Date:
20130605
Docket:
T-285-12
Citation:
2013 FC 602
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
June 5, 2013
PRESENT: The
Honourable Mr. Justice Roy
BETWEEN:
MAURICE ARIAL
(veteran - deceased)
MADELEINE
ARIAL (surviving spouse)
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application under subsection 18.1(1) of the Federal
Courts Act, RSC 1985, c F‑7, for judicial review of a decision
by a reconsideration panel of the Veterans Review and Appeal Board of the
Department of Veterans Affairs (the Board) dated January 4, 2012, which
determined that the applicants were sufficiently compensated for the breaches
of duty committed by the Department of Veterans Affairs Canada [VAC].
[2]
Specifically, the applicants want this Court to order the Board
to refer the issue to the Minister, and this order, they say, arises out of a
judgment issued on July 8, 2011, by Mr. Justice Shore (Arial v
Attorney General of Canada, 2011 FC 848 [Arial Estate]).
[3]
This application for judicial review cannot be allowed for
the following reasons.
Facts
[4]
The factual background in this case is complex because of
the multiplicity of proceedings. I believe that the following summary will
suffice for the purposes of this judicial review.
[5]
It should be noted that, parallel to the proceedings that
are before this Court regarding a disability pension for stomach problems, the
applicants brought a series of proceedings with respect to an application for
an attendance allowance and an application for a disability pension for hearing
loss. The application for an attendance allowance was the subject of an
application for judicial review; Madam Justice Danièle Tremblay‑Lamer’s
decision is found at Arial v Attorney General of Canada, 2010 FC 184. We
are concerned here only with the saga of the disability pension for stomach
problems.
[6]
The veteran, Maurice Arial, was born on January 8,
1916. He enrolled in the Royal Canadian Navy in June 1940. From July 1940 to
July 1945, on different ships, he was responsible for both machinery
maintenance and the supply of ammunition located in the holds of the ships. He
was demobilized at the end of the war. In his service records, there are two
medical reports dated May 7, 1944, and February 19, 1945. Apart from
being rather general, they deal with weight loss, nervousness, fatigue and
seasickness.
[7]
On December 27, 1946, Mr. Arial married Madeleine Arial
(his surviving spouse). They subsequently had a daughter, Sonia Arial
(collectively, “the applicants”).
[8]
On March 7, 1996, Mr. Arial filed an application
for a disability pension for stomach ulcers. A number of incidents ensued
concerning the filing of a medical report required by the authorities at the
time and necessary for considering whether to grant such a pension. In the
absence of a medical report, Mr. Arial’s file was closed on
September 27, 1996. The service documents did not reveal any specific
problem other than the seasickness Mr. Arial suffered.
[9]
On October 13, 1999, Mr. Arial appointed his
daughter as his designated representative. That day, she contacted VAC and
filed a new application on her father’s behalf for a disability pension based
on stomach problems. A few days later, a pension officer sent a form to
Mr. Arial asking him to submit a recent medical report. On
November 18, 1999, Sonia Arial sent the pension officer a cover
letter, the pension application form and a statement from one Dr. Lepage indicating
the diagnosis of gastroesophageal
reflux [GER]. These documents indicate, inter alia, that Mr. Arial had been under doctor’s care for stomach
problems since returning from the war.
[10]
On December 29, 1999, the pension application was
denied. An analysis of Mr. Arial’s service documents led to the conclusion
that they did not reveal [translation]
“any impairment or condition arising from military service or any injury
resulting from a service‑related accident.”
[11]
Mr. Arial passed away on September 25, 2005.
[12]
On December 19, 2005, Sonia Arial contacted VAC
and asked that an official decision be made concerning the
disability pension application for various stomach problems that had been submitted
in 1999. Additional information was provided at that time.
[13]
On August 8, 2006, VAC, by ministerial decision, denied
this application on the ground that the medical service documents did not
reveal any impairment and that no relevant dispute had been submitted in Mr. Arial’s
file for many years following his demobilization. Sonia Arial disputed
this decision.
[14]
On January 24, 2007, a review panel of the Veterans
Review and Appeal Board confirmed the ministerial decision of August 8,
2006. The review panel found that there was no causal connection between Mr. Arial’s
stomach problems and his military service. Sonia Arial also disputed that
decision.
[15]
On October 30, 2007, an appeal panel of the Veterans
Review and Appeal Board granted the applicants a pension entitlement for the Second
World War service. The appeal panel recognized that Mr. Arial had suffered
from a recurring duodenal ulcer since 1940 and that the GER diagnosis was the
manifestation of the ulcer. The appeal panel established the effective date of
the pension retroactively to November 9, 2005, the date the application
was considered to be complete. No additional award was granted.
