Date: 20071214
Docket: T-916-06
Citation: 2007 FC 1322
Ottawa, Ontario, December 14, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
THE ESTATE OF HORACE YALE
KRASNICK and
RONALD MARK KRASNICK
Applicants
and
MINISTER
OF VETERANS AFFAIRS CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application seeks judicial review of the decision of the Director General,
National Operations Division of the Department of Veterans Affairs dated May 5,
2006 denying Horace Yale Krasnick eligibility for reimbursement of Chronic Care
Benefits in the period from June 17, 2000 to October 8, 2004. The application
seeks to quash that decision and the decisions which it affirms; the
application also seeks in the alternative a declaration as to certain sums of
money, with interest, and certain declarations as to the Charter. For
the reasons provided, I find that the application is allowed to the extent that
the Minister is to reconsider the matter having in mind these Reasons which
indicate that monthly payments for the 18 months preceding October 2004 are
allowable, together with interest, all as more particularly set out in these
Reasons. The Applicants are awarded costs to be taxed in the middle of Column
III.
[2]
This
application was commenced in the name of Horace Yale Krasnick (referred as HYK
by the parties but whom I will call Horace) and his son Ronald Mark Krasnick
(referred to as RMK by the parties but whom I will call Ronald); who had power
of attorney respecting the affairs of Horace.
[3]
In
brief, Horace served with the Canadian Armed Forces in the Second World War
during which time he was injured in the right knee for which he received a
small pension from the Department of Veterans Affairs (DVA). Horace died in
his 91st year in June 2006, about two weeks after this application
was commenced. This application has been carried on in the name of the Estate
of Horace and of Ronald who became executor of Horace’s will. Ronald is Horace’s
only heir.
[4]
From
1955 to 1999, Horace lived at home and subsequently in a facility in the Côte
St. Luc area of Montreal. In 2000, at the instance of his son, Horace
was examined by medical specialists in Montreal who
recommended that he be placed in a long-term care facility. Ronald was an
orthopaedic doctor but resided and practiced in the United States and deemed
it impractical to move his father there. There appears to have been a lack of
availability of proper care facilities in the public sector and, after
consultation with the specialists who recommended that he be placed in a
long-term care facility, Horace was placed in a facility known as Chateau
Westmount Nursing Home (sometimes called CW by the parties) on June 17, 2000
where he remained for the rest of his life. The expenses incurred by Horace at
such facility were in the order of $4,850.00 per month. They were paid first
out of the assets of Horace and later when the assets ran out, were paid by Ronald.
[5]
In
about October 2004, Ronald was informed, by coincidence, that Horace might be
eligible to receive benefits from DVA to alleviate the expenses paid for his
care at Chateau Westmount. On October 8, 2004, Ronald filed an application
with DVA on his father’s behalf for receipt of benefits in respect of the care he
was receiving. Subsequently, DVA advised Ronald that his father would be
entitled to benefits of $4,063.44 per month. Payments of those benefits were
made effective as of October 2004. However, the claim for reimbursement
retroactive to the date that Horace entered the care facility on June 17, 2000
was denied. The Applicants now seek recovery of all or a portion of the money
spent on care facilities for Horace between June 17, 2000 and October 2004 or
at least declarations as to entitlement to the same and other relief.
ISSUES
[6]
The
Applicants raised a large number of “issues” some of which were argued at the
hearing to a greater or lesser degree. Some new issues were raised at the
hearing including some which were endeavoured to be raised only during argument
in reply. The issues can, at the end of the day, be reduced to two:
1. Effective Notice: Was the DVA required to
provide specific notice to Ronald as to benefits available to Horace and if so,
as of what time. Even if specific notice was not required, was the DVA
required to provide general notice and; if so, was what they did adequate?
If
such notice was required but not given, must the decision of May 5, 2006
limiting recovery to on and after October, 2004 be set aside?
2. Limitation of Recovery: Was the decision
of May 5, 2006 correct, in the result, in limiting recovery to expenses
incurred on and after October 2004? If not, must the decision be set aside?
DECISION AT
ISSUE
[7]
The
decision in respect of which judicial review is sought is that of the Director
General (Hebert) dated May 5, 2006. This purported to be a “final decision”
under the scheme of the Veterans Health Care Regulations SOR/90-594
section 36 which provides for a first decision, a review of that decision if
requested, followed by a “final decision” under subsection (2), if requested.
[8]
A
first decision is set out in a letter dated February 14, 2005 from a Client
Service Agent of DVA (Dunoso). That letter simply stated, in substance:
This is to inform you of the
Residential Care arrangement regarding Mr. Krasnick Horace’s [sic] admission at
the Château Westmount Residence on October 2004.
