The Board noted that, in the past year, it had received an increasing number of grievances dealing with incorrect and misleading information provided by Recruiting Centres upon enrolment of individuals. In October 2008, the Board reported to the senior leadership of the Canadian Forces (CF):

The Board has consistently found that new recruits are entitled to expect accurate and complete information from CF Recruiting Centres. After reviewing a number of such complaints, the Board has concluded that, in simple fairness, the CF has a moral obligation to provide relief to individuals who have been prejudiced by their reliance upon erroneous information they received.

In previous cases dealing with serious errors found in enrolment messages, the Board has repeatedly made systemic recommendations to the Chief of the Defence Staff (CDS) regarding the need to amend the current enrolment forms to include specific details regarding the proposed rank and financial benefits, in an effort to reduce misunderstanding during the enrolment process. In his decisions, the CDS has maintained that he was satisfied that the Commander Canadian Forces Recruiting Group (CFRG) had taken the necessary steps to ensure that enrolment procedures were handled with due diligence. The CDS also determined that the occurrence of misleading information given to enrollees had not reached the level of being a Canadian Forces (CF) systemic issue, and therefore he felt that it did not require him to act. Finally, in a recent decision, the CDS reiterated that he was satisfied with the steps taken, but agreed to forward the Board's recommendation to the CFRG for their consideration and action, if deemed necessary.

The Board understands that the number of cases that have reached it in the last several years represent only a very small percentage of the total amount of new recruits enrolled in the CF each year. However, the seriousness of the errors and their impact on the individuals involved should suffice to raise concern at a systemic level.

While the Board agrees that the steps taken by the CFRG should help in reducing the number of mistakes made in the enrolment process, it is not confident this will be sufficient to eliminate possible misunderstandings, misleading offers, or errors relating to the determination of rank and salary.

Pending.

In the past year, the Board has received an increasing number of grievances dealing with incorrect and misleading information provided by Canadian Forces Recruiting Centres (CFRC) upon enrolment of individuals. On this issue in October 2008, the Board reported to the senior leadership of the CF:

The Board has consistently found that new recruits are entitled to expect accurate and complete information from the CFRC. After reviewing a number of such complaints, the Board has concluded that, in simple fairness, the CF has a moral obligation to provide relief to individuals who have been prejudiced by their reliance upon erroneous information they received.

In previous cases dealing with serious errors found in enrolment messages, the Board repeatedly made recommendations on systemic issues to the Chief of the Defence Staff (CDS) regarding the need to amend the current enrolment forms to include specific details regarding the proposed rank and financial benefits, in an effort to reduce misunderstanding during the enrolment process. In his decisions, the CDS has maintained that he was satisfied that the Commander Canadian Forces Recruiting Group (CFRG) had taken the necessary steps to ensure that enrolment procedures were handled with due diligence. The CDS also determined that the occurrences of misleading information given to enrollees had not reached the level of being a CF systemic issue, and therefore he felt that it did not require him to act. Finally, in a recent decision, the CDS reiterated that he was satisfied with the steps taken, but agreed to forward the Board’s recommendation to the CFRG for their consideration and action, if deemed necessary.

The Board understood that the number of cases that have reached the Board in the last couple of years represented only a very small percentage of the total amount of new recruits enrolled in the CF each year. However, the seriousness of the errors and their impact on the individuals involved were sufficient to raise concern at a systemic level.

Pending.

The grievor, a Captain, submitted a grievance concerning the fact that he had acted in positions at the rank of Major during intermittent periods totalling 30 months, and felt he was entitled to financial compensation.

The initial authority denied the grievance based on the fact that the grievor did not satisfy all the requirements for acting while so employed promotion, which he deemed was the only avenue to provide the requested financial compensation to the grievor.

The Board noted that, as a result of another similar grievance, the Chief of the Defence Staff (CDS) requested, in 2003, that the acting rank policy be reviewed and a report be provided to him. However, no apparent action had been taken.

The CDS agreed with the Board's findings and recommendation to partially uphold the grievance, by waiving the criteria for AWSE, which the grievor did not meet.  The CDS was satisfied that the grievor's situation was unique and exceptional, given the time he was required to carry out the duties and responsabilities, during a difficult period.  The CDS did not clearly address the Board systemic recommendation.  The CDS did write that he is aware that the AWSE policy remains a contentious systemic issue and that a requirement is needed to find a solution to provide remuneration for such circumstances.  However, he anticipated that a revised AWSE policy will soon be issued as part of a larger, new global CF promotion policy.

