eBULLETIN - January 2015

Contents

See our Case Summaries List or Systemic Recommendations for further information about recent and past MGERC cases.

Highlights

Dental Care Expenses (case no. 2013-057)

The grievor submitted a grievance alleging that he had suffered dental pain throughout his Regular and Reserve Force service and had incurred financial expenses due to the failure of Canadian Armed Forces dental staff to provide proper dental care. As remedy, he requested reimbursement of his out-of-pocket dental expenses.

The grievor complained that her attempts to obtain recognition of her common-law relationship based on a specific date were unfairly denied.

Severance Pay Payment (case no. 2014-039)

The grievor was released under item 5(f) - Unsuitable for Further Service - of the table to article 15.01 of the Queen's Regulations and Orders for the Canadian Forces and was denied payment of his severance pay. He complained that the entitlement provisions of the Compensation and Benefits Instruction 204.40 - Canadian Forces Severance Pay - had been misinterpreted and that he was entitled to the benefit.

Case Summaries

Dental Care Expenses

Committee Findings and Recommendations

Upon enrollment, the grievor underwent a forensic dental examination which indicated that he required “considerable” dental work. A treatment plan was prepared by the Canadian Armed Forces (CAF) dental staff. Dental consultations and treatments continued during his service in the Regular Force as well as during a period of Class B Reserve Service that exceeded six months duration. Upon completion of the Class B service, the grievor consulted with civilian dental specialists and commenced additional dental treatments at his own expense, incurring significant expenses. He subsequently submitted a grievance alleging that he had suffered dental pain throughout his Regular and Reserve Force service and had incurred financial expenses due to the failure of CAF dental staff to provide proper dental care. As remedy, he requested reimbursement of his out-of-pocket dental expenses.

The Director General Health Services, acting as the Initial Authority (IA), denied the grievance, stating that the CAF dental records confirm that following basic training, CAF Dental Services immediately began providing the dental care deemed necessary for the grievor to reach the required operational fitness levels. The IA was satisfied that comprehensive dental care was provided and continued throughout the grievor's CAF career.

The issue before the Committee was whether the grievor received timely, appropriate and reasonable dental care while serving in the CAF. During its review, the Committee obtained CAF subject matter expert (SME) comments from the Director Dental Services who stated that the grievor had been accorded proper dental care pursuant to the Spectrum of Care policy, which states that CAF members are entitled to dental care only until their release from the CAF. The CAF SME noted that prior to the grievor's release it became evident that there was some deterioration in his dental condition. However, it was not possible to proceed with the recommended treatment given the limited time available prior to the grievor's release.

In order to properly assess the grievor's dental condition, as well as the standard of dental care that he received from the CAF, the Committee commissioned an independent review of the grievor's dental file by a specialist in oral and maxillofacial surgery. In reviewing the file, the civilian expert concluded that the grievor had poor oral hygiene prior to joining the military, and that it did not improve while he was in the military. The civilian expert found that the grievor received appropriate dental treatment while he was serving in the CAF and that the responsibility for his symptoms, the need for dental treatment, the dental deterioration and the progressive tooth loss was solely his own. The expert noted that the grievor chose to undergo expensive elective dental implant therapy and that the surgical procedures he opted for, such as bone grafting and implant placement, were considered luxury and not basic dental necessity.

The Committee accepted the conclusions of the civilian expert and agreed that the decisions made by CAF dental staff were reasonable and appropriate in the circumstances and that the difficulties experienced by the grievor did not result from a lack of effort on the part of the CAF Dental Services.

Based on the findings of the civilian expert, the Committee concluded that the grievor had not been prejudiced by the CAF in this matter. The Committee found that there was no entitlement for reimbursement of the grievor's subsequent private dental expenses, incurred after the grievor was released from the CAF. Accordingly, the Committee recommended that the Chief of the Defence Staff (CDS) deny the grievance.

Final Authority Decision

The CDS agreed with the Committee's findings and recommendation that the grievance be denied.