Please be informed of the
following amounts effective from October, 8th 2004 to September 30th,
2005:
·
Accommodation
fees at Château Westmount: $4 850.00 per month
·
Responsibility
of the Veteran: $ 786.56 per month
·
The
Responsibility Veteran Affairs Canada: $ 4
063.44 per month
[9]
A
review was requested. Ronald and solicitors acting for Horace both made
written submissions. A review decision by letter dated November 15, 2005 from
a Regional Director General (Bastien) maintained the original decision. In
substance it said:
Your file was
carefully reviewed and every consideration has been given to your case.
Unfortunately, the decision rendered must be maintained as it is in accordance
with our regulations. In fact, a client is eligible to receive indeterminate
care or chronic care in a departmental facility, contract bed or other facility
when the client’s health needs are confirmed by a nurse’s or area counsellor
assessment, which was completed in October 2004.
[10]
A
“final decision” was requested. Applicants’ solicitors made submission. This
resulted in the Hebert decision of May 5, 2006. That decision was fourteen in
pages in length, not all of which will be reproduced. It concluded:
The decision of the Department
issued November 15, 2005 is confirmed, under subsections 34.1(4) of the
Veterans Health Care Regulations. The effective date of eligibility for the
cost of chronic care at the Chateau Westmount residence is October 2004.
[11]
The
parties are agreed that the earlier decisions, Dunoso and Bastien, can be
considered to be subsumed in the Hebert decision of May 5, 2006 and that it is
sufficient to seek judicial review only of the Hebert decision and not of the
two earlier decisions.
CONCESSIONS
BY THE PARTIES
[12]
Due
to the multiplicity of issues, sub-issues and points in argument raised by the
parties, both in their memoranda and at the hearing it is important to note
what was conceded by Counsel during the course of the hearing:
1.
For the Applicants
·
The
Applicants are claiming relief only under section 22.1 of the Veterans
Health Care Regulations and not otherwise. In particular they do not seek
relief under section 21 or section 22 of those Regulations.
·
The
Court need not be concerned with the income qualification provisions of subsections
22.1(2) or (3). The Respondent agrees.
·
The
claim for $6,829.32 for pension benefits from February 2000 to February 2001
has been settled and is not at issue in these proceedings. The Respondent
agrees.
·
The
fixing of $4,063.44 as the appropriate quantum for the monthly sum is not, in
its calculation, contested by the Applicants or Respondents.
2. For
the Respondent
·
Horace
was at all material times a “veteran pensioner” within the meaning of paragraph
22.1(1)(a) of the Regulations.
·
Chateau
Westmount (CW) was at all material times a “community facility” within the
meaning of section 22.1 of the Regulations.
FACTUAL
BACKGROUND
[13]
The
parties each state that most of the facts are not in dispute. A brief
chronology:
·
World
War II: Horace served with the Canadian military. He remained in Canada and was not posted
to an area of active combat. During the period of his service, he injured to
his right knee for which he received a pension amounting, in later years, to
over $500.00 per month.
·
April
1, 1999: Ronald was appointed Mandatary over the affairs of Horace.
·
Mid
1999 into 2005: Ronald had concerns as to Horace’s state of health. Horace was
examined by medical specialists and diagnosed with dementia, medication is
recommended (Dr. Kirk’s letter of August 26, 1999).
·
October,
1999: the DVA writes to Horace requesting that he complete and return a form so
as to continue to receive his pension for his knee. Horace does not respond.
It may be that the correspondence was mis-addressed.
·
February
2000: DVA stops paying Horace a pension for his knee.
·
June
17, 2000: Horace is placed in long-term care in Chateau Westmount.
·
June
2000: Ronald states that he has communications with “someone” at DVA to advise
them that Horace has been placed in a long-term care facility and that Ronald
is his mandatary. Ronald also states that he filled out a form respecting
Horace and his dementia and attached a note to that effect which he sent to the
DVA. There is no documentary record to substantiate these allegations. A form
received at a later time (about January 2001) is in the record but no note was attached.
·
November-December
2000: a M. Jodoin from the DVA claims to have visited Horace’s old address and
placed telephone calls to Horace’s existing number but was unable to identify
Horace or his whereabouts. There is no direct evidence on this point.
·
December
2000: Ronald has a telephone conversation with someone at DVA. A person
identified as R.R. Baker at DVA made a record of a conversation occurring on
December 13, 2000:
Le 13 décembre 2000, le Dr.
Rod Krasnick (chirurgien orthopédiste), fils de notre pensionné, a communiqué
avec nous. Nous l’informons que la pension d’invalidité de son père est suspendue
depuis le 1er février 2000 (allées et venues inconnues). Le Dr.
Krasnick détient une procuration pour son père et sa mère. Mme. Krasnick
(mère) réside présentement au Jewish Nursing Home, 5750 Lavoie. Le Dr.
Krasnick demande que le conseiller de son père lui fasse parvenir la
documentation nécessaire afin de rétablir les paiements de la pension
d’invalidité de son père. Il expédiera une copie de sa procuration sur
demande. Ses coordonées ont été inscrites dans le RPSC, sauf son numéro de
facs qui est le suivant : 609 871-9301. Une activité est expediée à M.