In July 2007, the grievor was posted outside Canada, accompanied by his dependants. At that time, he was receiving the Foreign Service premium (FSP) pursuant to the Compensation and Benefits Instructions (CBI). During May to September of 2008, the grievor was attach posted on an operational deployment, creating an entitlement to the operations (OPS) FSP, also pursuant to the CBI.

During his operational deployment, the grievor's FSP amount was reduced pursuant to a Director Compensation and Benefits - Administration (DCBA) memo (1611-10.3.04 (0298/05) (DCBA 4) 23 August 2005).

The Board was of the view that the provisions in the DCBA memo, regarding the calculation of FSP and OPS FSP, were inconsistent with the provisions of the CBI. In particular, contrary to article 10.14.02(14) of the Military Foreign Service Instructions, the DCBA memo purports to reduce the FSP amount by the member's share, and modifies the categories used in the CBI, instead of adjusting the FSP by the member's family size. Further, the DCBA memo adjusts the FSP payment effective the first day the member arrives at the operational post, rather than on the 26th compensation day of the absence. The Board was concerned that FSP and OPS FSP continued to be approved and reduced pursuant to the DCBA memo, despite the fact that these benefits are clearly governed by the CBI.

Noting that the CBI were in the process of being amended to reflect the content of the DCBA memo, the Board indicated that it was not convinced that this proposed new scheme would result in the fair treatment of members with dependants, deployed while posted in foreign countries. The Board opined that the current provisions found in the CBI relating to FSP and OPS FSP appear perfectly fair and balanced.
 

Pending.

The Board found that the SE and IR policies are not reconcilable since the SE benefit is governed by a TB regulation, while IR requirements are provided under a CANFORGEN. In terms of approval authorities, the IR policy gives the career manager the authority to approve IR status, while DCBA controls the payment of the SE, the benefit which flows from the IR designation. The Board has expressed the view that since both the IR status and SE benefits are so interrelated, there should only be one authority to approve them both. In a number of cases reviewed by the Board so far, the career manager has authorized an IR only to have DCBA revoke the SE in arrears. In some cases this caused significant amounts of money to be recovered. As well, CF members have been left with extra living and/or transportation expenses that they might not have incurred had the IR been properly authorized or denied in the first place.

The Board has received the Final Authority decision on the 2009-011 case, in which the CDS did not specifically address, nor mention, the Board's systemic recommendation with respect to the administration of imposed restriction (IR) and separation expense (SE). However, the CDS noted that DCBA was currently conducting a review of the domestic IR policy including the possible application of the policy to out-of-country scenarios.

The CDS was of the opinion that the Board's conclusions and recommendation were derived from inaccurate facts in that Les Cèdres, where the grievor moved at his own expenses, is located outside the designated geographical area of Montreal. Therefore, when the grievor was posted from St-Hubert to St-Jean, he was not entitled to a relocation at public expense, nor to IR and SE benefits. Since the CDS concluded that the grievor has no entitlement to IR/SE, it could explain why he did not address the Board's systemic recommendations on this issue. 

The grievor married a foreign national while on posting outside Canada. Because of immigration requirements, the spouse could not immediately return to Canada with the grievor. The grievor was authorized free rations and quarters by his unit, as part of separation expense (SE) benefits. Months later, the grievor was informed that he was not entitled to SE and was asked to reimburse the amount received.

The Board observed, in this case, that the administration of SE was improperly done through the Director Compensation and Benefits Administration Aide-Memoire instead of the CBI 209.997. The Board was aware that the DCBA was seeking proper Treasury Board (TB) authorization to publish its Aide-Memoire as the approved regulations on non-relocation benefits. Given the number of inconsistencies noted between the different documents applicable to the administration of SE (CBI, Aide-Memoire and CANFORGEN), the Board felt that an in-depth review was required to minimize future issues of interpretation and application.
 

The CDS did not explicitly indicate that he agreed with the Board's systemic recommendation on the inconsistencies between the Aide-Memoire and the CBI regarding the SE. However, the CDS acknowledged the inconsistencies in the current grievance, indicating that the issue was raised in previous cases and was with DGCB for review.

The grievor was a divorced member with a Court approved 50/50 shared custody arrangement for his children when he was posted from Halifax to Ottawa on an imposed restriction (IR) and, therefore, granted separation expense (SE).

