board suggested that the CDS make the review of this matter a priority.

22.

2011-136

Interim Lodging, Meals and Incidentals

Storage Fees

Partial Grant

The Board concluded that the grievor was entitled to additional Interim Lodging, Meals and Incidentals, as well as to reimbursement of storage in transit costs for an additional seven days. The Board was of the view that the CF should have a more generous provision to allow for unforeseen events which are not within the CF members' control, and preclude them from conducting a door-to-door move.

23.

2012-001

Personnel Evaluation Report

Grant

The Board found that the grievor's Personnel Evaluation Report (PER) was not reflective of his ranking and required amendments. The Board also concluded that Section 6 of the PER should be annotated to reflect the grievor's top third ranking.

24.

2012-002

Administrative Resolution of Grievances and Inquiries

Imposed Restriction

Separation Expense

Grant

The Board found that elements of the Director Compensation and Benefits Administration Aide-Memoire were not consistent with Compensation and Benefits Instructions 209.997 regarding the Separation Expense (SE). The Board recommended that the CDS direct an audit of the grievor's SE file and, should the audit confirm an overpayment, that the grievor's debt be considered for remission.

25.

2012-003

Release - Conduct/Performance

Unauthorized Drug Use

Partial Grant

Given the breach of the counselling and probation, and considering the circumstances, the Board found that the decision to release the grievor was justified and in accordance with the applicable policy, but it recommended that the release item be changed to item 5(d).

26.

2012-004

Release - Benefits

Relocation Benefits

Denial

The Board suggested that the CF consider employing the geographical boundaries of a Base to define the term "proximity" in article 12.9.01 of the Integrated Relocation Program, given that the intent of the benefit is to offer CF members an opportunity to relocate back to Canada and take their release from a CF base, as do other CF members serving in Canada at the time of their release.

27.

2012-005

Allowances and Benefits

Denial

The Board found that the grievor did not engage a commercial firm for the maintenance of his vacant residence while on deployment outside Canada as per section 10.28.01(3) of the Military Foreign Service Instruction.

28.

2012-006

Separation Expense Paid in Error

Imposed Restriction

Remission

Grant

The Board was of the opinion that when an Imposed Restriction (IR) is authorized, the CF expects that the CF member and his family will eventually be reunited at the new place of duty. The Board added that the decision to authorize IR is discretionary and, contrary to what has been suggested in certain CF General Messages (CANFORGEN), the IR is not a benefit and does not automatically entitle CF members to Separation Expense (SE). In the Board's view, the application of SE described in CANFORGENS 080/99 and 019/05 was incorrect and added two situations that were not contemplated by Compensation and Benefits Instructions 209.997. The Board therefore concluded that the grievor was never entitled to receive SE, even though IR status was authorized. The Board nonetheless recommended that a request be submitted to Treasury Board supporting the remission of the grievor's debt as per section 23 of the Financial Administration Act.

29.

2012-007

Promotion

Time Credit for Promotion

Denial

The Board found that the grievor was not entitled to additional qualifying time for the rank of Lieutenant (Navy) because he did not have former service in one of the non-officer ranks.

30.

2012-008

Pension Entitlements

Reserve

Denial

The Board found that the grievor was not entitled to have his 1/4 time credits augmented as earnings because the Reserve Force Pension Plan Regulations (RFPPR) augmentation provision applied only to days of CF service and not to earnings. The Board found that the grievor was entitled to buy back his prior earnings under the RFPPR and that the provisions of the CF Superannuation Act/ CF Superannuation Regulations do not apply.

31.

2012-009

Administrative Resolution of Grievances and Inquiries

Pension Entitlements

Reserve

Grant

The Board found that the CF form being used for the purpose of calculating the Reserve Force Retirement Gratuity (RFRG) employed a formula which conflicted with Compensation and Benefits Instructions 204.54. Notwithstanding the receipt of a Regular Force 30-year maximum severance pay benefit, the Board concluded that members of the Primary Reserve with eligible Primary Reserve service who were released under the applicable release item could have been wrongly denied a RFRG.

32.

2012-010

Recruitment Allowance

Remedy/Redress

Partial Grant

The Board found that the grievor's agreement to enroll, given due consideration, namely the promise extended to him that he would receive a Recruitment Allowance (RA), concluded an enforceable arrangement of a contractual nature with the Crown while he was a civilian. The Board concluded that such an agreement should survive enrollment in the CF and therefore, the CF had a moral obligation to provide some redress to the grievor equivalent to the RA amount.

33.

2012-011

Counselling and Probation

Recorded Warning

Partial Grant

With respect to the administration of remedial measures, the Board was of the opinion that, contrary to the evaluation objectives and criteria set out in the policy, the supervisor had not taken account of the grievor's rank, his military occupation, his experience, or his work-related medical restrictions. After carefully reviewing each remedial measure challenged by the grievor, the Board concluded that, except in the case of the initial counselling, the vigour and speed with which the remedial measures were imposed on the grievor were not in keeping with the objectives and principles underlying the measures.

34.

2012-012

Overpayment

Remission

Separation Expense

Grant

The Board found that the grievor's situation did not meet the criteria of Compensation and Benefits Instructions 209.997(5) to be entitled to Separation Expense, but found that it was unreasonable to collect the debt and recommended that a remission order be submitted as per section 23 of the Financial Administration Act.

35.

2012-013

Custodial Services Expenses

Pet Care/Transportation Expenses

Denial

The Board found that pet care costs are part of the Operations Foreign Service Premium Allowance.

36.

2012-014

Delegation of Authority

Relinquishment of Rank

Reserve

Terms of Employment for Reservists

Grant

The Board found that the CF erred by extending the grievor's Class B service without competition and that this error was detrimental to him. Because the CF failed to hold the necessary competition, and in the absence of another qualified candidate, the Board found that the grievor would have been eligible for over-ranking pursuant to paragraph 4.8 of the Chief of Military Personnel Instruction 20/04.

37.

2012-015

Component Transfer

Pay

Denial

From a pay perspective, the Board found that the grievor received the rate of pay approved by Treasury Board in Compensation and Benefits Instructions 204.211(7). Despite the inconveniences resulting from the requirement for the grievor to complete CF recruitment center processing as per Chief of Military Personnel Instruction 03/08, the Board was unable to conclude that the grievor was prejudiced. However, the Board was of the opinion that if the CF Recruitment Center were to process all joining CF members in the same fashion, the component transfer process would be smoother and better aligned with the CF philosophy expressed in the Chief of Military Personnel Instruction 03/08.

38.

2012-016

Cadet Instructor Cadre

Claims Against the Crown

Partial Grant

While the Board found that there is no evidence that the grievor would have secured employment had he been notified of the available positions within other units, it nonetheless found that the grievor was unfairly denied the opportunity for potential employment and recommended that his file be forwarded to the Director Claims and Civil Litigation.

39.

2012-017

Attach Posting Benefits

Incidental Expenses

Meal Expenses

Partial Grant

In the Board's opinion, other than for travelling to or from the attached-posting, the CF Temporary Duty Travel Instruction (CFTDTI) does not apply to CF members on attached-posting in Canada. However, the Board found that pursuant to section 7.10 of the CFTDTI, the grievor was entitled to the meal allowance even if he was provided rations on an American base, as the meal was not provided free of charge.