[16]
The issue that gave rise to this application for judicial
review concerns the commencement date of the pension that the applicants say
they are entitled to. They disputed the date of November 9, 2005.
[17]
On June 24, 2008, a reconsideration panel of the Veterans
Review and Appeal Board refused to change the effective date of the pension on
the ground that the application was not completed until that date under the Award
Regulations.
[18]
This issue was heard again before a second reconsideration
panel. On May 14, 2009, this second reconsideration panel agreed that a
pension application was made in 1996. It established the effective date as
October 30, 2004, the day three years prior to the day on which the
pension was awarded, invoking paragraph 56(1)(a.1) of the Pension
Act, RSC 1985, c P-6 (the Act), and granted an additional award of 24
months under subsection 56(2) of the Act because of delays beyond the
applicants’ control. These provisions read as follows:
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56. (1) Pensions awarded with
respect to the death of a member of the forces shall be payable with effect
as follows:
. . .
(a.1)
to or in respect of the member’s survivor or child, or to the member’s parent
or any person in place of a parent who was wholly or to a substantial extent
maintained by the member at the time of the member’s death, if no additional
pension referred to in paragraph 21(1)(a) or (2)(a) was at the
time of death being paid in respect of that person or that person is awarded
a pension under section 48, from the later of
(i)
the day on which application for the pension was first made, and
(ii)
a day three years prior to the day on which the pension was awarded with
respect to the death of the member;
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56. (1) La pension accordée par suite
du décès d’un membre des forces est payable comme il suit:
[…]
a.1) dans le cas où le membre ne recevait pas, à son décès,
une pension supplémentaire visée aux alinéas 21(1)a) ou (2)a) à
l’égard de cette personne ou dans le cas où une pension est accordée en vertu
de l’article 48, à cette personne, ou à l’égard de celle-ci, à compter de la
date précédant de trois ans celle à laquelle la pension a été accordée ou, si
elle est postérieure, la date de présentation initiale de la demande de
pension;
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|
56. (2) Notwithstanding subsections (1)
and (1.1), where a pension is awarded with respect to the death of a member
of the forces, or an increase to that pension is awarded, and the Minister
or, in the case of a review or an appeal under the Veterans Review and
Appeal Board Act, the Veterans Review and Appeal Board is of the
opinion that the pension or the increase, as the case may be, should be
awarded from a day earlier than the day prescribed by subsection (1) or (1.1)
by reason of delays in securing service or other records or other administrative
difficulties beyond the control of the applicant, the Minister or Veterans
Review and Appeal Board may make an additional award to the pensioner in an
amount not exceeding an amount equal to two years pension or two years
increase in pension, as the case may be.
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56. (2) Malgré les paragraphes (1) et
(1.1), s’il est d’avis que, en raison soit de retards dans l’obtention des
dossiers militaires ou autres, soit d’autres difficultés administratives
indépendantes de la volonté du demandeur, la pension ou l’augmentation
devrait être accordée à partir d’une date antérieure, le ministre ou, dans le
cadre d’une demande de révision ou d’un appel prévus par la Loi sur le
Tribunal des anciens combattants (révision et appel), le Tribunal peut
accorder au pensionné une compensation supplémentaire, à concurrence d’un
montant équivalant à deux années de pension ou d’augmentation.
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That decision
was, in turn, disputed by Sonia Arial.
[19]
On December 2, 2010, a third reconsideration panel
denied Sonia Arial’s application for reconsideration because there were no
grounds warranting a new examination under section 32 of the Veterans
Review and Appeal Board Act, SC 1995, c 18.
[20]
That decision was subsequently the subject of an
application for judicial review (Arial Estate, supra). Justice Shore
set aside the decision of December 2, 2010, and referred the case back to
a differently constituted panel.
[21]
As a result of Justice Shore’s decision, a new hearing
was held before the Board on November 1, 2011. A decision was finally issued
on January 4, 2012, the decision that is the subject of this judicial
review.
Context of this application for judicial review
[22]
To understand the decision for which judicial review is
sought, it is important to first identify the ratio decidendi of the Court’s
judgment by Mr. Justice Shore because that decision for which review
is sought was intended to be the follow‑up ordered by the Court.
[23]
On the basis of the minister’s duty under subsection 81(3)
of the Act to “on request, provide a counselling service to applicants and
pensioners with respect to the application of the Act to them; and assist
applicants and pensions in the preparation of applications”, Justice Shore
ordered that the issue of the retroactivity of the pension be examined again.
