Docket: T-1758-97
BETWEEN:
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RUTH ELLEN CUMMINGS
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Applicant
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and
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ATTORNEY GENERAL FOR CANADA
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Respondent
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REASONS FOR
ORDER
Delivered from the Bench at Fredericton, N.B.,
Tuesday, September 29, 1998
HUGESSEN J.
[1]
This
is an application for judicial review of a decision of the Veteran's Review and
Appeal Board which denied the applicant's appeal from the refusal of her claim
to receive a pension pursuant to the Pensions Act1.
[2]
The
applicant, at the material time, was a member of the Canadian Armed Forces. She
was living in Victoria, B.C. but was sent by
the military on temporary assignment to live in CPB Halifax while she
participated in the International Military Tattoo there. While living
in CFB Halifax, the applicant shared living quarters with another female member of the Forces.
One night, while they were both asleep, their room was invaded by a male member
of the Forces who attacked both of them with the result that both have now
suffered a disability. The applicable statutory provisions are sections
21(2)(a) and 21(3)(f) of the Pensions Act and section 3 of the Veterans
Appeal and Review Board Act:
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21.
...
(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,
(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;
...
(3) For
the purposes of subsection (2), an injury or disease, or the aggravation of
an injury or disease, shall be presumed, in the absence of evidence to the
contrary, to have arisen out of or to have been directly connected with
military service of the kind described in that subsection if the injury or
disease or the aggravation thereof was incurred in the course of
…
(f) any military
operation, training or administration, either as a result of a specific order
or established military custom or practice, whether or not failure to perform
the act that resulted in the disease or injury or aggravation thereof would
have resulted in disciplinary action against the member;
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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) 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;
...
(3) Pour l'application du
paragraphe (2), une blessure ou maladie - ou son aggravation - est réputée,
sauf preuve contraire, être consécutive ou rattachée directement au service
militaire visé par ce paragraphe si elle est survenue au cours :
...
f) d'une
opération, d'un entraînement ou d'une activité administrative militaires,
soit par suite d'un ordre précis, soit par suite d'usages ou pratiques
militaires établis, que l'omission d'accomplir l'acte qui a entraîné la maladie
ou la blessure ou son aggravation eût entraîné ou non des mesures disciplinaires
contre le membre des forces;
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...
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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.
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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.
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[3]
The
Board, as I have said, denied the applicant's appeal from the refusal of her
application for a pension. It made the following finding of fact, which is in
accordance with the review of facts that I have just given:
"at
the time of the attack, Miss Cummings was a member of the Canadian Navy taking
part in a Nova Scotia International Tattoo. This was a mandatory assignment,
and at that time, she had to stay in military approved quarters on the base.”
[4]
Notwithstanding
that finding, the Board reached the following conclusion:
Unfortunately,
the sexual assault of the applicant, while she was asleep in military barracks,
provided by the military authorities could not reasonably constitute an
activity conducted in the course of military training for purposes of paragraph
21(3)(f) of the Pension Act.
[5]
In
my view, the Board has erred in law in its construction of the Statute and it
has in particular erred in law in the application of section 3 of the Veteran's
Appeal and Review Board Act to section 21 of the Pensions Act. The
error of the Board is also in its concentration upon the "activity"
of the appellant at the time of the attack upon her. It is not the activity
that is important but rather whether the injury which she suffered arose in the
course of or was directly connected to her military service.
[6]
In
this case, as the Board itself found, she was required, as a part of her
military duty, to sleep in the quarters at CFB Halifax. The situation is, I
think, precisely similar to what would have happened if she had been on sea
duty where she would have been assigned sleeping quarters in a ship and the
attack which took place upon her had taken place while she was sleeping in
accordance with the orders she had received.
[7]
If
she had not been where she was, when she was, she would have been in breach of
her orders and very possibly subject to discipline. Equally, of course, if she
had not been where she was, when she was, she would not have been the victim of
this vicious attack.
[8]
In
my view, it is this circumstance, the duty imposed upon the applicant by her
military superiors, to sleep in the quarters at CFB Halifax, which
distinguishes this case from the cases which have been cited. In particular,
the Merineau
case, and the O'Connor
case, which followed it, had to do with members of the Forces receiving medical
treatment to which they were entitled, but to which they were by no means
obliged to submit, at the hands of military doctors. Medical treatment which
subsequently turned out to be negligently administered. That is an entirely
different situation from this one. Likewise, the cases of Leach and Scaglione, which have been
mentioned, dealt with activities which were clearly entirely voluntary on the
part of the serving members concerned. Here, we are dealing with an activity,
if one must concentrate as the Board did on the activity, which is a normal
human activity required by all of us, namely sleeping, which was required of
the applicant to be carried out in a particular place. It is that circumstance
which gave rise to the injury which was directly connected to her military
service.
[9]
In
consequence, the application will be allowed, the decision of the Board will be
set aside and the matter will be referred back to the Board for
redetermination.
“James
K. Hugessen”
FEDERAL
COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND
SOLICITORS ON THE RECORD
COURT FILE NO. : T-1758-97
STYLE OF CAUSE: Ruth
Ellen Cummings v. Attorney General of Canada
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: September 29, 1998
REASONS FOR JUDGMENT
OF MR. JUSTICE HUGESSEN
DATED: September 29, 1998
APPEARANCES:
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Charles J. Keliher
Charlottetown, PEI
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FOR APPLICANT
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Jonathan D. N. Tarlton
Halifax, Nova Scotia
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FOR RESPONDENT
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SOLICITORS OF RECORD:
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Veterans Affairs Canada Charlottetown, PEI
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FOR APPLICANT
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Department of Justice
Halifax, Nova Scotia
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FOR RESPONDENT
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