ARCHIVED - Canadian Forces Grievance Board

1. CDS decisions are in support of the Board’s recommendations.
2. CDS finds the Board’s findings and recommendations (F&R) useful and understandable.
3. Federal Court Judicial Reviews uphold the Board’s findings and recommendations.

Treasury Board Travel Directives – Meal Allowance

Board Findings and Recommendations

The grievor alleged that a faulty interpretation of the regulations deprived him from receiving the full meal allowance to which he was entitled during Operation BOXTOP 2/01, and that confusing and conflicting information concerning the appropriate meal allowance disadvantaged him financially. As remedy, he requested reimbursement of the difference between the daily rate he received and the Treasury Board (TB) rate for “overseas” travel when residing in government quarters (i.e. 80% of the applicable TB meal allowance). He also requested payment of 6% interest on the amount owing to him, computed from the date of submission of his grievance.

The IA ruled that the grievor was entitled only to reimbursement for his actual meal charges in a military establishment. The IA concluded that the only military establishment in Thule was the Dundas Hall dining facility. The IA therefore denied the grievance because the grievor had already been reimbursed for the cost of his meals at that facility.

The Board found that the grievor was entitled to the actual amounts he was charged for meals in a military establishment, not 80% of the daily meal allowance prescribed by TB for “overseas” travel. The Board found insufficient evidence to conclude that misinformation negatively affected the grievor in this instance.

The Board also found that, in addition to the main dining facility (Dundas Hall), both the Top of the World (TOW) Club and the TOW Dining Hall were considered to be military establishments. As such, the Board found that the grievor was entitled to claim reimbursement for actual meal charges, based on receipts or an itemized list certified by the grievor and not to exceed the daily meal allowance specified by TB. The Board recommended that the CDS partially uphold the grievance, by amending the grievor’s travel claim in this respect.

The CDS agrees with the Board’s recommendation to partially uphold the grievance. The CDS notes that there was some ambiguity as to which part of the TB Travel Directive applies to the grievor’s situation. For example, Part IV of the TB Travel Directive (Meals, Incidentals, and Other Expenses) provides in part that public employees travelling in Canada and the continental US, who are visiting or residing in government or institutional accommodation, shall be reimbursed actual meal charges up to the appropriate limits based on receipts. However, Part VI of the TB Travel Directive (Overseas Travel), provides in part that public employees travelling outside of Canada and the continental US, who are visiting or residing in government or institutional accommodation in a location for which an authorized meal allowance has been established, shall be reimbursed 80% of that allowance.

In reviewing the grievance, it was found that QR&O 209.30 clearly states that the TB Travel Directive pertaining to travel in the United States applies to personnel who travel outside of Canada. The CDS also finds, in the absence of any further limitations, that CFAO 209-4 expressly limits the amount of meal reimbursement to actual expenses. The CDS is, therefore, satisfied that the grievor should be reimbursed in an amount not to exceed the rate found in Part IV of the TB Travel Directive for actual meal expenditures incurred at an authorized eating establishment.

Although the CDS agrees with the Board’s finding that the grievor should be reimbursed his actual meal expenditures at either establishment, he finds that the TOW Club is not a military dining establishment but rather a non-public licensed restaurant operating on a military base. In reviewing the BOXTOP 2/01 Administrative Order, the CDS finds that it expressly authorized personnel to purchase any meal at the Dundas dining facility on a 24-hour basis and that evening meals would be available at the TOW Club. The CDS is satisfied that both facilities were authorized eating establishments for the duration of Op BOXTOP 2/01 and that the grievor was entitled to be reimbursed for his actual meal expenditures incurred at either of these establishments in an amount not to exceed the applicable TB rate for travel in the US. The grievor will be paid the difference between what he received on his original Op BOXTOP 2/01 travel claim and the amount he actually spent for meals while he was deployed on Op BOXTOP 2/01. Should actual receipts be unavailable to support his claim, the grievor is to provide an itemized list and a supporting statutory declaration of his actual expenditures endorsed by his Op BOXTOP 2/01 aircraft captain (if available) and his present commanding officer.

