Date: 20060502
Docket: A-584-05
Citation: 2006 FCA 158
CORAM: NOËL J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
GERARD CHARLES DeLEEUW
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] The appellant Mr. DeLeeuw is seeking a war veterans allowance pursuant to the War Veterans Allowance Act, R.S.C. 1985, c. W-3 (the Act). His application was refused. On March 1, 2005, that refusal was upheld by the Veterans Review and Appeal Board. Mr. DeLeeuw applied to the Federal Court for judicial review of that decision. His application was dismissed on November 14, 2005, for reasons that are not reported. Mr. DeLeeuw now appeals to this Court.
[2] Mr. DeLeeuw's argument was thoroughly researched and ably presented. However, for the reasons that follow, I am unable to conclude that there is any basis upon which this Court can reverse the decision of the Federal Court, or the decision of the Veterans Review and Appeal Board.
[3] The relevant facts are not in dispute. On October 12, 1944, Mr. DeLeeuw enlisted voluntarily to serve in the Canadian army. He was willing to serve overseas during World War II, but the war ended before he was given an opportunity to do so. He was first stationed in Shilo, Manitoba. After his initial training, he was posted to an army base in Debert, Nova Scotia. He travelled there by train, on a route that passed through the north-eastern United States, and in close proximity to Atlantic coastal waters. At one point during his service he became ill with German measles, and was required to be hospitalized at the naval hospital in Nova Scotia. During his military service, Mr. DeLeeuw was not required to travel in an aircraft, or on a ship or boat of any kind. He was discharged on September 20, 1945.
[4] In order to qualify for the benefits he seeks, Mr. Deleeuw must have served in a "theatre of actual war" during World War II (section 37(3) of the Act). The phrase "theatre of actual war" is defined as follows in paragraph 37(8)(c) of the Act (my emphasis):
| (8) For the purposes of this section, "theatre of actual war" means [...]
(c) in the case of World War II,
(i) with respect to a former member of His Majesty's Canadian forces or a merchant navy veteran of World War II, any place where the person has been on service involving duties performed outside the Western Hemisphere, including
(A) service involving duties performed outside Canada, Newfoundland, the United States, Saint Pierre and Miquelon and the territorial waters thereof in aircraft, and
(B) service anywhere in a ship or other vessel, which service is classed as "sea time" for the purpose of advancement of naval ratings, or which would be so classed were the ship or other vessel in the service of the naval forces of Canada [...]
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(8) Pour l'application du présent article, « théâtre réel de guerre » s'entend : [...]
c) dans le cas de la Seconde Guerre mondiale :
(i) à l'égard d'un ancien membre des forces canadiennes de Sa Majesté ou d'un ancien combattant de la marine marchande de la Seconde Guerre mondiale, de tout endroit où il a accompli du service comportant des fonctions remplies hors de l'hémisphère occidental, y compris le service comportant des fonctions remplies à l'extérieur du Canada, de Terre-Neuve, des États-Unis, de Saint-Pierre-et-Miquelon et de leurs eaux territoriales dans un aéronef, et en quelque endroit sur un navire ou autre bâtiment, lequel service est classé comme temps passé en mer aux fins de l'avancement des matelots ou qui serait ainsi classé si le navire ou autre bâtiment était au service des forces navales du Canada [...]
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[5] The phrase "sea time" is defined as follows in subsection 37(8.1) of the Act:
| (8.1) For the purposes of clause (8)(c)(i)(B), "sea time" for the purpose of advancement of naval ratings includes time served in
(a) a sea-going ship,
(b) a defensively-equipped merchant ship, or
(c) any ship employed in harbour, other than a boom defence scow, gate vessel, depot ship or harbour craft,
as well as time served in combined operations organizations, but does not include time served on any ship prior to its commissioning.
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(8.1) Au sous-alinéa (8)c)(i), le temps passé en mer comprend le temps passé en service sur un navire de mer, sur un navire marchand équipé défensivement ou sur un navire fonctionnant au port, autre que les chalands de défense du barrage, les bâtiments de barrière, les navires ravitailleurs et les bâtiments de servitude. Est aussi visé le temps de service dans les opérations interarmées, mais non le temps de service à bord d'un navire avant son armement.
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[6] Mr. DeLeeuw argues, first, that he qualifies for a war veteran's allowance by virtue of his proposed interpretation of the definition of "sea time". This argument, as I understand it, has two branches. The first branch is based on the word ‹‹ bâtiment ››, as used in the French version of subsection 37(8.1). Mr. DeLeeuw argues that the word ‹‹ bâtiment ›› means "building", which would include the naval hospital in Nova Scotia in which he was hospitalized. I am unable to accept this argument. The French word ‹‹ bâtiment ›› may mean "building" in some contexts, but in the context in which it appears in subsection 37(8) of the Act, which deals entirely with naval matters, it can only mean a ship or vessel.
[7] The second branch of Mr. DeLeeuw's argument relating to the meaning of "sea time" is based on the fact that he was amember of the army admitted to a naval hospital, he says, to prevent the German measles from spreading through the army base. He argues that the period of his hospitalization was "sea time" because it was time served in "combined operations organization". I am unable to accept this argument either. There is no basis for concluding that a person in military service who is a patient in a military hospital is engaged in a military operation in combination with the staff of that hospital.
