Date: 20110307
Docket: T-238-10
Citation: 2011
FC 237
Ottawa, Ontario, March 7,
2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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GERARD CHARLES DE LEEUW
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Gerard C. De Leeuw enlisted in the Canadian Army in the fall of 1944 when he
was 18. While he was eager to serve overseas, he never made it there. At the
time, only soldiers over 19 were sent into active battle. His 19th birthday was
not until the spring of 1945 and, at that point, the war was winding down. He
was discharged from the Army in September 1945. After the war, he played
professional football with the Winnipeg Blue Bombers from 1947 to 1952.
[2]
In
2007, Mr. De Leeuw applied for a veteran’s pension based on a disability -
heart murmur and coronary artery disease. The Minister of Veterans Affairs
dismissed Mr. De Leeuw’s application because he had failed to establish that
his disability was in any way connected to his military service. Mr. De Leeuw
sought to overturn the Minister’s decision before a Review Tribunal, an Appeal
Board, and two reconsideration panels of the Veterans Review and Appeal Board,
but at each step his application was dismissed.
[3]
Mr.
De Leeuw now seeks judicial review of the latest reconsideration decision,
arguing that the panel erred in its interpretation of the relevant provisions
of the Pension Act, RSC 1985, c P-6, failed to recognize his rights
under the Canadian Charter of Rights and Freedoms, and unreasonably
concluded that he had not established his entitlement to a pension. He asks me
to overturn the panel’s decision and order another panel to reconsider his
claim.
[4]
I
can find no basis for overturning the panel’s decision and must, therefore,
dismiss this application for judicial review. I can find no error in the
panel’s analysis of the Pension Act or the Charter; nor can I
find that the panel’s conclusion that Mr. De Leeuw did not meet the eligibility
requirements for a pension was unreasonable.
[5]
The
three issues are:
1. Did
the panel err in its interpretation of the Pension Act?
2. Have
Mr. De Leeuw’s rights under sections 15 and 12 of the Charter been
infringed?
3. Was
the Board’s conclusion unreasonable?
II. Factual Background
[6]
Mr.
De Leeuw enlisted on October 11, 1944. He underwent a medical examination which
recorded a “soft systolic murmur” that disappeared with exercise. While Mr. De
Leeuw signed the medical certificate, he says he was not informed about the
heart murmur. Mr. De Leeuw also says that he had dental work done the following
day, and that he was not given any antibiotics for it. He suggests that this
treatment may have caused an infection in his heart valve.
[7]
During
his time in the Army, Mr. De Leeuw did not have any heart problems. He kept up
with his fellow soldiers during training.
[8]
After
the war, he played professional football for five years. He retired after he
was diagnosed with a heart murmur and other related symptoms.
[9]
Mr.
De Leeuw did not experience any further heart trouble until 1985 when he had an
operation for a coronary artery bypass and aortic valve replacement.
III. The Panel’s Decision
[10]
The
panel reviewed the evidence relating to Mr. De Leeuw’s pension application. It
also considered Mr. De Leeuw’s arguments under the Pension Act and the Charter.
[11]
Mr.
De Leeuw argued before the panel that his right to equality under s 15 of the Charter
had been infringed because he had been denied a pension on the basis of his
pre-existing heart condition. Other soldiers who did not have such a condition
but went on to experience heart trouble while serving in the Canadian Forces
would be entitled to a pension, but he would not. The panel concluded that Mr.
De Leeuw was not treated differentially because of his disability; he was
simply ineligible. Further, he had not been treated as less worthy or in a
manner that deprived him of human dignity.
[12]
Mr.
De Leeuw argued that he was entitled to a pension according to the terms of s
21(1) of the Pension Act. That provision states that “where a member of
the forces suffers disability resulting from an injury or disease . . . that
was attributable to or was incurred during such service” a pension shall be
awarded. According to Mr. De Leeuw, the word “incurred” means the same as
“existed” and, therefore, since he had a disability during his service, he was
entitled to a pension.
[13]
The
panel disagreed. It found no evidence linking Mr. De Leeuw’s heart condition to
his service in the military and concluded, therefore, that he was not entitled
to a pension.
(1) Did the panel
err in its interpretation of the Pension Act?
[14]
The
Pension Act provides that members of the forces are entitled to a
pension if they suffer a disability “that was attributable to or was incurred
during such military service” (s 21(1)(a) – enactments cited are set out
in Annex A).
[15]
Mr.
De Leeuw argues that, although his heart murmur was detected when he enlisted,
it was “incurred” during his military service in the sense that it was ongoing.
