Date: 19980508
Docket: T-1522-97
| IN THE MATTER OF an Application for Judicial Review, Section 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7 |
|
| AND IN THE MATTER OF a decision of the Minister of National Defence dated September 19, 1994 |
|
BETWEEN:
CHRISTOPHER B. COTTLE
Applicant
- and -
THE HONOURABLE DOUG YOUNG, MINISTER OF NATIONAL DEFENCE,
CHIEF OF DEFENCE STAFF and THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant maintains that his period of service in the Canadian Forces was an intermediate engagement and that he never consented to any other term of service when he became a Specialist Officer-Dental. The respondents' position is that the applicant, like all officers who chose prior to 1988 to pursue a career as a dentist while in the Canadian Forces, served under an indefinite period of service. The applicant seeks judicial review of the decision denying his request for redress of grievance concerning his term or period of service. He has since obtained his voluntary release. This dispute affects directly the amount of the applicant's annuity.
Background
[2] The chronology of events is set out in the affidavits and supporting documents of the applicant and a representative of the respondents.1
[3] The applicant was born on December 17, 1953.
[4] On August 28, 1970, the applicant enrolled as a member of the Canadian Forces under the Regular Officer Training Plan. He graduated from the Collège Militaire Royal in St-Jean, Quebec. Between 1975 and 1982, he served as a naval officer in British Columbia and Nova Scotia.
[5] There are three categories of officers: General Service Officers, Specialist Officers (Specialists) and Officers Commissioned from the Ranks. Prior to his certification as a dentist, the applicant was a General Service Officer. In March 1976, new provisions were adopted for the Officer Career Development Program which was restricted to General Service Officer classifications.
[6] In June 1976, under the new provisions of the Officer Career Development Program, the applicant consented in writing to convert his period of service to a Short Service Engagement. In July 1978, under the same Officer Career Development Program, the applicant consented to the conversion of his period of service to an Intermediate Engagement.2
[7] In March 1982, the applicant's request for training in the Military Dental Training Plan was accepted. Between 1982 and 1986, he pursued his subsidized studies in dentistry at Dalhousie University. The forms signed by the applicant in late 1981 when he requested this dental training will be considered later in these reasons.
[8] The parties agree that upon his becoming qualified as a dentist on May 22, 1986, the applicant's classification as a General Service Officer changed to Specialist Officer. They also acknowledge that the applicant was subject to a five-year term of obligatory service in consideration of his subsidized studies. The applicant was therefore obliged to serve until May 19, 1991.3
[9] The applicant served as a Specialist Officer-Dental until his voluntary release.
[10] As early as April 1984, a discrepancy was noted in the applicant's Personal Record Résumé. A personnel officer remarked that the applicant's term of service was "OCDP-IE expiring 17 December 1993" and that this should be corrected to "unknown". His recommendation was overruled on the grounds that the applicant was in the Military Dental Training Plan and would receive "new terms of service on graduation" in 1985 or 1986. The duration of an Intermediate Engagement was the later of 20 years of consecutive service or 40 years of age. This explains the reference to the applicant's 40th birthday on "17 December 1993".4
[11] In September 1987, a new Specialist Officer Career Development Plan was announced. This complemented the Officer Career Development Plan that had been introduced in 1976 for General Service Officers. According to the respondents, the applicant did not qualify for conversion of his terms of service under the transitional provisions in 1987.
[12] In April 1988, the duration of an Intermediate Engagement was changed to simply "20 years of continuous service". The criteria of "40 years of age" was dropped, apparently to comply with the Canadian Charter of Rights and Freedoms, and was no longer applicable. However, the respondents' material establishes that an officer had to be serving an Intermediate Engagement in the Officer Career Development Program in April 1988 to be eligible for this change during the transitional period.5
[13] During 1988 and 1989, there were communications among personnel staff concerning the applicant's Personnel Record Résumé and the impact of the transitional measures of the September 1987 and April 1988 policy changes on his terms of service. The respondents maintain that a number of administrative errors were made by the personnel department during this process.