The review of this grievance by the Board revealed that there were no specific meal arrangements in place at the time of the exercise, thus leading to confusion regarding the application of TB policy. Given the high cost associated with grievance resolution at the CDS level, and the possibility that other members who participated in the same or similar operations might submit grievances pertaining to this issue, the Director General CF Grievance Authority suggested that those claims could be settled in the same fashion. Furthermore, he recommended that the Administrative and/or Operational Instructions/Orders regarding future BOXTOP exercises and/or other out-of country exercises clearly indicate the applicable TB rates for the reimbursements of Meals and Incidentals during Temporary Duty.

Definition of Dependants – Reimbursement of Purchase Costs for Principal Residence

Board Findings and Recommendations

The grievor was living in married quarters (MQ) with his spouse and two special needs children when his mother and step-father both became too ill to continue living on their own. As a result, the grievor’s mother and step-father moved into the grievor’s MQ. The grievor applied to have his parents listed as his dependants at that time. After his parents lived with him and his family for some months, he purchased a house where he stayed with his parents while his wife stayed with their children in the MQ. The grievor received reimbursement of the purchase costs for the house from the CF. He affirmed that he spent 50% of his time in the house with his parents.

When the grievor was posted, he was told he was not entitled to benefits associated with the sale of the house because it was not his principal residence. The grievor was also told he should not have received reimbursement for purchase costs and the funds he received for the purchase of the house would be recovered. The grievor filed a grievance.

The grievor was supported in his grievance by the chain of command, which agreed that, while outside the norm, the grievor’s parents were his dependants and the house he bought was his principal residence.

The IA for the grievance, the Director General Compensation and Benefits (DGCB), found that, for the purposes of relocation, a member cannot have two principal residences and the MQ was his principal residence. The IA noted that the grievor’s furniture and effects had last been moved to the MQ at public expense, and that is where his “primary dependants” continued to live. The IA also found that the grievor’s parents were not his dependants. As a result, the IA confirmed the recovery of the purchase reimbursement costs and the denial of the sale costs.

The Board found that the regulations relied upon by the IA were misunderstood. In fact, the purchased house did meet the requirements for a principal residence and the grievor’s parents also met the criteria for dependants.

The Board recommended that the grievance be upheld.

CDS Decision

The CDS agrees with the Board’s findings and recommendation to uphold the grievance. The CDS determined that the grievor’s principal residence at the time of his relocation was the home he bought and lived in with his parents and that he was entitled to reimbursement of the fees associated with both the purchase and sale of that residence. The CDS also determined that the grievor’s parents were his dependants while they were living with him at his residence. However, they are not entitled to any relocation expenses to Kingston because they did not take up residence with the grievor at the time of his relocation but rather occupied their own residence.

Wrongful Release – Lack of Medical Limitations

Board Findings and Recommendations

The grievor was released from the Canadian Forces on the basis that he suffered from medical limitations that placed him in violation of the universality of service principle (USP). The grievor’s chain of command supported his grievance and strongly recommended that the grievor be retained.

No IA decision was issued, and after granting one extension, the grievor requested that the matter be forwarded to the CDS.

The Board found that the grievor’s employment limitations did not place him in violation of the USP.

The Board recommended that the CDS arrange for the grievor to be offered the opportunity to re-enrol and that his pay, pension and benefits be adjusted accordingly. The Board also recommended that the matter be referred to the DCCL for consideration of payment of potential damages arising from the release, if any financial entitlement could be dealt with via internal adjustments. As an alternative, the Board recommended that the CDS cancel the release and adjust the grievor’s pay, pension and benefits accordingly.

CDS Decision

The CDS agrees with the Board’s findings and recommendation to uphold the grievance. The CDS is satisfied that the grievor has been incorrectly released as a result of medical employments limitations that were not evidentiary- based. The grievor should have been allowed to continue his service to his intermediate engagement point. However, the CDS is of the opinion that he did not have the authority to grant the redress seeking compensation for the remainder of the grievor’s intermediate engagement. Accordingly, an adjustment of his pension lies within the purview of the DCCL. Therefore, the CDS has referred the grievance to DCCL for consideration, and a copy of the decision has also been sent to the Assistant Deputy Minister (Human Resources) (ADM (HR-Mil)) for his review.

Recruitment Allowance – Negligent Misrepresentation

Board Findings and Recommendations

The grievor argued that he was entitled to a $10,000 recruitment allowance (RA) and a promotion to the rank of acting corporal with a retroactive salary increase, in light of the information he received at the Recruiting Centre. The grievor maintained that his decision to sign a contract with the Forces instead of continuing his career as a civilian was largely based on obtaining the RA and a promotion.

