# 2012-050 Pay and Benefits, Integrated Relocation Program (CF IRP), Separation Expense (SE), Temporary Dual Residence Assistance
Case Summary
F&R Date: 2012–08–21
In 2009, the grievor's spouse [also a Canadian Forces (CF) member] was posted to a new geographical area while the grievor remained in the previous geographical area; the grievor was awarded Imposed Restriction status since his spouse moved with their dependants, household goods and effects. The grievor sought authority to remain in his principal residence and claim the cost of his utilities as separation expense (SE) for lodgings, suggesting that it would be convenient for him and represent a cost savings to the CF. The Director Compensation and Benefits Administration (DCBA) denied the grievor's request for SE for lodgings on the basis that the grievor owned the house and, therefore, it did not meet the definition of “private accommodation” in accordance with the DCBA Aide-Memoire. For the same reason, the DCBA explained that the grievor was only entitled to the low rate of SE for meals.
In his grievance, the grievor argued that the DCBA decision failed to meet the intent of the CF relocation policy. He requested reimbursement for the combined equivalent of his electricity, taxes and home insurance expenses for his residence as well as the high rate of SE for meals while separated from his dependants and the new family principal residence.
The Director General Compensation and Benefits (DGCB), acting as the initial authority (IA), found that the grievor was not entitled to reimbursement of any lodging expenses related to his personally owned residence based on the provisions of the Canadian Forces Integrated Relocation Program (CF IRP) Policy, article 15.2.08 and section 1.4. However, the IA did find that the grievor was entitled to an increased amount of SE for meals equal to 35% of the daily composite meal and incidentals rate as prescribed in the National Joint Council Travel Directive.
While analyzing the grievance, Board staff realized that Chapter 15 of the CF IRP policy used by the IA in her decision was not in effect at the time the grievor made his request. Upon being so advised by the Board staff the IA issued a new letter correcting the error. In the revised decision, the IA confirmed that the grievor was not entitled to SE benefits under the provisions of Compensation and Benefits Instructions (CBI) article 209.997. However, using the Ministerial discretion found at CBI 209.013, the IA maintained her original decision.
As a preliminary issue, it was the Board's view that the IA was functus and could not issue a new decision. That said, since the letter did not change the outcome of the IA determination, the Board considered the new decision as Subject Matter Expert comments.
The Board agreed with the IA that the grievor did not meet the conditions of CBI 209.997(2)(a) and (c) since it was his spouse and not him who was posted to a new place of duty. However, in considering this case, the Board observed that both article 15.2.08 of the CF IRP and article 2.7 of the Aide-Memoire, referred to by the DCBA and the DGCB in her IA decision, identify the option of transferring the benefit between the partners of a married service couple (MSC), thus allowing the member not posted to claim SE benefits where it makes sense to do so, as in the grievor's case. Although these policies were not in effect at the time of the spouse's posting, they do serve to identify a valid requirement in certain cases for MSCs.
The Board noted that the DGCB invoked the power of the Minister found at CBI 209.013 in order to maintain her IA decision to grant SE benefits for meals. In essence, that regulation requires that three conditions be met before invoking Ministerial Authority to grant exceptional compensation to a member and, as explained below, the Board was of the view that the Power of the Minister should be exercised in this case to compensate the grievor.
First, the benefit must have been denied because the member's relevant circumstances, although not dissimilar, were different from the circumstances established. Second, the granting of the benefit must be consistent with the intent of Chapter 209, particularly CBI 209.997, which is to reimburse members for additional expenses incurred as a result of the separation from their dependants. Third, the granting of the benefit must be equitable in the circumstances. The Board considered that the grievor's situation met the three conditions.
CBI 209.997(3)(a)(ii) allows the reimbursement of actual and reasonable expenses when accommodation is obtained from non-commercial sources. The IA determined that because the grievor's accommodation was his private residence, there was no entitlement to SE for lodgings. This determination was based on the definition of non-commercial lodgings contained in the CF IRP, section 1.4, which expressly excludes a member's private residence. However, the Board noted that this definition is at odds with the one contained in CBI 209.80, which does not have the same restriction and, in fact, defines “private home” as non-commercial lodging.
Since the SE benefits are governed by the CBI, the Board found that it is the definition found in the CBI that applies to the grievor. In any case, when there is a conflict or inconsistencies between a CBI and the CF IRP, the CBI would have precedence as it is the approved TB regulation. Accordingly, the Board found that the grievor's accommodation, his private home, is included in the applicable definition of non-commercial lodgings and, as such, the grievor was entitled to reimbursement of actual and reasonable expenses for lodgings.
Like the IA, the Board found that it would be equitable and fair to grant the grievor an allowance for meals and incidentals equivalent to that outlined in CBI 209.997(3)(b) which is an amount equal to 35% of the daily composite allowance established under CBI 209.30 – Entitlements and Instruction, (see Canadian Forces Temporary Duty Travel Instruction).
The Board recommended that the Chief of Defence Staff uphold the grievance by directing the reimbursement of the grievor's actual and reasonable lodging expenses not to exceed the maximum amount authorized for the time period in question and that the grievor be granted an allowance for meals and allowances equal to that outlined in CBI 209.997(3)(b).
CDS Decision Summary
CDS Decision Date: 2015–05–25
The CDS did not agree with the Committee's finding that, based on the precedence given to CBI over CF IRP, the grievor's accommodation, his private home, was included in the applicable definition of non-commercial lodgings and as such, the grievor was entitled to reimbursement of actual and reasonable expenses for lodgings. The CDS did not agree with the Committee's recommendation that the grievance be upheld on that issue.
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