Trainor v. Canada (Attorney General), 2002 FCT 117

Date: 20020130

Docket: T-237-01

Neutral citation: 2002 FCT 117

BETWEEN:

                                                                HUGH P. TRAINOR

                                                                                                                                                       Applicant

                                                                              - and -

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 This is an application for judicial review of a decision of the Veterans Review and Appeal Board ("the Board") dated June 14, 2000. In its decision, the majority of the Board concluded that the applicant's service did not meet the requirements of s-s. 37(3) of the War Veterans Allowance Act, R.S.C. 1985, c. W-3, as amended ("WVAA"), and as a result the applicant was not entitled to a War Veterans Allowance.

[2]                 The applicant seeks orders quashing the majority decision, confirming the minority decision, and referring the matter back to the Board for redetermination by a differently constituted panel.

Background

[3]                 In Trainor v. Canada (Attorney General) (2000), 188 F.T.R. 77 Mr. Justice Gibson set aside a June 14, 1999 decision of the Board in relation to the applicant's claim, and he referred the matter back for rehearing and redetermination by a differently constituted panel. The rehearing resulted in the June 14, 2000 decision, which is the subject of this application for judicial review.

[4]                 The issue before the Board was whether the applicant "served" in the Canadian Forces ("the Forces") within the meaning of s-s. 37(3) of the WVAA, which provides in part that:

[5]                 The background facts of the dispute were summarized by Mr. Justice Gibson J., at para. 4, and adopted by the Board at p. 4 of its decision on rehearing the matter, as follows:

The applicant enrolled, enlisted or reported for service in the Canadian Military in November of 1944 at Charlottetown, Prince Edward Island. He underwent a preliminary medical at Charlottetown. In the early days of March, 1945, the applicant travelled to Halifax, via Northumberland Strait, in the company of other recruits. During the voyage he was identified in "Daily Orders Part II" as an "Other Ranks Attachment" who was in receipt of pre-enlistment pay, rations and quarters. At the time of the applicant's voyage, Northumberland Strait was a "theatre of actual war" within the meaning of that phrase in subsection 37(3) of the War Veterans Allowance Act... On arrival in Halifax, the applicant underwent a further medical which he did not pass. In the result, the applicant never signed an Attestation and Enrollment Form. In effect, his career in the Canadian Forces, other than in the militia, if it had ever commenced, came to an abrupt end.

[6]                 In finding that the applicant had not served in the Forces, the Board noted that during the ferry trip across the Northumberland Strait, there was no evidence that the applicant was subject to the Code of Service Discipline, nor that he travelled under escort of military personnel, nor was there evidence, apart from the Daily Orders Part II, that the applicant was considered by military authorities as a member of the army during the trip.

[7]                 According to relevant Daily Orders Part II, the applicant was listed as in receipt of pre-enlistment pay, rations and quarters from March 1, 1945 to March 3, 1945. The Board commented on the use of the word "pre-enlistment" as follows:

The Board notes the reference to the word "pre-enlistment" in the Order. The use of this expression would indicate, if one applies the ordinary meaning of the words, that the providing of pay, rations and quarters was limited to a period of time prior to any enlistment or enrollment of the Appellant in the army.

[8]                 Furthermore, the Board found that following the ferry trip, the applicant failed to satisfy the requirements of s. 295 of the then applicable King's Regulations and Orders for the Canadian Army, 1939, which provided, in part, that:

A man enlisting for service in any unit of the Permanent Force will, after passing the medical examination, be attested by, and take the oath as required by Section 21 of the Militia Act, Chapter 132. R.S.C. 1927...

The Board found that the applicant failed to meet these requirements since he failed his medical examination, did not sign any attestation papers, and did not take an oath as required by the Militia Act, so that he was not enlisted under that Act.

[9]                 Finally, the Board noted that there was no documentary evidence from the military authorities indicating that the applicant was discharged, dismissed or removed, or had resigned from the Forces, and there was no record of his having served, apart from the Daily Orders Part II. The Board's decision stated in part:

Both the Personnel Records Centre and the Reference Services Section of the National Archives of Canada have advised that they have no service records regarding the Appellant's claimed service in the Permanent Force which they would be expected to have for those who served as members of the forces.

