2015 Annual Report
Military Grievances External Review Committee
Cat. No. DG1-1
31 March 2016
The Honourable Harjit Sajjan
Minister of National Defence
National Defence Headquarters
MGen Georges R. Pearkes Building
101 Colonel By Drive
Pursuant to section 29.28(1) of the National Defence Act, I hereby submit the 2015 annual report on the activities of the Military Grievances External Review Committee for tabling in Parliament.
Chairperson and Chief Executive Officer
For the purpose of this report, the acronyms most commonly used are:
- Canadian Armed Forces
- Chief of the Defence Staff
- Military Grievances External Review Committee
Table of Contents
- Message from the Chairperson and Chief Executive Officer
- About the Committee
- In Focus
- Systemic Recommendations
- Operational Statistics
- Case Summaries
- Achieving Blueprint 2020 Vision
- Committee Members and Staff
- Contact Us
Message from the Chairperson and Chief Executive Officer
As the Chairperson and Chief Executive Officer of the Military Grievances External Review Committee, I am pleased to submit the Committee’s 2015 Annual Report.
In 2015, the year of the organisation’s 15th anniversary, several records were set at the Committee with the highest number of cases ever referred (327) and the highest number of findings and recommendations (F&R) issued (328), since the Committee’s inception. For comparison, these numbers were respectively 214 and 171 in 2014 (the Committee’s previous record year), and 97 and 119 five years ago. As you will see in this report, in a relatively short span of time, we adapted, adjusted and continued to maintain a high level of efficiency and quality.
The Committee’s workload increased in volume and became more diverse in content for two main reasons:
- For the fourth year in a row, we have continued to receive cases belonging to non-mandatory categories, according to a referral model that has been under evaluation by the Canadian Armed Forces (CAF) since 2011. Under this model, which we consider fairer to all complainants, the Committee reviews all grievances reaching the final authority (FA) level where the CAF are unable to resolve the matter to the satisfaction of the grievor. This means that for the last four years the Committee has been reviewing files relating to a wide spectrum of complaints, not only those belonging to the types of grievances that must, by regulation, be referred to the Committee. After four years of trial during which the Committee has demonstrated its ability to deal with any type of grievance, I believe it is time for the CAF to officially adopt this referral model and make the necessary regulatory changes, so that all grievances benefit from an external review at the FA level.
- As well, the volume of referrals kept growing as Operation RESOLUTION gained momentum. This key initiative was introduced two years ago, to great success, by the former Chief of the Defense Staff (CDS) with the objective of reducing the CAF grievance backlog at the initial authority level. You will find more about Operation RESOLUTION and its positive impact on the timeliness of the grievance process in the In Focus section of this report, on page 10.
The report includes detailed summaries of 12 F&R reports and a number of recommendations of a systemic nature issued by the Committee that we think are of particular interest. In addition to Operation RESOLUTION, the In Focus section examines the Federal Court decision in the Ouellette case, which has clarified an important jurisdictional issue regarding the Committee’s mandate and role. Furthermore, we discuss the negative effects the gradual reduction or loss of some benefits under the Canadian Forces Integrated Relocation Program are having on CAF members and their families.
An issue related to the calculation of service days for the purpose of an immediate annuity could have significant impact on a large number of CAF members. The Committee believes swift corrective action is needed.
I would like to highlight here one particular issue that came to the Committee’s attention while reviewing grievances in 2015. The matter dates back to 1 March 2007 when major amendments to the Canadian Forces Superannuation Act and the Canadian Forces Superannuation Regulations came into force and redefined the conditions that must be met to gain entitlement to an immediate annuity. Under the new scheme, the entitlement to an immediate annuity is based on the number of days of paid service completed. However, the CAF policy in regard to offering Terms of Service to its members was not changed to take this requirement into consideration. The Committee noted that without a consequential change to the current Terms of Service policy, the vast majority of CAF members, once they have completed a 25 year engagement, will fall short of qualifying for an immediate annuity by only a few days.
The magnitude of the issue is alarming and the Committee believes that the situation requires the immediate and personal intervention of the CDS to put in place effective corrective action. The matter is presented in ample detail in the report’s Systemic Recommendations section on page 17.
Last year also brought challenges to the Committee’s corporate services, as they had to keep pace with important government wide changes in business processes and delivery, while adapting to increasing demands for support from the Operations division. Efforts necessarily entailed finding new ways to increase effectiveness and reduce costs, seeking innovative internal service delivery solutions, while maintaining alignment with new government business systems and practices. In 2015, we launched an important internal initiative aimed at significantly reducing paper usage, through automation and improvements to information management. We also actively participated in government initiatives aimed at renewing and modernizing the Public Service, such as Blueprint 2020, the Web Renewal Initiative and Workplace 2.0. Our objective is to take advantage of every opportunity offered by mobile technologies to improve efficiency and to provide a flexible workspace that promotes productive collaboration and ensures that our workforce is agile and well-connected.
As we welcomed a new executive director, Ms. Christine Guérette, who assumed her functions in the fall, we said goodbye to Mr. Denis Brazeau, who has been with the Committee for almost ten years, first as a part-time member and then as the Committee’s part-time Vice-Chairperson. Mr. Brazeau’s contribution to the organization’s excellence and to the grievance process was invaluable. His extensive knowledge of military matters and his commitment to the men and women of the CAF were apparent in every case he reviewed and every recommendation he made. With his departure, the Committee loses a valued support.
None of the achievements you will see in this report were possible without our team’s professionalism and commitment to the Committee’s mission, vision and mandate. The magnitude of the many challenges faced this year only serves to demonstrate the agility and versatility of the Committee’s staff, as well as their resilience, perseverance and dedication. I can never thank them enough for their tireless efforts to improve the military grievance process, and to uphold the Committee’s reputation as an exemplary federal organisation.
I would like to conclude this message with some words of caution. While the Committee is able to make adjustments to its staff and business processes to maintain timeliness, one thing remains out of our control, which is having a sufficient number of Committee members to review grievances regardless of workload fluctuations and diversification. Under the current legislative scheme, grievances referred to the Committee are heard by members appointed by the Governor in Council (GIC). As such, the significance of the statutory requirement under subsection 29.16(1) of the National Defence Act (NDA) for the GIC to appoint the members required for the Committee to perform its functions cannot be overstated. In fact, the Committee’s ability to deliver on its mandate in a timely manner depends on it.
The ability of the Committee to deliver on its mandate depends on ensuring that a sufficient number of Committee members are appointed as needed and in a timely manner.
As I write, in early 2016, the Committee has had to deal with the departure of its full-time Vice-Chairperson, Ms. Sonia Gaal. In addition to losing her valuable support, the Committee is now in the position of being short of the two Vice-Chairpersons that subsection 29.16(1) of the NDA establishes as the minimum necessary to carry out its functions. This, combined with an important increase in workload, has placed the Committee in a precarious situation as it pertains to its statutory obligation to deal expeditiously with all matters before it.
To that end, I remain committed to continue engaging the appropriate authorities to ensure that a sufficient number of members are appointed to the Committee. As always, our objective is to provide the highest quality of support to the military grievance process and to protect the gains in efficiency achieved in recent years, both at the CAF level and within the Committee, for the benefit of grievors and the CAF.
About the Committee
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 Armed Forces (CAF). The importance of this broad right cannot be overstated since it is, with certain narrow exceptions, the only formal complaint process available to CAF members.
It is very important in my mind to have an external organization that reviews grievances as it gives legitimacy to the whole process.
Since it began operations in 2000, the Military Grievances External Review Committee (MGERC) has acted as the external and independent component of the CAF grievance process.
The Committee reviews all military grievances referred to it by the Chief of the Defence Staff (CDS), as stipulated in the NDA and article 7.21 of the Queen’s Regulations and Orders for the Canadian Forces. Following its review, the Committee submits its findings and recommendations 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 Committee’s report, but must provide reasons, in writing, in any case where the Committee’s findings and recommendations are not accepted. The Committee 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 Committee are those involving administrative actions resulting in deductions from pay and allowances, reversion to a lower rank or release from the CAF; application or interpretation of certain CAF 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 Committee 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 Committee.
The Committee consists of Governor in Council (GIC) appointees who, alone or in panel, are responsible for reviewing grievances and issuing findings and recommendations.
Under the NDA, the GIC must appoint a full-time Chairperson and at least two Vice-Chairpersons. In addition, the GIC may appoint any other members the Committee may require to carry out its functions. Appointments may be for up to four years and may be renewed
The Military Grievances External Review Committee provides an independent and external review of military grievances. In doing so, the Committee strengthens confidence in, and adds to the fairness of, the Canadian Armed Forces grievance process.
The Military Grievances External Review Committee is an independent administrative tribunal reporting to Parliament through the Minister of National Defence.
The Committee 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 Armed Forces member who submitted the grievance.
Having reviewed your file, I must commend the Committee member for her no nonsense approach to a dilemma that seems to have baffled the staff at the Director General Compensation and Benefits. I acknowledge and accept the findings of the Committee as my own. I am sorry that it required you to file a grievance and for it to take four years to reach me before you were able to receive a basic entitlement.
