Canada (Attorney General) v. Frye, 2005 FCA 264

Date: 20050808

Docket: A-441-04

Citation: 2005 FCA 264

CORAM:        LINDEN J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                            Appellant   

                                                                           and

                                                     ONALEE KATHLEEN FRYE

                                                                                                                                        Respondent   

                                            Heard at Toronto, Ontario, on May 5, 2005.

                                 Judgment delivered at Ottawa, Ontario, on August 8, 2005.

REASONS FOR JUDGMENT BY:                                                                                THE COURT

Date: 20050808

Docket: A-441-04

Citation: 2005 FCA 264

CORAM:        LINDEN J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                            Appellant   

                                                                           and

                                                     ONALEE KATHLEEN FRYE

                                                                                                                                        Respondent   

                                                    REASONS FOR JUDGMENT

THE COURT

Introduction

[1]                Corporal Lee Arnold Berger, a career soldier, was killed in the early hours of August 3, 1994 when he was struck by a tractor trailer. The accident happened while he was on his way back to camp after taking a late night swim in a lake near his temporary base at Penticton, British Columbia. Earlier that evening, he had signed out of camp and gone to town, returning shortly before midnight. He left camp again soon afterwards, in breach of curfew, to go the beach, but did not sign out.

[2]                Corporal Berger had been recalled to duty from his annual leave for immediate deployment to fight forest fires in British Columbia. During his deployment, he was "on duty" 24 hours a day, seven days a week. He had been fighting fires for 16 hours the day he went to the beach to swim.

[3]                His widow, Onalee Kathleen Frye, was refused a pension by the Minister of Veterans Affairs on the ground that she had not established that Corporal Berger's death "arose out of or was directly connected with" his military service, as required by paragraph 21(2)(b) of the Pension Act, R.S.C. 1985, c. P-7 (the "Act"). This refusal was upheld in a series of decisions by the Veterans Review and Appeal Board (the "Board"). However, on an application for judicial review, a Judge of the Federal Court set aside the decision and remitted the matter to the Board to be dealt with on the basis that Corporal Berger's death arose out of and was directly connected to his military service: Frye v. Canada (Attorney General) (2004), 256 F.T.R. 285. The Minister has appealed to this Court, arguing that, instead of deferring to the Board, the Judge in effect substituted his view of the merits of the case for that of the Board.

[4]                Eleven years have elapsed since Corporal Berger's tragic death. This matter would likely not have been contentious, and Ms. Frye would probably have received a pension, if the accident had occurred after the Act was amended by S.C. 2003, c. 12, sections 1-3. The effect of the amendments was to enable a person to claim a pension by showing that a member of the armed forces was injured or killed while on designated "special duty service", which could include service in an area where members were exposed to "conditions of elevated risk", such as fighting forest fires. In such circumstances, a claimant would not have to prove that the death or injury arose out of or was directly connected with the member's military service. The amendments were not retroactive to 1994.

Background

[5]                Following the decision of the Minister to deny her a pension, Ms. Frye applied to the Board to review the Minister's decision. A review panel of the Board confirmed the Minister's decision, finding that Corporal Berger's death did not arise out of, nor was directly connected with, his military service, as is required by paragraph 21(2)(b) of the Act, which reads:

[6]                Ms. Frye appealed the review decision, which was affirmed by an appeal panel of the Board in an appeal decision, dated July 14, 1999, on the ground that, since Corporal Berger "was taking advantage of recreation and relaxation time" when he was killed, his death neither arose out of, nor was directly connected with, his military service.

[7]                The appeal panel also held that the death could not be presumed to have arisen out of military service under paragraph 21(3)(f) of the Act, which provides:

[8]                Ms. Frye requested a reconsideration of the appeal decision, on the ground that paragraph 21(3)(f) applied. However, an appeal panel confirmed it in a reconsideration decision, dated September 23, 2003, finding that the circumstances surrounding the accident did not meet the test for the presumption under paragraph 21(3)(f). In particular, the panel relied on the fact that Corporal Berger had left camp without signing out and concluded (at page 2 of the reconsideration decision):

His activities during such absence were his own to choose and there is no evidence to show that such activities were in any way influenced by his superiors' orders.

[9]                In his reasons for granting the application for judicial review, the Judge held that Ms. Frye was only entitled to a pension if she could establish that her husband's death "was directly connected with", rather than merely "arose out of", his military service. However, he concluded that, when the facts were considered as a whole, she had proved the necessary direct or proximate causal connection between Corporal Berger's death and his military service.

