[2] Mr. Fournier argues that the Appeal Panel erred in its interpretation of sections 45 and 2(1) of the Act by imposing on him the burden of proving that his disability was caused by the negligence of the medical staff of the Canadian Armed Forces [the Forces]. The crux of his position is that the Supreme Court of Canada’s decision in Jean-Guy Mérineau v Her Majesty the Queen [1983] 2 S.C.R. 362 [Mérineau] and the decision made by the Pension Review Board in 1978 [Decision I-25] must not be followed and that the disability he suffers from must be acknowledged as being service-related pursuant to section 45 of the Act irrespective of any concept of fault due to the fact that it consists of a side effect caused by a treatment administered under the authority of the Forces. Mr. Fournier’s alternative position is that the Appeal Panel erred in its application of section 39 of the Veterans Review and Appeal Board Act, SC 1995, c. 18 [the Appeal Board Act] by concluding that he had not met his onus of proving that his disability arose out of his military service and by failing to consider all the evidence that was submitted.

[3] The Attorney General of Canada [AGC] replies that Mr. Fournier’s condition stems from a personal condition that did not arise out of nor is related to his military service. Thus, for his entitlement to an award to be recognized, Mr. Fournier must prove that a professional from the Forces was negligent in administering treatments, which he failed to do. The AGC therefore argues that the Appeal Panel’s decision is reasonable.

[4] For the reasons that follow, the Court will allow the application for judicial review.

II. Factual background

[5] From 1981 to 2014, Mr. Pierre Fournier was a member of the Forces. On June 19, 2006, while Mr. Fournier was at the Montréal Heart Institute for a consultation related to pericarditis, Dr. Allier, a civilian doctor, prescribed him 300 mg of quinine sulphate [quinine] for his [translation] “restless legs syndrome.”

[6] To comply with the military medical procedure, Mr. Fournier presented the prescription received from the civilian doctor to Dr. Gaudreau, a military physician, who approved it. The pharmacist to whom Mr. Fournier then presented his prescription expressed some concerns and told him that a G6PD blood test would have to be conducted beforehand. Mr. Fournier went to see Dr. Gaudreau, who confirmed that said test is not required (Certified Tribunal Record [CTR], at pages 115–116). Thus, on or around June 20, Mr. Fournier started taking quinine sulphate.

[7] Mr. Fournier affirms that starting on June 30, 2006, he started feeling pain in his legs in addition to experiencing tiredness, and that from July 1 to 4, 2006, he had a consultation at the military hospital. The first mention of a consultation in his medical file dates back to July 4, 2006, but in any event, Mr. Fournier was then referred to the Centre de santé et de services sociaux [CSSS] de Chicoutimi (Applicant’s Record, p 24).

[8] According to the Applicant’s Record, on July 5, 2006, Mr. Fournier went to the CSSS’s emergency room, where a civilian physician noticed there was purpura on his legs. On or around July 6, Mr. Fournier returned to the CSSS to consult a doctor about his [translation] “rash,” and the emergency room doctor referred him to Dr. Leclerc, a dermatologist. On July 5 and/or 6, Mr. Fournier consulted Dr. Leclerc, and a skin sample was taken for analysis. Finally, on July 6, Mr. Fournier stopped taking quinine (Applicant’s Record, p 36). On July 14, 2006, the results of a biopsy and Dr. Michel Lessard’s diagnosis indicated a histological alteration suggestive of a chronic pigmentary purpura and no evidence of a vasculitic change.

[9] On July 17, 2006, Dr. Leclerc diagnosed drug-induced vasculitis. In a medical examination form dated July 24, 2006, Dr. Lapointe, a medical physician, indicated a diagnosis of [translation] “serious drug-induced vasculitis” and noted that quinine was apparently responsible for it and that this medication was apparently no longer taken.

[10] In September 2006, Mr. Fournier submitted an application for disability benefits to the Department of Veteran Affairs [the Department] for his drug-induced vasculitis. A copy of this application is found in the CTR and in the applicant’s record. The application consists of a form signed by Mr. Fournier on August 24, 2006, and copies of medical notes confirming the diagnosis of vasculitis made by Dr. Leclerc (civilian physician) on July 17, 2006, and by Dr. Lapointe (military physician) on July 24, 2006.

[11] On May 2, 2007, the Department denied Mr. Fournier’s application and concluded that [translation] “drug-induced vasculitis (00739) does not give rise to entitlement to disability benefits under section 45 of the Canadian Forces Members and Veterans Re-establishment and Compensation Act (CFMVRCA), Regular Force service.” The Department accepted the diagnosis of drug-induced vasculitis, but it considered that the documentation submitted by Mr. Fournier did not [translation] “provide any information that makes it possible to establish a cause and effect connection between the condition claimed” and his military duties and concluded that the condition did not arise out of nor is directly connected with his service.

[12] Mr. Fournier contested the Department’s refusal with the Entitlement Review Panel of the Veterans Review and Appeal Board Canada [the Review Panel]. Mr. Fournier then relied on the medical negligence of the Forces’ medical staff and submitted new evidence, namely a letter written by Dr. René Jacques dated November 6, 2013, in which Dr. Jacques indicates that Mr. Fournier’s problem is quinine and, from reading the indications and the adverse effects, it [translation] “should not be prescribed for restless legs syndrome (which was the case in 2006).” He claims that the test to determine the level of the G6PD is not connected to the hypersensitivity to quinine. To support his application for review, Mr. Fournier then also submitted an excerpt from Health Canada’s Canadian Adverse Reaction Newsletter on quinine sulphate dated April 2011, a Wikipedia page on quinine, and an excerpt from the quinine monograph dated October 2006.