40.

2012-018

Income-Producing Property

Real Estate and Legal Fees

Grant

The Board found that the Income Tax Act Interpretation Bulletin IT-120R6 is helpful and was of the view that it helped demonstrate that, although a principal residence can be considered to be an income property, it does not indefinitely make it as such. The Board concluded that the grievor was entitled to the full reimbursement of the eligible expenses associated with the selling of his residence.

41.

2012-019

Mortgage Loan Insurance Premium

Relocation Expenses

Denial

While sympathetic to the grievor's position with respect to family size, the limited choices of houses in his price range and his fear of not being able to sell his former residence, the Board found that the grievor received the benefits to which he was entitled as per the policy. On the issue of Mortgage Loan Insurance, the Board found that the reimbursement of any additional funds to the grievor would place him at an advantage over his peers, as well as being contrary to Treasury Board's direction.

42.

2012-020

Enrollment Offers

Overpayment

Remission

Grant

The Board found that the grievor was not entitled to Pay Increment 3 upon enrollment. However, the grievor accepted and relied on the enrollment offer, while he was still a civilian, not a serving CF member. It was the Board's view that the CF had a moral obligation to provide financial compensation as redress or the grievor's debt should be remitted as per section 23 of the Financial Administration Act.

43.

2012-021

Imposed Restriction

Overpayment

Separation Expense

Partial Grant

The Board determined that sub-paragraph 209.997(2)(b) of the Compensation and Benefits Instructions (CBI) - Separation Expense (SE) does not state that a CF member's dependants must be living with him/her at the time of their posting in order to be eligible for this benefit. According to the definition of "dependant" at sub-paragraph 209.80(3)(b) of the CBI, it is sufficient for dependants to be living "normally" with the CF member at his or her place of duty. Since the grievor's situation met the requirements of 209.997(2) and (5) of the CBI, the Board concluded that he was eligible for SE.

44.

2012-022

Overpayment

Pay

Remission

Grant

The grievor accepted and relied on the enrollment offer, while he was still a civilian - not a serving CF member. It was the Board's view that the CF had a moral obligation to provide financial compensation as redress or the grievor's debt should be remitted as per section 23 of the Financial Administration Act.

45.

2012-023

Intended Place of Residence

Denial

The Board found that the Addendum A-4 of the Integrated Relocation Program 2003 stated that periods of Class B or C service shall extend the Intended Place of Residence (IPR) period by the corresponding number of days of that service. Since the mandatory 35-day break in service could not be deemed to be days of service, the Board concluded that it could not be counted towards extending the grievor's IPR election.

46.

2012-024

Pay

Re-Enrollment

Remission

Grant

The Board determined that the grievor should have been re-enrolled at the rank of Private with Pay Increment level 1. However, the grievor accepted and relied on the enrollment offer, while he was still a civilian, not a serving CF member. It was the Board's view that the CF had a moral obligation to provide financial compensation as redress or the grievor's debt should be remitted as per section 23 of the Financial Administration Act.

47.

2012-025

Pilot

Promotion

Partial Grant

The Board concluded that, in most cases, the long delays in training pilots was a military issue since the CF is responsible for managing this program. The Board concluded that the grievor was unfairly treated in terms of lost wages and lost seniority in his rank. Therefore, the Board recommended that the CDS exercise his authority pursuant to paragraph 11.02(2) of Queen's Regulations and Orders for the Canadian Forces and grant the grievor a promotion to the General Service Officer Captain rank, backdated to his entry to promotion zone date. Finally, the Board concluded that in accordance with paragraph 204.03(5)(c) of the Compensation and Benefits Instructions, the Incentive Pay Category anniversary date for the grievor was appropriately established as the date on which he obtained his pilot's Wings.

48.

2012-026

Pay

Re-Enrollment

Remedy/Redress

Grant

The Board determined that the grievor should have been re-enrolled as a Private Pay Increment level 1. However, when the grievor accepted and relied on the offer, he was still a civilian - not a serving CF member. It was the Board's view that the CF had a moral obligation to provide redress to the grievor and that financial compensation should be available as redress. The Board was of the view that CF members in such circumstances should be allowed to choose between accepting to serve under the new conditions of service and obtain financial compensation for damages that have resulted from the error or taking a release without penalty in addition to financial compensation to cover all expenses necessary to put them back where they were prior to enrollment.

49.

2012-027

Pay

Re-Enrollment

Time Credit for Promotion

Denial

The Board noted that the grievor's previous service was recognized, but found that the grievor had not made a case that he had exceptional qualifications or that his civilian experience had resulted in the maintenance of relevant skills or qualifications of any particular military value. Despite the grievor's submissions outlining his notable service since re-enrollment, the Board was of the opinion that the determination of credits at the time the grievor applied for re-enrollment could only be based on the information available at that time.

50.

2012-028

Place of Duty

Relocation Benefits

Grant

The Board concluded that the grievor had been posted from one place of duty to another, notwithstanding that his residence was already located within the geographical boundary of his new place of duty. The Board found that, in applying the formula for calculating the distance set at Integrated Relocation Program (IRP) article 1.1.03, the large size of the geographical areas established as the places of duty were problematic. The Board noted that the term "place of duty" is being used to mean both a geographical boundary and a worksite in the IRP. The Board suggested that the CDS consider modifying the definition of "place of duty" to avoid confusion and to insure that CF members receive the benefits to which they are entitled.

51.

2012-029

Release - Conduct/Performance

Grant

The Board found that the administrative review process leading to the release decision was in breach of procedural fairness, because the decision maker had not provided proper reasons. After a de novo review, the Board concluded that the grievor's unacceptable behaviour was related to his now documented medical condition. The Board recommended that the CDS order that the grievor's release item be changed from 5(f) to 3(b).

52.

2012-030

Administrative Review Process

Denial

The Board found that the grievor was notified of the administrative review process, provided with disclosure of the relevant information that would be used to reach a decision and afforded the opportunity to make representations, which he declined. The Board was also satisfied that the administrative review process was conducted in accordance with established policies.

53.

2012-031

Medical Employment Limitation

Release

Grant

According to the Board, the permanent Medical Employment Limitations (MELs) imposed on the grievor were incongruous with the medical opinions of the medical officer and the grievor's psychiatrist, who treated him for several years. Moreover, no reasons were given to justify the major gap between the recommendations and the MELs. The Board concluded that the MELs as drafted were not justified in the absence of a valid medical opinion that would support them. Consequently, the Board found that the decision ordering the grievor's release should be considered void ab initio.

54.

2012-032

Real Estate Commission Paid on the Purchase of a Replacement Residence

Relocation Expenses

Denial

The Board found that the file did not support the conclusion that the grievor had been ill-advised by a relocation counsellor. However, the Board reiterated a conclusion made in a previous file that greater clarity should be provided to CF members by inserting a note in future Integrated Relocation Program manuals, indicating that the real estate commission is not reimbursable when purchasing a replacement residence.

55.

