Annotated Pension Act

Section 2 - Construction Section 3 (Definition) Section 5 (Powers of the Minister) Section 21(Pensions) Subsection 21(1) Paragraph 21(1)(b) Paragraph 21(1)(c) Paragraph 21(1)(d) Paragraph 21(1)(e) Paragraph 21(1)(f) Subparagraph 21(1)(f)(ii) Paragraph 21(2)(a) Service Cause Hearing Loss Stress Medical negligence Failure to take preventive measures Other Paragraph 21(2)(b) Subsection 21(3) Paragraph 21(3)(a) Paragraph 21(3)(b) Paragraph 21(3)(c) Paragraph 21(3)(d) Paragraph 21(3)(e) Paragraph 21(3)(f) Paragraph 21(3)(g) Subsection 21(5) Burden of proof Effects of treatment, medication Etiological relationship not required Lock step policy Accident subsequent to primary condition Other Subsections 21(9), (10) and (12) Paragraph 21(9)(a) Paragraph 21(9)(b) Subsection 21(10) Subsection 21(12) Section 22 (Improper conduct) Section 34 (Children) Subsection 34(3) Subsections 34(6) and 34(7) Section 35 (Pensions for disabilities) Section 38 (Attendance Allowance) Subsection 38(1) Subsection 38(3) Section 39 (Date from which disability pension payable) Subsection 39(1) Subsection 39(2) Section 41 (Administration of awards) Section 43 (Additional pension not payable in certain circumstances) Section 45 (Pensions for death) Subsection 45(1) Subsection 45(2) Subsection 45(3) Section 47 (Pension to person awarded alimony, support or maintenance) Subsection 47(1) Subsection 47(2) Subsection 47(3) Section 48 (Definition of "dependant") Subsection 48(3) Section 55 (Apportionment of pension) Section 56 (Date from which death pension payable) Section 64 (Supplementary pensions in respect of members of allied forces and merchant navies) Section 65 (Persons who served in British forces or merchant navy in World War II) Subsection 65(1) Subsection 65(2) Section 66 (Persons who served in allied forces or merchant navies in World War II) Section 68 (Maximum award from other country) Subsection 68(1) Section 71.1 (Prisoners of war) Section 71.3 Section 72 (Exceptional incapacity allowance) Subsection 72(3) Section 75 (Annual adjustment of basic pension) Section 81 (Application made to the Minister) Sections 80 and 81 Section 83 (Definition of "overpayment") Section 84 (Review) Section 85 (Permission of Board required) Section 87 (Inquiries Act) Section 109 (Rights to inspect records, etc.) Section 111 (Definition of “action”)

Section 2 (Construction)

Cross References: Veterans Review and Appeal Board Act, section 3, Interpretation Act, section 12

Stoyek v. Canada (Attorney General), 2017 FC 47 affirmed by Stoyek v. Canada (Attorney General), 2017 FCA 223

This provision implies that any ambiguity in the Act regarding compensation of members of the forces determined to be disabled should be resolved in favour of the claimant, unless other overriding policy considerations apply.

Arial v. Canada (Attorney General), 2010 FC 184

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”.

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).

In Canada (Attorney General) v. MacDonald, 2003 238 FCA 31, 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.

Similarly, 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).

Lebrasseur v. Canada (Attorney General), 2010 FC 98

This interpretation of the terms “arose out of” in subsection 21(2) is well-suited to the Pension Act. Parliament, in its wisdom, has seen it fit to make clear the Pension 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 … service … may be fulfilled.”

Boisvert v. Canada (Attorney General), 2009 FC 735

Section 2 of the Pension Act and section 3 of the Veterans Review and Appeal Board Act, call for a broad and liberal construction and interpretation of the provisions of these two statutes in recognition of what the members of the Forces have done for their country.

Schut v. Canada (Attorney General), (4 April 2000) T-672-99 Muldoon J. (F.C.T.D.)

The applicant had stopped at a bar on the way home from his base, where he had been preparing for a search and rescue mission the next day. He was subsequently involved in a motor vehicle accident. The Federal Court found that the Board had properly considered the relationship of the claimed conditions to service when it wrote that it has been the policy of the Board and its predecessors to apply the broadest approach in applying the provisions of subsection 21(2) of the Pension Act. As long as it can be factually demonstrated that the member was actively engaged in the performance of some form of military service, acting within the scope of the duty assigned, meeting a bona fide military requirement or going about some activity of the service, pension could be awarded under those provisions. The applicant's decision to stop for a drink and drive away at high speed could not be said to be connected to his military service. The Federal Court decision states that section 2 of the Pension Act, in essence, does not require that every occasion be considered as linked to military service. One must not look at an activity in isolation but must appreciate whether that activity was performed within the context of military service.

(8/6/99) Veterans Review and Appeal Board #6692184

To satisfy the applicant's claim to an additional pension for his divorced spouse, the Board found that the phrase “Additional Pension for Spouse” in Schedule 1 of the Pension Act would have to be interpreted so as to provide a pension payment for a non-spouse. “Spouse” would have to mean not only spouse, but also a person who is not a spouse. That did not appear to be a logical conclusion, and even a liberal interpretation of the Act would not support that degree of contradiction.

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Section 3 (Definition)

Interpretation I-23 [1977] 7 Pension Review Board Reports 264

The Board held that the definition of "applicant" is not restricted to someone receiving a disability pension, but includes recipients of all forms of awards. A direction made for the benefit of a deserted wife and child is an award. It follows that they are "applicants" within the meaning of the Act, and therefore have a right to appeal.

The Board held that the definition of "award" includes any form of payment made under the Pension Act.

(23/5/90) Veterans Appeal Board #VE-4693/YFF

The applicant applied under subsection 34(3) for an additional pension for his grandchild, who lived in his home for 20 months, from August 1988 until April 1990. The applicant's spouse had died in July 1988, and a separated daughter moved back home to act as a housekeeper. The child in question was her daughter. Both the Canadian Pension Commission and the Entitlement Board denied the request for the additional pension, because there was no parent-child relationship between the applicant and the child. The Commission and the Entitlement Board both said that under the definition of "child" in subsection 3(1) of the Pension Act, and subsection 34(3), the required parent-child relationship could only be established by a court of law or pursuant to an order of a Provincial Director of Child Welfare. The Board held that that position was a fettering of discretion by the Commission, and that it should examine each case to determine whether a de facto parent-child relationship existed. In this case, however, there was no de facto parent-child relationship. Therefore no additional pension could be awarded.

(22/2/11) Veterans Review and Appeal Board 587688

The applicant had complied with the cohabitation period of one year as required by the definition of “common law partner” in subsection 3(1) of the Pension Act, but had not received additional pension for her common law partner for the period of their separation that lasted about four years. The couple then resumed cohabitation. The applicant argued that the additional pension for her partner should have been paid as soon as they resumed cohabitation on the grounds that a couple should not have to “redo” the cohabitation period of one year after a period of separation.

A person acquires the status of a common law partner, at the relevant time, when living in a certain type of relationship for at least one year. Regarding the loss of that status, the end of the cohabitation terminates it, it does not suspend it. Thus, the cohabitation period of one year needed to start afresh from the moment the couple had resumed cohabitation.

Cross References: Pension Act, sections 35, 36

Cole v. Canada (Attorney General), 2015 FCA 119, reversing Cole v. Canada (Attorney General), 2014 FC 310

Disability is defined in the Pension Act as the “loss or lessening of the power to will and to do any normal mental or physical act”. This definition of disability is important as it is a distinct element that must be proven to establish entitlement to a disability pension and must not be conflated with the claimed condition that the applicant must also establish.

Beauchene v. Canada (Attorney General), 2010 FC 980

The application of the definition of disability under the Act necessarily requires that a standard be set out as to what constitutes normal hearing.

Nelson v. Canada (Attorney General), 2006 FC 225 affirmed by Canada (Attorney General) v. Nelson, 2007 FCA 200

Section 3 of the Pension Act means that an applicant would have a disability if his or her ability to hear was lessened or lost. Section 9.01 (of the Table of Disabilities) on the other hand, only permits a disability to be established if certain levels of hearing loss are established. This is inconsistent with the definition of disability in the Pension Act which provides that an applicant has a disability if his or her ability to hear is lessened.

Gavin v. Canada (Attorney General), (7 May 1999) T-1875-98 McKeown J. (F.C.T.D.)

Even though the applicant had suffered some hearing loss, the loss was not sufficient to establish that he had suffered a disability because the loss was less than that required by the Minister's hearing loss guidelines, which were duly established under section 35 of the Act.

MacNeill v. Canada, (4 August 1998) T-2222-97 Nadon J. (F.C.T.D.)

The claimed condition must be a condition which can be classified as a "disability" resulting from an injury or disease. The word "disability" requires that the condition be one from which the applicant continues to suffer.

(13/3/90) Veterans Appeal Board #VE-3446/1P

Severe bilateral refractive error may be a disability as defined in subsection 3(1) of the Pension Act, even where the condition can be helped with glasses.

[1980] 8 Pension Review Board Reports 141

Impotence resulted from adenocarcinoma of the colon. In fixing the assessment at 20% the Board explored the meaning of the word “disability”. It referred to factors that should be considered in assessing disabilities, including the mental and emotional impact of the physical impairment. Loss of earning power could be a factor in some cases but might not be relevant in others.

[1976] 6 Pension Review Board Reports 59

The applicant developed a mild heart condition during service but it did not arise out of service. Fourteen years after discharge he died of heart disease. The advocate argued that stressful duties and a delay in diagnosis were relevant factors. The Board held that where arteriosclerosis is usually part of the aging process it is a condition not benefited by the Act. The medical evidence did not justify a conclusion that the applicant's service activity contributed to the degenerative process. The Board stated that the arteriosclerotic process is neither a disability nor a disabling condition until such time as there is acceptable clinical evidence indicating the onset of disability from arteriosclerotic change.

[1976] 6 Pension Review Board Reports 64

Loss of teeth on account of the development of dental caries has never been considered to be a pensionable condition, particularly in view of the high standard of dental care in the Armed Forces. Note: Please see section 35 for further cases about dental conditions.

[1976] 5 Pension Review Board Reports 509

The applicant claimed a pension for otitis media. It was apparent from the evidence that the condition had occurred and was associated with the pensioned condition of sinusitis. But, at the time of the pension medical examination, no otitis media was present. The Board held that no pension could be granted, because there was no “demonstrable disability”. It observed, however, that if in the future the ear disability was demonstrated, the claim could be re-opened.

[1976] 6 Pension Review Board Reports 17

Pes cavus, congenital in origin, is not, when there are no symptoms, a disabling condition anymore than is pes planus. Therefore a record of pes cavus, together with a statement that there are no symptoms, is not a record of a “disability or disabling condition” within the meaning of the Pension Act.

Cross References: Pension Act, section 22

Matchee v. Canada (Attorney General), (5 January 1999) T-1489-97 Wetston J. (F.C.T.D.)

The Federal Court determined that in view of the definition of “improper conduct” in the Pension Act and its legislative history, a self-inflicted injury caused in an attempted suicide is not improper conduct, whereas a wounding without a suicide attempt may be improper conduct.

(15/9/94) Veterans Appeal Board #VE-10966/BFF

The applicant was serving in a Special Duty Area. He got drunk and while in the Command Post put his fist through a glass window lacerating his arm and severing nerves and arteries. The Board found that he was not prevented by subsection 22(1) of the Pension Act from being awarded a pension because his actions did not amount to "improper conduct" according to the definition of that term in subsection 3(1). The Board focused on the “wilfulness” of the appellant's actions, appearing to say that since he was drunk he might not have acted wilfully and that he had not been adequately restrained so as to prevent injury.