Paragraph 65 of the decision is instructive:
[65] Moreover, it is not this
Court’s role to determine if the pension should be retroactive to May 7,
1996, or not; rather, the Court must determine whether the case should be
referred back to a new panel so that the facts and law can be reconsidered
should an error in fact or in law have been committed. It will be up to this
new panel to determine whether the retroactive effect of the award should be
extended back to March 7, 1996. Clearly, Parliament does not speak in
vain. Since Parliament has provided that VAC pension officers owe veterans
certain obligations to provide them with the information they seek about
pension applications, a breach of these obligations must carry consequences.
(Justice Shore’s
emphasis)
[24]
Thus, the Court did not pre‑order a conclusion by the
reconsideration panel. Pointing to the spirit of the Act , which is intended to
be generous and which should be interpreted that way, the Court referred the
case back so that the facts and law could be re‑examined. Paragraph 76 appears
to me to capture the essence of the Court’s decision:
[76] VAC’s breach of the duty
owed to Mr. Arial degraded the quality of life of this veteran. The Court
refers the case back to the Veterans Review and Appeal Board so that the Board
can review its responsibilities toward the Arial family. It will be up to the
Board to determine what a major breach of its duty to inform is worth, in
accordance with the legislation and the case law and bearing in mind that fact
that it is not merely suggested but is explicitly stated in the PA itself that
VAC must 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” (subsection 81(3) of the
PA). The Board has an obligation to stay true to its mandate to respect this
statement and not treat it like a superficial public relations ploy.
[25]
Faced with this order, the Board reviewed the issue of the
date on which the pension should be paid in light of the law and the facts. In
its decision, the Board stated that it was unable to do better than the final
decision already made. The pension could be paid effective October 30,
2004, three years prior to the date of the decision to award a pension. An
additional award of 24 months was granted under subsection 56(2) of the
Act.
[26]
Essentially, the Board submitted to this Court’s decision
and concluded that, in accordance with the clear wording of the Act, it confirmed
the previous decision.
Developments since the decision for which judicial review is sought
[27]
In fact, the applicants abandoned, correctly in my view,
their request that the Board should have ordered the payment of a pension prior
to October 30, 2004. Both section 39 of the Act and section 56
are unambiguous. Their effect is to limit the liability for the payment of a
pension. Earlier, I reproduced section 56. For ease of reference, I
reproduce subsection 39(1) here:
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39. (1) A pension awarded for
disability shall be made payable from the later of
(a)
the day on which application therefor was first made, and
(b)
a day three years prior to the day on which the pension was awarded to the
pensioner.
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39.
(1) Le paiement d’une pension accordée pour invalidité prend effet à partir
de celle des dates suivantes qui est postérieure à l’autre:
a) la date à laquelle
une demande à cette fin a été présentée en premier lieu;
b) une date précédant
de trois ans la date à laquelle la pension a été accordée au pensionné.
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Parliament
limited the state’s liability by using similar wording that has the same
effect.
[28]
Consequently, the concession made by the applicants was
received, the Court acknowledges it, and the Board’s decision in this regard is
unassailable. I reproduce paragraph 55 of the applicants’ memorandum:
[translation]
The applicants are no longer insisting
on the first remedy. A strict interpretation of the Act leads to the conclusion
that, despite the breaches by the VAC officers towards Mr. and Mrs. Arial,
the Act does not permit a retroactive award that goes back more than three
years; an additional award of two years may be added to that, which has been
done.
It is therefore
agreed that the Board awarded the applicants the maximum under the Act.
The specific application before the Court
[29]
Instead, the applicants fall back on section 85 of the
Act. They argue that the harm they suffered as a result of the failure to
provide assistance to the applicants is quantifiable and that they could be granted
an award for it if only the matter were referred to the Minister. They rely on
subsection 85(1), which reads as follows:
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85. (1) The Minister may not consider
an application for an award that has already been the subject of a
determination by the Veterans Review and Appeal Board or one of its
predecessors (the Veterans Appeal Board, the Pension Review Board, an
Assessment Board or an Entitlement Board) unless
(a) the
applicant has obtained the permission of the Veterans Review and Appeal Board;
or
(b) the
Veterans Review and Appeal Board has referred the application to the Minister
for reconsideration.
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85. (1) Le ministre ne peut étudier une
demande de compensation déjà jugée par le Tribunal ou un de ses prédécesseurs
— le Tribunal d’appel des anciens combattants, un comité d’évaluation, un
comité d’examen ou le Conseil de révision des pensions — que si le demandeur
a obtenu l’autorisation du Tribunal ou si celui-ci lui a renvoyé la demande
pour réexamen.
