Date: 20110128
Docket: T-1633-09
Citation: 2011 FC
100
Ottawa, Ontario,
January 28, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
MIHAI CODRIN
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 18.1(4)(a) of the Federal
Courts Act, R.S., 1985, c. F-7, of a decision of the Chief of Defence Staff
(CDS), dated August 17, 2008, wherein the CDS denied the redress sought by the
applicant.
[2]
The
applicant requests:
1. An order quashing
the decision of the CDS;
2. An order compelling
the Canadian Forces (CF) to grant the applicant the pay rates and retroactive
commissioning as detailed in the enrolment message;
3. An order requiring
the respondent to reimburse the applicant for costs; and
4. Such further and
other order(s) as to this Honourable Court may seem just.
Background
[3]
Mihai
Alexandru Codrin (the applicant) joined the Canadian Armed Forces on December 19,
2006, as an officer cadet under the Continuing Education Officer Training Plan
(CEOTP).
[4]
The
applicant alleges that he was told by a military career counsellor that upon
completion of the Basic Officer Training Program (BOTP), he would receive a
retroactive promotion to second lieutenant and would be paid at the rate found
at Table B, Level C of the Compensation Benefits Instruction (CBI), retroactive
pay to the date of enrolment minus leave without pay (LWOP). He further alleges
that this was confirmed by the recruiting centre staff on his enrolment day.
[5]
On
October 24, 2006, the Canadian Forces Recruiting Group Headquarters (CFRGHQ)
issued a conditional offer of enrolment (COE) message. The COE offered that the
applicant would be enrolled in the Canadian Forces Regular Force under the
CEOTP. It further offered that the applicant would be:
- paid at
the rate of Table A, Level D of the CBI 204.211(10)(b);
- enrolled
in the rank of officer cadet; and
- commissioned
in the rank of second lieutenant upon completion of the BOTP.
[6]
On
November 8, 2006, the Canadian Forces Recruiting Centre in Toronto (CFRC
Toronto) advised the CFRGHQ that the applicant had accepted the October 24,
2006 offer.
[7]
On
December 19, 2006, the CFRC Toronto issued an enrolment of transfer posting instruction
(the enrolment message) that authorized the applicant to be enrolled under the
CEOTP and to be:
1. commissioned in the
rank of second lieutenant upon successful completion of the BOTP retroactive to
the date of his enrolment less LWOP; and
2. paid in accordance
with CBI 204.211 Table B, Level C.
[8]
The
CEOTP is an officer entry plan for individuals who do not possess a university
degree, but who are otherwise suitable candidates for officers and who commit
to obtaining a degree. The Direct Entry Officer Plan (DEOP) is for individuals
who already possess a degree on entry as officers into the CF. The rate of pay
for officers in the rank of second lieutenant with no former non-commissioned
service, who enter through the CEOTP is different to those who enter through
the DEOP. The rate for the DEOP is set out in Table B, Level C and for the
CEOTP at Table B, Level B.
[9]
The
applicant did not possess a university degree when he entered the CF.
[10]
On
August 2, 2007, the applicant was commissioned as a second lieutenant.
[11]
The
enrolment message was amended four times. The final amendment, on August 29,
2007, cancelled the first three and authorized the following amendment to the
original enrolment message:
1. upon successful
completion of the BOTP, the applicant was to be commissioned in the rank of second
lieutenant;
2. the applicant would
be paid in accordance with CBI 204.211(7)(b) Table A, Level B; and
3. the applicant would
enter the promotion zone to lieutenant one year after the date on which he was
commissioned at the rank of second lieutenant.
[12]
In
August 2007, the applicant received a message from the CF stating that the
original enrolment message offer had been amended and his pay rate would be
adjusted to Table B, Level B.
[13]
On
September 4, 2007, the applicant filed a Canadian Forces grievance (the
grievance) pursuant to subsection 29(1) of the National Defence Act, R.S., 1985, c. N-5. He requested a change
in his current pay level to what was indicated in his enrolment message and a
retroactive commission to the date of enrolment minus LWOP.
[14]
The
initial authority was unable to determine the grievance within the time limit
and forwarded the grievance to the CDS on September 28, 2007.
[15]
On
November 7, 2007, the grievance was forwarded to the Canadian Forces Grievance
Board (CFGB). The CFGB provided the CDS its findings and recommendations on
September 26, 2008.
