# 2012-022 Pay and Benefits, Overpayment, Pay

Case Summary

F&R Date: 2012–05–29

The grievor enrolled in 2006 under the Continuing Education Officer Training Plan. His enrolment transfer posting (ETP) instruction message erroneously identified his monthly rate of pay as that for a candidate enrolled under the Direct Entry Officer (DEO) plan. The error was discovered four years later and the ETP message was amended to reflect the correct rate resulting in an overpayment to the grievor of approximately $12,000.

The grievor stated he was informed verbally of his rate of pay prior to accepting the offer and that he would not have enrolled had he known his monthly rate of pay was considerably less than the amount originally offered. The grievor added that he was diligent in terms of ascertaining his correct rate of pay and despite numerous verifications since his enrolment, no errors were ever identified. He requested that the Canadian Forces (CF) honour what he was originally offered on enrolment.

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; as well, the CF is required to seek recovery of overpayment of public funds and, although the IA acknowledged the grievor was suffering financial hardship, 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 because collection can be done at source.

The Board determined that the grievor was not entitled to be paid as a DEO. However, the Board was of the view that what was in dispute was whether it was reasonable for the CF to commence recovery action once the error was discovered, some four years later.

In the Board's opinion, 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 reiterated its concerns about the significant number of cases reviewed over the years where errors on the part of the Canadian Forces Recruiting Group when enrolling new applicants have led to subsequent recovery actions by other CF authorities. The Board was of the view that the CDS should no longer limit himself to accepting such easily avoidable mistakes and should consider making those individuals who are not diligent in the performance of their duties accountable for their errors through administrative or disciplinary measures.

The Board recommended the CDS uphold the grievance.

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

The Board recommended the CDS forward the 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: 2014–11–20

The CDS agreed with the Committee that the grievor was aggrieved, however, he did not agree with the Committee's recommended remedies. The CDS agreed with the Committee's finding that, by not confirming the CBI reference for the CEOTP, the CAF was responsible for the error in the rate of pay and pay increment on the grievor's enrolment. However, while this error is unfortunate, the CDS wrote that the CAF had no choice but to recover the overpaid $11,280.42. He stated that the only available remedy was to offer the grievor an extension of his terms of service to allow him to complete his undergraduate studies.