[13] On or around July 29, 2014, the Review Panel dismissed Mr. Fournier’s application and confirmed the Department’s decision. In regard to the question at issue, the Review Panel considered that it had to determine whether Mr. Fournier’s condition arose out of or is directly connected with his service in the Regular Force.

[14] In the section dealing with the analysis and the reasons, the Review Panel relies on Decision I-25 and confirms the burden on the applicant to support an allegation of negligence or of medical mismanagement. The Review Panel concluded that the condition does not give rise to an entitlement to benefits because Mr. Fournier did not prove that the care provided by the military health professionals in 2006 did not comply with the appropriate service standard nor that there had been any medical negligence on their part. Furthermore, the Review Panel did not answer the question that he had asked, neither did it indicate in its analysis nor in its conclusion whether Mr. Fournier’s condition [translation] “arose out of is directly connected with his service.”

[15] Mr. Fournier contested this decision before the Review Panel. At the time, he essentially submitted that the Review Panel erred (1) in concluding that the Act requires evidence of medical negligence before an entitlement to a benefit can be granted, and (2) in concluding that the evidence on file did not establish the presence of medical negligence. In particular, he claims that Hall v Canada (Attorney General), 2011 FC 1431 [Hall], sets out that it is no longer necessary to prove medical negligence, that Decision I-25 must no longer be followed, and that there was evidence in the file confirming that the quinine was contraindicated for treating restless legs syndrome.

[16] On November 24, 2016, the Appeal Panel dismissed Mr. Fournier’s appeal, affirmed the Appeal Panel’s decision, and denied entitlement to an award pursuant to section 45 of the Act. This decision is the subject of this judicial review.

III. The Appeal Panel’s decision

[17] The Appeal Panel’s decision is divided into six sections, namely (1) Introduction; (2) Preliminary questions; (3) Issue; (4) Evidence and discussion; (5) Analysis/reasons, and (6) Decision. Sections (3) to (6) are relevant in the context of this decision.

[18] The Appeal Panel states the issue before it as follows: [translation] “Should an entitlement to a disability award be granted for the appellant’s disorder, namely drug-induced vasculitis?”

[19] With respect to the Evidence and Argument, the Appeal Panel reiterates the submissions by Mr. Fournier’s counsel, namely (1) the argument that Mr. Fournier should be granted a disability award because his drug-induced vasculitis arose out of or was directly connected with his military service in the Regular Force; (2) the uncontested facts; (3) various evidence, such as Dr. Lapointe’s examination form dated July 24, 2006, Dr. René Jacques’s opinion dated November 6, 2013, and Health Canada’s newsletter dated April 2011.

[20] The Appeal Panel also reiterates the arguments put forth by Mr. Fournier’s counsel that the Appeal Panel erred (1) in referring to Decision I-25; (2) in concluding that the Act requires evidence of medical negligence in this case before entitlement to an award can be granted; and (3) in concluding that the evidence on file did not establish the presence of medical negligence.

[21] The Appeal Panel notes the references made by counsel for the applicant to this Court’s decision in Hall and to Mr. Fournier’s argument that this decision affirmed that Decision I-25 is no longer valid, that it is sufficient that a disability arise out of care received from military medical staff for compensation to be granted, and that it is therefore no longer necessary for a member of the Forces to prove medical negligence to provide entitlement to compensation. It also notes Mr. Fournier’s arguments that the provisions of the Act are [translation] “faultless” and that the applicant must demonstrate that his condition arose out of or is directly connected with his service, which is the case here because the condition Mr. Fournier suffers from stems directly from the treatment he received with the approval of military authorities.

[22] To end the Evidence and Argument section, the Appeal Panel refers to the argument raised by counsel for Mr. Fournier that, in any event, medical negligence was proven mainly by the contents of Dr. Jacques’ letter dated November 6, 2013, and by the Australian document dated August 2011.

[23] In the Analysis/Reasons section of its decision, the Appeal Panel reiterates the rules that it must apply in terms of evidence under section 39 of the Appeal Board Act, and it thus answers the three questions submitted by counsel for the applicant, namely:

[TRANSLATION]

1. Does Hall indicate that medical negligence must no longer be proven? No
2. Does Interpretation Decision I-25 still apply? Yes
3. Do the facts that appear in the applicant’s file support or not an entitlement to a disability award? No

[24] The Appeal Panel postulates that it is Decision I-25 [translation] “that adopted the interpretation of the act that makes it possible to provide compensation for disabilities stemming from medical errors that otherwise would not be covered” (Appeal Panel’s decision, p 7, emphasis added).

[25] The Appeal Panel then specifically considers the three following components: (1) how medical negligence cases are decided; (2) I-25 challenged than affirmed; and (3) Hall.

[26] With respect to the first component, the Appeal Panel addresses Decision I-25 and reiterates that the care provided to members of the Forces by the Force’s medical staff can occasionally cause a disability and that this disability provides entitlement to compensation if it stems from negligence or from inadequate medical care under the established standard.

[27] With respect to the second component, the Appeal Panel refers to the Supreme Court’s decision in Mérineau. Without getting into the details concerning this case, the Appeal Panel indicates, inter alia, that the Supreme Court concluded at the time [translation] “that subsection 21(2) of the Pension Act did not entitle a serviceman to receive a disability pension when his disability stems from an error or the negligence of military staff as part of care received in a military establishment” and that [translation] “there is undoubtedly a connection between the member’s disability and his status as a serviceman, but this connection is too remote to make it possible to say that the disability is connected to his military service.” The Appeal Panel then reiterated that the Pension Review Board subsequently made Interpretation Decision I-31 to affirm and uphold Decision I-25.

