# 2012-068 Pay and Benefits, Discretionary power of the MND under CBI 209.013, Leave Travel Assistance

Case Summary

F&R Date: 2012–08–23

In November 2010, the grievor's next of kin (NOK) travelled to the grievor's location for a visit. At the time, reverse leave travel assistance (LTA) was one of the benefits allowed by the Director Compensation and Benefits Administration Domestic Benefits Aide-Memoire (Aide-Memoire). In February 2011, the Chief of Military Personnel announced that there was no longer an entitlement to reimbursement of reverse LTA. Also, in February 2011, the grievor indicated his intention to submit a claim relating to his NOK's visit, but was told that due to the policy change, he was no longer entitled to the benefit.

The grievor submitted a grievance stating that, in his view, since the trip took place before the change in policy, he should be reimbursed.

The Board found that Compensation and Benefits Instructions (CBI) article 209.50 - Transportation on Leave, in effect at the time the grievor's NOK visited him provided no authority for reverse LTA. The Board also pointed out that in previous cases it had reviewed, it concluded that, through the issuance of the Aide-Memoire, the Canadian Forces (CF) had expanded or restricted some of the benefits available to CF members in error and without proper authority. The Chief of the Defence Staff (CDS) has since agreed with the Board and directed that the situation be remedied.

In February 2011, CANFORGEN 033/11 - Compensation and Benefit Administration, confirmed there was no entitlement to reimbursement of reverse LTA and that the Aide-Memoire authorized payment of some benefits and allowances without authority. It directed that these payments stop immediately. The Board noted, however, that the CANFORGEN also directed that no recovery action take place on advances already issued to members who had no entitlement to the funds.

The Board concluded that the Aide-Memoire cannot be used to reimburse the grievor's reverse LTA; in addition, while it may seem unfair to the grievor that some CF members did receive this benefit under the Aide-Memoire, albeit without authority, these errors cannot serve as the basis to provide him with the remedy sought.

The Board next turned to CBI paragraph 209.013(2) which provides for special powers of the Minister of National Defence to grant exceptional compensation to a CF member if the three following conditions are met: 1) the benefit must have been denied because the member's relevant circumstances, although not dissimilar, were different from the circumstances established; 2) the granting of the benefit must be consistent with the intent of the policy and; 3) the granting of the benefit must be equitable in the circumstances.

The Board was of the opinion that the grievor's situation was not dissimilar because the purpose of the LTA benefit is to visit with NOK, which he did, but the circumstances were different because it was the grievor's NOK who travelled instead of the grievor himself; the granting of the benefit was consistent with the intent of the policy which is to reimburse CF members once per year for expenses related to their transportation to visit their NOK while on leave; and it would be equitable and consistent with CBI 209.50 to reimburse the grievor the actual and reasonable expenses he incurred to visit with his NOK.

The Board recommended that the CDS uphold the grievance.

The Board recommended that the CDS invoke Ministerial Authority and direct the reimbursement of the grievor`s reverse LTA claim.

CDS Decision Summary

CDS Decision Date: 2013–03–20

The CDS disagreed with the Board's recommendation to grant the grievance. The CDS disagreed with the Board's recommendation that the Minister's special power under CBI 209.013(2) be invoked to allow the reimbursement of the reverse leave travel assistance. The benefit provided in CBI 209.50 at the time the grievor's next of kin visited him was very detailed and the circumstances of this case should be seen as dissimilar to the circumstances established under CBI 209.50, therefore, outside the scope of CBI 209.13(2).