2012-033

Overpayment

Remission

Separation Expense

Grant

The Board was of the view that the fact his spouse moved residences after he proceeded on Imposed Restriction did not disentitle the grievor to Separation Expense; nothing in Compensation and Benefits Instructions 209.997 prohibits a CF member's dependants from subsequently relocating, nor that such relocation would disentitle a CF member to this benefit. The Board found that the CF, given its actions, bore full responsibility for the overpayment and remission of the debt in accordance with section 23 of the Financial Administration Act was appropriate.

56.

2012-034

Imposed Restriction

Separation Expense

Partial Grant

In the Board's opinion, under the applicable former Compensation and Benefits Instructions (CBI) 209.997, the grievor met the criteria to be entitled to Separation Expense (SE) benefit at the time of his posting and there was no change to any of the conditions because of the divorce action taken by the grievor's wife. Also, the Board found that the grievor was entitled to Imposed Restrictions status and SE benefits up to 90 days after CBI 208.997 came into effect on 1 January 2012.

57.

2012-035

Leave Entitlement

Grant

The Board noted that the sole reason for which the grievor did not qualify for 30 days of annual leave was due to a CF error. The Board noted that article 16.20 of the Queen's Regulations and Orders for the Canadian Forces gave the CDS authority to grant up to 30 days of special leave annually. The Board therefore recommended that the CDS grant the grievor the equivalent of 30 days of annual leave, by granting him five days of special leave annually, thus remedying the CF error.

58.

2012-036

Release - Conduct/Performance

Denial

Since there was no independent evidence that the grievor's misuse of medication had an effect on his conduct and performance, the Board concluded that his release under item 5(f) was appropriate and in accordance with the provisions of the relevant policies found at CF Administrative Orders 15-2, Annex A, and Defence Administrative Orders and Directives 5019-2.

59.

2012-037

Compassionate Travel Assistance

Denial

Reservists serving on Class B or C service are entitled to the Compassionate Travel Assistance as per Compensation and Benefits Instructions 209.51, only if they had been authorized a move at public expense in respect of that period of service. Since the grievor had not been authorized a move at public expense for the purpose of his period of service, the Board concluded that the grievor was not entitled to this benefit.

60.

2012-038

Pay

Re-Enrollment

Partial Grant

The Board was of the view that following a break in service of over five years, experience acquired during previous military service does not constitute qualifying service for pay increments. However, the Board indicated that the grievor's qualifications recognized when she re-enrolled should be considered in the calcuation of her time credit incentive and her time credit for promotion as the CF will not have to offer her this training a second time. Consequently, the Board found that the CF should credit the grievor with an additional 40 days of courses.

61.

2012-039

Personal Motor Vehicle

Denial

The Board found that the provincial portion of the harmonized sales tax of a vehicle imported from abroad is not a reimbursable mandatory expense under section 9.4.03 of the Integrated Relocation Program.

62.

2012-040

Harassment

Release - Compulsory

Partial Grant

The Board concluded that the Responsible Officer's situational assessment and his decision not to investigate the complaint were both flawed. Conducting its own situational assessment in accordance with the Harassment Prevention and Resolution Guidelines, the Board found that some allegations, as stated, met the definition of harassment and, if founded, could invalidate the grievor's compulsory release. Therefore, the Board recommended that the CDS direct a harassment investigation be undertaken to determine whether the grievor's allegations have merit.

63.

2012-041

Cadet Instructor Cadre

Respect of Procedures/Policies

Partial Grant

The Board found that the CF denied the grievor the opportunity for potential employment while he was on the Cadet Instructor Supplementary Staff List. The Board was also of the view that it was unreasonable to have the grievor wait for the outcome of a summary investigation into hiring practices since its initial focus was on the change of command at the grievor's former Air Cadet Squadron, not on the grievor's performance.

64.

2012-042

Education Reimbursement - Primary Reserve

Partial Grant

The Board was of the opinion that since Assistant Deputy Minister (Human Resources - Military) Instruction 04/01 was not a regulation authorized by Treasury Board, it could not be used as authority to approve the grievor's educational reimbursement for two periods. However, for the third period, it was confirmed by the Canadian Defence Academy staff that the grievor's choice of diploma, education institution and financial reimbursement request would have met all the criteria in the policy, had the claim not been lost by the grievor's unit. The Board found that the grievor should be reimbursed the maximum allowed for this academic period in accordance with Compensation and Benefits Instructions 210.801.

65.

2012-043

Component Transfer

Release - Reserve

Grant

Given that the grievor's requests had been supported by his immediate Chain of Command and forwarded to the unit support staff for action, the Board found it reasonable for the grievor to believe he had been transferred to the Supplementary Reserve. The Board found that the declaration of the grievor as non-effective strength was unreasonable. Therefore, the Board found that the grievor's item 5(f) release was not justified.

66.

2012-044

Overpayment

Transfer from Reserve Force to Regular Force

Grant

The Board was of the view that the grievor's corrected rank was not in line with the applicable policies because the CF used a policy applicable to a direct entry officer who is enroled directly from civilian life, while the grievor was transferred from the Reserve Force. Consequently, the Board found that the grievor was not entitled to the rate of pay indicated on his original transfer and posting message. However, the Board recommended the CDS acknowledge the CF error that led to a breach of promise with respect to the rank and pay granted to the grievor on transfer to the Regular Force and that the CDS consider providing financial redress for the breached promise through any mechanism available to him within the context of the grievance process.

67.

2012-045

Difference Between Imposed Restriction and Separation Expense

Overpayment

Separation Expense

Partial Grant

The Board pointed out that up until 31 December 2011, the administration of Separation Expense (SE) was governed by Compensation and Benefits Instructions 209.997 which stipulates that only members of the Regular Force and Class C Reserve were eligible for the SE, subject to meeting some conditions. Despite the fact that the grievor, a reservist, had been receiving the SE in error since 2006, the Board found that his situation fell into the category of reservists for which the CF were about to draw up a submission to Treasury Board requesting forgiveness of the debt of all reservists who received the SE in error while performing Class B service in the Reserve.

68.

2012-046

Relocation Expenses

Relocation of Dependants

Grant

The Board noted that article 2.9.01 of the Integrated Relocation Program 2009 does not specify which relocation benefits are included under the two-year time limit to receive reimbursement nor does it exclude the transportation of dependants. Consequently, the Board found that the Director General Compensation and Benefits decision should apply to all of the grievor's relocation expenses, including those associated with relocating her dependants.

69.

2012-047

Real Estate and Legal Fees

Denial

The Board found that the decision to deny the grievor reimbursement for home purchase expenses was in accordance with Integrated Relocation Program 2006/2007 which indicated that the benefits associated with the purchase of a replacement residence were only claimable if the residence is purchased not more than one year before or two years after the change of strength date or the date of shipment of the Household Goods and Effects to the new place of duty, whichever is later.

70.

2012-048

Accuracy of Information by Recruiters

Breach of Contract/Promise

Pay

Partial Grant

The Board found that the grievor was correctly paid at the rank of Officer Cadet. However, the Board found that the grievor's treatment in this regard represented a breach of contract by the CF for having failed to pay the grievor as a Second Lieutenant, a promise which was made to him while he was still a civilian. The Board recommended that the CDS consider providing financial redress through any mechanism available to him within the grievance process.

71.