Jodoin ce jour pour information et toute action jugée nécessaire.
·
The
interaction between the DVA, Horace and Ronald in 1999 to 2001 is set out in an
affidavit of the Respondent’s affiant Orlanda Drebit, Director of Client
Services and Quality Management and Service Policy Division, Veterans Services
Branch of the DVA, at paragraph 27:
a. Beginning in
October, 1999, the DVA wrote a series of letters to HYK informing him that his
Benefit Declaration had not yet been completed and he faced a possible
suspension of his disability pension. The letter invited HYK to send in the
information and contact the district office should he require further
information. On February 10, 2000 a decision was made to suspend HYK’s pension
effective February 1, 2000.
b. The benefit
Declaration Form was finally completed in December, 2000 and received on
January 21, 2001 under a Power of Attorney in the name of the Applicant RMK.
The DVA decision of January 24, 2001 reinstating HYK’s pension noted that contact
with HYK was established. HYK subsequently attended a pension medical
examination to assess his pension condition in February, 2001. The suspension
was lifted, monthly payments resumed effective Feb 1, 2000 and back payments of
$6676.75 were paid to HYK.
c. A letter was sent
to HYK on November 24, 2000 at his old address inviting him to attend a pension
medical examination in relation to his pension condition. On January 10, 2001
the DVA sent another letter to HYK care of his new address at the Chateau Westmount inviting him again to attend
a pension medical examination in relations to his pension condition. HYK then
attended the examination on February 13, 2001. The medical examination
resulted in an increase in the assessment of his pension condition to 30%. On
October 2, 2001, a letter was sent to the address of his son RMK in New Jersey. The letter informed HYK of
an increase in his pension to 30% for his knee condition. It invited him to
contact the District Office if any further information is required.
·
Two
pages of the Benefit Disability Form (sometimes referred to as BD form)
completed by Ronald on behalf of his father Horace are copied in the Record as
part of Exhibit I to Drebit’s affidavit and apparently were received by the DVA
early in 2001. That form indicates Horace’s address as being that of Ronald in
the United
States
and Ronald’s address label with the US address is attached.
The document is undated. The printed portion of the form states, among other
things:
If you are completing this
form on behalf of the member/ former member of the forces, please attach a
brief explanation.
There is no indication on any
of the pages of the exhibit that he did so.
·
February
2001: Horace is examined by a DVA person (presumably a medical practitioner)
for his knee condition. His pension is restored. He is not examined in
respect of his mental or other health conditions.
·
October
2004: Ronald having learned by chance that benefits may be available to defray
Horace’s costs for his long-term care makes an application for benefits on
Horace’s behalf. That application is not in the record. In their letter dated
January 11, 2006, the Applicants’ solicitors at page 5 stated that October 2004
was the date of notification by the DVA of Horace’s entitlement to make a claim
as well as the application date.
[14]
There
was correspondence between the parties and the three decisions, initial, review
and final as referred to previously were made.
STANDARD OF
REVIEW
[15]
Both
parties agree that the standard of review as it applies to any determination of
law, including construction of a statute or regulation, is that of correctness.
In respect of a finding of fact, the Respondent argues that the standard is
patent unreasonableness, and the Applicants argue that the standard is simply
reasonableness. It is not necessary to resolve this difference in positions
since the relevant facts are agreed and the issue resolves itself into what the
parties did and said in making submissions prior to and in respect of the
decision under review, as far as the Applicants are concerned, and findings in
the decision of the DVA as for as the Respondent is concerned.
ISSUE 1 – EFFECTIVE NOTICE: Was the DVA required to
provide specific notice to Ronald as to benefits available to Horace and if so,
as of what time. Even if specific notice was not required, was the DVA
required to provide general notice and; if so, was what they did adequate?
[16]
The
first issue raises the question of whether the DVA had a duty to advise Horace
or his mandatary Ronald as to benefits possibly available in respect of
long-term care expenses and if so, when and how did that duty arise.
[17]
Ronald
says that the DVA should have known or had sufficient basis for inferring that
Horace was suffering from dementia or some similar condition that made it
impossible to communicate with him directly and required that he be placed in a
long-term care facility. The inferences, he says, can be gathered from the
fact that about January 2001 at the latest, the DVA was aware that Horace was
at Chateau Westmount and that Ronald had a Power of Attorney.