[14] On August 6, 1988, a message was sent on behalf of the applicant complaining that his Personal Record Résumé was still shown as "unknown" and adding that he is serving on the same Officer Career Development Program - Intermediate Engagement that he had converted to in May 1978. This complaint was taken under consideration by a person who will be referred to hereinafter as "the personnel officer". On August 29, 1988,6 a colleague of hers, independently and without her knowledge, directed that the applicant's Personal Record Résumé be corrected to show his term of service as Officer Career Development Program - Intermediate Engagement expiring on December 17, 1993.7
[15] On October 31, 1988, the personnel officer, who was unaware of the direction of August 29, 1988, advised that the applicant converted to an Intermediate Engagement in May 1978 as a General Service Officer and that this period of service was "automatically converted to the Specialist Officer terms of service" as they existed in May 1986 when he became a dentist. She also requested that the applicant's Personnel Record Résumé be corrected to reflect this advice. No action was taken on her request.
[16] In this same message of October 31, 1988, the personnel officer also stated that the applicant would be considered under the terms of the recently introduced Specialist Officer Career Development Plan "for conversion to OCDP IE/IPS", a conversion to Intermediate Engagement followed by a confirmed Indefinite Period of Service.8 The personnel officer has deposed that when she made this statement, she was unaware that the applicant's obligatory service (which was to end on May 19, 1991) extended beyond his purported period of Intermediate Engagement (which, since the removal of the age factor, could be as early as August 28, 1990).
[17] On February 1, 1989 the personnel officer offered to convert the applicant's terms of service "to a special indefinite period of service to be effective on completion of intermediate engagement".9 The personnel officer states that this offer of conversion was in error in view of her earlier advice of October 31, 1988 that the applicant was not on Intermediate Engagement. On February 20, 1989, however, the applicant accepted this offer.
[18] In May 1989, the personnel officer recognized her error and oversight concerning the applicant's terms of service. She realized that he was not on Intermediate Engagement and was therefore not eligible for the offer she had forwarded on February 1, 1989.
[19] On June 9, 1989, she confirmed that the applicant was subject to the Specialist's Indefinite Period of Service. In effect, she was stating that her offer of conversion of February 1, 1989 and the applicant's acceptance of February 20, 1989 were of no effect. She also noted that her advice of October 31, 1988 that he would be eligible for "OCDP IE/IPS" was in error because she had failed to consider the impact of his uncompleted period of obligatory service.
[20] On January 10, 1990, the applicant sought redress of grievance, pursuant to section 29 of the National Defence Act,10 concerning his terms of service as expressed in the personnel officer's letter of June 9, 1989.
[21] On April 21, 1991, the Chief of the Defence Staff refused to support the applicant's redress of grievance.
[22] In June 1991, after the completion of the applicant's obligatory service on May 19, 1991, his request for voluntary release was granted with his terminal leave to begin on August 6, 1991. His release became effective on October 11, 1991. At the time of his release, the applicant was a Specialist Officer-Dental with the rank of Major.
[23] On September 9, 1994, after reviewing written representations from the applicant's counsel, the Minister of National Defence confirmed the refusal of the Chief of the Defence Staff to support redress.
[24] As a consequence of the refusal to support the redress of grievance, the applicant has been receiving an annuity of $19,341.54 pursuant to subparagraph 19(1)(c)(i) of the Canadian Forces Superannuation Act,11 30% less than the unreduced annuity of $27,630.83 he claims he should receive pursuant to subsection 17(1) of this Act.12
[25] On June 24, 1997, an order of this Court extended the time period for the filing of this application for judicial review by the applicant who, in 1995, had sought other relief by way of a statement of claim.
The respondents' replies to the redress of grievance
[26] The decision of the Minister of National Defence which is now under judicial review relies on the reply of the Chief of the Defence Staff and is therefore succinct:
| |
Based on my review, I am satisfied that you have been fairly treated, and I do not believe that you have suffered any personal oppression, injustice or other ill-treatment. I have no reason to disagree with the explanation that has been given to you by the former Chief of the Defence Staff, and I therefore do not support redress. |
|
[27] The respondents, both in replying to the redress of grievance and before this Court, rely substantially on Canadian Forces Administrative Order (CFAO) 49-9 (Terms of Service - General Service Officers - Regular Force), paragraph 31, particularly the second sentence:
Transfers
31. An officer may not transfer to any GSO classification unless he consents to the conversion of his period of service to an SSE, SE, IE or IPS, as specified by the authority who may approve such transfer. An officer may not transfer from a GSO classification to a specialist officer classification unless he consents to the conversion of his period of service to an indefinite period of service or such fixed period of service as may be specified by the authority who may approve his transfer.