2012-049

Procedural Fairness

Release - Conduct/Performance

Grant

Referring to the Supreme Court of Canada decision in Dunsmuir, the Board found that the breach of procedural fairness rendered the grievor's release void ab initio, such that his employment with the Reserve Force never ceased. The Board also found that the compulsory release was excessive in the circumstances and recommended that the grievor be reinstated.

72.

2012-050

Separation Expense

Grant

The Board found that the grievor did not meet the conditions of Compensation and Benefits Instructions (CBI) 209.997 for entitlment to Separation Expense. However, based on the Integrated Relocation Program (IRP) and Aide-Memoire policies, which identify the option of transferring the benefit between the partners of a married service couple, the Board found that the ministerial discretion under CBI 209.013 should be exercised to compensate the grievor. Furthermore, the Board was of the opinion that CBI 209.997 has precedence over the IRP. Accordingly, the Board found that the grievor's accommodation, his private home, is included in the applicable definition of non-commercial lodgings and the grievor was entitled to reimbursement of actual and reasonable expenses for lodgings.

73.

2012-051

Overpayment

Remission

Separation Expense

Partial Grant

Although the grievor had a dependant at the time she was posted, her husband never resided with her; consequently, she was not entitled to Separation Expense. The Board recommended that a submission to Treasury Board requesting support for the remission of 50% of the amount be prepared as per section 23 of the Financial Administration Act. Since the grievor had no choice but to live on base and draw CF rations, she was precluded from seeking more economical lodgings and meal options.

74.

2012-052

Relocation Expenses

Denial

The Board found that the grievor was not entitled to receive the benefits applicable to the sale of a principal residence, since he was not occupying the house immediately prior to its sale, one of the eligibility conditions clearly set out in the Integrated Relocation Program.

75.

2012-053

Leave Entitlement Reserve

Partial Grant

The Board found that Naval Reserve Headquarters' interpretation that Special Leave (Relocation) could not apply to Class A members proceeding on Class B service for employment or training is wrong. The Board also concluded that where the provisions of article 16.11(b) of the Queen's Regulations and Orders for the Canadian Forces were met, Reserve Force members would also need to meet the requirements of the CF Leave Policy Manual, Section 5.11, Special Leave (Relocation).

76.

2012-054

Breach of Contract/Promise

Pay

Grant

The Board found that the grievor was not entitled to a rate of pay based on former service as he had none and, therefore, that the revised rate of pay was correct. However, since the commitment was not made to a serving CF member but rather was a pre-enrollment promise made to the grievor while he was still a civilian, the Board found that the grievor could pursue a case in breach of contract before the Courts and that the CF had a moral obligation to provide redress.

77.

2012-055

Relocation Expenses

Grant

The Board concluded that the applicable policy is clear and that the grievor's situation fit squarely within the provisions of section 11.1.04 of the Integrated Relocation Program (IRP), which allows a delay of up to 12 months for the shipment of Household Goods and Effects (HG&E) when the latter have not been placed in long term storage. The Board found that the grievor was entitled to a delayed move of his HG&E, as well as to his transportation, travelling and interim lodgings, meals and miscellaneous expenses under section 11.2.13 of the IRP for the return to assist for up to five days.

78.

2012-056

Component Transfer

Pay

Grant

The Board found that the Special Commissioning Program - Component Transfer was the plan applicable to the grievor. The Board found that the pay rate applicable to the grievor was in accordance with Compensation and Benefits Instructions 204.211(10)(b)(i), which was less than if the grievor has been enrolled as an applicant with previous military service. Consequently, the Board found that the CDS could remedy the injustice by directing the grievor's release from the Primary Reserve effective the day prior to his component transfer and directing his re-enrollment into the Regular Force as a Direct Entry Officer, effective the following day, thus bringing the grievor's pay in line with what was intended upon the creation of the Special Commissioning Program - Component Transfer.

79.

2012-057

Course Failure

Release - Compulsory

Partial Grant

The Board concluded that the facts did not demonstrate that the grievor lacked the capacity to pursue his military service. The Board was of the opinion that the Personnel Selection Officer had failed to conduct an adequate review of the grievor's file. As a consequence, the Director Military Careers Administration did not receive a proper answer to the question as to whether the grievor could be reclassified or not.

80.

2012-058

Home Equity Assistance

Partial Grant

The Board was satisfied that the market analysis prepared by the grievor demonstrated precisely the type of depressed situation contemplated in the Home Equity Assistance policy and, in the Board's view, the Director Compensation and Benefits Administration was required to forward the file to the Treasury Board Secretariat for review.

81.

2012-059

Allowance - Loss of Operational Allowances

Medical Condition

Denial

The Board found that, of the five risk factors believed to possibly trigger Type 1 Diabetes, only one might possibly have applied to the grievor, but there was no evidence in the grievor's files of the presence of this factor. Therefore, the Board found that the grievor did not meet the definition of a military casualty and therefore was not entitled to Allowance - Loss of Operational Allowances.

82.

2012-060

Pay

Prior Learning Assessment Review

Partial Grant

In the Board's opinion, although the Initial Authority pointed out there was no requirement for officers in the grievor's military occupation to hold a master's degree or have prior work experience, a Prior Learning Assessment Review should have been conducted to determine the value of the grievor's advanced degree and experience to the CF.

83.

2012-061

Medical Employment Limitation

Release - Medical

Denial

The Board determined that the grievor did not meet one of two criteria provided in Defence Administrative Orders and Directives 5023-1 for a retention period with employment limitations namely that there be a significant shortage in the CF member's military occupation or that the CF member possesses a specific and unique occupational skill that is required.

84.

2012-062

Procedural Fairness

Release - Conduct/Performance

Remedy/Redress

Grant

The Board found that the Administrative Review process lacked procedural fairness and was fatally flawed because the reasons justifying the release were inadequate. The Board found that the breach of procedural fairness could not be cured by the grievance process because the grievor had already been released. Accordingly, the Board found that the grievor's release should therefore be rendered void ab initio such that the grievor's employment relationship with the CF never ceased.

85.

2012-063

Relocation Expenses

Travel Expenses

Partial Grant

The Board found that the grievor was entitled to the reimbursement of actual and reasonable expenses incurred following the cancellation of her posting as per the Integrated Relocation Program. The Board was also of the view that once the grievor made the decision to keep the trailer, it became part of her household goods and effects. Consequently, the Board found that the grievor has no entitlement to reimbursement for the actual cost of the trailer.

86.

2012-064

Home Equity Assistance

Partial Grant

The Board was satisfied that the market analysis prepared by the grievor demonstrated precisely the type of depressed situation contemplated in the Home Equity Assistance policy and, in the Board's view, the Director Compensation and Benefits Administration was required to forward the file to the Treasury Board Secretariat for review.

87.

2012-065

Relocation Benefits

Special Commuting Assistance

Denial

Since Saint-Jean-sur-Richelieu and Montreal are part of the same geographical area, the Board concluded that the grievor had not been posted to a new place of duty and that she was not eligible for a Crown-funded relocation. Therefore, the Board found that the grievor was not entitled to receive Special Commuting Assistance.

88.