[18]
The
record is clear that, at no time prior to October 2004, did Ronald take any specific
steps to make the DVA aware of his father’s condition or the reason for his
placement in a long-term care facility. Ronald had his father examined by
medical specialists in 2000 as a result of which he determined that it would be
prudent to put Horace in a long-term care facility. Ronald did not contact the
DVA at that time so as to permit them to make their own assessment of the
situation and either concur with Ronald’s decision or propose alternative
courses of action. The Power of Attorney appoints Ronald as mandatary for Horace;
he is impressed with high duty of care. Among Ronald’s duties as mandatary
should Horace be unable to look after himself or administer his affairs by
reason of any sickness, deficiency or ineptitude, are those set out as
requiring Ronald to:
2. do all that is
necessary and expedient to assure the personal protection of the Mandator, his
well-being both moral and material, without restricting the generality of the
foregoing, the Mandatary shall:
a) do all things
necessary and expedient in order to provide the necessities of life for the
Mandator;
b) protect, care for
and sustain the Mandator if the latter manifests that he is unable to care for
himself;
c) consent to all the
needs of the Mandator required by reason of the state of the health of the
Mandator of whatever nature, (medical or otherwise) provided that they appear
to be beneficial, notwithstanding their effects and which are opportune in the
circumstances and that the risks presented are not disproportionate to the
anticipated benefits;
[19]
The
evidence is clear that during the period in question when Horace was placed in
a long-term care facility in the year 2000, the DVA had a substantial programme
directed to the public and to veterans as to the services and benefits offered
to veterans. An extensive website was available to the public. Brochures were
made available at regional offices, fairs and exhibitions and to anyone asking
for information. Cheques sent to veterans included informational stubs and
slips. Little effort would have been required of Ronald or anyone else to
initiate inquires and receive information as to services and benefits
available. The evidence is that while Ronald did make efforts and communicated
with the DVA about reinstatement of his father’s pension respecting his knee
injury, he took no steps to inform the DVA about the medical assessment made in
2000 as to his father’s mental condition or the reason for his placement, at
the instance of Ronald, in Chateau Westmount. Ronald had advised the DVA to
communicate with Horace at Ronald’s United States address and that is
what happened. Horace was never actually at the United States address.
[20]
In
October 2004, Ronald took steps to inform the DVA as to his father’s mental
condition. The DVA made its own assessment of Horace’s condition and awarded
benefits for long-term care as of and after October 2004. This is the first
time that DVA had actual notice as to Horace’s condition.
[21]
Ronald
argues that he has been placed in a “Catch 22” situation. He argues that since
he was not aware that the DVA offered benefits for long-term care he could not
be expected to apply for them. He says that DVA had sufficient information so
that it ought to have known that his father was in long-term care and that the
DVA should have taken positive steps to inform Ronald of the possible benefits
available.
[22]
The
DVA says that it was unaware of Horace’s condition until Ronald advised it in
October 2004 at which time Horace was assessed and action was taken to provide
benefits as of that time. Since Ronald did not advise the DVA earlier as to Horace’s
condition the DVA says that it had no opportunity to conduct its own
examination and make its own assessment as to an appropriate course of action.
The DVA says that, given the hundreds of thousands of persons that it has to
deal with, it is impossible and inappropriate that it should be required to
give personal and detailed attention to any one individual when there exists
even a suggestion or inference that something of interest may have arisen.
[23]
Neither
the Department of Veterans Affairs Act nor the Veterans Health Care
Regulations make any specific reference to any duty placed on DVA to take
specific steps to inform “clients” as to benefits available, whether generally
to all clients or to any specific client in any specific situation.
[24]
The
Applicants argue that a fiduciary duty exists between the DVA and its clients
such as Horace. The nature of a “fiduciary duty” that may or may not be
imposed on the Crown or department has been extensively canvassed by the Supreme
Court particularly in the context of aboriginal law. There are limits to
fiduciary duties and concepts. As expressed by Binnie J. for the Court in Wewaykum
Indian Band v. Canada, [2002] 4 S.C.R. 245 especially at paragraphs 81 to
83, the fiduciary duty imposed on the Crown does not exist at large but only in
relation to specific interests; not all obligations are fiduciary in nature, it
is necessary to examine the particular obligation or interest.
[25]
In
this case, the DVA has an obligation to make provision for the care of veterans
depending on their needs and circumstances. Not all veterans in all
circumstances are to be given every benefit. Certain benefits are provided for
in the Regulations depending on “eligibility”, a term that will be considered
later in these reasons. There is nothing in the Act or Regulations or other Acts
or Regulations that requires the DVA to make specific benefits known to
everyone or to certain persons or to be prescient and determine from signs,
signals or inferences that some persons may be in need of benefits and if so,
what benefits and when.
[26]
In
the specific circumstances of this case, the DVA made sufficient efforts to
provide general information to the public and appears quite willing to make
specific information available to persons who identify themselves as clients,
upon request. When Ronald made a specific request on behalf of Horace for
long-term benefits, the DVA acted promptly upon that request.
[27]
I
do not find that the DVA breached any duty imposed by any relevant Act or Regulation
or that there was any special fiduciary duty imposed on the DVA in respect of
the present situation.