(04/4/87) Pension Review Board #E-143-42/1P

The applicant was injured while under punishment for an offence. The Board held that nothing indicated that the injury suffered by the appellant was attributable to misconduct in accordance with the definition in subsection 2(1) [now 3(1)] of the Pension Act. To state the contrary would be to suggest that subsection 13(1) [now 22(1)] applies to any situation in which an injury occurs while an appellant is being punished for an offence and that would not be in accord with the applicable legislative provisions.

[1979] VIII(2) Pension Review Board Reports 17

The Board held that wartime service in the United States constituted service in a theatre of actual war within the meaning of the Pension Act.

[1975] 5 Pension Review Board Reports 71

The applicant's knee condition may have been pre-enlistment but was not recorded nor obvious at enlistment. Given that service in Newfoundland is considered service overseas under the Act, even if the condition did pre-exist enlistment, the applicant is entitled to the benefits of paragraph 21(1)(c) of the Act.

Cross References: Pension Act, sections 64-68

(12/4/95) Veterans Appeal Board #VE-12076/1P

Subsection 3(2) cannot be used in combination with 21(1) to obtain a top-up where the veteran does not meet the residency requirements set out in subsection 65(2). But see cases under subsection 65(2) for a decision favourable to Newfoundland veterans who cannot meet the residency requirement.

(08/1/97) Veterans Review and Appeal Board #6376580/RFF

The Department had decided to discontinue additional pension for a former spouse effective February 1992, the date of commencement of a new common-law relationship and then to pay an additional pension for the common-law spouse but not commencing until one year later, February 1993. The advocate argued that, as permitted by subsection 3(3) of the Pension Act, the reason the veteran and former spouse were living apart was hospitalization of the former spouse and that the veteran continued to support the former spouse and did so for the period from February 1992 to February 1993. The Board ruled that the veteran should not be required to return an overpayment for the period from February 1992 to February 1993, when in fact he was entitled to receive an additional pension for the former spouse.

(25/4/88) Veterans Appeal Board #E-13/4P

The appellant sought a widow's pension. The appellant and the late member had separated and subsequently entered into a separation agreement. The advocate argued that the separation agreement was not intended to be a final determination of the rights of the parties and that the separation was caused by the late member's illness and personality change resulting from his disability and therefore, according to subsection 2(3) [now 3(3)], the appellant should be deemed to have been living with the late member at the time of his death. The Board rejected the advocate's argument and found that while, in some cases, subsection 2(3) could permit the requirements of 34(5) [now 47(1)] to be ignored, in this case subsection 2(3) was not satisfied.

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Section 5 (Powers of the Minister) (8/6/99) Veterans Review and Appeal Board #6692184

In the absence of any provision of the Pension Act that authorizes payment of an additional pension for spouse to anyone other than a spouse, except in the special circumstances set out in the Act, the provisions of the Act that authorize the Minister to cancel pensions and payments and to recover overpayments through suspension of future payments permit the Minister to discontinue an additional pension upon divorce and to seek recovery of overpayments in a reasonable and appropriate way in view of all the circumstances.

Interpretation I-23 [1977] 7 Pension Review Board Reports 264

The Board held that subsection 5(1) simply identifies the body which has exclusive jurisdiction to exercise the powers contained in the Act. It does not give the Commission residual powers in addition to what is given elsewhere in the Act.

Cross References: Veterans Review and Appeal Board Act, section 39

For extensive judicial comment on a similar provision, please see case notes under section 39 of the Veterans Review and Appeal Board Act.

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Section 21  (Pensions) Cross References: Veterans Well-being Act, sections 45 and 46.

Cole v. Canada (Attorney General), 2015 FCA 119, reversing Cole v. Canada (Attorney General), 2014 FC 310

Subsection 21(1) of the Pension Act applies in respect of services rendered during war or special duty service. The language in this subsection requires that the injury, disease or death of a serviceman or woman and his or her wartime or special duty military service must be “attributable to” or “incurred during” such military service. This level of connectivity has been referred to as the “insurance principle”, reflecting a desire on the part of Parliament to provide full coverage pension protection to men and women exposed to risks when serving their country during wartime or special duty service. Thus, the phrase “attributable to” contemplates a degree of causal connection between the death, injury or disease and the wartime or special duty service, while the phrase “was incurred during” contemplates only a temporal connection.

King v. Canada, 2001 FCT 535

It cannot be disputed that paragraph 21(2)(a) of the Pension Act is more narrow in scope than paragraph 21(1)(a) thereof. That is clear on the face of the two provisions. Pursuant to paragraph 21(1)(a), any injury or disease incurred during an applicant's military service is pensionable. Pursuant to paragraph 21(2)(a), only those injuries or diseases which arise out of or are directly connected with an applicant's military service are pensionable. Thus, pursuant to paragraph 21(2)(a), not all injuries or diseases which occur during an applicant's military service are pensionable. . . . an applicant's military service must be the primary cause of the injury or the disability and causation must be established.

Interpretation I-40 (19 May, 1989) Veterans Appeal Board

The Board decided that the legislative authority for award of additional pension to children rests in both section 21 and subsection 34(3) of the Pension Act: section 21 provides the authority for the award of additional pension to children in the majority of cases, whereas subsection 34(3) would only be resorted to in unusual or extraordinary circumstances.

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Subsection 21(1)

Hunt v. Canada (Minister of Veterans Affairs), (18 October 1999) A-236-98 (F.C.A.) affirming Hunt v. Canada (Minister of Veterans Affairs), (20 March 1998) T-217-97 Muldoon J. (F.C.T.D.)

The Board was faced with evidence that, while serving in a Special Duty Area, the applicant had been in a hospital with unsanitary features in an area where hepatitis C may have been endemic. But other medical evidence indicated that the condition had been contracted prior to that service. The Federal Court found that it was not patently unreasonable to conclude that the applicant did not demonstrate that he contracted hepatitis C in the Special Duty Area and dismissed the application for judicial review. The applicant must prove the civil standard that on a balance of probabilities, with the bonus of having this evidence put in the best possible light, his disease was contracted while in the service of his country. This civil standard must be read in concert with the entitling provision of section 21 of the Pension Act.

Tonner v. Canada (1995), 94 F.T.R. 314; affirmed (12 June 1996) A-263-95 (F.C.A.)

The Court denied an application for judicial review in a case concerning entitlement for ALS, the cause of which was completely unknown. The Federal Court decision states that it is apparent that each case must be decided on its own merits. The medical evidence for each individual is different and the “combat” circumstances are different. In this case the Court agreed with the Board's decision that it would be pure speculation to conclude that the ALS was the result of service and that, in those circumstances, the Pension Act and the Veterans Appeal Board Act, including the provisions on interpretation and evidence, did not require the Board to award a pension. The Federal Court decision also states that the fact that other ALS claims were allowed would in no way bind the Board.

De Leeuw v. Canada (Attorney General), 2011 FC 237

The word “incurred” in the context of s 21(1)(a) means that the disability must have arisen during the member's military service. The provision requires that the disability be incurred during the member's service, which introduces a temporal requirement. This interpretation is reinforced by the French version of the paragraph where the corresponding phrase states that the disability must have “survenue au cours du service militaire” – meaning that the onset or appearance of the disability must have taken place during the member's service (Robert & Collins, 2nd ed., 2000).

Therefore, the Board correctly applied s 21(1)(a) when it required the applicant to provide evidence of a linkage between his condition and his military service. A causal connection between them must be proved: Lunn v. Veterans Affairs Canada, 2010 FC 1229 at para 70. In light of the evidence showing that the applicant's condition existed before he entered the military and the absence of evidence that it was aggravated during his services, the Court could not conclude that the panel erred in finding that he was not eligible for a pension.

Reed v. Canada (Attorney General), 2007 FC 1237

The Federal Court found that the Board's decision should be set aside. The Board failed to consider whether the applicant's Post-Traumatic Stress Disorder (PTSD) was “incurred during” his military service in the Special Duty area of Cyprus. The Federal Court decision states with regard to subsection 21(1) of the Pension Act:

[40] There is little case law dealing with subsection 21(1) of the Act as opposed to subsection 21(2). In fact, the parties only referred the Court to the decision of Justice Marcel Joyal in Page v. Canada (Veterans Appeal Board) 1994 FCJ No. 1206. Although the main issue before the Court in that case was different than the one at issue in the case at bar, the Court made some general comments which are nonetheless relevant here. The Court in Page construed the terms “incurred during” and “in the course of” as meaning “occurred” or “happened during” the course of service (see, for example, paragraphs 45, 47 and 48). Also, it applied the principle that the Act must be given a liberal and generous interpretation, in finding that the enactment under review (then Vote 58A) was meant to confer on peacekeepers the status of World War II combatants when they serve in designated areas. . . .

[41] In light of Driedger's[9] modern approach to statutory interpretation, which directs that the words of an act be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament, the Court is satisfied that the words “incurred during” in subsection 21(1) are meant to provide for a distinct and alternative criterion of pension eligibility. This criterion focuses on a temporal connection rather than a causal connection to the military service it covers, that is, service during World War I, World War II, the Korean War, or as a member of a Special Force or Special Duty Service.

Tousignant v. Canada (Minister of Veterans Affairs), 2001 FCT 730

The applicant was a veteran of the Dieppe invasion. In a 1997 decision, the review panel refused the applicant a disability pension for a hiatus hernia but recognized his entitlement to a partial disability pension for chronic constipation. That decision was upheld on appeal by the Board's appeal panel. The appeal panel ruled that the hiatus hernia was unrelated to service during the Second World War and noted that although the applicant had complained of nervous tension and chest pains following the landing at Dieppe, the medical examination performed for purpose of his release from the armed forces had proved normal. The hernia was not diagnosed until much later. The Board carefully examined the medical evidence, which suggested it was possible that the applicant had suffered a hiatal hernia during active force service even though it did not appear on any radiological exams at that time. The panel examined the physician's opinion in the context of the other evidence on the file and concluded that it was merely speculative. The Federal Court found that the Board had looked carefully at all the evidence and had not made any errors. The fact that a specialist stated that the condition could “possibly” have existed during active force service did not compel the award of a pension. The panel was permitted to find that it was merely speculative.

Metcalfe v. Canada, (6 January 1999) T-1136-98 Evans J. (F.C.T.D.)

The applicant was a veteran of the Second World War and the Korean War. He had served in the artillery and was exposed to excessive noise. After his discharge, the applicant served on a police force and experienced hearing difficulties. A specialist concluded that there was a strong possibility that his hearing loss was caused by active service in Korea. His claim for a pension in 1976 was denied on the grounds that his hearing loss was not sufficient to cause a disability and that there was insufficient evidence to connect the hearing loss to his military service. Following his retirement from the police force his hearing declined further. Another physician reported that he had a profound loss in both ears, and that previous noise exposure was likely to be the major cause. He made another claim for a pension in 1997 which the Minister denied. The Board concluded that there was insufficient evidence linking the hearing loss to the applicant's active service, because there was no medical evidence of a hearing loss disability for at least 24 years after his military discharge.

The application for judicial review was allowed and the matter sent back to the Board for reconsideration. Although no one could be certain whether a causal link existed between the noise to which the applicant had been exposed while on military service and his deafness, he had produced sufficient credible evidence about the cause of his hearing loss that, if the Board had complied with the directions in section 39 of the Veterans Review and Appeal Board Act, it would have had to uphold his claim.

Silver v. Canada (1996), 112 F.T.R. 292 (F.C.T.D.)

The Federal Court allowed an application for judicial review in a case that involved an assessment of evidence of continuity of complaint following war service. The veteran contended that his back condition was caused by an injury during service on board an aircraft carrier that was later sunk apparently with the loss of the relevant medical records. The Federal Court decision stated that in such a case the Board must either draw reasonable inferences in favour of the applicant or give clear reasons why it does not find them to be reasonable.

Lalonde v. Canada (Veterans Appeal Board), (21 June 1995) T-224-94, Nadon J. (F.C.T.D.)