Grievance officers, team leaders and legal counsel work directly with Committee members to provide analyses and legal opinions on a wide range of issues. The responsibilities of the Committees internal services include administrative services, strategic planning, performance evaluation and reporting, human resources, finance, information management, information technology, and communications.
Text version : The Grievance Process
- Commanding Officer
- Initial Authority
- Final Authority Level
- Director General Candian Forces Grievance Authority
- Military Grievances External Review Committee
- Director General Canadian Forces Grievance Authority
- Final Authority (Chief of the Defence Staff or his/her delegate)
- Final Authority Level
- Initial Authority
- Commanding Officer
Cases referred under QR&0 7.21*
* Article 7.21 of the Queen’s Regulations and Orders for the Canadian Forces sets out the types of grievances that must be referred to the Committee for review once they reach the final authority level.
The Grievance Process
The CAF 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 Committee. If the grievance is referred for consideration, the Committee conducts a review and provides its findings and recommendations to the CDS and the grievor. Ultimately, the FA makes the final decision on the grievance.
What Happens When the Committee Receives a Grievance?
The Committee’s internal review process consists of three steps: grievance reception, review, and the submission of findings and recommendations.
Text Version: The Committee’s internal review process
- 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.
- Review: The assigned Committee member holds a case conference where the grivance is reviewed and the issues are identified. The Committee member is assisted by a team leader, a grievance officer and a legal cousel. If necessary, additional documentation is obtained, added to the file and subsequently disclosed to the grievor. Although rare, it is possible a hearing may be held.
- Findings and Recommendations: The Committee member issues the final findings and recommendations which are then sent simultaneously to both the CDS and the grievor. At this point, the Committee no longer retains juridiction over the grievance. The grievor receives a decision directly from the final authority, which is the CDS or his/her delegate.
In this section, the Committee discusses issues deemed of interest for our primary stakeholders either because they expand on certain aspects of the grievance process, or because they are cause for concern. This year, we discuss three subjects: A Federal Court decision that helped clarify the role of the Committee at the final authority level of the grievance process; the impact that the reduction or the elimination of some relocation benefits are having on CAF members, and; the success of Operation RESOLUTION in reducing the backlog at the initial authority level and in improving the timeliness of the process.
Jurisdiction at the Final Authority Level
In deciding a grievance reviewed by the Committee, the CDS or his/her delegate is not bound by the Committee’s findings and recommendations (F&R). Once made, the decision of the final authority (FA) is final and binding and, except for judicial review under the Federal Courts Act, cannot be appealed or reviewed by any court.
Only in exceptional situations would an administrative tribunal be allowed to intervene in a judicial review application before the Federal Court. For example, courts have allowed administrative tribunals to intervene when their jurisdiction is at issue. In 2015, and for the first time, the Committee requested status to intervene in the OuelletteNote de bas de page 1 case, as it felt that an issue touching its jurisdiction was at stake.
In the Ouellette case, the grievor submitted a grievance through his chain of command regarding his removal of command by the CAF. The grievance was forwarded to the Director General Canadian Forces Grievance Authority by the grievor’s unit as it was determined that the commanding officer (CO) could not act as initial authority (IA). Ultimately, the grievance was referred to the Committee without an IA decision, as the CAF had determined that the issue being grieved could only be decided by the CDS. This course of action was consistent with the way these types of grievances had been referred and dealt with since the Committee’s began operations in 2000.
Accordingly, the Committee considered the grievance and issued F&R. However, the CDS subsequently issued a decision, as the IA, despite the fact that everyone, including the grievor, was under the under-standing that the CDS would act as the FA.
The grievor made an application for judicial review before the Federal Court challenging the procedure leading to, and the substance of, the CDS decision. The Committee sought and was granted leave to intervene in the proceedings to explain its role and jurisdiction.
In its submissions, the Committee indicated that, under the statutory scheme, it did not have jurisdiction to review grievances in situations where the CDS is acting as IA. The Committee submitted that Parliament’s intent was to add the independent review between the first level of adjudication by CAF authorities (CO and other IA) and the final review level in order to provide the CDS with an external and expert view on the matter prior to him or her rendering a final decision on the matter.
The Attorney General, however, on behalf of the CDS, argued that the CDS had a regulatory obligation to act as the IA, and that there was nothing in the National Defence Act (NDA) or the regulation that prevented him from doing so, once the Committee had issued its F&R.
In its reasons for judgment, the Court held that referrals to the Committee must be made by the CDS when acting as the FA, not as the IA. The Court noted that this conclusion was supported by the structure and objectives of the NDA and the Queen’s Regulations and Orders for the Canadian Forces (QR&O), as well as CAF policy and previous case law of the Federal Court. Further, the correspondence the grievor received from the CAF gave rise to a legitimate expectation that the CDS would act as the FA. The Court indicated:
 The Court disagrees with the respondent’s position. The structure and objectives of the relevant provisions of the Act and the QR&O lead to the conclusion that referral to the Committee must be made by the CDS only when acting as Final Authority. The respon-dent’s position that a referral to the Committee could be made at both the Initial Authority and the Final Authority stages appears inconsistent with the objectives pursued by the amendments to the Act and the QR&O, i.e. the expedition of the grievance resolution process
 This interpretation is also consistent with the Grievance Process Table contained in the [Defence Administrative Orders and Directives] DAOD 2017-1 which contemplates that the Final Authority must determine whether a grievance will be forwarded to the Committee and that the Final Authority will determine the grievance upon receipt of the Committee’s Findings and Recommendations.
Accordingly, the Court found it was unnecessary to consider the merits of the CDS’ decision. The decision was quashed and the grievance was remitted to the CDS for a new determination as FA using the F&R previously issued by the Committee.
This judgment by the Federal Court is important to both the Committee and the grievance process. In essence, the Court has confirmed that the Committee’s mandate is limited to the review of grievances at the final authority level of the process, shedding light on a process and jurisdictional issue that will benefit all stakeholders.
Lost or Reduced Benefits
Over the past year, the Committee has seen an increasing number of grievances relating to various benefits found in the Canadian Forces Integrated Relocation Program (CF IRP). In several cases, CAF members grieved about benefits that have been either reduced or removed altogether. This seems to be related to the Canadian Forces General Message (CANFORGEN) 145/12, published on 30 July 2012, which eliminated or significantly restricted access to previously available benefits. The changes were implemented one month after CANFORGEN 145/12 was announced and contained no protection or transition measures of any kind.
The Committee understands that difficult decisions must be made to ensure that the CAF remains a fiscally responsible organization and we have frequently supported such decisions in our reports over the years. However, recent reviews have found that some of these CF IRP changes were not implemented in a reasonable manner, while others have led to the inequitable treatment of CAF members when compared to the relocation entitlements of the Royal Canadian Mounted Police (RCMP) and other public servants.
While not exhaustive, the following three benefits were among those directly affected by CANFORGEN 145/12.
A long standing relocation benefit, separation expense (SE) assists CAF members who have been approved to proceed on posting unaccompanied by their family under an imposed restriction (IR) status. The SE used to provide financial assistance towards the CAF member’s monthly accommodation and food costs. However, with the announcement in CANFORGEN 145/12, the incidental expense allowance and the funding for meals were both eliminated from the SE, effective 1 September 2012. CAF members were provided just 30 days of notice for this significant change.
Affected CAF members complained that their SE had been greatly reduced without any type of transition or protection period. As a result, the CAF sought approval from Treasury Board (TB) to delay the implementation date of the changes. On 30 August 2012, CANFORGEN 159/12 recognized this short notice and announced: “Regrettably, the limited time between the release of ref A [CANFORGEN 145/12] and its intended 1 Sep 2012 implementation date did not allow our personnel to adequately prepare themselves or their families for the impact ”
The original date to reduce the SE was therefore postponed by five months to 1 February 2013, purportedly to provide CAF members with an opportunity to take appropriate measures to mitigate the effects of the policy change. However, the Committee noted that most affected CAF members were already locked into their accommodation and financial arrangements by the time CANFORGEN 145/12 was published. Given that for the most part both the CAF career management system and CAF families operate on an annual system referred to as the Active Posting Season (APS), the Committee found it unreasonable to implement such a significant change in a benefit in the middle of an ongoing posting cycle. Although the CAF delayed implementation of the SE reduction by five months, the Committee found that the reduction should not have come into effect until the following APS 2013, so that CAF members could adjust their plans accordingly.
Not all changes announced in CANFORGEN 145/12 were postponed or contained a transition period. For example, prior to 30 July 2012, a grievor was posted to Germany and was able to move his two dogs with him at public expense since the customized funding envelope in the CF IRP covered the costs of pet care and shipping. While still in the middle of his overseas posting, the CF IRP was changed and the relocation of pets was eliminated as a benefit covered by the customized funding envelope. Consequently, upon completion of his posting, the grievor was obliged to have his pets transported back to Canada using his personalized envelope at a cost of approximately $5,000.
