Home Equity Assistance & "Military Families Pushed to Financial Ruin" (Merge)

[dapaterson]

[ongoing sidebar discussion about who approves the policy versus who administers it]

It is a policy approved by the Treasury Board and administered by DND.  It is not a policy approved by DND.

The CFIRP  "represents the Treasury Board Secretariat’s approved policy for CF members on relocation of their Dependants, Household Goods and Effects ((D) HG&E)." The CFIRP has DGCB as the departmental authority.

Hmm... sound suspiciously similar...

After reading through several thousand pages of ATI returns on the development, negotiations and refinement of the 2009 CF IRP policy, it is very obvious that the CFIRP is a CF Policy, administered by the CF and that it is based on the National Joint Council Relocation Directive. It is only in a very few cases where TBS is involved (i.e. HEA 100% from core).

While there may well be back and forth between DND/CF and TBS on the development of the IRP policy, it is ultimately TB that decides what goes in the policy. 

The administration of the policy, however, is largely done by DND/CF.  For the administration of the policy, in the HEA cases, there is a requirement to engage TBS.


The CDS can try to influence such policies, but ultimately he is not part of the decision making for Compensation & Benefit policies.  Thus, those policies cannot be said to be CF (or DND, for that matter, as they are outside the DM's scope as well).

[/ongoing sidebar discussion about who approves the policy versus who administers it]

 

[heavy reader]

Yes, it was a long day. We are saying the same point.  However, we are not asking the policy to be changed, we are asking that it be applied as it is written and with the intent it was created for.

 

[heavy reader]

Let the action begin. Brauer v. The Queen

http://healoss.files.wordpress.com/2013/06/applicant_s-written-submissions.pdf

Developments on the Judicial Review (Home Equity Assistance denial) is available at http://cas-ncr-nter03.cas-satj.gc.ca/IndexingQueries/infp_RE_info_e.php?court_no=T-1028-13

Latest news:  August 30th, 2013 Judge orders TBS to provide documents i.e.

"Written directions received from the Court: Richard Morneau, Esq., Prothonotary dated 30-AUG-2013 directing that

1. the respondent shall serve and file concise written reresentations to establish the basis of objection pursuant to rule 317 and 318 twenty (20) days from the date of this direction;

2. the applicant shall serve and file concise written representation in response fifteen (15) days from the service of the above;

3. the repsondent shall serve and file written representations in reply five (5) days from the date of service of the above;... placed on file on 30-AUG-2013 Confirmed in writing to the party(ies)".

 

[heavy reader]

See attached letter from MP Robert Chisholm on the issue of systemic denial of HEA entitlements.

http://www.robertchisholm.ca/wp-content/uploads/2013/06/Clement-HEA-Letter-June-20130001.pdf

 

[heavy reader]

See attached letter from MP Robert Chisholm on the issue of systemic denial of HEA entitlements.

http://www.robertchisholm.ca/wp-content/uploads/2013/06/Clement-HEA-Letter-June-20130001.pdf

Note that there has been a motion on the Standing Committee of National Defence to study the Systemic Denial of HEA entitlements to CF members on 27 May, 2013 by Jack Harris http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6177983 as follows:

    There's also something that's somewhat pressing involving the ability of the Department of National Defence to actually deliver on programs for Canadian Forces members. We've raised it before with officials from the department and with military personnel, but I think we'd like to have more of a detailed study done on this.  So, Mr. Chair, I would like to move, pursuant to a notice of motion given March 19, 2013:


That the Standing Committee on National Defence undertake a study of the operation of the Canadian Forces home equity assistance program, particularly the Canadian Forces Integrated Relocation Program to reimburse Canadian Forces members who have suffered losses on the sales of their family residence when transferred by the Canadian Forces to other locations, and that the Chair report this Committee's findings and recommendations to the House.  I have that in both official languages, for those who don't have a copy."

 

[heavy reader]

http://pierrejacob.ndp.ca/ndp-wants-defence-committee-to-help-canadian-forces-members-with-home-equity-losses

NDP Wants Defence Committee To Help Canadian Forces Members With Home Equity Losses
March 20th, 2013 - 11:57pm

For Immediate Release

NDP WANTS DEFENCE COMMITTEE TO HELP CANADIAN FORCES MEMBERS WITH HOME EQUITY LOSSES



OTTAWA – Canadian Forces members who have suffered significant losses on sale of their homes when transferred to another location by the CF should be compensated. NDP Defence critic, Jack Harris (St. John’s East), has submitted a motion asking the National Defence Committee to study the Canadian Forces Home Equity Assistance Program and make recommendations to ensure CF members and their families have improved financial protection.