The Federal Court denied an application for judicial review in a claim for a pension for a back condition. The Board had found that a medical opinion linking the condition to service was not supported by the other medical evidence on the file; that is, there was no evidence of complaint during the relevant period of service and after. The Federal Court found that the Board had conscientiously analysed the evidence and therefore could not be found to have committed an error of law, nor to have had an unreasonable view of the facts.

Page v. The Veterans Appeal Board, (17 August 1994), Joyal, J., T-2253-93 (F.C.T.D.)

The Federal Court was faced with the issue of whether or not Vote 58A of the Appropriations Act and subsection 21(1) of the Pension Act provided pension entitlement for a member on authorized leave outside the Special Duty Area to which he was posted. The soldier was on a 60-hour pass which, according to Canadian Armed Forces policy, was considered duty time. The Court found that the Pension Act and Vote 58A of the Appropriations Act imposed no geographical limit. It did not matter that the applicant was outside the Special Duty Area in which he had been serving. His injuries and the resulting disabilities could still give rise to a pension under subsection 21(1) if other factors, such as the knowledge and approval of the military authorities of his intended course of action, favoured his claim that his disabilities were attributable to his service. The Court emphasized the particular nature of the leave (60-hour pass) during which the relevant injury occurred.

(2/5/00) Veterans Review and Appeal Board #6949902

The Applicant began to smoke during his World War II service. The panel found that smoking could be a habit-forming or an addictive activity in varying measure according to the individual smoker but there is an element of personal choice or volition in choosing to begin smoking and to continue it at any given point. The factors that lead an individual to smoke and to continue to do so until a disease results are complex and therefore any disability that might eventually result from the smoking is the result of a number of factors, including personal choice on the part of the person who has chosen to begin smoking and to continue it. Disabilities that might eventually result from smoking are not therefore attributable to or incurred during service in the same way as other disabilities such as noise-induced hearing loss or skin conditions from sun exposure. In smoking cases, any connection between the service and the disability is contingent on non-service factors, unlike hearing loss cases where it is direct and immediate.

(28/1/00) Veterans Review and Appeal Board #6002522

A member posted to Special Duty Area (SDA) service in Kosovo went outside the Special Duty Area for a brief period of paid rest and recuperation leave. Arrangements were made by the military. During the leave he went to a neighbouring small island. He was authorized or permitted to do so. He rented a motorbike and was killed after losing control of it. His widow claimed a pension. The Board found that she was entitled to a pension under subsection 21(1) of the Pension Act. In making the decision the Board examined the relevant legislation, a Federal Court decision from 1994 with similar circumstances [Page v. The Veterans Appeal Board (17 August 1994), Joyal, J., T-2253-93 (F.C.T.D.)], the Veterans Affairs departmental policy and the evidence.

The Board decided based on the new evidence that the case could not be meaningfully distinguished from the Page decision and that the departmental policy was not sufficiently clear to permit the Board to find that it excluded from subsection 21(1) coverage a person in the late member's circumstances. The Board addressed the issue of the remoteness of the late member's activities from any military control or influence and found that they were no more remote than in the Page decision. The Board concluded by stating that the case is concerned only with a short period of paid leave in an area close to the SDA where the military authorities have provided evidence that they were aware of and had exercised a degree of control over the member's destination and activities.

(20/10/98) Veterans Review and Appeal Board #6251346

The member was assigned to service in a Special Duty Area (Haiti). During that assignment he went to the nearest neighbouring country, the Dominican Republic, for a 96-hour period of paid leave. He had two 48 hour leave passes. His superiors appear to have known about the trip to the Dominican Republic. The transportation to the resort hotel in the Dominican Republic was arranged by the military's welfare office. The member paid for his own hotel accommodation. He was injured on the hotel's premises. Following the leave he returned immediately to the Special Duty Area. The Board awarded a pension under subsection 21(1) of the Pension Act.

(01/5/97) Veterans Review and Appeal Board #6680903/WFF

An Active Force veteran died at age 60 due to an acute myocardial infarction. His widow claimed a pension for hypertension, arteriosclerosis and death due to arteriosclerotic heart disease. The Board stated that hypertension is a sustained elevation of blood pressure. To make the diagnosis, it is important to have a consistent elevation of blood pressure taken on several occasions over a period of several weeks. Consistently elevated blood pressure readings of 140/90 are considered by most authorities to indicate a diagnosis of hypertension. In the absence of evidence of consistent elevated blood pressure readings during World War II service and in the early years after discharge, the Board held that the claimed conditions were not incurred during service but were post-discharge in origin.

(18/12/96) Veterans Review and Appeal Board #6426254/RFF

The widow claimed that the stresses of wartime service and the fact that cigarettes were provided had caused the late veteran's death. The Board ruled that the decision to smoke or not to smoke was a personal one and that the late veteran, in deciding to continue smoking during his Active Force service, was making a personal choice. It was not one imposed upon him by the military. The claimed condition was therefore not attributable to military service.

(28/6/88) Veterans Appeal Board #E-14203-R/3P

The Board held that because Order-in-Council PC 3264 deems deserters never to have served nor to have been enrolled in the Armed Services of Canada, the applicant cannot apply for a disability pension under the Pension Act.

[1976] 6 Pension Review Board Reports 214

The 30-day call-up period under the NRMA is not Active Force service.

[1976] 6 Pension Review Board Reports 64

Loss of teeth on account of the development of dental caries has never been considered to be a pensionable condition, particularly in view of the high standard of dental care in the Armed Forces. The veteran claimed that an attack of trench mouth caused his subsequent loss of teeth, but the Board found that the episode was not significant and that the pre-enlistment condition of tooth decay was not aggravated during service.

[1976] 5 Pension Review Board Reports 509

The veteran claimed a pension for otitis media. It was apparent from the evidence that the condition had occurred and was associated with the pensioned condition of sinusitis. But, at the time of the pension medical examination, no otitis media was present. The Board held that no pension could be granted, because there was no “demonstrable disability”. It observed, however, that if, in the future, the ear disability were demonstrated, the claim could be re-opened.

[1972] 1 Pension Review Board Reports 21

The veteran suffered a back ailment of unknown etiology. The Board ruled in the applicant's favour. It observed that the important question was not what had caused the injury but rather if it had originated during the Active Force service. In this case there was no medical evidence that the condition arose during service but the Board provided the benefit of the doubt to the applicant in the absence of records during his P.O.W. confinement.

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Paragraph 21(1)(b)

(20/2/97) Veterans Review and Appeal Board #6437690/BFF

The late member suffered a head injury during Merchant Navy service. The evidence revealed that the injury left him with post traumatic headaches which, in turn, led to chronic depression and eventually suicide. His remarried widow applied for a pension, and the Board awarded a pension pursuant to paragraph 21(1)(b) of the Pension Act.

[1977] 7 Pension Review Board Reports 230

The pensioner was returning home from a pension medical examination when he was involved in a traffic accident resulting in his death. The Board held that there was no relationship between his pensioned condition and the accident. The Board also held that the fact that the claimant received travel expenses to and from the examination did not give him duty or service status at the time of the accident nor entitle him to a pension under the Act.

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Paragraph 21(1)(c)

De Leeuw v. Canada (Attorney General), 2011 FC 237

Paragraph 21(1)(c) expressly states that a deduction can be made if the disability was “obvious or was recorded on medical examination prior to enlistment” (s 21(1(c)(ii)). The applicant's answer is that the provision may allow a deduction but it does not justify a denial of a pension altogether. But, in this case, the applicant is not eligible for pension. Section 21(1)(c) appears to be directed to persons who are eligible for a pension, but also had a pre-existing condition.

(18/6/93) Veterans Appeal Board #VE-1981-RR/FED.CT2

A Veterans Affairs Medical Advisor had found the claimed condition of osteoarthritis of the hips to be part of a generalized constitutional diathesis. The Board noted that “diathesis” was defined as "a constitution or condition of the body which makes the tissues react in special ways to certain extrinsic stimuli and thus tends to make the person more than usually susceptible to certain diseases." In view of that "predisposition" and a specialist's opinion that sitting for long periods of time in wet conditions could have precipitated the applicant's osteoarthritis, the Board awarded a pension under paragraph 21(1)(c) and 21(1)(a).

[1980] VIII(2) Pension Review Board Reports 24

At his enlistment medical examination, the applicant stated that he had previously suffered from rheumatism. The medical examiner noted no clinical findings. The Entitlement Board found that osteoarthritis of the lumbar spine was pre-enlistment in origin, that it was recorded at enlistment, and that it was aggravated during military service. The Pension Review Board found that the history given by the applicant at enlistment could not constitute a “record” within the meaning of the Pension Act and awarded a pension entire pursuant to the provisions of paragraph 12(1)(c) [now 21(1)(c)].

[1977] 6 Pension Review Board Reports 318

The applicant was enrolled under NRMA in 1941, was discharged and enlisted in the Active Force shortly after. There was no record of varicose veins as a result of the NRMA enrollment medical examination, but the condition was recorded on the examination for Active Force enlistment. The Board held that the two periods of service were separate and that the condition must be treated as having been recorded.

[1975] 5 Pension Review Board Reports 6

The applicant had a pre-enlistment condition of anxiety which was aggravated during the war. Although the condition might have been aggravated in any other walk of life, the condition was neither obvious nor recorded upon enlistment. The Board therefore applied the provisions of paragraph 12(1)(c) [now 21(1)(c)] and held that the condition was pensionable in its entirety.

[1975] 5 Pension Review Board Reports 102

The Board held that a statement made by the veteran at enlistment was not a record within the meaning of subsection 12(7) [now 21(12)] and as the hearing condition was not obvious at enlistment, the condition was pensionable in its entirety under paragraph 12(1)(c) [now 21(1)(c)].

[1975] 5 Pension Review Board Reports 17

The Board found that a history of slight nervousness on enlistment was not a record of recurrent depression under 12(1)(c) [now 21(1)(c].

[1975] 5 Pension Review Board Reports 71

The Board held that a knee condition was neither obvious nor recorded on enlistment. The presumption of fitness was rebutted by diagnosis made within two months of enlistment. However, as the applicant's knee condition was not recorded nor obvious at enlistment, and because service in Newfoundland is considered service overseas under the Act, even if the condition did pre-exist enlistment, the applicant is entitled to the benefits of paragraph 12(1)(c) [now 21(1)(c)] of the Act.

[1975] 5 Pension Review Board Reports 61

The Board indicated that a record of disability made in a report of a Workmen's Compensation Board is a record for the purposes of paragraph 12(1)(c) [now 21(1)(c)]. But a condition of back strain recorded prior to enlistment was held not to be evidence of the claimed condition of lumbar disc disease pursuant to 12(7) [now 21(12)].

[1972] 2 Pension Review Board Reports 73

The applicant had a hammer toe condition not recorded on enlistment, although there was a related scar. The Board held that the condition was not recorded nor obvious at enlistment. It would not have been obvious to an unskilled observer that the scar meant the applicant had a hammer toe condition. Because the condition was not recorded nor obvious on enlistment, and because the applicant served in an actual theatre of war and suffered during service an aggravation of the condition, the Board awarded a full pension under 12(1)(c) [now 21(1)(c)].

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Paragraph 21(1)(d)

Bremner v. Canada (Attorney General), 2006 FC 96

The Board was found to have contravened paragraph 21(1)(d) when it accepted that a disability could not be related to service only because it was “late post-discharge in origin”.

[1976] 6 Pension Review Board Reports 199

Paragraph 12(1)(d) [now 21(1)(d)] cannot create entitlement where, during Active Force service, there was no overt evidence of disability. It can only apply where a disability has existed or where a disability has shown signs of its presence during such service but was not found to be a disabling condition at discharge.

