FACTS
[2]
Mr. Arial is
a veteran who served in the Canadian Navy during World War II. He died on
September 25, 2005. Mrs. Arial is his surviving spouse.
[3]
On March
7, 1996, the applicants went to the Department of Veterans Affairs (VAC) for
the first time for an assessment of Mr. Arial’s file. They claim that they were
not informed of their rights on that occasion and that they were told that
there was no point in meeting a pension officer. They met with a pension
officer anyway, and Mr. Arial filled out a disability pension application, in
which he claimed to suffer from stomach ulcers. However, the applicants never
filed a diagnosis from Mr. Arial’s physician. They claimed that his physician
had retired and refused to cooperate. They informed the VAC of this, but since
the VAC did not offer them any assistance, Mrs. Arial withdrew the pension
application.
[4]
In October
1999, the applicants’ daughter, whom Mr. Arial had appointed as his
representative, took steps again to claim a disability pension for her father.
However, this new application was rejected, on the grounds that there were no
medical conditions or injuries attributable to Mr. Arial’s military service. An
attempt to obtain medical documents dating from the first few years after the
war to show the existence, at that time, of a medical condition attributable to
Mr. Arial’s service was unsuccessful.
[5]
On August
11, 2004, the applicants’ daughter again contacted a pension officer. On
September 27, 2004, she submitted a disability pension application for hearing
loss. This application was granted (retroactive to August 11, 2004), and Mrs.
Arial was informed of this by a letter dated June 1, 2005. The applicants’
daughter again contacted the pension officer at that time, and the officer
apparently told her that her father was not entitled to any other compensation.
[6]
On
September 16, 2005, the applicants’ daughter contacted the VAC to submit an
attendance allowance application. This application was granted on September 21,
2005 (retroactive to September 16, 2005).
[7]
Mr. Arial died
on September 25, 2005.
[8]
Mrs.
Arial, as the surviving spouse, is seeking a review of the decision awarding the
attendance allowance. She claims that she is entitled to have this allowance awarded
retroactively to August 11, 2004. An entitlement review panel dismissed this
application on May 17, 2006. While acknowledging that the applicants’ daughter
had the intention as of August 11, 2004, to claim an attendance allowance, the entitlement
review panel interpreted section 38 of the Pension Act, R.S.C. 1985, c.
P-6, as meaning that a person’s entitlement to a disability pension must be
recognized before the person can claim an attendance allowance, which may then
be awarded as of the date on which the application was filed. Mr. Arial’s
entitlement to a pension was recognized on June 1, 2005. It was therefore only
as of the time the allowance application was filed on September 16, 2005, that an
attendance allowance was payable to him.
[9]
Mrs. Arial
appealed this decision. However, the appeal panel affirmed it in a decision
dated January 18, 2007. The appeal panel’s reasoning was similar to that of the
entitlement review panel.
[10]
Mrs. Arial
then applied for reconsideration of the appeal panel’s decision, arguing that
it erred in fact and law and that she wished to submit new evidence. This time,
Mrs. Arial sought recognition of Mr. Arial’s entitlement to the attendance
allowance retroactively to March 7, 1996, the date on which the applicants
initially took steps to obtain a disability pension. Another appeal panel
refused to reconsider the decision in a decision dated March 14, 2009. The
applicants are seeking judicial review of that decision.
[11]
Mrs. Arial
has also brought certain other proceedings at the same time as the application
for an attendance allowance, one of which is relevant to this judicial review,
although it is not directly at issue. Mrs. Arial challenged the decision awarding
the pension for hearing loss effective June 1, 2005, seeking the maximum
retroactive date for this award. An entitlement review panel granted her
application in a decision dated October 21, 2008. Acknowledging that the
applicants had not been informed and advised as they should have been by the VAC,
the panel awarded the maximum retroactive date provided for in the Pension
Act, that is, three years prior to the date of recognition of pension entitlement,
as well as an additional award an amount equal to two years pension. This
decision was part of the record of the appeal panel reviewing the application
for reconsideration in question in this case.
THE APPEAL PANEL’S DECISION
[12]
The appeal
panel found that, since departmental policy states that an attendance allowance
application under subsection 38(1) of the Pension Act cannot be
submitted before entitlement to a disability pension is recognized, and since
Mr. Arial’s entitlement to a disability pension was recognized on June 1, 2005,
Mr. Arial could not properly apply for an attendance allowance before that
date. Neither the applicants’ dealings with the VAC in 1996 nor their
daughter’s actions in 2004 could therefore justify awarding an allowance
retroactively to a date prior to June 1, 2005. Since the first application for an
attendance allowance subsequent to that date was made on September 16, 2005,
the allowance was rightly awarded as of that date. The appeal panel found that
there was no error of fact or law in the decision of January 18, 2007.
