# 2022-313 Pay and Benefits, Maternal/Parental Leave, Maternity and Parental Allowance, Negligent Misrepresentation

Case summary

F&R Date: 2025-01-28

The grievor argued that the Canadian Armed Forces (CAF) implementation of the Treasury Board (TB) approved changes to Compensation and Benefits Instructions for the Canadian Forces (CBI) 205.461 for extended parental leave benefits was unfair. 

The Initial Authority failed to render a decision within the prescribed four-month period pursuant to paragraph 7.15(2) of the Queen's Regulations and Orders for the Canadian Forces and grievor requested that his file be forwarded for Final Authority (FA) review.

A brief history of the changes to parental leave and benefits relevant to this grievance shows that on 3 December 2017, the Employment Insurance Act was amended to include an “extended” Employment Insurance (EI) parental benefit, providing for the possibility of up to 61 weeks of EI parental benefits at a lower benefit rate of 33% of average weekly earnings, to a maximum of $326 per week. “Standard” EI parental benefits would continue for a period of up to 35 weeks at the existing rate of 55% of average weekly earnings. Importantly, once a family received their first payment of either standard or extended EI parental benefits, this election would become irrevocable and switching from one to the other would become impossible.

The CAF provides their members with a top up allowance to EI parental benefits through the CBI, which, on 1 June 2017, was up to 93% of CAF members' regular pay for a maximum of 245 days. On 15 December 2017, Canadian Forces General Message 229/17 announced that CAF members choosing the extended EI parental benefits would be topped up to 93% for the first 35 weeks, with no top-up beyond that. 

On 13 May 2021, amendments to CBI 205.461 were approved by the TB, providing 55.8% top-up for members electing extended parental EI benefits. The changes to the CBI were published on the defence wide area network on 11 June 2021 but were not announced to CAF personnel at that time. 

The Committee found that in the grievor's case, having commenced his parental leave prior to 11 June 2021, he had a vested right to the 93% top-up benefit outlined in the previous version of the CBI. The Committee also found that the CAF was negligent in its implementation of amendments to CBI 205.461, the impact of which was substantial on numerous CAF members, causing overpayments in many cases, including the grievor's. The Committee found that the grievor experienced hardship and unfairness as a direct result of the CAF's maladministration of his parental benefit and an application to the TB for remission of the grievor's debt would have been appropriate in this case. However, the CAF had already recovered the debt, making this remedy a non-viable option.

Ultimately, the Committee recommended that the FA afford the grievor redress by either applying the previous version of the CBI to his entire period of parental leave or referring the grievor's file to the Director Claims and Civil Litigation for financial compensation.