# 2011-098 - Allowance - Loss of Operational Allowances (ALOA), Allowance for Loss of Operations Allowance,...

Case Summary

F&R Date: 2011–11–25

The grievor's accident, which occurred in the theatre of operations, was caused by using naphta to light the barbecue. The grievor's injuries required his evacuation and subsequent repatriation to Canada. A Summary Investigation (SI) was ordered, which determined that the grievor's injuries were a result of his negligence; as a result, the Joint Task Force Commander (JTF Comd) denied him the Allowance for Loss of Operational Allowances (ALOA). The grievor explained that he had submitted his grievance past the deadline for health reasons. The Board concluded that the periods set aside to put the grievor back on his feet should not interfere with his right to submit his grievance. The Board therefore recommended that the Chief of the Defence Staff (CDS) consider the grievance in the interests of justice.

Paragraph 205.536(3) of the Compensation and Benefits Instructions (CBI) states that the purpose of the ALOA is to compensate members of the Canadian Forces who meet the following eligibility criteria: (1) has been deployed, (2) has become a “casualty”, (3) is no longer able to serve in a Special Duty Area or Special Duty Operation and (4) the operational allowances relating to his service have ceased. Under the circumstances, the first, third and fourth criteria are not contested.

In addition, article 205.536 of the CBIs stipulates that a “casualty” occurs when a member is wounded during hostilities or falls ill for reasons directly related to the conditions of his deployment. CANFORGEN 050/07 specifies that a “casualty” includes injuries that result directly from the execution of military tasks necessary to the success of the mission. The Board concluded that the grievor's injuries resulted from his military service since it was well known that CF members on teams were required to cook their own meals on a regular basis and that this chore was an integral part of their taskload.

Paragraph 205.536(3) of the CBIs stipulates that the ALOA should not be paid to members where an inquiry has determined that the status of “casualty” results from negligence on the part of the member. The SI concluded that the injuries resulted from the grievor's negligence. The Board, however, concluded that the SI had been poorly done and that the report's conclusions should be ignored. The Board therefore examined the evidence on file to determine whether the grievor had given proof of negligence. The Board concluded that the grievor had not displayed negligence given that he had simply copied the actions of the section CO and obeyed his orders. The grievor was therefore entitled to the ALOA.

Given that the head of the National Contingent who administered the grievor's repatriation had incorrectly interpreted the term “casualty”, the Board was concerned that this individual had arranged over 240 repatriations. The Board submitted a systemic recommendation to the CDS given the possibility that other members repatriated on medical grounds were also denied the ALOA because of the same erroneous reading of the term “casualties”. Because of the risks involved, The Board also sent a systemic recommendation to the CSD concerning the use of naphta.

CDS Decision Summary

CDS Decision Date: 2013–03–19

The CDS agrees with the Board's recommendation to uphold the grievance. The CDS concurs with the Board's finding that the grievor met the conditions set forth at CBI 205.536(3) governing eligibility for an allowance for loss of operational allowances.

The CDS did not support the Board's systemic recommendation to order that an appropriate fire-starter be provided in theatre and that the use of naphtha for other than that prescribed by the CF be prohibited. The CDS did not follow the Board's systemic recommendation to order a review of the 2009 repatriations where the allowance for loss of operational allowances had been denied in order to reassess of those repatriations according to a more liberal interpretation of CBI 205.536(3).