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Copy of Case Management Journey

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Marcus Brauer

on 3 November 2013

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Transcript of Copy of Case Management Journey

Systemic Denial of Military Relocation Entitlements by Treasury Board Secretariat
19 April 2010 We're moving!
between 2007-2010, ALL 146 HEA applications were denied!
Objectives
Entitlement provided
Compensation for secondary effect
Damages
Resolve the policy issue
Review all HEA files

Quick Facts on Systemic Denial of HEA Entitlements
How did it go so wrong?
TBS has delegated authority from the Financial Administration act, however they went beyond their authority by using blanket denials (i.e. "there are no depressed markets in Canada").
2009
Canadian Forces Integrated Relocation Policy (2009)

So What?
How you can help
Contribute to soldiers justice fund
Spread the word
Support affected families
Write your MP

Home Equity Assistance
Standing Committee on National Defence and Veteran's Affairs
(SCONDVA) 1998- Chapter III The Housing Crisis

The need
the need to assist relocating military members. If real estate values in their region are on a downward trend when a posting comes, they may have to sell their homes at a loss. The Home Equity Assistance Plan was implemented as a result.
SCONDVA 1999
"Most public servants do not have to move and deal with the vagaries of the real estate markets as often as military personnel do, so the special requirements of the latter must be taken into consideration.
"Unlike most Canadians, they (soldiers) also have to move more frequently, have
to sell and buy homes more often, and, not by choice, have to contend with significant differences in housing prices from one region to another. If real estate values in their region are on a downward trend when a posting comes, they may have to sell their homes at a loss. If they move to an area where homes are much
more expensive, they may only be able to afford less expensive and smaller homes than the one sold at the previous location".
SCONDVA 1999
"Some (soldiers) may even abandon their dream of homeownership because they lost too much money on the sale of their home at the old location".
The Home Equity Assistance Program (HEAP) was established to help
homeowners who have to leave an area when the real estate market is depressed.

To be eligible, homeowners have to demonstrate that the home prices in the area have declined by 10% or more between the time of purchase and the time of sale. This is not always easy to do because of conflicting information and other
factors. Delays in determining eligibility for assistance has also been a problem and revised application procedures were introduced in 1996 to deal with this.

However, given the number of complaints we heard, the way eligibility is determined still creates problems..
SCONDVA 1999
Some people suffered significant financial losses when they sold their homes in a depressed real estate market, but could not get assistance because the price of houses in their area dropped by only 8 or 9% or because of the way the adjusted
purchase price was determined. Losing assistance because of one or two percentages is of course disappointing, but it is even more difficult to accept if people do not have confidence that their eligibility is determined fairly.
SCONDVA 1999
"It should be sufficient to demonstrate that the local real estate market is depressed rather than trying to determine as well if the price of homes has dropped by 10% or not. In short, procedures should be simplified and the 10% rule should be abandoned. We therefore recommend: 36. That the Home Equity Assistance Program be revised, notably by eliminating the 10% rule, to ensure that homeowners have access to fair and equitable assistance when, because of a new posting, they have to sell their home while the local real estate market is depressed"
Policy Clarification 2009/2010
CANFORGEN 078/10 2010
CANFORGEN 130/09
"a. it should meet the evolving needs of CF personnel;

b. the intent of the policy is to ensure that personnel are not required to pay for expenses that ought to get assumed by the CF; and

c. I wish to reconfirm that there is ample scope within the CF Relocation Program to reimburse personnel for the majority of expenses incurred during a move".
a. " There is a perception that benefits have been reduced as opposed to enhanced;

b. The Treasury Board Relocation Policy in the Middle of a period of government restraint has left the impression that saving money on relocation costs at the expense of CF personnel and their families is the primary objective. This is absolutely not the case. You can still apply to the directorate of compensation benefits administration for special consideration. In short, the policy was designed to ensure YOU DO NOT GO OUT OF POCKET FOR EXPENSES THAT ARE THE RESPONSIBILITY OF THE CF".
May 2010
Real estate analysis confirms drop in comparable real estate prices of 23.11% for the community of Bon Accord since house was bought.
10 May 2010
88 page application for HEA submitted.
July 2010
"DCBA denied the request for reimbursement of 100% of his equity loss through HEA. The DCBA response to the request indicated that there was no possibility for a relocating member to be reimbursed for losses under the current CF IRP policy".
13 July 2010
Submitted redress of grievance.

