Andreopoulos v. Veterans Appeal Board, docket T-1404-95

T-1404-95

BETWEEN:

SOPHIA (BARBAGIANNI) ANDREOPOULOS,

Applicant,

and

THE VETERANS APPEAL BOARD,

and

THE ATTORNEY GENERAL OF CANADA,

Respondents.

NOËL, J.:

     This is an application for judicial review of a decision of the Veterans Appeal Board, dated April 3, 1995 affirming the decision of the Quebec Region Review Committee which had upheld the revocation of the Applicant's war veterans allowance payable under the War Veterans Allowance Act.¹

I FACTS

     The Applicant was born on January 26, 1933 in Eleftheriani, Greece, and served with the Greek National Resistance Forces for a year and a half, from May 1943 until October 1944. In this regard, at the ages of ten and eleven, the Applicant carried out missions which she was commissioned to execute in the Provinces of Corinthia and Achaia.

     On August 18, 1988 the Applicant filed an application for a war veterans allowance under the Act based on her service with the Greek Resistance Forces. She submitted her application and the various information prescribed for such purposes under the Veterans Allowance Regulations.² Amongst the information submitted was a certificate of service with the Greek Resistance Forces dated December 12, 1988 and issued from Geetha/Depatha.³ After various exchanges, the application was approved and the allowance granted on the basis that the Applicant met all the eligibility requirements.⁴ This decision is confirmed in a letter dated March 10, 1989 addressed to the Applicant.⁵

     Shortly after the receipt of this decision, the Applicant received another service certificate, this time from the Province of Achaia, dated February 28, 1989 which certified the Applicant's service in that province with the Greek Resistance Forces during the war (herein, "the second certificate"). It had also been sought by the Applicant in conjunction with her application. However, as her application had already been approved when it was received, the second certificate was not submitted to the authorities.

     In early November 1990, the Department of Veterans Affairs was advised by the Greek authorities, through the Greek Embassy in Ottawa, that there was reason to believe that all service certificates issued from Geetha/Depatha were false.⁶ As a result, the Department of Veterans Affairs adopted a policy whereby certificates emanating from Greece could no longer be looked upon as establishing service eligibility unless they were first verified by the Greek Government.⁷ By letter dated December 28, 1990 the Applicant was advised that due to "serious concerns" with respect to the validity of the service certificate which she had submitted in support of her application, her allowance was cancelled pending validation of the document.⁸ In the same letter, the Applicant was advised that:

Should we find in due course that your certificate is valid, your WVA payment will be reinstated and you will be paid retroactive to the date of cancellation.

     Upon receiving this letter, the Applicant forwarded to the Department of Veteran's Affairs, at its Montreal address, a copy of the second certificate which she had obtained from the Province of Achaia.

     In the meantime, the Department's investigation into the validity of the original certificate submitted by the Applicant concluded that the certificate was indeed a forgery. As a result, the Applicant was advised by letter dated April 5, 1991 that her allowance was cancelled and that the allowances which she had received to date would have to be paid back.⁹ The letter stated that the decision was based on information indicating that the certificate which she had submitted was false and that she had never served with the Greek Resistance Forces.¹⁰

     The Applicant sought to have this decision revised by the Quebec Regional Committee pursuant to Subsection 32(1) of the Act.¹¹ In conjunction with her request, she again submitted copies of the second certificate of service issued by the Province of Achaia and asked that the validity of the second certificate be examined before the decision to cancel her allowance was to be made final.¹² On May 6, 1991 the Regional Review Committee upheld the decision to cancel the Applicant's war veterans allowance. The decision states however that the decision will be reviewed if the second certificate is validated.¹³ The letter advising the Applicant of the decision to maintain the cancellation of her allowance contains a Nota Bene to the effect that:

Your second service certificate will be forwarded for validation and we will advise you of the results.14

     The record reveals that the certificate was forwarded to the Chief of Program Policy and Analysis in Prince Edward Island on May 14, 1991 so that it could be forwarded for validation.¹⁵ The certificate was promptly sent to the Greek authorities¹⁶ but, as will be seen, the response was delayed as it was not forwarded through the proper channels.

