# 2017-084 - Canadian Forces Superannuation Act (CFSA) , Pension Entitlements, Terms of Service

Case summary

F&R Date: 2017–11–15

Following a short period of service in the Regular Force (Reg F), the grievor, then a non commission member (NCM), transferred the Primary Reserves. He later transferred back to the Reg F and was credited with previous full-time paid service (PFTPS) for the purposes of pensionable service under the Canadian Forces Superannuation Act (CFSA). His Terms of Service (ToS) were administered under the heading of “re-enrollee”. Three years after his transfer, he accepted to convert his ToS to a Fixed Period of Service (FPS), ToS applicable only to NCM, with an expiry date established as to allow him to complete 20 years of combined service. In accordance with the provisions of the CFSA in force at the time, he would become eligible to an immediate unreduced annuity at the expiration of the FPS. That same year, the grievor was commissioned as an officer and promoted to the rank of Second Lieutenant. The CAF should have converted his ToS to those applicable to officers, but failed to do so. The grandfathering provisions of the amendments made to the CFSA effective 1 May 2007 do not address the exceptional case of “re-enrollees”. This resulted in rendering the grievor ineligible to an immediate unreduced annuity upon completing 20 years of combined service. Thus, to become eligible to such an annuity, the grievor had to either complete 9,131 days of paid service (25 years), or differ the annuity to age 60. Arguing that he had not been informed of the impact that the changes to the CFSA had on his eligibility to an immediate unreduced annuity upon completing his FPS, the grievor requested that his ToS be changed.

The Initial Authority rejected the grievance has having been submitted outside of the time limits set out in the Queen's Regulations and Orders for the Canadian Forces (QR&O). However, the Final Authority (FA) accepted it.

The Committee found that the grandfathered provisions set out in the modernized version of the CFSA and at section 16.1 of the modernized version of the Canadian Forces Superannuation Regulations do not apply to the grievor's situation. Given that he was not serving on an Intermediate Engagement of 20 years (IE20) and he had not completed 10 years of pensionable service on 1 March 2007 (date of the CFSA amendment), the grievor had to complete 9,131 days of full-time paid service to be entitled to an immediate unreduced annuity. He was not entitled to receive benefits under the former version of the CFSA.

However, the Committee undeniably concluded that the intent and spirit of the TOS offer made to him by the CAF in January 2005 was that the grievor could contribute to the CAF operational success for a cumulative duration of 20 years and he would be entitled to an immediate and unreduced annuity at the end of that period. The Committee also concluded that Internal CAF Policy (which did not allow to offer an IE20 to reenrollees) had never been conceived in order to prevent these members from receiving such pension benefits.

The Committee recognized that the Chief of the Defence Staff (CDS) do not have the authority to grant an exception to the grievor such that he receive an immediate and unreduced annuity at the end of his FPS under the CFSA. However, within the powers and authorities vested to him at section 18(1) of the National Defence Act and at Chapter 6, Enrolment and re-engagement, of the QR&O, the CDS has the required authority over the TOS for CAF members.

Considering the significant hardship that the grievor could otherwise face, the Committee recommended that it would be in the interest of justice for the CDS to offer the grievor an IE20 with an effective date set as the date when he initially agreed to convert his TOS to an FPS, with an expiry date at the 20 year mark from his “reenrollment”.

FA decision summary

The FA, the Director Canadian Forces Grievance Authority, agreed with the Committee's findings and recommendation.