[13]
The appeal
panel also dismissed the new evidence submitted by the applicants, namely, a
statement from their daughter dated March 27, 2009, and certain documents
attached thereto, considering that it did not meet this Court’s tests in MacKay
v. Canada (Attorney General), (1997) 129 F.T.R. 286, [1997] F.C.J. No. 495.
PRELIMINARY ISSUE
[14]
The
Attorney General notes that the applicants have adduced as evidence several
documents that were not before the appeal panel when it made its decision. It
is well established that evidence that was not before the administrative
decision-maker is admissible in a judicial review of the decision-maker’s
decision only to contest the decision-maker’s jurisdiction or to support an
allegation of a lack of procedural fairness (see, for example, Ray v. Canada,
2003 FCA 317 at paras. 5 to 7). The new documents adduced by the applicants in
this case are not of this nature: they are primarily documents related to Mr.
Arial’s other pension applications and medical documents. The Court therefore
cannot consider them.
ISSUES
[15]
The issues
in this application for judicial review are as follows:
1) Did the appeal panel err in dismissing
the new evidence that the applicants submitted in support of their application
for reconsideration?
2) Did the appeal panel err in
finding that it did not have the power to award the attendance allowance
retroactively?
STANDARD OF REVIEW
[16]
Justice Michael
Phelan recently ruled that “[w]hile the issue of what
is ‘new evidence’ consists of a legal determination as to
the test for ‘new evidence’, and therefore is subject to correctness, the
application of the facts to the test of new evidence…is subject only to
reasonableness” (Atkins v.
Canada (Attorney General), 2009 FC 939, [2009] F.C.J. No. 1159, at para. 19).
[17]
As for the
issue of the retroactivity of the attendance allowance, it is subject to the
interpretation of the Pension Act, and is therefore a question of law,
subject to a correctness standard (see Atkins, above, at para. 20; Canada
(Attorney General) v. MacDonald, 2003 FCA 31, (2003) 238 F.T.R. 172, at para.
11).
ANALYSIS
1. The new evidence
[18]
The
applicants contend that the appeal panel erred in not admitting as evidence a
statement from their daughter as well as certain documents attached thereto and
relating to Mr. Arial’s medical problems and the steps taken by the applicants
and their daughter to obtain a disability pension for Mr. Arial.
[19]
The
Attorney General is of the opinion that the appeal panel was right to apply the
tests established by Justice Max Teitelbaum in MacKay, above, and, in doing so, to exclude the evidence submitted by the
applicants. In fact, this evidence would apparently not have affected the
result of the application, since it allegedly had nothing to do with the
determination of the date of Mr. Arial’s entitlement to an attendance allowance.
[20]
In MacKay,
above, Justice Teitelbaum adopted, at paragraph 25, the test developed by the
Supreme Court in Palmer and Palmer v. The Queen, [1980], 1 S.C.R. 759 at
page 775, which states that to be admissible by the appeal panel, the new
evidence submitted by an appellant must be, among other things, “such
that if believed it could reasonably, when taken with other evidence adduced at
trial, be expected to have affected the result.” I agree
with the Attorney General that the new evidence submitted by the applicants in
this case would not have affected the result of their application. This depended
solely on the interpretation of the Pension Act and, more specifically,
the limits it imposes on a veteran’s entitlement to an attendance allowance.
2. Retroactivity
The applicants’ claims
[21]
The
applicants’ claims can essentially be summarized as follows: in all the actions
that they and their daughter have taken since 1996 to obtain a disability
pension and, ultimately, an attendance allowance for Mr. Arial, the VAC failed
in its duty to inform them of their rights, and they should not be penalized
for these failures by the limitation on the retroactivity of the attendance allowance.
The applicants are relying on subsection 81(3) of the Pension Act, which
requires the VAC to “on request, provide a counselling service to applicants
and pensioners with respect to the application of this Act to them; and assist
applicants and pensioners in the preparation of applications”.
[22]
Thus, the
withdrawal of the pension application in 1996 allegedly was the result of the VAC’s
failure to indicate the correct steps to be taken or propose solutions in view
of the impossibility of obtaining documents from Mr. Arial’s attending
physician. This withdrawal was apparently therefore not voluntary; to the
contrary, Mrs. Arial apparently demonstrated a continuing intention to pursue and
advance this application. The VAC officers should have observed Mr. Arial’s
physical and intellectual limitations and helped him instead of encouraging him
to close his file. In fact, all of the documents required to bring his
application to a conclusion already existed in 1996, which was confirmed by the
decision on the retroactivity of the pension for hearing loss dated October 21,
2008.