Reclassements
31. Un officier ne peut être reclassé à une autre classification d'OSG que s'il accepte de convertir sa période de service en un ESCD, un ECD, un ED Int, ou un ED Ind, comme le précisera l'instance autorisée à approuver ce reclassement. Un officier ne peut être reclassé d'une classification d'OSG à une classification de spécialiste que s'il consent à convertir sa période de service en un engagement de durée indéterminée ou en une période de service déterminée, que peut préciser l'instance autorisée à approuver le changement.
[28] The redress of grievance raised two principal grounds: (a) the applicant did not consent to the conversion of his terms of service to those of a Specialist Officer; and (b) in any event, he accepted the offer of conversion of his terms of service to an Indefinite Period of Service following completion of his Intermediate Engagement. The Chief of Defence Staff responded to these two points as follows:
| a) ... your commitment to accept terms of service as a specialist officer was implicit by your acceptance of specialist training when you signed the Statement of Understanding on 15 Oct 81. Under the terms of this Statement, you agreed to be transferred to the Dental military occupation for employment as a Dental Officer, and CFAO 49-9 para 31, in effect at that time, provided in part: |
|
| |
"... An officer may not transfer from a GSO classification to a specialist classification unless he consents to the conversion of his period of service to an indefinite period of service or such fixed period of service as may be specified by the authority who may approve his transfer." |
|
| Accordingly, although your consent was not expressed, as in the Statement of Understanding as it was later amended, your terms of service were converted to those of a specialist IPS by your consent to transfer to a specialist military occupation and by the operation of CFAO 49-9. |
|
| b) ... since you had incurred obligatory service to 19 May 91, which is later than the IE termination point of 27 AUG 90 based on twenty years of continuous service, you were not eligible in any event to receive an offer of IE followed by IPS, and none was made. Also, the offer of IPS on completion of IE was not valid because you were not on an IE, as you had been correctly advised in the message of Oct 88. |
|
| While mistakes have unfortunately been made by career staff in the determination of your terms of service, which I genuinely regret, there is no evidence that you have been prejudiced by these errors, and your terms of service are now consistent with those of other specialist officers in the same circumstances. |
|
The issues
[29] In this application for judicial review, the applicant states that the respondents either acted without or beyond their jurisdiction in making findings in the absence of any evidence13 or based their decision on erroneous findings of fact.14
[30] In the applicant's view, there was no evidentiary basis for finding that he had consented to the Specialist Officer's Indefinite Period of Service. Similarly, the applicant maintains that there were no facts to support the respondents' refusal to give effect to his acceptance of the conversion offer which was made during the implementation of the Specialist Officer Career Development Plan.
[31] The applicant also argues that the Minister of National Defence, in finding that there was no "personal oppression, injustice or other ill-treatment", failed to determine whether there existed "any other cause for grievance" under section 29 of the National Defence Act.15 As best I understand this argument, it is devoid of merit. The respondents considered the applicant's material. They concluded that he had not suffered personal oppression, injustice or other ill-treatment. They did not support redress. The applicant did not raise and presumably did not need to raise "any other cause for grievance" because his grounds came within the other operative words of the section. The phrase "any other cause for grievance" would only find its application where the redress was sought for reasons which were other than personal oppression, injustice or other ill-treatment. This is not such a case.
[32] Also, in my opinion, the respondents acted within their jurisdiction. They made findings on the basis of facts that were placed before them. The only issue to resolve is whether their findings were erroneous and made in a perverse or capricious manner or without regard for the material. In considering this issue, I propose to deal first with the applicant's terms of service prior to the introduction of the Specialist Officer Career Development Plan and then consider the implementation of that Plan's transitional measures.