Prior to authorizing the IR, the grievor's 50/50 shared-custody status had been discussed with the Director Military Careers (D Mil C) and both legal and Director Compensation and Benefits - Administration (DCBA) opinions had been sought. As a result, the D Mil C directed that, as long as the grievor could demonstrate the 50/50 shared custody arrangement, an IR could be authorized; it was.

Thirteen months after the grievor reported for duty in Ottawa, the DCBA explained that the grievor was not entitled to an IR or the SE because his children did not live with him full-time as set out in the DCBA 3 Aide-Memoire.

The initial authority, the Director General Compensation and Benefits (DGCB) recognized that the term "normally resident" found in the Compensation and Benefits Instructions (CBI) 209.997 could be misinterpreted but that the DCBA 3 Aide-Memoire was clear that the grievor's children had to be resident with him on a full-time basis.

The Board noted that the DCBA 3 Aide-Memoire explained that it modified the SE benefits based on Treasury Board (TB) approval in principle. The Board found that the full-time residency requirement of the DCBA Aide-Memoire went beyond amplifying the CBI and, in fact, placed limits on the benefits authorized by the TB; something that, in accordance with sections 12 and 13 of the National Defence Act, it cannot do without formal approval from the TB.

The Board observed that, in addition to this grievance, there had recently been other grievances where the DCBA 3 Aide-Memoire had been used to place limits on benefits approved by the TB.
 

Pending.

The authority to settle claims against the Crown or to give ex gratia payments to members of the CF has been delegated from the Legal Advisor to the Department of National Defence and Canadian Forces to the Director Claims and Civil Litigation (DCCL). Accordingly, in cases where the Board has recommended that grievors receive financial compensation as one of the remedies to the resolution of their grievances, the CDS has been limited to referring the cases to the DCCL for review and determination of the merits of such compensation.

In his National Defence Act Review and Recommendations dated 3 September 2003, Chief Justice Lamer recommended that the CDS be given the authority to settle claims and to award ex gratia payments when he determines through the grievance process that the circumstances warrant such payments. However, some six years later, this recommendation has not been implemented.

It is most regrettable that the CDS lacks authority to provide financial redress in compelling cases. Efforts should be made to provide the CDS with this important tool.
 

Pending.

The Board reviewed a case where a member was convicted of criminal charges arising from domestic violence and was subsequently imprisonned. The Board noted that two CF policies were applicable to the situation: Members involved in family violence, Defence Administrative Order and Directive (DAOD) 5044-4, and members incarcerated in civilian prisons, Canadian Forces Administrative Order (CFAO) 15-2 – Release. However, the Commanding Officer (CO) failed to submit a recommendation for retention or release as required by the CFAO. On the other hand, the DAOD vests considerable authority in the CO in dealing with a member involved in domestic violence. The Board was of the view that clear guidance was required, both to the chain of command and National Defence Headquarters personnel authorities, where members are incarcerated after conviction of an offence related to family violence.
 

Pending.

The grievor requested an extension of service beyond his compulsory retirement age (CRA) which was denied. The grievor submitted a grievance claiming that denying his request amounted to discrimination based on age, contrary to the Canadian Charter of Rights and Freedoms (the Charter).

In 1990, in the McKinney case, the Supreme Court of Canada held that mandatory retirement policies were fundamental, and they were not based on stereotypes, but they were the result of administrative, institutional, and socio-economic considerations.

In a recent case, the Federal Court of Canada (FCC) overturned a Canadian Human Rights Tribunal (CHRT) decision and found that section 15(1)(c) of the Canadian Human Rights Act (CHRA), with regard to mandatory age of retirement, constitutes discrimination as per section 15 of the Charter. Most importantly, the FCC sent the matter back to the CHRT to determine whether mandatory retirement age can be demonstrably justified as a reasonable limit in a free and democratic society by virtue of section 1 of the Charter. The CHRT released its decision on the matter in August 2009 and concluded that this was indeed the case.

There are significant differences between the factual context in which the Supreme Court rendered its decision in 1990 and the context that prevails today. For example, people start careers at a later age and the Canadian Forces (CF) is no exception. While the recruiting base of young Canadians is shrinking, there is a need to keep skilled and experienced members who are difficult to replace. People are capable of working longer, since the health care status of older people is improving. Furthermore, a system is already in place to monitor the performance and the medical status of CF members and to require release when members do not meet the universality of service principle.