     On April 15, 1992 the Applicant filed a Notice to Appeal to the Veterans Appeal Board, pursuant to section 32(2) of the Act.¹⁷ While the Appeal was pending, an amendment was brought to the Act on June 18, 1992 with effect as of March 2, 1992 which removed the benefit of the allowances for resistance fighters who assisted the allied forces during the first and second World Wars subject to the following transitory provision:

6.1(1) Subject to this Act but notwithstanding subsections 37(4) and (6), an allowance payable under section 4 or awarded under section 5, on or before March 2, 1992 to or in respect of a person who is a veteran by reason only of service in

a resistance group shall continue to be paid during the lifetime of the recipient and shall cease with the payment for the month in which the recipient dies.18

(emphasis added)

     In early November 1992, the Chief of Program, Policy and Analysis in P.E.I. was advised by the Greek Embassy that the request for validation had been improperly addressed and that it would have to be forwarded again to the Greek Consulate in Montreal.¹⁹ This was done and sometime before July 20, 1993, the Department of Veterans Affairs was advised by the Greek authorities that the second certificate submitted by the Applicant was authentic.²⁰

     Shortly before the hearing of her Appeal by the Veteran Appeals Board, the Applicant submitted additional documentation through her counsel, which further confirmed that she had indeed been a resistance fighter during the second World War.²¹

     The hearing before the Board took place on April 3, 1995. The Board confirmed the decision of the Regional Committee. In its reasons, it recognized the fact that the second certificate had been validly issued and appeared to agree that reinstatement would have followed in the normal course. However, it went on to state:

Unfortunately, neither the Appellant nor the Greek authorities reacted fast enough to allow reinstatement of her war veterans allowance before June 18, 1992 at which time, Canadian Parliament passed new war veterans allowance amendments. These June 18, 1992 amendments to the War Veterans Allowance Act ruled that service with a Resistance Group was, as of March 2, 1992, no longer eligible service for the purposes of an award of war veterans allowance.

     The Board then affirmed the decision of the Quebec Region Review Committee. The Applicant seeks the judicial review of the foregoing decision.

II SUBMISSIONS

1) THE APPLICANT

     The Applicant submits that the Veterans Appeal Board erred in law in failing to recognize that the decision to "cancel" the Applicant's allowance was premature and unfounded, and that if anything, the decision should have been to "suspend" the allowance in accordance with section 29 of the Act, pending the investigation.

     The Applicant further submits that her allowance should have been reinstated once the investigation confirmed that her second service certificate was in fact valid, and that her right to the allowance was not affected by the 1992 legislative amendments to the Act, in that:

(i)      her allowance was "payable" on or before March 2, 1992 within the meaning of the grand-fathering provision; and

(ii)      her right to the allowance had vested prior to the coming into force of the 1992 amendments and therefore was not affected by the amendments.

    

     Finally, the Applicant alleges that she was not given an opportunity to be heard and respond to the assertions that she had never served with the Greek resistance. She also alleges that the Regional Review Committee did not allow her to be heard on the decision to cancel rather than suspend her allowance.

2) THE RESPONDENTS

     The Attorney General of Canada submits that the Veterans Appeal Board did not err in law in upholding the Regional Review Committee's decision as there was more than an adequate basis for cancelling the Applicant's allowance in the face of the false service certificate. He adds that as the cancellation took place before March 2, 1992 and as the second certificate was not verified before that date, the Applicant cannot assert that she had any accrued rights to the allowance.

III ANALYSIS

     As I indicated during the hearing, I do not believe that the question raised in this proceeding can be decided by reference to any of the arguments raised by the parties in their respective memoranda. The question to be resolved, as I understand it, is whether the Applicant is entitled to the allowance despite the 1992 amendments whereby resistance fighters ceased to be eligible.

     The effect of the transition provision which accompanied this change has already been considered by this Court. In Canada v Andritsopoulos²², my colleague, Madam Justice Reed, held, correctly in my view, that:

In my view, s. 6.1(1), by necessary implication, makes the continued payment of allowances to resistance fighters possible only when an allowance was actually being paid to the individual as of the March 2, 1992 date, that is, if the individual's application for an allowance had been finally determined and a decision to grant an allowance had been made.23 (emphasis added)

     While Judge Reed does refer to those to whom an allowance was "actually being paid", it is clear from the balance of the quote and from the decision as a whole that she was referring to those who had a legal right to obtain payment of the allowance as of March 2, 1992.²⁴ In order to overcome the effect of the amendment, the Applicant must therefore be able to show that she had a right to be paid the allowance on March 2, 1992 when the amendment took effect.