[28]
The
Applicants rely upon Authorson v. Canada (Attorney
General)
(2000), 53 O.R. (3d) 221 and the finding of Brockenshire J., especially at page
234, in a class action that, where certain funds were placed in the hands of
the DVA to be invested and disbursed on behalf of veterans, that the DVA became
a fiduciary in that respect. The case proceeded to the Ontario Court of Appeal
and to the Supreme Court of Canada, [2003] 2 S.C.R. 40 where the Crown no
longer denied that it had a fiduciary duty. I find that the circumstances of
that case do not apply here. In Authorson, there was a specific fund
set aside for a specific purpose. In the case here, there is simply a
regulatory duty to provide and administer benefits under the circumstances set
out in the Regulations. No higher or fiduciary duty arises.
[29]
The
Applicants further argue that section 15(1) of the Charter applies and that
Horace, as a veteran no longer mentally competent to deal with his affairs, has
been deprived of equal benefits. The Supreme Court of Canada in Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497 canvassed what a
claimant must first established before the Charter, section 15, comes
into play. Binnie J. for the Court summarized three factors at paragraph 23:
(1) whether a law imposes
differential treatment between the claimant and others; (2) whether an
enumerated or analogous ground of discrimination is the basis for the differential
treatment; and (3) whether the law in question has a “discriminatory” purpose
or effect.
[30]
Applicants’
Counsel argues that the Regulations fail to make provision for care of or
access by those who are not mentally competent. This is not a “discriminatory”
provision of the Regulations but, taking the argument at its best, failure to
make special provision for one particular group of persons. There is no
“discrimination” in the Regulations, all persons are treated the same, no group
directly or indirectly is discriminated against and application of the
Regulations does not have a discriminatory effect. The Applicants simply do
not get beyond point (1) of the Law test.
[31]
Further,
the Applicants fail the third branch of the Law test. As set out by the
Supreme Court of Canada in Granovsky v. Canada (Minister of Employment and
Immigration), 2000 SCC 28 at paragraph 58, while a financial deprivation
may exist it must be shown that the legislation promotes the view that a person
is less capable or less worthy of recognition or value as a human being or as a
member of Canadian society:
58 The
question therefore is not just whether the appellant has suffered the
deprivation of a financial benefit, which he has, but whether the deprivation
promotes the view that persons with temporary disabilities are "less
capable, or less worthy of recognition or value as human beings or as members
of Canadian society, equally deserving of concern, respect, and consideration"
(emphasis added). In Miron v. Trudel, [1995] 2 S.C.R. 418,
McLachlin J. noted, at para. 132, that "distinctions
made on enumerated or analogous grounds may prove to be, upon examination,
non-discriminatory".
[32]
Nothing
in the Regulations has been shown to diminish the sense of capability or worth
or value of mentally incompetent veterans. The Regulations provide a scheme
whereby benefits may be provided, nothing in that scheme reflects badly on a
person in any way contemplated by Granovsky.
[33]
Thus,
I find that the Charter does not assist the Applicants. Therefore, I do
not have to address the issue as to whether reliance upon the Charter
can survive Horace’s death.
ISSUE 2 – LIMITATION OF
RECOVERY –
Was the decision of May 5, 2006 correct, in the result in limiting recovery to
expenses incurred on and after October 2004? If not, must the decision be set
aside?
[34]
This
issue raises the question as to when and how the right to receive benefits
arises and whether there is a limitation as to how far back one can reach in
providing recoupment for expenditures.
[35]
The
Veterans Health Care Regulations, despite frequent amendments, are not
happily drafted. Many of the terms which require consideration in this case
are not clearly defined.
[36]
Section
22.1(a) of the Regulations is the only provision upon which the Applicants rely.
It says:
22.1(1) Subject to subsections
(2) and (3) and sections 23 and 33.1, the following clients are eligible to
receive chronic care in a community facility, other than in a contract bed, to the
extent that the chronic care is not available to them as an insured service
under a provincial health care system:
(a) veteran pensioners;
[37]
What
we do know from the concessions made by the parties is:
·
Horace
was a “veteran pensioner” at all material times.
·
Chateau
Westmount was a
“community facility” at all material times.
·
There
is no need to be concerned with subsections 22.1 (2) and (3) which deal with
income restrictions.
·
There
is no need to be concerned with sections 23 and 33.1 which go to the level of
the rate to be established and deductions. The amount fixed at $4,063.44 per
month is satisfactory to all.
[38]
Thus,
section 22.1(1)(a) can be read as follows in this case:
22.1(1)(a) Horace is eligible to
receive chronic care at Chateau Westmount in the sum of $4,063.44 per month.
[39]
Horace
had been in the Chateau Westmount facility since June 2000 and remained there until
his death in June 2006. However, the initial decision and all subsequent
decisions of the DVA limited the time period over which reimbursement was made
to the period from October 2004 to June 2006. The first decision of February
14, 2005 does not say why this time frame was adopted. The review decision of
November 15, 2005, the text of which was repeated earlier said that October 2004
was the time “…when [Horace’s] health needs [are] confirmed by a
nurse’s or area counsellor’s assessment.”