Although a judical review has been filed in the Vilven case, and despite the fact that the Supreme Court has not decided on this issue in light of the actual context, a series of lower court decisions and governmental positions reveal a trend that will surely affect provisions on CRA in all spheres of endeavour, including the CF.
 

Pending.

The Harassment Prevention and Resolution Guidelines (hereafter “the Guidelines”) provide that a harassment complaint will be closed if a member files a grievance on the same issue. However, Article 2.09 of the Canadian Forces Grievance Manual (hereafter “the Manual”) states that a grievance can be suspended if it concerns a harassment complaint that has not been treated by the appropriate Responsible Officer.

The provisions of the Guidelines and those of the Manual are contradictory since the first gives priority to the greivance mechanism, while the second states that the harassment mechanism is to be used first. In my view it is more logical – as the Manual states – to suspend the grievance and first make use of the mechanism created for dealing with complaints of harassment. In addition to enabling the Canadian Forces (CF) to fulfil their obligation to provide a harassment-free workplace, the advantage of this approach is as follows: by determining, first, whether the allegations fit the definition of harassment provided for in DAOD 5012-0 and, if they do, ordering an investigation, the evidence gathered in that investigation can be used by the IA and the FA to act on any grievance that may be submitted against the decision of an RO. Moreover, allegations of harassment treated by the process provided for in the DAOD will be treated more expeditiously and thus closer in time to the incidents raised.

In effect, if a harassment complaint utilizes the process reserved for grievances, the CDS, when he reviews the file, cannot conduct his own investigation if he considers that the allegations meet the definition of harassment; instead he must refer the harassment allegations back to the appropriate CF authorities so that they may conduct an investigation. The parties involved therefore return to square one, thus incurring further delays. Alternatively, in the majority of the cases examined by the Board, the passage of time and the resulting absence of witnesses and fading of memories leave the CDS with no other choice, in the context of the grievance process, but to conclude that there would be no point in sending the harassment allegations back for investigation, and the grievance on the issue is therefore denied.

Although it would be appropriate to modify the directive in order to correct this contradiction, I understand that any amendment to DAOD 5012-0 cannot be made without the approval of the Assistant Deputy Minister (Human Resources - Civilian) and the Chief of Military Personnel since this directive is applicable to both civilian and military personnel. In addition, the Board has been informed that the Director Human Rights and Diversity has already recommended modifications to the DAOD. I understand as well, that Treasury Board is on the verge of adopting a new policy in matters of harassment concerning Public Service employees. Consequently, it would appear that the directive will not amended until this new policy on harassment becomes effective.

With regard to the Board's systemic recommendation, the CDS indicated that DAOD 5012 0 concerning harassment is presently under review and that a DAOD concerning the grievance process is being developed. He was therefore satisfied that the discrepancy between the two processes would be corrected within a reasonable time.
 

Geographical areas are used in applying the PLD without taking account of the economic factors underpinning the concept of the post-living differential. The distinction between a geographical area and a PLDA thus seems to be a major cause of confusion. While the geographical areas remain the same so long as the competent authority does not change the configuration, the PLDAs work differently and can be modified based on the cost of living. This confusion still persists and can lead to even greater frustration and unfair treatment in situations where a PLDA can consist of a single municipality. In this specific case, for example, communities or neighbouring towns in which CF members may have established their principal residence fall within the PLDA of Montreal South Shore, while the cost of living at these locations is not necessarily higher than that of St-Hyacinthe.
 

Pending.

CBI 205.33(6) stipulates that members who belong to a field unit and who are attach posted in excess of six months to a unit that is not a field unit lose their right to the LDA.

The Valcartier chain of command questioned whether a member belonging to a field unit would lose his/her right to receive the LDA if he/she worked on a task for over six months in a unit that is not identified as a field unit.

Commanding officers have a number of methods for assigning their members temporarily, including attached posting, position change, temporary duty, and internal tasks. After examining the difference between attached posting and assignment to an internal task, the Board concluded that one is not the same as the other and that CBI 205.33(6) only applies to attached postings; it does not eliminate LDA eligibility for members who are simply assigned to an internal task from one unit to another.
 

Pending.