Decision under Review

[10]            Ms. Frye's notice of application for judicial review identifies the Board's reconsideration decision as the decision under review. Nonetheless, it is common ground that, in conducting its review of the reconsideration decision, the Court must also consider the Board's appeal decision.

Standard of Review

[11]            On the basis of a pragmatic and functional analysis, Evans J. (as he then was) concluded in McTague v. Canada (A.G.), [2000] 1 F.C. 647 (T.D.), that Board decisions on whether an injury "arose out of or was directly connected with" military service for the purpose of paragraph 21(2)(a) of the Act are reviewable on a standard of reasonableness simpliciter.

[12]            However, when the issues in dispute are purely factual, the Federal Courts Act, R.S.C. 1985, c. F-7, paragraph 18.1(4)(d) prescribes a standard akin to patent unreasonableness (Bradley v. Canada (Attorney General) (2004), 257 F.T.R. 73, 2004 FC 996, at para. 11). When the Board's interpretation of the Act is in issue, it is subject to review for error of law on a standard of correctness (Bradley v. Canada (Attorney General) (2001), 208 F.T.R. 253, 2001 FCT 793, at para. 18 ("Bradley I")).

[13]            The same pragmatic and functional factors are equally relevant to the determination under paragraph 21(2)(b), and yield the same standards of review.

Interpreting the Act

a liberal and generous approach

[14]            Social welfare legislation must be liberally construed. This principle was first enunciated by the Supreme Court of Canada in [1983] 1 S.C.R. 2">Abrahams v. A.G. Canada, [1983] 1 S.C.R. 2, in the context of unemployment insurance, where Wilson J. (at 10) wrote:

Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re-entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant.

To the same effect, see also Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; Canada (Canada Employment and Immigration Commission) v. Gagnon, [1988] 2 S.C.R. 29 and Caron v. Canada (Employment and Immigration Commission), [1991] 1 S.C.R. 48.

[15]            These interpretative principles have also been applied in the context of employment standards legislation. Thus, in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 36, the Court emphasized that, as benefits-conferring legislation, the statute ought to be interpreted in a broad and generous manner, and that any doubt arising from its language ought to be resolved in favour of the claimant. Thus, the Court said (at 47):

Finally, with regard to the scheme of the legislation, since the E[mployment] S[tandards] A[ct] is a mechanism for providing minimum benefits and standards to protect the interests of employees, it can be characterized as benefits-conferring legislation. As such, according to several decisions of this Court, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant [citations omitted]. It seems to me that, by limiting its analysis to the plain meaning of ss. 40 and 40a of the ESA, the Court of Appeal adopted an overly restrictive approach that is inconsistent with the scheme of the Act.

[16]            Similarly, in the context of the Canada Pension Plan, Isaacs C.J. said in Villani v. Canada (Attorney General), [2002] 1 F.C. 130 at para. 28 (C.A.):

It is evident to me that the Plan is benefits-conferring legislation analogous to the Unemployment Insurance Act, 1971. The Plan provides for the payment of disability benefits to claimants who have been contributors under the scheme.[...]

[17]            Like the Canada Pension Plan, the Pension Act also provides for pensions and disability benefits to claimants and their dependants and is thus "benefits conferring" legislation. The preamble reads:

An Act to provide pensions and other benefits[...]

[18]            There is not only judicial authority for the principle that, as benefits-conferring legislation, the Act should be liberally construed, but also strong statutory language mandating this approach. Section 2 of the Actreads as follows:

[19]            The Veterans Review and Appeals Board Act, S.C. 1995, c. 18, further supports a liberal and generous interpretation and application of the Act. It prescribes a liberal construction of the Act and requires the Board to draw every reasonable inference from the circumstances and the evidence in favour of the claimant; to accept any uncontradicted evidence by the claimant that it considers credible in the circumstances; and to resolve in favour of the claimant any doubt in weighing of evidence. The relevant provisions are as follows:

[20]            The effect of section 39 was considered in Metcalfe v. Canada (Attorney General) (1999), 160 F.T.R. 281, where Evans J. (as he then was) wrote (at para. 17):

While paragraphs (a), (b) and (c) of this section may not create a reverse onus by requiring the respondent to establish that a veteran's injury or medical condition was not attributable to military service, they go a considerable way in this direction by requiring, in effect, that claimants be given the benefit of any reasonable doubt.