To understand the financial impact of that change on the grievor, one must understand that the CF IRP provides for three separate, yet interdependent, sets of entitlements from which relocation benefits are paid: core, custom, and personalized components. The core component provides benefits deemed essential to relocation and are fully funded by the Department of National Defence. The custom component funds benefits are considered to be enhancements to the relocation process. The funds in this envelope are provided on a “use it or lose it” basis. Finally, the personalized component funds benefits are considered to be non-essential to, but attributable to, relocation. All unspent funds remaining in the personalized envelop are paid out to the CAF member as a taxable benefit. The majority of funds that comprise the personalized envelope come from a CAF member’s posting allowance, a benefit predating the creation of the CF IRP program.
In the grievor’s case, had the shipping of pets not been re-defined from being an “enhancement” to a “non-essential” expense during his posting, his pet relocation expenses on return to Canada would have been covered by the customized envelope and his personalized envelope would have had an additional $5000 when it was paid out to him. For this reason, the grievor considered that he was out-of-pocket by $5000 and aggrieved by the policy change being unfairly implemented.
Upon review, the Committee found that both the RCMP and other public servants remain entitled to have pet movement expenses reimbursed from the customized envelope. The Committee found it difficult to understand why CAF members should be treated less generously than the RCMP members or public servants, particularly in light of their unilateral commitment to serve and the involuntary and demanding nature of their postings. Finally, the Committee found it disappointing that the rationale used by the CAF to delay the implementation of the SE benefit changes, announced in CANFORGEN 145/12, was not applied to any of the other benefit changes announced by the same CANFORGEN.
Mortgage Early Repayment Penalty
CANFORGEN 145/12 also modified the CF IRP to remove the entitlement to reimbursement of Mortgage Early Repayment Penalty (MERP) expenses on posting. Prior to the change, CAF members who purchased a home were advised to make sure their mortgage was portable and that, in case of a mortgage break, they could get up to three months interest paid under the core component and another three months under the custom component. As in the earlier examples, CAF members who took on a mortgage before CANFORGEN 145/12, but who sold their home and broke their mortgage on posting following the change, were told that the MERP was no longer an expense covered under the CF IRP. No exception was made in the policy for those military members who were prohibited by the CAF from purchasing a replacement residence upon posting (for example, outside Canada postings or postings of less than one year) or for those who could simply not afford to buy a residence at their new place of duty. The CAF, through the Director General Compensation and Benefits, has since acknowledged that the policy amendment inadvertently caused a distinct disadvantage to those CAF members who are restricted from purchasing a home at their new place of duty.
The Committee saw several grievances on this issue and pointed out to the CDS that a significant change such as the deletion of the MERP benefits should have been implemented in a transitional manner, such as grandfathering, that provides a measure of protection to CAF members who have already made significant financial commitments based upon the policy in effect at the time of their posting. Interestingly, the Committee again noted that both the RCMP and the National Joint Council relocation directives continue to provide for partial reimbursement of the MERP from the core and personalized envelopes.
In response to the Committee’s findings and recommendations on the removal of the MERP benefit, the CDS has very recently agreed with the CommitteeNote de bas de page 2.
I am cognizant of the pressures the CAF experienced in 2012 in meeting the government’s fiscal priorities. However, as is apparent from the IA’s [initial authority] decision letter, the ramifications of that CBI [Compensation and Benefits Instructions] policy [the CR IRP] amendment were not thoroughly considered. The resulting unintended consequences negatively affected those members who, at the time of their posting, discovered that the MERP provision had been eliminated, were left with no other options but to repay their mortgage and incur a loss.
I direct that the CMP [Chief Military Personnel] develop a submission to the TB to retroactively re-establish the MERP provision removed from CBI 208 in September 2012 for those CAF members who are expressly prohibited from purchasing a residence on posting and who, for other valid reasons, are unable to purchase a residence at destination. Once approved, I also direct that CMP identify and contact any eligible members, including those who may have released from the CAF in the interim, for the purposes of administering the benefit.
The Committee acknowledges that TB and the CAF have the authority to amend benefits as they see fit. However, with such authority comes the responsibility to carefully consider the consequences of such changes. In the aforementioned examples, benefits have been reduced or removed altogether with little or no transition strategy in place to mitigate the negative effects on CAF members. Furthermore, while the benefits available to CAF members need not be identical to the benefits available to RCMP members and public servants, they should at least be comparable where it makes sense. The Committee considers that it would be prudent for the CAF to carefully review the benefits that were modified by CANFORGEN 145/12, taking into account the unintended outcomes and effects that have since been revealed by its members through the grievance process.
Operation RESOLUTION: A Resounding Success
In annual reports of previous years, and in many of its findings and recommendations (F&R) to the CDS, the Committee has frequently commented on the untimeliness of the grievance process. There were concerns that inordinate delays were causing CAF members to lose confidence in the grievance process. Timeliness was raised as far back as 2003 by the late Chief Justice Antonio Lamer in his report following the first independent review of Bill C-25, an Act to amend the National Defence Act and to make consequential amendments to other Acts. In recommendation 74, late Chief Justice Lamer recommended that grievances be resolved within one year of the date of submission. While little apparent progress was made over the years since then, the Committee is very pleased to report that in 2015 it observed a significant improvement in this area. The progress is primarily due to clear direction issued by the CDS to the initial authorities (IA) in the grievance process.
On 1 June 2014, the CDS initiated Operation RESOLUTION with the intent of reducing the backlog of grievances at the IA level across the CAF. The implementation of this CDS initiative resulted in 327 files being referred to the Committee in 2015. This represents an approximately 50% increase from the 214 files the Committee received in 2014, which was an all-time record year in itself. Informed of the CDS’ intention, and in order to avoid a situation where the backlog would simply move from the IA level to the Committee, without an improvement in regards to the timeliness, the Committee proactively added a team of analysts, along with some surge capacity, to be prepared for Operation RESOLUTION. In doing so, in 2015, the Committee was able to provide the CDS with its F&R in 328 cases, a 92% increase over the 171 files it completed in 2014.
From the Committee’s perspec-tive, Operation RESOLUTION has been a resounding success, not only in reducing the backlog at the IA level, but also in providing grievors with more timely responses to their grievances. Meeting the challenges of Operation RESOLUTION allowed the Committee to demonstrate its capacity to consistently provide the CDS with F&R within its established timelines. As well, the Committee proved that it is able to quickly respond to an increased workload created by the referral of many additional files to the Committee without compromising the quality of its reports.
While there is still work to be done, the Committee offers congratulations to the CAF on their concerted effort in moving closer to meeting the “one-year” goal in the past year.
The grievance process is to some degree a barometer of current issues of concern to CAF members. Several 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 Committee feels a particular obligation to identify issues of widespread concern and, where appropriate, provides recommendations for remedial action to the CDS.
The following section presents 10 out of 31 systemic recommendations issued by the Committee in 2015. Full summaries of these cases, as well as all other systemic recommendations, are published on the Committee’s Web site, as soon as they become available:
|Topic||Entitlement to Immediate Annuity on Completion of a Long Term Period of Service
|Issue||On 1 March 2007, major amendments to the Canadian Forces Superannuation Act (CFSA) and the Canadian Forces Superannuation Regulations (CFSR) came into force, which changed the conditions that must be met to gain entitlement to an immediate annuity. The Terms of Service (TOS) policy and the pension policy were “de-linked” so that instead of using the completion of a TOS to determine pension eligibility, the new policy requires a member to have 9,131 days of “Canadian Forces service” to receive an immediate annuity. “Canadian Forces service” is defined as paid service and includes maternity or parental leave. However, “Canadian Forces service” does not include Limitations of Payments (LOP) and Leave Without Pay (LWOP) periods.
Given that the required 9,131 days is exactly 25 years to the day, and considering that the 25 year Intermediate Engagement (IE25) TOS commences on enrollment day, any CAF member who has one or more days of LWOP after enrollment will fall short of qualifying for an immediate annuity upon completion of their IE25 unless the LWOP was for maternity/parental leave.
Staff at the Canadian Forces Recruiting Group (CFRG) confirmed that, with few exceptions, all CAF members who enroll have a period of LWOP to account for the delay between their enrollment and the time they report for training. Thus the Committee was able to conclude that, in all likelihood, a large number of CAF members will have one or more days of LWOP and so, will fail to qualify for an immediate annuity upon completion of their IE25 TOS. The Committee also noted that the great majority of CAF members are currently unaware of this issue.
The Committee observed that serving the Crown requires a unilateral and unique commitment, and that giving 25 years, or perhaps even one’s life, to one’s country is a very high level of commitment. The reciprocal compensation on the part of the CAF has previously included a valuable pension on completion of service. However, the manner in which CAF members are currently being administered by the Directorate of Military Careers Administration vis-à-vis their IE25 TOS offers will result in the majority being a few days short of the amount of service needed to qualify for an immediate annuity.
The Committee does not believe that the Minister of National Defence or the CDS would knowingly support such an outcome. Given the importance of the matter, and considering the widespread impact on a significant proportion of serving CAF members, the Committee found that the situation requires:
|Recommendations||On the issue of long term service offers, such as those currently administered through IE25 TOS, the Committee recommended an immediate review and revision of the Assistant Deputy Minister (ADM) (HR-Mil) Instruction 05/05 to properly reflect the 1 March 2007 changes to the CFSA and CFSR affecting how an entitlement to an immediate annuity is calculated.