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Paragraph 21(1)(e)

[1985] IX Pension Review Board Reports 58

The Board found that the applicant was entitled to a pension, because he developed the first known manifestations of the condition during treatment by the Department of Veterans Affairs. The Board rejected the Entitlement Board's finding that paragraph 12(1)(e) [now 21(1)(e)] was only applicable to conditions which had initially necessitated the transfer to a DVA facility.

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Paragraph 21(1)(f)

Page v. The Veterans Appeal Board,(17 August 1994), Joyal, J., T-2253-93 (F.C.T.D.)

The Court was faced with the issue of whether or not Vote 58A of the Appropriations Act and subsection 21(1) of the Pension Act provided pension entitlement for a member on authorized leave outside the Special Duty Area to which he was posted. The soldier was on a 60-hour pass which, according to Canadian Armed Forces policy, is considered duty time. The Court found that the Pension Act and Vote 58A of the Appropriations Act imposed no geographical limit. The decision appears to say that for those posted to Special Duty Areas entitlement applies during the posting in all cases except those outlined in 21(1)(f). But in arriving at its decision the Court emphasized the particular nature of the leave (60-hour pass) during which the relevant injury occurred.

[1976] 6 Pension Review Board Reports 88

The applicant spent most of his industrial leave in Canada. He was injured while working in a mine. He claimed he had been sent on such leave, that he was still subject to military control and discipline, and that he should have been considered on duty. It was held that, because of paragraph 12(1)(f) [now 21(1)(f)], no award could be given.

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Subparagraph 21(1)(f)(ii)

(12/10/88) Veterans Appeal Board #E-1206/3P

The applicant had gone absent without leave for three days, when he had his foot run over by a train. The advocate argued that subparagraph 12(1)(f)(ii) [now 21(1)(f)(ii)] envisaged a period of AWOL of more than fleeting duration such that, administratively, pay would in fact be "stopped" and not a brief period where pay was forfeited after the fact.

The Board held, however, that where the period of AWOL was abruptly ended and of short duration, administratively, it would have been impossible to stop pay. Consequently, the forfeiture of pay after the fact is tantamount to a stoppage of pay, and therefore there could be no entitlement.

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The cases interpreting paragraph 21(2)(a) are arranged under the following headings:

  • Service cause
  • Hearing loss
  • Stress
  • Medical negligence
  • Failure to take preventive measures
  • Other

Service cause

Cole v. Canada (Attorney General), 2015 FCA 119, Ryer J.A.

Paragraphs 21(2)(a) and (b) of the Pension Act apply to afflictions arising in peacetime military service in respect of which something less that the full insurance principle applies. The connectivity language in subsection 21(2) of the Pension Act with respect to injury, disease or death of a serviceman or woman and his or her peacetime military service is “arose out of or was directly connected with” such military service. This language was introduced in 1941, reflecting Parliament’s intention to provide less than “full coverage” pension protection in respect of risks to which men and women may be exposed when serving their country in peacetime. Thus it appears that the phrase “arose out of or was directly connected with” requires a higher degree of causal connection between the death, injury or disease and the peacetime military service than is required by the phrase “attributable to or incurred during” in subsection 21(1) of the Pension Act.

Establishing entitlement to a disability pension under paragraph 21(2)(a) of the Pension Act is a four-step process:

  1. Step one requires the applicant to demonstrate that he or she has a claimed condition – an injury or disease, or an aggravation thereof.
  2. Step two requires the applicant to demonstrate that the claimed condition “arose out of or was directly connected with” his or her service as a member of the forces.
  3. Step three requires the applicant to establish that he or she suffers from a disability.
  4. Step four requires the applicant to establish that his or her disability resulted from a military service-related claimed condition.

Disability is defined in the Pension Act as the “loss or lessening of the power to will and to do any normal mental or physical act”. This definition of disability is important as it is a distinct element that must be established in step three and must not be conflated with the claimed condition that the applicant must establish in step one. Both of steps two and four contain causal connection requirements. In step four, the applicant must show a causal connection between the military service-related claimed condition, established in steps one and two, and the applicant’s disability that is established in step three. The applicant must establish a significant causal connection between the claimed condition and his or her military service.

Gauthier J.A. (Concurring Reasons)

The scheme of the Pension Act applies to an injury or disease that can “arise out” of or, be “directly connected to” multiple factors that may or may not all be military service-related. The wording of the provision gives little indication as to the degree to which the factors that are service-related must have been involved in the onset or aggravation of the disease to trigger the payment of any benefit. Hence the purpose of the Act set out in section 2 of the Pension Act and section 3 of the Veterans Review and Appeal Board Act become particularly important. Considering the number of multiple etiology diseases, particularly psychological and emotional disease where there is no reasonable or scientific method of apportioning precisely degrees of causation, it is not possible to read into paragraph 21(2)(a) of the Pension Act that compensation is only available if the service-related factors are the primary cause of the disease.

Insignificant factors cannot be sufficient to trigger the compensation scheme. On the other hand, allowing the mechanism provided by paragraph 21(2)(a), when the service-related factors are significant to be triggered, gives effect to Parliament’s clear intention that this benefits scheme be liberally construed, so as to ensure that this country’s obligation towards members of the forces is met.

Fournier v. Canada (Attorney General), 2006 FCA 19 affirming Fournier v. Canada, 2005 FC 453

The appellant was involved in a motor vehicle accident on a public road, having left her military post in the afternoon in her own vehicle to get something to eat at a fast food restaurant with the intention of returning to work. The evidence showed that it was customary to go out for food from the place of work but the causal connection between the accident and her military service was too remote to allow disability pension entitlement under subsection 21(2) and paragraph 21(3)(f) of the Pension Act.

Factors such as the location where the accident occurred, the nature of the activity being carried on by the applicant at the time, the degree of control exercised by the military over the applicant when the accident occurred and whether she was on duty at the time are all relevant to the determination that the Board must make that the injury arose out of or was connected to the applicant's military service. No one factor is determinative.

The presumption in paragraph 21(3)(f) of the Pension Act arises only after the application of subsection 21(2) has been considered and where there is no evidence to the contrary.

Elliot v. Canada (Attorney General), 2003 FCA 298

Unless an applicant establishes a causal link between an event and his or her service (in this case whether there was a causal link between a lunch at the base and the applicant’s irritable bowel syndrome), there is no reason to deal with the issues arising under paragraph 21(3)(f) of the Pension Act and whether or not eating in the mess hall arose out of or was directly connected with military service.

Frye v. Canada (Attorney General), 2005 FCA 264

A career soldier had been recalled to duty from his annual leave for immediate deployment to fight forest fires. He was killed when he was struck by a tractor trailer. He had left camp without signing out and in breach of his curfew and gone to the beach for a night swim and was heading back to camp when the accident occurred. During his deployment, he was considered to be on duty 24 hours a day. The Federal Court of Appeal decision states:

The Board seems thus to have treated recreational activities and military service as mutually exclusive categories, so that, since the Corporal Berger's death occurred while engaging in recreational activity, it did not arise out of military service. In so reasoning, the Board failed to look at all the circumstances in order to determine whether, while linked to recreational activity, Corporal Berger's death was not also sufficiently causally linked to military service that his death could be said to have arisen out of military service.

Elliot v. Canada (Attorney General), 2003 FCA 298 affirming Elliot v. Canada (Attorney General), 2002 FCT 972

The Board did not err when it found based on the evidence that the claimant's irritable bowel syndrome was not caused by eating contaminated food at a military mess hall.

Greene-Kelly v. Canada (Attorney General), 2018 FC 1188

The RCMP required the applicant to attend a language training course. While travelling to the course, she was in a motor vehicle accident. In view of the Federal Court decision in Fournier v. Canada (Attorney General), 2005 FC 453, the Board determined that the applicant’s claimed condition of chronic myofascial pain syndrome did not arise out of, nor was it directly connected with, her RCMP service because she:

  • was not on duty;
  • was in a private motor vehicle;
  • chose the route to get to her class;
  • was not under command of the RCMP at the time of the accident;
  • was not performing any work associated with the RCMP at the time of the accident; and
  • was outside of the site of the French language course and was outside of her normal work location.

The Board identified the correct legal test by its reliance on Fournier. Its reliance upon Fournier shows that it interpreted paragraph 21(2) (a) of the Pension Act correctly.

Sanders v. Canada (Attorney General), 2015 FC 556

In order to be entitled to a pension, a claimant has to establish that the requirements set out in paragraph 21(2)(a) of the Pension Act are met. As per these requirements, a claimant has to present evidence to establish on a balance of probabilities that his or her condition arose out of or was directly connected with his military service; he or she has to establish causal linkage.

Leroux v. Canada (Attorney General), 2012 FC 869

The burden of proof is on the applicant. The case law of the Federal Court has established that to meet his burden, the applicant was to show that the military service was the main cause of his injury or disease and he was to establish this causal link.

Hall v. Canada (Attorney General), 2011 FC 1431

In my view, when the Federal Court of Appeal interpreted paragraph 21(2)(b) of the Pension Act in its decision in Canada (Attorney General) v. Frye, 2005 FCA 264, it was clear that a direct or immediate causal connection between an injury or disease and military service was not required in order to determine whether a condition “arose out of” military service. This, in my view, sets aside the “primary cause” test.

McLean v. Canada (Attorney General), 2011 FC 1047

According to paragraph 21(2)(a) of the Pension Act, an applicant must show that service was the “primary cause” of the injury or the disability and must establish causation. In determining whether causation has been established, decision-makers are required to consider the presumptions found in subsection 21(3) of the Act, as well as section 2 of the Act and section 3 of the VRAB Act which call for a broad and liberal construction and interpretation of the provisions of the two statutes.

There was no error in the Board's conclusion that the applicant's knee injury in 1976 was not service-related. The applicant was not on work property when his injury occurred; nor was he actually in the act of returning from work at the time. He stopped to pick something off the ground as he arrived home. The Board reasonably concluded that he was “clearly within the sphere of personal activity” when the injury occurred.

Jarvis v. Canada (Attorney General), 2011 FC 944

The fact that an application is made under the CFMVRC Act rather than the Pension Act has little effect on a judicial review. This is because, whether the application is for a pension or for a disability award, the applicable provisions of the VRAB Act (specifically s. 39) are equally applicable. Moreover the statutory requirement that the injury or disease be a consequence of or aggravated by the military service is the same under both pieces of legislation. As a result, although most of the jurisprudence relates to matters that were commenced under the Pension Act, it is instructive.

Lunn v. Canada (Veterans Affairs), 2010 FC 1229

When it comes to paragraph 21(2)(a) of the Act, as Justice de Montigny points out in Boisvert v. Canada, 2009 FC 735, the member of the Forces who suffered an injury or disease in peace time must establish that military service was the “primary cause” of the injury or the disability and must establish causation. In Bernier v. Canada (Attorney General), 2003 FCT 14, Justice Blais observed that, for the plaintiff to be entitled to a pension, two conditions must be met: first, the veteran's condition must be pensionable, i.e., a disability resulting from injury or disease; and, second, the original condition must arise from, or be aggravated by, the veteran's military service.

The relevant provisions of the Act do not create a pension scheme based upon membership in the Canadian Forces. The legislation requires a causal connection between the injury and the performance of military service. This means that the Board is required by Parliament to consider the circumstances of the injury and to assess the strength of the causal connection between the injury and the Applicant's military services.

Lebrasseur v. Canada (Attorney General), 2010 FC 98

Pursuant to paragraph 21(2)(a) of the Pension Act, when a member of the RCMP “suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with [his] service, a pension shall, on application, be awarded to or in respect of the member.”

The terms “arose out of” are understood as not requiring a direct causal link. In a case turning on the interpretation of a regulation providing insurance coverage for injuries arising “out of” the use of a motor vehicle, the Supreme Court has cautioned against “a technical construction that defeats the object and insuring intent of the legislation providing coverage.” (Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405 at par. 17. The words “arose out of” therefore only require “some nexus or causal relationship (not necessarily a direct or proximate causal relationship)”.

