# 2015-024 - Post Living Differential (PLD)

Case Summary

F&R Date: 2015–05–13

The grievor component transferred from the Reserve Force (Res F) to the Regular Force (Reg F) and was posted on a restricted posting to another location. In the process, the grievor attempted to obtain information regarding the move of her Household, Goods and Effects (HG&E) from her Res F unit, Reg F unit and from staff at the Director Military Careers. She eventually moved her HG&E to a new location other than her place of duty, having been given general information about possible loss of relocation benefits in the future. She was advised at her place of duty that she was entitled to Post Living Differential (PLD) benefits which she received for over two years before another unit she was posted to informed her that she was not entitled to PLD because she was not originally authorized to move at public expense. As a result, the CAF directed the grievor to repay approximately $31,000.

The grievor argued that she requested information concerning her move, and pointed out that she never requested PLD. She contended that the pay authorities made an error for which she now had to pay for, and as a result, she suffered an injustice. She submitted that it was not reasonable to expect her, as a new Private in the Reg F, to have in-depth knowledge of the PLD policy, which even subject matter experts struggle to interpret properly. She requested that the CAF not recover the PLD funds paid to her as a consequence of their administrative oversight.

The Initial Authority (IA) denied the grievance. He stated that Compensation and Benefits Instructions (CBI) 205.45 requires a CAF member to be authorized to move a principal residence at public expense in order to be eligible for PLD, which was not the grievor's case. In addition, the IA pointed out that the grievor had a duty under Queen's Regulations and Orders for the Canadian Forces (QR&O) paragraph 203.04(1) to be acquainted with her pay and allowances.

The Committee reviewed CBI 205.45 and determined that, since the grievor moved at her own expense for personal reasons, she did not have a principal residence in a PLD area. Hence, she was not entitled to PLD. However, the Committee noted that the grievor showed due diligence given she attempted to clarify her living situation via three different avenues.

The Committee considered that, in certain circumstances, an overpayment may not be recovered. In this regard, the Committee noted that within a few weeks of joining the Reg F, the grievor did not apply for PLD; she was told that she was entitled to it, and genuinely thought she was. It was the Committee's view that there was a duty of care on the Orderly Room staff who signed off on the grievor's PLD request and allowed to over $31,000 to be erroneously paid to her. The Committee found that the CAF acted negligently in approving the grievor's PLD benefits and that she relied on the information they provided to her detriment, which caused a significant financial burden to her and to her family.

The Committee found that the grievor suffered prejudice as a result of the CAF's negligence, and that the CAF should bear some responsibility for its administrative errors where recovery of such large sums imposes a significant adverse impact. The Committee recommended that redress be sought outside the CAF grievance process, in that the Chief of the Defence Staff refer the case to the Director Claims and Civil Litigation with support.

FA Decision Summary

The CDS did not agree with the Committee's findings and recommendation that the file be referred to DCCL with his support. The CDS relied on his same argument that QR&O 203.04 and 201.05 impose a non-discretionary requirement that overpayments to CAF members must be recovered by the Crown. The CDS also added that there cannot be negligent misrepresentation since it occurs in a contract situation, and it cannot be the case, since employment contract does not exist between CAF members and the Crown. The CDS was of the belief that the grievor's file did not meet the trigger to be sent to DCCL for compensation because the grievor did not show that the misled representations by the clerks regarding his entitlement to PLD directly induced her to incur additional costs that she would not have otherwise incurred. The CDS found that since the grievor was receiving PLD for two years, it was reasonable that under CBI 203.04(2) that she was obliged to eventually become familiar with the benefit she was receiving : the fact that she was an untrained Private does not negate that responsibility. Finally, the CDS stated that in most cases, the service-related debts of CAF members do not qualify for write-off or remission because they are potentially collectible from a member's pay and allowances. The CDS expressing his frustration to see CAF members aggrieved by the maladministration of compensation and benefits; directions have been issues for the last 10 years by his predecessors, yet the CDS sees cases such as the grievor's regularly. He is committed to resolve this systemic issue during his term in office.