Date:
20120628
Docket:
T-161-11
Citation:
2012 FC 825
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, June 28, 2012
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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MARTIN LAMPRON
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
application for judicial review relates to a decision issued on
December 9, 2010, by the Chief of the Defence Staff (the Chief of Staff) as
the Final Authority in the grievance process. The grievance filed by
Martin Lampron (the applicant) involved the payment of a Post Living
Differential Allowance (PLD). For the following reasons, the application is
dismissed.
I. Background
[2]
The
applicant, who is self‑represented, is a regular member of the Canadian
Forces. In 2004, he was posted to 438 Tactical Helicopter Squadron at St‑Hubert.
Since he was not living on a military base, the applicant was required to live
within the boundaries of his place of duty, in this case, the Montreal service
area. The applicant chose to settle in St–Hyacinthe, which was, and still is, part
of the Montreal service area. At the time the applicant moved to St‑Hyacinthe,
the Montreal service area contained two Post Living Differential areas, that
is, areas where the cost of living is higher than the national average, which
entitles a member to payment of a PLD: the Montreal South Shore area, which included
St‑Hyacinthe, the Island of Montreal and the Montreal North Shore area.
[3]
After
he was informed by a representative of the Montreal 5 Area Support Group (5
ASG) that the city of St‑Hyacinthe fell within the boundaries of the
Montreal service area and that he would receive a PLD, the applicant chose to
purchase a home there.
[4]
Beginning
in August 2004, the applicant received the PLD for the Montreal South Shore
area until February 2008.
[5]
The
applicant submits that he was informed in February 2008 that the city of St‑Hyacinthe
now had its own geographical area and that it would no longer be included in
the Montreal South Shore geographical area. He therefore received confirmation
that he would subsequently receive the PLD applicable to St‑Hyacinthe,
which was less than the PLD applicable to the Montreal South Shore area.
[6]
To
understand the nature of the dispute between the parties and the various
recommendations and decisions made regarding the applicant’s grievance, it is
helpful to present the administrative framework applicable to PLD allowances, as
shown by the evidence in the record.
[7]
The
geographical areas of the places of duty for the province of Quebec are
delineated by an order of the commander of the 5 ASG. The cities of St‑Hubert
and St‑Hyacinthe are included in the geographical zone of the Montreal place
of duty. Since the applicant was posted to St‑Hubert, he was therefore
authorized to settle in St‑Hyacinthe. That aspect is not disputed.
[8]
The
applicant, like other members, is subject to the Compensation and Benefits
Instructions for the Canadian Forces (CBI). CBI 205.45 deals with PLD and provides
that some areas within the geographical areas of certain places of duty are
identified as post living differential areas. A post living differential area
is an area within the boundaries of a place of duty where the cost of living exceeds
the Canadian average. Members whose principal residence is located in a post
living differential area that is situated within the boundaries of their place
of duty are eligible for a monthly PLD. PLDs are paid to members to mitigate
the adverse financial impact they experience when they are posted to and reside
in a place of duty where the cost of living exceeds the national average.
[9]
Prior
to December 2007, CBI 205.45, which deals with PLD, did not contain a list of locations
that qualify for PLD. Paragraph 15 of CBI 205.45 (version prior to December
2007) stated moreover that “[t]he rate and locations qualifying for PLD [post
living differential] will fluctuate annually as economic conditions change”.
[10]
At
that time, post living differential areas were determined by Canadian Forces
General messages (CANFORGEN) that were issued and approved by Treasury Board following
an assessment of economic conditions.
[11]
Until
October 2005, the geographical area of the Montreal place of duty contained two
post living differential areas: (1) Montreal South Shore, which included the
city of St‑Hyacinthe and (2) the Island of Montreal and Montreal North
Shore.
[12]
There
is some confusion in this case because it seems that a separate PLD rate was
determined for St‑Hyacinthe beginning in 2001, but that rate was not
announced in CANFORGEN and was not applied to the applicant when he moved to
St–Hyacinthe in 2004.