This interpretation of the terms “arose out of” is well-suited to the Pension Act. Parliament, in its wisdom, has seen it fit to make clear the Pension 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 … service … may be fulfilled.”

Zielke v. Canada (Attorney General), 2009 FC 1183

The applicant suffered a left shoulder injury while walking to his residence. Whether the applicant was on-duty at the time of this injury is a crucial factual finding in the decision under review. The Board reviewed evidence showing the applicant was off-duty when he fell, such as two memoranda from 1980, one stating the applicant fell while returning home “from duty” and the other stating the applicant suffered a fall “at his residence”. Although Sections 3 and 39 of the VRAB Act shift the balance in favour of pension applicants due to the moral debt that Canada owes to them, the Court in Lenzen v. Canada (Attorney General), 2008 FC 520 held the provisions have been interpreted as obliging applicants to adduce sufficient probative evidence to establish a causal link between the injury and his or her period of service (Lenzen at para. 38). On the facts of this case, the Panel reasonably concluded the applicant had not done so.

Murray v. Canada (Attorney General), 2009 FC 884

The applicant stubbed his toe on a bed frame in the RCMP dormitory. Earlier in the day, during a training exercise, the applicant was struck and suffered a nosebleed. His nose began bleeding again after lights out in the dormitory and the applicant stubbed his toe while running to the restroom in the dark. X-rays of the toe did not show any fracture or abnormality. He completed an injury statement form indicating that the accident occurred off-duty and that he had fully recovered from the injury, and another form indicating that his injury was of a trivial nature and unlikely to cause any permanent ill-effects. 32 years later, the applicant submitted a disability claim for degenerative arthritis in his toe. His claim was denied on the basis that the applicant injured his toe while off-duty and that full recovery had been indicated. The decision was affirmed by the Board. While the Board found that the applicant's condition was most likely caused by the injury, it concluded that the injury had not been sustained as a result of or in connection with the applicant's RCMP service because it was the sort of accident that could happen to anyone at anytime and although the applicant was on call, he was not in uniform at the time of the accident.

The Federal Court allowed the judicial review application. It was reasonably open to the Board to find that the stubbing of the toe was too remote from the nosebleed, i.e. the nosebleed did not cause the stubbing of the toe. The stubbing was caused by Mr. Murray's failure to take adequate care in going to the washroom. However, the Board did not provide sufficient reasons to explain why it did not consider there was a causal connection, nor did it discuss alleged factors which made the RCMP dormitory materially different from the ordinary place where the applicant would sleep.

If the Board had provided sufficient reasons for the first two issues, then the Court would not have any question as to whether the applicant was accorded the benefit of the doubt as required by the legislation. Without sufficient reasons, the Court was left in doubt with respect to this issue.

Boisvert v. Canada (Attorney General), 2009 FC 735

Under the terms of paragraph 21(2)(a) of the Pension Act, the applicant first has to establish on a balance of probabilities that his condition constitutes a disability.

As already noted by Justice Nadon, then of the Federal Court, in King v. Canada (Veterans Review and Appeal Board), 2001 FCT 535, paragraph 21(2)(a) is more narrow in scope than paragraph 21(1)(a). While the latter refers to an injury or disease “that was attributable to or was incurred during such military service”, paragraph 21(2)(a) refers instead to an injury or disease “that arose out of or was directly connected with such military service”. In other words, the member of the Forces who suffered an injury or disease in peace time must establish that military service was the “primary cause” of the injury or the disability and must establish causation. See also: Leclerc v. Canada (Attorney General), [1996] F.C.J. No. 1425, at paragraphs 18-21.

Under the terms of paragraph 21(2)(a), the applicant must establish, on the standard of proof applicable in civil matters (a balance of probabilities), that he or she suffers from a disability and that this disability arose out of or was directly connected with his or her military service. It is the member who must prove causation between the alleged incident and the condition cited.

Comeau v. Canada (Attorney General), 2005 FC 1648

The applicant served during peacetime. He was later diagnosed with cardiomyopathy. He applied for a disability pension. He argued that the condition was caused or aggravated by service because the military supplied cigarettes at a very low price, he was often subjected to high levels of stress, the navy provided daily rations of rum, he had no family history of cardiomyopathy, and he was not informed of critical health information upon release from the military. His physician's report speculated that, if his condition began during his service, then some aggravation of it due to service was likely given his present health. The Board's appeal panel held that his condition arose during service but was not caused by it. He applied for a judicial review. The application was allowed and the matter was referred to a different appeal panel for re-hearing.

The second appeal panel found that the medical reports relied upon by the applicant were inconclusive as to the date of the onset of his cardiomyopathy. The physician opined that the evidence did not prove the onset of cardiomyopathy in 1971, but rather was "suggestive of this possibility". As such, this evidence was not so strong as to raise a reasonable doubt about whether there was a causal connection between the medical condition and the military service. The Board had therefore not committed a reviewable error.

Matusiak v. Canada (Attorney General), 2005 FC 198

The Board's decision not to award pension entitlement was set aside for the following reasons: The wording of ss. 21(2)(a) of the Pension Act implies that the broader standard of "arising out of" is applicable. That standard requires only a causal connection, not a proximate relationship. In this case there were indeed a myriad of background events to the Applicant's developing depression, and they clearly included his work situation. Both administrative interactions with one's employer and operational decisions are part of that work situation, and in the Applicant's case both of these were found to have been improperly conducted in a manner that was detrimental to him.

Bradley v. Canada (Attorney General), 2004 FC 996

The claimant, on a training voyage, fell in the shower and injured his lower back. There was no mention in the service medical records of any neck or upper back pain. He later applied for a disability pension for a cervical spine condition. The Board concluded that the claimant's activities at the time of his fall were personal ones, rather than coming within the realm of professional or occupational activity related to military service. It also found no credible evidence that the fall in the shower had caused an injury to the cervical spine. The claimant argued that the Board had not followed section 39 of the Veterans Review and Appeal Board Act, which required it to resolve any doubt in his favour, and had failed to observe procedural fairness by relying on portions of the medical evidence, while ignoring others.

The Federal Court dismissed the claimant's application. The Board did not breach section 39 of the Veterans Review and Appeal Board Act. Only submissions and assertions supported by credible evidence had to be accepted. The Board found much of the evidence to not be credible and provided its reasons for rejecting the medical evidence. It was open to the Board to prefer the objective medical evidence from the time of the applicant's accident to that of the opinions given by several doctors years later, especially in light of the fact that the later opinions were based on the applicant's version of the accident which differed from the medical reports at the time in that he claimed to have injured his neck in addition to his back.

Bourgeois v. Canada (Attorney General), (23 May 2003) T-86-02 Gauthier J.

The applicant had been involved in an off-duty fight while stationed in Germany. He claimed for major depression and another personality disorder, which he appeared to have had since childhood. His claim at the entitlement appeal level was based largely on the argument that because he had been injured while posted to Germany, and he would not have been there but for his military posting, the injury arose out of or was directly connected with his service. The appeal panel noted that, unlike members of the forces who serve in time of war, members who serve in peacetime are not considered to be on duty 24 hours a day, seven days a week. To be eligible for a pension, the latter should establish that the claimed disability results directly from an event or factor linked to service.

Madame Justice Gauthier dismissed the application for judicial review. She stated that in view of the prevailing jurisprudence to the effect that, notwithstanding the duty to favourably interpret the circumstances and the evidence as foreseen in section 39 of the Veterans Review and Appeal Board Act, the applicant was nevertheless obliged to produce evidence establishing a causal link between the aggravation he claims and his military service. The Board cannot presume such a link to exist.

Kozak v. Canada (Attorney General), 2002 FCT 169

To the extent that paragraph 21(2)(a) refers to an aggravation of an injury or disease, that paragraph contemplates a pre-existing injury that was not service-related, but which is aggravated through military service. A pension compensating for a service-related aggravation of an injury should only compensate for the portion of the end result that is related to military service.

Schut v. Canada Attorney General, (4 April 2000) T-672-99 Muldoon J. (F.C.T.D.)

The applicant had stopped at a bar on the way home from his base where he had been preparing for a search and rescue mission the next day. He was subsequently involved in a motor vehicle accident. The decision of the Court states the Pension Act does not require that every occasion be considered as linked to military service. The Board had stated that one must not look at an activity in isolation but must appreciate whether that activity was performed within the context of military service. As long as it can be factually demonstrated that the member was actively engaged in the performance of some form of military service, acting within the scope of the duty assigned, meeting a bona fide military requirement, or going about some activity of the service, pension could be awarded under these provisions. The Federal Court decision held that the Board had not erred when it found the relevant injuries did not arise out of and were not directly connected with the service as would be required under subsection 21(2).

McTague v. Canada (Attorney General), [2000] 1 F.C. 647

The Board had denied a pension for injuries that had occurred during a meal break. The applicant had left the base and gone of his own volition to a restaurant for a meal for which he was reimbursed by the forces. In returning to the base, he was hit by a car while crossing the street. The application for judicial review was dismissed. The decision states that the Pension Act does not provide a pension to members of the armed forces simply because they are injured while they are in the armed forces. There must be some causal connection between the injury and the performance of military service. The phrase "directly connected" in subsection 21(2) of the Act requires the Board to consider the strength of the causal connection between the injury and the applicant's military service.

Note: for another “meal break” case see (29/9/79) Pension Review Board E-4725, annotated under paragraph 21(3)(f).

Bradley v. Canada (Attorney General), (27 January 1999) T-157-98 Blais J. (F.C.T.D.)

The Federal Court ordered the Board to rehear a case involving a fall in a shower on board a forces ship. The Court found that the Board's decision had focussed too narrowly on the question of whether or not the applicant had been “on duty” at the time of the relevant incident.

Cummings v. Canada (Attorney General), (29 September 1998) T-1758-97 Hugessen J. (F.C.T.D.)

The Federal Court ordered the Board to rehear a case involving an off-duty sexual assault incident. That incident had taken place in accommodations in which the applicant had been ordered to stay while taking part in a military tattoo. The Federal Court decision indicated that there were factors other than duty status that had not been properly weighed and that could bring the case within the ambit of subsection 21(2) of the Pension Act.

MacNeill v. Canada (4 August 1998) T-2222-97 Nadon J. (F.C.T.D.)

The Federal Court advised that two conditions must be met before the applicant can be said to be entitled to a pension under subsection 21(2). First, the applicant's condition must be pensionable. In that regard, it must be a condition which can be classified as a "disability" resulting from an injury or disease. The word "disability" requires that the condition be one from which the applicant continues to suffer. Second, the original condition must arise directly from the applicant's military service. The applicant's military service must be the primary cause for the disability. However, the Act also provides that a pension may be awarded if the disability is aggravated by the applicant's military service. In either case, causation must be established and, in absence of evidence to the contrary, causation may be presumed if the injury was incurred during the course of the applicant's service. This presumption operates as a result of subsection 21(3) of the Act.

Hall v. Canada (Attorney General), (22 June 1998) T-2267-97 Reed J. (F.C.T.D.) affirmed by Hall v. Canada (Attorney General), (19 November 1999) A-539-98 (F.C.A.)

While the applicant correctly asserts that uncontradicted evidence by him should be accepted unless a lack of credibility finding is made, and that every reasonable inference should be drawn and any reasonable doubt resolved in his favour, he still has the obligation to demonstrate that the medical difficulty from which he now suffers arose out of or in connection with his military service; that is, the causal linkage must be established.

Ewing v. Veterans Review and Appeal Board Canada, (15 October, 1997) T-511-96 Gibson J. (F.C.T.D.)