[23]
In
addition, after the pension was awarded to Mr. Arial on June 1, 2005, a pension officer apparently
misled the applicants’ daughter by not mentioning to her the possibility of claiming
an attendance allowance. The applicants also state that they were not fully
informed about their rights at other times when they contacted the VAC in 2005
and 2006.
[24]
The
applicants are relying on this Court’s decision in MacKenzie v. Canada (Attorney General), 2007 FC 481, (2007) 311 F.T.R. 157. In that decision, Justice Harrington, in drawing
a parallel with tortuous liability for negligent misrepresentation, noted that
a surviving spouse of a veteran and her daughter who
were
inquiring about benefits under a benefit-conferring statute…had every right to
presume that those at the Department with whom they dealt had special skills
and had every reason to trust those persons to exercise due care. Since one has
every right to expect that the Government will do the right thing, the
Department knew or should have known that reliance was being placed on the
skill and judgment of its employees.
[25]
They point
out that the policies and manuals of the VAC itself stress the importance of
assisting veterans and their families in their efforts to obtain the pensions or
allowances to which they are entitled. This duty stems from subsection 81(3) of
the Pension Act. Yet, the VAC policy on which the appeal panel’s
decision (as well as the previous decisions in this file) is based creates an
injustice in that it deprives the applicants of their entitlement to an
attendance allowance for the entire period during which, because of the VAC’s
fault, their pension application was not settled. Such a result would be
contrary to the rule set out in section 2 of the Pension Act which
states that the provisions of the Act “shall be liberally construed and
interpreted to the end that the recognized obligation of the people and
Government of Canada to provide compensation to those members of the forces who
have been disabled…as a result of military service, and to their dependants,
may be fulfilled”.
Attorney General’s claims
[26]
According
to the Attorney General, the awarding of a disability pension is a sine qua
non condition for an attendance allowance to be awarded. In fact,
subsection 38(1) of the Pension Act provides that “[a] member of the
forces who has been awarded a pension or compensation or both, is totally
disabled, whether by reason of military service or not, and is in need of
attendance shall, on application…be awarded an attendance allowance…”. The
appeal panel’s reasoning is therefore correct: an attendance allowance can only
be awarded once the pension is awarded. Thus, no attendance allowance could be awarded
to Mr. Arial prior to June 1, 2005.
[27]
Even after
that date, the applicants had to comply with the provisions concerning the
manner of submitting an attendance allowance application under the Pension Act,
the Award Regulations, SOR/96-66 and departmental policies. Thus, under
subsection 80(1) of the Pension Act, “no award is payable to a person
unless an application has been made by or on behalf of the person and payment
of the award has been approved…”. Under section 3 of the Award Regulations,
an applicant must provide, in support of his or her application, certain
documents and information. In addition, departmental policy states that “[t]he
effective date of an attendance allowance award shall not pre-date the date of
the decision awarding pension entitlement”. According to that policy, a pension
and an attendance allowance cannot be applied for at the same time. All of
these requirements were not met until the applicants’ daughter contacted the VAC
to obtain an attendance allowance for her father on September 16, 2005.
[28]
In
addition, the Attorney General emphasizes that no provision of the Pension
Act allows an attendance allowance to be awarded retroactively, unlike a disability
pension.
Analysis
[29]
The issue
at the heart of this case is whether subsection 38(1) of the Pension Act,
which creates entitlement to an attendance allowance, allows such an allowance
to be awarded as of a date prior to the date on which a disability pension is awarded.
[30]
Both the
decision of the appeal panel dated May 14, 2009, and all prior decisions
concerning the attendance allowance are based on a departmental policy that states
that the answer to this question is no. However, this policy should not be restrictive.
To the extent that it prevents the appeal panel from awarding an allowance to
which a veteran is entitled under the Pension Act, the panel is acting
contrary to the law in applying it.
[31]
Since the
applicable standard of review is correctness, the Court must undertake its own
analysis of subsection 38(1) of the Pension Act (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 50). For ease of reference, I have reproduced the text below:
|
38. (1) A member of the forces
who has been awarded a pension or compensation or both, is totally disabled,
whether by reason of military service or not, and is in need of attendance
shall, on application, in addition to the pension or compensation, or pension
and compensation, be awarded an attendance allowance at a rate determined by
the Minister in accordance with the minimum and maximum rates set out in
Schedule III.
|
38. (1) Il est accordé, sur
demande, à un membre des forces à qui une pension, une indemnité ou les deux
a été accordée, qui est atteint d’invalidité totale due à son service
militaire ou non et qui requiert des soins une allocation pour soins au taux
fixé par le ministre en conformité avec les minimums et maximums figurant à
l’annexe III.
|
[32]
Whereas
subsections 38(2) and 38(3) deal with the suspension or cessation of an attendance
allowance in the case of the hospitalization of or on the death of the veteran
receiving it, respectively, there is no provision that specifically pertains to
the time at which the attendance allowance becomes payable. Subsection 38(1) simply
provides that this is awarded to “[a] member of the forces who has been awarded
a pension or compensation or both”. As the Attorney General points out, this
provision does not expressly allow an attendance allowance to be awarded
retroactively. However, it does not prohibit it either.
