Docket: A-290-13
Citation: 2014 FCA 215
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CORAM:
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NOËL J.A.
SCOTT J.A.
BOIVIN J.A.
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BETWEEN:
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MAURICE ARIAL (veteran - deceased), MADELEINE ARIAL (surviving
spouse)
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Appellants
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
NOËL J.A.
[1]
The surviving spouse of Maurice Arial, who is
representing herself, is appealing on her own behalf and on behalf of her
deceased husband, Maurice Arial (the appellants), from a decision of the
Federal Court whereby Justice Roy (the Federal Court judge) dismissed an
application for judicial review of a decision of a review panel of the Veterans
Review and Appeal Board (the Board) holding that the appellants had been
sufficiently compensated, under sections 39 and 56 of the Pension Act,
R.S.C., 1985, c. P-6 (the Act), for breaches of the duty of the Department
of Veterans Affairs of Canada (VAC) to provide Maurice Arial with a counselling
service.
[2]
The issue that emerges from the arguments raised
by the parties is whether the Federal Court judge erred in concluding that the
decision of the Board not to refer the matter back to the Minister of Veterans
Affairs (the Minister) was reasonable.
[3]
For the reasons that follow, I conclude that the
Board’s decision was reasonable and that the appeal should therefore be
dismissed.
[4]
The provisions of the Act that are relevant to
the analysis that follows are reproduced in an appendix to these reasons for
judgment.
RELEVANT FACTS
[5]
The late Maurice Arial was a veteran who had
served in the Second World War. He was the spouse of Madeleine Arial and the
father of Sonia Arial, who is representing the appellants in these proceedings.
[6]
On March 7, 1996, the appellants filed a
disability pension application for the stomach problems that Mr. Arial had
been experiencing since his military service. This led to a series of exchanges
between VAC representatives and the appellants over the years from 1996 to
2005, during which the appellants were allegedly misinformed or even misled.
[7]
Mr. Arial died on September 25, 2005.
[8]
On August 8, 2006, the Minister issued a
decision denying his entitlement to a pension, and this decision was confirmed
by a review panel of the Board on January 24, 2007, on the basis of a lack
of a causal link between Mr. Arial’s stomach problems and his military
service.
[9]
On October 30, 2007, a review panel of the
Board awarded him a pension, effective November 9, 2005. However, the
Board refused to make an additional award.
[10]
The appellants applied for a review of that
decision, submitting that the effective date of the pension should be changed
and that an additional award should be made. The appellants’ application was
originally rejected on June 24, 2008, but they finally prevailed on
May 14, 2009, when a second panel of the Board agreed to backdate the pension
to October 30, 2004, and to grant them the maximum additional award of
24 months’ pension pursuant to subsection 56(2) of the Act because of
the administrative difficulties they experienced.
[11]
On December 2, 2010, a third Board panel
rejected a new application for review filed by the appellants, concluding that
VAC officers did not break their duty to provide a counselling service under
subsection 81(3) of the Act when processing Mr. Arial’s disability
pension application, and that the disability pension payment date,
October 30, 2004, should be confirmed.
[12]
Dissatisfied with this latest decision, the
appellants filed an application for judicial review in the Federal Court.
[13]
In a decision dated July 8, 2011,
Justice Shore, writing for the Federal Court, concluded that VAC broke its
duty to inform under subsection 81(3) of the Act, which obliges VAC to, “on request, . . . provide a counselling service to
applicants and pensioners with respect to the application of this Act to them
. . . and . . . assist applicants and pensioners in the
preparation of applications”, and that this breach had caused a delay in
paying the pension (Reasons at para. 61). Justice Shore therefore allowed the application for judicial review and ordered that the matter be
referred back to the Board for reconsideration of the retroactivity of the
pension in light of the breach of the duty to inform. The relevant passages
from the reasons of Justice Shore read as follows:
[65] Moreover, it is not this Court’s
role to determine if the pension should be retroactive to May 7, 1996, or not;
rather, the Court must determine whether the case should be referred back to a
new panel so that the facts and law can be reconsidered should an error in fact
or in law have been committed. It will be up to this new panel to determine
whether the retroactive effect of the award should be extended back to March 7,
1996. Clearly, Parliament does not speak in vain. Since Parliament has
provided that VAC pension officers owe veterans certain obligations to provide
them with the information they seek about pension applications, a breach of
these obligations must carry consequences.