[13]
However,
on October 21, 2005, a CANFORGEN announced for the first time a separate
PLD rate for the city of St‑Hyacinthe. This rate was lower than the rate
applicable to the post living differential area for Montreal South Shore. CANFORGEN
stated, moreover, that the rates applied as of October 1, 2005, but that
the reduction, if any, would take effect on January 1, 2006. However, the
applicant was not informed prior to February 2008 that he would be subject to
this new rate.
[14]
On
December 10, 2007, CBI 205.45 was revised. It now includes a table that
lists the post living differential areas and the applicable rates. The city of St‑Hyacinthe
appears as a separate post living differential area that has its own rate.
II. Impugned decision
A. Applicant’s grievance
[15]
On
April 25, 2008, the applicant filed a grievance in which he disputed that
he was subject to the PLD rate for St‑Hyacinthe as of February 2008. In
his grievance, he claimed that the 5 ASG had confirmed to him when he was
posted to St‑Hubert in 2004 that the city of St‑Hyacinthe was
included in the geographical area of Montreal South Shore and that he decided
to move there and purchase a house on the basis of that information. He
submitted that it was unfair to impose a change in the geographical area now,
and he asked to be considered as remaining in the Montreal South Shore area for
PLD purposes. As an alternative solution, the applicant asked for authorization
to purchase a house in the Montreal South Shore area and that the Canadian
Forces pay the moving expenses. In essence, the applicant’s position was that
he should not be penalized by the change made by the Canadian Forces and that
he should have the benefit of a “grandfather” clause.
[16]
In
his grievance, the applicant also claimed that he had been misled by the
representatives of the Canadian Forces and that he should not be penalized
because of errors made by the Canadian Forces.
B. Recommendations
and decisions prior to the Chief of Staff’s decision
[17]
The
applicant’s grievance was first reviewed by the Director of Compensation and
Benefits Administration (DCBA). In its decision of September 15, 2008, the
DCBA stated that, although St‑Hyacinthe was included in the Montreal
South Shore geographical area, a separate PLD calculation had been made since
2001 in order to take into account the military personnel posted to St‑Hyacinthe.
However, it recognized that a separate PLD rate for St‑Hyacinthe had been
published for the first time in 2005 when the rate went from $0 to $24. The
DCBA was of the opinion that the applicant should have received the PLD set for
St‑Hyacinthe since his move to St‑Hyacinthe in 2004, not the PLD
for the Montreal South Shore post living differential area. Since the applicant
had received the PLD applicable to Montreal South Shore, he had received an
overpayment of $14,872 between August 1, 2004, and January 31, 2008. Moreover,
the DCBA stated that, since the PLD rate for the city of St‑Hyacinthe had
not been published prior to the CANFORGEN of October 2005, with an effective
date of January 1, 2006, it was appropriate to only claim from the
applicant the overpayment for the period from January 1, 2006, to January 31,
2008, that is, $9,500.
[18]
The
applicant’s grievance was then forwarded to the Director General Compensation
and Benefits, who acted as the Initial Authority in the grievance process. He
essentially confirmed the DCBA’s position.
[19]
The
grievance was then forwarded to the Canadian Forces Grievance Board (CFGB).
[20]
The
CFGB set out the history of the applicable PLDs for the city of St‑Hyacinthe.
It noted that the CANFORGEN of October 21, 2005, had announced, for the
first time, a PLD rate for the city of St‑Hyacinthe. The CFGB found that
the city of St‑Hyacinthe had only become a separate post living
differential area in April 2008 when, following the revision of CBI 205.45, the
PLD rate for St‑Hyacinthe was specifically included in CBI 205.45.
[21]
Accordingly,
the CFGB determined that the applicant was entitled to the PLD applicable to Montreal
South Shore until April 2008, the date on which the city of St‑Hyacinthe
was identified as a post living differential area in CBI 205.45, and that there
was no $9,500 overpayment representing the difference between the PLD for
Montreal South Shore and St-Hyacinthe for the period between January 2006 and
February 2008. It also found that, as of April 2008, the applicant became
subject to the PLD for the St‑Hyacinthe post living differential area.
C. Chief of Staff’s decision
[22]
The
Chief of Staff dismissed the applicant’s grievance and determined that the
applicant was entitled to the PLD for Montreal South Shore prior to
January 1, 2006, but that he should have been subject to the PLD for the
city of St‑Hyacinthe as of January 1, 2006. Accordingly, he did not
follow the CFGB’s recommendation.