     There is no doubt that the Applicant had such a right on March 10, 1989 when the decision to grant the allowance was made. The initial decision was made pursuant to section 34(1) of the Act which provides that the Minister is charged with " ...the determination of whether any allowance is payable... " under the Act " ...and the amount thereof." Subsequently, upon obtaining information from the Greek authorities that certain service certificates were fraudulent, an investigation was launched into the matter, and a decision was made to suspend the benefits pursuant to section 29 of the Act²⁵ in the following terms:

"As a result and until such time as we can obtain written validation of your certificate by the Greek authorities, we unfortunately have no alternative but to cancel your monthly war veterans allowance payments. This action is taken in conformity with section 29 of the Act.

Should we find, in due course, that your certificate is valid, your war veterans allowance payments will be reinstated and you will be paid retroactive to the date of cancellation."

While the decision purports to "cancel" the allowances, it is clear that its effect is to suspend the allowance pursuant to section 29 pending the outcome of the investigation.

     Subsequently, upon being advised by the Greek authorities that the certificate of service submitted by the Applicant in support of her application was false, a decision was made by the Minister to cancel payment of the allowance and seek recovery of the allowances which had been paid. Sections 27 and 29 of the Act were invoked in support of that decision. While section 29 is proper authority for the decision, section 27 is not as there are no facts on the record

before me which can give rise to its application.²⁶ It follows that the authority under which the decision to "cancel" the allowance was made was section 29 which allows the Minister to decide whether an allowance should be "made", "suspended" or "revoked". On a proper reading of the decision it seems clear that the decision to "cancel" the allowance was in effect a revocation pursuant to section 29.²⁷

     The Applicant sought to have this decision reviewed by the Regional Review Committee pursuant to section 32(1). In support of her request for a review, the Applicant submitted copies of the second certificate after having indicated that the original had already been forwarded to the Department and asked that it be examined prior to the decision being made final.

     In its decision, the Regional Review Committee incorrectly notes that "this review concerns section 34 of the Act". It seems clear on the record that the section involved was section 29 as section 29 was the power invoked by the Minister for the issuance of the decision under review, and the decision pursuant to section 34 had been made earlier when the payment of the allowance was initially authorized. What was being reviewed was not the original decision whereby the allowances were made payable pursuant to section 34 but the subsequent decision to "cancel", or more accurately to "revoke" the allowances pursuant to section 29 on the basis that the Applicant was considered to have misrepresented her service eligibility.

     The Regional Review Committee elected to maintain the earlier decision which, it will be recalled, had the effect of revoking the allowance from the moment when it was originally authorized. If the matter had ended there, there is no doubt that the decision of the Committee would have amounted to a confirmation of the earlier decision to "revoke" the allowance thereby putting an end to any contention by the Applicant that she had a legal entitlement to the allowance as of the time of the amendment. However, the decision goes on to state that if the second certificate submitted by the Applicant is validated the decision will be reviewed. In this connection, the Regional Director, upon communicating the decision to the Applicant, advised her that the second certificate was being forwarded for validation and that "In the meantime, the decision is maintained."²⁸ In conformity with the decision, the Regional Director requested that the Chief of Program Policy and Analysis forward the second certificate for validation and asked to be informed "as soon as the confirmation of the validation is received.²⁹

     It follows that the members of the Regional Review Committee in the exercise of their review jurisdiction decided to consider the second certificate and for that purpose submitted it to the validation process. The members then held that their decision to maintain the revocation was to be reviewed if the process led to its validation. That, it seems, had the effect of acceding, in part at least, to the only submission made by the Applicant in support of her request for review which was that:

"I am kindly requesting that you examine this second certificate before making your decision final."