The applicant's terms of service prior to 1988
[33] The parties agree that the applicant served as a General Service Officer on Intermediate Engagement between July 1978, when he consented to the conversion of his period of service, and May 1986, when he was accredited as a dentist. They also agree that upon becoming a dentist, his classification changed to Specialist Officer-Dental. They do not agree on his terms of service upon his becoming Specialist Officer-Dental.
[34] The applicant's position is that he continued on Intermediate Engagement beyond 1986. His principal argument is that he never "consented to the conversion of his period of service to an indefinite period of service" as set out in CFAO 49-9, paragraph 31.16 In his written and oral submissions, counsel for the applicant characterized the ongoing terms of service, even as a dentist, as "OCDP-IE", Officer Career Development Plan - Intermediate Engagement. The respondents argue that "OCDP-IE" cannot apply to a Specialist Officer. The Officer Career Development Plan applies only to General Service Officers. When the applicant's classification changed to Specialist Officer-Dental, he could no longer be "OCDP-IE" and, in the absence of any "fixed period of service as may be specified by the authority who may approve his transfer",17 his terms of service automatically became an Indefinite Period of Service.
[35] CFAO 9-62 (Military Dental Legal and Medical Training Plans) under the heading Terms of Service has two relevant paragraphs:
Terms of Service
9. Seniority, Promotion, Transfer. A candidate for subsidization under a training plan, hereafter referred to as a "subsidized officer", is subject to CFAO 10-1 in respect of seniority, promotion and officer classification transfer.
...
13. Retirement. A subsidized officer who transfers to a specialist officer classification is governed by the appropriate retirement provisions prescribed for his new classification in QR & O 15.17 and CFAO 15-3.
Conditions de service
9. Ancienneté, promotion, mutation. Un officier qui a été accepté comme candidat à un programme subventionné d'études, désigné ci-après comme "officier bénéficiant d'une aide financière", est assujetti aux dispositions de l'OAFC 10-1 en ce qui a trait à l'ancienneté, les promotions et les mutations dans une autre classification d'officier.
...
13. Retraite. Un officier bénéficiant d'une aide financière aux fins d'études qui est muté dans une classification d'officier spécialiste est assujetti aux dispositions pertinentes à la retraite prescrites à l'égard de sa nouvelle classification en vertu de l'article 15.17 des ORFC et de l'OAFC 15-3.
These two paragraphs, under the heading of Terms of Service, disclose that a person who has been accepted for subsidization under a training plan will be subject to CFAO 10-1, the Queen's Regulations and Orders for the Canadian Forces (QR & O) 15.17 and CFAO 15.3.
[36] CFAO 15-3, paragraph 3, merely makes clear, if there was any doubt on the issue and there is none in this case, that a General Service Officer is one who is not categorized as a Specialist Officer and the latter is a person who is assigned to one of several officer classifications, including Dental. (This CFAO appears to reiterate the different provisions for retirement by age for General Service Officers and Specialist Officers which are set out in QR & O 15.17.)
[37] CFAO 10-1 (Officer Classification Transfer - Regular Force) provides at paragraph 11 that transfer to a new classification is effected upon the successful completion of the required training program. In this case, this occurred in May 1986. CFAO 10-1 then repeats at paragraph 14, also under the heading Terms of Service, substantially the same provisions found in CFAO 49-9, paragraph 31 concerning the requirement that an officer consent to the conversion of his period of service to an Indefinite Period of Service when transferring from a General Service Officer classification to that of a specialist:
Terms of Service
14. An officer may not transfer to a "General Service Officer" (GSO) classification unless he consents to the conversion of his period of service to a "short service engagement", a "short engagement", an "intermediate engagement" or a "special indefinite period of service", as specified by the authority who approves the transfer. An officer may not transfer from a GSO classification to a specialist classification unless he consents to the conversion of his period of service to an indefinite period of service or a fixed period of service, as specified by the authority who approves the transfer.
Conditions de service
14. Un officier ne peut être muté dans une classification des "officiers de service général" (OSG) à moins de consentir à ce que l'on convertisse sa période de service en "engagement pour service de courte durée", en "engagement de courte durée", en "engagement de durée intermédiaire" ou en "période de service spécial pour une durée indéfinie", selon les désirs de l'autorité qui approuve sa mutation. Un officier ne peut être muté d'une classification OSG dans une classification de spécialiste avant d'avoir consenti à ce que l'on convertisse sa période de service en engagement de durée indéterminée ou en période de service déterminée, selon les désirs de l'autorité qui approuve la mutation.