2012-066

Harassment

Partial Grant

The Board found that the Harassment Guidelines were not followed during the investigation and that the concept of harassment seemed to have been misunderstood and misapplied by the investigating officer. The Board concluded that the fatally flawed harassment investigation, as well as the initial authority decision, which relied exclusively on the results of this investigation, should be set aside. The Board recommended that the CDS direct that a new harassment investigation be conducted.

89.

2012-068

Leave Travel Assistance

Grant

The Board found that Compensation and Benefits Instructions (CBI) 209.50, in effect at the time the grievor's next of kin visited him, provided no authority for reverse Leave Travel Assistance and that the Aide-Memoire could not be used. However, the Board was of the opinion that the ministerial discretion under CBI 209.013(2) should be invoked because the circumstances, although not dissimilar, were different from those established by CBI 209.50 since it was the next of kin who travelled instead of the grievor himself.

90.

2012-069

Relocation - Reservists

Partial Grant

The Board found that the administration of the grievor's periods of service was poorly managed. There was substantial overlap between the various periods of Class B service established in the various statements of understandings, however, there was no indication that any of them had been properly ceased in accordance with the relevant policies. The Board found that it was not reasonable to give retroactive effect to a statement of understanding but rather, it had to take effect on the date of the signature.

91.

2012-070

Dental Services

Reserve

Partial Grant

The Board found that the limitation contained in the Spectrum of Care - CF Health Services document was in contravention of the Queen's Regulations and Orders for the Canadian Forces, as it limited the right of CF members to the dental care provided for under the regulations. The Board found that the grievor should have received the offer to commence the treatment if he agreed to accept the costs associated with the remaining treatment after his entitlement to full CF care ceased.

92.

2012-071

Administrative Review

Medical Employment Limitation

Denial

In the Board's view, it was reasonable and necessary for the CF to re-assess the grievor's permanent medical category and Medical Employment Limitation, and to conduct a new administrative review in order to determine if her status met the Universality of Service Principle.

93.

2012-072

Harassment

Progress Review Board

Grant

The Board found that the grievor's second Progress Review Board (PRB) was unnecessary, given that the course had been completed, and the qualification earned, before that Board was even convened. The Board found that the PRB based its findings largely on the discredited findings of the harassment investigation and that it was not conducted in full accordance with the associated orders. The Board also concluded that the administrative measures taken against the grievor as a result of the second PRB and the harassment investigation findings were unnecessary and should be removed from the grievor's file.

94.

2012-073

Repatriation

Denial

While the decision to repatriate the grievor was, to some degree, procedurally deficient, the Board found that the Commanding Officer acted in the best interest of the CF with the available information. The Board also concluded that the foreign duty allowances are not payable if a CF member is no longer in theatre, which was the grievor's case.

95.

2012-074

Harassment

Partial Grant

In the absence of all of the relevant documents, including the harassment investigation report, the Board concluded that it could not be determined whether the proper standard of proof was considered and whether or not the decision rendered was justified and reasonable. However, the Board recommended that the CDS express regret to the grievor for the way his file was handled.

96.

2012-075

Harassment

Partial Grant

The Board found that both the Initial Authority and the grievor's Commanding Officer failed to conduct a proper situational assessment and the grievor's complaint was not handled in accordance with the applicable policy. The Board was of the opinion that the grievor's allegations, as stated, met the definition of harassment and that the grievor was still working in the same environment. Despite the fact that measures aimed at addressing the situation were taken, the Board recommended the CDS direct that an independent investigation be conducted into the grievor's harassment complaint.

97.

2012-076

Jurisdiction

No Jurisdiction

The Board found that it could not review the merits of the case because the grievor's submission to the Director Military Careers was not a grievance as per section 29 of the National Defence Act.

98.

2012-077

Medical Employment Limitation

Denial

The Board did not find anything that would support and justify an Occupational factor 3 (O3). The Board recommended that the CDS direct the grievor's occupational factor be changed to O2.

99.

2012-078

Recorded Warning

Grant

Since the grievor had not been previously counselled for a substantially related issue, it was inappropriate to rely on a initial counselling to justify issuing a recorded warning to the grievor. Accordingly, the Board found that the grievor should not have been issued a recorded warning.

100.

2012-079

Counselling and Probation

Denial

Two personnel development reviews during a nine-month monitoring period cannot reasonably be considered as regular briefings, but the Board found that it does not automatically render the Counselling and Probation (C&P) invalid. The Board found the explanations given by the grievor's Commandant were reasonable in the circumstances and fit the description of service reasons provided for in the policy. The Board concluded that the C&P was valid.

101.

2012-080

Termination Class B Reserve Service

Denial

The Board explained that the grievor could not serve simultaneously on Class B and C service and that, consequently, his period of Class B service had ended one day earlier than planned in order to allow him to start his period of service on Class C. Therefore, the Board concluded that it was not necessary to provide a 30-day notice to announce a change to Class B service.

102.

2012-081

Administrative Action

Illegal Drugs

Grant

The Board acknowledged that in an administrative context, the burden of proof is based "on a balance of probabilities", but added that the evidence used must still be evaluated and given the proper weight. After carefully considering the file material, the Board could not conclude that the drugs found in the grievor's room were possessed by him. Consequently, the Board found the decision to evict the grievor from quarters was unreasonable.

103.

2012-082

Ex gratia

Termination Class B Reserve

Service

Grant

The Board found that Instruction 20/04 cannot be invoked to grant a 30-day notice in order to change a period of Class B service, if that period had not begun. However, since he had not been treated fairly, the Board recommended that the CDS make an ex gratia payment to the grievor of an amount equivalent to 30 days of Class B service.

104.

2012-083

Class B Reserve Service

Respect of Procedures/Policies

Grant

The Board came to the conclusion that re-opening the application process, including an interview with the grievor, was not enough to make up for the original mistakes. Furthermore, the Board was of the opinion that the new information supported its conclusion that the selection process had been frivolous from the outset, and recommended that the CDS order a new competition.

105.

2012-084

Remedial Measures

Grant

Although the wording in the synopsis correctly described the grievor's performance issue, the Board found that a verbal counselling would have been sufficient as the incident did not meet the seriousness criterion required to administer a remedial measure as described in Defence Administrative Orders and Directives 5019-4.

106.

2012-085

Acting Rank

Reversion in Rank

Grant

Given the particular circumstances, the Board concluded that the decision to revoke the grievor's acting/lacking Warrant Officer rank during his period of retention was unreasonable and unjustified. The Board was also of the opinion that, in this exceptional case, the CDS should order that the grievor be exempted from having to complete the Intermediate Leadership Qualification.

107.

2012-086

Leave Travel Assistance

Grant

The Board found that the grievor had initiated the process to claim the Leave Travel Assistance (LTA) and all that remained was the submission of his receipts when Compensation and Benefits Instructions 209.50 was amended to allow reimbursement related to a commercial carrier only. In accordance with subsection 43(c) of the Interpretation Act, the Board found that the grievor had a vested right to his LTA.

108.

2012-087

Administrative Action

Married Quarters

Denial

Although the base authorities should have conducted an administrative investigation into the grievor's situation with his neighbour, the Board found that since both individuals have since been posted, there would be no point now to conduct such an investigation.

109.