[33]
Given this
legislative silence, it must be recalled that section 2 of the Pension Act clearly
indicates Parliament’s willingness to ensure that “[t]he provisions of this Act
shall be liberally construed and interpreted to the end that the recognized
obligation of the people and Government of Canada to provide compensation to
those members of the forces who have been disabled or have died as a result of
military service, and to their dependants, may be fulfilled.” In Canada (Chief
Pensions Advocate) v. Canada (Minister of Veterans Affairs, Appeal Board),
(1992)
98 D.L.R. (4th) 45, [1992] F.C.J. No. 910 (QL) (F.C.A.), the Federal Court of Appeal
ruled that this provision must be understood to be “ordering
the Board and eventually the Courts, when in doubt with respect to the amount
of compensation, to decide in favour of the larger amount”.
[34]
More
recently, the Federal Court of Appeal unanimously reiterated that it is
important for the Pension Act to be “liberally construed and interpreted”,
both because it is “social welfare legislation” and because of its express wording
(Canada (Attorney General) v. Frye, 2005 FCA 264, (2005) 338 N.R. 382
at paras. 14-20).
[35]
In MacDonald,
above, the Court had to decide whether, in the absence of express legislative
authorization, a reassessment of the extent of the disability could be made retroactive
to the date the pension was awarded, rather than the date on which the
application was made. Although made in obiter, the following comments by
Justice Evans, on behalf of a unanimous Court of Appeal, are relevant:
[I]n the absence of
any compelling reason to limit section 39 to entitlement decisions,
particularly bearing in mind the liberal construction of the Act mandated by
section 2, it would seem very unfair, and contrary to the spirit of the Act as
enunciated in section 2, to interpret the Act as precluding any backdating of
an assessment made to correct a previous erroneous assessment of the extent of
the disability by Veterans Affairs and the Board.
[36]
Similarly,
in my opinion, the limitation on the retroactivity of attendance allowances
applied by the appeal panel is contrary to the spirit of the Pension Act as
enunciated in section 2. It is incompatible with a liberal construction and
interpretation intended to award the maximum amount to which a veteran and his
family are entitled pursuant to subsection 38(1). This provision makes a clear
link between entitlement to a care allowance and entitlement to a pension. Thus,
a veteran is not entitled to the first if he is not already entitled to the
second. This link is even more obvious in the English version of the text, which
provides that the attendance allowance is awarded “in addition to the
pension or compensation, or pension and compensation” (emphasis added).
[37]
Under
subsection 39(1) of the Pension Act, once a disability pension is
awarded, it takes effect on the date the application was made or the date that
is three years prior to the date on which the pension was awarded, if that date
is later. I find that the words “has been awarded” in subsection 38(1) of the Pension
Act must be understood to cover the period during which the pension was
made payable under section 39(1) and not only the period following the
decision to award the pension.
[38]
Although
Parliament did not specify that an attendance allowance may be awarded for the
entire period during which the pension was made payable, given the close tie
between these two forms of awards and the absence of any compelling reason to
limit the scope, it would be unfair to limit the period during which the
attendance allowance is made payable to something other than the period during which
the pension was made payable.
[39]
However,
the “additional award” provided for in subsection 39(2) of the Pension Act must
not be included in the evaluation of the period during which the disability
pension was made payable. This is an “additional award” and not a “pension” or
“compensation” as referred to in subsection 38(1). (The French version also
uses different terms: “compensation” in subsection 39(1), “pension” and “indemnité” in subsection 38(1).) In addition,
it is a lump-sum award, the evaluation of which is left to the discretion of
the entitlement review panel or the appeal panel, and is therefore not directly
related to a pension entitlement period, and is limited to “an amount not
exceeding an amount equal to two years pension”.
[40]
I
therefore find that the departmental policy applied by the appeal panel is inconsistent
with a liberal interpretation of the Pension Act that is consistent with
Parliament’s clearly expressed objective. The appeal panel therefore erred in
finding that it did not have the power to award the attendance allowance
retroactively.
CONCLUSION
[41]
For
these reasons, the application for judicial review is allowed, and the
application for reconsideration returned for review on the basis of these
reasons by a differently constituted appeal panel.
JUDGMENT
THE COURT ORDERS that:
For these reasons,
the application for judicial review is allowed, and the application for
reconsideration returned for review on the basis of these reasons by a
differently constituted appeal panel.
“Danièle
Tremblay-Lamer”
Certified
true translation
Susan
Deichert, LLB
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