# 2012-104 Pay and Benefits, Administration of Imposed Restriction and Separation Expense, Recovery of Overpayment/Debt Write-Off, Separation Expense (SE)

Case Summary

F&R Date: 2012–11–18

The grievor was prohibited posted to complete training in her new occupation, on completion of which she was position changed from the basic training list to a staff officer position at the same unit. Shortly before the effective date of her position change, the grievor signed a Statutory Declaration and Common-Law Partnership (CLP) Application which was approved by her Commanding Officer (CO). Upon acceptance of her CLP declaration, the grievor applied for separation expense (SE) benefits and she subsequently began receiving SE benefits at the high rate. It was later determined that the grievor was not entitled to SE benefits at the high rate and she was informed that recovery would be initiated.

The grievor argued she was entitled to high rate SE benefits because her CLP was recognized prior to the effective date of her position change and that this date should be treated as a change of strength (COS) date since, in her opinion, her position change message should be recognized as a posting message. She submitted there was a lack of due diligence on the part of the Canadian Forces (CF) and she should not have to pay the price for the CF's failure to properly train those responsible for writing and reviewing its policies. The grievor also raised the issue that she was not provided procedural fairness when the CF decided to recover the overpayment. As redress, the grievor requested that any overpayment debt should be remitted due to her reliance on the CF as a competent authority. She also requested that claims staff be provided with additional training in the verification of claim files.

The initial authority determined that notwithstanding the treatment of the grievor's change of position instruction nor the subsequent decision that her CLP recognition was not valid, the grievor failed to meet the criteria necessary for entitlement to SE benefits and therefore was not entitled to either the high or the low rate of SE payments.

The Board reviewed Compensation and Benefits Instructions article 209.997 - Separation Expense, the regulation in effect at the time and found that the grievor was not entitled to SE. The grievor was not posted to a new place of duty when she changed position and thus, was not authorized a move of her HG&E at public expense, one of the required conditions. Having found that the grievor was not entitled to SE, the Board was of the view that it did not need to review neither the issue of COS date versus position change date nor the legitimacy of the recognition of the grievor's CLP.

In the circumstances of this file, the Board was of the opinion that the recovery was not unreasonable or unjust and there was no reason to remit the amount either through the powers of the Minister or through the Governor in Council.

Concerning the issues of due diligence and procedural fairness raised by the grievor, the Board was of the opinion that the error could have been prevented when the grievor requested that her CLP status be recognized by her CO. From that point on, the error was perpetuated and her entitlement to the SE benefits was erroneously established, In the case at hand, the Board was of the view that the overpayment appeared to be the result of shared responsibility. In the matter of procedural fairness, the Board pointed out that the common law duty of procedural fairness generally requires that before an administrative authority makes a decision affecting a person's interests, that person should be informed and given the opportunity to respond. In the present case, the grievor was informed that the recovery would take place and the grievor exchanged numerous emails with the CF regarding the postponement of the recovery as well as the period of recovery. The Board found that the grievor was not denied procedural fairness.

The Board recommended that the Chief of the Defence Staff deny the grievance.

CDS Decision Summary

CDS Decision Date: 2013–10–25

The CDS agreed with the Board's findings and recommendation that the grievance be denied. However, the CDS was concerned that the CMP Instruction 15/06 is not entirely clear concerning when committed couples, in the face of separation for military reasons, are permitted to claim common-law status. The CMP was tasked to review the Instruction to determine whether clearer and more detailed criteria are required.