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Analysis
[30]
The solution proposed by the applicants faces a major
obstacle: the Act. As we have just seen, the Act expressly limits liability for
pension payments. Unless that provision is unconstitutional, it must be
applied.
[31]
In Authorson v Canada (Attorney General), [2003] 2 SCR
40, it was the Department of Veterans Affairs Act that had been amended.
The amendments came into force in January 1990 and limited the state’s
liability for interest paid, with respect to pensions paid to disabled
veterans, on monies held by the state beginning on that date. The result was
that no interest was payable prior to that date.
[32]
The Supreme Court of Canada concluded that the Canadian
Bill of Rights, RSC 1985, App. III, cannot defeat a statutory
provision even where it is expropriative. It will suffice to reproduce
paragraph 62 of the decision:
The
respondent and the class of disabled veterans it represents are owed decades of
interest on their pension and benefit funds. The Crown does not dispute
these findings. But Parliament has chosen for undisclosed reasons to
lawfully deny the veterans, to whom the Crown owed a fiduciary duty, these
benefits whether legal, equitable or fiduciary. The due process
protections of property in the Bill of Rights do not grant procedural
rights in the process of legislative enactment. They do confer certain
rights to notice and an opportunity to make submissions in the adjudication of
individual rights and obligations, but no such rights are at issue in this
appeal.
[33]
It is difficult to see how the Minister could do more under
the Act that what is permitted pursuant to that Act. What was awarded to the
applicants—a pension retroactive to October 30, 2004, and an additional
award of 24 months—is the maximum permitted under the Act. Section 85
itself is very limited. The jurisdiction conferred on the Minister can be
exercised only where an application for an award has already been the subject
of a determination by the Board. This Board, a creature of statute, has
jurisdiction only with respect to pensions. To the extent that there was fault
that could give rise to an award because the assistance the applicants claim
was not given, the award could not be made under section 85.
[34]
A provision such as section 85 cannot be read as
allowing a minister to do whatever he or she wants as if the Act did not exist.
Parliament chose to limit the state’s liability for pension payments in
legislation that deals with pensions. The power under section 85 must be read
on the basis of this express limitation. Section 85 cannot be interpreted
as giving the minister the outrageous power of ignoring the Act such as providing
an award for an alleged fault that the Board itself cannot consider. The very
wording of subsection 56(2) seems to describe the situation in this case,
and the Board has already awarded the maximum that the Act provides for these
cases.
[35]
Indeed, the Act expressly limits the minister’s power to considering
an application for an award, this term being defined as “a pension,
compensation, an allowance or a bonus payable under this Act” (my emphasis).
Both the terms “pension” and “compensation” are also defined in the Act. With
respect, the minister’s power is very limited, and it is highly doubtful that
he or she could rely on this section to go beyond what the Act has set out so
explicitly. Furthermore, I fail to see how the Board could send to the minister
what it does not have the authority to deal with itself. The application must
be for an award, this term itself being defined and limited by the Act. It is
one of two things: either the fault is in the range of what is described in
subsection 56(2), and the Act establishes its own remedy or the fault is of
a different kind, and we are then in the area of civil liability where the
Board has no jurisdiction.
[36]
In any event, the only matter before the Court is reviewing
the Board’s decision to not refer the case to the Minister. Not only does the
Board’s decision comply with the judgment of this Court, which ordered it to
reconsider the case, but the Board confirmed what the applicants now admit,
i.e. that the Act does not permit the Board to go beyond what the Act allows with
respect to the date on which a pension may be paid.
[37]
With respect to the power conferred in section 85, there
was no mention of it in Justice Shore’s judgment. The rejection of this
possibility by the Board arises, in my view, from the reasonable decision, the
standard of review applicable to a discretionary decision that is squarely
within the jurisdiction of the administrative tribunal that has expertise in
the matter. The refusal to use section 85 was entirely reasonable; in my
opinion, it was necessary because the Act provides for a possible remedy in the
applicants’ situation. If another fault was committed, other than an
administrative difficulty beyond the control of the applicants (subsections 39(2)
and 56(2) of the Act), it must be adjudicated in another forum since it does
not come under the Board or the minister. Despite the sympathy the Court feels
for the applicants, subsection 56(2) of the Act is an insurmountable
barrier to their application for judicial review.
[38]
Consequently, the application for judicial review is
dismissed without costs.
JUDGMENT
The
application for judicial review of the decision by a reconsideration panel of
the Veterans Review and Appeal Board of the Department of Veterans Affairs dated
January 4, 2012, is dismissed without costs.
“Yvan Roy”
Certified true translation
Mary Jo Egan, LLB
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