# 2013-020 Pay and Benefits, Allowances and Benefits, Overpayment, Promissory Estoppel, Recovery of Overpayment/Debt Write-Off

Case Summary

F&R Date: 2013–04–22

In a pre-deployment briefing, the grievor was advised that he was eligible to claim custodial expense benefits. The briefing did not specify the type of service provider required in order to claim the benefit. After checking twice with clerks in the Unit orderly room, the grievor acted on the advice received in the pre-deployment briefing and hired a private service provider to maintain his residence while deployed in Afghanistan. Upon return, he submitted a general allowance claim which was verified by the Unit Chief Clerk and approved by a Major. The grievor was reimbursed in full for his custodial expense claim. Following an audit, it was found the grievor's claim did not meet the criteria of the Domestic Benefits Aide-memoire dated 1 November 2008; which stipulated the use of a commercial firm. The Canadian Forces (CF) then recovered the expense benefits paid to him.

The Board agreed with the CF that the grievor was not entitled to claim the benefit but found that it was unjust to recover the money paid out to the grievor. As the Board has explained in other recent cases [2012-015 and 2012-134], the automatic recovery of funds resulting from errors not the fault of the member is unfair. In this case, the Board found that the CF and its representatives made erroneous representations to the grievor who then relied on them to his detriment. The Board also found that the Chief of the Defence Staff (CDS) has the authority to determine that the CF is estopped from recovering the grievor's custodial expense benefit and to determine that the CF should reimburse the money to him.

The Board recommended that the CDS uphold the grievance by reimbursing to the grievor any money recovered.

CDS Decision Summary

CDS Decision Date: 2014–06–10

The CDS agreed with the Committee that the grievor was not entitled to reimbursement of his custodial expense pursuant to the relevant policy, the Military Foreign Service Instruction. He also agreed that the grievor had received and relied on incorrect information from the CAF regarding the benefit. Consequently, the CDS had referred the grievor's file to the Director Civil Claims and Litigation for assessment in accordance with the Treasury Board Directive on Claims and Ex Gratia Payments, and he understood that a settlement had been reached. The CDS noted that he disagreed with the Committee that the CAF could be estopped from recovering the overpayment of the benefit. The CDS stated that Queen's Regulations and Orders 203.04(2) and 201.05(2) imposed mandatory obligations that overpayments had to be refunded or recovered, and as such, the doctrine of estoppel could not apply.