According to the respondents, this version of paragraph 14 was in force between January 4, 1980 and November 5, 1981. On November 6, 1981, the first sentence was slightly modified to read: "[a]n officer may not transfer from a specialist classification to a 3General Service Officer3 (GSO) ..." ("[u]n officier spécialiste ne peut être muté dans une classification des 3officiers de service général3 (OSG) ...".
[38] With respect to the consent referred to in the second sentence of paragraph 14 of CFAO 10-1, the evidence is clear that the applicant did not sign any written consent. There is no evidence, however, that Specialist Officers-Dental ever consent in writing to the conversion of their period of service upon a transfer from General Service Officer to Specialist Officer. The fact that the applicant did not sign a consent does not appear to be an omission particular to his case. Upon a reading of the CFAO and in the absence of any evidence to the contrary, the practice appears to be that the consent to the conversion to an Indefinite Period of Service is implicit upon the transfer from a General Service Officer to a Specialist Officer.
[39] The applicant did sign written consents with respect to the conversions of his terms of service in 1976 and 1978. However, in both instances, these consents were signed by the applicant as a General Service Officer and not upon his transfer to that category of officer. The documents signed by the applicant in 1976 and 1978 do not constitute, in my view, evidence that written consents are obtained when a person is transferred to Specialist Officer within the meaning of the second sentence of paragraph 14 of CFAO 10-1.
[40] When he applied for the Military Dental Training Plan in October 1981, the applicant signed a Statement of Understanding which included clause 3: "While undergoing this training I will remain in my present officer classification and upon being licensed to practise dentistry I will be transferred to the Dental classification for employment in the Regular Force as a dental officer." In 1982, the phrase "under specialist terms of service" was added as the closing words of clause 3. According to the applicant, he was never made aware of the addition of this phrase nor was he asked to sign the amended form.
[41] I have not understood how the change to clause 3 assists the applicant in this case. The specialist terms were set out in the various CFAOs. If the applicant was unaware of the specialist terms of service, the addition of the words "under specialist terms of service" to clause 3 of the Statement of Understanding would have been of no assistance to him. The applicant's rights and obligations flow from the National Defence Act, its regulations, the QR & O and the CFAOs. In my view, the Statement of Understanding is an administrative document which cannot in and of itself create his rights and obligations. As will be seen later, the Statement of Understanding cannot be the basis of any contractual relationship between the applicant and the Canadian Forces.
[42] Article 4.02 of chapter 4 (Duties and Responsibilities of Officers) of the QR & O imposes upon officers the responsibility to become acquainted with, observe and enforce the QR & O and the CFAOs. This provision is of even greater significance than the applicant's own acknowledgment in the consent form he signed on June 11, 1976 that he had read CFAO 49-9. The QR & O and the CFAOs are made pursuant to the National Defence Act and define the relationship between the applicant and the Canadian Forces. He cannot successfully plead ignorance of some of these provisions, particularly when he relies on others to assert his redress of grievance.18
[43] The third provision referred to in CFAO 9-62 (Military Dental Legal and Medical Training Plans) under the heading Terms of Service is QR & O 15-17 which deals with the retirement age of officers. The applicant retired as a Specialist Officer with the rank of Major. Article 15.17 of the QR & O provides that the retirement age of a Major-Specialist Officer is the earlier of the year when 28 years of service have been completed or 55 years of age, eight years of age more than that required of a General Service Officer of the same rank. This provision was in force when the applicant decided to pursue his studies in dentistry.
[44] There is no evidence from the applicant that his decision to become accredited as a dentist within the Canadian Forces would have been affected if it had been brought specifically to his attention that his terms of service would automatically convert to an Indefinite Period of Service. Clearly, this conversion ultimately resulted in the requirement to serve a longer period before being eligible for an immediate unreduced annuity. There were many other terms and conditions which resulted from his decision to pursue a career as a dentist which were not stipulated in the Statement of Understanding, including specifics with respect to his subsidization, his ongoing salary while at university and his new salary as a Specialist Officer, to name a few. In the absence of other relevant evidence, it is simply not realistic for the applicant to rely on his lack of knowledge of the terms of service of a Specialist Officer while accepting every other aspect of that Officer category.