[28] Thus, it will be possible to grant compensation to a member of the Forces if evidence establishes that a disability results from medical care that does not meet the standard.

[29] With respect to the third component of its analysis, the Appeal Panel considers this Court’s decision in Hall. According to the Appeal Panel, the Court [translation] “does not change the established principles” because in this case the issue of negligence has not been raised, and the Appeal Panel dismissed the allowance claim because the applicant was not performing his duties as a serviceman while he received treatments prescribed by his military physician, which the Court considered to be an error.

[30] The Appeal Panel then concluded that there is not, in Mr. Fournier’s file, credible evidence that the medical care he received did not comply with the required standard of care.

[31] The Appeal Panel found that the [translation] “medication may have caused the appellant’s drug-induced vasculitis, but this does not in itself make it possible to find that this disease arose out of or is directly connected with his service in the Forces” (emphasis added).

IV. Position of the parties

A. Mr. Fournier’s position

[32] Mr. Fournier reiterates the facts, submits his issues, and submits his proposals. He asks the Court to declare invalid or unlawful, or to quash or set aside, the decision made by the Appeal Panel on November 16, 2016, and to refer the matter for a judgment declaring that the drug-induced vasculitis the applicant suffers from entitles him to compensation under section 45 of the Act.

[33] Mr. Fournier thus submits three proposals, namely (1) the interpretation by the Appeal Panel of the terms [translation] “service-related injury” and “arose out of or was directly connected with the service” from sections 45 and 2(1) of the Act must be assessed according to the standard of correctness, while the issue of the assessment of the evidence carried out by the Appeal Panel must be reviewed on the standard of reasonableness; (2) the Appeal Panel erred in imposing the burden of proving medical negligence because the Act does not set out such a requirement; and (3) the Appeal Panel erred in its legal appraisal of the evidence.

(1) Standards of review

[34] Mr. Fournier argues that the standard of reasonableness applies to the interpretation of the terms “service-related injury” and “arose out of or was directly connected with the service” from sections 45 and 2(1) of the Act although it concerns the interpretation, by an administrative body, of a statute that is intimately connected to its mandate. In this respect, Mr. Fournier cites Cole v Canada (Attorney General), 2015 FCA 119 [Cole], which concerns a claim for a disability pension for a claimed condition of a major depression under paragraph 21(2)(a) of the Pension Act, RCS 1985, c. P-6. In this decision, the Federal Court of Appeal (FCA) applied the standard of correctness to assess the decision made by Montigny J. of this Court, in which he interpreted the wording “arose out of or is directly connected with” contained in the Pension Act.

[35] Furthermore, Mr. Fournier affirms that the issue of the assessment of the evidence under section 39 of the Appeal Board Act must be reviewed on the standard of reasonableness.

(2) The Appeal Panel erred in imposing the burden of proving medical negligence because the Act does not set out such a requirement

[36] Under this proposal, Mr. Fournier considers the six following components: (a) the legislative framework and the principles that apply to its interpretation; (b) the connection between the military service and the disability; (c) Hall and the dismissal of the test for negligence; (d) Decision I-25; (e) Mérineau; and (f) the test and its application in this case.

[37] In connection with the first component, Mr. Fournier, after setting out the relevant sections of the legislation, claims that the purpose of the Act is to compensate servicemen and servicewomen or their families in the event of disability or death and that it must be given a liberal and broad interpretation due to its purpose (Canada (Attorney General) v Frye, 2005 FCA 264 at paras 14 to 18 [Frye]; Godbout v Pagé, 2017 SCC at para 38 [Godbout]). He focuses on the fact that the Act does not mention any requirements of proving any kind of negligence because a serviceman or servicewoman must—to obtain compensation—simply demonstrate that his or her disability is “service-related,” namely that it “arose out of or is directly connected with his service.” In this respect, he argues that the test of “arose out of” the military service is less strict than the one of “directly connected with” (Hall, at paras 35, 37, and 41).

[38] In connection with the second component, Mr. Fournier’s basic contention is that a disability caused by a disease that arises from care that is given, prescribed or authorized by the Forces should provide entitlement to a compensation regardless of any individual’s responsibility mainly because of the health care system imposed on its members by the Forces. This system would represent a [translation] “connection” between the disability and the service required by the Act.

[39] Mr. Fournier affirms that the Appeal Panel is committing an error of law by requiring evidence of negligence on the part of the Forces’ health professionals to receive a disability award as provided by Decision I-25 because the Act does not mention it, and this requirement is at odds with the broad interpretation that is provided therein. He is also arguing that the Appeal Panel seems to be using the common tort law test for causation, which was dismissed by the FCA for the interpretation of “directly connected with” (Cole, at para 56). Thus, he instead argues that there is a sufficient connection between his disability and his service in the Forces because (1) servicemen and servicewomen are required to consult the Forces’ health professionals; and (2) the Forces are involved in the administration of the health care offered to its members. Therefore, he is under no obligation to prove a direct or immediate causal connection because his disability need only to have arisen out of (as set out in the English version of the Act) his service (Frye, at paras 21 and 29).

[40] Mr. Fournier stresses the importance of the Supreme Court of Canada’s decisions in Amos v Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405 (cited in Frye), and Godbout to argue that Mérineau should no longer apply.

[41] In connection with the third component, Mr. Fournier considered Hall, arguing that in this decision the Court displaced the burden of proving the negligence of the Forces’ medical staff to receive compensation (Hall, para 48) and that it must be followed.