     In effect, the Committee while it did confirm the earlier decision agreed not to make its decision final pending the validation process. The decision to maintain the revocation was made conditional; if the second certificate was validated, the decision was to be reviewed. The statement that "this decision" (i.e. the decision to maintain the revocation) "will be reviewed if and when the second certificate is validated" can lead to no other conclusion. As otherwise the only question underlying the decision being reviewed was whether or not the Applicant had served in the Greek resistance, it is clear that the members of the Committee were expressing the view that their decision was to be changed, and the revocation reversed if the second certificate proved to be authentic.³⁰

     On Appeal from that decision, the Veterans Appeal Board, after having acknowledged that the second certificate had been validated, accepted that reinstatement would normally have ensued. However, it noted that the Applicant based her claim on service with resistance groups which were no longer recognized under the Act as a result of the 1992 amendments. It went on to conclude that "Unfortunately, neither the Appellant nor the Greek authorities reacted fast enough to allow reinstatement of her ... allowance before ... (the) amendments."³¹

     The Board specifically rejected the contention that the Review Committee should have suspended rather than cancel the allowance. Otherwise, the Board was obviously of the view that a reinstatement of the allowance was barred by the transition provision which restricted the benefit of the allowance to resistance fighters to whom it was payable on March 2, 1992. As the second certificate had yet to be validated at that time, the Board reasoned that the Applicant could not

conceivably have been entitled to the allowance as of March 2, 1992. The Board concluded its reason by affirming the decision of the Regional Review Committee.

     In my view, the Board pre-empted the very decision which it purported to affirm. Specifically, the Board failed to consider the impact of the validation of the second certificate on the decision under appeal, and in particular, it failed to consider the time as of which this impact was to be assessed. What the Regional Review Committee had decided was to maintain the revocation if the second certificate did not prove to be authentic. Looked upon the other way, it had ruled to overturn the revocation if the second certificate turned out to be valid. The decision to overturn or maintain the revocation depending on the outcome of the validation process was made on May 6, 1991 and that is the date on which the impact of the outcome of the validation process on the decision had to be assessed. Just as May 6, 1991 would have remained the effective date of the decision to maintain the revocation if it turned out that the certificate had not been validly issued, May 6, 1991 remains the effective date of the decision to overturn the revocation in the face of a subsequent validation. Giving effect to the decision of the Regional Review Committee, in light of the fact that the second certificate was validated, the Applicant again became entitled to the allowance as of May 6, 1991 when the decision was rendered.

     This conclusion also flows from the provisions of the Civil Code of Quebec as they pertain to conditional obligations. Article 1497 provides that:

"An obligation is conditional where it is made to depend upon a future and uncertain event, either by suspending it until the event occurs or is certain not to occur, or by making its extinction dependent on whether or not the event occurs."

     Article 1506 further provides that where a condition does materialize, it has a retroactive effect to the time when the conditional obligation was made or undertaken.³² Here, the members of the Regional Review Committee obligated themselves to review their decision if the second certificate proved to be authentic. The second certificate did prove to be authentic. Nothing in the decision rendered by the Committee ousts or casts aside the basic notion that under Quebec law a condition, once fulfilled, operates retroactively to the time when it was stipulated.

     It follows that upon the certificate being validated, the Applicant once again became entitled to her allowance as of May 6, 1991 when the Regional Review Committee issued its decision. That is when the entitlement of her right to the allowance was pronounced subject to the fulfilment of a condition and as that condition was fulfilled, that is the date upon which the decision takes effect. The Board therefore erred in law in holding that the reinstatement of the Applicant's allowance was barred by the 1992 Amendments.

     For these reasons, the application is allowed, and the matter is returned to the Board so that it may give effect to the decision of the Regional Review Committee as of the time when it was rendered in conformity with these reasons.

Judge

October 18, 1996

Ottawa, Ontario

__________________

     ¹      R.S., c. W-5, s. 1, (herein, "the Act ")

     ²      CRC, c. 1602, SOR/ 84-784, s. 2; SOR/ 86-391, s. 3(1), reads in part:      3(1)      A person may make an application for an allowance              (b)      by mailing to the Department a letter [ ... ] and by furnishing, pursuant to subsection (3), the information set out in subsection (4);
     (4)      An Applicant, or the person making the application on behalf of the Applicant, shall furnish in accordance with subsections (1) and (3) the following information:              (a)      details of the military service of the Applicant [...];              (b)      details of the domestic status of the Applicant;              (c)      the income of the Applicant and the Applicant's spouse, as the case may be;              (d)      an indication as to whether the Applicant is in receipt of a disability pension related to his military service or has accepted a commuted pension; and              (e)      such other information as the Minister may require to determine the Applicant's eligibility for an allowance.     