[45] It is even less realistic, in my view, to maintain that the applicant's period of service as a Specialist Officer was an Intermediate Engagement under the Officer Career Development Plan which applied only to General Service Officers. The Chief of the Defence Staff noted that although the applicant's "consent was not expressed" his terms of service were converted to those of a Specialist Indefinite Period of Service upon his consent to transfer to the Dental occupation. The applicant may not have signified his consent in a document dedicated for that purpose. However, in view of the terms of the QR & O and the CFAOs, he did so through his acceptance of his new officer category.
[46] Therefore, I find that the respondents committed no reviewable error in concluding that the applicant had consented, at least implicitly, to the Specialist Indefinite Period of Service.
The applicant's terms of service from 1988 until his voluntary release in 1991
[47] I have concluded that the respondents made no reviewable error in finding that the applicant was serving under an Indefinite Period of Service, at least until the coming into force of the Specialist Officer Career Development Plan. The other issue is whether the applicant's terms of service changed during the implementation of this Plan's transitional measures.
[48] The applicant's principal position is that he was always on Intermediate Engagement because he never consented to the conversion to Indefinite Period of Service. During his oral submissions, counsel added what I understood to be an alternative argument, referred to but not necessarily highlighted in his factum: if the applicant, as a dentist, was not always on Intermediate Engagement, he was determined to be on that period of service at least by 1988 as the result of the documents created on August 6, 1988 and August 29, 1988,19 which were confirmed in an entry in his Personal Record Résumé on August 31, 1988.20
[49] This argument is related to the second issue dealt with in the decision of the Chief of the Defence Staff,21 concerning the applicant's acceptance of the personnel officer's offer of conversion in February 1989.
[50] This alternative argument and the applicant's challenge to the second issue in the decision of the Chief of the Defence Staff must fail for at least two reasons. Firstly, the August 1988 memoranda were based on the wrong premise that the applicant had been and was serving on Intermediate Engagement. This was no longer true after he became a Specialist Officer-Dental. In addition, the personnel officer's uncontradicted affidavit makes clear that her offer of February 1, 1989 failed to take into account that the applicant had never been on Intermediate Engagement and that, in any event, he was ineligible for the other conversion option ("OCDP IE/IPS") because he had yet to complete his obligatory service. This explains, according to the respondents, why no such offer was ever made to the applicant.22
[51] Secondly, in his redress of grievance of January 10, 1990, the applicant states that he consulted with military legal counsel who "... indicated that he thought a contract was made with the ... acceptance of the conversion offer." He apparently received similar advice from civilian legal counsel. In his correspondence of December 1, 1992 to the Directorate of Personnel, Legal Services, counsel for the applicant stated that the personnel officer's offer was "irrevocable" and the applicant's acceptance made that offer "binding". Any suggestion that the principles of contract law apply to this case is simply not supported by the jurisprudence.
[52] In Gallant v. The Queen23, Marceau J., as he then was, stated at page 696:
| |
Both English and Canadian Courts have always considered, and have repeated whenever the occasion arose, that the Crown is in no way contractually bound to the members of the Armed Forces, that a person who joins the Forces enters into a unilateral commitment in return for which the Queen assumes no obligations, and that relations between the Queen and Her military personnel, as such, in no way give rise to a remedy in the civil Courts. |
|
Justice Marceau relied in part on the decision in Mitchell v. The Queen,24 where Lord Esher M.R. stated at 122:
| |
... the law is as clear as it can be, and that it has been laid down over and over again as the rule on this subject that 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. It has been argued that this is not to be treated as an engagement between a person in the military service of the Crown and the Crown, but as a contract made between a civilian and the Crown. The answer to that contention seems to me to be that it is contrary to the truth. |
|
[53] The Chief of the Defence Staff considered the personnel communications in 1988 and 1989 and concluded that mistakes were made but that there was no evidence that the applicant had been prejudiced by these errors. He concluded that the applicant's "... terms of service are now consistent with those of other specialist officers in the same circumstances". I find no reviewable error in this conclusion. The decision was communicated to the applicant prior to his taking voluntary release and was subsequently confirmed by the Minister of National Defence.