[16]
On
August 17, 2009, the CDS released its decision denying the applicant the
redress of the grievance.
CDS’s Decision
[17]
The
CDS denied the applicant the redress requested in the grievance.
[18]
The
CDS found that the December 16, 2006 enrolment message, which indicated the pay
table and level for the applicant and stated that the applicant’s commission as
second lieutenant would be retroactive to his enrolment date, was not
consistent with CEOTP policy. The CDS noted that the CBI 204.211(7)(b) states
that an officer cadet with no former non-commissioned member service, such as
the applicant, should be paid at the rate found in Table A, Level B. As well,
the Assistant Deputy Minister (Human Resources-Military) Instruction 09/05
states that candidates enrolled in the CEOTP will be at the rank of officer cadet
until they complete the BOTP. It does not mention retroactive commissioning.
[19]
The
CDS noted that the enrolment message contained an error and stated that this
was the reason for the amendment to the enrolment message.
[20]
The
CDS found that he did not have the authority to change the rate of pay for the
applicant, as CF pay rates and conditions are set by the Treasury Board and
listed in the CBI.
[21]
The
CDS further decided that he would not grant the retroactive pay to the
applicant’s enrolment date as this would treat the applicant in an advantageous
manner compared with his CEOTP peers.
[22]
The
CDS found that he did not have the authority to settle the claim of negligent
misrepresentation because he did not have the authority to accept liability on
behalf of the Crown for a loss or damage arising out of, or occasioned by, the
performance of service duties by CF members. He directed the applicant to
contact the Director of Claims and Civil Litigation if he wished to pursue the
claim for negligent misrepresentation.
[23]
The
CDS further found that he did not have the authority to determine any purported
breach of contract or labour law in respect of the grievance because members of
the CF Regular Force serve at pleasure and there is no employment contract
between a member and the Crown.
[24]
The
CDS then addressed the concern raised by the CFGB that there is a systemic
issue of misleading information given to enrolees in the CF. The CDS accepted
some of the recommendations and rejected others. While these relate to a
potential problem of misinformation in the CF recruitment process, the CDS
stated that they did not have an impact on his consideration and determination
of the redress of the grievance and they were provided to the applicant only to
illustrate what actions have and will be taken.
[25]
Ultimately,
the CDS declined to grant the redress sought by the applicant.
Issues
[26]
The
applicant submitted the following issues for consideration in his written
submissions:
1. Whether the CDS
acted without authority in rendering its decision?
2. Whether the CDS made
the subject decision with a bias, violating the principle of natural justice?
3. Whether the CDS has
partially denied the applicant the right to be fairly heard, violating a
principle of natural justice?
4. Whether the CDS has
ignored evidence supporting a claim of negligent misrepresentation?
5. Whether the CF has
any obligation towards members once they are enrolled?
6. Whether the CF
should be allowed to unilaterally modify an applicant’s offered pay and
entitlements after the applicant accepted and enrolled?
[27]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the CDS act
within his jurisdiction in denying the redress of the grievance?
3. Was the applicant
denied procedural fairness due to a lack of impartiality on the part of the CDS
or was he denied the right to be heard?
4. Did the CDS err in
declining to consider the applicant’s claim against the Crown for negligent
misrepresentation?
5. Did the CDS err in
declining to address any contractual obligation on the part of the CF?
6. Did the CDS err in
refusing to pay the applicant at the rate described in his enrolment message?
7. Did the CDS err in
refusing to retroactively commission the applicant to the rank of second lieutenant?
Applicant’s Written Submissions
[28]
The
applicant submits that the CDS was biased when he rendered his decision because
the CDS has a duty to ensure that all CF members of the same rank are treated
uniformly. As such, the CDS could not assess the applicant’s grievance in a
neutral manner because the grievance requested redress which would set the
applicant apart from other CF members of his rank. The applicant submits that
the CDS’ partiality is demonstrated by the assertion that the CDS would not
grant the retroactive promotion because that would require the CDS to treat the
applicant “in an advantageous manner compared to [his] CEOTP peers.” The
applicant submits that the CDS failed to consider all of the evidence
supporting the grievance, due to this bias.
[29]
The
applicant submits that his contentions regarding the negligent
misrepresentation against the Crown were not answered by the CDS.
[30]
The
applicant submits that the CF has obligations towards CF members which include
the obligation to pay members and to provide medical care.