On the basis of the conclusions of the Canadian Forces School of Communications and Electronics (CFSCE), the acting commander of the Canadian Forces Recruiting Group (CFRG), who was the IA in this case, dismissed the grievance. The IA indicated that an analysis of his education and previous experience showed that he was neither qualified for the RA, nor a promotion to the rank of acting corporal.

The Board found that the grievor did not meet the prerequisites for the RA and was not entitled to it under the regulations. The Board also found that the grievor was not entitled to a promotion to the rank of acting corporal. However, the Board did find that the CFRC’s representations were inaccurate and that the job offer that appeared on the “Jobboom” Internet site for a position as a computer specialist was misleading, since the required qualifications did not pertain to informatics but to electronics. Nonetheless, the Board found that based on an analysis of the five conditions determined by the Supreme Court in the Cognos Decision, the grievor was the victim of negligent misrepresentation on the part of CF personnel and suffered damages by relying on inaccurate information.

The Board recommended that the CDS allow the grievance in part and refer the matter to the DCCL so that the grievor could obtain financial compensation in the amount of the RA, (i.e. $10,000), as well as financial compensation for the loss of earnings incurred until obtaining his rank of corporal.

CDS Decision

The CDS supports the Board’s conclusions and its recommendation that the grievance be partially upheld through referral of the case to the DCCL. The CDS specifies that this does not mean that he supports the grievor’s retroactive promotion to the rank of Cpl (i), as the grievor requested, but that consideration should be given to compensation for the financial hardship that resulted from his decision to enrol on the basis of inaccurate statements. The diploma he needed had to correspond in large part with the technical training of the Military Occupation Code—now called MOS ID—military occupational structure identification, that is, “electronics,” and not “computer technology,” as the information given the grievor and the offer of employment would have had him believe.

Reimbursement of Reservist Relocation Expenses

Board Findings and Recommendations

The grievor was a reservist originally posted in Saskatchewan who voluntarily accepted an attached posting in Ontario. Subsequently, the grievor received numerous posting messages, which indicated that he was being posted to other positions within the same unit in Ontario. After three years in this province, the grievor was again posted to Saskatchewan. However, as the grievor had been posted from Saskatchewan to Ontario, the CF treated the move to Saskatchewan as a return to his former place of residence (FPOR) and not as a posting.

The grievor contended that he was unfairly denied relocation expenses because his move to Saskatchewan had been improperly treated as a return posting. He argued that the applicable regulations for his move were found in the Compensation and Benefit Instruction (CBI) 209.971- CF Integrated Relocation Program (IRP) and not in the applied Travel and Relocation Policy (TR/POL) 009/95. As such, the grievor argued that he was entitled to relocation expenses for his move from Ontario to Saskatchewan and to a commuting allowance. The grievor also requested that he be issued an apology.

As IA, the DGCB took the position that the grievor knew he was being attached posted to Ontario but that he would be returned to his employment unit in Saskatchewan, under TR/POL 009/95.

The IA further argued that the grievor was not eligible for commuting assistance because he chose to live outside the normal commuting distance for his workplace. The IA added that the grievor moved his family for purely personal reasons not service needs, which disqualified him from any assistance. The IA, however, did find that the grievor was entitled to be reimbursed for a house hunting trip and directed the grievor to submit a claim.

The Board found that the grievor was no longer filling a position in Saskatchewan and, therefore, no longer fit the definition of an “attached posting”. Therefore, the grievor was not being returned to his FPOR but was being posted into a position.

The Board found that, in 2003, the grievor’s place of residence was in Ontario, not Saskatchewan, and that the grievor was moved under the incorrect policy instead of in accordance with CF Integrated Relocation Program (CFIRP).

The Board found that the grievor was not entitled to commuting assistance and that the IA had adequately addressed the issue of the requested apology in his decision.

The Board recommended to the CDS that the grievance be partially upheld.

CDS Decision

The CDS agrees with the Board’s recommendation and partially upholds the grievance in that the grievor be reimbursed his expenses for his relocation from Ontario to Saskatchewan, not because it was a "posting" but because the grievor met the criteria contained in CFIRP 2003 Addendum 10 (Primary Reserve Force Relocation - Full-Time Class B and C Employment) for a move from a place of ordinary residence (POR) to an Employment Unit (EU). In addition, the CDS finds that the grievor should have been on duty travel status for his House Hunting Trip (HHT) and decided that the grievor’s leave account would be credited with five days annual leave.