"This program, if adopted, would help Canadian military families, who have to move frequently. It is important to establish this kind of assistance, "said Pierre Jacob.

Both the Canadian Forces Ombudsman and the Canadian Forces Grievance Board have recognized the problem, but it has yet to be addressed. There is urgent need to find a mechanism to financially compensate these CF members for the sake of fairness.


“The government has a program intended to help the members of our military with relocation but it appears to be failing them,” said Harris. “We have a number of people in desperate financial circumstances as a result. This is an opportunity for the Defence Committee to look at ways to solve the problem.”

 

[heavy reader]

It was hoped that the new powers of the CDS would allow for the resolution of grievances.  Unfortunately, that is not the case for home equity assistance.  As referred to below, the CDS has not used this new financial authority (at this time) to assist with those denied their HEA entitlements.  The following is an exerpt from http://openparliament.ca/debates/2013/6/17/john-mckay-2/ :


"Question No. 1356
Questions on the Order Paper
Routine Proceedings

June 17th, 2013 / 3:25 p.m.

Liberal
John McKay Scarborough—Guildwood, ON

With regard to the ex gratia payments to Canadian Forces members in relation to the Home Equity Assistance (HEA) provisions: (a) how many members received a payment; (b) what is the rank of each recipient; and (c) what is the date and amount for each ex gratia payment that was made by the Department of Justice, Office of the Department of National Defence Canadian Forces Legal Authority, concerning HEA provisions, as governed by the Department of National Defence HEA, Integrated Relocation Program (CF IRP), between January 1, 2001, and December 31, 2013?
3:25 p.m.

Conservative
Peter MacKay Minister of National Defence

Mr. Speaker, the Department of National Defence and the Canadian Armed Forces searched their records and found no instances of ex gratia payments to Canadian Armed Forces members in relation to the home equity assistance provisions between January 1, 2001, and December 31, 2013."

It was hoped that Privy Council Order 2012-0861 would have provided the authority for the CDS, however it is seen as non-retroactive and not able to be used when dealing with TBS policy.  The wording is as follows:

PC Number: 2012-0861Date: 2012-06-19
--------------------------------------------------------------------------------

His Excellency the Governor General in Council, on the recommendation of the Treasury Board and the Minister of National Defence, makes the annexed Canadian Forces Grievance Process Ex Gratia Payments Order.

 
ANNEX


CANADIAN FORCES GRIEVANCE PROCESS EX GRATIA PAYMENTS ORDER

1. (1) The Chief of the Defence Staff may authorize an ex gratia payment to a person in respect of whom a final decision is made under the grievance process established under the National Defence Act.

 

(2) A payment under subsection (1) may only be authorized if the final decision is made on or after the day on which this Order comes into force.

 
2. The Chief of the Defence Staff may delegate the power to authorize a payment under subsection 1(1) to an officer who is directly responsible to the Chief of the Defence Staff.

 
3. The power to authorize a payment under subsection 1(1) is subject to any conditions imposed by the Treasury Board.

So what?

While the CDS has been given the financial authority, it is deemed of no effect in the HEA systemic denial by TBS. The system has provided a solution which does not solve anything.

 

[TCM621]

Marcus, saw your last up date. Score one for the good guys.

 

[heavy reader]

We have hundreds of items for sale to support the "Soldiers Justice Fund". I live in Dartmouth, and work in Halifax (D-201) and can deliver, or items can be mailed.

Please have a look and support our cause, thank you. (I am open to offers as this is a fundraiser).

http://stores.ebay.ca/UBIQUE-ANTIQUES


(Note, this is not a business - we are selling our assets for a Judicial Review). Status of our fight can be found at http://cas-ncr-nter03.cas-satj.gc.ca/IndexingQueries/infp_RE_info_e.php?court_no=T-1028-13

Marc

466-4339 (After hours)

i_win(at)live.ca

 

[heavy reader]

I notice that the Standing Committee on National Defence (http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6305455&Language=E&Mode=1&Parl=41&Ses=2) is planning a trip to 1 CAD, Shilo in the new year and to PETAWAWA around 5 December 2013.

Personnel are affected by the Systemic HEA denial may want to discuss if there is a town hall or question opportunity as these are the same folks who have a motion in their committee to study and (hopefully) resolve the systemic denial of Home Equity Assistance by TBS.