[31]
The
applicant submits that the CDS erred by refusing to allow the retroactive
promotion and refusing to change the pay rate to that which was indicated in
his enrolment message.
Respondent’s Written Submissions
[32]
The
respondent submits that the issues of jurisdiction and procedural fairness
should be reviewed on the correctness standard. All other issues should be
reviewed on the standard of reasonableness. This includes the question about
whether the CDS should consider the claim of negligent misrepresentation since
the CDS was interpreting its home statute and is an expert decision-maker. This
also includes the question of whether there is a contractual obligation between
the Crown and CF members because there is a privative clause and the CDS has
special expertise over the administrative regime considered.
[33]
The
respondent submits that the CDS acted at all times within his jurisdiction in
deciding to deny the redress of the grievance. He complied with the grievance
process outlined in the National Defence Act and the Queen's Regulations
and Orders for the Canadian Forces (QR&O). He submitted the grievance to
the CFGB, he acted as a final authority in deciding the grievance and he
considered and determined the grievance and advised the applicant in writing of
his decision and reasons.
[34]
The
respondent submits that the standard of the duty of impartiality imposed on the
CDS is the closed mind test. The respondent submits that the CDS met this
standard by complying with the grievance process. The CDS made himself aware of
the applicant’s view of the facts and his position. The CDS was also aware of
the findings and recommendations of the CFGB. The CDS did not exhibit bias by
declining to treat the applicant differently than other COETP recruits.
[35]
The
respondent submits that the applicant’s right to be heard was respected at all
times and is demonstrated through the various opportunities that the applicant
was given to explain his position.
[36]
The
respondent submits that the CDS acted properly by declining to consider the
applicant’s claim against the Crown for negligent misrepresentation. The CDS
interpreted article 19.41 of the QR&O a regulation promulgated under the National
Defence Act. His interpretation of this article – that he does not have the
authority to settle potential claims against the Crown – was transparent and
intelligible and fell within a range of possible acceptable outcomes.
[37]
The
respondent submits that the jurisprudence is clear that there is no contractual
relation between CF members and the Crown. The CDS’ interpretation of the
common law was within his particular expertise, was a reasonable interpretation
and was, in fact, correct in law.
[38]
The
respondent submits that the CDS’ decision to refuse to change the pay rate of
the applicant was reasonable. The pay rates for CF members in the CEOTP are set
by the Treasury Board pursuant to statue. The CDS is not given any discretion
by statute to adjust this pay rate. The CDS provided these reasons to the
applicant in his reasons for decision.
[39]
The
respondent submits that the CDS did not err in refusing to exercise his
discretion to promote the applicant. Under the CEOTP, candidates who hold the
rank of officer cadet are not ordinarily retroactively commissioned into the
rank of second lieutenant. The CDS chose not to promote the applicant because
to do so would be to treat him differently from other CEOTP peers. This use of
his discretion was justified, transparent and intelligible within the CF
grievance decision-making process. It falls within the range of possible
acceptable outcomes.
Analysis and Decision
[40]
Issue
1
What is the appropriate
standard of review?
The existence
of a reasonable apprehension of bias would result in a breach of natural
justice or procedural fairness. No deference is required in evaluating
procedural fairness and the fairness of the decision will be reviewed on the
standard of correctness (see Armstrong v. Canada (Attorney
General),
2006 FC 505, 291 F.T.R. 49 at paragraph 32. Questions of true jurisdiction, or vires,
will also be reviewed on the correctness standard (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] S.C.R. 190 at paragraph 59).
[41]
The
questions of whether the CDS can accept liability for any alleged negligent
misrepresentation of the Crown and whether members of the CF are in a
contractual relationship with the Crown are both questions of law. While,
typically, questions of law are reviewed on the standard of correctness, in
this case, the standard of reasonableness should apply.
[42]
For
the question of negligent misrepresentation, the CDS was interpreting its home
statute, the National Defence Act. The Supreme Court held in Dunsmuir
above, that “[d]eference will usually result where a tribunal is interpreting
its own statute or statutes closely connected to its function, with which it
will have particular familiarity . . .” (at paragraph 54). In addition, where
the decision-maker had special expertise regarding the discrete administrative
regime, such as in the CF grievance process, then defence should apply (at
paragraph 55). As such, the decision should be reviewed on the standard of
reasonableness.