[42] In connection with the fourth component, Mr. Fournier argues that Decision I-25 does not represent a binding precedent and that instead of applying it, the Appeal Panel should have reconsidered its merit in favor of more recent case law that favours a liberal and broad interpretation of the connection between the military service and the disability (Sloane v Canada (Attorney General), 2012 FC 567 at para 27). Thus, the requirement of proving medical negligence no longer falls within a range of possible, acceptable outcomes to interpret section 45 of the Act.

[43] In connection with the fifth component, Mr. Fournier argues that Mérineau must not be followed because it addresses another subject and leads to the impression that Decision I-25 does not represent an interpretation of the Act, but rather that it establishes a kind of bonus. Furthermore, according to Mr. Fournier, in Mérineau, the Supreme Court apparently did not address the term “directly connected,” leaving open the interpretation of the term “arose out of,” which must not be interpreted restrictively. Furthermore, Mr. Fournier argues that although the Supreme Court’s decisions in Amos and Godbout deal with the interpretation of various indemnity plans, they should be used to interpret section 45 of the Act, to the detriment of Mérineau.

[44] Finally, with respect to the sixth component, Mr. Fournier concludes by indicating that the obligation of the members of the Forces to consult the Forces’ health professionals and their obligation to provide servicemen and servicewoman with medical care suffices to prove the connection between the military service and the disability. All effects stemming from the care that was given, prescribed or authorized by the Forces would be “connected” with the service.

(3) The Appeal Panel erred in its legal appraisal of the evidence

[45] Mr. Fournier argues that the Appeal Panel erred in failing to legally qualify the facts pursuant to the wording of section 39 of the Appeal Board Act and by failing to address the new evidence submitted by Mr. Fournier.

[46] He affirms that the Appeal Panel did not consider the new evidence filed to support the position that, as of 2004, the medical community already knew that taking quinine involved risks and was already considered inadvisable in 2006. He argues that the Panel did not indicate the reason for its dismissal contrary to the requirements of case law (Acreman v Canada (Attorney General), 2010 FC 1331 at paras 35 to 37) because it would have necessarily decided in favour of Mr. Fournier on some important facts.

B. The Attorney General of Canada’s position

[47] The AGC also reiterates the facts, submits his issue, submits his proposals, and asks the Court to dismiss the application with costs.

[48] The AGC addresses the three following components: (1) the applicable standard of review; (2) the applicable legislative scheme; and (3) the application to the facts.

V. The issues

[60] The Court must first determine the appropriate standard of review.

[61] The parties submitted certain issues during their statements. However, as it was discussed with the parties during the hearing, the Court feels that the objective here is to determine whether or not the Appeal Panel erred in relying on Decision I-25 to consider whether Mr. Fournier can receive compensation under paragraph 45(1)(a) of the Act despite the fact that his disease is a priori not related to his service and despite the Supreme Court of Canada’s conclusion in Mérineau.

[62] To do this, it is necessary to express inquiry into Decision I-25, the position set out by the Supreme Court in Mérineau, Decision I-31, and the principle of stare decisis.

[63] Let us take a closer look at these issues.

VI. Standard of review

[64] Although it is usually appropriate to use the standard of reasonableness to assess an administrative tribunal’s decision that interprets its enabling legislation or a statute closely connected to its mandate, the FCA has specified that in a case like this one, and since it involves a discrete legal issue that is likely to be considered separately, it is necessary to instead assess the tribunal’s decision against the standard of correctness. Indeed, the FCA determined that “The interpretation of the phrase “arose out of or was directly connected with” in paragraph 21(2)(a) of the Pension Act is a question of law that was in dispute before the Board” and affirmed that the standard of correctness must be applied to interpret these terms (Cole, at paras 44–45).

[65] Thus, the Court must determine whether the Appeal Panel correctly determined that Mr. Fournier’s drug-induced vasculitis did not arise out of nor is directly connected with the military service on the grounds that he did not prove the level of medical negligence required in Decision I-25.

[66] As for the assessment of the evidence carried out by the administrative tribunal, I agree with the position of the parties that the standard of reasonableness applies.

VII. Analysis

A. Legislative framework

[67] Section 45 of the Act provides that a member of the Forces can receive a disability award.

45 (1) The Minister may, on application, pay a disability

award to a member or a veteran who establishes that

they are suffering from a disability resulting from

45 (1) Le ministre peut, sur demande, verser une indemnité

d’invalidité au militaire ou vétéran qui démontre

qu’il souffre d’une invalidité causée:

(a) a service-related injury or disease; or

a) soit par une blessure ou maladie liée au service;

(b) a non-service-related injury or disease that was

aggravated by service

(Emphasis added)

b) soit par une blessure ou maladie non liée au service

dont l’aggravation est due au service.

[68] At the hearing, the parties confirmed that the drug-induced vasculitis does not represent the aggravation of another condition—for example, that of restless legs syndrome—but rather that it represents a distinct and separate disease. Paragraph 45(1)(a) is therefore the one that applies in this case. Thus, it will be possible for benefits to be paid under this paragraph if the disability the serviceman suffers from is caused by a service-related disease.

[69] The term “service-related” is defined at section 2 of the Act:

service-related injury or disease means an injury or a disease that

liée au service Se dit de la blessure ou maladie :

(a) was attributable to or was incurred during special duty service; or

a) soit survenue au cours du service spécial ou attribuable à celui-ci;

(b) arose out of or was directly connected with service in the Canadian Forces. (liée au service)

(Emphasis added)

b) soit consécutive ou rattachée directement au service dans les Forces canadiennes. (service-related injury or disease)

[70] The wordings of paragraph 45(1)(a) and subsection 2(1) of the Act are similar to the ones used in the former section 12 of the Pension Act, RSC 1970, c. P-7, which was in effect in 1978 when Decision I-25 was published and in 1983 when the Supreme Court issued its decision in Mérineau, but which has since been replaced by section 21 of the Pension Act.

