Docket: T-697-11
Citation: 2012 FC 408
Ottawa, Ontario, April 11,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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GORDON DOYLE
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA (THE CHIEF OF DEFENCE STAFF)
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Chief of Defence
Staff (CDS), dated March 28, 2011, that denied Gordon Doyle’s request for an
extension of time to complete his Intended Place of Residence (IPR) and
receive relocation benefits.
[2]
The
Applicant raised several allegations of breaches of procedural fairness and
unreasonableness of the decision in light of the Canadian Forces (CF) policy on
relocation benefits. The Respondent agreed that this Court ought to quash the
decision of the CDS but has provided submissions as to the appropriate
decision-maker to whom the matter should be referred and in opposition to the
Applicant’s request for a directed verdict.
[3]
I
will therefore allow this application and consider the appropriate remedy in
more detail below.
I. Background
[4]
A
former officer of the CF, the Applicant, Gordon Doyle, requested an extension
of time to use his
relocation benefits due to exceptional circumstances in a letter to the CDS on
February 1, 2011.
[5]
Before
receiving the formal decision from the CDS, the Applicant was provided with an
imminent ruling by Major Farrell. On March 24 and 25, he sent additional
information for consideration.
[6]
On
March 28, 2011, however, the CDS denied his request stating:
As much as I would like to
create a program specifically suited to your situation, thereby enabling an
extension to an IPR beyond three years, I am unable.
All relocation benefits are approved by
the Treasury Board (TB) and administered through the CF Integrated Relocation
Program. Although your relocation has not commenced, at this time we are bound
by the TB approved policy and are unable to do any more from within the
military system. I note that your file indicates that you have until 11 August
2011, to select and move to an IPR. I encourage you to utilize your support
system and resources in your current location without delay to assist you in
securing a relocation prior to the expiration of your IPR benefits.
[7]
In
response, the Applicant commenced these proceedings for judicial review and
made an additional request for documents from the Respondent under section 13
of the Privacy Act, RSC 1985, c P-21.
II. Legislative
and Policy Framework
[8]
Section
35 of the National Defence Act, RSC 1985, c N-5 provides that the
Treasury Board Secretariat (TBS) regulates the rates and conditions of pay as
well as payments made by members of the CF by way of reimbursement for travel
or other expenses and by way of allowances in respect of expenses and
conditions arising out of their service. The TBS approved relocation policy
for CF members is contained in the Canadian Forced Integrated Relocation
Program Directive (Relocation Directive).
[9]
Section
2.1.01 of the Relocation Directive, Active Posting Season (APS) 2008 designates
authority for relocation benefits as follows:
Treasury Board Secretariat (TBS), has
authority to:
• approve reimbursement of
all or part of the expenses reasonably incurred that are directly related to
the CF member’s relocation but are either an exceptional circumstance or are
not clearly provided for in this policy.
Director of Compensation and
Benefits Administration (DCBA), has authority to:
• approve
reimbursement of all or part of the expenses reasonably incurred that are
directly related to the CF member’s relocation but are not specifically
provided for in this policy.
Director Relocation Business Management
(DRBM) has the authority to:
• approve reimbursement or
recovery of all or part of the expenses reasonably incurred that are directly
related to the CF Member’s relocation that are provided for in this policy or
as authorized by TBS or DCBA.
Base Commanders (BComd) or the Base
Administration Officers
(BAdmO) have the authority to:
• render decisions on
entitlements specified within the CFIRP policy.
[10]
Assigned
responsibilities include:
DCBA is responsible for:
• monitoring the
administration of the CFIRP; and
• proposing changes to the
policy to Treasury Board Secretariat (TBS) as required.
BComd/BAdmOs are responsible
to:
• ensure validated
information and supporting documentation is provided to CF members for their
transmission to the service provider to ensure proper reimbursement.
Service provider is
responsible for assisting CF members by providing:
• program information in
an understandable format;
• qualified assistance for
each step of their move; and
• the appropriate
references regarding payment of relocation expenses.
Base CF Relocation
Coordinators are responsible for:
• providing guidance to CF
members regarding any policy clarification and liaise with the service provider
on relocation issues; and
• considering requests for
reimbursement that fall within the intent of the policy and when necessary
forward requests to approving authority.
CF members are responsible
for:
• contacting the service
provider within 21 days after receiving their posting instruction;
• requesting confirmation
in writing of the information given by the service provider;
• forwarding to the CF
Relocation Coordinator requests for adjudication; understanding their
relocation benefits, conditions, and limitations as expenses, resulting from
misinterpretation or mistakes will not necessarily be reimbursable;
• considering the
information provided, asking for additional clarification, and making timely
decisions regarding benefits; and
• ensuring a door-to-door
move, by coordinating the:
• disposal
of accommodation,
• acquisition
of accommodation,
• occupancy
date of new accommodation,
• report
for duty date,
• shipment
of HG&E, and
• travel
to new location.
[11]
Under
Chapter 14, section 14.1.02 of the Relocation Directive, APS 2008, a CF member
was given three years after their release date to complete a move to an IPR as
follows:
In all circumstances, the overall maximum
three-year period after the release date, including the election and the
exercising of all IPR election benefits (including actual completion of the
move), cannot be exceeded except in exceptional circumstances with DCBA
approval.
[12]
In
Relocation Directive APS 2009, however, the timeframe to claim relocation
benefits was shortened to two years after the release date. It provides:
DCBA may exercise Ministerial
authority to extend the two year time limitation for a period of up to one year
when factors beyond CF members control prevent them from electing their IPR and
completing their move to IPR.