The CDS finds that, although reservists had been authorized reimbursement of their relocation expenses under both TR Pol 009/95 and CFIRP when moved from one EU to another, this type of move is not reflected in published CFIRP policy. Accordingly, the CDS requests that the Assistant Deputy Minister (Human Resource - Military) review CFIRP policy regarding reimbursement of Reserve relocation expenses for moves to subsequent EUs.

Attached Posting – Temporary Duty

Board Findings and Recommendations

The grievor, a member of the Supplementary Holding Reserve, was attached posted to a cadet summer training center (CSTC) in 2003. As a result of the attached posting, the grievor did not receive incidental benefits. However, members of the Primary Reserves sent to the same cadet summer camp were placed on Temporary Duty (TD) and did receive such benefits. The grievor felt this practice was unfair, and lodged a grievance.

The IA stated that since the grievor was attached posted, he was not on travel status, and therefore, not entitled to incidental benefits. The IA also noted that the grievor was not ordered to attend the cadet summer camp, and that he was aware of the benefits to which he was entitled when he accepted the position. The IA denied the grievance.

The Board considered precedent cases, and although the Board found that there was no discrimination against the grievor, the practice of affording differential treatment to sub-components of the Reserve Force was inequitable. Furthermore, the Board found that the primary reason for the differential treatment was based solely upon CF budgetary concerns.

The Board recommended that the CDS uphold the grievance.

CDS Decision

The CDS partially agrees with the Board’s finding but disagrees with the Board’s recommendation to grant the grievance. The CDS agrees that the grievor was attached posted and not on Temporary Duty (TD). The CDS disagrees with the Board’s finding that the decision to place the grievor on an attached posting was an improper application of regulations. Therefore, the CDS is satisfied that the grievor was not entitled to incidental expenses, beyond the two prescribed travel days for which he was reimbursed.

However, like the Board, the CDS is concerned that certain policies have resulted in personnel who belong to different sub-components of the Reserve Force being treated differently. The CDS insists that this different treatment is not illegal, unethical or discriminatory, but he acknowledges that the current policy framework, which causes variations in treatment of personnel employed at CSTCs, is a major cause of dissatisfaction and needs to be addressed. As such, the Vice-Chief of the Defence Staff is conducting a review to address the question of differences in employment of Reservists at CSTCs. A working group began deliberations on 20 October 2005 with the direction to examine the applicable policies regarding the use of attached postings and TD.

Medical – CF Spectrum of Care

Board Findings and Recommendations

The grievor’s infant son was diagnosed with a form of eye cancer necessitating the removal of an eye. The attending civilian cancer specialist recommended that the grievor undergo genetic testing to determine whether she carried a genetic mutation that would place any future children at 50% risk of retinoblastoma. The specialist also stated that for the test to be carried out on the grievor, they would have to first test the removed eye to determine the specific genetic mutation. The tests were carried out off-base; the grievor acknowledged that she did not seek the required prior approval from CF medical authorities at the time because of the tension and stress she was under due to her son’s operation. When the grievor was subsequently refused her request for reimbursement for the costs of the tests, she contended that genetic testing done on her son was an integral part of the genetic testing required for her, and was therefore a covered service under the CF Spectrum of Care.

The Board found that these diagnostic services are covered under the CF Spectrum of Care, that the genetic testing was specifically prescribed for the grievor, and there is no impediment to the retroactive approval for the reimbursement of the genetic testing expenses.

The Board further found that the genetic testing performed meets the criteria for Principle no. 1 (under the Spectrum of Care) and that the funding for this specific genetic testing in Quebec and Alberta, as well as in three other provinces on a case-by-case basis, meets the criteria of Principle no. 5.

The Board also found that the expense claimed was part of a medical testing process for the grievor and, ergo, should be reimbursed.

The Board recommended that the CDS uphold the grievance.

CDS Decision

The CDS agrees with the Board’s findings and recommendation to uphold the grievance. The CDS is satisfied that under the circumstances, the testing conducted on the sample from her son’s eye was an integral step in the tests mandated for her. The CDS further agrees that the tests were to determine whether the grievor also carried the genetic mutation related to retinoblastoma as it was connected to the purpose of maintaining her health and mental well-being, preventing disease, and/or diagnosing an illness or disease consistent with the CF Spectrum of Care. The fact that the initial results eliminated the need for further testing on the grievor does not alter this and speaks to a prudent diagnostic approach.