The Court found that the Board had cited the proper test to determine whether the applicant is entitled to be awarded a pension under paragraph 21(2)(a) of the Act, but then went on to ignore that test and determined against the applicant on the basis that he was not “on duty” at the time of the accident that resulted in his injuries. Whether or not he was on duty is simply not the test. The test is whether or not the applicant's injuries leading to disability “arose out of or were directly connected with . . . military service in peace time.”

Ramsay v. Veterans Appeal Board, (14 March 1989) A-494-88 (F.C.A.)

In this case, the Federal Court did not find that the Board had committed a reviewable error. The reasons for judgment are very brief, but the issue appeared to be the use of the word “caused” to describe the 21(2) entitlement requirement. The Board had stated in its decision that it saw no difference between an injury or disease caused by service and one which arose out of or was directly connected with the service.

Gillis v. The Pension Review Board, (6 November, 1980), Heald, J., A-419-80 (F.C.A.)

The Federal Court of Appeal agreed with the Pension Review Board that an applicant, who slipped and put his arm through his barracks window while not on duty, was not entitled to a pension. The Board had noted in its decision that the injury was not the result of the exigencies of military service.

(23/7/03) Veterans Review and Appeal Board 570588

The evidence before the panel could not reasonably support the inference that Hepatitis C arose out of, or was directly connected to, the RCMP service, nor could it be directly attributed to negligence in the provision of medical care by personnel under the control of the RCMP. The panel was therefore unable to conclude that the applicant was entitled to a pension for Hepatitis C under subsection 32(1) of the Royal Canadian Mounted Police Superannuation Act and subsection 21(2) of the Pension Act.

(3/10/02) Veterans Review and Appeal Board 400643

Simply because a member is granted permission to leave a military base does not mean that subsequent events, particularly those that happen off-base and in or on a private motor vehicle, arose out of or were directly connected with military service.

(05/9/02) Veterans Review and Appeal Board 470005

The appellant was returning to his ship, which was in dry-dock. There was freezing rain at the time. He went up the gang-plank and slipped and fell to the deck below. The Board ruled that his injuries were not pensionable. It found that the fall and any resulting disability did not arise out of the Appellant's military service as he had been drinking and did not exercise due care. More specifically, the available evidence makes it clear that the weather, the appellant's inebriation, his repeated refusal of assistance to board the ship and his lack of care in failing to ensure his footing was secure on an icy surface were the factors which caused his accidental fall.

(25/7/02) Veterans Review and Appeal Board 398359

The Advocate submitted on the appellant's behalf that the claimed condition is directly connected to military service for the following reasons: he was served alcohol to excess in a military establishment while he was a member of the military; and the military police failed to stop him from leaving the base in an intoxicated state, and therefore failed to ensure his safety. The Board held that he was acting under his own volition and the evidence did not establish that the military police had caused his injuries.

(26/6/02) Veterans Review and Appeal Board 344728

Injuries from a fight on a military base in Germany were found not to be pensionable under paragraph 21(3)(f) and subsection 21(2) of the Pension Act.

(31/1/02) Veterans Review and Appeal Board 330434

The applicant, while serving in Germany, on leaving an area of the base where he had gone after his evening meal and having consumed some alcohol, unfortunately stuck his hand through a closing, swinging, glass-centred door. The fact that an injury occurred in, or around facilities provided by the military does not mean that the disability has arisen out of or was directly connected to military service.

Looking at the circumstances of the injury, there is no evidence that the applicant was performing a task or service relating to his military duties at that time. He was clearly not in the course of an undertaking in the military, or involved in training when the injury arose. Nor was he acting under any military order, nor was he required to be in the particular place where the injury occurred as a result of any coercion of command from the military. He had been socializing and relaxing on his own time. He was simply leaving the premises where he had been socializing when the injury occurred. There is no evidence to establish that the door itself was a hazard. The evidence indicates that he was accidentally injured while in the course of an activity which was personal in nature.

(26/6/01) Veterans Review and Appeal Board 66839138786

The applicant, while serving Germany, finished his evening meal and returned to his barracks. He then went to the canteen where he consumed some alcohol. On leaving the wet canteen he pushed against a glass door. The glass shattered and he injured his wrist. To the best of his recollection, he had not been impaired at the time of the accident. The panel stated that the mere fact that the applicant was in Germany and serving with Canadian Forces does not mean that all his activities were service related. In this case, the applicant was on his own, having made a decision to go for a drink and, after that drink, had an accident when leaving the facility where the drink was consumed. That was not in any way related to military duties nor is it attributable to service, but rather to an unfortunate incident that could have occurred anywhere, either in Canada or in some other location where the Canadian Forces were serving. An individual in peace time service is not on duty 24 hours a day.

(23/9/97) Veterans Review and Appeal Board #6664243/WFF

The applicant volunteered by phone for a search and rescue mission and his offer was accepted. He went to his base and in the events that followed he was injured in a car accident. He claimed a pension on the grounds that once his offer to volunteer was accepted he was on duty and should therefore receive a pension. The Board held that while the applicant believed he was on duty there was nevertheless a requirement for an objective finding in that regard. The Board found that he had not been on duty but only “warned for duty”, that is, advised of a future duty and that the accident had no relationship to military service.

(20/10/97) Veterans Review and Appeal Board #6831171/WFF

The appellant received a call at home telling him to report for duty. While still at home preparing to go to his place of work, he injured himself. The Board held that subsection 21(2) of the Pension Act does not normally apply to injuries occurring while the member is preparing to report to his or her normal place of work, even outside normal working hours.

(15/6/92) Veterans Appeal Board #PE-14065/1P

The appellant suffered severe chest pains while driving a truck on duty in 1972. The attack, diagnosed as an acute myocardial infarction, had been preceded by chest pain for two months. The Board ruled that the disease, which is a "genetic lifestyle problem", was antecedent to the infarction in 1972. It observed that the manifestation of a condition while on duty does not, in itself, qualify a serviceman for pension under subsection 21(2) of the Pension Act.

(07/2/90) Veterans Appeal Board #E-3137/2P

The appellant's work station was a radar station situated two miles from the military base. The appellant hitched a ride to the station in a private vehicle, which was then involved in an accident. The Board ruled against the appellant's claim, stating that it had long been held that injury or disease incurred during Regular Force service travel to or from the place where service duties are performed, prior to the commencement of such duties or after the termination thereof, is not pensionable pursuant to the provisions of 21(2), unless other factors relate it to service.

(28/11/89) Veterans Appeal Board #VE-3429/2P

The Board held that the appellant had a duty in keeping with the Queen's Regulations and Orders to intervene in a fight in a foreign port between subordinates. The appellant was not technically "on duty", but the Board found that he the injury he sustained was covered by subsection 21(2). Article 5.01(c) of the Queen's Regulations and Orders states that a non-commissioned member shall “promote the welfare, efficiency and good discipline of all who are subordinate to the member.”

(16/7/86) Pension Review Board #E-13436/1P

The provisions of subsection 12(3) [now 21(3)] do not create an insurance principle as found in subsection 12(1) [now 21(1)]. Subsection 12(3) was intended to be an aid to in determining service connection, and not an exception to the principles set out in subsection 12(2) [now 21(2)]. Paragraph 12(3)(f) [now 21(3)(f)] is intended to apply to activities which are in furtherance of military duties or obligations. . . .the member must be able to establish that he suffered a disability in the course of these activities.

[1978] VIII(1) Pension Review Board Reports 70

The applicant finished his work on his ship and left for home in his car. On the way, he was injured in an accident. He claimed he was still on duty because his leave was subject to a one hour recall. The Board reiterated its view that travel between home and place of duty is prima facie not related to service.

[1977] 6 Pension Review Board Reports 449

The Regular Force member had finished work and was leaving the base in a vehicle driven by a friend. He was injured in an accident while still on the base. The Board held that the fact he was still on military property did not give him duty status.

[1976] 5 Pension Review Board Reports 437

The appellant, stationed at Petawawa, was part of a group assigned to an Armed Forces Day parade in Ottawa. The group was billeted in tents and confined in an area adjoining the tents until they received further instructions. At a baseball game in an adjacent field, one of the players let go of his bat as he swung at the ball. The bat struck the appellant and fractured his wrist. The Board held that the appellant had been on temporary duty away from his normal place of duty. He was the innocent victim of a freak accident not of his own doing and was confined to a restricted area not of his own choosing. Therefore, it could be inferred that the disability arose out of his military service.

[1975] 5 Pension Review Board Reports 65

The appellant was on military manoeuvres but was off-shift and was walking from his tent to the mess hall when he sustained a knee injury. The Board found that the appellant was off-duty and not on 24-hour duty, as claimed by the advocate, and so his claim under 12(2) and 12(3)(f) [now 21(2) and 21(3)(f)] failed.

[1975] 4 Pension Review Board Reports 312

The appellant had been compelled to sleep in barracks where a sleepwalking incident led to a back injury. The Board did not agree that all involuntary injuries which took place in the barracks arose out of or were directly connected with service within the meaning of 12(2) [now 21(2)]. The Board noted that such incidents as sleepwalking, suffering a stroke, etc. can occur anywhere. The fact that a member of the Forces is required to sleep in any particular room is immaterial.

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Hearing Loss

Lunn v. Canada (Veterans Affairs), 2010 FC 1229

The Board denied a claim for hearing loss from peace time service. The appellant had claimed his hearing was damaged in 1981 by artillery fire. Audiograms during his service and in 1994, as part of his medical exam for release, indicated that the appellant had hearing within the normal range. Later audiograms in 2008 and 2009, some years following the appellant's discharge, met the criteria for disabling hearing loss under the Veterans Affairs Canada hearing loss policy. But the policy also indicated that the later disability could not be causally related to the service in view of the normal hearing at discharge. The Federal Court dismissed the judicial review application. The appellant failed to show causation. With regard to the hearing loss, it was not unreasonable for the Board to rely on the earlier in-service and release audiograms because there was no evidence that they were inaccurate.

Beauchene v. Canada (Attorney General), 2010 FC 980

At enlistment, and during his 26 years of Regular Force service, the applicant received audiograms to assess his hearing. The discharge audiogram showed diminished hearing. Following his discharge, the applicant noticed ongoing hearing loss and underwent additional audiograms which demonstrated increasing hearing loss. He was eventually diagnosed with mild to moderate bilateral sensorineural hearing loss. Veterans Affairs Canada awarded a one-fifth pension under the Pension Act and the VAC hearing loss policy. The Board confirmed the entitlement and maintained the one-fifth pension. The applicant applied to the Federal Court for a judicial review. He submitted that the VAC hearing loss policy contravenes the Pension Act. He also submitted that the Board had erred in considering the medical evidence and the VAC policy. The court decided that the policy was not contrary to the Act. The application of the definition of disability under the Act necessarily requires that a standard be set out as to what constitutes normal hearing. It also decided that the Board had erred in not analysing in light of the VAC policy a letter from an otolaryngologist who had examined the applicant. The case was therefore remitted to the Board for a redetermination.

Dunn v. Canada (Attorney General), 2007 FC 492

The applicant suggested that audiograms performed in 2000 and used to deny him a pension did not conform to the Department's own guidelines on Minimum Standards for Information on Audiograms, published in a 1999 memorandum. That memorandum stipulates that audiograms should measure hearing at frequencies from 500 to 8000 hertz in both ears. They should also be performed by a clinical or registered audiologist and include an assessment by the examiner as to the reliability of the tests. The Federal Court found that the Board was entitled to consider the tests taken in 2000 and assign them whatever weight it felt they deserved. The memorandum cited by the applicant provides that tests that do not meet the standards set out in it can still be considered.

Grant v. Canada (Attorney General), 2006 FC 1456

A tribunal decision denying a claim for tinnitus was returned to the Board by the Federal Court. The Court found that the Board had not adequately explained why it did not find credible the evidence presented to support the causal link between the military service and the diagnosis of tinnitus later in life.