The Committee also recommended that the ADM (HR-Mil) Instruction 05/05 be amended such that all TOS conversion offers involving an EI25 that terminates upon completion of 25 years of paid CAF service [i.e., 9,131 paid days of CAF service].
Finally, the Committee recommended that all existing IE25 TOS be reviewed and, if necessary, revised to allow for the completion of 9,131 days of paid CAF service.
|Topic||Progressive Application of Remedial Measures
|Issue||The grievor was awarded a counselling and probation (C&P) for alcohol misconduct without a considered review of the grievor’s entire situation and a measured response.
The Committee observed that it had reviewed a number of conduct or performance deficiency related grievances where it had expressed concern with decision-makers not complying with the requirements and processes embedded in the policy. The Committee noted, in particular, that the Director Military Careers Administration (DMCA) Aide-Memoire 001/14 stipulates a minimum remedial measure of C&P should be applied in cases of drug involvement, which is contrary to the established policy. In the Committee’s view, this direction diminishes the value of the considered and progressive administrative action regime.
Defence Administrative Order and Directive (DAOD) 5019-4 - Remedial Measures provides for a measured and progressive use of remedial measures which are, in order of severity, initial counselling, recorded warning and C&P. There is no provision dictating that misconduct of a particular nature must automatically lead to or equate to C&P, even in cases of prohibited drug use or other involvement with drugs (DAOD 5019-3).
The Committee found that the Aide-Memoire diminishes the value of the considered and progressive administrative action regime that has been developed by the CAF.
|Recommendation||The Committee recommended that the DMCA Aide-Memoire 001/14 be cancelled and not be relied upon anymore.|
|Topic||Forfeiture of Decorations and Medals
|Issue||This issue is a follow-up to the systemic recommendations made in a previous case (Committee file 2009-075).
The Director Honours & Recognition (DH&R) appears to automatically recommend that CAF members’ medals be forfeited in cases where they have been released under item 2(a) of the table to article 15.01 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), when convicted by a civil authority and sentenced to a period of imprisonment.
This is contrary to the provision of QR&O 18.27(2)(a) which requires the exercise of discretion through the review of the merits of each case. A proper exercise of discretion should not automatically lead, in all cases, to a recommendation of forfeiture.
|Recommendation||The Committee recommended that the final authority direct that the DH&R be made aware that a conviction by a civil authority and a sentence to imprisonment do not automatically lead to a recommendation of forfeiture, as per the QR&O 18.27(2)(a), and that each case should be reviewed on its own merits.|
|Topic||Meal Purchased While on Temporaty Duty at a Foreign Military Base
|Issue||While attending a training course in the United States, the grievor was directed to purchase and consume his meals at a military dining facility for which he was then reimbursed only the actual expenses. The grievor argued that he was entitled to the full per diem meal rates because he had not been provided with meals at no cost to him as established by Treasury Board (TB) and as provided for by instruction 7.18 of the Canadian Forces Temporary Duty Travel Instructions (CFTDTI).
The Committee agreed. It noted that the intent of the CFTDTI is to provide CAF members with benefits similar to those afforded to public service employees so that the essential character of the benefits remains the same.
For public service employees, the per diem is not reduced or increased regardless of whether it is fully used or not. TB developed the per diem to function as a “no questions asked” type of allowance with the sole exception being for meals provided at no expense to the CAF member/employee. The decision to spend less or more than the established per diem rate is a personal one and does not affect the entitlement one way or the other.
Where public servants or CAF members must pay for their meals while on Temporary Duty (TD), the Committee explained that it is irrelevant whether the meals are purchased at a mess, a fast food establishment, or a fine dining restaurant. This is the result of the TB approved policy, set out in instruction 7.18 of the CFTDTI for CAF members. The Committee therefore found that it was not open to the Director Compensation and Benefits Administration (DCBA) to interpret and apply it otherwise.
|Recommendation||The Committee recommended that:
|Topic||Pregnancy - Mandatory Duty Limitations
|Issue||While the Canadian Forces Health Services (CFHS) Instruction 3100-23 - Medical Administration of Pregnant Members allows for medical employment limitations (MEL) that are case and context specific and which can be adapted to each individual situation, the Defence Administrative Order and Directive (DAOD) 5003-5 - Pregnancy Administration specifically imposes limitations that preclude pregnant CAF members to perform any duties which entail serving in the field or participating in a field operation or exercise.
In the particular case under review, the Committee determined that there was no medical reason to cease the grievor’s training given that her assigned MELs would not have been breached. The Committee found that the grievor was unfairly removed from her course and that her career progression was delayed as a result of DAOD 5003-5.
Accordingly, the Committee found that the language of the DAOD was too stringent, left no room for individualized application, and would likely result in cases of discrimination.
|Recommendation||The Committee recommended that the CDS direct that the Mandatory Duty Limitations section of DAOD 5003-5 be reworded and harmonized with the CFHS Instruction 3100-23 to reflect the fact that employment limitations should be assigned by a pregnant member’s physician based on her individual and specific circumstances.
It also recommended that, pending the review of DAOD 5003-5, the CDS quickly disseminate instructions to his chain of command to equitably manage the employment of pregnant CAF members taking into consideration each individual case and specific situation.
|Topic||The Posting Allowance Policy Discriminates Single Members
|Issue||The Committee noted that in order to determine whether there is discrimination under the Canadian Human Rights Act, a prima facie case of discrimination must be made by the complainant, and the employer may defend against the claim by showing that the policy or practice is a bona fide occupational requirement (BFOR). The Committee found that, by providing one month’s pay to a CAF member who was moving dependants as opposed to one half month’s pay to a CAF member who is not, the posting allowance policy is prima facie discriminatory based on the family or marital status.
The Committee found that the CAF has shown no evidence to demonstrate that paying a different allowance to CAF members with or without dependants is connected to the performance of the job or that paying a different allowance to those with dependants is necessary to the fulfillment of the work. Furthermore, the Committee found that if the posting allowance’s purpose is to compensate for turbulence, it is difficult to rationally connect the turbulence to the amount of the posting allowance (an amount based on the CAF member’s rank and salary). Therefore, the Committee found that there was no BFOR to justify a different financial treatment between a CAF member who has dependants and one who does not when there is a move.
|Recommendation||The Committee recommended that the CDS direct the Director General Compensation and Benefits to work with Treasury Board with the view of amending the posting allowance policy to remove the distinction based on marital and family status, and provide an equivalent allowance to all CAF members, regardless of whether they have dependants who move with them.|
|Topic||Right to Grieve - Supplementary Reserve
|Issue||The Committee noted that the Canadian Forces Grievance Manual, issued in 2000, made it really clear in chapter 2, paragraph 1, that members of the Supplementary Reserve (Supp Res) have a right to grieve.
This manual has been however superseded by Defence Administrative Orders and Directives (DAOD) 2017-0 and 2017-1, neither of which explicitly addresses the entitlement of a member of the Supp Res to grieve. The DAOD 2017-0 policy statement reads:
The DND and the CF are committed to ensuring that every CF member who has been aggrieved:
The Committee noted that since the majority of Supp Res members have limited involvement with the CAF, they are likely unaware of their entitlement to submit grievances. The Committee found that the right of Supp Res members to submit a grievance should be clearly stated in the new DAODs.
|Recommendation||The Committee Recommended that DAODs 2017-0 and 2017-1 be amended/updated to reflect that members of the Supp Res are entitled to submit grievances pursuant to subsection 29(1) of the National Defence Act.|
|Topic||Real Estate Incentive - Time Limit for Signing Waiver
|Issue||During the review of this grievance, the Committee noted that CAF authorities have erroneously added a requirement to article 8.2.14 of the Canadian Forces Integrated Relocation Program (CF IRP) directive, that requires CAF members electing to receive the Real Estate Incentive (REI) to formally sign the Policy Waiver related to the REI within 15 days of the appraisal of their principle residence. This practice can effectively disentitle CAF members to the REI benefit that should be available to them for the entire two-year period provided for at CF IRP article 8.1.03.|
|Recommendation||The Committee recommended that the CDS inform the relevant authorities that their application/interpretation of the REI requirements is incorrect.|
|Topic||Leave Travel Assistance - Indirect Travel
|Issue||The Committee found that Compensation and Benefits Instructions (CBI) 209.50 lacked clarity in regard to entitlement to the Leave Travel Assistance (LTA) in cases where a CAF member did not travel/return directly to/from their next-of-kin (NOK). There was also evidence that several other CAF members had been negatively affected by this lack of clarity.|
|Recommendation||The Committee recommended a revision of CBI 209.50 to clarify the eligibility and intent provisions of the LTA.