[71] Section 12 of the Pension Act affirmed that a member of the Forces is entitled to a pension when this member suffers from a disability caused by an illness or an injury, or its aggravation, that arises out of or is directly connected with the military service [...]. Section 12(2), now repealed, and section 21(2) of the Pension Act are reproduced in the annex.

[72] The case law dealing with these former sections is therefore still relevant because the issue boils down to interpreting and applying the same terms used in paragraph 45(1)(a) of the Act.

[73] The objective of the Act is clearly set out in one of its sections, namely section 2.1 Thus, it must be interpreted broadly, which is also affirmed by section 3 of the Appeal Board Act. Furthermore, the Appeal Panel must comply with section 39 of the Appeal Board Act when it considers the evidence and must make the findings that are as favourable as possible for the applicant. These sections are reproduced in the annex.

[74] Moreover, members of the Forces are covered by a specific medical plan. Indeed, they are not “insured persons” under the Canada Health Act, RSC 1985, c. C-6 of the laws governing provincial health care plans. Their health care is not insured by the Forces, and they are required to consult military health professionals unless the necessity of consulting civilian health professionals has been established (Queen's Regulations and Orders for the Canadian Forces (QR&O), Volume 1 – Administration, chapter 34: Health care, s. 34.07). The member of the Forces who has received civilian health care must therefore consult a military health professional upon returning to the base. According to the AGC, the purpose of this plan is to ensure that all members of the Forces are able to carry out their duties.

B. Decision I-25

[75] Decision I-25 definitely lies at the heart of this matter, and it is important to consider it.

[76] In this decision dated 1978, the Pension Review Board indicates that it responds to the request submitted to it by the Canadian Pension Commission to address how to interpret section 12 of the Pension Act, which was in effect at the time. Namely, “if the disability from medical misadventure arose from inadequate medical care, inadequate medical attention, inadequate medical management or omission to take remedial action, it is pensionable” for members of the Forces and of the Canadian Mounted Police (RCMP). As we saw above, section 12, which was in effect at the time, also required that an injury or disease “arise out of” or be “directly connected with” the service to be pensionable.

[77] Thus, the Board first reviews the service in the Forces and in the RCMP and confirms that they each have their own requirements. Having first considered the situation of the members of the Forces, the Board confirms that the Department of National Defence is responsible for providing adequate health care to all servicemen and servicewomen and that it is its duty to do so.

[78] The Board addresses the problem as follows: [translation] “if a serviceman is being treated for a service-related disability, any complications are to be considered as part and parcel of the service-related disability and therefore the matter becomes one of assessment. However, if a disability is not service-related but flows from an act of negligence, the disability that results from the act of negligence is a separate entity from the original disability. Therefore, the act of negligence may create a new disability or contribute to the aggravation of the disability under treatment” (Decision I-25, p 2, emphasis added).

[79] The Board then notes that the entitlement to a pension granted after an act of negligence, inadequate medical care, or a medical error is related to the disability or the part of the disability that results from the negligence that was committed.

[80] Having read Decision I-25, it therefore seems clear that the opportunity to claim a disability in case of medical negligence presents itself only if and when the disability is not related to the military service and that this opportunity is justified by the duty imposed by the Department of National Defence to provide care to members of the Forces.

[81] Furthermore, the Board affirms that this opportunity is not open to members of the RCMP who do not have the same medical plan.

[82] Thus, a member of the Forces who seeks compensation for an injury or a disease related to his service is under no obligation to prove that his injury resulted from medical negligence or inadequate medical care even if such negligence was in fact committed.

[83] According to Decision I-25, the requirement for medical proof of negligence or of inadequate care does not come into play when the disease is not related to the member’s service in the Forces.

[84] It would therefore be a two-step system, the first step of which is to determine whether the disease is service-related. If the disease is service-related, the entitlement to compensation/a pension is therefore provided. If the disease is not service-related, it is then necessary to determine whether the Forces’ medical staff provided inadequate care, which provides entitlement to compensation/a pension.

[85] This being said, it is difficult to understand how the Pension Review Board can include this entitlement to compensation/a pension in the interpretation of subsection 12(2) of the Pension Act that was in effect at the time. Indeed, section 12 of the Pension Act, like the current paragraph 45(1)(a) of the Act, requires that a disease be related (arise out of or is directly connected) to the service to provide entitlement to compensation, although according to Decision I-25, the premise that provides entitlement to compensation in case of medical negligence first requires that the disease not be service-related.

[86] A reading of Decision I-25 leads us to conclude that the Pension Review Board amended the compensation system set out in the Act and provided entitlement to a pension even when the injury, the disease, or the disability is not related to military duties due to the specific plan of the members of the Forces and, furthermore, only for them.

[87] The Honourable Madam Justice Snider seems to have reached the same conclusion at paragraph 20 of Gannon v Canada (Attorney General), 2006 FC 600:

[19] A veteran of Canada's armed forces - either of reserve or regular service - may qualify for a disability pension where a pre-existing condition has been aggravated during his time in the armed forces. The worsening of such a condition may occur as a result of the member's military duties. In addition, the aggravation may be due to the actions of medical service providers during the time of the military service. (Emphasis added)

[88] Mr. Fournier rightly raises the issue of the legality of such a bonus scheme if it does not arise under section 45 of the Act. However, this issue is not before the Court in this case, and the parties did not have the opportunity to submit arguments in this regard.