The grievor was serving on Class B Reserve Service (Cl B svc) when he was authorized five days short-term Class C (Cl C) svc, 28 July to 1 August 2008. In determining his pay, the Queen's Regulations and Orders (QR&O) 203.06 requirement to calculate the Cl C daily rate at one-thirtieth of a month's salary was taken to mean that, when Cl C svc starts after the middle of the month, there is no entitlement to pay for the 31st day. Consequently, the grievor had his Cl C daily rate of pay for 28 to 31 July 2008 reduced by the equivalent of one day's pay, i.e., he was not paid for 31 July 2008.

The Board determined that the pay policy and pay administrative authorities had confused the computation of the Cl C daily rate of pay as detailed in QR&O 203.06 with the entitlement to pay contained in Compensation and Benefits Instructions 203.01 and 203.02. Therefore, the Board found that the grievor was entitled to be paid the full daily rate for all five days served on Cl C svc, including 31 July 2008.

The Board considered it quite likely that other reservists have been disadvantaged by the misinterpretation of QR&O 203.06.

The CDS directed the Chief Military Personnel, in cooperation with the Chief of the Maritime Staff, to address it, and take the necessary steps to identify those members in similar circumstances who may have been underpaid and to take corrective pay action as required, as well as to find a solution to prevent these situations from occurring.

The grievor was not awarded the General Campaign Star (GCS) .

The GCS is granted to Canadian Forces (CF) members who are deployed to a specific operational theatre to serve in operations in the presence of an armed enemy.  The GCS is issued for honourable service.

The Board searched for the CF interpretation of honourable service, but was unable to find one.  Therefore, in the apparent absence of a standardized definition at the national level, the interpretation of honourable service is left to the discretion of each commander.  The absence of a framework unavoidably gives rise to differing interpretations, which inevitably lead to inequities.

Pending.

For some time, the Board has been receiving files where the Director General Canadian Forces Grievance Authority (DGCFGA) reviewed the issue of time limits to determine whether grievors had submitted their grievances within the time limits provided in articles 7.02 and 7.10 of the Queen's Regulations and Orders (QR&O). The Board noted that, in a certain number of files referred to the Board, the DGCFGA determined that the grievance had been submitted outside the time limit but decided that it was in the interests of justice to consider the grievance nonetheless. Thus, a number of files considered late were referred to the Board for review. The Board is not concerned so much about the files that were referred but about the files that were not referred and that, under the National Defence Act (NDA), should have been.

In grievance files under the categories listed in article 7.12 of the QR&O, grievances that must be referred to the Board, the Board is of the view that the DGCFGA does not have the authority to determine whether it is in the interests of justice to consider a late grievance submission. Under section 29.14 of the NDA and article 7.09 of the QR&O, "[t]he Chief of the Defence Staff may delegate to any officer any of the Chief of the Defence Staff’s powers, duties or functions as final authority in the grievance process, except ...the duty to act as final authority in respect of a grievance that must be referred to the Grievance Board..."

A late grievance submission remains valid but raises a procedural issue that requires the deciding authority to agree to “consider” the grievance. In the Board’s view, it would be illogical for the regulations to permit the DGCFGA to make this determination in place of the Chief of the Defence Staff (CDS), while the NDA explicitly prohibits the former from reviewing grievances that must be referred to the Board. This determination can only be made by the final authority (FA); in this case, the CDS.

The Board sees only the files that are referred to it. It is therefore very likely that the DGCFGA has, in the past, denied late grievance submissions that should have been referred to the Board under the NDA. The grievors in those files had their grievances denied without the benefit of an independent review by the Board and a decision by the CDS, the FA, as prescribed by the NDA.
 

Pending.

For some time, the Board has been receiving files where the Director General Canadian Forces Grievance Authority (DGCFGA) reviewed the issue of time limits to determine whether grievors had submitted their grievances within the time limits provided in articles 7.02 and 7.10 of the Queen's Regulations and Orders (QR&O). The Board noted that, in a certain number of files referred to the Board, the DGCFGA determined that the grievance had been submitted outside the time limit but decided that it was in the interests of justice to consider the grievance nonetheless. Thus, a number of files considered late were referred to the Board for review. The Board is not concerned so much about the files that were referred but about the files that were not referred and that, under the National Defence Act (NDA), should have been.

In grievance files under the categories listed in article 7.12 of the QR&O, grievances that must be referred to the Board, the Board is of the view that the DGCFGA does not have the authority to determine whether it is in the interests of justice to consider a late grievance submission. Under article 29.14 of the NDA and article 7.09 of the QR&O, "the Chief of the Defence Staff may delegate to any officer any of the Chief of the Defence Staff's powers, duties or functions as final authority in the grievance process, except... the duty to act as final authority in respect of a grievance that must be referred to the Grievance Board..."