Here is the motion: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6177983

It would be a good opportunity to share your experience if you see fit. 

"Pursuant to a notice of motion given March 19, 2013:  That the Standing Committee on National Defence undertake a study of the operation of the Canadian Forces home equity assistance program, particularly the Canadian Forces Integrated Relocation Program to reimburse Canadian Forces members who have suffered losses on the sales of their family residence when transferred by the Canadian Forces to other locations, and that the Chair report this Committee's findings and recommendations to the House. "

 

[heavy reader]

As I doubt that I will get a response from the JAG office, I want to find out if a CLASS ACTION on the Systemic Denial of Home Equity Assistance can be filed by a serving member, where other CAF and RCMP members are CLASS ACTION members.

Specifically, concerns surrounding Mutiny as defined in National Defence Act as fol:

“mutiny” means collective insubordination or a combination of two or more persons in the resistance of lawful authority in any of Her Majesty’s Forces


Whereas, the Federal Court identifies the purpose of a class action as follows:

Federal Courts Rules - SOR/98-106 (Section 334.16)
Marginal note:Conditions
334.16 (1) Subject to subsection (3), a judge shall, by order, certify a proceeding as a class proceeding if

(a) the pleadings disclose a reasonable cause of action;
(b) there is an identifiable class of two or more persons;
(c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;

(d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and

(e) there is a representative plaintiff or applicant who

(i) would fairly and adequately represent the interests of the class,

(ii) has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members as to how the proceeding is progressing,

(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and

Marginal note:Matters to be considered
(2) All relevant matters shall be considered in a determination of whether a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact, including whether

(a) the questions of law or fact common to the class members predominate over any questions affecting only individual members;

(b) a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate proceedings;

(c) the class proceeding would involve claims that are or have been the subject of any other proceeding;

[...]

(e) the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.

It would appear that, based on the Federal Court Rules, that a class action may be initiated by a member of the CAF with other members of the CAF.  As the Judicial Review for the systemic denial of home equity assistance is scheduled to be decided upon in the Spring of 2014, I would like to begin this discussion to iron out any issues, and trouble shoot if this Judicial Review can be followed by a Class Action with CAF and RCMP members.

 

[Fishbone Jones]

Call the JAG and ask him. Thinking that you won't get a response and not asking is a useless argument and, frankly, pretty stupid.

 

[heavy reader]

RECCEGUY:

The JAG works for the commander / CoC and cannot provide any legal advice to service members. It puts them in a conflict of interest position and is clearly stated in the regulations. I have experienced this several times, so it is not a baseless arguement.  Just looking for some suggestions.

"CF members are often under the wrong impression that they can rely on unit legal advisers for personal legal advice. Regardless of whether the advice being sought relates to their military careers or their personal lives, members are not normally entitled to receive legal advice from CF legal officers. As a matter of policy, government and CF authorities have determined that legal officers will be utilized to assist government interests. Other than in extremely limited circumstances, CF legal officers will not provide counsel to individual CF members on any aspect of their military service. To provide advice to CF members in this context would be contrary to the lawyer’s professional obligations as a member governed by a provincial law society and would constitute a conflict of interest (COI) with the legal officer’s solicitor/client obligations to the CF and the Government of Canada." (Mil Admin Law Manual at http://jag.mil.ca/publications/adminlaw-loiadmin/miladminlaw-droitadminmil-eng.pdf

However, I'll ask thru the CoC and let you know how it turns out.

 

[Tibbson]

RECCEGUY:

The JAG works for the commander / CoC and cannot provide any legal advice to service members. It puts them in a conflict of interest position and is clearly stated in the regulations. I have experienced this several times, so it is not a baseless arguement.  Just looking for some suggestions.

"CF members are often under the wrong impression that they can rely on unit legal advisers for personal legal advice. Regardless of whether the advice being sought relates to their military careers or their personal lives, members are not normally entitled to receive legal advice from CF legal officers. As a matter of policy, government and CF authorities have determined that legal officers will be utilized to assist government interests. Other than in extremely limited circumstances, CF legal officers will not provide counsel to individual CF members on any aspect of their military service. To provide advice to CF members in this context would be contrary to the lawyer’s professional obligations as a member governed by a provincial law society and would constitute a conflict of interest (COI) with the legal officer’s solicitor/client obligations to the CF and the Government of Canada." (Mil Admin Law Manual at http://jag.mil.ca/publications/adminlaw-loiadmin/miladminlaw-droitadminmil-eng.pdf

However, I'll ask thru the CoC and let you know how it turns out.