Nelson v. Canada (Attorney General), 2006 FC 225 affirmed by Canada (Attorney General) v. Nelson, 2007 FCA 200

Section 3 of the Pension Act means that an applicant would have a disability if his or her ability to hear was lessened or lost. Section 9.01 (of the Table of Disabilities) on the other hand, only permits a disability to be established if certain levels of hearing loss are established. This is inconsistent with the definition of disability in the Pension Act which provides that an applicant has a disability if his or her ability to hear is lessened.

Currie v. Canada (Attorney General), 2005 FC 1512

The applicant claimed a disability pension for tinnitus from noise exposure during Regular Force service between 1948 and 1973. The diagnosis of tinnitus was not made until some 30 years after his service had ended. The claim was supported by a brief letter from a family physician. The Federal Court judicial review decision found that the Board did not err in rejecting or giving little weight to the medical evidence. Although based on the physician's experience, the letter was nevertheless non-specific medical evidence. Similarly a Tinnitus Report presented as evidence to the Board spoke only in generalities and did not fulfill the requirement for a credible opinion specific to the case at hand.

Gavin v. Canada (Attorney General), (7 May 1999) T-1875-98 McKeown J. (F.C.T.D.)

The Federal Court dismissed an application for judicial review in a hearing loss case. It found that even though the applicant had suffered some hearing loss, the loss was not sufficient to establish that he had suffered a disability, because the loss was less than that required by the Minister's hearing loss guidelines established under section 35 of the Act.

(17/12/03) Veterans Review and Appeal Board 676670

The claimant argued that the audiogram results should be rounded up so that he would then meet the required level of hearing loss for pension to be awarded. The Board's decision stated that it had not been presented with any evidence or argument that would justify the practice of rounding up. Audiograms results may be rounded up in some assessment cases to establish a level of disability once the entitlement has been established according to the Table of Disabilities and Guidelines passed under section 35 of the Pension Act. It is not the practice of the Board to round up for the purpose of establishing entitlement.

(15/5/03) Veterans Review and Appeal Board 541576

The Board held that, although the claimant had suffered some degree of hearing loss during his service, it had not been presented with any evidence or arguments that establish that the Canadian Pension Commission committed an error in the matter in which it applied the Commission's hearing loss policy. The Board had not been provided with any new evidence that would permit it to find that the Appellant met the requirements of the Table of Disabilities hearing loss provisions, that established that an exception should be made in the claimant's case to the normal requirements for a pension for hearing loss, or that could reasonably persuade the Board that the current hearing loss provisions of the Table are unfair, unreasonable or ultra vires the Pension Act.

(8/11/99) Veterans Review and Appeal Board #6881136

The Advocate suggested that the Applicant's hearing loss disability could have been caused in whole or in part by his exposure to aircraft engines during his Regular Force service. He also argued that two in-service audiograms should not be relied upon because of the information contained in an internal Departmental memorandum from the Acting Director Pension Services and Operational Services, Veterans Affairs Canada, dated 11 June 1999, concerning minimum standards for information on audiograms.

The Panel noted that the present practice of the Veterans Review and Appeal Board is to follow the conditions for entitlement set out in the Veterans Affairs Canada Table of Disabilities, Chapter 9, entitled "Ears and Hearing" established by the Minister pursuant to section 35 of the Pension Act. That policy is quite specific. Unless at the time of a release audiogram there are decibel losses of sufficient severity to average 25 decibels in the four low frequencies of 500, 1000, 2000 and 3000, or a bilateral decibel loss of 50 in the 4000 frequency level, a disability is not considered to exist on release. The policy followed by the Board is also that any post-service increase in decibel losses recorded on audiograms taken after release and presented to Entitlement Panels would be due to post-service factors and therefore not pensionable. Even though some individuals may have been exposed to significant noise, this does not necessarily mean that the same degree of noise exposure will affect all persons equally. The same degree of noise exposure can affect different people in entirely different ways. The two audiograms conducted near the end of the Applicant's Regular Force service did not disclose a sufficient decibel loss to constitute a disability. 22 years later, an audiogram in 1986 did disclose a high tone decibel loss of sufficient severity to constitute a disability in accordance with the present policy.

The Panel stated that it could not accept the submission of the Advocate that unless all of the desired features listed in the departmental memorandum are actually contained in an audiogram, the audiogram must immediately be discounted. The intent of the memorandum was only to ensure in future that, wherever possible, a number of items would be checked to improve the reliability of future audiometric testing. There is no indication that, simply because all of the suggested standards were not followed on earlier audiograms on file before the date of the memorandum, such earlier audiograms should be rejected automatically.

There was no indication that the in-service audiograms were in any way inaccurate or not performed in accordance with then existing standards. Since there was no disability on release, the Panel concluded that the deterioration that occurred in the Applicant's hearing post-discharge was due to post-service reasons, and no pension could be granted.

(22/11/96)Veterans Review and Appeal Board #VE11976RR/YFF

The Board refused to award a pension for hearing loss. It stated that the Board has never adopted as part of its policy the "cumulative effect theory". Rather, it has been a longstanding policy of the Board that, if an audiogram shows no assessable hearing loss at discharge, then subsequent loss cannot be pensionable. This is based on the medical premise, widely accepted across the country, that hearing loss caused by noise does not continue to progress after removal from the source of the noise.

(22/2/90) Veterans Appeal Board #E-3171/2P

The appellant had worked as a supply technician which carries a Group IV noise-rating. He had been working near jet aircraft and exhibited a high tone hearing loss at age 20. There were no other factors that might explain the condition. The Board awarded full pension.

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Stress

Sonier v. Canada (Attorney General), 2007 FC 1278

The Federal Court found that the Board did not commit a reviewable error when it weighed a psychological opinion in light of the relevant guidelines and awarded a one-fifth pension for a psychiatric condition because it concluded that factors unrelated to the claimant's service had played a role in the onset of the disability.

Cramb v. Canada (Attorney General), 2006 FC 638

The evidence is that Post Traumatic Stress Disorder is a psychiatric condition defined by six criteria set by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. The first criterion is that the person has been exposed to a traumatic event involving actual or threatened death or serious injury to the self or to others. The person's response involves intense fear, helplessness or horror.

The second criterion is that the traumatic event is persistently re-experienced with recurrent distressing recollections of the event, dreams of the event, acting or feeling as if the traumatic event were reoccurring or intense psychological distress when exposed to cues that resemble an aspect of the traumatic event. Military combat, a violent personal assault, being taken hostage, torture, and incarceration as a prisoner of war are personal traumatic events which can trigger PTSD. During the First World War, this condition experienced by returning Canadian servicemen, was referred to as "shell shocked".

Furlong v. Canada (Attorney General), 2003 FCT 731

The Board did not err in giving little weight to the psychiatrist's evidence which was based entirely on a history of the event provided by the claimant eight years after it occurred.

Applicant v. Canada (Attorney General), (5 February 1999) T-59-98 Campbell J. (F.C.T.D.)

The applicant suffered physical conditions that he claimed were caused by severe emotional stress he experienced because of personnel problems at work, rather than because of his actual duties. The Federal Court found that the Board's decision had been patently unreasonable. The patent unreasonableness of the Board's decision arose from its unduly narrow interpretation of the provisions of ss. 21(2)(a) of the Pension Act. It was evident to the Court that the Board believed that for a disability to be pensionable, the test created by the words "arose out of or was directly connected with...service" required that the condition suffered must be the result of a clearly identifiable on-duty action related incident. That was wrong however in the opinion of the judge.

(20/9/01) Veterans Review and Appeal Board 197658

The decision states that because there are usually many sources of stress in any person's life, which may potentially cause a stress-related psychiatric disease, attention must be given to the question of whether there was evidence as to the existence of service-related stress, and if so, whether this was a significant factor in the development of the psychiatric condition, when assessed objectively in light of all of the other stresses and stressful events, or pre-existing psychiatric complaints, which were unrelated to service.

(05/4/01) Veterans Review and Appeal Board 24065

In a claim for a psychiatric condition allegedly caused by harassment at work, the panel found there was insufficient evidence to establish the claim.

(10/9/99) Veterans Review and Appeal Board #6632194/6773686

The Board denied pension entitlement for psychiatric conditions. It had found, upon reviewing all the evidence, that the applicant, as opposed to anyone else, would appear to have created a less than happy work environment. There was no objective evidence of harassment or any improper conduct by any military peers or superiors. Her extreme stresses were self-imposed and her conditions were self-created.

(02/5/97) Veterans Review and Appeal Board #6671744/BFF

In this reconsideration case, the Board was faced with new evidence from medical experts as to the cause of the appellant's condition of anxiety and depression. The Board found that the new evidence did not persuade it that the appellant's condition was related to stress from service. The Board weighed carefully evidence on the influence of service-related stress and stress from the appellant's personal life.

(04/3/91) Veterans Appeal Board #E-3157-R/2P

The Board concluded that the appellant suffered from alcoholism, but found that there was no evidence that stress on the job, an isolated posting, or the drinking patterns of the community caused the appellant to consume alcohol while with the RCMP. The Board endorsed the view that alcohol is not necessary to satisfy any physiological requirement and the decision to use it is a personal decision of the individual.

(17/7/87) Pension Review Board #E-15371/FEDCT2

In this decision, later affirmed by the Appeal Board and the Federal Court of Appeal [Ramsay v. Veterans Appeal Board (14 March, 1989), Heald, J.A., A-494-88 (F.C.A.)], the appellant had suffered an acute emotional breakdown shortly after going on board ship. The Board found that the appellant's duties were routine in nature and of no particular significance from a stress point of view. His inability to cope with the existing environment had to do solely with his constitutional nature. Military factors provided an occasion for his reaction, but could not be said to have caused it. The Board held that the condition did not arise out of service nor was it permanently aggravated by service.

[1976] 6 Pension Review Board Reports 135

The Board found the appellant to be an individual who, on account of continual exposure over the years to the ordinary stresses of everyday life, gradually became subjectively defenceless and depressed. As his working life up to the time of his breakdown had been spent in the Armed Forces, it is understandable he would link his problems to this employment. But the Board held that the appellant's service neither caused nor aggravated the claimed condition within the meaning of subsection 12(2) [now 21(2)] of the Pension Act.

[1976] 6 Pension Review Board Reports 178

The Board held that the appellant's arteriosclerotic heart disease was not connected with the stress of his Regular Force duties, which the Board described as “of the nature of those expected of members of the Regular Force.”

[1974] 4 Pension Review Board Reports 177

The Board concluded that, where the appellant had been restricted to sedentary duties, it could not conclude that the services required from him involved exposure to “objective stress and strain”. Therefore service conditions could not be viewed as a causative factor in the development of a fatal blood clot. 12(2) and also 12(3)(f) [now 21(2) and 21(3)(f)] were found not to apply.

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Medical negligence

Cross References: Veterans Well-being Act, section 45, (Balderstone v. Canada (Attorney General), 2014 FC 942)

Sloane v. Canada (Attorney General), 2012 FC 567

The applicant advances the proposition that the Board fettered its discretion in adopting and applying the reasoning in Decision I-25. This proposition is clearly without merit. While the principle of stare decisis does not apply to administrative tribunals, it is both commonplace and highly desirable that tribunals follow and consistently apply their previous awards so as to thereby develop a predictable and coherent body of case law. Indeed, the courts have recognised that tribunals may properly engage in tribunal-wide policy discussions to develop consensus on important policy interpretations and do not thereby improperly compromise individual members’ independence (see e.g. IWA v Consolidated-Bathurst Packaging Ltd, [1990] 1 SCR 282.

In this case, the medical reports state that the applicant’s treatment fell below an accepted standard of care and outside a reasonable care and treatment framework.