. . .
[68] The statutory framework will
perhaps not allow a larger number of retroactive years to be awarded to the
applicants. However, the fact that the panel failed to recognize that Mr.
Arial had suffered serious difficulties over the last 11 years demonstrates
that there is an error in fact and in law.
. . .
[76] VAC’s breach of the duty owed to
Mr. Arial degraded the quality of life of this veteran. The Court refers the
case back to the Veterans Review and Appeal Board so that the Board can review
its responsibilities toward the Arial family. It will be up to the Board to
determine what a major breach of its duty to inform is worth, in accordance
with the legislation and the case law . . . .
[Emphasis
added.]
[14]
In accordance with the reasons of Justice Shore, the Board rendered a new decision on January 4, 2012, and that
decision is the subject of the application for judicial review underlying this
appeal. Noting that the appellants were receiving the maximum awards allowed by
the Act, the Board confirmed the maximum retroactivity period—which set the
pension’s effective date at October 30, 2004—as well as the maximum additional
award equivalent to two years’ pension.
[15]
The Board also rejected the appellants’ argument
that the case should be referred to the Minister with regard to the payment of
an additional award under section 85 of the Act to compensate for the
breaches found by Justice Shore.
[16]
On February 3, 2012, the appellants filed
an application for judicial review against that decision of the Board, which
application was dismissed by the Federal Court, hence this appeal.
DECISION OF THE FEDERAL COURT
[17]
Dealing first with the context of the
application, the Federal Court judge noted that the decision under review
concerned, for all intents and purposes, the follow-up to the decision of Justice Shore. On this point, the Federal Court judge referred to paragraphs 65
and 76 of the reasons of Justice Shore and observed that “the Court did not pre‑order a conclusion by the
reconsideration panel”, instead merely referring the matter back for
reconsideration (Reasons at paras. 23 and 24).
[18]
The Federal Court also noted that the appellants
conceded in the memorandum that they filed with the Court that the Board had
awarded them the maximum provided under the Act, thus rendering its decision
unassailable in this regard (Reasons at paras. 27, 28 and 36).
[19]
The Federal Court judge therefore turned to the
appellants’ alternative argument, according to which the Board should have
remedied VAC’s failure to provide a counselling service by referring the matter
back to the Minister in accordance with section 85 of the Act (Reasons at
paras. 29 et seq.). The Federal Court judge noted that section 85
does not allow the Minister to circumvent the pension payment limits in the Act
(Reasons at para. 34):
[34] A provision such as
section 85 cannot be read as allowing a minister to do whatever he or she
wants as if the Act did not exist. Parliament chose to limit the state’s
liability for pension payments in legislation that deals with pensions. The
power under section 85 must be read on the basis of this express limitation.
Section 85 cannot be interpreted as giving the minister the outrageous
power of ignoring the Act such as providing an award for an alleged fault that
the Board itself cannot consider. The very wording of subsection 56(2)
seems to describe the situation in this case, and the Board has already awarded
the maximum that the Act provides for these cases.
[20]
Furthermore, the Board can refer to the Minister
only those applications for awards over which it has jurisdiction, that is, “a pension, compensation, an allowance or a bonus payable
under this Act” (Reasons at para. 33). Similarly, the Minister can
only consider applications for awards payable under the Act (Reasons at
para. 35). Therefore, in view of this reasoning, the appellants’ argument
comes up against a considerable obstacle: “It is one of
two things: either the fault is in the range of what is described in
subsection 56(2), and the Act establishes its own remedy or the fault is
of a different kind, and we are then in the area of civil liability where the
Board has no jurisdiction” (Reasons at para. 35).
