# 2012-020 - Enrollment Offers, Overpayment, Prior Learning Assessment Review (PLAR) , Recovery of Overpayment/Debt...

Enrollment Offers, Overpayment, Prior Learning Assessment Review (PLAR) , Recovery of Overpayment/Debt Write-Off

Case Summary

F&R Date: 2012–05–29

The grievor enrolled in the Canadian Forces (CF) in September 2008. His enrolment transfer posting (ETP) instruction message indicated he was to be enrolled as "unskilled" and was to be paid as a Private Recruit at pay increment (PI) level 3. In July 2009, Canadian Forces Recruiting Group (CFRG) Headquarters issued an amendment to the ETP instruction message reducing the grievor's pay to PI level 1. The grievor was subsequently informed of the decrease in his pay and the resulting overpayment of almost $10,000.

In his grievance, the grievor stated he was promised PI 3 in recognition of his successful completion of a one-year training course related to his military occupation and that he was told at the Canadian Forces Recruiting Centre (CFRC) that he would be enrolled as "semi-skilled". He added that the recovery action directed as a result of having been overpaid has caused him and his family a significant financial burden. He requested that his pay be reinstated to PI 3 as indicated on his original ETP message.

The initial authority (IA) denied redress. The IA stated that when errors are discovered through the administration of the affairs of the CF, the department has an obligation to correct those errors; similarly, the CF is required to seek recovery of overpayment of public funds and, although the IA acknowledged that the error occurred at the hands of others, there is no authority to overturn the recovery of the overpayment. The IA added that Treasury Board (TB) debt remission regulations do not apply to serving CF members.

The Board determined that the grievor was not entitled to PI 3 upon enrolment. The Board could not ignore, however, the grievor's claim that since he fulfilled his part of the deal, the CF must honour the original conditions of service he was offered.

The Board was of the opinion that the IA was incorrect in stating that a remission order can never be sought for CF members. In addition, the Board was of the view that in some circumstances, while a member may, on one hand, be required to reimburse an amount paid in error, he or she may have a claim for damages to compensate for the injustice suffered as a result of the CF's errors. The Board believed the grievor had such a case.

The Board acknowledged that the relationship between the CF and its members is not contractual in nature and that once enrolled, a member has entered into a unilateral commitment to serve in return for which the Crown assumes no obligation. However, in the case at hand, when the grievor accepted and relied on the offer, he was still a civilian - not a serving member. It was the Board's view that the CF has, if not a legal obligation, a moral obligation to provide redress to the grievor; financial compensation should be available as redress. Alternatively, should the Chief of the Defence Staff (CDS) not agree that the grievor should be compensated, the Board was of the view that the grievor's debt should be remitted.

The Board expressed some concern relating to the fact that enrolment offers are often conducted verbally at Canadian Forces Recruiting Centres and that the content of the enrolment offer is not included in the documentation signed by the enrollee upon enrolment. The Board noted however, that since January 2011, Defence Administrative Order and Directive 5002-1 - Enrolment, was modified to include a written offer. The Board was of the opinion that while the initiative to develop a written offer is a step in the right direction, the production of a complete enrolment record would likely reduce, if not eliminate, the number of errors upon enrolment. The Board made a systemic recommendation on this issue.

The Board recommended that the CDS uphold the grievance.

The Board recommended that the CDS acknowledge the CF error that led to a breach of the grievor's offer of enrolment.

The Board recommended the CDS forward this file to the Director Claims and Civil Litigation, with support and explanation, for review as a potential claim of breach of contract.

Alternatively, the Board recommended the CDS direct departmental authorities to prepare a TB submission (to be supported by the Minister of National Defence) requesting support for the remission of the debt, as per section 23 of the Financial Administration Act.

CDS Decision Summary

CDS Decision Date: 2013–03–21

The CDS partially agreed with the Board's recommendation that the grievance be uphold. The CDS acknowledged that there is an obligation on the CF to correct an injustice when one occurs, regardless of the absence of contract arrangement, and it is a fundamental responsability of the chain of command. The unlimited liability and duty to obey lawful orders is counterbalanced by a fundamental duty to care. Therefore, based on DAOD 5031-1, the CDS determined that partial equivalency can be granted, and given the wording of CBI 204.015 on pay increments, and directed the Commander to amend the grievor's PI to Pte PI 2, effective the date of his enrolment, minus any leave without pay.

Since the CFRG is implementing various procedures to minimize errors, the CDS was satisfied that these measures were sufficient to rectify the issues raised by the Board in his systemic recommendation.

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