# 2016-069 - Amendment to subsection 16.1 of the Canadian Forces Superannuation Regulation, Canadian Forces Superannuation Act (CFSA) , Terms of Service

Amendment to subsection 16.1 of the Canadian Forces Superannuation Regulation, Canadian Forces Superannuation Act (CFSA) , Terms of Service

Case Summary

F&R Date: 2016–05–20

In 1999, the grievor re-enrolled in the Regular Force (Reg F), in the Pilot occupation, with 19 days of prior full-time paid service (PFTPS). In 2004, he accepted an irrevocable offer of conversion of his terms of service to a 20-year Intermediate Engagement (IE20). In March 2005, the grievor was advised that, by policy, an IE could not be offered to re-enrollees and his IE20, ratified in November 2004, was revoked. He was offered and accepted consecutive Short Engagements (SE) of no more than nine years each, with an overall termination date in February 2019, such that he would complete 20 years of combined paid service. The grievor was assured by his unit's administrative staff that he would be entitled to an immediate unreduced annuity as if he had completed an IE20.

In 2015, the grievor submitted a pension inquiry to the Director Canadian Forces Pension Services and was informed that under the modernized Canadian Forces Superannuation Act (CFSA) and the related regulations, he would only be entitled to a deferred annuity at age 60 following the end of his current terms of service. The earliest the grievor could be entitled to an immediate unreduced annuity was on completion of 9,131 days of paid service (or 25 years of paid service), in February 2024.

The grievor contended that 19 days of PFTPS does not justify that he must complete an additional five years of service in order to qualify for an immediate unreduced annuity under the modernized CFSA. He asked that his current terms of service offer him the same pension benefits (immediate unreduced annuity following 20 years of service) as those that were in effect at the time of his re-enrollment in 1999 and at the time he accepted the IE20 offer.

The Initial Authority rejected the grievance as submitted outside of the time limit imposed by the Queen's Orders and Regulations for the Canadian Forces. It was however accepted at the Final Authority Level.

The Committee determined that the “grandfathering” clauses of the modernized CFSA, as well as subsection 16.1 of the modernized Canadian Forces Superannuation Regulations (CFSR), did not cover the grievor's circumstances. Given he was not serving on an IE20 but consecutive SE, and that he had not completed 10 years of pensionable service as at 1 March 2007, the date of the enactment of the modernized legislation, the grievor had to complete 9,131 days of full time paid service to be eligible for an immediate unreduced annuity. He was not entitled to benefits under the former CFSA.

The Committee concluded from its research that there was a legitimate expectation by all parties that the grievor would be entitled to an immediate unreduced annuity upon completion of consecutive SE, and that the internal CAF policy not to offer IE20 to re-enrollees was never intended to deny these members such pension entitlements.

The Committee saw no clear requirements for offering successive SE in the grievor's circumstances, and believed that these may have been offered by mistake. The Committee concluded that SE conversion was unnecessary given that all the parties involved had an interest in having the grievor complete 20 years of service. Furthermore, it was not in the interest of the CAF to revoke the IE20 given the high demand for pilots.

The Committee recommended that the CDS honour the intent and spirit of the original offer made to the grievor in November 2004, by restoring the IE20, with a minor modification to the termination date to eliminate a clerical error.

The Committee also made a systemic recommendation regarding the “grandfathering” clauses of the modernized CFSA and CFSR.

FA Decision Summary

The FA agreed with the Committee's findings and recommendation that the grievance be upheld. In the absence of policy justifying the replacement of the IE20 with consecutive SE, and the fact that the IE20 was in the interest of the CAF and was lawfully offered and accepted, the FA found that that the SE conversion was unnecessary. The FA therefore directed that the SE be cancelled and that the original IE20 be reinstated and honoured. The FA did not agree with the Committee's systemic recommendation, and was of the view that there was no evidence on file indicating that the circumstances of this file are systemic. The FA added that CANFORGEN 203/16 ensure that the original DND 2315 is amended and initialed by members to signify the members' understanding of their new entitlements, although the Committee's research determined that those who, like the grievor, re-enrolled in the Reg F between 2 March 1997 and 30 April 2005, and did not reach ten years of combined service by 1 March 2007, are not in the purview of this CANFORGEN.

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