[43]
For
the question of the contractual relationship between the Crown and CF members,
the CDS was applying the common law. The Supreme Court held in Dunsmuir
above, that where there is a privative clause, as there is here, and where the
question of law is within the specialized area of expertise of the
decision-maker, such as the relationship between the CF and the Crown, then
deference should apply (at paragraph 55).
[44]
The
issues of changing the applicant’s pay rate and denying him the retroactive
promotion are issues of mixed fact and law and should be reviewed on the
standard of reasonableness. In addition, the CDS is granted discretion by the National
Defence Act which he used in denying the retroactive promotion of the
applicant. As such, a certain level of deference is required (see Hudon c. Canada, 2009 FC
1092, 364 F.T.R. 49 at paragraph 15).
[45]
On
the standard of reasonableness, this Court should only intervene if the
decisions of the CDS are outside “a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” or the decision-making
process lacks justification, transparency and intelligibility (see Dunsmuir
above, at paragraph 47).
[46]
Issue
2
Did the CDS act within his
jurisdiction in denying the redress of the grievance?
The CDS acted
within his statutory and regulatory jurisdiction when considering and denying
the redress of the grievance. The CF grievance process is determined by the National
Defence Act, the QR&O and the CF “Grievance Manual”. The CDS is
required by section 29.12 of the National Defence Act and article
7.12(1)(a) of the QR&O to refer grievances regarding pay to the
CFGB, which he did. Further, according to subsections 29.12(1) and 29.13(1) of
the National Defence Act, the CDS is not bound by the findings of the
CFGB. The CDS is required to act as the final authority on grievances of this
nature as stipulated in subsection 29.14(a) of the National Defence Act
and he must provide his determination and reasons in writing to the griever as
noted in QR&O article 7.14(1). The CDS acted as the final authority when he
considered and concurred, in part, with the findings and recommendations of the
CFGB and issued his decision and reasons in writing to the applicant. He did
not act outside of his jurisdiction in denying the redress of the grievance.
[47]
Issue
3
Was the applicant denied
procedural fairness due to a lack of impartiality on the part of the CDS or was
he denied the right to be heard?
The Supreme Court of Canada
held in Cie
pétrolière Impériale c. Québec (Tribunal Administratif), 2003 SCC 58, [2003] 2 S.C.R. 624 at paragraph 31, that the content
of the duty of impartiality will vary with the functions of the decision-maker
and the nature of the question being decided. The duty varies between the
higher test of reasonable apprehension of bias for those bodies which act in an
adjudicative manner similar to that of courts and the lower closed mind test
for those bodies which:
…perform multiple tasks and whose
adjudicative functions are merely one aspect of broad duties and powers that
sometimes include regulation-making power. The notion of administrative
decision-maker also includes administrative managers, such as ministers or
officials who perform policy-making discretionary functions within the
apparatus of government.
[48] This content of the
duty of impartiality is determined by evaluating the body of legislation that
defines the functions of the decision-maker as well as the framework in which
he or she carries out those functions (see Pelletier c. Canada, 2008 FCA
1, [2008] 3 F.C.R. 40 at paragraph 49).
[49]
The
duties of the CDS, outlined in section 18 of the National Defence Act,
include the control and administration of the CF and issuing orders and
instructions to the CF to give effect to the decisions and carry out the
directions of the Government of Canada.
[50]
There
is a complete grievance process for the CF of which the CDS is the final
authority for matters that must be referred to the CFGB under section 29.14 of
the National Defence Act.
[51]
The
duties imposed on the CDS by the legislation including the National Defence
Act and the QR&O are broad and include more than the judicial or
quasi-judicial court-like functions of some administrative decision-makers. As
such, the CDS is held to the lower standard of the duty of impartiality – that
of the closed mind.
[52]
The
Supreme Court of Canada said of the closed mind test in Old St. Boniface
Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, [1990]
S.C.J. No. 137 (QL) at paragraph 94:
The party alleging disqualifying bias
must establish that there is a prejudgment of the matter, in fact, to the
extent that any representations at variance with the view, which has been
adopted, would be futile. […] In this regard it is important to keep in mind
that support in favour of a measure before a committee and a vote in favour
will not constitute disqualifying bias in the absence of some indication that
the position taken is incapable of change.
