Case # 2011-020

Imposed Restriction (IR), Integrated Relocation Program (CF IRP), Loss of benefits due to large geographical area, Negligent misrepresentation, Recovery of overpayment/Debt write-off, Relocation expenses

Case Summary

F&R Date: 2011–06–26

The grievor was posted from a Field Unit in the National Capital Region (NCR) to a National Defence Headquarters (NDHQ) position in Ottawa; both locations being within the geographical boundary of the NCR. For operational reasons, the grievor requested a cost move, which was approved, making him eligible for imposed restriction (IR) and separation expense (SE) benefits. The grievor subsequently rented an apartment closer to NDHQ.

Some years after the grievor’s posting, the Director Compensation and Benefits Administration determined that the grievor had not been entitled to a cost move, IR, or SE, since he had not been posted from one place of duty to another, pursuant to the Canadian Forces Integrated Relocation Program. As a result, the grievor was subject to recovery action in excess of $22,000.

The grievor argued that there should be no recovery given that his IR status had been authorized by his career manager, he had not benefitted from the funds, and the recovery would adversely affect his family. As remedy, the grievor requested that the recovery action be ceased and that all funds already recovered be returned to him.

There was no initial authority decision in this grievance.

The Board found that given the size of the NCR geographical area and the unique obligations of this unit, a separate place of duty for the unit should be authorized. The Board noted that the Chief of the Defence Staff (CDS) had the authority to determine the geographical areas included in a place of duty, and as such, he could uphold the grievance by modifying the geographical area. Lastly, the Board also found that the grievor met the test for negligent misrepresentation, as he relied on the decision to approve his IR status. As such, the Board found that it would be unjust to demand recovery of the funds.

The Board recommended that the CDS uphold the grievance by endorsing the grievor’s cost move, the imposition of a restriction, and the payment of SE.

The Board also recommended that the CDS endorse the retroactive modification of the geographical boundary, to make this particular unit its own separate place of duty. In the alternative, the Board recommended that the CDS refer the grievor’s file to the Director Claims and Civil Litigation to pursue the matter of negligent misrepresentation.

The Board provided a systemic recommendation that the CDS direct a reconsideration of the NCR geographical boundary, with the view to creating several smaller “places of duty” within the NCR area.

CDS Decision Summary

CDS Decision Date: 2012–02–24

The CDS agreed with the Board's findings and recommendation that the grievance be upheld. The CDS did not agree with the systemic recommendation that the NCR geographical boundary be reconsidered, and that several smaller "places of duty" within the NCR area be created. The CDS was of the view that the wording of CFAO 209.28 allows the flexibility to meet the CF needs and clearly envisions exceptions to be made to enable moves within a geographical area so long as they are fully subtantiated and meet the prerequisites for entitlement.