[23]
In
his decision, the Chief of Staff stated that it was not disputed that the city
of St‑Hyacinthe was, and still is, included in the Montreal geographical
area and that it was therefore an approved area for members to establish their
principal residence based on St‑Hubert as a place of duty.
[24]
In
addition, he stated that, prior to December 2007, CBI 205.45 dealing with PLDs
did not include a list of locations qualifying for PLD. The post living
differential areas and the PLD rates were determined by CANFORGENs issued and approved
by Treasury Board following an assessment of economic conditions. He quoted paragraph
15 of CBI 205.45, which provided that “[t]he rate and locations qualifying for
PLD [post living differential] will fluctuate annually as economic conditions
change”. He explained that until 2005 the city of St‑Hyacinthe was not a separate
post living differential area and was part of the Montreal South Shore post
living differential area. He noted that in the CANFORGENs issued in June 2003 and
July 2004, which announced the rates for 2003 and 2004, respectively, there was
no mention of a separate rate for the city of St‑Hyacinthe. However, in
the CANFORGEN message issued in October 2005 announcing the rates for 2005, the
city of St‑Hyacinthe had become a separate post living differential area from
that of Montreal South Shore with a lower rate than that of Montreal South
Shore. The CANFORGEN provided, in addition, that the reduction would take
effect on January 1, 2006. The Chief of Staff also indicated that since
the revision of CBI 205.45 in December 2007, the post living differential areas,
including the one for St‑Hyacinthe, were now listed in a table attached
to CBI 205.45. The areas and the rates were therefore no longer identified and
published through CANFORGENs.
[25]
In
his decision, the Chief of Staff noted that CBI 205.45 provides that locations
that qualify for PLD as well as the rates may fluctuate and that the choice of
a residence should not be made based on a post living differential area and the
respective rate for a given year. Since St‑Hyacinthe became a separate
post living differential area on October 1, 2005, through the issuance of the
CANFORGEN, the applicant should have been subject to the new PLD rate for the
city of St‑Hyacinthe effective January 1, 2006, not February 2008. Accordingly,
the Chief of Staff did not grant the redress sought by the applicant, and his
decision had the effect of upholding the $9,500 overpayment that the applicant must
reimburse.
III. Issue
[26]
The
only issue in this case is the reasonability of the Chief of Staff’s decision.
IV. Standard
of review
[27]
The
Chief of Staff was required to interpret CBI 205.45 and apply it to the
applicant’s case. Accordingly, his decision was one of mixed fact and law. Our
Court has consistently held that decisions by the Chief of Staff on questions
of mixed fact and law made as part of the grievance process are subject to the
reasonableness standard (Jones v Canada (Attorney General), 2009 FC 46 at
para 23, 339 FTR 202; McIlroy v Canada (Attorney General), 2011 FC 149
para 29 (available on CanLII); Birks v Canada (Attorney General), 2010 FC
1018 at para 25-27, 375 FTR 83 [Birks]; Rompré v Canada (Attorney
General), 2012 FC 101 at para 23 (available on CanLII)). It is therefore unnecessary
to carry out an analysis of the appropriate standard of review (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 62 [2008] 1 S.C.R. 190 [Dunsmuir]).
[28]
In
Dunsmuir, above, the Supreme Court set out the analytical framework that
the Court must apply when it reviews a decision against the reasonableness
standard:
47 Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[Emphasis
added]
[29]
In
the recent decision Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 at para 13 (available on
CanLII), the Supreme Court noted and further developed the principles that
should guide the application of the reasonableness standard. The Court stated
the following about the deference that courts must show to decisions that fall within
the expertise of specialized tribunals:
13 This, I think, is
the context for understanding what the Court meant in Dunsmuir when it
called for “justification, transparency and intelligibility”. To me, it
represents a respectful appreciation that a wide range of specialized
decision-makers routinely render decisions in their respective spheres of
expertise, using concepts and language often unique to their areas and
rendering decisions that are often counter-intuitive to a generalist.
That was the basis for this Court’s new direction in Canadian Union of
Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R.