He also argues that other provisions of the Act assist him. In particular, he
points to paragraph 21(1)(c), which states that “no deduction shall be
made from the degree of actual disability of a member” in respect of a disability
“that existed in the member before the member’s period of service”. He also
cites subsection 21(10), which provides that “[i]nformation given by a member
of the forces at the time of the enlistment of the member with respect to a
disability . . . is not evidence that the disability . . . existed prior to the
enlistment . . . unless there is corroborating evidence”.
[16]
In
my view, the word “incurred” in the context of s 21(1)(a) means that the
disability must have arisen during the member’s military service. The provision
requires that the disability be incurred during the member’s service,
which introduces a temporal requirement. This interpretation is reinforced by
the French version of the paragraph where the corresponding phrase states that
the disability must have “survenue au cours du service militaire” –
meaning that the onset or appearance of the disability must have taken place
during the member’s service (Robert & Collins, 2nd ed.,
2000).
[17]
Therefore,
the panel correctly applied s 21(1)(a) when it required Mr. De Leeuw to
provide evidence of a linkage between his condition and his military service. A
causal connection between them must be proved: Lunn v Veterans Affairs Canada, 2010 FC 1229
at para 70. In light of the evidence showing that Mr. De Leeuw’s condition
existed before he entered the military and the absence of evidence that it was
aggravated during his services, I cannot conclude that the panel erred in
finding that he was not eligible for a pension.
[18]
The
other provisions of the Act to which Mr. De Leeuw refers do not appear to have
been relied on at his hearing before the panel. In any case, they do not assist
him. Paragraph 21(1)(c) expressly states that a deduction can be made if
a disability was “obvious or was recorded on medical examination prior to
enlistment” (s 21(1(c)(ii)). Mr. De Leeuw’s answer is that the provision
may allow a deduction but it does not justify a denial of a pension altogether.
But, as pointed out above, Mr. De Leeuw is not eligible for a pension. Section
21(1)(c) appears to be directed to persons who are eligible for a
pension, but also had a pre-existing condition.
[19]
Similarly,
subsection 21(10) does not assist Mr. De Leeuw. It does not appear that he
provided any information about a heart condition when he enlisted. Even if he
had, that information would have been corroborated by the medical tests
performed on him at the time.
[20]
I
see no error, therefore, in the panel’s conclusion that Mr. De Leeuw is not
eligible for a pension under the Pension Act.
(2) Have Mr. De
Leeuw’s rights under sections 15 and 12 of the Charter been infringed?
[21]
Mr.
De Leeuw argues that he has been treated differentially on the basis of his
disability. In particular, he notes that other soldiers who developed heart
trouble during their military service are entitled to a pension while he,
because he had a heart condition before he enlisted, is not.
[22]
In
my view, the Board correctly decided that Mr. De Leeuw had not been subjected
to differential treatment because of his disability. As Justice James Russell
put it in Lunn, above, Mr. De Leeuw “has not been singled out for
differential treatment; he has simply had his claim denied” (para 75).
[23]
Regarding
Mr. De Leeuw’s argument under s 12 – that he has been subjected to cruel and
unusual treatment or punishment – he submits that he has, in effect, been
denied a disability benefit on the grounds that he has a disability. The
grounds on which he deserves a pension have been given as a reason for denying
him one, he says. And this, he maintains, amounts to cruel and unusual
treatment.
[24]
I
interpret Mr. De Leeuw’s submissions on this point as amounting to an argument
that it is absurd, or perverse, to deny him a pension on the very grounds for
which he claims to qualify for one. This is really an argument about the
reasonableness of the panel’s decision, which is the next issue. It is not
seriously contended that Mr. De Leeuw has suffered cruel and unusual treatment.
(3) Was the Board’s conclusion
unreasonable?
[25]
A
decision is unreasonable only if it falls outside the range of defensible
outcomes based on the facts and the law: Dunsmuir v New
Brunswick,
2008 SCC 9 at para 47.
[26]
I
have already concluded that the panel correctly decided that applicants for a
pension must show a connection between their disability and their military
service. Here, Mr. De Leeuw had not presented any evidence of that essential
connection. In particular, there is no record of the dental treatment he
described. Therefore, he had not proved his eligibility.
[27]
To
my mind, the Board’s conclusion that Mr. De Leeuw was not eligible for a
pension was reasonable in light of the facts and the law before the panel.
IV. Conclusion and Disposition
[28]
The
reconsideration panel applied the law correctly and reasonably concluded that
Mr. De Leeuw had not shown his eligibility for a pension. I must, therefore,
dismiss this application for judicial review, with costs. In light of the
circumstances, I would fix costs in the amount of $200.00.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1. The
application for judicial review is dismissed, with costs.