Conclusion
[54] The applicant failed to establish that he had "suffered any personal oppression, injustice or other ill-treatment" in his redress of grievance. Nor did he establish that this Court should intervene concerning the decision under review. This outcome is fully consistent with what I consider to be a principal flaw in the applicant's position. His claim for an annuity is based on subsection 17(1) of the Canadian Forces Superannuation Act.25 On the basis of this provision, he claims an unreduced immediate annuity. If the applicant were correct, there would be a serious inconsistency between subsection 17(1) and the various QR & O and CFAOs in that he would be eligible for his release with an unreduced immediate annuity prior to the completion of his obligatory service. The applicant himself acknowledged this anomaly when he filed his redress for grievance:
| |
Thus with IE/IPS, I would have the vested right to choose the end of my terms of service under an IE to be anywhere from completion of 20 years of service (28 Aug 90) until age 40 (17 Dec 93). |
|
| |
The problem appears to be my obligatory service which ends on 19 May 91, after completion of my 20 years (less than nine months). There seems to be an assumption that I will not honour my contract, for obligatory service, signed as I entered into MDTP. However, with my vested rights, I have the option of considering any date between 19 May 91 and 17 Dec 93 as the end of my terms of service of my Intermediate Engagement. As such I do not see this as an issue. |
|
| |
I, therefore, consider that my current Terms of Service under OCDP to be IE/IPS as agreed to on 20 Feb 89 (Ref G) and respectfully request that my records be changed to reflect this. I also acknowledge that my obligatory service continues to 19 May 91. |
|
In his own words, the applicant would have been eligible for release pursuant to the terms of subsection 17(1) as early as August 28, 1990 although his obligatory service did not end until May 19, 1991. It cannot be that the applicant had a statutory right to voluntary release with an unreduced annuity prior to the completion of his obligatory service. Nor can it be that the applicant may bring himself within subsection 17(1) by making an acknowledgment concerning his obligatory service. He cannot add a fifth criteria to this statutory provision over and above the four stipulated by Parliament.
[55] For these reasons, the application for judicial review is dismissed.
Ottawa, Ontario Judge
May 8, 1998
__________________
1 In these reasons, "the respondents" will refer to the Chief of the Defence Staff and the Minister of National Defence.
2 According to the terms of the Officer Career Development Program information package circulated in March 1976:
... GSO officers are initially engaged on a Short Service Engagement (SSE) of nine years commissioned service. By mutual agreement (that is the individual is selected for, offered and accepts), the officer is then moved to the next tier - Intermediate Engagement (IE) (20 years of continuous service or 40 years of age, whichever comes later) and finally, by mutual agreement, he is advanced to an Indefinite Period of Service (IPS) which terminates at CRA, age 55 for all officers, or the age at which he completes, if a Co1 or above, 30 years, or if a LCo1 or below, 28 years, of full-time paid service, including service as a man.
3 When he completed the Military Dental Training Plan in 1986, the applicant's obligatory service was determined to be eight years. A policy change in 1988 reduced this to five years. See Canadian Forces Administrative Order 15-7, paragraph 13(d).
4 See note 1.
5 Respondents' application record, p. 003, paragraph 12.
6 Respondent's application record, p. 031.
7 This date is the applicant's 40th birthday. Persons previously on Intermediate Engagement had a vested right to serve to age 40 even after the age criteria was dropped in April 1998. See respondent's application record, p. 021 at paragraph 4.
8 This transitional measure is set out in paragraph 33 of the SOCDP Transitional Plan, applicant's application record, p. 65.
9 This transitional measure is set out in subparagraph 34(b) of the SOCDP Transitional Plan, applicant's application record, pp. 65-6.
