Date: 20031219
Docket: T-1308-03
Citation: 2003 FC 1490
Between:
LAURENT RIVARD
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision by the Veterans Review and Appeal Board (the board), dated June 5, 2003, refusing to award an additional retroactive pension to the applicant under subsection 39(2) of the Pension Act, R.S.C. (1985), c. P-6 (the Act).
The facts
[2] The applicant was in the Canadian Forces during the Second World War, from June 24, 1943 to February 6, 1946.
[3] In November 1945, the applicant returned to Canada because of a psychiatric condition and was discharged for medical reasons on February 6, 1946. The applicant complained of psychiatric symptoms in 1950 and in 1964.
[4] On September 19, 1994, the Canadian Pension Commission ruled that the anxiety suffered by the applicant was the result of his military service during the Second World War.
[5] On April 16, 1997, the applicant made a new disability application under subsection 21(5) of the Act, alleging that coronary disease and gastro-esophageal reflux resulted from the anxiety that had given rise to his right to a pension. On June 2, 1997, the Minister of Veterans Affairs refused this application. This decision was upheld by the review panel of the Veterans Appeal and Review Board (the panel) on September 23, 1997.
[6] The applicant appealed the decision dated September 23, 1997, under sections 25 and 26 of the Veterans Review and Appeal Board Act, R.S.C. 1985, c. 18 (the VRAB Act). On January 28, 1998, the board upheld the panel's decision.
[7] On September 21, 1999, the applicant asked the board to reconsider the decision dated January 28, 1998, under subsection 32(1) of the VRAB Act and on April 12, 2000, the board upheld the decision. This decision of the board was the subject of a judicial review - it was set aside, and the matter was sent back to the board for rehearing on June 26, 2001.
[8] On September 20, 2001, the board decided that the right to a pension in the proportion of one-fifth was representative of the role that chronic anxiety could have played in the aggravation of the applicant's coronary disease. The pension was declared effective as of September 20, 1998 - three years before the date at which the pension was awarded.
[9] On December 11, 2001, the applicant requested that the board reconsider the decision dated September 20, 2001, submitting that the board had erred in its interpretation of the Act in failing to award additional retroactivity under subsection 39(2) of the Act.
[10] On January 23, 2002, under the provisions of subsection 32(1) of the VRAB Act and notwithstanding section 31, the board found that the applicant did not qualify for an additional retroactive pension under subsection 39(2).
[11] On July 18, 2002, the applicant applied for reconsideration of the decision and on June 5, 2003, the board upheld the decision dated January 23, 2002. This decision is the subject of this application for judicial review.
The board's decision
[12] On June 5, 2003, the board denied the applicant's application for reconsideration because the applicant had claimed additional retroactive pension and because the delays incurred when an applicant is exercising his rights before the Federal Court do not qualify as delays for the purposes of subsection 39(2) of the Act. The board explains its position as follows in its decision:
[Translation]
Counsel, on behalf of the appellant, alleges that the board erred in its interpretation in failing to make it retroactive pursuant to subsection 39(2) of the Pension Act.
The board finds that this application is not founded and for a second time the board states that there is no error in law because there was no claim for an additional retroactive pension pursuant to section 39(2) of the Pension Act. In fact, the board could not have erred on this matter if it was never the subject of a decision.
Secondly, the board is of the opinion that the appellant who exercises his rights before the Federal Court and the delays that result therefrom are not sufficient grounds to grant additional retroactive compensation and are not administrative delays within the meaning of subsection 39(2).
The relevant legislation
[13] The relevant provisions of the Act are as follows:
2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
39. (1) A pension awarded for disability shall be made payable from the later of
(a) the day on which application therefor was first made, and
(b) a day three years prior to the day on which the pension was awarded to the pensioner.
(2) Notwithstanding subsection (1), where a pension is awarded for a disability and the Minister or, in the case of a review or an appeal under the Veterans Review and Appeal Board Act, the Veterans Review and Appeal Board is of the opinion that the pension should be awarded from a day earlier than the day prescribed by subsection (1) by reason of delays in securing service or other records or other administrative difficulties beyond the control of the applicant, the Minister or Veterans Review and Appeal Board may make an additional award to the pensioner in an amount not exceeding an amount equal to two years pension.