227, where Dickson J. urged restraint in assessing the decisions of specialized
administrative tribunals. This decision oriented the Court towards
granting greater deference to tribunals, shown in Dunsmuir’s conclusion
that tribunals should “have a margin of appreciation within the range of
acceptable and rational solutions” (para.
47).
V. Analysis
A. Applicant’s position
[30]
The
applicant submits that the city of St‑Hyacinthe did not really become a
separate post living differential area until 2007 when the revision of CBI
205.45 included a table listing the post living differential areas and the PLD rates
applicable to each area. The applicant argues that the CANFORGEN of October
2005 announced a PLD rate for the city of St‑Hyacinthe, but that to be
valid, such an announcement should have been preceded by the formal creation of
a post living differential area for the city of St‑Hyacinthe, which was
not done until December 2007. To buttress this argument, the applicant filed a
2001 CANFORGEN in which new post living differential areas were created and the
PLD rates for those new areas were announced. The applicant compared this CANFORGEN
with the one for October 2005, which, he says, simply announced a PLD rate for St‑Hyacinthe,
and he argued that this CANFORGEN had not created a new post living
differential area for St‑Hyacinthe. He therefore submits that it is
unfair and unreasonable to claim an overpayment from him for the period between
January 2006 and April 2008 because no separate post living differential area had
been validly created for St‑Hyacinthe, which was still part of the post
living differential area for Montreal South Shore.
[31]
The
applicant also submits that he was misled by the representatives of the 5 ASG in
2004 and that there was confusion between the interpretation of CBI 205.45 by
the DCBA and the information given to him by the5 ASG. Moreover, given that a
separate PLD rate had been calculated for the city of St‑Hyacinthe since
2001, he should have been told about it, and then he would not have decided to
purchase a house in that city.
[32]
The
applicant also argues that, based on the erroneous information he received in 2004,
the Chief of Staff should have allowed him to benefit from a grandfather clause
and considered him, for PLD purposes, as having always lived in the post living
differential area for Montreal South Shore.
B. Respondent’s
position
[33]
The
respondent, for his part, contends that the Chief of Staff’s decision is
reasonable in light of the evidence and the administrative framework applicable
to PLDs. He submits that the Chief of Staff’s decision falls within a range of
possible, acceptable outcomes based on the evidence and the applicable directives
and that the Court’s intervention is not warranted.
[34]
The
respondent submits that the 2001 CANFORGEN filed by the applicant was not
before the Chief of Staff when he made his decision and that it was reasonable
for him to find that the city of St‑Hyacinthe became a separate post
living differential area in 2005. He also maintains that even if the 2001
CANFORGEN was considered there is no basis for concluding that the Canadian
Forces could not validly create a post living differential area simply by
publishing a separate rate for that area commencing in 2005. The Canadian
Forces are not bound by a particular process in exercising their discretion.
[35]
The
respondent also refers to the Chief of Staff’s limited power to determine when the
applicant should have been subject to the PLD for the city of St‑Hyacinthe
and states that he had no jurisdiction to award any financial compensation to
the applicant because of incomplete information given to him in 2004. In
addition, he argues that CBI 205.45 was accessible and applied to all members
and clearly indicated that the post living differential areas and the rates
could fluctuate. He emphasizes that that is, indeed, the essence of a PLD
because it is based on economic conditions that may change.
[36]
The
respondent adds, in response to the applicant’s arguments that he was
misinformed in 2004, that the doctrine of legitimate expectations does not
apply in this case. First, there was no promise made to the applicant that the
PLD he was entitled to in 2004 would be immutable and indefinite. On the other
hand, there were no clear and specific representations about a particular
outcome in 2004. In any event, the respondent submits that the doctrine of
legitimate expectations, if it applied, would entitle the applicant to
additional procedural protections, which were largely given to him throughout the
grievance process.
C. Discussion
[37]
There
seems to have been some confusion in applying the concepts in question among
the various players involved in the applicant’s grievance process, and specifically
between the concepts of geographical areas and post living differential areas.
[38]
However,
it is only the decision by the Chief of Staff, who was acting as a Final
Authority, that is the subject of this judicial review. For the reasons that
follow, I find that his decision is reasonable.