     ³      Pursuant to subparagraph 4(e) of the above-noted regulations, the Minister requested inter alia that the Applicant produce in support of her application, proof of service in the form of a certificate of service.

     ⁴      Namely the requirements as to service, age, income and residency.

     ⁵      Exhibit R-10 to the affidavit of Michel Quillian.

     ⁶      In a subsequent letter to the Department of Veterans Affairs, the Economic Crime Directorate of the RCMP stated that:
     Please note that Mr. Herakles Asteriadis, First Secretary of the Greek Embassy in Ottawa, has advised 90-11-01 that he has detected that all certificates issued from Geetha/Depatha which were submitted for validation purposes, are forged certificates, for the following reasons:
     a)      Since 1985, these types of certificates are not issued in Greece;      b)      The signature of the Officer who issued the certificates is Alekos Rousakis, but there is no one by that name who works for the Department of National Defence, therefore, this is a false name;      c)      The handwriting which appears on the certificates does not belong to anyone working in the Department of National Defence;      d)      There is no file number which appears on the certificates;      e)      The decision number of the Minister of National Defence which appears on the certificates is completely fictitious;      f)      The seal (government seal) is also a fictitious seal, not in use by the Minister of National Defence.     

     ⁷      See memo pertaining to "Greek Resistance Procedures - Validation of Type A Certificates and Prefecture Certificates" dated November 7, 1990, Respondent's book of authorities, Volume I, Tab 6.

     ⁸      Exhibit R-12 to the Affidavit of Michel Quillian.     

     ⁹      Exhibit R-14 to the Affidavit of Michel Quillian.

     ¹⁰      It is unclear how the Applicant came to be in possession of a false certificate. One possible explanation is the intervention of third parties who assisted her in obtaining the certificate. In any event, Counsel for the Respondent made it clear during the hearing that the Applicant's good faith was not in issue and that she had indeed served in the Greek Resistance Forces as she had stated upon filing her application.

     ¹¹      32(1) Where an Applicant for an allowance or a recipient is dissatisfied with any adjudication affecting him, ......, he may, in accordance with the regulations, apply to an officer or employee of the Department designated by the Minister for the purpose for a review of the adjudication.

     ¹²      The letter dated April 22, 1991 reads in part:      Enclosed please find photocopies (originals have already been forwarded to your office) of the 2 type "A" certificates issued by the Greek government. The first certificate was issued on December 12, 1988 and the second certificate was issued on February 28, 1989. Originally, only the first certificate was forwarded to your office with my application. Upon receipt of your letter dated December 28, 1990 stating that there was concern as to the validity of the certificate, I examined the 2 certificates at this time and it was discovered that they were slightly different, hence the second certificate was forwarded to your office. I am kindly requesting that you examine this second certificate before making your decision final. See Exhibit R-16 to the Affidavit of Michel Quillian.

     ¹³      Exhibit R-18 to the Affidavit of Michel Quillian.

     ¹⁴      Exhibit R-19 to the Affidavit of Michel Quillian.

     ¹⁵      Exhibit R-23 to the Affidavit of Michel Quillian and specifically the attachment thereto.

     ¹⁶      Exhibit R-24 to the Affidavit of Michel Quillian.

     ¹⁷      32(2) Where, following a review under subsection (1), the Applicant of recipient remains dissatisfied with the adjudication, he may, in accordance with the regulations, appeal the adjudication to the Board.