The Committee further recommended that article 209.50 be amended to provide that when a CAF member is unable to provide the actual cost for direct return travel to their NOK, the cost be determined by using the most direct kilometric route from the CAF member’s place of duty to the principal residence of the NOK, or from the place of duty to the other CAF member’s place of duty in the case of service couples.
|Topic||Clarification of Imposed Restriction Policy
|Issue||During the review of this grievance it became evident that either the Canadian Forces General Message (CANFORGEN) 184/12 - Changes to Imposed Restriction Policy is incorrect or it is being incorrectly interpreted and applied.
Paragraph 7d of CANFORGEN 184/12 states that CAF members are not eligible for imposed restriction (IR) status on their first posting after reaching their occupation functional point (OFP). As interpreted by Director Military Careers Policy and Grievances, CAF members who accepted a component transfer (CT) (skilled) offer into the Regular Force (Reg Force) are considered new CAF members and denied IR status on their first posting. This interpretation fails to recognize that these CAF members who reached their OFP years earlier and who have been posted several times, and who transfer back into the Reg Force are not “new” members or re-enrollees. Accordingly, they are entitled to an IR upon their first posting subsequent to their CT.
The Committee noted that other CAF members with years of service, who have transferred back into the Reg Force, may have been denied IR status as well, due to this incorrect interpretation of paragraph 7d of the CANFORGEN 184/12.
|Recommendation||The Committee recommended that the CDS direct a review of CANFORGEN 184/12 and the issuing of an instruction such that the IR requirements are properly clarified.
The Committee further recommended that the CDS direct a review of the files of CAF members who may have been denied IR based on their CT status, versus being re-enrollees - as a result of an incorrect application of paragraph 7d of the CANFORGEN 184/12.
For the first time, at any level of the grievance process, I felt there was objectivity and neutrality.
This section contains an overview of the Committee’s operations, as related to the average time used to complete the review of a grievance, the types of grievances received, the annual workload, as well as the CDS responses to the Committee’s findings and recommendations (F&R). For comparison purposes and added perspective, the statistics in some cases cover the last few years, but their main focus is 2015 data.
A Timely Review
In 2015, the Committee continued to maintain the average time for completing the review of grievances under its productivity standard of four months despite a significant increase in the volume of referrals which reached a record high of 327 cases. The Committee issued F&R reports in 328 cases, the highest number in a single year, since it began operations in 2000.
Note: To simplify the reading of this section, we use CDS to refer to the final authority which includes the CDS and his/her delegate.
|Date as of 31 December 2015||2011||2012||2013||2014||2015Figure 1 note *|
|Average elapsed time in months||2.7||2.6||3.5||4.3||3.3|
Figure 1 notes
An Independent Review
As an administrative tribunal, the Committee has the obligation to review every case fairly and impartially. Each file is reviewed carefully and on its own merits while taking into consideration the issues raised by the complaint, the relevant evidence and the submissions of both the grievor and the CAF authorities.
Between 2011 and 2015, the Committee issued F&R reports on 912 grievances of which 53.9% (492 cases) found that the grievor had been aggrieved by a decision, act or omission in the administration of the affairs of the CAF. In 44.8% (409 cases), the Committee recommended that the grievance be denied.
Starting in 2014, the Committee made changes to the way it captures its statistics where it had determined that a CAF member has been aggrieved. In 54.1% (270 cases) where it was found that the grievor was aggrieved, the Committee recommended to grant full or partial remedy in 92.2% (249 cases). In 6.3% (17 cases), the Committee recommended that a remedy be obtained outside of the grievance process, rather than be granted by the CDS. In 1.5% (4 cases) a remedy could no longer be recommended (i.e., the grievor was no longer a CAF member or the issue of the grievance was moot).
|2011||2012||2013||2014||2015Figure 2 note *|
|Cases closed*||1% (1)||3% (4)||2% (3)||0% (0)||1% (3)|
|Nor aggrieved||43% (58)||41% (61)||49% (64)||47% (81)||44% (145)|
|Aggrieved||56% (75)||56% (84)||48% (63)||53% (90)||55% (180)|
Figure 2 notes
Note: Totals may not add to 100% due to rounding.
In the last five years, the CDS rendered decisions on 638 cases out of 912 reviewed by the Committee. A total of 328 of these decisions addressed cases where the Committee found that the grievor had been aggrieved by a decision, act or omission in the administration of the affairs of the CAF. The remaining 310 decisions addressed cases where the Committee recommended that redress be denied.
In the 328 grievances where the Committee recommended redress be upheld or upheld partially, the CDS agreed or partially agreed in 76% of the cases (248 files).
|Categories of grievances||Cases where the Committee found that the grievor had been aggrieved||Cases where the Committee found that the grievor had not been aggrieved|
|CDS agrees or partially agrees with the Committees F&R||76% (248)||22% (72)|
|CDS does not agree with the Committees F&R||88% (273)||6% (21)|
|Case withdrawn at CDS level||2% (8)||5% (16)|
Note: Totals may not add to 100% due to rounding.
Completed Grievance Reviews
The following table outlines the distribution by recommended outcomes of the 328 cases completed by the Committee in 2015.
|Careers||Harassment||Medical and Dental Care||Other||Pay and Benefits||Release||Total|
|Recommend Outside Resolution||1||0||0||0||9||1||11|
|Number of Cases||2013||2014||2015|
|Release||22% (26)||10% (28)||6% (32)|
|Pay and Benefits||29% (34)||47% (138)||60% (322)|
|Other||5% (6)||7% (20)||7% (34)|
|Medical and Dental Care||1% (1)||1% (2)||2% (13)|
|Harassment||3% (4)||8% (22)||4% (20)|
|Careers||40% (48)||28% (81)||21% (109)|
Note: Totals may not add to 100% due to rounding.
CDS Decisions Received in 2015
The Committee received CDS decisions in response to 237 grievances for the period between 1 January 2015 and 31 December 2015. The CDS:
- agreed with the Committee’s recommended outcome in 63% of these cases;
- partially agreed with the Committee’s recommended outcome in 9% of these cases; and
- did not agree with the Committee’s recommended outcome in 22% of these cases.
6% of the cases were resolved through the CAF informal resolution mechanism, after the Committee issued its F&R.
|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||Cases withdrawn at CDS level|
|Grant and partial grant||63%||22%||9%||6%|
Note: Totals may not add to 100% due to rounding.
In 2015, the Committee issued a record number of 328 findings and recommendations (F&R) reports, the highest number of F&R released since MGERC began operations in 2000. For the purpose of this annual report, we are taking a closer look at 12 cases of particular interest, with a summary of the issue (or issues) at stake, MGERC’s position with regard to each case and the F&R issued after the Committee’s review. When available, the final authority decision is also included. Summaries of select cases for which the Committee issued F&R reports in 2015 can be found on the Committee’s Web site: www.mgerc-ceegm.gc.ca.
Overpayment of Temporary Duty Benefits
The grievor, based in Halifax, was assigned to work on Temporary Duty (TD) for a ship refitting project in Ontario due to last over 215 days. The grievor was placed by his chain of command (CoC) on a new TD every month, entitling him to 100% per diem coverage for up to 31 days and full reimbursement for travelling back and forth between the project and his normal place of duty. The grievor was directed to stay at a specific hotel as his CoC had determined that there was no cost effective lodging in the area with facilities to prepare one’s own meals.
Auditors who performed a review of the benefits found that the grievor was not entitled to his full meal allowances and reimbursement of travel expenses to go to Halifax and come back as he travelled during weekends.
The grievor submitted that the interpretation of TD regulations by the auditors was erroneous and the recovered benefits for meals and weekend travel should not have been deemed as overpayments.
The initial authority (IA) found that the interpretation of audit staff was correct and recovery from the grievor was appropriate. The IA found that TD is the performance of a duty for a period of six months or less at a location other than the CAF member’s permanent place of duty. Nonetheless, the IA determined that a TD period greater than 180 days was approved, contrary to policy and concluded that the grievor was on a period of “extended” TD while working on the project. In accordance with the Canadian Forces Administrative Order (CFAO) 20-5, articles 7.16 and 7.18, the grievor was subject to the reduction of incidental and meal allowances to 75% after the 31st cumulative day on TD. In accordance with Compensation and Benefits Instructions (CBI) 209.31, the IA found that weekend travel can be authorized by a CAF member’s commanding officer (CO) when on TD away from the CAF member’s normal place of duty. However, reimbursement for weekend travel should not have exceeded the cost of maintaining the grievor at the TD location over the weekend.
The Committee found that it was the grievor’s CoC who made all decisions relating to the living accommodations for CAF members while they worked on the TD project. The grievor did not have the option of staying in a corporate residence or apartment or to make different travel arrangements. Thus, the Committee found that in accordance with the National Joint Council Travel Directive, Appendix C - Allowances, the second condition necessary to reduce the meal/incidental allowance to 75% was not met. The grievor should have been reimbursed 100% for his meals and incidentals as he was unable to prepare them himself.
The Committee also found that although the grievor returned to his normal place of duty monthly on weekends, this did not automatically mean that it was “weekend travel” as prescribed in CBI 209.31. The Committee found that the grievor was directed to travel on weekends by his CoC in order to complete work. The Committee determined that this constituted duty travel, not weekend travel, in each instance and was, therefore, not subject to CBI 209.31.