Submissions of the applicant

[10]            The applicant submits that the receipt of pre-enlistment pay is sufficient to make someone a member who served in the Forces. In support of this submission, the applicant relies on the decision of the Federal Court of Appeal in Re Attorney-General of Canada and MacLaren (1987), 41 D.L.R. (4^th) 41 (F.C.A.).

[11]            Further, the applicant submits that the majority of the Board failed to meet its interpretive obligations under the Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ("VRABA"), and under the WVAA. These obligations were summarized by Mr. Justice Gibson, in Trainor, supra, at para. 18:

Under section 1.01 of the War Veterans Allowance Act and section 3 of the Veterans Review and Appeal Board Act, the Board is required to liberally construe and interpret the provisions of the War Veterans Allowance to the end that the recognized obligation of the people and Government of Canada to those who have "served" their country as "members" of the Canadian Forces in times of war may be fulfilled. Under section 35 of the War Veterans Allowance Act and section 39 of the Veterans Review and Appeal Board Act, the Board is required to draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of an applicant or appellant and to resolve in favour of an applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established his or her case.

[12]            Finally, the applicant submits that the majority of the Board, by failing to meet the interpretive obligations imposed on it by ss. 1.01 and 35 of the WVAA and ss. 3 and 39 of the VRABA, failed to observe Mr. Justice Gibson's order that the matter be reheard and redetermined "in a manner not inconsistent with these reasons".

Submissions of the respondent

[13]            The respondent submits that the appropriate standard of review to be applied in this case is patent unreasonableness. It is urged that a decision of the Board warrants considerable deference unless it concerns the jurisdiction of the Board, and that since this decision did not concern the jurisdiction of the Board, the standard of patent unreasonableness should be applied in this case. In support of this submission, the respondent relies upon MacLaren, supra, and McTague v. Canada, [2000] 1 F.C. 647 (T.D.).

[14]            On the issue of whether the receipt of pre-enlistment pay is sufficient to make one a member of the Forces, the respondent submits that the decision of the Federal Court of Appeal in MacLaren does not stand for that principle. Instead, the respondent distinguishes the facts underlying that decision, noting that the claimant in that case, Mr. MacLaren, passed his medical examination and signed his attestation papers, neither of which were done by the applicant in the case at bar. The respondent submits that if Mr. MacLaren had similarly failed his medical examination and failed to sign attestation papers, the Court would not have ruled in his favour. The last is, of course, mere speculation.

[15]            Nevertheless, the respondent further submits that the majority of the Board in this case met its interpretive obligations under ss. 1.01 and 35 of the WVAA and ss. 3 and 39 of the VRABA. The requirement of liberal construction in s. 3 of the VRABA is limited by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, as amended, which requires that legislation be interpreted in a manner which "best ensures the attainment of its objects". Since the object of s. 3 of the VRABA is to provide for "those who have served their country so well", s. 3 should only apply to the applicant if the applicant "served" his country. It is the submission of the respondent that the Board's conclusion, that the applicant did not "serve" in the Forces, was based on the facts found in this case, and therefore the applicant was not a member of the Forces and did not qualify for a War Veterans Allowance.

[16]            Finally, the respondent submits that the decision of the Board complies with the order of Mr. Justice Gibson. The respondent submits that while Gibson J. ordered the Board to reconsider the matter and apply the principles of interpretation discussed above, he did not order the Board to reach a particular result.   

Analysis

[17]            In his decision, Gibson J. declined to apply the standard of review of patent unreasonableness, because the issue before the Board did not involve findings of primary fact, or merely drawing of inferences from the evidence. Gibson J. noted that the issue in dispute was a question of mixed law and fact, and therefore he decided, at para. 9, that the appropriate standard of review to be applied in this case was "somewhere between ‘reasonableness simpliciter' and ‘patent unreasonableness'". In McTague, supra, at 651, Mr. Justice Evans concluded that the appropriate standard of review for the Board's decision, apart from findings of primary fact, is "reasonableness" or alternatively "unreasonableness". I apply the same standard of "reasonableness" in this review of the Board's decision, including its treatment of questions of mixed fact and law.

[18]            In a procedural sense both the case at bar and MacLaren are similar, in that both concern judicial review of a Board decision. The Court in MacLaren found no basis to intervene in regard to the Board's finding in that case that Mr. MacLaren was a member of the Forces when he was en route to Halifax from Prince Edward Island. The issue in that case concerned the time of commencement of his service. In the case at bar, if this Court were to defer to the decision of the Board, that is, that, while travelling between Charlottetown and Halifax in circumstances similar to those applying to Mr. MacLaren, Mr. Trainor was not a member serving in the Forces, the lay person might not readily understand why the results should be different in the two cases, simply because they are distinguishable by later events occurring at Halifax in the two cases.