[53]
The
CDS referred to and considered the comments made by the applicant to the CFGB
during its investigative stage and the applicant’s comments on its findings and
recommendations. The CDS thus made himself aware of the applicant’s view of
the facts and the applicant’s position. The CDS also referred in his decision
to the findings and recommendations of the CFGB, of which he was clearly aware
and with which he concurred in part. Regardless of any duty the CDS might have
to maintain uniformity between officers, the CDS did not have a closed mind in
deciding the grievance before him and in deciding not to treat the applicant
differently than his peers.
[54]
As
well, I am of the opinion that the applicant’s right to be heard was not breached.
The applicant was given various opportunities to explain his position.
[55]
Issue
4
Did the CDS err in declining
to consider the applicant’s claim against the Crown for negligent
misrepresentation?
The QR&O
are regulations promulgated for the National Defence Act. Article
19.41(1)(b) of the QR&O states that:
(1)
No officer or non-commissioned member shall, without the authority of the
Minister:
(b)
accept liability on behalf of the Crown;
for
a loss or damage arising out of or occasioned by the performance of service
duties by the member or by another.
[56]
The
CDS was interpreting the regulations of his home statute in declining to
address the applicant’s claim of negligent misrepresentation against the Crown.
He further indicated who the applicant could contact if he wished to pursue the
claim. The CDS has expertise and experience in interpreting the QR&O and
his interpretation of the limitations placed on his decision-making by article
19.41(1)(b) was justified, transparent, intelligible and fell within the range
of acceptable outcomes.
[57]
Issue
5
Did the CDS
err in declining to address any contractual obligation on the part of the CF?
The legal principle that a
member of the CF does not have a contractual relationship with the Crown has
been repeated for over a century. The principle first appeared in the
jurisprudence in Mitchell v. R, [1896] 1 Q.B. 121. Lord Esher M.R. held
in that case at page 122:
… all engagements between those in the
military service of the Crown and the Crown are voluntary only on the part of
the Crown, and give no occasion for an action in respect of any alleged
contract.
[58]
This
has been reiterated in more recent jurisprudence in Pilon v. Canada
(1996), 119 F.T.R. 269, [1996] F.C.J. No. 1200, at paragraph 7:
…members of the military serve at the
pleasure of the Queen and do not, therefore, have a contractual relationship
with the Crown.
[59]
The
CDS stated in his decision that he could not make a determination about a
purported breach of contract or violation of labour laws in the grievance
before him because members of the CF are not in a contractual employment
relationship with the Crown. The determination that contract law did not apply
to the grievance was reasonable and correct in law.
[60]
Issue
6
Did the CDS
err in refusing to pay the applicant at the rate described in his enrolment
message?
Subsection
35(1) of the National Defence Act stipulates that the rates of pay for
officers shall be established by the Treasury Board.
[61]
When
the applicant enrolled in the CEOTP, he was determined not to have former
commissioned service. As such, according to CBI 204.211(7)(b), during his time
as an officer cadet, he should have received the rate of pay in Table A, Level
B. As a second lieutenant, according to CBI 204.211(7)(a)(i), he should receive
the rate of pay of Table B, Level B. The applicant was paid at these respective
pay rates as an officer cadet and then as a second lieutenant.
[62]
There
is no discretion granted to the CDS in the National Defence Act or the QR&O
to authorize a pay rate different from those above. The CDS declined to change
the applicant’s rate of pay because he found that there was no provision in a
CBI to waive the criteria or make an exception and he could not override the rate
set by the Treasury Board. This decision was reasonable and correct in law.
[63]
Issue
7
Did the CDS
err in refusing to retroactively commission the applicant to the rank of second
lieutenant?
The promotion of an officer from
officer cadet to second lieutenant is a discretionary decision of the CDS.
Section 28 of the National Defence Act stipulates that officers may be
promoted by the Minister or such authorities as prescribed by the Regulations. Promotion
to any rank lower than brigadier-general requires the approval of the CDS according
to QR&O article 11.01(2).
[64]
No
officer shall be promoted to a higher rank unless there is an appropriate
vacancy in the total establishment for the member’s component, the member is
recommended by the appropriate authority and the member meets such promotion
standards and such other conditions as the CDS may prescribe. However, QR&O
article 11.02(2) states that “…in any given circumstance, the Chief of Defence
Staff may direct that the requirement to meet any promotion standards be
waived.”
[65]
The
applicant met the basic requirement of entry into the CF under the CEOTP. He was
not granted a higher rank, incentive pay category or time counting for
promotion in recognition of previous service or training. As such, he was
promoted to second lieutenant upon completing his BOTP, which was the normal
course of commissioning.
