Case # 2009-057

Allowances and Benefits, Land Duty Allowance, Overpayment

Case Summary

F&R Date: 2010–09–23

In 2008, article 205.33 of the Compensation and Benefits Instructions (CBI) – Land Duty Allowance (LDA) was promulgated retroactive to 1 April 2007. The purpose of this allowance is to compensate members of the Canadian Forces (CF) exposed to difficult working conditions and a harsh environment in the field after being posted to a field unit "whose primary role is combat manoeuvre and training for operations".

2008 also saw the publication of lists of designated field units, including the grievor’s unit, that announced the eligibility of members of these units for the LDA retroactive to 1 April 2007.

In 2009, the grievor's unit was removed from this list retroactive to 31 March 2007.

The grievor filed a grievance challenging the decision to remove his unit from the list of designated field units and the retroactivity of that decision which, by its very nature, required him to reimburse the amounts he had received.

The CFGB confirmed that there were three ways for a CF member to become eligible for the LDA under CBI 205.33(2): by being posted to a field unit, by being posted to a unit designated by the Minister or by occupying a position designated by the Minister.

The CFGB concluded that the grievor’s unit had never met the criterion for length of exposure to difficult working conditions and a harsh environment in the field, which must be fulfilled in the field outside the normal working conditions of CBI 205.33(1). The Board accordingly concluded that the grievor’s unit could not be defined as a field unit or designated as a field unit by the Minister and that the CF’s decision to recover the monies paid out was correct.

The CFGB found that it would be problematic were the grievance to be upheld, ie: the purpose of the LDA would not be respected, the Minister would be using his discretion improperly, public funds would be used injudiciously, and the CF members posted to this unit would be receiving money to which they were not entitled.

Consequently, the CFGB recommended that the Chief of the Defence Staff (CDS) deny the grievance.

The CFGB also raised a number of concerns regarding the comprehension, administration and management of the LDA, which are having a direct impact on CF members by imposing on them an undue and pointless financial burden.

The CFGB also voiced its concerns regarding the authority of the Director General Compensation and Benefits (DGCB) to amend the list of field units as well as the presence on the field unit list of certain units that do not appear to meet the definition of “field unit”.

Finally, the CFGB expressed concern regarding the fact that not all of the units removed from the list by DGCB, were removed retroactively. The CFGB was unable to explain this discrepancy in the treatment accorded units which, at first glance, were never eligible for the LDA.

The CFGB therefore recommended that the CDS order a review of the list of field units aimed at ensuring that only units that truly conform to the “field unit” definition appear on the list. The Board also noted that particular attention should be accorded to the eligibility of units absent from the list since 2007.

CDS Decision Summary

CDS Decision Date: 2012–05–03

The CDS agreed with the Board’s recommendation that the grievance be denied. The CDS did not agree with the Board’s finding that the grievor's unit, through its association with a Svc Bn, could be considered a combat service support element.

The CDS agreed with the Board’s finding that the English version of CBI 205.33 should be preferred, but for different reasons. Contrary to the Board, the CDS determined that the French version of the CBI was more restrictive, since it lists only one type of unit that can be considered a “field unit,” and the expression “primary role” in the English version indicates that there are three types of units that can be described as “field units.” The CDS found that even though the more restrictive version should take precedence, it could not be preferred because field units are not limited to those whose role is [combat] manoeuvre as the French version implies. The CDS thus agreed with the Board’s recommendation that the English and French versions of the definition of “field unit” should be harmonized in CBI 205.33.

The CDS also agreed with the Board’s recommendation that a review of units removed from the list since 2007 should be conducted, but rejected the Board’s recommendation to sanction the list of field units issued under the CBI, since it is possible the list contains units that do not meet the definition of “field unit.”