     ¹⁸      S.C. 1992, c. 24, s. 37(4) and (6) provide:
     (4) An allied veteran is          (a) any former member              (i) of any of His Majesty's forces who served during World War I or World War II,              (ii) of any of the forces, other than resistance groups, of any of His Majesty's allies who served during World War I or World War II, or              (iii) of any of the forces, other than resistance groups, of any power associated with His Majesty in World War I who served during World War I, who was domiciled in Canada at the time he joined that force for the purpose of War, and              (iv) served in a theatre of actual war,. . .          (b) any former member of His Majesty's forces, or of any of the forces, other than resistance groups, of any of His Majesty's allies or powers associated with His Majesty in any war concluded or terminated on or before August 15, 1945 who served during any such war, and has resided in Canada for a total period of at least ten years, and              (i) served in an actual theatre of war,
     (6) An allied dual service veteran is          (a) a person who              (i) served during World War I as a member of His Majesty's forces,              (ii) was domiciled in Canada when he became a member of those forces,              (iii) was a member of His Majesty's Canadian forces during World War II, enlisted or obligated to serve without territorial limitation, and              (iv) has been honourably discharged or has been permitted honourably to resign or retire from those forces; or
         (b) a person who              (i) served during World War I as a member of His Majesty's forces or of any of the forces, other than resistance groups, of any of His Majesty's allies or powers associated with His Majesty,              (ii) was a member of His Majesty's Canadian forces during World War II, enlisted or obligated to serve without territorial limitation,              (iii) has resided in Canada for a total period of at least ten years, and              (iv) has been honourably discharged or has been permitted honourably to resign or retire from those forces.(underlining added)

     ¹⁹      Exhibit R-26 to the Affidavit of Michel Quillian.

     ²⁰      Exhibit R-27 to the Affidavit of Michel Quillian.

     ²¹      Exhibit R-28 to the Affidavit of Michel Quillian.

     ²²      80 F.T.R. 104.

     ²³      Note 1 supra, at p. 107.

     ²⁴      An amount may be "payable" despite the fact that it is not actually being paid.

     ²⁵      Section 29 of the Act provides:          "The Minister and the Board and any person acting under the authority of the Board in that behalf have all the powers of a commissioner under Part II of the Inquiries Act for the purpose of any investigation required to be made in order to determine whether any allowance should be made, suspended or revoked, what should be the amount of any allowance, or whether payment of any allowance should be made to the recipient or to another person for administration on his behalf."

     ²⁶      Section 27 provides:          (1) Every adjudication by the Minister is subject to review by the Minister who may, for the purpose of any review, require the recipient to submit a statement of such facts as the Minister may consider relevant to determine the right of the recipient to have any allowance continued.          (2) Any statement submitted pursuant to subsection (1) shall be verified in such manner as the Minister may direct and in the event the recipient fails to furnish a statement as required, the Minister may reduce, suspend or cancel payment of the allowance.      There is no evidence that the Applicant was requested to submit anything to determine her right to have her allowances continued and no evidence that the Applicant submitted any statement pursuant to a request to the Minister as the provision contemplates.

     ²⁷      Under section 29, the Minister may only "make", "suspend" or "revoke" an allowance.

     ²⁸      Letter from the Regional Director to the Applicant dated May 6, 1991, Exhibit R-19 to the Affidavit of Michel Quillian.

     ²⁹      Memo dated May 14, 1991, Exhibit R-20 to the Affidavit of Michel Quillian.

     ³⁰      Arguably, the words "will be reviewed" as used by the Committee in its decision are capable of two meanings i.e.: the decision will be "reconsidered" or "revised". The word "revise" is in turn capable of meaning "re-examine" or "amend". (see the definition of the words "review" and "revise", Concise Oxford Dictionary, eight edition, Clarendon Press, Oxford, 1990) Having regard to the fact that a validated certificate was considered as conclusive proof of service as a matter of policy, and as the only issue underlying the review was whether the Applicant had served as she had claimed, there is no doubt that the ruling of the Committee was that its decision to maintain the revocation was to be changed if the second certificate turned out to be valid.

     ³¹      Irrespective of anything else, there is no basis for the statement that "Neither the Appellant nor the Greek authorities acted fast enough". What the record shows is that it is the Regional Committee which assumed the responsibility of insuring that the second certificate was submitted for validation on May 6, 1991, well in time to have the process completed before the amendments to the Act. What occurred however, is that the Chief of Program Policy in Prince Edward Island did not forward the request through the proper diplomatic channels. The record shows that upon this error being rectified the request was responded to within some seven months. It follows that had it not been for the fact that the request was not channelled properly by officials of the Department, the validation would have been obtained well before the effective date of the amendment.

     ³²      Article 1506 provides:          "The fulfilment of a condition has a retroactive effect, ...to the day on which the debtor (of the conditional obligation) obligated himself conditionally."