"arose out of or directly connected with" military service

[21]            The liberal approach to the interpretation of the Pension Act, mandated both by Parliament and by the interpretative principles outlined above, requires that the phrase "arose out of" in paragraph 21(2)(b) be interpreted in a broad manner. This phrase, used in another statute, was interpreted broadly in Amos v. Insurance Corp of British Columbia, [1995] 3 S.C.R. 405 at para. 21, where Major J. said:

The question is whether the requisite nexus or causal link exists between the shooting and the appellant's ownership, use or operation of the van. With respect to causation, it is clear that a direct or proximate causal connection is not required between the injuries suffered and the ownership, use or operation of a vehicle. The phrase "arising out of" is broader than "caused by", and must be interpreted in a more liberal manner.

[22]            Since then, several courts have applied this reasoning to determine whether injuries "arose out of" the use and operation of an automobile in the insurance context. Even though, in some cases, the automobile played only a minor role in the injuries, courts have found a sufficient causal nexus between the injury and the operation of a vehicle: see, for example, Lefor (Litigation guardian of) v. McClure (2000), 49 O.R. (3d) 577 (C.A.).

[23]            In the present case, the Applications Judge correctly endorsed a broad approach to the interpretation of the Pension Act. However, he also held that the word "consécutive" in the French text of paragraph 21(2)(b) imported a limitation not present in the broader English phrase, "arose out of". Accordingly, he said (at para. 22) that "directly connected with" was the controlling phrase, which he paraphrased as "directly caused by".

[24]            With respect, we disagree with this analysis. It is contrary to the broad interpretative approach that the Judge had espoused and is not demanded by the statutory text.

[25]            First, as the Judge himself pointed out (at para. 20), it is significant that the phrase "arose out of" is linked to "directly connected with" by the word "or". This would appear to indicate that Parliament did not intend to provide that a claimant was eligible for a pension only if the injury or death both "arose out of" and was "directly connected with" military service.

[26]            Second, we are not satisfied that the word "consécutive" imposes the limit suggested by the Applications Judge and we do not agree that the Board erred because it did not consider the meaning of "directly".

[27]            For example, Harrap's Standard French and English Dictionary, 1980 says:

consécutif, -I've: [...] fatigue consécutive à une long marche, fatigue resulting from a long march; infirmité consécutive à une blessure, infirmity due to, following upon, consequent upon a wound

[underlining added]

Similarly, the definitions of "consécutif" in Le nouveau petit Robert; Nouv. ed. du petit Robert, include:

qui suit, résulte de, est une conséquence de ...

We do not understand these definitions to connote a closer causal nexus between events than the non-specific English phrase "arose out of" .

[28]            Even if we are wrong to think that there is no discrepancy between the two official versions of paragraph 21(2)(b), the broader meaning should be selected if it better expresses Parliament's intention. Thus, in [1979] 1 S.C.R. 865">R. v. Compagnie Immobilière, [1979] 1 S.C.R. 865, the Court had to determine whether the phrase "dispose of" in subsection 1100(2) of the Income Tax Regulations should be interpreted narrowly because of the narrower term "aliénés" in the French version. The Court held that, since it better met the objectives of the section, the broader English word should not be narrowed by the French. The words of Pratte J. (at 872) are equally applicable here:

In my view therefore the narrower meaning of one of the two versions should not be preferred where such meaning would clearly run contrary to the intent of the legislation and would consequently tend to defeat rather than assist the attainment of its objects.

For a more recent example of the application of this principle, see Doré v. Verdun (Ville), [1997] 2 S.C.R. 862 at 879.

[29]            Consequently, since the purpose of the Pension Act is to provide pensions in defined circumstances, which must be interpreted liberally and generously, a broad interpretation of    paragraph 21(1)(b) is required in order to facilitate entitlement. Hence, we are of the view that a claimant may fall within paragraph 21(1)(b) by establishing that death or injury arose out of military service, whether or not there was a direct connection between them. In other words, while it is not enough that the person was serving in the armed forces at the time, the causal nexus that a claimant must show between the death or injury and military service need be neither direct nor immediate.

The Board's Error

[30]            The reasons for the appeal decision of July 14, 1999, indicate that the Board misinterpreted the phrase "arose out of" by requiring an immediate causal connection between Corporal Berger's death and his military service. It is implicit in the following quote (appeal decision reasons, p. 7) that, in the Board's view, his death neither arose out of, nor was directly connected with military service, because it occurred when he was engaged in a recreational activity;

....It is the Board's conclusion that when Cpl Berger went into town, he began his recreational activity and ended his relationship to service.

