# 2014-060 - Pension Entitlements, Release - Medical

Case Summary

F&R Date: 2014–06–11

The grievor, a member of the Primary Reserve, was due to be medically released. While he did not object to his release, the grievor argued that the decision to release him based on his disability was discriminatory in nature and requested that he be retained until he reached 10 years of service in order to qualify for an immediate annuity under Part 1 of the Canadian Forces Superannuation Act (CFSA).

The Initial Authority (IA), the Director General Military Careers, denied the grievance. He explained that the grievor's release date was set six months after the release decision in accordance with policy. He further explained that there is no policy that permits delaying a release for the purpose of financially benefitting a member.

The Committee had to determine whether the grievor's release date was selected in accordance with policy and, if so, whether the date selected was reasonable. The Committee concluded that, based on the fact that the Canadian Human Rights Act recognizes the unique situation of the Canadian Armed Forces (CAF) in the necessity to apply the Universality of Service principle, a matter upheld by the Courts, the decision to release the grievor was not discriminatory. The Committee also found that since the grievor's occupation showed no critical shortage and that he did not possess a specific skill set, the grievor did not qualify for a period of retention as contemplated in Defence Administrative Orders and Directives 5023-1 (Minimum Operational Standards Related to Universality of Service).

The Committee acknowledged that the eligibility to and terms of an annuity are tied to the years of service and the item of release. The Committee also noted that this nexus had been recognized by the CAF and several Chief of the Defence Staff. However, in reviewing and assessing the reasonableness of one's release date, the Committee was of the view that a fair question to ask was whether, on a balance of probability, a reasonable person would conclude that the release date was selected to financially advantage a CAF member or to disentitle him/her from an annuity. In the case at hand, since the grievor was 15 months short of what he considered to be a career milestone (Medically released after 10 years of military service), the Committee found that selecting a release date at the 10-year mark would have been unreasonable because it would most likely be perceived as being taken for the sole purpose of financially advantaging the grievor.

In any case, the Committee found that the grievor's situation did not fall within the purview of Part 1 of the CFSA because he was neither a member of the Regular Force nor had he gained enough full-time Reserve service to qualify. Rather, the Committee was of the view that the grievor's situation fell under Part 1.1 of the CFSA, where the Reserve Force Pension Plan Regulations provide for an immediate annuity only when a reservist, disabled by reason of suffering from an impairment, is unable to engage in any employment for which he/she is reasonably suited and that the impairment is expected to last for the remainder of the member's life. The Committee noted that this was not the case of the grievor.

The Committee recommended that the grievance be denied.

CDS Decision Summary

CDS Decision Date: 2014–09–19

The Chief of the Defence Staff agreed with the Committee that the grievor was not aggrieved and with its recommendation that the grievance be denied.