2012-089

Administrative Action

Release - Conduct/Performance

Denial

The Board noted that two obligations were not complied with at the end of the grievor's monitoring period, but concluded that it did not invalidate the recorded warning and the personnel development reviews. The grievor did not challenge the initial authority's (IA) decision concerning the recorded warning and the personnel development reviews, and consequently, the Board found that the IA's decision was reasonable and should stand.

110.

2012-090

Family Care Assistance

Normally Resident - Interpretation for Benefit Purposes

Grant

The Board found that the grievor's children were "normally resident" with her and that she was entitled to the Family Care Assistance for the period she was deployed.

111.

2012-091

Relocation Benefits

Not Grievable

The Board found that the grievance was submitted prematurely because the grievor was still awaiting a decision from the Director Compensation and Benefits Administration at the time of submission. The Board could not therefore address the submission as it did not relate to any decision, omission or act made in the administration of the affairs of the CF.

112.

2012-092

Relocation Benefits

Not Grievable

The Board found that the grievance was submitted prematurely because the grievor was still awaiting a decision from the Director Compensation and Benefits Administration at the time of submission. The Board could not therefore address them as they did not relate to any decision, omission or act made in the administration of the affairs of the CF.

113.

2012-093

Relocation Benefits

Not Grievable

The Board found that the grievance was submitted prematurely because the grievor was still awaiting a decision from the Director Compensation and Benefits Administration at the time of submission. The Board could not therefore address them as they did not relate to any decision, omission or act made in the administration of the affairs of the CF.

114.

2012-094

Relocation Benefits

Denial

The Board was of the view that article 8.01 of the Integrated Relocation Program 2009 provides an entitlement to the reimbursement of purchase expenses only when posted from one place of duty to another. Following his enrollment, the Board concluded that grievor was posted to a new unit but remained in the same geographic boundary, hence he remained in the same place of duty and therefore, he was not entitled to the benefits.

115.

2012-095

Pension Entitlements

Denial

The Board found that the decision not to allow the grievor to buy back his prior pensionable service at the non-belated (1997) rate was correctly made in accordance with the CF Superannuation Act.

116.

2012-096

Recruitment Allowance

Grant

Given incorrect information provided to him by the CF, the Board found that the CDS should use his authority to direct that the grievor's enrollment date be changed to address his eligibility for a Recruitment Allowance.

117.

2012-097

Home Equity Assistance

Denial

The Board acknowledged that the grievor suffered a substantial loss, but the drop of the housing market in his community was less than 20%, thus disqualifying his case from being referred to the Treasury Board Secretariat under the Home Equity Assistance policy. However, the Board expressed hope that the Integrated Relocation Program 2013 Manual, now under review, will be changed so that CF members are not in financial distress as a result of being relocated for service reasons.

118.

2012-098

Expansion of the Spectrum of Care for Infertility Treatments

In vitro Fertilization

Grant

The Board found that, since August 2010, CF members are not currently receiving in vitro fertility treatments comparable overall to that received by Canadians under provincial health care plans. In the Board's opinion, the Spectrum of Care Review Committee failed to meet the CF commitment of comparability and the Board found that this decision was unreasonable.

119.

2012-099

Recorded Warning

Denial

The Board was satisfied that the grievor demonstrated unacceptable conduct as alleged and that the imposition of a recorded warning was justified. However, the Board recommended that the recorded warning be amended to reflect a conduct deficiency, rather than a performance deficiency.

120.

2012-100

Recorded Warning

Partial Grant

The Board found that the recorded warning was excessive in the circumstances, and recommended that the CDS order that this administrative measure and any correspondence related thereto be expunged from the grievor's personnel file.

121.

2012-101

Reserve

Respect of Procedures/Policies

Denial

The Board concluded that, at the time of the advertised position, the grievor was not a member of the Air Reserve, nor commanded by the Air Command and, therefore, her application could not have been treated as a "Priority 1."

122.

2012-103

Home Equity Assistance

Denial

Although the Board determined that the grievor was not treated fairly, the Board found that the grievor had been provided with all the Home Equity Assistance (HEA) benefits to which he was entitled under the Integrated Relocation Program 2009. The Board observed that it had commented on the HEA issue several times in other cases and that the issue demanded the personal and immediate attention of the CDS.

123.

2012-104

Separation Expenses

Denial

The Board found that the grievor was not entitled to Separation Expense as per Compensation and Benefits Instructions 209.997, since she was not posted to a new place of duty when she changed position and thus, that she was not authorized a move of her household goods and effects at public expense. The Board found that the recovery was reasonable and there was no reason to remit the debt.

124.

2012-105

Overpayment

Grant

The Board found that there was no authority, on either posting or attach posting, to grant the grievor free rations and quarters and incidentals at public expense during the periods of service for which recovery action was ordered. However, the CF represented to the grievor that she was entitled to the benefits and because she relied on that information, she did not take action to avoid accumulating the debt at issue. The Board concluded that the recovery action was unfair and based on the Financial Administration Act provision, which states that the Crown "may" rather than "shall" recover, the doctrine of estoppel was applicable.

125.

2012-106

CF Drug Control Program

Release - Conduct/Performance

Denial

The Board was satisfied that the grievor had breached the CF policies regarding misuse of alcohol and use of illicit drugs. The Board found that the Commanding Officer was justified in testing the grievor for cause. The Board found that the decision to release the grievor was justified.

126.

2012-107

Component Transfer

Discrimination

Denial

The Board noted that a Prior Learning Assessment and Recognition had determined that the grievor could be granted a bypass for Phase I training and therefore the Board found that the grievor should be considered as semi-skilled. The Board found that the grievor did not meet the required medical standard and was not entitled to component transfer to the Regular Force. Finally, the Board found that the grievor had not provided evidence of discrimination on the basis of age and aboriginal status.

127.

2012-108

Contingency Cost Move

Denial

The Board found that the Commanding Officer failed to comply with his obligations to review and decide on the grievor's request for a contingency cost move and to submit his recommendation. Also, the Board concluded that it was not in a position to presume what would have been the decision on the subject.

128.

2012-109

Personal Motor Vehicle

Relocation Benefits

Grant

The Board found that the grievor had no entitlement to a relocation at public expense because the second posting was within the same geographic area as the first posting. The Board also found that there was no provision within the Integrated Relocation Program to reimburse the expenses incurred by the grievor for engaging the services of a third party to dispose of his vehicles. However, the Board found that the grievor's case met the criteria for the CDS authority to use an ex gratia payment in order to pay the costs associated with the disposal of the grievor's two personal motor vehicles.

129.

2012-110

Release - Compulsory

Denial

The Board found that the mere fact the grievor failed in two attempts at classification training was sufficient and represented the primary reason to justify his release under item 5(d).

130.

2012-111

Annual Leave

Lack of Criteria Governing the Exercise of the Recovery Authority

Overpayment

Promissory Estoppel

Grant

The Board concluded that it was unreasonable for the CF to require reimbursement of the excess annual leave granted to the grievor. Based on article 208.315 of the Queen's Regulations and Orders for the Canadian Forces, the Board concluded that the CDS was permitted, according to the legislator, to anticipate situations where it would be fair and reasonable not to recover overpaid leave. The Board was also of the opinion that the grievor's situation met the criteria of promissory estoppel.

131.

