# 2017-121 Pay and Benefits, Pay, Reserve Force

Case summary

F&R Date: 2018-06-25

The pay level specified on the component transfer (CT) offer made to the grievor was revised downward upon CT and the over payment was recovered. The grievor requested that the decision to recover be overturned. The grievor argued that he exercised due diligence to ensure that he was receiving the proper pay upon his transfer from the Supplementary Reserve to the Primary Reserve. He questioned the Subject Matter Experts on several occasions regarding the level of pay he would receive and requested a written confirmation, as his level of pay was a key factor in his decision to accept the offer.

The Initial Authority (IA) found that the grievor's rate of pay had been calculated incorrectly on transfer and that recovery of the over payment was required. However, based on the grievor's assertion of negligent misrepresentation, the IA referred his file to the Director Claims and Civil Litigation for consideration.

The Committee concluded that the Canadian Armed Forces (CAF) had paid the grievor at a higher rank in error, and that his circumstances merited consideration for a claim of negligent misrepresentation and Promissory Estoppel.

The Committee recommended that the Final Authority (FA) determine the CAF to be estopped from recovering the grievor's pay overpayment, and that he direct that the CAF reimburse the recovered amount.

FA decision summary

The Acting Chief of the Defence Staff, acting as FA, agreed with the Committee's recommendations that pay not be recovered from the grievor and that he be reimbursed any pay already recovered, but disagreed as to the analysis and findings. The Committee had cited negligent misrepresentation by the CAF and public law estoppel as the basis for its recommendations.

The FA noted that the grievor had retired from the Regular Force and transferred to the Supplementary Reserve (Supp Res) at his rank of Lieutenant-Colonel (LCol) in 2009. In 2012, he accepted an offer to transfer to the Primary Reserve (P Res) conditional upon relinquishment of his LCol rank and acceptance of the rank of Major, but with his pay remaining as that of a LCol IPC 2 [incentive pay category]. In 2015, an audit found that the grievor had incorrectly been paid as a LCol from 2012 to 2015 and that recovery was required. The FA found that upon transferring to the Supp Res in 2009, the grievor was entitled to pay increment protection pursuant to Compensation and Benefits Instructions (CBI) 204.511, and that this did not change when he subsequently transferred to the P Res. Canadian Forces Military Personnel Instruction (CF Mil Pers Instr) 20/04 provided the possibility of over ranking in a position, although it was not used in this case.

The FA stated that the Treasury Board had not explicitly stated that the pay protection in CBI 204.511(6) was restricted in situations of rank reversion and accordingly, the grievor was entitled to LCol IPC 2 pay as stated in his transfer offer in 2012.

The FA directed that the Chief of Military Personnel ensure that CF Mil Pers Instr 20/04 be revised to clarify the pay protection status described in CBI 204.511(6) relating to the relinquishment of rank.