Docket: A-72-23
Citation: 2025 FCA 16
CORAM:
|
WOODS J.A.
LEBLANC J.A.
MONAGHAN J.A.
|
BETWEEN: |
JEAN-KYLE BIENVENU |
Appellant |
and |
THE ATTORNEY GENERAL OF CANADA |
Respondent |
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on January 21, 2025).
MONAGHAN J.A.
[1] Jean-Kyle Bienvenu is a veteran of the Canadian Armed Forces who served as a member of the reserve force. In April 2018, Mr. Bienvenu applied for an education and training benefit under the Veterans Well-being Act, S.C. 2005, c. 21. A veteran who has served a total of at least six years in the regular force, the reserve force or both may apply for the benefit: Veterans Well-being Act, s. 5.2(1)(a).
[2] Unlike the military service of regular members, the service of reservists is not continuous and is often part-time. The Veterans Well-being Act authorizes the Governor in Council to make regulations “prescribing how the length of service in the reserve force is to be determined”
for the purposes of the six-year service requirement: Veterans Well-being Act, s. 5.93(a).
[3] Section 5.01 of the Veterans Well-being Regulations, S.O.R./2006-50 (Regulations) is the relevant regulation. In effect, it provides a method for calculating a reservist’s length of service based on their days of service for which pay was authorized, subject to certain adjustments.
[4] Applying that method, Mr. Bienvenu had 1,494 days of eligible service. However, Veterans Affairs determined that six years required 2,191 days of service. Accordingly, Veterans Affairs denied Mr. Bienvenu’s application for the education and training benefit.
[5] Mr. Bienvenu did not dispute the calculation. Rather, he brought an application before the Federal Court challenging section 5.01 of the Regulations, seeking a declaration it is invalid and ultra vires the Veterans Well-being Act. In particular, Mr. Bienvenu asserted that in making the regulation the Governor in Council exceeded the power Parliament delegated to it in the Veterans Well-being Act by not having regard to the purpose of that Act.
[6] The Federal Court dismissed the application (2023 FC 175, per Sadrehashemi J). Mr. Bienvenu now appeals that decision.
[7] On this appeal, we must ask ourselves whether, in reviewing the Governor in Council’s decision to make section 5.01, the Federal Court correctly chose the standard of review and
correctly applied it: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at para. 36. In responding to these questions, we owe no deference to the Federal Court and conduct our own review.
[8] We agree with the parties that the Federal Court correctly chose reasonableness as the standard for reviewing the vires of the regulation: Auer v. Auer, 2024 SCC 36 at paras. 3, 27, 44 (Auer).
[9] We also conclude that the Governor in Council’s decision to make section 5.01 of the Regulations was reasonable. We come to that conclusion substantially for the reasons of the Federal Court.
[10] At the hearing before us, Mr. Bienvenu’s counsel argued there were inadequate reasons for the choice made to compute length of service for reservists. We do not accept that decision was unreasonable simply because the Governor in Council did not explain why its choice showed “just and due appreciation for the veterans’ service to Canada” in the context of members of the reserve force: Auer at paras. 52-54.
[11] Accordingly, we will dismiss the appeal. As neither party sought costs, we will award none.
"K.A. Siobhan Monaghan"
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