Similarly, going swimming after his trip into town was in the Board's opinion a recreational activity. Swimming, in this case, is a normal day to day activity which the late serviceman would have been able to do at any time when not performing the duty for which he had been deployed.

[31]            The Board seems thus to have treated recreational activities and military service as mutually exclusive categories, so that, since the Corporal Berger's death occurred while engaging in recreational activity, it did not arise out of military service. In so reasoning, the Board failed to look at all the circumstances in order to determine whether, while linked to recreational activity, Corporal Berger's death was not also sufficiently causally linked to military service that his death could be said to have arisen out of military service. This narrow approach to the phrase "arose out of or directly connected with" is not consistent with the liberal and generous interpretative approach to the Act that is required by law.

[32]            A similar error was identified in Bradley I, where the claimant had sustained an injury while showering on board ship. His claim for a pension was refused because showering was characterized as a "normal activity". MacKay J. said (at para. 25)

In this case, the Board states that the applicant was engaged in a personal activity of daily living when the accident occurred, and because this is a normal activity which can occur anywhere, the injury did not arise out of, nor was it directly connected with, his military service. However, it is not the activity of showering considered in isolation from Mr. Bradley's military service which is important. The activity might take place anywhere, but in this case the applicant was assigned to duty on a ship and showering could only take place onboard the ship which was away from its home port. Although he was not ordered to take a shower, Mr. Bradley showered on board HMCS Qu'Appelle because there was no other choice. Assuming for the moment that his claimed disability arose from that activity, whether it arose out of military service is the question the Board ought to have determined. I note that in his decision in the first application for judicial review, my colleague Mr. Justice Blais specifically found that the applicant was on training at the time of the incident alleged on board the Qu'Appelle.

[33]            A liberal and generous interpretation of paragraph 21(2)(b) required the Board to consider the entire circumstances in which Corporal Berger was killed, with a view to determining if "recreational" swimming was sufficiently causally connected to military service to establish Ms. Frye's eligibility for a pension.

[34]            In this context, it should have given weight to the statement of the Commanding Officer, Lieutenant-Colonel Leslie, to the effect that, in order to ensure that soldiers did not become overly fatigued as a result of the arduous, dangerous and dirty nature of fighting forest fires for long hours, he had authorized the establishment of a recreation and relaxation policy.

[35]            While it is not known whether swimming at the beach was authorized by the recreation and relaxation policy, swimming may reasonably be considered beneficial in ensuring that soldiers are ready to resume fighting the forest fires next day. Further, it may be inferred from the entries of "beach" and "town" as destinations in the camp gate logs that officers condoned trips to the beach and into town, whether or not "recreational" swimming was officially endorsed in any policy.

Remedy

[36]            The Minister argues that the Applications Judge erred when he remitted the matter to the Board with a direction that it be dealt with on the basis that Corporal Berger's death arose out of and was directly connected with his military service. The Minister says that, on an application for judicial review, a Court should only direct the ultimate outcome of a case in the clearest of cases, which this is not.

[37]            It is within the discretion of the Applications Judge to determine what directions to give to a tribunal when setting aside its decision. We are not persuaded that the Judge erred in principle in the exercise of his discretion when he issued the direction in question. In our opinion, it was open to the Judge to conclude that, if the Board interpreted the Act correctly and applied it liberally and generously, as required by law, the only reasonable conclusion that the Board could reach on the facts was that Corporal Berger's death arose out of or was directly connected with his military service.

Conclusion

[38]            For these reasons, the appeal will be dismissed with costs.

               "A.M. Linden"                               

                                                                                                      J.A.   

                "J. Edgar Sexton"                           

                                                                                                      J.A.   

               "John M. Evans"                            

                                                                                                      J.A.   

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  A-441-04

STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA

v.

ONALEE KATHLEEN FRYE

PLACE OF HEARING:                                 TORONTO, ON         

DATE OF HEARING:                                   MAY 5, 2005

REASONS FOR JUDGMENT

OF THE COURT:                                           LINDEN, SEXTON, EVANS, JJ.A.

DATED:                     August 8, 2005

APPEARANCES:

                                   Mr. Cynthia Koller / Ms. Natalie Henein              FOR THE APPELLANT

Mr. Brad Moore

FOR THE RESPONDENT                  

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Attorney General of Canada                    FOR THE APPELLANT

Fasken Martineau DuMoulin LLP

Toronto, ON                  FOR THE RESPONDENT