2. Les dispositions de la présente loi s'interprètent d'une façon libérale afin de donner effet à l'obligation reconnue du peuple canadien et du gouvernement du Canada d'indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge.
39. (1) Le paiement d'une pension accordée pour invaliditéprend effet à partir de celle des dates suivantes qui est postérieure à l'autre_:
a) la date à laquelle une demande à cette fin a été présentée en premier lieu;
b) une date précédant de trois ans la date à laquelle la pension a été accordée au pensionné.
(2) Malgré le paragraphe (1), lorsqu'il est d'avis que, en raison soit de retards dans l'obtention des dossiers militaires ou autres, soit d'autres difficultés administratives indépendantes de la volonté du demandeur, la pension devrait être accordée à partir d'une date antérieure, le ministre ou le Tribunal, dans le cadre d'une demande de révision ou d'un appel prévus par la Loi sur le Tribunal des anciens combattants (révision et appel), peut accorder au pensionné une compensation supplémentaire dont le montant ne dépasse pas celui de deux années de pension.
[14] The relevant provision of the VRAB Act is the following:
| 3. The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants, may be fulfilled.
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3. Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s'interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l'égard de ceux qui ont si bien servi leur pays et des personnes à leur charge.
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Analysis
[15] I believe that the board incorrectly applied subsection 39(2) of the Act, which is an error of law that warrants the intervention of this Court. In fact, as this case is concerned with an issue of statutory interpretation, the applicable standard of judicial review is that of correctness, as the Federal Court of Appeal held in Canada (Attorney General) v. MacDonald (January 23, 2003), A-542-01, 2003 FCA 31, at paragraph 11:
[11] The Applications Judge did not expressly address the standard of review to be applied to the Board's decision, but seems to have applied the correctness standard. Since the disputed question involves the interpretation of the statute, I agree that in this case correctness is the applicable standard.. . . .
[16] Here, the board wrongly made the exercise of the discretion conferred upon it by the provision in question dependant upon a specific request for additional compensation by the pensioner. There is nothing in subsection 39(2) that restricts the discretionary powers given to the board in such a way. The only requirement for the exercise of the discretion conferred by the provision is that the board be of the opinion "that the pension should be awarded from a day earlier than the day prescribed . . . by reason of delays in securing service or other records or other administrative difficulties beyond the control of the applicant." Thus, whether or not a request for additional compensation pursuant to subsection 39(2) is made, the board may, if the record before it indicates that there were such delays or other administrative difficulties and if it is of the opinion that the pension should be awarded from an earlier date because of these delays or administrative difficulties, award additional compensation to the pensioner where the amount does not exceed two years of pension. In my view, this interpretation of subsection 39(2) is supported by the duty imposed upon the board by section 3 of the VRAB Act to interpret the provisions of the Act liberally "to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled". Further, section 2 of the Pension Act requires that the provisions of that Act be liberally construed and interpreted.
[17] Even though this error in law by the board is sufficient to warrant the intervention of this Court, it is also my view that it was patently unreasonable for the board not to award additional compensation to the applicant on the ground that the delays resulting from the exercising of his rights before this Court could not be construed as administrative delays under subsection 39(2). In fact, the applicant submitted the application for his cardiac problems and his gastro-esophageal reflux on April 16, 1997. It was not until September 20, 2001, that the board finally decided to award him compensation for these problems and only after the matter was brought before the Federal Court. In my view, the fact that the board could not have awarded this benefit earlier is the result of administrative obstacles arising from the necessity to wait for the result of the proceeding in this Court concerning an earlier decision by the same board. In view of the obligation imposed on the board by section 3 of the VRAB Act and by section 2 of the Pension Act to liberally construe and interpret their provisions, I believe that it should have found that this amounted to "administrative difficulties beyond the control of the applicant".
[18] Accordingly, the application for judicial review is allowed and the matter is referred back to a differently constituted board for rehearing in accordance with these reasons. There is no ruling as to costs, as they were not requested by the applicant.
"Yvon Pinard"
JUDGE
OTTAWA, Ontario
December 19, 2003
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1308-03
STYLE OF CAUSE: LAURENT RIVARD v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 27, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: December 19, 2003
APPEARANCES:
Jean-Pierre Morin FOR THE APPLICANT
Patricia Gravel FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morin, Metcalfe, s.e.n.c. FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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