2012-112

Component Transfer

Partial Grant

The Board concluded that the grievor's rank awarded upon component transfer was in accordance with the applicable policy. On the issue of the grievor's rate of pay, the Board was satisfied that, in the circumstances and using previous full-time paid service calculations, the grievor was awarded the highest pay increment level possible. However, given the grievor's extended service with the Cadet Instructor Cadre and his extensive experience, the Board found it would be reasonable for the CDS to waive the three-year time in rank requirement in recognition of the grievor's time in service in the Reserve Force.

132.

2012-113

Promotion

Denial

The Board found that Serial 4 of CF Administrative Orders 49–12 Annex A was correctly applied to the grievor, since Serial 5 only applies when members with former service in the CF are enrolled in or transferred to the Primary Reserve, which was not the case for the grievor.

133.

2012-114

Career Progression

Denial

The Board found that the grievor had notice of the importance placed on second official language competency by the CF and there was an onus on him to remain up to date. The Board found this was the reason why he did not get promoted in 2011. In the Board's view, the grievor was not prejudiced by the manner the second official language competency scoring system was implemented.

134.

2012-115

Incentive Pay Category

Pilot's Backdated Promotion to Captain

Grant

The Board found that General Message (CANFORGEN) 209/11 offers an incorrect interpretation and application of Compensation and Benefits Instructions 204.015 and CF Administrative Orders 204-2 and was inconsistent with the CDS' own finding that there was no requirement to link the start of a CF member's qualifying service to when he begins being paid as a qualified Pilot under CB1 204.215. Since CANFORGEN 209/11 cannot restrict or expand a regulation without Treasury Board approval, the Board found that it should be cancelled. The Board recommended that the CDS direct that the grievor's pay be restored to that of Captain Pilot Incentive Pay Category 1 effective the date he obtained his Wings Standard.

135.

2012-116

Administrative Action

Denial

The Board was of the view that the Commanding Officer's order was not manifestly unlawful and the grievor himself acknowledged that he was unsure whether it was lawful or not. Therefore, the Board found that the grievor should have obeyed the order and questioned its lawfulness later. Accordingly, the Board found that the initial counselling was warranted and that the decision to impose it was reasonable.

136.

2012-117

30-Day Entitlement to Annual Leave and Past Reserve Force Service

Discrimination

Denial

The Board found that in the grievor's case, article 16.14 of the Queen's Regulations and Orders for the Canadian Forces was explicit: for the purpose of calculating 28 years of service, only the present continuous Regular Force service and the last previous period of Regular Force service can be taken into account. Accordingly, the Board found that, in the absence of any discretion in the policy, the Youth Training Employment Program service could not be considered for the purpose of calculating entitlement to 30 days of Annual Leave. Although the Board found that the grievor did not suffer discrimination, it did acknowledge that the difference in treatment can be perceived as unfair in the circumstances.

137.

2012-118

30-Day Entitlement to Annual Leave and Past Reserve Force Service

Discrimination

Denial

The Board found that in the grievor's case, article 16.14 of the Queen's Regulations and Orders for the Canadian Forces was explicit: for the purpose of calculating 28 years of service, only the present continuous Regular Force service and the last previous period of Regular Force service can be taken into account. Accordingly, the Board found that, in the absence of any discretion in the policy, the Youth Training Employment Program service could not be considered for the purpose of calculating entitlement to 30 days of Annual Leave. Although the Board found that the grievor did not suffer discrimination, it did acknowledge that the difference in treatment can be perceived as unfair in the circumstances.

138.

2012-119

Component Transfer

Pay Protection

Denial

Given the Board's recommendation to the CDS that 27 March 1996 is the appropriate date to limit retroactive application of the Chief of Military Personnel 2001 Interim Policy, the Board found that the pay protection afforded by the policy should not apply to the grievor's 1973 Component Transfer.

139.

2012-120

Intended Place of Residence

Relocation Benefits

Denial

The Board concluded that the Integrated Relocation Program does not take into consideration split time or previous service; each period of service is taken into account for the purpose of an intended place of residence move and cannot be combined or added to enable an intended place of residence entitlement; therefore, the grievor was reasonably denied such an entitlement.

140.

2012-121

Overpayment

Relocation Expenses

Relocation of Dependants

Separation Expense

Partial Grant

The Board found that the grievor received the relocation benefits to which he was entitled. He was not entitled to relocation benefits for his Household Goods and Effects located outside of Canada. The Board concluded that it would be equitable and consistent with the provisions of the Compensation and Benefits Instructions (CBI) and the Integrated Relocation Program to exercise Ministerial authority, pursuant to CBI 209.013, to authorize the reimbursement of expenses incurred by the grievor for a house hunting trip and a trip to the new location, limited to the cost had he travelled from his place of enrollment. The Board found that the CF member was not eligible to receive Separation Expense benefits but was entitled to free Rations & Quarters.

141.

2012-123

Harassment

Denial

In the Board's view, the Responsible Officer reviewed and analyzed the harassment allegations and after a full investigation, determined that harassment had not occurred, and the Board found that her decision fell within the range of possible outcomes and was reasonable and justified in the circumstances.

142.

2012-126

Selection Board

Partial Grant

The Board found that the overall scoring of the grievor was not unreasonable but observed that scoring inconsistencies between Staff Selection Board members should have been discussed and reconciled and each candidate should have been fully assessed. Despite these shortcomings, the Board was satisfied that the grievor, lacking the required extensive experience in the Canadian Cadet Movement, was correctly not selected, but recommended that the she be provided with an explanation as to why and her results.

143.

2012-127

Relocation Benefits

Grant

The Board found that the grievor was eligible, under article 8.2.05 of the Integrated Relocation Program, for reimbursement of any additional appraisal fees related to the home equity line of credit upon his posting to a new place of duty.

144.

2012-129

Release - Reserve

Denial

The Board found that the Class B position had expired and the grievor had no entitlement to additional service. The grievor was given the benefit of his proper entitlement under the Vocational Rehabilitation Program for Serving Members and the Board found that he had been treated in accordance with the applicable policies.

145.

2012-131

Promotion

Grant

The Board noted that the CF Occupational Specification was not in line with the current CF Professional Development Framework. As such, although most army officers complete the Army Junior Officer Staff Qualification prior to being promoted to the rank of Captain, the Board found that it is not a mandatory requirement. Therefore, the Board found that the grievor should be granted a retroactive promotion from the date he initially became eligible for promotion.

146.

2012-136

Home Equity Assistance

Denial

The Board found that the original purchase price included the cost of any feature in respect of which contractual arrangements were in place before the closing date, and which afterwards would be considered an inseparable part of the real estate. The Board concluded that the original purchase price and the mortgaged amount are two separate matters and if the improvements would have been contracted prior to the closing date and included in the Agreement of Purchase and Sale, the cost for completing the basement would have been considered as part of the original purchase price. As a result, the grievor is not eligible for Home Equity Assistance benefits.

147.

2012-139

Long Term Storage

Denial

The Board found no provisions in the Integrated Relocation Program (IRP) that limited the reimbursement of long-term storage fees within Canada for expenses incurred when a CF member is redeployed outside the country. The Board did conclude, however, that the grievor's situation did not meet the necessary conditions for reimbursement of his storage costs. The Board recommended that the CF consider adding specific provisions to the IRP for CF members who are transferred from one foreign position to another.

