# 2009-050 Pay and Benefits, Allowances and Benefits, CDS' Authority to Award Financial Compensation, Imposed Restriction (IR),...

Case Summary

F&R Date: 2009–12–31

The grievor first contacted a Canadian Forces Recruiting Centre (CFRC) in 2004 shortly after graduation but did not enrol. He re-contacted the CFRC in 2007 and was advised that he was eligible for a $20,000 recruiting allowance (RA) as well as promotion to the rank of corporal (Cpl) on successful completion of his basic military qualification (BMQ, retroactive to the date of enrolment. On the day of his September 2007 enrolment, the grievor was told that he was only eligible for a $10,000 RA, but that he would still receive a retroactive promotion to Cpl. On BMQ graduation, the grievor was promoted to Cpl retroactive to September 2007.

On arrival at his first posting, the grievor was informed that he would not receive the RA and, a week or so later, he was also informed that he should not have been promoted to the rank of Cpl. An enrolment, transfer, posting message amendment was issued indicating that the grievor would be Private (trained) on completion of his BMQ course, backdated to his date of enrolment.

The grievor submitted a grievance in February 2008 requesting that his RA and early promotion to Cpl be reinstated. In March 2007, the grievor’s Cpl rank was reinstated through an informal resolution. The grievor annotated his initial application for redress of grievance to the effect that he was satisfied with the outcome of his redress. However, in July 2008, the grievor re-submitted his grievance concerning the RA and requested the $10,000 RA as redress.

The initial authority (IA) denied redress. He explained that, notwithstanding the information on the statement of understanding and undertaking concerning the RA that the grievor signed on enrolment, no RA had been given for that military occupation since 2000. The IA added that although the document signed by the grievor is a "valid" document, it did not constitute a legal and binding contract.

The Board found that the grievor was not entitled to the RA because his occupation was not on the understrength list during his enrolment process.

However, the Board also found that the grievor’s circumstances appeared to meet all the conditions for negligent misrepresentation. As a result and legal technicality aside, the Board considered the facts of the case compelling and found that, in simple fairness, the CF ought to provide relief to the grievor.

The Board acknowledged that there is no contractual relationship between the Crown and members of the CF; the commitment by members on enrolment being unilateral. However, the Board noted that the promise of a RA was made prior to enrolment while the grievor was a civilian and, consequently, the Board saw no reason why such a prior arrangement should not survive enrolment in the CF. The Board also noted that the CF is not reticent about taking strong action to enforce “obligatory service” promised by applicants prior to enrolment.

The Board noted that there was an administrative review in progress regarding the informal resolution’s “unauthorized” promotion back to Cpl.

The Board recommended that the Chief of the Defence Staff (CDS) deny the grievance. However, the Board also recommended that the CDS take any steps within his authority to ensure that the grievor received an amount equivalent to the full value of the RA promised to him as a civilian being encouraged to enrol in the CF, in part by that promise.

Alternatively, if that were not possible, the Board recommended that the CDS refer the file to the Director Claims and Civil Litigation (DCCL), with a request that DCCL negotiate a fair financial settlement with the grievor.

The Board also recommended the CDS ensure that, notwithstanding any result of the ongoing AR, the grievor’s rank remain as Cpl as was promised to him when he enrolled.

CDS Decision Summary

CDS Decision Date: 2011–03–31

The CDS agreed with the Board's recommendation to partially grant the grievance. The CDS agreed with the Board's finding that negligent misrepresentation had occurred. The CDS strongly agreed with the Board that the CF has an obligation, if not legal, at least moral, to provide the grievor with a measure of relief for negligent misrepresentation; the CDS agreed with the Board's recommendation to refer the file to the Director Claims and Civil Litigation (DCCL) for review. The CDS also agreed with the Board's recommendation that the grievor’s rank remain as Cpl; in order to do so, based on the particularities of this case and pursuant to QR&O 11.02, he used his discretionary power and waived the time in rank requirement. Finally, the CDS agreed with the Board's systemic recommendation. He stated that the issue of his awarding financial compensation is currently under review at the highest levels. With regard to the issue of erroneous and negligent commitments within the CFRG, he directed CFRG Headquarters to follow up on their recent changes and to review the Board's comments to ensure that possible measures be implemented to avoid these situations.