[8] Mr. DeLeeuw points out that the key aspects of his military service are no different than those of Mr. Trainor in Trainor v. Canada (Attorney General) (2000), 188 F.T.R. 77 (F.C.T.D.) or Mr. MacLaren in Re Attorney General of Canadaand MacLaren (1987), 41 D.L.R. (4th) 41 (F.C.A.). The premise of this argument is that Mr. Trainor and Mr. MacLaren were granted benefits under the Act because of their proximity to dangerous coastal waters, and as he was also in proximity to dangerous coastal waters, he should also be granted benefits under the Act. He also argues that the government's failure to treat him the same as Mr. Trainor and Mr. MacLaren is a breach of his rights under the Canadian Charter of Rights and Freedoms.
[9] Mr. DeLeeuw was a volunteer who would have served overseas but for circumstances beyond his control. I can well understand that from his point of view, it seems arbitrary to deny him a war veterans' allowance when others who appear to him to be similarly situated are found to be eligible for that allowance. The question is whether there is a relevant distinction between the facts of Mr. DeLeeuw's case, and the facts in the Trainor and MacLaren cases.
[10] Mr. Trainor and Mr. MacLaren, like Mr. DeLeeuw, enlisted in 1944 but were not posted overseas because the war came to an end. Their enlistment process began in Prince Edward Island and was intended to be completed in Halifax. They were required to travel to Halifax, traversing the Northumberland Strait by ferry. During that trip, their enlistment process had not yet been completed. In Mr. MacLaren's case, the enlistment process was later completed in Halifax, but in Mr. Trainor's case, the enlistment process was never completed because Mr. Trainor did not pass his medical examination in Halifax.
[11] It was apparently never disputed that the voyage taken by Mr. Trainor and Mr. MacLaren across the Northumberland Strait took them through a "theatre of actual war". The government argued in both cases that they did not qualify for veterans' benefits because, during the very short period when they were physically located in a "theatre of actual war", they were yet not "members" of the Canadian forces. The government's argument on that point was not accepted by this Court, which held that Mr. Trainor and Mr. MacLaren were both "members" of the Canadian forces during the voyage because the enlistment process had commenced, they were traveling under military escort and were subject to the Code of Service Discipline.
[12] The reasons in the Trainor and MacLaren cases do not say why the Northumberland Straitwas considered a "theatre of actual war" - that was an undisputed aspect of both cases. Counsel for the Crown suggested in his argument in this case that an individual crossing the Northumberland Strait by ferry would for some period of time be more than three nautical miles from any Canadian coast and therefore would technically be outside the "territorial waters of Canada" (as that phrase is defined in section 37(7.1) of the Act).
[13] Mr. DeLeeuw disputes that explanation of the Trainor and MacLaren cases. He calculates that there is at least one point where the Northumberland Strait is less than six nautical miles wide. It appears to me that the Northumberland Strait is more than six nautical miles wide at many points. Regardless of the dimensions of the Northumberland Strait, however, it is not clear how the definition of "territorial waters of Canada" has any relevance to the definition of "actual theatre of war", except in the case of service involving duties performed in an aircraft. Mr. DeLeeuw had no such duties. In my view, the debate about the width of Northumberland Strait neither helps nor hurts Mr. DeLeeuw's case.
[14] Mr. DeLeeuw suggests that the Northumberland Strait was accepted to be a "theatre of actual war" because German submarines were there during World War II. According to Mr. DeLeeuw, any other place near the Atlantic Ocean that was at risk of a submarine attack should similarly be considered to be a "theatre of actual war". Applying that standard, Mr. DeLeeuw argues that he was present in a "theatre of actual war" because he was close to the Atlantic Ocean during his period of service, in an least one location that was known to be near an area where German submarines were known to be. As an example, he notes that he was required to cross the harbour in St. John, New Brunswick.
[15] In my view, Mr. DeLeeuw's proposed interpretation of the phrase "theatre of actual war" would give it a meaning that the statutory language cannot reasonably bear. The definition of "theatre of actual war" says nothing about submarines, or other enemy activity that might have occurred near the AtlanticCoast. Even if Mr. DeLeeuw is correct when he says that German submarines came near the Atlantic Coast, that is not a basis upon which to conclude that Mr. DeLeeuw was in or passed through a "theatre of actual war" during his wartime service. I see nothing in the MacLaren case or the Trainor case that helps Mr. DeLeeuw's argument.
[16] Mr. DeLeeuw did not strenuously pursue his Charter argument, but as he raised it in his memorandum of fact and law, I will mention it. In my view, the difference in treatment between Mr. DeLeeuw on the one hand, and Mr. MacLaren and Mr. Trainor on the other, is not a breach of the Charter. The statutory provisions do not discriminate against Mr. DeLeeuw on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, or any analogous ground.
[17] I would dismiss Mr. Deleeuw's appeal. As the Crown has not asked for costs, I would award none.
"K. Sharlow"
"I agree
Marc Noël J.A."
"I agree
B. Malone J.A."
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