Millard v. Canada ( Attorney General )
T-2251-97
Campbell J.
15/6/98
25 pp.
Judicial review of RCMP Commissioner's denial of relocation benefits to retiring member of Force-In 1992, married applicant working in Victoria, B.C. where owned home-During 1992 separated from wife; divorced on September 17, 1993-On December 24, 1992 transferred to Newmarket, Ontario, retaining house in Victoria in accordance with RCMP Relocation Directive, s. 4.4.4-On January 1, 1993 applicant began cohabiting with Ms. Baker in Toronto in residence purchased by her in 1988 for $2,583,000-On April 21, 1994 applicant advised RCMP was going to make pre-retirement move-Financial Supply and Services Officer (FSSO) informing applicant Ms. Baker qualified as spouse for purpose of relocation directive as had cohabited together for more than one year, and applicant qualified for relocation reimbursement with respect to joint residence in Toronto, provided first sold house in Victoria, or gave up option for residence under Relocation Directive, s. 4.4.4-On May 17, 1994 applicant surrendered option under s. 4.4.4 with respect to Victoria residence-On June 13, 1994 FSSO advised applicant purchase price of applicant's Toronto residence for purpose of Home Equity Assistance reimbursement would be estimated value as of date applicant began cohabiting with Ms. Baker, and applicant would only be entitled to reimbursement if 10% market decline since that time-Applicant providing real estate broker's statement 23% decline in Toronto real estate market for period in question-On August 5, 1994 Ms. Baker sold Toronto house for $1,350,000-Applicant requested reimbursement for $207,000, representing difference between sale price and appraised value of house on January 1, 1993-Request denied on basis time frame for consideration from date applicant relinquished option on Victoria home to date Toronto house sold, during which negligible market decline-Level I grievance dismissed-Level II grievance resulting in Commissioner's decision-Application allowed-Chairperson of External Review Committee's recommendation reflecting errors in interpretation of rules, which taken together constitute error in law-As Commissioner's decision based almost exclusively on findings of External Review Committee, and not containing any independent critical analysis, Commissioner's decision based on error of law-Rules, s. 1.1.1 expressing intention to reimburse, compensate members for bona fide relocation claims-Chairperson's interpretation not working in bona fide cases-Such cases could not be classified as "exceptional hardship" under s. 4.4.10(j)(ii), thus qualifying for special relief-Therefore Chairperson's principal interpretative finding of relationship between s. 4.4.4 and 4.4.10 fundamentally flawed-Under "Disposition and Acquisition of Accommodation", s. 4.1.1 providing intention to provide relocation "support"-S. 4.4.4(a) intending permission be obtained to retain old-post residence-Approval requirement implying must be good reason to retain residence-S. 4.4.4(c) stipulating maximum real estate fee payable on old-post retained residence that based on appraisal process outlined in s. 4.4.4 (f)-"Expenses" referred to in s. 4.4.4(g) only "broker's fees"-S. 4.4.10 distinct break in continuity of rules between ss. 4.2 and 4.6-Addresses yet another category of support: "Home Equity Assistance"-Partial equity protection considered "compensation"-Provision of this form of compensation different than reimbursement of real estate broker's commission in s. 4.4.1-Provisions of "Home Equity Assistance" under s. 4.4.10 and rules relating to retained residences under s. 4.4.4, specifically s. 4.4.4(g), must be read, applied separately-S. 4.4.10 providing compensation only applies to member's principal residence-Whether "principal residence" question of fact-Compensation process applies to principal residences from which member relocating over time-Home Equity Assistance liability can exist for two residences at any one time-Purpose to financially support relocating member-Member not collecting Home Equity Assistance as windfall benefit, but as compensation provided over and above loss already suffered-May be two or more Home Equity Assistance liabilities outstanding, depending on rapidity and frequency of member's relocation-If bona fide, should all qualify for compensation-Under compensation provisions, additions to definition of "principal residence" for purposes of obtaining compensation; not only must it be principal residence, but must also be owned, occupied by member and/or spouse-Applicant at no time owned Toronto residence, although occupied it with Ms. Baker-Applicant only able to take advantage of Home Equity Assistance provision if Ms. Baker qualifying as applicant's "spouse"-As divorce final only on September 17, 1993, respondent submitting applicant cannot have "spouse" and at same time be recognized as having common law spouse-No indication in rules concept of common law marriage imported into s. 4.4.10(f)-Definition of "spouse, common-law" stipulating "if these conditions have been satisfied, a common law spouse will be entitled to the same reimbursement as a spouse under this directive"-Conditions referred to only those set out in definition-Thus, none other, including freedom to marry, factor to be considered-Applicant's marriage having no effect on Ms. Baker's potential status as "spouse, common-law".