10 August 2010
The grievance was received by the Director General Compensation and Benefits (DGCB) as the Initial Authority (IA), which responded that the CF IRP directive represented TBS approved policy and that the Department had no authority to amend such a policy or extend a benefit beyond its prescribed margins. It also stated that the TBS has declared that there were no such locations in Canada designated with depressed market status for the year 2010.
"Maj Brauer requested adjudication by the final authority (FA) 19 September, 2011, affirming that DCBA had used the TBS pre-determination that there were no depressed markets in Canada to deny his request despite the proof he had provided. It was concluded that the FA should direct DCBA to make such a submission and, should the submission not be approved, submit the grievor’s file to the Director Claims and Civil Litigation (DCCL) for compensatory consideration, with full support of the CDS. The FA could not make any reimbursement for financial hardship because the grievor’s move fell under Section 9 of CBI 209 rather than Section 8. Ministerial discretion under CBI 209.013 could not apply as the reimbursement would be contrary to the CF IRP policy.
HEA application sent to TBS (denied)
DCBA then submitted Major Brauer’s HEA application from 10 May 2010 with a cover letter, to TBS for review,
Redress to Chief of Defence Staff (CDS) 27 Feb 2011
On 27 February, 2013, Maj Brauer requested a review by the CDS and consideration for provision of relief and resolution of the long standing impasse between TBS and DND precluding the systemic denial of 100% Home Equity Assistance (HEA) entitlement. This was done in an effort to avoid a judicial inquiry that would cost the member an estimated $20,000 more out of pocket.
19 Sept 2011 CDS supports application but cannot resolve
CDS Decision
The CDS agreed with the Board's findings and its recommendation to partially uphold the grievance. The CDS directed the DGCB to prepare and transmit the grievor's HEA submission to Treasury Board (TB), in accordance with the CF IRP provisions, for evaluation of depressed market status. In the event that TB should not find in favour of this submission, the CDS invited the grievor to forward his file to DCCL for compensatory consideration as a claim against the Crown, with his full support.


Since there are now a number of grievances relating to CF members who have experienced severe losses in home equity as a result of being posted to and from the Edmonton area, the CDS reiterated his previous direction to the DGBC, as recommended by the Board in previous files, which is to continue to engage TB in vigorous negotiations. The CDS specified that the negotiations should be focused as follows...


a. to revisit the TB's determination that there were no depressed markets in Canada in 2010, including the definition of ''community''; and

b. to re-examine the CF IRP HEA provisions, in particular the 20% depressed market criteria and the $15,000.00 maximum amount reimbursable under the CF IRP core envelope.


5 Nov 2012
Fall 2013
2014
2013
6 March 2012
24 Oct 2011
Appeal to Department of Justice (DCCL)
DCCL (Department of Justice) denies the appeal on 27 Nov 2012
Obtained Lawyer Initiated Judicial Review (2013)
2013
CF Ombudsman Engaged
Member of Parliament Engaged

Action or Class Action
to be confirmed
DCBA resubmits HEA application from 2010 to TBS
TBS denies the application
Initiated Claim against the Crown
DCCL (department of justice) denies the claim on Oct 22nd, 2012
9 May - Initiated Judicial Review
21 May -Crown tries to get thrown out due to timelines (thrown out)
20 Sept - Crown delays and refuses to provide documents
7 Oct - Crown attempts further delays citing cabinet confidences

2010 grievances:

$45,000 loss - "The CDS agreed with the Board's recommendation to deny the grievance. The CDS also agreed with the Board's systemic recommendation and he directed the DGCB to review the HEA provisions with TB with a view to reducing the impact of losses on sale to a reasonable and minimally detrimental level. One issue for review is the definition of "community": using a large metropolitain area as a basis for defining a community would average out large discrepancies amongst the communities that make up the larger area. The CDS strongly support the grievor's case as a valid compensation as a claim against the Crown for the loss of equity not reimbursed under the CF IRP, and he forwarded the file to the DCCL"

$53,000 loss-"The CDS agreed with the Board's recommendation to partially uphold the grievance. The CDS redirected the DGCB to review the adequacy of the HEA provisions with Treasury Board with respect to ensuring the aim of minimizing any negative effect on CF members. With respect to the grievor's request regarding interest charges, the CDS agreed with the Board that there are no provisions allowing their reimbursement."