[40]
The
“final” (Hebert) decision of May 5, 2006 says something different particularly
at page 11. It says first of all that a determination of “eligibility” needs
to be made and “eligibility” is not established until a “determination” is made
by DVA (called VAC in the letter). The analysis concludes by saying that no
amount can be paid prior to the date of application.
[41]
As
to “eligibility” the Regulations do not state that the DVA is to determine
eligibility nor is any process for such determination by the DVA or anybody
else set out. Paragraph 22.1(1)(a) simply says that certain persons “are
eligible”. Even if the DVA was to satisfy itself in that regard, and it is
quite reasonable for it to do so, there is nothing in the Regulations that
would entitle a person to benefit only as of the date that such a determination
is made. There is simply no basis for the statement made at page 11 of the
Hebert decision that:
Eligibility is not established
until a decision to that effect is rendered by [DVA]
[42]
Consideration
then must be given to the conclusion by Hebert that:
In conclusion, neither the
present or former terms of subsection 34.1(4) [of the Regulation] would permit
the retroactive award from a date prior to the date of application for care.
[43]
There
is no clear language to that effect in subsection 34.1(4). That section was
amended effective February 15, 2006 (one day after the first or Dunoso decision).
Prior to February 15, 2006 it read:
A claim for reimbursement or
payment must be made by the person or on the person’s behalf within 18 months
after the latter of:
(a) the day
on which the expenditure was incurred, and
(b) the day on which notification
is received by or on behalf of the person that the person is eligible to
receive benefits, services or care under these Regulations for the health need
for which the expenditure was incurred.
[44]
After
February 15, 2006, subsection 34.1(4) read:
(4) A claim for reimbursement
or payment must be made by or on behalf of the person within 18 months of the
day on which the expenditure was incurred.
[45]
Much
was made in argument as what was the date the claim was made and what was the
date of notification. The evidence is not clear as to what exactly happened on
October 2004 therefor, I must take as admissions and binding upon the parties,
the statements that the Applicants through their Counsel made in the course of
making submissions to the Minister and, in respect of the Minister, the
statements and findings in the Hebert, May 5, 2006 decision.
[46]
In
the submission made by Applicants’ counsel by letter dated January 11, 2006 to
DVA, which was the submission leading to the decision of May 5, 2006 now under
review, Applicants’ counsel said at page 5 after reciting the provisions of the
“old”, and then existing, subsection 34.1(4):
7. Accordingly,
a person is entitled to reimbursement of his or her expenditures for Long-Term
Care benefits, if he or she makes a claim within 18 months after he or she
receives notice of the entitlement for benefits under the Regulations. The
notification that is intended by this provision must be notice from the DVA.
Neither HYK nor RMK receives any notification from the DVA of HYK’s entitlement
for Long-Term Care benefits until October 2004 (even if HYK had somehow earlier
received notice of these benefits, his mental incapacity would obviously
render him incapable of communicating this information, hence such notification
to HYK alone would have served no purpose). Upon notification, RMK filed a
claim with the DVA, within the 18 months required. Thus, the Krasnicks’ claim
is timely, and they should be reimbursed for HYK’s Long-Term Care benefits
without further delay.
[47]
Thus,
the Applicants, through their counsel, have asserted and must accept that
October 2004 is both the date of “notification” and the date of making a claim.
[48]
Thus,
in accordance with the position taken by the Applicants in seeking the decision
now under review, whether the old or new section 34.1(4) applies, the 18-month
period would run back from October 2004,
[49]
In
making the decision of May 5, 2006 now under review, the Minister’s official
took the position that the post-February 15, 2005 version of the Regulations
was the operative provision so far as subsection 34.1(4) was concerned, thus
the 18 month period would run from the date of the application, October 2004.
Even if the earlier version of subsection 34.1(4) were to apply, the Minister
took the position that a later date, what he described as the “date of
notification of the decision” would apply (presumably February 14, 2005).
Given that position, the Minister, erroneously concluded, that no award prior
to the date of application could be made. To reiterate part of what was said
at page 11 of the decision of May 5, 2006:
The request for review of the
Department’s original February 14, 2005 decision was by letter from RK to VAC
dated March 15, 2005. Therefore, the above mentioned section 34.1 as amended effective
February 15, 2005 may be considered for the purposes of this appeal.
…
A significant period may
elapse between the date of an applicant applies for benefits, services or care
under the VHCRs and the date that the applicant’s eligibility thereto is
determined. That being said, were it to be determined that the earlier version
of subsection 34.1(4) is applicable for the purposes of this final decision,
then VAC’s position is that the former version may have been more generous but
still does not lead to the conclusion in support of the claim for
reimbursement. The 18 month period to make a claim for payment or
reimbursement of expenditures would have commenced at the date of notification
of the decision granting eligibility rather than from the earlier date of
application.