Both the grievor and her doctor have acknowledged that they did not obtain the appropriate approval in advance for the testing expenses. The CDS, however, believes that this was an honest mistake and should not bar the grievor’s reimbursement for the costs of off-base treatment along with the limited associated interest costs.

Election of Prior Service

Board Findings and Recommendations

Upon transfer from the Reserve Force to the Regular Force in 1986, the grievor was provided with a form entitled “Acknowledgement of Notification of Rights to Elect to Pay for Prior Service under the Canadian Forces Superannuation Act” (CFSA). The grievor signed the form but failed to indicate his prior service. Subsequently in 2001, the grievor elected his prior service (1985–1986) for CFSA purposes but at a much greater rate than had he made the election within one year of transfer to the Regular Force. The grievor submitted that in fact what he was signing had not been explained to him, and that he had signed the form under duress without knowledge of its importance or implications. As redress, the grievor requested that the cost of his election for prior pensionable service be calculated on a non-belated basis.

The DGCB, the IA in the matter, denied redress. The IA explained that, in accordance with the CFSA and, as indicated on the acknowledgement form, elections for prior service must be made within one year of enrolment or transfer to the Regular Force. While failure to do so does not void the member’s right to elect at any time while a member of the Regular Force, it does result in a higher cost to the member. The IA concluded that the late election was administered properly and that there were no grounds to revoke it.

The Board found that the failure of the grievor to elect his past service within one year of his transfer to the Regular Force was his responsibility. An examination of the form in question indicated that the title of the document was clear as to its purpose and that the content was in plain language.

The Board recommended to the CDS that the grievance be denied.

CDS Decision

The CDS agrees with the Board’s findings and recommendation to deny the grievance. The CDS agrees that the grievor’s failure to elect to pay for previous full-time paid service within one year of his transfer to the Regular force was his responsibility.

The CDS is satisfied that the document signed by the grievor clearly stated his obligation and that he was properly advised that failure to elect to pay for previous service within one year of his transfer to the Regular Force might be less favourable, resulting in a higher cost to buy back prior service at a later date. The grievor has been treated fairly and in accordance with the relevant law and policy.

Definition of “Working” – Daycare Assistance

Board Findings and Recommendations

The grievor was posted to the United States and applied for daycare assistance. In his request, the grievor cited Military Foreign Service Instructions (MFSI) Section 11 that provides daycare assistance when the member’s spouse is working full-time. The grievor indicated that his spouse was working full-time as a student, and he stated that the Canada Revenue Agency included studying in its definition of the term “working” for income tax purposes.

The IA denied the grievance because the grievor’s eligibility for daycare assistance rested to a significant degree upon the interpretation of the word “working,” and that the grievor’s definition was too broad. According to the IA, the term “working,” as per MFSI Section 11, applies solely to the act of earning employment income and cannot be construed to mean full or part-time enrolment in an education program, as specified in the Income Tax Act or otherwise.

In its review of the terminology at issue, the Board found that “working” must be ascribed its ordinary meaning and cannot be expanded to include situations where a spouse is enrolled in an education program.

The Board recommended that the CDS deny the grievance.

CDS Decision

The CDS agrees with the Board’s findings and recommendation to deny the grievance. The CDS finds that the intent of the allowances and benefits under the MFSI is to recognize and to facilitate a member’s service outside Canada and to ensure that, as much as possible, members are neither better nor worse off than their counterparts serving in Canada.

Upon review of the MFSI and the Foreign Service Directives (FSD), the CDS finds that both policies have the same eligibility criteria, which restrict the benefit to single parents or those whose spouse or commonlaw partner is working while the member is posted outside of Canada. Notwithstanding the finding that the grievor was not entitled to daycare assistance, the CDS notes that the Director General Compensation and Benefits has agreed with the Board’s suggestion that the scenario portrayed by this grievance be presented to the National Joint Council (NJC) for consideration when it commences its cyclical review of the federal government’s FSDs in the fall of 2006.

The CDS is to forwarding a copy of his decision to the Chief Military Personnel so that the NJC may consider daycare assistance to CF members serving outside of Canada whose spouses are attending school full-time.