2011 Grievance:

$88,000 loss-"The CDS agreed with the Board's findings and its recommendation to partially uphold the grievance. The CDS directed the DGCB to prepare and transmit the grievor's HEA submission to Treasury Board (TB), in accordance with the CF IRP provisions, for evaluation of depressed market status. In the event that TB should not find in favour of this submission, the CDS invited the grievor to forward his file to DCCL for compensatory consideration as a claim against the Crown, with his full support.
Since there are now a number of grievances relating to CF members who have experienced severe losses in home equity as a result of being posted to and from the Edmonton area, the CDS reiterated his previous direction to the DGBC, as recommended by the Board in previous files, which is to continue to engage TB in vigorous negotiations. The CDS specified that the negotiations should be focused as follows:
a. to revisit the TB's determination that there were no depressed markets in Canada in 2010, including the definition of ''community''; and
b. to re-examine the CF IRP HEA provisions, in particular the 20% depressed market criteria and the $15,000.00 maximum amount reimbursable under the CF IRP core envelope."


2012 Grievances

$53,000 loss-"The CDS agreed with the Board that the grievance be partially upheld. Since the grievor has provided considerable information that seemed to meet the depressed market criteria of article 8.2.13 of CF IRP 2009 , supporting his contention that Calgary's condos market had dropped, the CDS directed that his file be sent through DCBA to TBS for determination.
As recommended by the Board in several HEA cases, and given the detrimental effect on CF members, the CDS directed CMP to review the adequacy of the CF IRP HEA provisions with TB to minimize any negative impact to CF members brought on by the exigencies of military service.

$101,500 loss-"The CDS agreed with the Board that the grievance be partially upheld. Since the grievor has provided the information required by article 8.2.13 of CF IRP 2009 in support of his contention that his neighbourhood in Edmonton was a depressed market, the CDS directed that his file be sent through DCBA to TBS for determination.
As recommended by the Board in several HEA cases, and given the detrimental effect on CF members, the CDS directed DGCB to review the adequacy of the CF IRP HEA provisions with TB to minimize any negative impact to CF members brought on by the exigencies of military service."

$76,000 loss-"The CDS agreed with the Board's findings and recommendations that the grievance be denied. Section 1.3.02 of the CF IRP 2009 recognizes that there will be situations when exceptional circumstances may occur that was not already envisioned in the policy. In the grievor's case, the loss of home equity was covered by section 8.2.13 of the CF IRP 2009. In this case, the grievor did not suffer a 20% decline in housing costs as required by the disposition.
The CDS reiterated his endorsement to the Board's systemic recommendation in previous cases that the HEA provisions be reviewed."

$79,000 loss - CDS decision pending

$37,000 loss - "The CDS agreed with the Board's findings and recommendation that the grievance be denied. However, the CDS agreed with the Board that the situation incurred by CF members with the application of the current Home Equity Assistance (HEA) policy is egregious. Therefore, the CDS confirmed the Board's systemic recommendation submitted in previous files on this matter and directed Director General Compensation and Benefits to actively review the adequacy of CFIRP HEA provisions with Treasury Board"

$65,000 loss CDS decision pending.


Note that this one component of one policy has been under review for at least three years to the detriment of all of the families above.


Access to information reports show:
all 146 applications between 2007-2010 denied
Different standards for each application
Denials reverse engineered after the fact
The Treasury Board delegates, pursuant to subsection 6(4) of the Financial Administration Act, to the Secretary of the Treasury Board, the Board’s authority under subsection 35(2) of the National Defence Act to determine and regulate payments that may be made to Canadian Forces members, for the following specific purposes:
(b) to make minor amendments to the unique travel and relocation benefits that may be payable to Canadian Forces members,
if the Secretary is of the opinion that the amendments will not change the essential character of those benefits.

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