C. Mérineau

[89] Furthermore, in 1983, the Supreme Court of Canada addressed the entitlement of a member of the Forces to a disability pension when this disability is not directly connected with the military service but instead results from an error committed by the Forces’ medical staff.

[90] In 1976, Mr. Mérineau was a member of the Forces. After having undergone surgery at a civilian hospital, he was admitted to one of the Forces’ medical establishments to continue his recovery. At this establishment, he received the wrong type of blood during a blood transfusion and suffered serious consequences as a result.

[91] Before applying for a pension under section 12 of the Pension Act, Mr. Mérineau brought an action for damages against the Crown.

[92] At trial, and to support the admissibility of his action for damages, Mr. Mérineau argued at the time that he was not entitled to a pension under the terms of section 12, quoted above, of the Pension Act “because the act of which he was the victim and the resulting disability were not connected with his military service” (Mérineau v The Queen [1981] 1FC 420 at p 425). The judge at the Federal Court, Trial Division, rejected this argument and considered that the action for damages could not be allowed because Mr. Mérineau is entitled to a pension. The judge notes the following: “I think it is clear that the acts which he complains of were committed in connection with his military service and that the resulting disability on which his claim is based “arose out of or was directly connected with such military service”.

[93] The Appeal Division of the Federal Court of Canada confirms the decision made by the trial judge by indicating that “appellant is entitled to a pension because the aggravation of his disease was directly connected to his military service within the meaning of subsection 12(2) of the Pension Act, R.S.C. 1970, c. P-7.” (Mérineau v The Queen [1982] 2 FC 376 [CA]), but Pratte J. dissented.

[94] Finally, in 1983, the Supreme Court of Canada adopted the dissenting position of the Appeal Division of the Federal Court and, in the words of Pratt J., confirms that “there is certainly a link between the damage for which the appellant is claiming compensation and his status as a serviceman, but I think that link is too tenuous for one to say that the damage is directly connected to his military service.” It seems clear in this quote that the Supreme Court implicitly included the term “arose out of,” as noted by the trial judge, because it concluded that Mr. Mérineau was not entitled to a pension.

[95] Subsequent to Mérineau, the Pension Review Board issued Decision I-31, in which it affirmed that Decision I-25 still applies. The Pension Review Board set aside the Supreme Court’s conclusion in Mérineau, feeling—inter alia—that the latter’s decision was per incuriam (Decision I-31 of the Pension Review Board, Applicant’s Record at page 281).

[96] The Court obviously can not endorse this statement. Furthermore, the parties have not convinced me that this case corresponds to one of the extraordinary exceptions described by the Supreme Court that makes it possible to depart from the principle of stare decisis. The Court is therefore bound to apply Mérineau to the facts of this case (R v Comeau, 2018 SCC 15 at paras 26 and 31; Canada (Attorney General) v Bedford, 2013 SCC 72 at para 44 and Carter v Canada (Attorney General), 2015 SCC 5 at para 44).

[97] The decisions of the Supreme Court in Amos and Godbout, which are cited by the applicant, respectively address the interpretation of the wording of a private insurer’s insurance policy and the wording of the Automobile Insurance Act of Quebec. However, Mérineau specifically deals with the interpretation of the wording of section 12 of the Pension Act, which contains the words “arose out of or was directly connected with the service,” words that are carried forward into the current Act. Furthermore, Mérineau specifically considers the entitlement of a member of the Forces to a pension in light of the Forces’ specialized medical system and when medical negligence committed by one of its staff members caused the disability.

[98] Thus, despite the applicant’s able submissions, the Court cannot agree with the argument that the decisions he submitted overturn Mérineau. Finally, the other decisions made by the FC and the FCA cited by the applicant and the respondent do not specifically address the problem raised in this matter.

D. Discussion

[99] In 1978, Decision I-25 opens the opportunity for members of the Forces to receive a pension when their disability is not related to the service, if this disability results from inadequate care provided by the Forces’ medical staff. This opportunity is open to members of the Forces in acknowledgement of the specific medical plan they are covered by.

[100] Paradoxically, Decision I-25 also purports to interpret section 12 of the Pension Act despite the fact that the premise granting entitlement to the medical negligence claim requires that the disability not be service-related although the Act requires that it be. In this regard, the decision made by the Appeal Panel that is currently under review refers to Decision I-25 and also indicates that that the latter makes it possible [translation] “to provide compensation for disabilities that would not be covered otherwise.”

[101] In 1983, the Supreme Court of Canada clearly indicated that the Forces medical plan, which requires its members to be treated by the Forces’ medical staff, is not by itself sufficient to connect the disability to the military service.

[102] Decision I-31 confirms the possibility of compensation offered by Decision I-25 and rejects the Supreme Court of Canada’s decision, which this Court cannot endorse.

[103] Moreover, the position of Mr. Fournier, who asks the Court to eliminate the requirement of proof of inadequate care to provide entitlement to the compensation set out in Decision I-25 appears to be untenable. Indeed, adopting such a position would lead to granting ALL members of the Forces suffering from a disability the entitlement to compensation even though Parliament restricted entitlement to compensation to the cases that are contemplated by section 45 of the Act.

E. The Appeal Panel’s decision is unintelligible and incorrect

[104] The Appeal Panel’s decision appears to be incorrect because it does not comply with the Supreme Court of Canada’s decision in Mérineau.

[105] In addition, the decision is unintelligible. Indeed, the Appeal Panel first determined that Mr. Fournier’s disease is not related to his military service to consider the opportunity for compensation provided by Decision I-25, namely whether Mr. Fournier proved that his disability resulted from medical negligence committed by the Forces’ medical staff.