The Committee recommended that all funds recovered from the grievor, as a result of the audit of his TD benefits, be returned to him as he should not have been subjected to recovery in accordance with the TD policy.
In the alternative, the Committee recommended the debt be remitted or that the CDS forward the file to the Director Civil Claims and Litigation in order that consideration be given to compensating the grievor in accordance with the Treasury Board Directive on Claims and Ex Gratia Payments.
I truly appreciated the professional and independent review the Committee made with regards to my grievance. Their findings and recommendations were clear and concise and provided additional input from a whole of government perspective (i.e. past cases and how issue is handled in other Departments) which only served to strengthen my case.
Compensation for a Damaged Cell Phone at Sea
The grievor was serving at sea when his personal cell phone was damaged by grey water leaking into his bunk where the phone was charging. His request for compensation was reviewed by the Base Assistant Judge Advocate General (AJAG), who referred the claim to the Director Compensation and Benefits Administration (DCBA). DCBA denied the claim, explaining that the grievor could not be compensated under Compensation and Benefits Instructions (CBI) 210.01(3), because the damaged article had to “be necessary for the performance of duties as specifically listed in orders or instructions issued by the CDS, or if not listed, as determined by the CDS...”
There was no initial authority (IA) decision on the file.
The Committee asked the AJAG why the Defence Administrative Orders and Directives (DAOD) 7004-2-Compensation for Loss or Damage to Personal Property could not be used to compensate the grievor. The Committee was informed that DAOD 7004-2 is only used to compensate CAF members when the loss is not directly related to CAF members’ military duties and when liability can be established.
The Committee then discussed the issue with DCBA staff who, upon reviewing the file, determined that the Ministerial Authority found under CBI 210.05 could be used to compensate the grievor for the damage to his cell phone. Since the redress sought had been provided, the Committee recommended that the CDS close the grievance file.
Note: The case was withdrawn at the final authority level.
Medical Condition and Release Motive
During her basic military qualification course, the grievor suffered an episode of loss of consciousness. She was returned to full duty two weeks later and completed the course. Her medical file was reassessed several months later and it was determined that she had experienced an epileptic seizure and likely suffered from a medical condition that was not compliant with the Universality of Service principle. It was also determined that the condition was pre-existing but had not been disclosed. The grievor was released under item 5(e) - Irregular Enrollment.
The grievor argued that item 5(e) cannot be the appropriate release item because the medical condition was not determined within 90 days of her enrollment and she was never diagnosed with it prior to her enrollment, thus the conclusion that the condition was pre-existing was speculative.
The initial authority (IA) concluded that the grievor knew she had the pre-existing medical condition based on incidents from her childhood that she recalled when her file was reassessed. The IA also contended that the seizure happened within two weeks of her enrollment, which justified the grievor’s release under item 5(e).
The Committee considered that there was no formal diagnosis of a pre-existing medical condition. In fact, the medical documentation related to the incidents that occurred in her childhood did not even consider the possibility of such a condition. Thus, the Committee highlighted the fact that the grievor could not have disclosed information regarding a pre-existing condition that was not known or diagnosed prior to her enrollment. The Committee also noted that the conclusions of the specialist in that regard were more a statement of impressions made 10 years after the fact rather than a definitive diagnosis.The Committee also noted that the grievor was returned to full duty without any medical employment limitations two weeks after the incident occurred and successfully completed her basic training. She was only assigned medical employment limitations several months after the incident. Finally, the Committee noted that it took more than three years after the specialist’s assessment to arrive at a release decision, which was inconsistent with other examples of an irregular enrollment where the release would occur shortly after the information is first discovered.
For these reasons, the Committee recommended that the CDS change the release item from 5(e) to 3(b) - Medical.
CDS Decision: The CDS agreed with the Committee’s findings and recommendation that the grievor’s release item be changed from 5(e) to 3(b).
Separation Expense Benefit when Co-Leasing
Upon being posted on an imposed restriction, the grievor obtained approval from the appropriate local authorities to co-lease an apartment with another individual, as the overall cost was within the allowable limits. Four months later, the grievor was advised that he was considered to be in a “boarding arrangement” and was therefore entitled to significantly less for his separation expense (SE). Five months after that, the grievor was advised that recovery action of the overpayments would be taken. The grievor requested reversal of the recovery action taken for the portion of his SE benefits relating to accommodation.
Staff at the Director of Compensation and Benefits Administration (DCBA) concluded that the grievor’s co-renter was not a member of the CAF. Therefore, he was considered to be living in a boarding situation and was only entitled to the lower rate of SE. There was no initial authority decision on the grievance.
The Committee found that none of the applicable policies or documents contained a definition of “boarding arrangement”, nor was there any explanation for how DCBA staff came to this conclusion. In reviewing dictionary definitions of “boarding” and “boarders”, the Committee concluded that the grievor was not in a boarding arrangement. He was in fact a co-renter of an apartment, not a boarder.
The Committee found that the grievor should be entitled to reimbursement for his share of the expenses as detailed in the lease he signed with his landlord.
The Committee recommended that the grievor be reimbursed for the portion of the actual and reasonable expenses he incurred and that had been recovered.
Special Operations Allowance for Designated Units
The grievor challenged the decision not to designate his unit, 427 Special Operations Aviation Squadron (427 SOAS) as a designated unit for the purpose of special operations allowance (SOA). He argued that he was expected to maintain the same qualifications and degree of readiness, and was exposed to the same risks as his peers at other Canadian Special Operations Forces Command (CANSOFCOM) units but was not in receipt of the same benefits. The grievor noted that the chain of command indicated during briefings and town hall sessions that the unit designation was forthcoming.
The initial authority (IA) stated that there was a command allowances review underway which would encompass a review of the SOA. Until that review was complete, the IA was not prepared to respond to the grievance.
Compensation and Benefits Instructions (CBI) 205.385 is the governing policy for SOA. It requires that in order to be in receipt of the allowance, a CAF member must be posted to a designated unit, be in a designated position, or be undergoing training for the purpose of SOA.
The Committee found that the grievor did not meet the conditions of the CBI and therefore was not eligible to be paid SOA and recommended that the grievance be denied.
Nonetheless, the Committee noted that the CDS had previously decided on a similar grievance, in which he directed that a number of positions in 427 SOAS be designated and that a proposal be submitted to Treasury Board (TB) to designate 427 SOAS as a unit for the purpose of SOA. Upon investigation, the Committee learned that 34 positions had been designated but the submission was never made to TB to designate 427 SOAS. Therefore, the Committee found that the CDS should either:
- reiterate to the Commander of CANSOFCOM and the Chief of Military Personnel his decision to expeditiously staff a TB submission to have 427 SOAS designated as a SOA unit; or
- amend his previous direction to reflect the current reality and manage expectations, if in support of a new/different model.
Parking Policy at Base
The grievor complained that the parking policy at his Canadian Forces Base (CFB) required him to pay for parking at a satellite parking lot. He argued that, since the number of spaces available versus the number of CAF members wanting parking met the Canada Revenue Agency (CRA) definition of “scramble parking”, the lot should be administered accordingly, without charge. The grievor also argued that, because there was inadequate public transportation, a fair market value (FMV) for parking for that lot could not be established.
The initial authority (IA), the formation commander, denied the grievance, finding that the CFB parking policy had been established in accordance with government and departmental direction. He also determined that the satellite lot did not meet the definition of “scramble parking” but that, even if it did, the base commander had the discretionary authority to administer the lot as paid parking.
The Committee first examined the requirement for CAF members to pay for parking and determined it stems from the Income Tax Act (ITA) which considers free parking a taxable benefit. Public Works and Government Services Canada (PWGSC) Custodial Parking Policy requires all departments to establish parking policies and to determine FMV. Defence Administrative Orders and Directives (DAOD) 1004-1 - Parking Administration provides that base commanders are parking authorities and they must assess the FMV every two years. The Committee found that the CFB parking policy requirement that the satellite parking lot should be paid at FMV was policy compliant and that the FMV was properly reached with the assistance of independent certified appraisers.
The Committee reviewed the bus routes and schedules in the file and was not convinced that the public transportation was inadequate.
With the passage of time and the transient nature of the CAF members requiring parking at the satellite lot, the Committee was unable to determine whether it met the CRA definition of “scramble parking”. However, the Committee considered this issue moot since DAOD 1004-1 provides the parking authority with the discretion to administer lots that meet the CRA definition of “scramble parking” as paid parking. Thus, the Committee found the base commander’s decision to administer the satellite lot as paid parking at FMV to be valid.
The Committee observed that, contrary to the IA, the definition of “scramble parking” does not require clarification, concluding that it provides sufficient guidance for a parking authority to use their discretion to determine a parking lot’s status and to administer it within that discretion.
CDS Decision: The final authority agreed with the Committee’s findings and recommendation that the grievance be denied.