[21]
At the end, the Federal Court judge held that
the Board correctly refused to refer the matter back to the Minister on the
basis of section 85 of the Act, particularly since Justice Shore had in no way ordered that remedy in his decision (Reasons at para. 37). Referring a
matter back to the Minister is a discretionary remedy that is within the
expertise of the Board and therefore subject to review on the reasonableness
standard (Reasons at para. 37). For these reasons, the Federal Court judge
was of the opinion that the Board’s decision had all the attributes of a
reasonable decision and should therefore stand.
POSITIONS OF THE PARTIES
[22]
The appellants submit that the Federal Court
judge erred in concluding that the Board’s decision complied with the reasons
of Justice Shore, and in failing to consider precedents where the Minister had
intervened (Appellants’ Memorandum at pp. 14 to 20).
[23]
On this point, the appellants refer to several
passages from Justice Shore’s reasons suggesting that VAC’s breaches must
have consequences and that the Board had to remedy the mistreatment that the appellants
had suffered. According to the appellants, Justice Shore had an
administrative law remedy in mind, not a civil remedy (Appellants’ Memorandum
at pp. 15 to 17).
[24]
The appellants also refer to a series of
decisions supporting the Minister’s discretion to consider applications for
awards (Appellants’ Memorandum at pp. 17 to 19).
[25]
The appellants also cast doubt on the Board’s
impartiality, although they do not specify any conduct that might give rise to
a reasonable apprehension of bias. Instead, the appellants evoke the [translation] “unfavourable
position” in which they were placed, from a legal standpoint, as well as
the shortcomings in the services made available to veterans (Appellants’
Memorandum at pp. 17 to 19).
[26]
The Attorney General of Canada (the Attorney
General), on the other hand, submits that the appeal should be dismissed. He
argues that the Federal Court judge made no reviewable errors in concluding
that the Board’s decision not to refer the case to the Minister was reasonable.
On this point, the Attorney General essentially invokes the reasoning of the
Federal Court judge.
ANALYSIS AND DECISION
[27]
As was recently reiterated by this Court, “this Court’s role in an appeal of a decision rendered on an
application for judicial review is well established: it is to determine whether
the judge used the appropriate standard of review and applied it correctly”
(Desgagnés Transarctik Inc. v. Canada (Attorney General), 2014 FCA 14,
[2014] F.C.J. No. 65 at para. 34, citing Dr. Q v. College of
Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003]
1 S.C.R. 226 at paragraphs 43 and 44; Canada (Revenue Agency) v. Telfer,
2009 FCA 23, [2009] F.C.J. No. 71 at paragraph 18; Canada
(Revenue Agency) v. Slau Limited, 2009 FCA 270,
[2009] F.C.J. No. 1194 at paragraph 26 and Public Service
Alliance of Canada v. Canada Post Corporation, 2010 FCA 56, [2011] 2 F.C.R.
221 at paragraph 84).
[28]
The only issue in this appeal is whether the
Board erred in choosing not to refer the decision to the Minister. This is a
discretionary decision, which calls for a measure of deference on the part of a
reviewing court (Robertson v. Canada, 2010 FC 233, [2010] F.C.J.
No. 263). The Federal Court judge recognized this in reviewing the Board’s
decision on a standard of reasonableness (Reasons at para. 37).
[29]
The Federal Court judge therefore correctly
identified the applicable standard of review. The remaining question is whether
he applied it properly.
[30]
In my view, the Federal Court judge correctly
concluded that the Board’s refusal to apply section 85 of the Act was
reasonable. Let us recall that, in ordering the reconsideration, Justice Shore did not dictate any remedy to the Board, but instead ordered it to
consider the difficulties that the appellants had faced in their contacts with
VAC. As the Federal Court judge pointed out, the Board, in its decision dated
May 14, 2009, gave the appellants the maximum awards available under subsections 39(2)
and 56(2) of the Act, which are specifically intended to compensate claimants
for any “administrative difficulty beyond the control of the [appellants]” (Reasons at para. 37).