10 R.S.C. 1985, c. N-5. Section 29 states:
| 29. Except in respect of a matter that would properly be the subject of an appeal or petition under Part IX or an application or appeal under Part IX.1, an officer or non-commissioned member who considers that he has suffered any personal oppression, injustice or other ill-treatment or that he has any other cause for grievance may as a matter of right seek redress from such superior authorities in such manner and under such conditions as shall be prescribed in regulations made by the Governor in Council. |
29. Sauf dans le cas d'une affaire pouvant régulièrement faire l'objet d'un appel ou d'une demande en révision aux termes de la partie IX, ou d'une demande ou d'un appel aux termes de la partie IX.1, l'officier ou le militaire du rang qui s'estime lésé d'une manière ou d'une autre peut, de droit, en demander réparation auprès des autorités supérieures désignées par règlement du gouverneur en conseil, selon les modalités qui y sont fixées. |
11 R.S.C. 1985, c. C-17. Subsection 17(1) and subparagraph 19(1)(c )(i) state:
17. (1) A contributor who (a) has not reached retirement age, (b) is not serving for an indefinite period of service, (c) ceases to be a member of the regular force after having completed an intermediate engagement, and (d) has served in the regular force for at least twenty years, is entitled to an immediate annuity. ...
19. (1) A contributor who, not having reached retirement age, ceases to be a member of the regular force for any reason other than a reason described in subsection 17(1) or (2) or 18(1), (2) or (4) is, except as provided in section 20, entitled to a benefit determined as follows: ...
(c) if he has served in the regular force for twenty or more years but less than twenty-five years, he is entitled,
(i) in the case of an officer, to an immediate annuity reduced by five per cent for each full year by which his age at the time of his retirement is less than the retirement age applicable to his rank, ... |
17. (1) A droit immédiatement à une annuité, le contributeur qui remplit les conditions suivantes : a) il n'a pas atteint l'âge de la retraite; b) il n'est pas engagé pour une période indéterminée de service; c) il cesse d'être membre de la force régulière après avoir terminé un engagement de durée intermédiaire; d) il a servi dans la force régulière pendant au moins vingt ans. ...
19. (1) Un contributeur qui, n'ayant pas atteint l'âge de retraite, cesse d'être membre de la force régulière pour un motif autre qu'un motif mentionné au paragraphe 17(1) ou (2) ou 18(1), (2) ou (4) a droit, sauf disposition contraire de l'article 20, à une prestation déterminée comme suit : ...
c) s'il a servi dans la force régulière pendant vingt ans ou plus et moins de vingt-cinq ans, il est admissible :
(i) s'il s'agit d'un officier, à une annuité immédiate réduite de cinq pour cent multiplié par le nombre d'années entières obtenu en soustrayant son âge au moment de sa retraite de l'âge de retraite applicable à son grade, ... |
12 These figures are set out in the applicant's application record at p. 51.
13 Federal Court Act, R.S.C. 1985, c. F-7, paragraph 18.1(4)(a).
14 Ibid., paragraph 18.1(4)(d).
15 Supra, note 10.
16 Supra, paragraph 26.
17 CFAO 49-9, paragraph 31, supra , paragraph 26.
18 Similarly, the applicant cannot properly rely in this Court on the hearsay oral statement to which reference is made under subparagraph 2(e) of his redress of grievance, applicant's application record, p. 105.
19 Supra, paragraph 14.
20 Respondent's application record, p. 032. For the applicant, these documents and the entry constitute the transfer authority within the meaning of CFAO 10-1, paragraphs 4 and 8.
21 Supra, paragraph 28.
22 In his redress of grievance, the applicant acknowledges under paragraph 2(l) that he received an offer "for IPS following completion of present IE" which is the conversion pursuant to paragraph 34 of the SOCDP Transition Plan, supra , note 9. Under paragraphs 4 and 6 of his redress of grievance, he seems to suggest that he was eligible for "IE/IPS" which would be the conversion pursuant to paragraph 33 of the SOCDP Transitional Plan, supra, note 8. I accept the respondents' position that he was wrongly offered the former conversion measure and that, contrary to the suggestion in the personnel officer's note of October 31, 1988, he was never offered the latter conversion option.
23 (1978), 91 D.L.R. (3d) 695 (F.C.T.D.).
24 [1896] 1 Q.B. 121 (C.A.).
25 Supra note 11.
Email this Content