The grievor requested a compassionate posting to Toronto, Ontario, to resolve family-related matters. His request was supported by his base social worker. In addition, his chain of command (CoC) had found a position in the grievor’s military occupation (but not sub-occupation) in Toronto, and the latter unit was more than willing to employ him. However, the grievor’s career manager (CM) did not support the grievor’s request. Ultimately, the Director Military Careers (D Mil C) granted a two-year compassionate posting to the military unit closest to Toronto which had a vacant position in the grievor’s occupation. The CM therefore posted the grievor to Petawawa.
The grievor contended that his CM refused to comply with the compassionate posting instruction.
He submitted that instead of being posted to Toronto, he was posted to one of the furthest bases away from that location in Ontario. As redress, he requested a posting to a military unit closest to Toronto.
The Director General Military Careers, acting as initial authority (IA), stated that the grievor was not posted to Toronto given that the position available was a different sub-occupation from that of the grievor’s. The IA indicated that the grievor’s CM had confirmed there were no positions available in Toronto for the grievor sub-occupation, but that one existed in Petawawa. The IA found that the decision to grant the grievor a compassionate posting was correct, and that the closest position for which the grievor was qualified was located in Petawawa. He denied the grievance.
The Committee reviewed Defense Administrative Orders and Directives (DAOD) 5003-6 - Contingency Cost Moves for Personal Reasons, Compassionate Status/Posting, and noted that nowhere in the policy was there a limitation that a CAF member must be posted to a position in his military occupation. Given the reasons for which the DAOD was adopted, it was the Committee’s view that it was designed to be flexible in nature.
The Committee also reviewed the D Mil C Standard Operating Procedures (SOP) 012 - Contingency Cost Move and Compassionate Status/Posting, which also suggests a great deal of flexibility with respect to a CM’s attempt to find a position in the specific location which is being sought by the CAF member.
The Committee found that the D Mil C’s decision to limit the grievor’s compassionate posting to his military occupation was overly restrictive and contrary to policy. Furthermore, the Committee found that the CM had limited the grievor’s compassionate posting to positions of his sub-occupation only, which was contrary to policy, but also contrary to the D Mil C’s decision.
The Committee noted that the fundamental reasons for which the compassionate posting had been granted could not be met from Petawawa, which is more than 4 ½ hours’ drive away from Toronto. Hence, for all intents and purposes, the grievor’s posting to Petawawa could not be considered as a compassionate posting.
The Committee recommended to the CDS that the grievor’s posting to Petawawa not be considered as a compassionate posting. In addition, the Committee recommended that, given the passage of time, the grievor’s situation be reassessed in light of his current circumstances, with the view of determining whether he still meets the criteria to qualify for a compassionate posting to Toronto.
CDS Decision: The final authority agreed with the Committee’s findings and recommendations that the grievor’s posting to Petawawa not be considered as a compassionate posting, and that the grievor be given a compassionate posting in the Toronto area.
Injury Due to Accidental Weapon Discharge
Cases 2015-144 and 2015-145
While on deployment in Afghanistan, the grievor suffered a foot injury because his weapon accidentally discharged during a firing range exercise. After being repatriated, the grievor received an initial counselling (IC) for unsafely handling his weapon. He was also denied the allowance for loss of operational allowances (ALOA) because he was repatriated as a result of negligence on his part.
The grievor maintained that he could not be held responsible for the discharge of his weapon, as no summary trial or court martial was convened and, as a result, negligence had not been established. He maintained that the weapon discharged accidentally, not through improper handling on his part. For those reasons, he felt that the IC was not justified and that he should be eligible for the ALOA.
The initial authority (IA) found that, given that the grievor’s weapon had been inspected by a weapons’ technician and had been deemed to be functional, the grievor could not be discharged from his responsibility to safely handle the weapon. The IA therefore found that the IC was justified.
The Committee also found that the grievor could not remove himself from his responsibility to safely handle his weapon. The Committee noted that training within the CAF, including the training that the grievor received before his deployment, placed a great deal of emphasis on safely handling weapons at all times, and that it very clearly explained the responsibility of the soldier handling the weapon. The Committee found that, in order for a shot to be fired, a series of conditions had to be in place, and that, in the grievor’s case, this could only have occured as a result of improperly handling his weapon, which was, in and of itself, negligence. The Committee therefore recommended that both grievances (regarding the IC and the ALOA) be denied.
Separation Expense Outside Canada
The grievor was posted unaccompanied from a Canadian Forces base to the United States for advanced training. Upon completion of his training, he was posted to Ottawa. His career manager approved a request for imposed restriction (IR) status and the grievor applied for separation expense (SE) benefits. The grievor was then advised by local administrative authorities to proceed to find rental accommodations.
The Director of Compensation and Benefits Administration (DCBA) denied the SE claim, explaining that there was no entitlement to SE when a CAF member moved from a place of duty outside of Canada (OUTCAN) to a place of duty in Canada.
The grievor complained that he had signed a one-year rental agreement and made a financial commitment on the basis of his IR approval and advice from CAF experts, and that it was unfair for the CAF to expect him to pay for two residences. As remedy, he sought to be reimbursed for the first year of accommodation expenses he incurred.
Acting as the initial authority (IA), the Director General Compensation and Benefits denied the grievance, explaining that the move from OUTCAN to Ottawa was administered properly pursuant to Compensation and Benefits Instructions (CBI) 208.997. The IA found that the Treasury Board (TB) approved policy did not allow SE benefits to be paid to CAF members moved from a place of duty OUTCAN to a new place of duty in Canada.
The Committee found that the SE policy was properly applied to the grievor’s situation as there was no entitlement to SE benefits based on his posting. However, the Committee noted that the grievor’s posting situation had been mishandled, because CAF authorities were well aware of this unintended problem stemming from the 2012 SE policy change. The Committee explained that CAF members like the grievor, who moved unaccompanied on an OUTCAN posting, were highly disadvantaged by the recent SE policy changes. The Committee noted that CAF career management authorities had been mitigating the negative impact of this policy oversight through the use of postings. Based on this mitigation strategy, the grievor should have first been posted to reunite with his family at his prior place of duty before being posted to Ottawa. The Committee found it unfair that the grievor was not treated like his peers in a similar situation.
The Committee recommended that the CDS correct the error by cancelling the original posting messages and replacing them with the postings necessary to establish the grievor’s entitlement to the SE benefit.
Eligibility Requirements for In Vitro Fertilization
The grievor and her service spouse unsuccessfully attempted to conceive a child for a number of years. It was determined that the grievor’s husband suffered from male factor infertility. As a result, the couple required intra-cytoplasmic sperm injection (ICSI) and in vitro fertilization (IVF). Under the spectrum of care (SoC), the CAF would only cover the cost of ICSI, and not IVF, as the grievor did not meet the criteria required in the SoC. As a result, the grievor submitted a grievance requesting funding for IVF.
The Surgeon General, acting as initial authority, denied the grievance. He stated that since the grievor did not meet the eligibility requirements for coverage of IVF, she was not entitled for reimbursement of costs. He stated that the fertility benefits found in the SoC are comparable to those received by the vast majority of Canadians and, generally, are more comprehensive.
The Committee acknowledged that the grievance was not about the grievor’s infertility, but that of her husband’s. The Committee also found that, as part of a service couple, the grievor was grieving the fact that IVF funding is not included in the SoC as part of the couple’s infertility treatment.
As part of its research, the Committee contacted a specialist doctor in the field of infertility and reproductive medicine, who certified that ICSI cannot be conducted without IVF, and that ICSI alone is meaningless as an assisted reproductive technique. The Committee concluded that ICSI is an infertility treatment which involves two persons, a man and a woman. In addition, the Committee found that to exclude IVF from an ICSI treatment would be incomplete and meaningless. The Committee found that since the CAF has included ICSI in the SoC coverage for male factor infertility up to a maximum of three cycles, the IVF portion of the grievor’s husband’s ICSI treatment(s) should be reimbursed to him.
The Committee recommended that the CAF reimburse the grievor’s spouse for the IVF portion of his ICSI treatment(s), up to three cycles.
Release Decision after Drug Related Conviction
On execution of a search warrant, the grievor was found to be attempting to manufacture a prohibited drug and he tested positive for cocaine. As a result, the grievor was placed on counselling and probation (C&P) by his commanding officer (CO). The grievor was later found guilty by a Court Martial of an attempt to manufacture a prohibited drug and sentenced to a severe reprimand and a fine. The Director Military Careers Administration (DMCA) completed an administrative review (AR) and directed that the grievor be released under item 5(f) of the table to article 15.01 of Queen’s Regulations and Orders for the Canadian Forces.
The grievor argued that, having completed the C&P, there was no new information on which his CO could base the recommendation for release, the conduct of an AR by DMCA, or his release.
The initial authority, the Director General Military Careers, determined that the laying of the charge and the conviction were new pieces of information that allowed the CO to recommend release and the DMCA to proceed with the AR and release.
The Committee did not agree with the decision to release the grievor. The Committee explained that the Canadian Forces Drug Control Program (CFDCP) is based on education, detection, treatment and rehabilitation which are achieved through the application of Defence Administrative Orders and Directives (DAOD) 5019-3. The Committee found it important to note that both disciplinary and administrative actions taken all stemmed from the same single incident, the results of the search warrant.