2. Costs are
fixed in the amount of $200.00
“James
W. O’Reilly”
Annex
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Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11
Treatment
or punishment
12.
Everyone has the right not to be subjected to any cruel and unusual treatment
or punishment.
Equality
before and under law and equal protection and benefit of law
15. (1)
Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
Pension
Act, RSC,
1985, c P-6
Service
during war, or special duty service
21.
(1) In respect of service rendered during World War I, service rendered
during World War II other than in the non-permanent active militia or the
reserve army, service in the Korean War, service as a member of the special
force, and special duty service,
(a) where a member of the forces
suffers disability resulting from an injury or disease or an aggravation
thereof that was attributable to or was incurred during such military
service, a pension shall, on application, be awarded to or in respect of the
member in accordance with the rates for basic and additional pension set out
in Schedule I;
(b) where a member of the forces
dies as a result of an injury or disease or an aggravation thereof that was
attributable to or was incurred during such military service, a pension shall
be awarded in respect of the member in accordance with the rates set out in
Schedule II;
(c) no deduction shall be made
from the degree of actual disability of a member of the forces who has
rendered service in a theatre of actual war, service in the Korean War or
special duty service on account of a disability or disabling condition that
existed in the member before the member’s period of service in World War I or
World War II, service in the Korean War or special duty service, as the case
may be, except
(i) to the extent that the member is
receiving a pension for that disability or disabling condition, or
(ii) to the extent that that disability
or disabling condition was obvious or was recorded on medical examination
prior to enlistment;
…
Information
volunteered by member as to medical condition to be corroborated
(10) Information given by a member of
the forces at the time of the enlistment of the member with respect to a
disability or disabling condition is not evidence that the disability or
disabling condition existed prior to the enlistment of the member unless
there is corroborating evidence that establishes beyond a reasonable doubt
that the disability or disabling condition existed prior to the time the
member became a member of the forces.
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Loi
constitutionnelle de 1982 (R.-U.), constituant l'annexe B de la Loi de 1982
sur le Canada (R.-U.),
1982, ch 11
Cruauté
12. Chacun
a droit à la protection contre tous traitements ou peines cruels et inusités.
Égalité
devant la loi, égalité de bénéfice et protection égale de la loi
15.
(1) La loi ne fait acception de personne et s'applique également à tous, et
tous ont droit à la même protection et au même bénéfice de la loi,
indépendamment de toute discrimination, notamment des discriminations fondées
sur la race, l'origine nationale ou ethnique, la couleur, la religion, le
sexe, l'âge ou les déficiences mentales ou physiques.
Loi
sur les pensions,
L R 1985, ch P-6
Service
pendant la guerre ou en service spécial
21.
(1) Pour le service accompli pendant la Première Guerre mondiale ou la
Seconde Guerre mondiale, sauf dans la milice active non permanente ou dans
l’armée de réserve, le service accompli pendant la guerre de Corée, le
service accompli à titre de membre du contingent spécial et le service
spécial :
a) des pensions sont, sur demande,
accordées aux membres des forces ou à leur égard, conformément aux taux
prévus à l’annexe I pour les pensions de base ou supplémentaires, en cas
d’invalidité causée par une blessure ou maladie — ou son aggravation —
survenue au cours du service militaire ou attribuable à celui-ci;
b) des pensions sont accordées à l’égard
des membres des forces, conformément aux taux prévus à l’annexe II, en cas de
décès causé par une blessure ou maladie — ou son aggravation — survenue au
cours du service militaire ou attribuable à celui-ci;
c) l’invalidité ou l’affection
entraînant incapacité dont était atteint le membre des forces qui a accompli
du service sur un théâtre réel de guerre, du service pendant la guerre de
Corée ou du service spécial, et qui est antérieure au service accompli
pendant la Première ou la Seconde Guerre mondiale, au service accompli
pendant la guerre de Corée ou au service spécial n’autorise aucune déduction
sur le degré d’invalidité véritable, sauf dans la mesure où il reçoit une
pension à cet égard ou si l’invalidité ou l’affection était évidente ou a été
consignée lors d’un examen médical avant l’enrôlement;
[…]
Corroboration
nécessaire à l’égard des renseignements fournis volontairement par un membre
quant à son état de santé
(10) Les renseignements fournis par un
membre des forces au moment de son enrôlement en ce qui concerne une
invalidité ou une affection entraînant incapacité ne constituent pas une
preuve que l’invalidité ou l’affection entraînant l’incapacité existait avant
son enrôlement sauf si ces renseignements sont corroborés par une preuve qui
établit, hors de tout doute raisonnable, que l’invalidité ou l’affection
entraînant incapacité existait avant son enrôlement.
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