Recognition of Common-Law Relationship

Committee Findings and Recommendations

The grievor complained that her attempts to obtain recognition of her common-law relationship based on a specific date were unfairly denied. The grievor had submitted application for recognition of her common-law status to her section head along with a statutory declaration that she had been in a conjugal relationship for one year. The section head declined to witness the declaration on the basis that the grievor and her partner had maintained separate military residences during part of that year. The grievor later resubmitted her application to take effect from the date she and her partner commenced maintaining only one residence. This application also failed to achieve approval. Finally, she submitted a third application based on her partner providing support to one of her children. Subsequently, her application was approved by a different Commanding Officer (CO) effective the originally requested date. However, this approval was later rescinded on the advice of the local Assistant Judge Advocate General.

The Initial Authority (IA), the grievor's CO, denied the grievance on the basis that it had not been established that her partner had assumed support of her children and because there was no proof of cohabitation for a period of one year.

With regard to the original application, the Committee concluded that the grievor did submit an application that her section head declined to process. The Committee, noting that it was open to the CO to seek the advice of the Directorate of Human Rights and Diversity (DHRD) as the policy subject matter experts, was of the opinion that had such a consultation occurred, the issue may well have been resolved in the grievor's favour.

Specifically, the Committee observed that the primary reason for rejecting the application was the couple's maintenance of two residences. The Committee disagreed with the IA's statement that the Canadian Armed Forces (CAF) would not recognize that the grievor and her partner were living together if they maintained separate residences, noting that the Chief of Military Personnel Instruction 15/06 - Common-Law Partnerships (CMP 15/06) clearly states that cohabitation may be considered in such circumstances if there is a reasonable explanation. This position was also supported by the DHRD subject matter experts. The Committee was satisfied that the grievor provided a reasonable explanation that ought to have been accepted and found that the grievor's original application should have been accepted and approved.

The Committee recommended that the Chief of the Defence Staff (CDS) uphold the grievance by recognizing the grievor's common-law relationship effective the date specified in her initial application and by directing that her personnel records be amended accordingly. The Committee further recommended that the grievor's relocation file be audited to ensure she has received all the benefits to which she was entitled as a CAF member with a common-law partner.

Final Authority Decision

The CDS agreed with the Committee's findings and recommendation that the grievance be upheld.


Severance Pay Payment

Committee Findings and Recommendations

The grievor was released under item 5(f) - Unsuitable for Further Service - of the table to article 15.01 of the Queen's Regulations and Orders for the Canadian Forces (QR&O) and was denied payment of his severance pay. He complained that the entitlement provisions of the Compensation and Benefits Instruction (CBI) 204.40 - Canadian Forces Severance Pay (CFSP) - had been misinterpreted and that he was entitled to the benefit. The grievor argued that his period of eligible service, as limited in CBI 204.40(8) (CFSP - Amount), ended prior to the decision made by the Director Military Careers Administration to release him.

The Initial Authority, the Director General Compensation and Benefits, denied the grievance concluding that the grievor was excluded from the entitlement in accordance with CBI 204.40(7)(a) because his release was approved during his eligible service and prior to his ceasing service.

The Committee observed that the grievor was a commissioned officer and that, pursuant to QR&O 15.01(3)(a), the authority to approve his release was the Governor General. Since the evidence confirmed that the Governor General had approved the grievor's release more than six months after his period of eligible service had ended, the Committee found that the exclusion criteria stipulated at CBI 204.40(7)(a) did not apply to the grievor and that he was entitled to receive CFSP.

The Committee recommended that the grievance be upheld and that the grievor be paid the CFSP for his eligible service.

Final Authority Decision

The Chief of the Defence Staff agreed with the Committee's findings and recommendation that the grievance be upheld.


Statistics

Category of grievances received since 2012 as of December 31, 2014
Categories of grievances 2012 2013 2014
Financial 47% 27% 43%
General 37% 55% 44%
Release 11% 16% 7%
Harassment-Discrimination 5% 2% 6%
Distribution of the Findings and Recommendations (F&R) by category of grievance for the period between January 1, 2014 and December 31, 2014
MGERC F&R Aggrieved Not Aggrieved
Recommend no remedy Recommend outside resolution Recommend remedy Recommend grievance be denied
Release 0 0 8 9
Harassment-Discrimination 0 0 5 1
General 1 2 36 44
Financial 0 3 34 28
Chief of the Defence Staff (CDS) decisions received between January 1, 2014 and December 31, 2014
  CDS agrees with Committee's F&R CDS partially agrees with Committee's F&R CDS does not agree with Committee's F&R
  48% 24% 28%

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