Your are right.  The fact they are hired by the CF and serve as the departments legal council means they cannot advise anyone else on a matter in which the CF may be involved.  That goes along with their Provincial Bar Assn rules as well.  Its no different then someone who has been charged trying to ask the Crown for legal advise.  Its a conflict of interest all around. 

 

[McG]

The latest developments on this problem:

Military family battles Harper government in Federal Court over moving losses
Murray Brewster, The Canadian Press
18 February 2014

OTTAWA - A military family that took a $77,000 loss selling their Edmonton-area home because of a forced transfer is challenging the Conservative government in Federal Court.

Maj. Marcus Brauer is protesting a federal Treasury Board decision that denied him full compensation for lost equity under a long-standing Defence Department policy.

The resurrection of his case comes amid lingering questions about moving expenses claimed by military brass.

The government has yet to explain why it covered the nearly $40,000 bill to move a court-martialed and disgraced former brigadier-general to the United Arab Emirates. Nor has there been a public accounting of $47,000 in claims for three officers whose moves were listed as going from a spartan military camp in Afghanistan to Ottawa, Kingston, Ont., and Halifax.

Requests for comment or clarification were unanswered Tuesday.

The Harper Conservatives also remained silent Tuesday after two days' of political attacks on former lieutenant-general and star Liberal candidate Andrew Leslie's $72,000 moving bill.

Brauer said he could not comment on the expense claims of flag officers and noted that the nuts and bolts of moving outlays are handled under a separate benefits program.

But he did say he's been scrambling to make ends meet following a $77,000 equity hit in his move to Halifax, and has been appealing for donations to cover the estimated $20,000 needed to keep the Federal Court challenge going.

"The level of destitution we are going through is not acceptable for any family," he said Tuesday in an interview with The Canadian Press. "After 25 years of service I don't think I should have to go through this."

Military members almost never have a choice about when or where they are moved.

Reimbursement is supposed to be available when a transfer requires the soldier to sell a home in a depressed housing market, but the Defence Department and the Treasury Board disagree over the definition of market.

That has last left at least 146 military families with only a fraction of their losses covered, according to internal records released last year. In some cases, almost $100,000 has been lost because homes had to be sold quickly in conditions following the 2008 economic downturn.

The Treasury Board, which controls federal purse-strings, had been flexible in its interpretation of the market definition until about 2009 when it started cracking down and rejecting more applications, the documents show.

Military officials have been arguing for years without success for the policy to be changed. The chief of defence staff, the military grievance board and the Canadian Forces ombudsman have all said the Treasury Board position is unfair and unjust.

Brauer said a decision from the Federal Court is expected in the spring, but in the meantime he's been left fighting federal lawyers who've put up roadblocks to his request, under access-to-information legislation, for Treasury Board documents explaining the rationale for the rejection.

Depending on how the court rules, he said, he's considering a class-action lawsuit on behalf of the dozens of other families who've contacted him.

http://www.ottawacitizen.com/life/Military+family+battles+Harper+government+Federal+Court/9521392/story.html

 

[heavy reader]

Federal Court date announced:

Judicial Review (s.18) to be heard at Special Sitting in Halifax on 15-APR-2014 to begin at 09:30 duration: 3h language: E.

Location:

Supreme Court (General Division)
The Law Courts Building
1815 Upper Water St.
Halifax, NS
B3J 1S7

Backgrounder: Details and case history can be found at http://healoss.wordpress.com/

I hope to see you there!

 

[heavy reader]

Canadian Forces Major sues feds over moving bill, CBC, 9 April

http://www.cbc.ca/news/canada/nova-scotia/canadian-forces-major-sues-feds-over-moving-bill-1.2603391

 

[TCM621]

Canadian Forces Major sues feds over moving bill, CBC, 9 April

http://www.cbc.ca/news/canada/nova-scotia/canadian-forces-major-sues-feds-over-moving-bill-1.2603391

Marcus,

I am assuming bad news? I figured you would have posted a win.

 

[Occam]

He has no answer yet.  Yesterday was the deadline for TBS to provide the additional material on the DND and RCMP relocation policies to the judge.  Then the judge will have to digest all of that...and write a decision.

 

[TCM621]

He has no answer yet.  Yesterday was the deadline for TBS to provide the additional material on the DND and RCMP relocation policies to the judge.  Then the judge will have to digest all of that...and write a decision.

Well that's OK. Hopefully it will go good.