The Committee noted that the CAF knew at the outset that the grievor had attempted to manufacture a drug and had used drugs. Based on that information, the CAF chose not to recommend release but to administer a C&P in order to provide the grievor with one last chance to salvage his career. The Committee agreed with this approach.
In order to determine if there was any new information that changed from the information available at the outset, the Committee reviewed the Court Martial transcripts and concluded that they revealed no additional information that would support a release.
The Committee found that the release was not justified under the circumstances and recommended that the grievor be re-enrolled as soon as administratively feasible [should he so desire], with financial compensation for the time he did not serve.
Achieving Blueprint 2020 Vision
The Committee engaged early on in Blueprint 2020, the government wide initiative launched in 2012 to modernize, renew and transform the Public Service. An action plan formulated, starting in June 2013, through regular consultations and employees’ suggestions was integrated throughout 2015 into our strategic priorities. This exercise helped in identifying areas where adjustments were needed. It also validated several strategic choices we already made to reflect the Committee’s vision of being a model administrative tribunal, through its fair and efficient processes, professionalism, and good governance.
I am overwhelmed with the positive way I was treated; I had phone calls to check in on me while asking some other questions. The external review process is essential to the grievance process. Thank you, thank you and thank you.
Here, we briefly present what we continue to do to ensure our initiatives align with the vision of Blueprint 2020:
Attract. Develop. Retain
We are a knowledge-based organization and require specialized expertise and a highly professional workforce.
- When recruiting employees, we target new talents, as well as experienced public servants, and ensure they are equipped with a set of skills consistent with the organization’s needs, and aligned with the vision of a modern Public Service.
- We develop in house talent and apply a policy of learning and training that ensures employee development is aligned with operational needs, while providing employees with opportunities for career development and growth.
- We also put a particular emphasis on employee recognition and in 2015 we revamped our awards and recognition program to ensure no service, performance or achievement goes unnoticed.
Innovation and Smart Use of Technology
We always look for opportunities provided by technological advances. The Committee was an early adopter of cloud computing technology and desktop virtualization to add flexibility and support telework. Wireless connection in the premises is available to all employees and we are moving fast towards significantly reducing paper use.
Whenever possible, we implement business processes and systems that are the standard across government. The Committee was also part of the Pathfinder pilot project for the implementation of the Web Renewal Initiative. We also have a presence in the Social Media Strategy with the launch, in 2015, of two Twitter accounts (one in French and one in English). Recently, we implemented Google Analytics into our communications evaluation process.
An Open and Networked Organization
On the program level (military grievances review), the Committee maintains an open dialogue with clients and stakeholders through targeted surveys. We also integrate their feedback into our planning and operations. More importantly, the Committee analyzes the impact of its work on the military grievance process as a whole. Recommendations are also assessed against final adjudications.
As a micro organization, the Committee faces specific challenges related to managing resources. Networking and sharing provide opportunities in this regard: for example, we have implemented a Memorandum of Understanding for sharing technical resources with another small organization, with which we also share a new IT Operational Framework and Standard Operating Procedures. The Committee is also an active member and contributor to several functional groups of small organizations that aim at sharing ideas, leveraging resources and addressing common challenges.
A Healthy, Respectful and Supportive Work Environment
The 2014 Public Service Employee Survey results show that the work environment at the Committee is perceived by the majority of the employees as being healthy, considerate and supportive. The employees are offered the opportunity to participate in courses on values & ethics (in class and online), as well as anti-harassment/discrimination and stress management training. In addition, the Employment Assistance Program is featured on the Committee’s intranet and information about this program is shared regularly with employees.
The Committee remains committed to integrate into our strategic priorities and action plans all Blueprint 2020 initiatives where talent, competencies, technology and enthusiasm are put together to create positive change and contribute to a world-class Public Service now and into the future.
MGERC 15th Anniversary
The MGERC officially marked its 15th anniversary on 10 June in a ceremony attended by the CDS at the time, General Thomas J. Lawson, and other CAF stakeholders, as well as current and former Committee’s staff and members. “The Committee’s contribution to military conflict resolution is well known and (its) expertise is sought after,” said General Lawson. “The Committee is recognized for providing an invaluable service to senior leadership, decision-makers, CAF members and grievors,” he added.
The former CDS, General Thomas J. Lawson, with the Committees members and staff
The Chairperson and Chief Executive Officer, Bruno Hamel, noted that in the last 15 years the Committee proposed solutions to approximately 2000 grievances and issued more than 360 systemic recommendations. “We gathered valuable information and alerted the CAF to recurrent and systemic issues so problems can be addressed at the root and future conflicts can be avoided,” he said. “While keeping the interests of justice at heart, we work on every case with the individual story in mind with the objective of delivering high quality recommendations that hopefully will contribute to improved working conditions for the men and women of the CAF,” the Chairperson said.
The Chairperson and Chief Executive Officer, Bruno Hamel, unveiling a commemorative crystal plaque with General Lawson (former CDS)
Staff member receiving the MGERC long service award
Staff member receiving the MGERC long service award
Staff member receiving the MGERC long service award
MGERC Visit to CFB Montreal/St-Jean
During the visit (2-3 June), the Committee held briefing sessions for senior base staff and the delegation met with various stakeholders involved in conflict resolution at the base. The visit provided an opportunity to explain MGERC’s role and to discuss issues related to complaint resolution. “Many of our interlocutors were familiar with the Committee’s work. We came to realize that past MGERC findings and recommendations on various subjects were prominent in the decision makers mind; we are happy to see that our message is being heard,” the Chairperson said.
Support to Corporal Nathan Cirillo’s Son
On 5 February, local artist Katerina Mertikas unveiled a print of her painting, Honouring My Father, at the Committee’s offices. The painting is a tribute to Corporal Nathan Cirillo who was killed in an attack on 22 October 2014, while he stood sentry at the National War Memorial - Tomb of the Unknown Soldier. The Committee’s staff purchased a print of the painting to benefit his son’s Marcus national trust fund.
“Children are very important to me and, as my heart was bleeding for little Marcus, I had to express those strong feelings in some way,” Mrs. Mertikas said. “Honouring My Father is a salute to Corporal Cirillo’s bravery and supreme sacrifice,” said the Chairperson.
MGERC delegation touring the 2nd Canadian Division
Bruno Hamel and Katerina Mertikas
Text version : Logic Model
Review Canadian Forces grievances referred by the Chief of the Defence Staff in a manner which is: expedient, fair, transparent and according to the law.
Communicate Case Summaries, Lessons Learned, Trends and Systemic Issues.
Findings and Recommendations on individual cases.
Publications, presentations, case summaries and information tools on the Committees Web site.
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.
Enhanced confidence in the grievance process and the administration of the affairs of the Canadian Forces.
The Chief of the Defence Staff and members of the Canadian Forces have access to a fair, independent and timely review of military grievances.
|Total planned expenditures||6,266,093|
|Salaries, wages and other personnel cost||4,055,118|
|Contribution to employee benefit plans||681,259|
|Other operating expenditures||1,529,716|
As of 31 December 2015 Actual expenditures will vary from the planned spending.
Chief Executive Officer
Mr. Hamel was appointed Chairperson of the Committee on 2 March 2009. In December 2012, he was reappointed for a second four-year term. Mr. Hamel is a retired Canadian Armed 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 Armed Forces.
Ms. Sonia Gaal was appointed full-time Vice-Chairperson of the Committee for a four-year term, starting 1 February 2014. Ms. Gaal’s experience includes workplace litigation and mediation, at both the provincial and federal levels. She held labour and arbitration related positions for the City of Edmonton and the Government of Alberta, before becoming a full-time member of the Canada Industrial Relations Board, the Vice-Chairperson of the Public Service Staffing Tribunal, and then the Director of Human Resources of the Conseil des écoles publiques de l’Est de l’Ontario.
Mr. Denis Brazeau, a retired Colonel, was appointed as a part-time member of the Committee on 27 June 2006, and subsequently as part-time Vice-Chairperson on 9 February 2007. Mr. Brazeau retired from the Canadian Armed Forces after 30 years of service, which included many deployments abroad and a posting 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.
Mr. Allan Fenske was appointed on 13 June 2014 as a part-time member of the Committee for a three-year term. Mr. Fenske, a retired Colonel, has extensive legal expertise in military law and security issues, as well as substantial knowledge of the terms and conditions pertaining to military service. For 25 years, he was part of the Office of the Judge Advocate General where he served in various senior positions. He also served for three years as Director General Canadian Forces Grievance Authority.
The Committee’s Staff
- December 2015
Our employees always exceed expectations in what they do at the Committee, as well as in their wider role of public servants. More importantly, they never rest on their laurels and always seek ways to get better at fulfilling the Committee’s mandate with integrity and professionalism.
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The Committee publishes on its Web site summaries of select cases, as well as recommendations on systemic issues affecting not only the grievor, but other CAF members. Summaries and recommendations provide information about the Committee’s interpretation of policies and regulations, as well as on key issues and trends. Decisions of the final authority, whenever available, are also included.
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