# 2014-079 - Imposed Restriction (IR), Recovery of Overpayment/Debt Write-Off, Separation Expense (SE)

Case Summary

F&R Date: 2014–11–24

Pending her release from the Canadian Armed Forces (CAF), the grievor chose to move her Household Goods and Effects (HG&E) at her own expense to a new residence located in a place other than her current place of duty to allow her spouse to return to work. Her release was subsequently cancelled and she was posted to a new place of duty located approximately 100 kilometers from the new residence. The grievor received Separation Expense (SE) and it was later decided that she was not entitled to it because the new residence did not meet the definition of principal residence, as established by the Compensation and Benefits Instructions (CBI): “a residential property in Canada that is located at the place to which the member's HG&E were last moved at public expense.”

The grievor challenged the decision to recover the amount of SE expense received. As redress, she requested reimbursement of the amounts recovered from her for a mistake she did not commit. She also sought reimbursement of the penalties incurred for breaking a lease and service shutdowns.

The initial authority concluded that the grievor was not entitled to SE in accordance with CBI Chapter 208 and that the recovery was required because the CAF did not have authority to write-off such a debt.

The Committee determined that the grievor was not entitled to SE. However, the Committee noted that the grievor exercised due diligence by informing the appropriate personnel and questioning her entitlement to SE prior to pursuing the matter. The Committee also noted that the grievor received inaccurate information from the CAF with respect to SE and that she relied on it.

The Committee concluded that in relying on the negligent misrepresentation and acting on it, the grievor suffered financial harm and that she was therefore aggrieved by a decision, act or omission in the administration of the affairs of the CAF. The Committee recommended that the Chief of the Defence Staff return the grievor's file to the Director, Claims and Civil Litigation for review in accordance with the Treasury Board Directive on Claims and Ex Gratia Payments.

FA Decision Summary

The CDS partially concurred with the Committee's findings and its recommendation concerning the appropriate remedy to compensate the grievor for the harm she had suffered. Consequently, the CDS chose the alternative solution proposed by the Committee, which is to grant, under Canadian Forces Administrative Order 36-14, rations for the 85 days where the grievor worked in Cornwall. The CDS acknowledged that the clerks involved, the CAF subject matter experts, had continued to assert that the grievor was entitled to SE, while it clearly was not the case. However, he determined that the Cognos test was not met because they did not act in bad faith or carelessly; notwithstanding that these are not conditions of the said test. The CDS concluded that, if the grievor deemed that her situation justified that an Ex gratia payment under DAOD 7004-0 be considered, she could undertake the necessary recourse herself as that recourse was outside his jurisdiction.