# 2012-005 Pay and Benefits, Allowances and Benefits, Military Foreign Service Instruction (MFSI)

Case Summary

F&R Date: 2012–03–22

The grievor was deployed as part of an International Operation in 2009–2010. He hired an individual to handle the maintenance of his vacant residence during his period of service abroad. Upon his return, he submitted a claim for these home maintenance costs. This request was denied by the Director Compensation and Benefits Administration (DCBA) because he had not engaged the services of a commercial firm.

The grievor challenged the decision of the DCBA, claiming that he had trusted, among other things, the Checklist (2007) he had been given by his unit’s administrative personnel. He pointed out that this document made no mention of the obligation to avail oneself of the services of a commercial firm to maintain one’s residence during an absence. However, in 2009, reimbursement of the maintenance cost of a vacant residence was covered by the version of the Checklist issued by the DCBA on 1 November 2008. This version did oblige the grievor to have recourse to the services of a commercial firm.

The grievor argued that his situation was special, since he only had a short time to get his personal affairs in order. He explained that he had therefore simply accepted the advice given to him by the administrative personnel and that he had seen no reason to do any doublechecking. The Board concluded that the grievor had not shown diligence because if he had consulted the 2008 Checklist, he would have realized that he needed to engage the services of a commercial firm to maintain his residence during his absence.

On 9 March 2009, the Chief of the Defence Staff (CDS) concluded that the DCBA had issued that Checklist without Treasury Board authorization. The document could therefore not be used to authorize reimbursement of unanticipated costs under one of the Compensation and Benefits Instructions (CBI). Therefore, on 3 February 2011, section 10.28.01 of the Military Foreign Service Instruction (MFSI), which is found in Chapter 10 of the CBI, came into effect retroactively to 1 January 2005. Section 10.28.01(3) provides in particular that a member is entitled to actual and reasonable expenses from a commercial firm for the maintenance of his vacant residence while he is on deployment outside Canada. The grievor acknowledged that, under section 10.28.01 of the MFSI, he did not meet all the criteria necessary to have the costs of maintaining his residence reimbursed because he had not used a commercial firm. However, he asked that the Canadian Forces (CF) show some flexibility by waiving the current regulation.

The initial authority (IA), the Director General Compensation and Benefits, acknowledged that the grievor had possibly been misled by the benefits experts in his unit and, given the unusual nature of his deployment, he had no reason to doubt or time to confirm the accuracy of the information. However, she concluded that she was not authorized to apply the Minister’s special powers in the grievor’s circumstances.

The Board agreed only in part with the IA’s comments because it concluded that the grievor had lacked diligence. With respect to the request for Ministerial discretion, the Board concluded that the grievor did not meet the first two criteria set out in section 10.2.02(1) of the MFSI because his circumstances were not different from those of other CF members. In its opinion, granting compensation to the grievor would not be fair to the other members, or to the CF. The Board therefore recommended to the CDS that the grievance be denied.

CDS Decision Summary

CDS Decision Date: 2015–05–12

The CDS agrees with the Board's conclusion that the grievor was not eligible for reimbursement of home maintenance and security expenses while on deployment since he failed to use the services of a commercial firm.

The CDS disagrees with the Board's conclusions that the grievor's circumstances did not differ from those of other CAF members and that the error of the administrative personnel could not justify recourse to ministerial discretion. The CDS determined that the grievor had been given 16 days rather than 44 days to complete his preparations for deployment. Finally, the CDS concluded that the grievor had acted in good faith in depending on the documents provided by the financial and administrative experts, which was reasonable under the circumstances.

The CDS therefore referred the grievance to the Director Claims and Civil Litigation of the Department of National Defence and the Canadian Forces for assessment in accordance with the Treasury Board Directive on Claims and Ex Gratia Payments. The grievance was resolved.