[31]
The appellants submit that the Minister could
have offered them additional awards if the Board had agreed to refer the matter
to him. The Federal Court judge reached the opposite conclusion, and in my
view, his analysis is free of error. Section 85 of the Act does not
provide an independent remedy for a breach of the duty to provide a counselling
service, as set out in subsection 81(3) of the Act. Sections 39 and
56, when read together with the definition of “award” appearing in
section 3 of the Act, set the parameters within which the Minister’s power
of reconsideration may be exercised, and the Minister could not act outside
them.
[32]
The imperative nature of these provisions is
confirmed by the case law, which is well settled. In this regard, I think it is
helpful to reproduce the key passages from Leclerc v. Canada (Attorney General), 1998 CanLII 7445 (FC) at paragraphs 18 to 21, as reproduced in Cadotte
v. Canada (Veterans Affairs), 2003 FC 1195, [2003] F.C.J. No. 1513:
[18] Just as the provisions of the Act
must be interpreted in such a way as to maximize payments for the benefit of
pensioners, so subsection 39(1) is clear as to its effects in the context
of this case. The purpose of that section is to limit the retroactive effect of
any pension awarded to a maximum of three years. The only exception to this
limitation is the one set out in subsection 39(2), which allows the Board
to make an additional award in an amount not exceeding the cumulative annual
value of two years pension.
[19] The limitation thus imposed on the
retroactive payment of pensions is made necessary by the legislative scheme
established for the benefit of pensioners. The effect of the scheme is that
once a pension is awarded it is always reviewable, and in the course of such
reviews the Board may have regard to any new evidence and amend its earlier findings
of fact or of law in the event that it considers them to be erroneous. The
reason why Parliament instituted a scheme that allows pensioners to present any
new fact or legal argument, at any time, that could affect the amount of the
pension paid to them, is to maximize the benefit derived from pensions and also
to recognize the fact that disabling physical conditions may change over time. From
the standpoint of the payer, however, this means that the financial burden
associated with the pension scheme is never ascertained with finality, and it
is in this context that Parliament deemed it advisable, through subsection
39(1), to put a time limit on the retroactive effect of awarding a pension.
[20] The applicant points out that in
this case, what led to his full pension being awarded was the correction of an
error of law, and that he is in no way responsible for the fact that the years
went by before his entitlement was recognized. The fact that the cause of
the delay is not attributable to the applicant does not mean that
subsection 39(1) may be disregarded, as it applies to any pension
regardless of the circumstances in which it is awarded.
[Emphasis
added.]
[33]
The pension that may be paid under
subsection 56(1) upon the death of a veteran is subject to the same limits
as the pension paid to a veteran’s survivor under subsection 39(1). The
only exception is provided in subsections 39(2) and 56(2), which authorize
an additional payment equal to two years’ pension. This regime applies to any
form of award payable under the Act—including a pension, compensation, an
allowance or a bonus, according to the definition appearing in
section 3—such that the maximum award paid under the Act cannot, in any
event, ever exceed the three-year retroactivity period (subsections 39(1)
and 56(1)) and the additional award equivalent to two years’ pension
(subsections 39(2) and 56(2)). The appellants were indeed granted the
maximum amounts under both these headings. MacKenzie v. Canada (Attorney
General), 2007 FC 481, [2007] F.C.J. No. 645, a Federal Court case,
quoted at length in Justice Shore’s reasons, has no bearing on these
parameters.
[34]
Therefore, the Federal Court judge’s refusal to
order that the matter be referred to the Minister is necessarily reasonable
because even if he had done so, the appellants could not have been awarded any
additional amount.
[35]
As can be seen from the preceding, although Justice Shore’s judgment did not guarantee any results, it did create false hopes,
which is unfortunate, given the state of the law, as the maximum amounts that
may be paid to the appellants under the Act could not be any clearer. In these
circumstances, the decision of the Attorney General not to require the
appellants to pay costs in the appeal is both honourable and appropriate.
[36]
Finally, I note that the allegation of bias made
against the Board is clearly unfounded, as no conduct raising a reasonable
apprehension of bias was shown.
[37]
For the above reasons, I would dismiss the
appeal, without costs.
“Marc Noël”
“I agree
A.F. Scott J.A.”
“I agree
Richard Boivin J.A.”
Certified true
translation
François Brunet,
réviseur
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