[106] And, paradoxically, having determined that the evidence did not make it possible to conclude that such medical negligence was in fact committed, the Appeal Panel concluded that Mr. Fournier therefore did not prove that the disease arose out of nor is directly connected with the service, so it is not related.

[107] As the Court indicated to the parties during the hearing, it seems unintelligible for the Appeal Panel to (1) determine that the disability is not service-related for the purpose of exercising the option provided by Decision I-25 to then (2) determine that Mr. Fournier did not prove the medical negligence and that, as a result, it did not establish that his disability is related to his service.

[108] The Appeal Panel must shed light on the situation. Inter alia, it must specify whether the entitlement to compensation set out in Decision I-25 falls (1) within the Act, taking into account Mérineau, or (2) outside the Act, such as a bonus.

[109] The Court will therefore refer the case back to the Appeal Panel so that it can review the situation in light of these reasons and enable the parties to submit the additional arguments that are required.

F. Medical evidence

[110] The Court does not have to address this issue because the application is allowed.

JUDGMENT in T-2238-16

THIS COURT ORDERS AND ADJUDGES that:

1. The application for judicial review is allowed.
2. The matter is returned to the Appeal Panel for reconsideration in accordance with these reasons.
3. Without costs.

“Martine St-Louis”

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

T-2238-16

STYLE OF CAUSE:

PIERRE FOURNIER AND ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:

MONTRÉAL, QUEBEC

DATE OF HEARING:

February 12, 2018

JUDGMENT AND REASONS:

SOLICITORS OF RECORD:

