# 2014-035 - Breach of Contract/Promise, Enrollment Offers

Breach of Contract/Promise, Enrollment Offers

Case Summary

F&R Date: 2014–07–30

The grievor accepted an offer for re-enrolment in the Canadian Armed Forces (CAF) in the rank of Private. He was awarded Pay Increment (PI) 3 with a Time Credit for Promotion (TCP) of 3 years 14 days for having previously served in the Regular Force, which he was later informed that he was not entitled to, and was asked to reimburse the overpayment. The grievor contests this recovery decision.

The grievor acknowledged that in accordance with subparagraph 204.015 (4)(a) of the Compensation and Benefits Instructions (CBI), given that his previous military service had been interrupted for more than five years, it would not normally be included as qualifying service for the purpose of determining his PI. However, he argued that he had agreed to re-enrol into the CAF based on his original enrolment offer and that the amendment of his conditions more than a year after his re-enrolment has greatly hindered his ability to meet his financial responsibilities

The Initial Authority (IA) denied the grievance stating that in accordance with the CBI, the grievor's prior service could only have been recognized as qualifying service if he had maintained relevant skills determined to be of military value directly attributable to his Military Occupation Specification Identification (MOSID), which was not the case.

The Committee had to determine if the CAF had made an erroneous offer and, if so, whether remedy could be afforded within the CAF grievance system.

On the issue of recognizing the grievor's prior service as qualifying service for purpose of his PI, the Committee agreed with the IA that the grievor had not shown that he had maintained relevant skills that could have led to the recognition of qualifying service. That being said, the Committee did not concur with the IA position regarding the relevant skills having to be directly attributable to the grievor's MOSID. The Committee explained that the relevant CBI does not impose a link to the MOSID.

However, the Committee also concluded that the CAF erroneously promised the grievor a PI 3, with a TCP of 3 years 14 days in the rank of Private when he re-enroled. The Committee found that the grievor's situation met the general conditions for negligent misrepresentation as established by the Supreme Court in Queen v Cognos Inc., [1993] 1 SCR 87 [Cognos], but determined that an appropriate remedy could not be afforded within the CAF grievance process.

The Committee therefore recommended that the Chief of Defence Staff recognize the error and refer the case, with his support, to the Director Claims and Civil Litigation for consideration of financial compensation.

CDS Decision Summary

CDS Decision Date: 2015–06–11

The CDS did not agree with the Committee's recommendation that the grievance be forwarded to Director Claims and Civil Litigation (DCCL) as the DCCL is an organization outside the grievance system. The CDS acknowledged that an error was committed by the CAF, but was of the view that he had no authority to accept liability on its behalf or to settle potential claims against the Crown.

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