[19]            Relying on MacLaren, supra, the applicant submits that the mere receipt of pre-enlistment pay is sufficient to make one a member of the Forces. In response, the respondent submits that the Board in its decision here under review was correct in distinguishing MacLaren, for in that case, not only did the applicant receive pre-enlistment pay, but he also passed a medical examination and signed attestation and enrollment papers. In this case, the Board in its decision on the rehearing recognized that the latter facts underlay the decision in MacLaren.

[20]            However, I note that in MacLaren, in upholding the decision of the Board, Thurlow C.J., writing for the Court, commented, at p. 43:

It appears to me that the statutory provisions from which the board concluded the question of being a member of the forces appeared to revolve around "pay", were concerned with pay as an officer or man of the forces. The pre-pay and allowances which the respondent received for the period prior to the completion of his attestation on October 9, 1944 would not necessarily be pay or allowances as an officer or man of the forces as contemplated by these statutory provisions. But the payment and provision by the Crown of such pre-pay and allowances nevertheless indicates that the recipient was regarded as being in His Majesty's service at that stage.

The word "member" as used in the War Veterans Allowance Act has a broad meaning. It is broad enough to include soldiers, sailors and airmen and the officers of all three branches of the forces. But, in my view, it is not necessarily confined to those categories. Nor is its meaning necessarily governed by rules that determined the moment when a person became a soldier, sailor, airman or officer....

[21]            This passage suggests that the receipt of the pre-enlistment pay "indicates" that the recipient was regarded as a member of the Forces. I accept that, as the Board noted, there is no other evidence, apart from the Daily Orders Part II, of the Forces treating Mr. Trainor as a member during the days before his medical in Halifax. Nevertheless, as Mr. Justice Gibson commented in Trainor, supra, at para. 19:

Given the obligations of the Board under the relevant statutory provisions and the words adopted by the War Veterans Allowance Board and the Federal Court of Appeal in the MacLaren case as quoted above, which presumably reflect such interpretive obligations and, I conclude, clearly extend to the facts underlying this matter and do not rely to any significant extent on the fact that Mr. MacLaren passed his medical in Halifax and signed an Attestation and Enrollment Form, I conclude that affording all of the deference to which the Board is entitled, the Board, in the decision here under review, erred in a reviewable manner in essentially simply adopting and confirming its earlier decision of the 5^th of May, 1998 as quoted above. I conclude that, on the facts of this matter, the Board failed to meet the interpretive obligations imposed on it by sections 1.01 and 35 of the War Veterans Allowance Act and sections 3 and 39 of the Veterans Review and Appeal Board Act.

[22]            These comments are not without significance, particularly in considering the interpretive obligations imposed by ss. 1.01 and 35 of the WVAA and by ss. 3 and 39 of the VRABA, to liberally construe and interpret the legislation, to draw every reasonable inference in favour of the applicant, and to resolve in favour of the applicant any doubt, in the weighing of the evidence, as to whether the applicant has established his case.

[23]            With respect for the Board's decision, in light of the decision of the Court of Appeal in MacLaren, and the Board's obligations under ss. 1.01 and 35 of the WVAA and ss. 3 and 39 of the VRABA, in my opinion the Board in this case ought to have applied the statute more liberally. The decision in MacLaren, in so applying the statute, determined as a matter of mixed law and fact that a person in the situation of the applicant, once he was accepted at Charlottetown and directed to Halifax with pre-enlistment pay, rations and quarters, served as a member of the forces within the meaning of s-s. 37(3) of the WVAA, however briefly. In light of the application of the law by the Court of Appeal, the Board's decision in this case was unreasonable.

[24]            In my opinion, the Board in this case erred in law, in failing to apply the law as earlier done by the Board itself, and upheld by the Court of Appeal, in MacLaren.

Conclusion

[25]            In the circumstances, for the reasons set out, an Order goes allowing this application for judicial review. The matter is referred again to the Board for reconsideration in accord with the law as here interpreted.

                                                                                                        _____________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

January 30, 2002.