January 30, 2019
41.4.125
Background
The grievor worked for Department A located in Province X since August 2007. In July of 2011, the grievor received and accepted a new position located in City F, Province Y effective September 12, 2011 with full relocation entitlements. Shortly after accepting the offer and prior to relocation, the grievor had made inquiries as to whether the grievor would be entitled to full benefits under the NJC Relocation Directive for the sale of the grievor’s house as the grievor’s son was also listed on the Land Title Certificate. The grievor was informed that because the grievor co-owned the property with the grievor’s son, any sale benefits would be distributed at 50%. The grievor relocated to City F in September 2011 and the house was sold on January 31, 2012. The grievor submitted a claim for reimbursement on the sale of the property shortly thereafter and the Contracted Relocation Service Provider (CRSP) advised that the Directive will only pay 50% of the sale proceeds as the property was co-owned. The grievor was given an opportunity to submit documentation to the contrary and around May 2012, the grievor was informed that the grievor’s documentation supports the position that the property was co-owned.
Grievance
The grievor is grieving the Employer’s decision to not pay for the relocation as per NJC Relocation Policy.
Bargaining Agent Presentation
The Bargaining Agent representative contended that the grievor was not treated within the intent of the Directive as the grievor was the sole beneficial owner of the property at all times. In 2008, when the grievor purchased the principal residence in City G, the grievor’s son was a dependant attending postsecondary education. The grievor’s son’s name was only added to the Title as a “joint tenant” for cultural reasons, such that if anything were to happen to the grievor, as the oldest son, he would be responsible for caring for the family. The son eventually completed his studies, got married and moved out of the country in 2010.
In 2011, after being declared surplus, the grievor accepted a new position and relocated to City F, Province Y. Following the grievor’s relocation, the CRSP advised that because the principal residence was co-owned, benefits related to the sale of the home would be distributed at 50%. Following this decision, enquiries were made with the Department’s Relocation Coordinator as well as Treasury Board regarding its interpretation of co-ownership vs. joint tenants. The response the grievor received was that joint-tenants is considered the same as co-ownership and if the grievor claims to be otherwise, the grievor must provide an affidavit and legal documents explaining this and why the other name is on the deed.
Shortly thereafter, the grievor and the grievor’s son provided affidavits explaining that the grievor was at all times the sole beneficial owner of the property and that the grievor’s son was not involved with any expenses related to the property and was only a trustee. The Bargaining Agent representative elaborated that the grievor’s son was a bare trustee, having no independent powers, discretion, or responsibilities. Apart from having his name on the title, the son did not have any responsibilities for the property.
The Bargaining Agent representative indicated that property law in Province X is regulated by the provincial Law of Property Act (LPA) and its definition of co-ownership differs from that of Treasury Board and should take precedent.
Although the LPA defines co-owners as including joint tenants or tenants in common, jurisprudence from the Court of the Province indicates that joint tenancy must fulfil the following four conditions, called unities:
- Unity of title – property transfer happens under the same legal instrument;
- Unity of interest – interest of each joint tenant must be identical in nature, extent, and duration;
- Unity of possession – each joint tenant has an undivided possession of the whole property; and
- Unity of time – the interest of each must vest (meaning to take effect) at the same time.
Although the Bargaining Agent representative accepts that the unity of title and time exist, it was argued that the unity of interest and possession were not present. As per the affidavits, the son did not contribute to the mortgage or maintenance of the property and therefore his interest differed from that of the grievor at all times and the unity of interest did not exist. Furthermore, as the grievor had 100% control and responsibility of the property, at no time did the son have rights to it; therefore, the unity of possession also did not exist. As the unity of interest and possession were not present, the grievor and the grievor’s son cannot be considered joint tenants or tenants in common as per the LPA.
The Bargaining Agent representative provided further jurisprudence to support the argument that the grievor’s son was merely a bare trustee, having no independent powers, discretion or responsibilities and performing no duties related to the property.
As the principal residence was registered in Province X, the Bargaining Agent representative argues that the LPA’s definition and interpretation of co-ownership supersedes the Relocation Directive’s definition. As co-ownership could not be established under the LPA, the principal residence should not be considered co-owned as stipulated in section 8.6 of the NJC Relocation Directive.
Departmental Presentation
The Departmental representative submits that the letter of offer signed by the grievor on July 12, 2011, indicated that the Employer would provide assistance to facilitate the grievor’s relocation if the eligibility requirements of the NJC Relocation Directive were met. On July 26, 2011, the grievor enquired with the CRSP concerning his son’s name being on the deed and explained that he and his wife assumed financial responsibility of the home. The CRSP indicated that because the deed had both the grievor’s and the grievor’s son’s name on it, the home was considered co-owned and benefits would be distributed at 50%. The grievor indicated that the grievor would consider the options for the sale of the home because of the circumstances.
The grievor sold the home in January 2012; however, the grievor did not take any steps to remove the grievor’s son from the deed and as a result, sales benefits were paid at 50%. Following this decision, the grievor provided the CRSP with an affidavit from the grievor and the grievor’s son. The CRSP advised that the affidavits would be forwarded to the grievor’s departmental coordinator, however, they could not reimburse the requested cost until a title or deed has been received indicating that the grievor was the sole owner of the property. No deed or title was provided demonstrating this. The grievor’s affidavits were later interpreted by Treasury Board and their response supported the position that the grievor and the grievor’s son were the legal owners of the property.
The Departmental representative submits that the grievor’s son was not a dependant at the time of sale and therefore, they legally co-owned the home and the grievor was correctly compensated at the rate of 50%. Furthermore, the grievor did not provide a title or deed showing him as sole owner of the property prior to the sale and therefore, did not provide information regarding the percentage of ownership the CRSP requires as outlined in section 8.6 Co-Ownership.
Regarding the Province X Law of Property Act (LPA) and the four unities; although the bargaining agent representative submitted that the unity of possession and interest were not met, the Department argues the contrary. The unity of possession exists such that, as explained by the Bargaining Agent, should anything happen to the grievor, the son would assume the role of patriarch and take possession of the property, thereby fulfilling the unity of possession, as well as the requirements of being tenants in common under the LPA. Furthermore, although their affidavits suggests interests differed, they both had mutual interest in conferring responsibility of the property in the event anything happened to the grievor and therefore met the unity of interest.
The grievor was previously advised by the CRSP (and later by Treasury Board) that the grievor needed to provide a title or deed indicating sole ownership of the property and the grievor did not. Although the grievor and the son did provide affidavits stating that the grievor was the sole beneficial owner, the affidavits were dated five (5) months after the grievor sold the property and nine (9) months after the CRSP informed the grievor of the impact that co-ownership would have on the grievor’s entitlements.
The Departmental representative argues that if the grievor had every intention of being the sole owner of the property, he:
- would not have registered the son’s name on the title as joint tenants;
- could have applied to the Courts requesting termination of the co-ownership as allowed for under the LPA; or
- could have had the son transfer the interest of the property to the grievor
None of these actions were taken and in the absence of an application to sever, it appears the grievor intended to enjoy the benefits of joint tenancy (in the form of survivorship) as well as the benefits of having a bare trustee, where the grievor would be able to get full reimbursement as the sole owner of the property. The grievor is effectively asking the CRSP, the Agency and now the Relocation Committee, to assume the role of the Court and determine that co-ownership did not exist, despite the express wording on the deed.
Executive Committee Decision
The Executive Committee reviewed the report of the Relocation Committee and noted that it could not come to an agreement on the intent of the Directive with respect to co-ownership. The Executive Committee could not reach consensus on this issue either. As such, the Committee reached an impasse.