In conclusion, neither the
present or former terms of subsection 34.1(4) would permit the retroactive
award from a date prior to the date of application for care.
[50]
Given
that the Applicants asserted that October, 2004 was the operative date for both
making the claim and notification and given that the Minister took the position
that the “new” provisions of the Regulations were the operative provisions in
which case the operative date would again be October 2004, it is appropriate to
consider that the limitation period from whichever version of subsection
34.1(4) would apply, operates from October 2004. Thus the provision, in the
unique circumstances of this case would operate so as to limit a claim for
expenditures to be made reaching back for 18 months from October, 2004.
[51]
The
Applicants take the position in this application, that while the expenditures were
incurred monthly, the claim made was for the entire expenditure reaching back
to June 2000 and that the quantum of the claim could not be limited, only the
time of making it. Here, the claim for all expenses reaching back to June
2000, they argue, was made in a timely way in October, 2004.
[52]
This
position is not correct. First, expenses were incurred monthly, not in a lump
sum. In the Applicants’ counsel’s letter of January 11, 2006, previously
referred to, at page 4 it was said:
These Regulations entitle
[Horace] to receive Long-Term Care benefits in the amount of $4,063.44 per
month, for his accommodation fees at CW from August 28, 2001 onward. [Emphasis added]
[53]
Those
monthly expenditures, while commencing in June 2000 are limited by the
provisions of subsection 34.1(4) of the Regulations, as read in the
circumstances of this case, to those incurred within 18 months previous to
October, 2004.
[54]
The
Applicants rely on the decision of Strayer J. of this Court in Trotter v.
Canada, [2005] 4 F.C.R. 193 to argue that any limitation imposed by subsection
34.1(4) should not be read so as to limit the quantum of the claim so long as the
claim itself is made in a timely fashion. They rely in particular on a passage
found within paragraph 18 of that decision and paragraph 20:
18 I
wish to emphasize that the language of subsection 39(1) was not adopted as such
in respect of prisoners of war and evaders' compensation. It will be noted that
subsection 39(1), limiting as it does payments to the date of application, by
its terms applies to "a pension awarded for disability". In my view,
compensation for prisoners of war is not "a pension awarded for
disability". Even in the provisions adopted in 1987 by way of amendments
to the Pension Act specifically applying to these persons, the new subsection
71.2(1) provides that "a prisoner of war is entitled, on application, to
basic compensation." Such was the language of the 1976 Act which also said
[at section 3] that: "a prisoner of war... is entitled on application to
the Commission, to compensation." As I have noted, the circumstances of
the passage of the 1976 Act and the provisions for a retroactive coming into
force indicate that what was intended was that compensation be effective as of
April 1, 1976. This was said to be payable "on application", as does
subsection [page206] 71.2(1) of the Pension Act. In the context of the 1976 Act
that expression "on application" made an authenticated application a
condition precedent to receiving compensation, but the date of the application
did not define the amount of compensation. Not only was that, I suggest, the
intention of Parliament but it was the manner in which that Act was
administered throughout its existence. It is true that subsection 71.2(1) which
states the entitlement to compensation commences with the words "[s]ubject
to subsection (4)". Subsection (4), does make section 39 generally applicable
to compensation for former prisoners of war. However, it is applicable
"with any modifications that the circumstances require." In my view,
circumstances require a different approach in the matter of entitlement to
compensation for former prisoners of war and evaders.
20 I
believe that by the general cross-reference in subsection 71.2(4) of the Pension
Act to most sections of Part III of that Act, making them applicable to
compensation, Parliament cannot be taken to have made a specific decision to
reduce the compensation payable to former prisoners of war or evaders who
happened not to have applied before because they did not know they were
entitled to compensation. It would have been legally, if perhaps not
politically, easy to so provide in the amendments if that was
intended. In the circumstances, subsection 39(1) must be taken as inappropriate
in reference to prisoners' compensation and the qualification in subsection
71.2(4) of the applicability of Part III "with any modifications that the
circumstances require" to prisoners' compensation must be taken to mean
that subsection 39(1) is not applicable.
[55]
However,
this is to ignore the very special circumstances of that case where prior
legislation had awarded compensation for prisoners of war but overlooked
evaders behind enemy lines. Later legislation amended the earlier legislation to
include evaders but, if read one way, would have by the operation of limitation
periods, made many claims out of time. Strayer J. held that this was not the intention
of the amending legislation. Part of what he said is set out in paragraph 18
above. He also said in paragraph 19:
19 Subsection 39(1) refers
to "a pension awarded for disability". It is apparent that a pension
for disability and compensation for the fact of having been a prisoner of war
or an evader during the Second World War are two distinct matters. A
disability, while it must have its origin in the war, may have been obvious and
diagnosed during or at the end of the War and may have been of a continuing
nature. But sometimes the effects of war time service are not felt or diagnosed
until years after the war. Disabilities come in varying degrees and may change
over time. All of these matters require assessments through applications and in
some cases, disability may not be perceived or proven for years after the war
or may vary in severity over a period of time. On the other hand, payment to
former prisoners of war or evaders has throughout been described as
"compensation" and the criteria solely depend on certain demonstrable
historical facts occurring during the war. The fact that the compensation is
payable on a monthly basis may have been thought to be of a more lasting
benefit to those entitled. If compensation had been payable in a lump sum it
would be surprising indeed if entitlement were dependent on the date of
application for it, even though it would not be payable until application was
made.