[39]
First,
it is important to not confuse the concepts of geographical areas of a place of
duty and post living differential areas. The geographical area associated with
a place of duty delineates the perimeter within which members who are posted in
that place of duty are authorized to establish their residence. The order that
defines the geographical area for Quebec comes within the 5 ASG and does not
deal with post living differential areas. Post living differential areas can be
created within the geographical areas of certain places of duty where the cost of
living is higher than the Canadian average. Post living differential areas are
set out in CBI 205.45.
[40]
However,
there is no evidence to suggest that CBI 205.45 is not valid or that it is not
accessible to all members. The version of CBI 205.45 that applied in 2004
clearly stated that the post living differential areas and the applicable rates
were not immutable and could be changed based on economic conditions. It is
unfortunate that the applicant was not informed of this paragraph, but this
situation does not create additional rights for him. Moreover, the evidence
does not show that any promises were made to the applicant. The evidence
establishes that the applicant was informed that the city of St‑Hyacinthe
was part of the post living differential area for Montreal South Shore and that
he would receive the PLD applicable to that area. In 2004, this information was
correct.
[41]
In
addition, on the evidence, I find that it is not reasonable to think that St‑Hyacinthe
became a post living differential area as of 2001, and I reject the applicant’s
argument that he should have been informed of that fact in 2004. In any event, the
Chief of Staff refuted that statement because he did not find that the
applicant should have been subject to a post living differential for St‑Hyacinthe
as of 2004.
[42]
I
also find that it was reasonable for the Chief of Staff to conclude, on the evidence,
that the city of St‑Hyacinthe had become a post living differential area under
the CANFORGEN issued in October 2005, with an effective date of January 1,
2006. As of October 2005, the Montreal geographical area no longer had two, but
three separate post living differential areas. The fact that the new post
living differential areas had been previously announced in CANFORGENs with
different wording changes nothing, in my view. The Canadian Forces are not
subject to a strict process for stating their directives, and the CANFORGEN of
October 2005 clearly sets a separate PLD for St‑Hyacinthe. There is no
evidence that post living differential areas and rates must be announced in a particular
way. It was therefore reasonable for the Chief of Staff to conclude that a
separate post living differential area for the city of St‑Hyacinthe had
been created through the CANFORGEN of October 2005 and that the applicant should
have been subject to it as of January 1, 2006.
[43]
At
the same time, I find it regrettable that the applicant was not informed in
2005 that he would be subject to the rate for St‑Hyacinthe as of
January 1, 2006. This situation shows some confusion and a lack of
communication between the DCBA and representatives of the 5 ASG. This
situation, or this error, although unfortunate, does not have the effect of
creating for the applicant the right to receive a PLD other than the one that
applied in the area where he lived. The CBI do not provide for a grandfather
clause or acquired rights for a situation like the applicant’s, and neither the
Chief of Staff nor the Court can change CBI 205.45 (Birks above).
[44]
Moreover,
there is nothing in the evidence or the applicable statutory framework to
suggest that the Chief of Staff had the discretion to give the applicant a PLD rate
other than the rate resulting from the application of the CANFORGEN of October
2005 or that he had the jurisdiction, in a grievance context, to award him any
compensation because of the incomplete information he was given in 2004 (Codrin
v Canada (Attorney General), 2011 FC 100 at para 55 and 56 (available on
CanLII); Canada v Bernath, 2007 FCA 400 at para 16-19 and 22, 164 ACWS
(3d) 247.
[45]
Accordingly,
the Chief of Staff’s decision is reasonable because it falls within a range of
possible, acceptable outcomes in respect of the facts and law, and the Court’s
intervention is not warranted. His decision is intelligible, based on the
evidence and well articulated. A different conclusion could also have been
considered reasonable. As the Supreme Court of Canada pointed out in Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009]
1 SCR 339: “There might be more than one reasonable outcome. However, as long
as the process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome”. These principles apply here.
[46]
For
all these reasons, the application for judicial review is dismissed. In light
of the particular circumstances of this case and the confusion created by the
various Canadian Forces’ proceedings, no costs are awarded.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the
application for judicial review is dismissed without costs.
“Marie-Josée
Bédard”
Certified
true translation
Mary
Jo Egan, LLB
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