A late grievance submission remains valid but raises a procedural issue that requires the deciding authority to agree to "consider" the grievance. In the Board's view, it would be illogical for the regulations to permit the DGCFGA to make this determination in place of the Chief of the Defence Staff (CDS), while the NDA explicitly prohibits the former from reviewing grievances that must be referred to the Board. This determination can only be made by the final authority (FA); in this case, the CDS.

The Board sees only the files that are referred to it. It is therefore very likely that the DGCFGA has, in the past, denied late grievance submissions that should have been referred to the Board under the NDA. The grievors in those files had their grievances denied without the benefit of an independent review by the Board and a decision by the CDS, the FA, as prescribed by the NDA.

The Board is of the view that all grievances that the current DGCFGA denied must be reviewed.
 

Pending.

This was the second case reviewed by the Board where a reservist serving at a Sea Training Unit (STU) agreed to serve on Cl B svc but was authorized Cl C svc whenever he was deployed at sea. In the previous case, the Board found that the Canadian Forces' practice of alternating (sometimes daily) a member's service from Cl B to Cl C was not contemplated by the applicable regulations. The Board found that a reservist's period of full-time service should normally be either Cl B or Cl C – but not both. The Board also questioned how administratively possible and affordable it is to change from one class of service to another on a day-to-day basis.

The Board found that STUs were operational units and their mandate and positions fell under "routine naval operations" as per the Chief of the Defence Staff's directive approving Cl C operations. Accordingly, in the other case, the Board found that the member's period of service with the unit should have been designated Cl C svc.

The CDS did not address, nor mention, the Board's recommendation.

In a recent case handled by the Board, the grievor had been posted to St-Hubert in 2004 and decided to reside in St-Hyacinthe. Both St-Hubert and St-Hyacinthe were situated within the geographical area of Montreal, which was divided into two post living differential areas (PLDA), Montreal North Shore and Montreal South Shore. The city of St-Hyacinthe fell within the South Shore area and, consequently, members whose place of service was within Montréal and who resided in St-Hyacinthe received the PLD for the South Shore area.

However, in 2005, through CANFORGEN 162/05, the Director Compensation and Benefits Administration (DCBA) assigned a "PLD rate" to the city of St-Hyacinthe lower than that of the PLDA of Montreal South Shore, recognizing that the cost of living in that area had decreased. In February 2008, while the grievor was still receiving the PLD at the rate for Montreal South Shore, the Canadian Forces sought reimbursement of the PLD overpayment retroactive to 1 January 2006. However, the city of St-Hyacinthe did not become a PLDA until 1 April 2008, at which time it appeared in the table added to Compensation and Benefits Instructions (CBI) 205.45.

The Board concluded that, pursuant to CBI 205.45, the PLD is awarded to members whose principal residence is located in a PLDA, which must fall within the geographical boundaries of a place of service; this provision does not provide that members shall receive the PLD rate associated with their place of service or the place of their principal residence.

The Board noted that the DCBA had taken the position that attribution of a PLD "rate" to a given city means that the city automatically becomes a PLDA. However, PLDAs have always been identified through a message or a table within the CBIs. Accordingly, the Board concluded that it was likely that other members who had been posted to the geographical area of Montreal but had their principal residence in St-Hyacinthe had also been prejudiced by this inappropriate interpretation.
 

Pending.

The grievor contacted a Canadian Forces Recruiting Centre (CFRC) and was offered a recruiting allowance (RA) of $10,000 on enrolment. A Statement of Understanding and Undertaking was signed by the grievor and a member of the CFRC recruiting staff to this effect.

After being posted to his first unit, the grievor was advised that he was not eligible for the RA because it had not been on the Chief of the Defence Staff's (CDS) understrength occupation list at any time during the grievor's recruiting process, indeed it had not been available for the grievor's occupation for four years prior to his enrolment. However, the grievor had already borrowed the equivalent of the RA to augment other funds in order to get married and was faced with repaying a larger loan than anticipated over three years instead of one year.

The Board noted that, in the past year, it had received an increasing number of grievances dealing with incorrect and misleading information provided by Recruiting Centres upon enrolment of individuals. In October 2008, the Board reported to the senior leadership of the Canadian Forces (CF):

The Board has consistently found that new recruits are entitled to expect accurate and complete information from CF Recruiting Centres. After reviewing a number of such complaints, the Board has concluded that, in simple fairness, the CF has a moral obligation to provide relief to individuals who have been prejudiced by their reliance upon erroneous information they received.