[66]
The
CDS declined to use his discretion to waive the promotion standards and
retroactively promote the applicant. His stated reason for declining to do so
was that he did not want to treat the applicant in an advantageous manner
compared to his CEOTP peers whose effective commissioning dates have been
granted in accordance with the applicable policies.
[67]
The
use of discretion in this context requires a level of deference from the Court.
The decision of the CDS was justified, transparent and intelligible and falls
within the range of acceptable possible outcomes and the court should not
interfere with this use of discretion.
[68]
While
it is unfortunate that the applicant believed that he was joining the CF under
different terms than those which he now receives, he has not shown that the
decision made by the CDS was unreasonable or incorrect in law. As such, the
judicial review should be dismissed.
[69]
The
respondent has requested costs. Because of the facts that gave rise to this
application, I am not prepared to make an award of costs. The case resulted
from incorrect information being given to the applicant.
JUDGMENT
[70]
IT IS
ORDERED that:
1. The application for judicial
review is dismissed.
2. There shall be no award of costs.
“John A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Federal Courts Act, R.S., 1985, c. F-7
|
18.1(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
(a) acted
without jurisdiction, acted beyond its jurisdiction or refused to exercise
its jurisdiction;
|
18.1(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le cas :
a) a agi sans
compétence, outrepassé celle-ci ou refusé de l’exercer;
|
National Defence Act, R.S., 1985, c. N-5
|
18.(1) The Governor in Council may appoint
an officer to be the Chief of the Defence Staff, who shall hold such rank as
the Governor in Council may prescribe and who shall, subject to the
regulations and under the direction of the Minister, be charged with the
control and administration of the Canadian Forces.
(2) Unless the
Governor in Council otherwise directs, all orders and instructions to the
Canadian Forces that are required to give effect to the decisions and to
carry out the directions of the Government of Canada or the Minister shall be
issued by or through the Chief of the Defence Staff.
28. Subject to
section 22 and to regulations, officers and non-commissioned members may be
promoted by the Minister or by such authorities of the Canadian Forces as are
prescribed in regulations made by the Governor in Council.
29.(1) An
officer or non-commissioned member who has been aggrieved by any decision,
act or omission in the administration of the affairs of the Canadian Forces
for which no other process for redress is provided under this Act is entitled
to submit a grievance.
29.12(1) The Chief of the Defence Staff
shall refer every grievance that is of a type prescribed in regulations made
by the Governor in Council to the Grievance Board for its findings and
recommendations before the Chief of the Defence Staff considers and
determines the grievance. The Chief of the Defence Staff may refer any other
grievance to the Grievance Board.
29.14 The Chief of the Defence Staff may
delegate to any officer any of the Chief of the Defence Staff’s powers,
duties or functions as final authority in the grievance process, except
(a) the duty
to act as final authority in respect of a grievance that must be referred to
the Grievance Board; and
(b) the power
to delegate under this section.
35.(1) The
rates and conditions of issue of pay of officers and non-commissioned
members, other than military judges, shall be established by the Treasury
Board.
|
18.(1)
Le gouverneur en conseil peut élever au poste de chef d’état-major de la
défense un officier dont il fixe le grade. Sous l’autorité du ministre et sous réserve des
règlements, cet officier assure la direction et la gestion des Forces
canadiennes.
(2)
Sauf ordre contraire du gouverneur en conseil, tous les ordres et directives
adressés aux Forces canadiennes pour donner effet aux décisions et
instructions du gouvernement fédéral ou du ministre émanent, directement ou
indirectement, du chef d’état-major de la défense.
28.
Sous réserve de l’article 22 et des règlements, les officiers et militaires
du rang peuvent être promus par le ministre ou les autorités des Forces
canadiennes désignées par règlement du gouverneur en conseil.
29.(1) Tout officier ou
militaire du rang qui s’estime lésé par une décision, un acte ou une omission
dans les affaires des Forces canadiennes a le droit de déposer un grief dans
le cas où aucun autre recours de réparation ne lui est ouvert sous le régime
de la présente loi.
29.12(1)
Avant d’étudier un grief d’une catégorie prévue par règlement du gouverneur
en conseil, le chef d’état-major de la défense le soumet au Comité des griefs
pour que celui-ci lui formule ses conclusions et recommandations. Il peut également renvoyer tout autre
grief devant le Comité.