[56]
Trotter has no
application here.
[57]
The
Minister’s Counsel argues that it was appropriate to limit recovery to October,
2004 since that is the earliest time that the DVA could make its own assessment
as to Horace’s health and the availability of long term care facilities whether
at Chateau Westmount or elsewhere.
[58]
This
position of the Minister ignores the position taken and findings made by the
DVA in the Hebert decision and from which the Minister cannot resile. As to
Horace’s mental condition, the Hebert decision at page 5 stated:
From the documentation
contained in the Appellant’s Submission tab D, under the signature of Dr. P.
Lysy, who examined Mr. Krasnick prior to his admission to the Chateau Westmount
Nursing Home, it is clear that HYK was admitted to the facility in June 2000,
due to a deteriorating mental and physical condition. At the time, HYK was
assessed as incapable of managing his affairs and in need of long term care.
The medical recommendation was that HYK be transferred to the Chateau Westmount. RK, his son and Power of
Attorney, consented to such transfer on June 17, 2000.
[59]
It
is simply unacceptable for the Minister now to take the position that it has no
basis for determining Horace’s condition prior to October, 2004. The Hebert
decision is clear that the DVA accepts that, since June 2000, Horace’s
condition was such that his placement in a long term care facility was
appropriate.
[60]
As
to the appropriateness of Chateau Westmount as such a facility, the Hebert
decision again made findings. At page 8:
In June 2000 Chateau Westmount was a community facility.
The sole Departmental facility is located in the province of Quebec – Sainte-Anne-de-Bellevue.
There are “contracted beds” located in the Centre Hospitalier de l’université
de lavel [sic]
(CHUL) and Résidence Paul-Triquet.
[61]
The
decision proceeds to make reference to section 21 of the Regulations which
deals with department facilities and contract beds. The parties are agreed
that section 21 is irrelevant. Thus such discussion was not appropriate. At
page 9 of the decision, Hebert says:
Considering that HYK had
resided at Chateau Westmount for the previous four years, and his confused
state, the District Office conducted the assessment, verified the health needs,
and so authorized HYK’s eligibility for the cost of chronic care and service at
Chateau Westmount, a private facility, without disrupting his routine and
requiring his relocation.
[62]
Having
determined that it was appropriate that Horace be placed in Chateau Westmount
as a facility, the Minister cannot now argue that it should have been given the
opportunity to make that decision earlier.
IN CONCLUSION
[63]
The
Regulations are not well drafted and not easy to interpret. The parties
appeared unwilling to make reasonable compromises. The Applicants took an “I
want it all approach”. The Minister took a “you will get nothing more”
approach. This determination is an attempt to do justice to all sides and to
the Regulations. The Minister should review the matter on the basis that the
Applicants, Horace’s estate and Ronald, should be reimbursed for monthly
expenses incurred during the 18 month period prior to October, 2004. The
amount of $4,064.44 per month is seen by all parties as appropriate. An award
of interest is appropriate. The rate requested, prevailing prime lending rates
plus 1% is appropriate.
[64]
As
to costs, the Minister suggested no costs, the Applicants wanted solicitor-client
costs. Costs at the solicitor-client level are usually only awarded where the
conduct of the losing party during the course of the proceedings has been
questionable. That is not the case here. The Applicants’ counsel suggested
that this is in the nature of a “test case”. I do not view it that way. The
circumstances factually are unique and the Regulations have been amended in any
event. Applicants’ counsel suggested that an award of costs should include
costs incurred in dealing with the Minister leading up to the decision of May
5, 2006. The Court has no power to award such costs.
[65]
This
is a usual and not extraordinary case where Applicants gained part of what they
wanted, but insisted on it all. There were a affidavits filed, some
cross-examinations; both parties had two counsel at the hearing, which lasted
one and a half days. Costs to be taxed at the middle of Column III having in
mind these Reasons, are awarded to the Applicants.
JUDGMENT
For the Reasons given:
THIS COURT ADJUDGES that:
1. The
Application is allowed, the decision of May 5, 2006 is set aside and the Matter
is returned to the Minister for redetermination in accordance with the reasons.
2. The
redetermination is to be made promptly.
3. The
Applicants are entitled to costs to be taxed in accordance with these Reasons
at the middle of Column III.
"Roger
T. Hughes"
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