# 2012-070 Medical and Dental Care, Dental Services, Medical Treatment, Reserve Force

Case Summary

F&R Date: 2012–08–31

The grievor, a member of the Reserve Force (Res F) on continuous Class B Reserve Service, was denied the right to initiate major dental treatment given that his period of Class B Reserve Service was scheduled to end before the estimated time required to complete the different treatments and operations.

The Board had to determine whether the grievor was entitled to receive full dental care before the end of his period of Class B Reserve Service.

The Initial Authority in this case, the Surgeon General, Commander Canadian Forces Health Services Group, denied the grievance, noting that the grievor had been accorded full dental care in order to maintain an operational level of dental health compatible with deployments and compliant with existing policy and that it had not been possible to proceed with the recommended treatment given the time available before the expiry of the Class B service and the release of the grievor.

Questioned by the Board, the Director Dental Services 2 (D Dent Svcs 2) pointed out that the document “Spectrum of Care (SoS) – CF Health Services” includes a section entitled “Dental Care Limitations” which stipulates that it should be possible to provide full treatment and follow-up during the period of service that ties the patient to the Canadian Forces (CF). The D Dent Svcs 2 specified that members were entitled to dental care until their release and that subsequent to release there were no dental health standards to be met. He pointed out that it was on these grounds that the grievor’s treatments were not provided or, at least, did not commence before his release from the CF.

The Board began by considering Chapter 35 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) – Dental Services, which establishes the right of CF members to dental care and defines full dental care as treatment that is required to establish and maintain a reasonable degree of masticatory efficiency and freedom from pain and that is, in the opinion of the dental officer, necessary and available. The Board subsequently concluded that the grievor had in fact received full dental care while on continuous Class B Reserve Service.

The Board then examined the provisions of the SoS – CF Health Services and concluded that the limitation under which it had to be possible to provide the full treatment and follow-up during the period of service was in contravention of the QR&Os, as it limited the right of CF members to the dental care provided for under the regulations. The Board also concluded that the grievor should have received the offer to commence the treatment if he agreed to accept the costs associated with the remaining treatment after his entitlement to full CF care ceased.

Accordingly, the Board recommended that the Chief of the Defence Staff partially uphold the grievance by offering the grievor six months of full dental care at public expense for a treatment requiring 18 to 24 months to complete, and by granting the grievor an extension on class B Reserve Service equal to the period during which he should have received full dental care before the expiry of his class B Reserve Service, ie, six months. The Board also indicated, however, that before partially granting the grievance, the grievor would have to be willing to accept the extension on class B Reserve Service, failing which the grievance should be denied.

CDS Decision Summary

CDS Decision Date: 2013–08–29

The CDS does not concur with all the Board's conclusions and recommendations. The CF SoS contains rules and policies that do not allow for dental treatments to be initiated if there is a lack of valid reserve service for the full duration of the treatments. Article 35.04 (Entitlement to Dental Care) bases eligibility for full dental care on the member's terms of service, but neither RegF members nor ResF members have an absolute right to the full spectrum of major dental treatments associated with full dental care. According to the CDS, a distinction must be made between “being eligible” for dental care, in the English version, and “being entitled”,to dental care, in the French version. The CDS favoured the English version of article 35.04 because it was more in tune with the regulation. Consequently, the dentist enjoys the discretion, based on a member's terms of service, to refuse to provide full dental care. In consequence, the CDS determined that the grievor was entitled to care associated with operational dental fitness and that he was eligible for necessary and available oral health care based on the advice of CFDS specialists. The CDS did not agree with the Board that the CF SoS limits the right of members to the dental care provided under article 35.04 of the QR&Os. According to the CDS, paragraph 5 of QR&O 35-4 stipulates that it is the dental detachment commander who bears responsibility for determining the priorities and the extent of the care to be provided in accordance with the orders and directives. The CDS is of the opinion, however, that the CF SoS is a directive whose purpose is to describe the medical and dental care services that are available and funded by the Crown. The CDS rejects the grievor's allegation that the priorities of operational missions between 2005 and 2011 did not permit him to obtain dental care between 2008 and May 2011. Contrary to the Board, the CDS determined that the grievor had obtained the second level care which he had requested and to which he was entitled during this period,. Finally, since the absence of dental treatment between 2008 and 2011 was not the result of a flaw in military service, the CDS was not prepared to seek a ministerial waiver under QR&O 15.17(5)b). Consequently, the CDS does not support the Board's recommendation that the grievor be provided with dental care following his release.