29.14
Le chef d’état-major de la défense peut déléguer à tout officier le pouvoir
de décision définitive que lui confère l’article 29.11, sauf pour les griefs
qui doivent être soumis au Comité des griefs; il ne peut toutefois déléguer
le pouvoir de délégation que lui confère le présent article.
35.(1)
Les taux et conditions de versement de la solde des officiers et militaires
du rang, autres que les juges militaires, sont établis par le Conseil du
Trésor.
|
Queen’s
Regulations and Orders for the Canadian Forces
|
7.12 –
REFERRAL TO GRIEVANCE BOARD
(1) The Chief
of the Defence Staff shall refer to the Grievance Board any grievance
relating to the following matters:
(a)
administrative action resulting in the forfeiture of, or deductions from, pay
and allowances, reversion to a lower rank or release from the Canadian
Forces;
11.01 –
AUTHORITY FOR PROMOTION
(1) The
promotion of an officer to the rank of brigadier-general or to any higher
rank requires the approval of the Minister on the recommendation of the Chief
of the Defence Staff.
(2) The
promotion of a member to any rank lower than that of brigadier-general
requires the approval of the Chief of the Defence Staff, except that the:
(a) promotion
of a member to any rank lower than that of colonel may be approved by such
officer as the Chief of the Defence Staff may designate; and
(b) promotion
of an officer of the Reserve Force to the rank of colonel or
lieutenant-colonel may be approved by such officer as the Chief of the
Defence Staff may designate.
19.41 –
ADMISSION AND ACCEPTANCE OF LIABILITY
(1) No
officer or non-commissioned member shall, without the authority of the
Minister:
. . .
(b) accept
liability on behalf of the Crown;
for a loss or
damage arising out of or occasioned by the performance of service duties by
the member or by another.
|
7.12
– RENVOI DEVANT LE COMITÉ DES GRIEFS
(1) Le chef
d’état-major de la défense renvoie au Comité des griefs tout grief qui a
trait aux questions suivantes :
a)
les mesures administratives qui émanent de la suppression ou des déductions
de solde et d’indemnités, du retour à un grade inférieur ou de la libération
des Forces canadiennes;
11.01 –
AUTORISATION DE PROMOTION
(1) La
promotion d’un officier au grade de brigadier-général ou à tout grade
supérieur est subordonnée à l’approbation du ministre sur recommandation du
chef d’état-major de la défense.
(2) La
promotion d’un militaire à un grade inférieur à celui de brigadier-général
exige l’approbation du chef d’état-major de la défense, sauf que :
a)
la promotion d’un militaire à un grade inférieur à celui de colonel peut être
approuvée par un officier désigné à cette fin par le chef d’état-major de la
défense;
b)
la promotion d’un officier de la force de réserve au grade de colonel ou de
lieutenant-colonel peut être approuvée par un officier désigné à cette fin
par le chef d’état-major de la défense.
19.41 – AVEU
OU ACCEPTATION DE RESPONSABILITÉ
(1)
Sauf avec l’autorisation du ministre, aucun officier ou militaire du rang ne
doit, à l’égard d’une perte ou d’un dommage découlant de l’exécution de
fonctions militaires par lui ou par un autre :
. . .
b)
accepter de responsabilité au nom de l’État.
|
Director
General Compensation Directives – Compensation Benefits Instruction – Chapter
204
|
204.211(7)
(Rate of pay – CEOTP)
An officer to
whom the CEOTP applies shall be paid, for each month after the month and year
specified in the table, at the rate of pay for the officer’s rank and pay
increment as follows:
1. for an
officer in the rank of lieutenant or second lieutenant
1. with no
former non-commissioned member service, in pay level B of Table "B"
or "C" to this instruction, or
. . .
2. in the rank
of officer cadet with no former non-commissioned member service, in pay level
B of Table "A" to this instruction.