[13]
CF
IRP 2009 Clarification Bulletin 3 made clear that this new timeframe in
Relocation Direction, APS 2009 would be grandfathered in by stating:
CF members whose effective date of release
is between 1 Apr 00 and 31 Mar 09 and whose entitlement has not expired
shall remain entitled to fully exercise their IPR move within three years of
their release date.
[14]
Since
the Applicant’s release date was in August 2008, the Respondent admits that the
three-year timeframe and possibility of an extension in exceptional
circumstances established under Relocation Directive, APS 2008 applies to the
Applicant.
[15]
Also
relevant is section 1.3.02 of the Relocation Directive. APS 2008 that allows CF
members to seek recourse for relocation benefits:
Requests may be submitted to DCBA through
the CF Relocation Coordinator when CF members:
• have incurred reasonable
expenses resulting from exceptional circumstances or demands not covered by the
relocation policy and require Treasury Board Secretariat (TBS) authority; or
• do not agree with the
application or the interpretation of the CFIRP policy by the service provider.
All requests shall include the
following information:
• a written
description of the decision/situation that generated the request and all
supporting facts known to the CF member;
• the rationale supporting
the request, with a clear statement of the full benefits sought; i.e. what
benefits the CF member feels he/she should be entitled to; and
• all pertinent supporting
documents such as invoices, medical statements, Relocation Consultant’s
statements, reports, etc.
III. Issues
[16]
The
Applicant initially raised the following issues for consideration:
·
Did
the CDS breach the requirements of the duty of procedural fairness?
·
Did
the CDS err in not referring the Applicant’s request to the TBS for a ruling?
·
Which
year of the CF IRP Directive applies to the Applicant?
·
Did
the CDS err in interpreting that the extension of time provision did not exist?
·
Was
the decision of the CDS to deny the Applicant’s request reasonable?
[17]
Given
the Respondent’s position that the decision of the CDS should be quashed,
however, only two issues related to the appropriate remedy remain before this
Court:
(a) Assuming
the Applicant’s matter is sent back for re-determination, who is the relevant
decision-maker?
(b) Should a directed verdict be
issued in this instance?
IV. Analysis
[18]
The
Applicant requested that the matter be referred back to the CDS. He also asked
this Court to be specific in its reasons and perhaps even make a ruling that
his situation constituted “exceptional circumstances” under section 14.1.02 of
the Relocation Directive, APS 2008 and warranted an extension of time. He
insists that this specificity is required because he has concerns, based on
remarks made by Lieutenant Colonel Jones with the Director of Compensation and Benefits
Administration (DCBA) that there would be a reasonable apprehension of bias.
[19]
It
is clear to the Court that the remarks made by Lieutenant Colonel Jones were
ill-advised, unprofessional and reflect poorly upon both him and the CF.
[20]
Despite
the Applicant’s concerns, however, this Court “has no power to substitute its
view of the facts for that of the decision-maker, or to make independent
findings of fact where the decision-maker made none” (Callaghan v Canada (Chief
Electoral Officer), 2011 FCA 74, [2011] FCJ no 199 at para
124). Similarly, Canada (Minister of Human
Resources Development) v Rafuse, 2002 FCA 31, [2002] FCJ no 91 at paras
13-14, stressed that “the role of the Court with respect to a tribunal’s
findings of fact is strictly circumscribed.” As regards the notion of a directed
verdict, Rafuse elaborated:
[14] While the directions that the
Court may issue when setting aside a tribunal's decision include directions in
the nature of a directed verdict, this is an exceptional power that should be
exercised only in the clearest of circumstances: Xie, supra, at
paragraph 18. Such will rarely be the case when the issue in dispute is
essentially factual in nature (Ali v. Canada (Minister of Employment and
Immigration), [1994] 3 F.C. 73 (T.D.)), particularly when, as here, the
tribunal has not made the relevant finding.
[21]
A
determination as to whether the Applicant’s situation constitutes “exceptional
circumstances” for an extension of time is highly discretionary and fact-based.
This Court would therefore not be justified in exercising the exceptional
power of a directed verdict.
[22]
I
must also agree with the Respondent that the appropriate decision-maker in this
instance is the DCBA as opposed to the CDS. The responsibility for
administrative decision-making related to relocation benefits is delegated by
way of section 14.1.02 of the Relocation Direction, APS 2008. The DCBA can
approve a request to exceed the three-year period after the release date in
“exceptional circumstances.” This decision has yet to be raised directly with
or made by the DCBA.
[23]
The
possibility of an extension for the Applicant must therefore be duly considered
by the DCBA before any additional steps are taken by the CDS or this Court. It
is worth noting that the Applicant could have proceeded in this manner from the
outset.
V. Conclusion
[24]
For
these reasons, the application for judicial review is allowed and the decision
of the CDS is quashed. The issue of the Applicant’s entitlement to an
extension for relocation benefits based on “exceptional circumstances” is
referred back to the appropriate decision-maker, the DCBA, for
re-determination.
[25]
The
Court finds that pursuant to the APS 2008 Relocation Directive there is no time
limit imposed as to the possible length of such an extension.
[26]
There
will be no order as to costs.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for
judicial review is allowed and the decision of the Chief of Defence Staff is
quashed. The issue of the Applicant’s entitlement to an extension for
relocation benefits based on “exceptional circumstances” is referred back to
the appropriate decision-maker, the Director of Compensation and Benefits
Administration. The Court finds that pursuant to the APS 2008 Relocation
Directive there is no time limit imposed as to the possible length of such an
extension. There is no order as to costs.
“ D.
G. Near ”