Accuracy of Information by Recruiters: Recruiters have unique and exclusive knowledge of terms of enrolment, and should be abreast of the criteria for RA entitlements. They hold knowledge that cannot be expected to be held by an applicant. Further, they are the only point of contact for applicants, who must rely upon the accuracy of information provided by them in making life-altering decisions.
 

Pending.

A number of cases have been referred to the Board in which the Director General Compensation and Benefits (DGCB), acting as the Initial Authority, dismissed grievances on the grounds that the Compensation and Benefit Instructions (CBI) are Treasury Board (TB) regulations and that, consequently, a CF member could not dispute them through a grievance, in accordance with Queen's Regulations and Orders (QR&O) 7.01(1) – Right to Grieve. This paragraph reiterates subsections 29(1) and 29(2) of the National Defense Act (NDA), which stipulate that “there is no right to grieve in respect of … a matter or case prescribed by the Governor in Council in regulations.”

The Board firstly pointed out that TB regulations are not regulations made by the Governor in Council. In addition, the Board indicated that the DGCB’s interpretation of QR&O 7.01(1) is erroneous. This subsection does not prevent CF members from filing grievances against matters governed by regulations made by the Governor in Council. Rather, it enables the Governor in Council to make regulations excluding specific matters or cases from the grievance process. There is no regulation made by the Governor in Council that excludes matters or cases governed by the CBI on the grievance process.

Pending.

A Canadian Forces member posted to one of Her Majesty's Canadian Ships is entitled to the Sea Duty Allowance (SDA) in accordance with Compensation and Benefits Instruction (CBI) 205.35(2). When that ship is in a theatre of operations, the ship's crew becomes entitled to the Hardship Allowance (HA) in accordance with the Military Foreign Service Instructions (MFSI), published as CBI 10.3.05. A message issued by the Director General Compensation and Benefits (DGCB) on 2 September 2003 announced that, although the HA could be paid in conjunction with the SDA, payment would not be made until, as directed by the Treasury Board (TB), the HA assessment form had been reviewed and adjusted to ensure that there was no double compensation. The DGCB stated that, until the review was complete, members had to elect to receive either HA or SDA, but not both.

The review was conducted five years later and the DGCB announced to the Director Maritime Personnel that no change to the benefits was warranted. During that time and even now, members are in receipt of only one of the two benefits as DGCB is of the view that paying both would amount to "double compensation". The Board has reviewed the regulations governing HA and SDA and has determined that these two benefits are intended to serve different purposes.

While there may be some commonality in the factors underlying both allowances, they clearly have different rationales. MFSI 10.3.05 state that the intent of the HA is to "compensate for the living conditions existing at a specific post." The MFSI goes on to provide for the establishment of a committee to establish an HA level "for the post" and to review the levels set for "each operation." HA, therefore, is operation specific and provides for seven levels of compensation depending on the austerity of the particular situation. In addition, MFSI 10.3.03(5) addresses the unique situation of ships by providing that entitlement to the HA only commences "upon the ship's arrival in the theatre of operations."

The SDA, on the other hand, is payable to a member for the entire duration of his/her posting to a ship. It is obviously intended to compensate for the discomforts and inconveniences brought about by shipboard life. The Board further noted that MFSI 10.3.08 specifically provides that certain environmental allowances are not payable if the member is in receipt of HA; the SDA is not one of those allowances which is suggestive of an entitlement to both benefits.

The Board was unable to find any provision in the applicable regulations or any TB direction/instruction that would disentitle a member from receiving both allowances.

Pursuant to S. 35 (2) of the National Defence Act, the determination and regulation of allowances for members of the CF is the sole prerogative of the TB. Absent TB concurrence, the DGCB does not have the authority to decide a benefit is not payable when members are plainly eligible. In this case, the DGCB has impermissibly arrogated to themselves the regulation of the HA and SDA benefits. It is not for the DGCB to "reasonably imply" or otherwise seek to twist the plain meaning of regulations to suit their own purposes.

The Board noted that the DGCB denial of the payment of both HA and SDA has been in effect since 2 September 2003 and, as a result, there are a considerable number of CF members who have been deployed on maritime operations who have also been denied the benefit of both allowances.
 

Pending.