204.211(10)
(Officer Cadet – former non-commissioned member)
An officer
cadet who is appointed directly to that rank from a non-commissioned rank
shall be paid:
(a) if the
member was a non-commissioned member of the Regular Force, at the rate of pay
which, including any upward adjustments to the rates of pay determined under
subparagraphs (i) and (ii) that may be established from time to time, and any
upward adjustments resulting from the reallocation of the last military
occupation in which the member served as a non-commissioned member to a
higher trade group, is the greater of the rate of pay established for:
(i) the rank,
pay increment, pay level and trade group held on the day immediately prior to
the date of appointment to the rank of officer cadet, or
(ii) any
higher pay increment to which the member would have become entitled had the
member remained in the former rank, pay level and trade group as a
non-commissioned member; and
(b) if the
member was a former Regular Force member who re-enrolled or a member who
transferred from the Reserve Force to the Regular Force, at the rate of pay,
including any upward adjustments to the rates of pay, in CBI 204.30 (Pay –
Non-commissioned members) for:
(i) the rank,
pay level and trade group that they would have received had they enrolled
directly as a non-commissioned member as determined in orders or instructions
issued by the Chief of the Defence Staff, at the pay increment determined by
CBI 204.015 (Pay Increments); or
(ii) any
higher pay increment to which the officer would have become entitled under
CBI 204.015 (Pay Increments) had the officer remained in the former rank, pay
level and trade group as a non-commissioned member.
|
204.211(7)
(Taux de solde – PFOEP)
L’officier
qui participe au PFOEP est rémunéré, pour chaque mois postérieur au mois et à
l’année précisés au tableau, au taux de solde établi pour son grade et son
échelon de solde de la façon suivante :
1. dans
le cas de l’officier au grade de lieutenant ou de sous-lieutenant :
1. au niveau de solde B visé au Tableau B ou C de la présente directive, s’il
n’a effectué aucun service antérieur à titre de militaire du rang,
. .
.
2. dans
le cas de celui qui détient le grade d’élève-officier et qui n’a effectué
aucun service antérieur à titre de militaire du rang, au niveau de solde B
visé au Tableau A de la présente directive.
204.211(10)
(Élève-officier – ancien militaire du rang)
L’élève-officier
qui est nommé directement à ce grade à partir du grade de militaire du rang
est rémunéré comme suit :
a) s’il
était un militaire du rang de la Force régulière, au taux de solde le plus
élevé des taux suivants, y compris toute augmentation aux taux de solde
prévue en vertu des sous-alinéas i) et ii) qui peut être établie de temps à
autre pour ce taux, ainsi que toute augmentation qui résulte de la
réaffectation au poste antérieur dans lequel il servait comme militaire du
rang dans un groupe de spécialité supérieur :
i) le
taux de solde établi pour le grade, l’échelon de solde, le niveau de solde et
le groupe de spécialité qui lui étaient applicables le jour précédant
immédiatement le jour de sa nomination au grade d’élève-officier,
ii)
le taux de solde établi pour tout échelon de solde supérieur auquel il aurait
eu droit pour son grade, son niveau de solde et son groupe de spécialité,
s’il était demeuré dans son grade de militaire du rang;
(b)
s’il était un ancien membre de la Force régulière qui s’est réenrôlé ou s’il
a été transféré de la Force de réserve à la Force régulière, au taux de
solde, y compris tout augmentation des taux de solde en vertu de la DRAS
204.30 (Solde – militaires du rang), établi comme suit :
ii)
selon le grade, le niveau de solde et le groupe de spécialité établis s’il
s’était enrôlé directement comme militaire du rang, suivant les ordres ou les
directives publiés par le Chef d’état-major de la Défense, à l’échelon de
solde établi en vertu de la DRAS 204.015 (Augmentations d’échelons de solde);
ii)
selon tout autre échelon de solde plus élevé auquel l’officier aurait eu
droit en vertu de la DRAS 204.015 (Augmentations d’échelons de solde) s’il
était resté à son ancien grade, à son ancien niveau de solde et dans son
ancien groupe de spécialité en qualité de militaire du rang.
|
Chief Military
Personnel – Continuing Education Officer Training Plan – CF Military Personnel
Instruction 09/05
|
4.6 Promotion and Career
Under the CEOTP
All candidates enrolled in the CEOTP shall hold the rank
of OCdt/NCdt until completion of basic officer training, unless initially
granted higher rank, Incentive Pay Category, or Time Counting for Promotion
in recognition of previous service or training.
|
4.6 Promotion et carrière
En vertu du PFOEP
Tous les candidats enrôlés dans le PFOEP
auront le grade d'élève-officier (élof)/aspirant marine (aspm) jusqu'à ce
qu'ils aient terminé l'instruction de base des officiers, à moins d'avoir
obtenu initialement un grade supérieur, une catégorie de prime de rendement
(CPR) ou du temps comptant pour de l'avancement en reconnaissance de service
ou d'instruction antérieurs.
|
Email this Content