Borden Ladner Gervais

Counsel

Montréal, Quebec

For the Applicant

Deputy Attorney General of Canada

Montréal, Quebec

For the Respondent

ANNEX

*Veterans Review and Appeal Board Act* (SC 1995, c 18), s 3 and 39			*Loi sur le Tribunal des anciens combattants (révision et appel),* LC 1995, ch 18, art 3 et 39
3 The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled.			3 Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s’interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l’égard de ceux qui ont si bien servi leur pays et des personnes à leur charge.
39 In all proceedings under this Act, the Board shall			39 Le Tribunal applique, à l’égard du demandeur ou de l’appelant, les règles suivantes en matière de preuve :
(a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant;			a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci;
(b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and			b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l’occurrence;
(c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.			c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
*Canadian Forces Members and Veterans Re-establishment and Compensation Act* (SC 2005, c 21), s 2.1			*Loi sur les mesures de réinsertion et d’indemnisation des militaires et vétérans des Forces canadiennes* (LC 2005, ch 21), art 2.1
2.1 The purpose of this Act is to recognize and fulfil the obligation of the people and Government of Canada to show just and due appreciation to members and veterans for their service to Canada. This obligation includes providing services, assistance and compensation to members and veterans who have been injured or have died as a result of military service and extends to their spouses or common-law partners or survivors and orphans. This Act shall be liberally interpreted so that the recognized obligation may be fulfilled.			2.1 La présente loi a pour objet de reconnaître et d’honorer l’obligation du peuple canadien et du gouvernement du Canada de rendre un hommage grandement mérité aux militaires et vétérans pour leur dévouement envers le Canada, obligation qui vise notamment la fourniture de services, d’assistance et de mesures d’indemnisation à ceux qui ont été blessés par suite de leur service militaire et à leur époux ou conjoint de fait ainsi qu’au survivant et aux orphelins de ceux qui sont décédés par suite de leur service militaire. Elle s’interprète de façon libérale afin de donner effet à cette obligation reconnue.
*Pension Act*, (RSC 1970, c P-7), s 12(2) (Repealed)			*Loi sur les pensions*, (SRC 1970, ch P-7), para 12(2) (Abrogé)
In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time, pension shall be awarded to or in respect of members of the forces who have suffered disability, in accordance with the rates set out in Schedule A, and in respect of members of the forces who have died, in accordance with the rates set out in Schedule B, when the injury or disease or aggravation thereof resulting in disability or death in respect of which the application for pension is made arose out of or was directly connected with such military service.			À 1’égard du service militaire accompli dans la milice active non permanente ou dans l’armée de réserve pendant la seconde guerre mondiale et à 1’égard du service militaire en temps de paix, des pensions sont accordées aux membres ou relativement aux membres des forces qui ont subi une invalidité, d’après les taux indiques à 1’annexe A de la présente loi, et relativement aux membres des forces qui sont morts, d’après les taux indiques a 1 annexe B de la présente loi, lorsque la blessure ou maladie ou son aggravation ayant occasionné 1’invalidité ou le décès sur lequels porte la demande de pension, était consécutive ou se rattachait directement à ce service militaire.
*Pension Act* (RSC, 1985, c P -6), subs 21(2)		*Loi sur les pensions* (LRC (1985), ch P-6), para 21(2)
2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,		21(2) En ce qui concerne le service militaire accompli dans la milice active non permanente ou dans l’armée de réserve pendant la Seconde Guerre mondiale ou le service militaire en temps de paix :
(a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with 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;		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 — consécutive ou rattachée directement au service militaire;
(b) where a member of the forces dies as a result of an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;		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 — consécutive ou rattachée directement au service militaire;
(c) where a member of the forces is in receipt of an additional pension under paragraph (a), subsection (5) or section 36 in respect of a spouse or common-law partner who is living with the member and the spouse or common-law partner dies, except where an award is payable under subsection 34(8), the additional pension in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if an additional pension in respect of another spouse or common-law partner is awarded to the member commencing during that period, until the date that it so commences; and		c) sauf si une compensation est payable aux termes du paragraphe 34(8), la pension supplémentaire que reçoit un membre des forces en application de l’alinéa a), du paragraphe (5) ou de l’article 36 continue d’être versée pendant l’année qui suit la fin du mois du décès de l’époux ou du conjoint de fait avec qui il cohabitait alors ou, le cas échéant, jusqu’au versement de la pension supplémentaire accordée pendant cette année à l’égard d’un autre époux ou conjoint de fait;
(d) where, in respect of a survivor who was living with the member of the forces at the time of that member’s death,		d) d’une part, une pension égale à la somme visée au sous-alinéa (ii) est payée au survivant qui vivait avec le membre des forces au moment du décès au lieu de la pension visée à l’alinéa b) pendant une période d’un an à compter de la date depuis laquelle une pension est payable aux termes de l’article 56 — sauf que pour l’application du présent alinéa, la mention « si elle est postérieure, la date du lendemain du décès » à l’alinéa 56(1)a) doit s’interpréter comme signifiant « s’il est postérieur, le premier jour du mois suivant celui au cours duquel est survenu le décès » — d’autre part, après cette année, la pension payée au survivant l’est conformément aux taux prévus à l’annexe II, lorsque, à l’égard de celui-ci, le premier des montants suivants est inférieur au second :
(i) the pension payable under paragraph (b) is less than		(i) la pension payable en application de l’alinéa b),
(ii) the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member under paragraph (a), subsection (5) or section 36 at the time of the member’s death, a pension equal to the amount described in subparagraph (ii) shall be paid to the survivor in lieu of the pension payable under paragraph (b) for a period of one year commencing on the effective date of award as provided in section 56 (except that the words “from the day following the date of death” in subparagraph 56(1)(a)(i) shall be read as “from the first day of the month following the month of the member’s death”), and thereafter a pension shall be paid to the survivor in accordance with the rates set out in Schedule II.		(ii) la somme de la pension de base et de la pension supplémentaire pour un époux ou conjoint de fait qui, à son décès, est payable au membre en application de l’alinéa a), du paragraphe (5) ou de l’article 36.
	*Queen’s Regulations and Orders for the Canadian Forces*, Volume 1, chapter 34, Medical Services, subs 34.07(1), (2) and (4)			*Ordonnance et règlements royaux applicables aux Forces canadiennes (ORFC)*, Volume 1 –Administration, chapitre 34 : Services de santé, para 34.07(1), (2) et (4)
	34.07 – Entitlement to medical care (1) In Canada, medical care authorized in this article shall be provided:			34.07 – Droit aux soins de santé (1) Au Canada, les soins de santé autorisés par le présent article doivent être prodigués :
	(a) in a medical facility operated by the Canadian Forces or, where authorized by the commanding officer of an officer or non-commissioned member on the advice of the appropriate senior medical officer, in a medical facility operated by another department of the federal government or a civilian medical facility; and			a) dans une installation médicale exploitée par les Forces canadiennes ou, lorsque le commandant de l’officier ou du militaire du rang l’autorise sur avis du médecin militaire supérieur compétent, dans une installation médicale exploitée par un autre ministère du gouvernement fédéral ou un organisme civil;
	(b) by a medical officer of the Canadian Forces or, where authorized by the commanding officer of an officer or non-commissioned member on the advice of the appropriate senior medical officer, by a medical doctor employed by another department of the federal government, a civilian medical doctor or such other health care personnel as may be authorized by the Chief of the Defence Staff.			b) par un médecin des Forces canadiennes ou, lorsque le commandant de l’officier ou du militaire du rang l’autorise sur avis du médecin militaire supérieur compétent, par un médecin qui est au service d’un autre ministère du gouvernement fédéral, un médecin civil ou par d’autres membres d’un service de santé ainsi que l’autorise le chef d’état-major de la défense.
	(2) Where emergency medical care is required and the Canadian Forces medical facilities or medical personnel described in paragraph (1) have been determined to be unavailable or where the urgency of the situation precludes such a determination, medical care may be obtained from other sources and the receipt of that care shall be reported to the parent unit by the member concerned as soon as possible.			(2) Lorsque des soins de santé urgents doivent être administrés et qu’il a été établi que les installations médicales des Forces canadiennes ou les médecins mentionnés à l’alinéa (1) ne sont pas accessibles ou lorsque la gravité de la situation est telle qu’il n’est pas possible de faire une telle vérification, on peut obtenir des soins d’autres sources et le militaire qui reçoit les soins doit le signaler le plus tôt possible à son unité d’appartenance.
	(4) Subject to paragraphs (5) to (8), medical care shall be provided at public expense to a member of: (a) the Regular Force; (b) the Special Force; (c) the Reserve Force; (d) a force of a North, Atlantic Treaty Organization State in Canada in connection with his official duties, where reciprocal agreements for the provision of free medical care are provided for by that State; or (e) any other military force, as directed by the Minister.			(4) Sous réserve des alinéas (5) à (8), les soins de santé sont prodigués aux frais de l’État à un militaire : a) de la force régulière; b) de la force spéciale; c) de la force de réserve; d) d’une force d’un État Partie au Traité de l’Atlantique Nord qui se trouve au Canada dans le cadre de ses fonctions officielles, lorsque des ententes existent entre les deux pays en ce qui a trait aux soins de santé gratuits prodigués aux frais de l’État; e) toute autre force militaire ainsi que l’autorise le ministre.

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Fournier v. Canada (Attorney General), 2018 FC 464

Citations2018 FC 464

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2018 FC 464