148.

2012-146

Termination Class B Reserve Service

Denial

The Board found that the grievor should have been advised well before his start date that he could no longer be employed in the original Warrant Officer position and that, had that occurred, he might have been able to retain his previous Class B employment. However, the Board could find no indication that the grievor had ever advised the training center prior to his accepting the position, that he did not want to work evenings and weekends. The Board found that the Commanding Officer was justified in reassigning the grievor as priorities required and, therefore, also justified in ceasing his Class B Service if he could not meet the changing needs of the training center.

149.

2012-150

In vitro Fertilization

Grant

The Board found that, since August 2010, CF members are not currently receiving in vitro fertility treatments comparable overall to that received by Canadians under provincial health care plans or their Royal Canadian Mounted Police counterparts. In the Board's opinion, the Spectrum of Care Review Committee failed to meet the CF commitment of comparability and the Board found that this decision was unreasonable.

The Board's Response to the Lesage Report

In August 2011, the Board submitted 10 recommendationsFootnote 6 to the Honourable Patrick LeSage who conducted the Second Independent Review of Bill C-25Footnote 7. On June 8, 2012, Minister Peter MacKay tabled the LeSage report in Parliament. The report included 13 recommendations related to the CF grievance process, from a total of 55. Out of these 13 recommendations, which the Board fully supports, recommendations 37, 43, 48 and 49 have the potential to influence the affairs of the CFGB. In the following table, the Board explains why we agree with all four recommendations:

The Board's Response to the Lesage Report

Recommendation

Board's Position

37: The " principled approach " should be permanently instituted. All files where the Director General Canadian Forces Grievance Authority (DGCFGA) would rule against the grievor should be reviewed by the Grievance Board.

Currently, the National Defence Act places no restrictions on the types of grievances that must be referred to the Board. However, the implementing regulations, outlined in article 7.12 of the Queen's Regulations and Orders for the Canadian Forces (SOR/2000--0863 (June 8, 2000), c. 7), limit the Board's review to only four types of grievances, which represent approximately 40% of the total number of grievances that reach the final authority (FA) level.

This means that, under the current regulations, a majority of CF members who grieve do not benefit from an independent and external review of their complaint before a final decision is rendered, unless the CDS chooses to refer their cases on a discretionary basis. Under a new model, referred to as the "principled approach" by Justice LeSage, all unresolved files at the FA level would be referred to the Board.

The Board agrees that this new referral model would ensure that the benefits of an independent review apply to all. This would also ensure that all grievances at the FA level are subject to the same process and give CF members equal access to an external and impartial review. This would enhance confidence in the grievance system.

43: Where the DGCFGA disagrees with the recommendation of the Grievance Board to grant a grievance, the DGCFGA should not be involved in any further review and adjudication of the grievance.

The DGCFGA is the CF internal entity which administers the CF grievance system, acts as the FA for grievances which do not have to be referred to the Board and advises the CDS for those that do.

As part of his administrative functions, the DGCFGA decides which files must come to the Board for review; with his staff, he analyzes the Board's findings and recommendations (F&R) prior to the final decision and prepares the file for final adjudication.

The Board agrees that the DGCFGA should not be involved in the review and adjudication of grievances, when he or his staff disagrees with the F&R of the Board. Those files should be adjudicated by an FA who has not been, personally or through staff, involved previously with the administration and review of the file.

48: The name of the Canadian Forces Grievance Board should be changed to the " Military Grievances External Review Committee."

The Board feels that its current name does not reflect its external role and that it has led to misunderstandings by giving the impression that the Board is internal to the Department of National Defence and the CF. The Board agrees that a new name is necessary to lead to a better understanding of the specific and unique role for which the Board was created.

Bill C-15, an Act to amend the National Defence Act and to make consequential amendments to other Acts, includes a provision which would replace the Board's current name with "Military Grievances External Review Committee". This name change will underline the Board's institutional independence while clarifying its mandate.

49: Legislation or regulation ought to provide that active CF members are not eligible to be members of the Grievance Board/Military Grievances External Review Committee. I also recommend civilians without military backgrounds be appointed to the Grievance Board/Military Grievances External Review Committee.

CF members as Board members

The independence of the Board from the CF must be preserved. Currently, the statute does not provide such protection. Section 29.16(10) of the National Defence Act allows for the appointment of an officer or a non-commissioned member as a Board member.

One of the fundamental reasons for the creation of the Board was the provision of an external review to the CDS and the CF member who submitted a grievance. The provision of an independent and external review of military grievances strengthens the confidence in, and adds to the fairness of, the CF grievance process.

Should a serving CF member be appointed as a Board member, the Board's independence from the chain of command may be compromised. The Board therefore agrees that active CF members should not be eligible for appointments as Board members.

Composition of the Board

While the Board agrees that members of different backgrounds - civilian, legal, military, labour relations, etc. - should be appointed to the CFGB, the Board is concerned with obtaining the best candidates based on their competencies, experiences and knowledge. Appointing and retaining a full complement of competent Board members, specialized in military grievances, is what makes the Board a unique and credible tribunal.

Annexes

Logic Model

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

Chart showing the Logic Model
[Text version of Logic Model – Canadian Forces Grievance Board]

Activities:

Review Canadian Forces grievances referred by the Chief of the Defence Staff in a manner which is: expedient, fair, transparent and according to law.

Communicate Case Summaries, Lessons Learned and Rends and Systemic Issues.

Output:

Findings and Recommendations on individual cases.

Publications, presentations, case summaries and information tools on the Board’s Web site.

Immediate Outcomes:

The Chief of the Defence Staff is assisted in rendering decisions on grievances and is informed of systemic issues.

Stakeholders have an increased awareness and understanding of the Canadian Forces grievance process, regulations, policies and guidelines affecting members.

Intermediate Outcomes:

Enhanced confidence in the grievance process and the administration of the affairs of the Canadian Forces.

Strategic Outcome:

The Chief of the Defence Staff and members of the Canadian Forces have access to a fair, independent and timely review of military grievances.

Financial Table

Planned Spending 2012-13 (In dollars)

Salaries, wages and other personnel costs

3,402,671

Contribution to employee benefit plans

612,481

Subtotal

4,015,152

Other operating expenditures

1,880,751

Total planned expenditures

5,895,903

December 31, 2012. Actual expenditures will vary from the planned spending.

Board Members and Staff

Chairperson

Bruno Hamel

Picture of Chairperson Bruno Hamel

Mr. Hamel was appointed Chairperson of the Board on March 2, 2009. In December 2012, he was reappointed for a second four-year term. Mr. Hamel is a retired Canadian Forces officer with 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

Picture of 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

Picture of 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

Picture of 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. Mr. Auger's term at the Board ended on 14 September 2012.

Part-time Member

Carina Anne De Pellegrin

Picture of 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 advised on human rights complaints before the Canadian and Ontario Human Rights Commissions. Ms. De Pellegrin's term at the Board ended on 19 November 2012.

Part-time Member

Frederick Blair

Picture of 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. Mr. Blair's term at the Board ended on 14 September 2012.

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

A Group Picture of Board Members and Staff

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