# 2016-155 - Annual Leave, Section 32 of the Crown Liability and Proceedings Act

Annual Leave, Section 32 of the Crown Liability and Proceedings Act

Case Summary

F&R Date: 2016–08–12

After completing 24 years of continuous service in the Regular Forces (Reg F), the grievor released/transferred into the Reserve Force (Res F) where he served another six years, and transferred back into the Reg F. Upon transferring to the Reg F, the grievor was granted 30 days of Annual Leave.

Seven years later, upon conducting an initial Leave audit on the grievor's file as a result of his impending release, the grievor was advised that he had been provided with 15 days of Annual Leave above his entitlement; 5 days for each of the fiscal years 2008/2009, 2009/2010 and 2010/2011. The error was made because the grievor's years of service in the Res F were included in the calculation of his entitlement when it should not have.

The error was later confirmed by the Director Military Careers Administration (DMCA) and the grievor‘s leaves on retirement were adjusted accordingly. The grievor grieved, arguing that he should not have to repay the additional 15 days of Annual Leave received in error.

The Initial Authority (IA) denied the grievance, concluding that the grievor's leave entitlement has been administered in accordance with the applicable policy. The IA explained that the leave policy has now been amended to allow for all years of service to count towards the entitlement of 30 days of Annual leave. Unfortunately, the IA noted that the changes were not retroactive.

The Committee agreed that according to the leave policy applicable prior to 1 April 2015, Queen's Regulation and Orders for the Canadian Forces 16.14, Annual Leave, it is clear that the grievor received 15 days of Annual Leave to which he was not entitled.

Notwithstanding its conclusion on the merit of the case, the Committee noted that according to section 32 of the Crown Liability and Proceedings Act (CLPA), the Canadian Armed Forces (CAF)'s right to recover is limited. This section of the CLPA states: “a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.”

The Committee explained that in accordance with the jurisprudence in this area, the cause of action does not necessarily arise when an error is discovered; rather there is a presumption (rebuttable by the CAF in this case) that the cause of action starts to run when the error was made. In this case, as leave entitlement are reviewed on an annual basis, by CAF experts, and that Annual Leave entitlements are allocated at the start of each fiscal year; the Committee concluded that the errors ought to have been discovered on 1 April 2008, 1 April 2009 and 1 April 2010.

Further, the Committee found that it is only once the DCBA's audit was conducted that all of the errors were discovered. Given that the DCBA's audit took place more than six years after the occurrence of each errors, the Committee concluded that the CAF was statute-barred from recovering the debt and that the recovery action should have been waived.

The Committee recommended that the Chief of the Defence Staff direct that the grievor be reimbursed 15 days of Annual Leave recovered from him as a result of the erroneous calculation of his Annual Leave for FY 2008/2009, 2009/2010 and 2010/2011.

FA Decision Summary

The FA agreed with the Committee's findings and recommendation, based on section 32 of the Crown Liability and Proceedings Act, that the grievor be reimbursed 15 days of Annual Leave recovered from him.

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