Skouras v. Canada (Attorney General), 2006 FC 183

The Armed Forces did not mismanage the applicant's medical condition either with respect to providing medical care or with respect to adjusting the nature of the applicant's duties in accordance with his medical condition.

Gannon v. Canada (Attorney General), 2006 FC 600

In a judicial review involving a claim of medical mismanagement the Board was directed to assess the credibility of conflicting medical opinions.

Schott v. Canada (Attorney General), (25 January 2001) T-2138-99 Hansen J. (F.C.T.D.)

The applicant had a record of chest and back pains during his service, and they were medically investigated. He was diagnosed with sarcoidosis and was treated accordingly. The pain was relieved, but later returned. He was re-prescribed the sarcoidosis medication but the pain was not relieved. He was transferred to hospital where he was diagnosed with a malignant spinal tumour. The applicant applied for a disability pension based on the alleged medical mismanagement and misdiagnosis of his cancer. In support of his application, the applicant submitted medical opinions that the cancer could have and should have been detected earlier, and that the delay in diagnosis contributed to the extensive nature of the applicant's cancer treatment and resulting physical disabilities. The Board confirmed the Minister's decision to deny the application on the grounds that there was no evidence of medical mismanagement in the diagnosis or treatment of the cancer.

Madame Justice Hansen decided that the Board erred in concluding that there was no evidence of medical mismanagement. Although the medical evidence did not comment on the treatment of the cancer, post-diagnostic care was not the issue. The medical opinions were in her opinion clear that there was medical mismanagement with respect to the applicant's cancer. In light of sections 3 and 39 of the Veteran's Review and Appeal Board Act, which mandated the weighing of evidence in favour of the applicant, the Board's decision was set aside and the matter was to be remitted for a new hearing.

Berneche v. The Queen & The Veterans Appeal Board (26 January, 1989), Hugessen, J.A., A-314-88 (F.C.A.)

The appellant suffered a broken collarbone, which was aggravated to the extent of two-fifths by service factors. Several consequential conditions arose as a result of complications from the injury and treatment. The Appeal Board refused to award a pension because there was no evidence of medical mismanagement. The Federal Court found that the Board had erred and granted the appellant's application for judicial review.

Following the decision of the Federal Court, the Board issued a new decision in which it ruled the consequential conditions were fully pensionable as a consequence of the primary condition. In that final decision the Board did not raise the issue of medical mismanagement or negligence, an issue that was clearly beside the point given that the consequential conditions obviously arose as a result of the primary injury which had already been found (two-fifths) service-related.

Interpretation I-31 (15 February, 1985) Pension Review Board

The Board confirmed the decision in I-25 that Regular Force members are pensionable in cases of medical negligence. That decision had been put in doubt by the Supreme Court of Canada decision in Mérineau v. Her Majesty the Queen which dealt with the mutual exclusivity of pension and civil claims for the same disability or death established in section 88 of the Pension Act. The Board ruled that the Supreme Court had not intended to over-rule the carefully constructed policy on medical negligence.

Interpretation I-25 [1978] VIII(1) Pension Review Board Reports 1

The Board ruled that when a person in either the Armed Forces or the RCMP is treated for a service-related disability, any complications (including from treatment) are part and parcel of the service-related disability and are therefore pensionable. When a Forces member suffers disability or death that results from the negligence of, or inadequate medical care provided by, Regular Force or service-authorized personnel, or from medical misadventure, the disability or death is pensionable under subsection 12(2) [now 21(2)] of the Pension Act, whether or not the original condition was service-related. Disability or death suffered by a Forces member, where the original condition was not service-related and there was no medical negligence is not pensionable under 12(2). Disability or death suffered by an RCMP member because of a non service-related condition is not pensionable under the Royal Canadian Mounted Police Superannuation Act, even if there was medical negligence or mismanagement.

The difference in the pension coverage of RCMP and Armed Forces members stems from the different ways the organizations provide medical treatment. The RCMP does not provide its own medical treatment while the Department of National Defence does.

(16/9/99) Veterans Review and Appeal Board #6816552

In the Board's view, there was credible medical evidence of a possible breach of the standard of care that might have been expected in the circumstances and credible evidence of a resulting delay in diagnosis. But there was little medical evidence before the Board of any aggravation of the applicant's condition based on the delayed diagnosis nor any indication in the evidence of the extent of any aggravation that might have been caused by a delay in diagnosis. The Board stated that it would always be willing to hear new evidence on the issue of the degree to which the delay would have aggravated the claimed condition.

(16/1/97) Veterans Review and Appeal Board #6500992/BFF

The appellant had corrective surgery on a finger injured in a pre-enlistment accident. It was unsuccessful and led to amputation. The advocate argued that the fact the surgery took place in military hospitals was relevant, and a pension under 21(2) was called for, even where there was no evidence of negligence or medical mismanagement. The Board found that simply because the individual was a member of the military and was treated in a military hospital did not mean that all unfortunate results of the treatment were covered. It found no evidence of medical negligence and observed that 21(3)(f) of the Pension Act involved military operations, training or administration rather than medical procedures.

(08/5/95) Veterans Appeal Board #VE-12784/BFF

The appellant developed a tumour not related to service. The tumour led to a loss of vision. The advocate argued that the medical treatment, or lack of it, was the sole cause of the loss of vision. Upon reviewing the evidence, the Board agreed and awarded a full pension for the vision loss. The Board emphasized that there was at least reasonable doubt that the delay in diagnosis prevented curative therapy.

[1978] 7 Pension Review Board Reports 300

A member of the Regular Force is not actually in the performance of his or her duties at all times, although he may, under the National Defence Act, be called upon at any time, to perform a duty. When such a member enters a military hospital, he is not on duty, even though he may have reported sick as a result of a specific military order. Nor is he any more a captive patient than he would be in any other hospital. If he is negligently treated, he has the same right to claim damages against the medical authorities as he would if he were in a civilian hospital.

[1973] 2 Pension Review Board Reports 386

The appellant was diagnosed with arteriosclerotic heart disease in 1961 during Regular Force service. Unfortunately, he was not made aware of the nature of his condition until 1965 when he entered hospital. In the interim he had not modified his work habits in light of the condition. The Board found that arteriosclerotic heart disease was “part of the aging process” which could not therefore be caused entirely by service. The Board awarded a two-fifths pension for that part of the condition arising from service, apparently agreeing with evidence citing lack of adequate medical attention as a contributing factor.

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Failure to take preventive measures

(29/9/97) Veterans Review and Appeal Board #6767375/WFF

The appellant had a problem with his jaw, but treatment was delayed for long periods. The delays were not the result of medical negligence but rather of the cost of the required treatment. The review panel awarded a one-fifth pension entitlement on the grounds that the delays could have contributed to the applicant's condition and permanent disability. The decision was affirmed on appeal.

(06/3/97) Veterans Review and Appeal Board #6495156/BFF

The appellant was sexually assaulted by another military person, but not at work. She suffered from post traumatic stress disorder. She claimed that the military authorities failed to provide a safe workplace by not transferring her away from the person by whom she was assaulted and, after she was eventually transferred, by advising her of an impending transfer back to the town in which the assault occurred. The Board held that a minimal portion of the post traumatic stress disorder could be related to service and awarded a one-fifth pension under 21(2).

(31/8/87) Pension Review Board #E-15436/BFF

It was recognized by the military that the appellant was an alcoholic, but preventive action was unduly delayed. The Board held that the late member's condition was aggravated by one-fifth by the failure to take preventive measures.

[1976] 6 Pension Review Board Reports 75

The Board found that the condition for which the claim was made was congenital in origin, but also found that the medical authorities should have insisted on restriction of the applicant's duties when they diagnosed his condition.

[1975] 5 Pension Review Board Reports 176

The deceased veteran had longstanding heart problems which had been diagnosed. In spite of that, his duties were stressful and his case was poorly managed. In particular there was a failure to communicate to him the seriousness of his condition and how it should be managed. A pension was awarded.

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Other

(3/5/12) Veterans Review and Appeal Board 735648

It is clear from subsection 32(b) of the Royal Canadian Mounted Police Superannuation Act that any person who serves in the Forces . . . as a contributor under Part I of this Act who has suffered a disability are then covered. Cadets while in training are not contributors.

For coverage to take place for an injury while in training, a cadet must be a contributor to the Superannuation fund and must be a member of the Force. The RCMP SA has purposely omitted training unlike the military for coverage for injuries. Had Parliament intended for cadets in training to be covered under the RCMP SA, Parliament would have specifically done so.

Since 1 April 1994, RCMP cadets are not employees of the Force and do not contribute to the RCMP SA. Therefore, since that time, a person is not covered by the RCMP SA until they become a contributor to the fund, which is only after they become a member of the Force. While at Depot, cadets are students, not members of the Force.

(26/5/03) Veterans Review and Appeal Board 536230

The applicant failed to establish his eligibility to make a disability pension claim for any injury, illness or disability which arose prior to his official transfer from a municipal police force into the RCMP.

(10/12/02) Veterans Review and Appeal Board 472666

The Board rejected a claim for a psychiatric condition because the claimant was already pensioned for another condition based on the same symptoms and causative events. The Board noted that there is no authority in subsection 21(2) of the Act, nor in any other section of the Pension Act, for providing more than one pension for the same type of symptoms. The Pension Act does not pension diagnoses, symptoms, injuries or conditions. It pensions disability. “Disability” is defined in section 3 of the Pension Act as the “loss or lessening of the power to will and to do any normal mental or physical act.” In this case, the Board has not been provided with any evidence to show that the latest pension claim is based on a new and distinct disability which has further lessened the appellant's power to will and to do any normal mental or physical act.

(19/10/99) Veterans Review and Appeal Board #6218730

Even during temporary postings away from home base, forces members are not on duty 24 hours a day and the level of coverage provided by subsection 21(1), known as the insurance principle, does not apply in that situation.

(15/6/90) Veterans Appeal Board #VE-4103/3P

The Board ruled that service in the Youth Training Employment Program is covered by subsection 21(2) of the Pension Act.

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Paragraph 21(2)(b)

(21/2/97) Veterans Review and Appeal Board #6541356/BFF

The Board found that the deceased's death was related to his pending retirement from the RCMP. Other alleged stressors, such as transfer and promotion issues, were found not to be factors. The Board held that neither the availability of a service pistol in his home nor the deceased's difficulty in coping with his pending retirement related his death to service.

(03/10/95) Veterans Review and Appeal Board #VE-12481/BFF

The late member attended a military social function that was found to be neither obligatory nor compulsory. He was killed in a motor vehicle accident after the function. The Board found that the death was not covered by 21(2)(b) and 21(3)(f).

(09/1/92) Veterans Appeal Board #VE-4391-R/FED.CT2

The Board reconsidered this case following a decision of the Federal Court. Upon reviewing the evidence the Board concluded that the member had been cycling to work as part of a physical training program he had begun in order to prepare himself for return to a field unit. He had therefore been engaged in physical training in the interests of the service as required by paragraph 21(3)(a). The Board awarded a pension for his death under paragraph 21(2)(b).

Cross References: Veterans Well-being Act, section 45

Hynes C.D. v. Canada (Attorney General), 2012 FC 207

Pursuant to ss. 21(2) of the Pension Act, the Board granted the applicant a three-fifths pension entitlement for the aggravation of Lumbar Disc Disease (LDD). The Board cited an excerpt from the Veterans Affairs Canada Entitlement Eligibility Guidelines entitled “Disc Disease” and a publication entitled The Merck Manual, 18th Edition. The latter publications were relied upon in support of the Board's findings regarding the consensus in the medical literature respecting disc disease. The Board noted that there was no medical opinion linking all of the LDD to the Regular Force service. There was no evidence to clearly link causation to the applicant's military service but the Board accepted that service factors may have contributed to the condition.

Based on the evidence before it including the medical literature, the Board found that LDD is a natural degenerative illness, and only in rare cases (5%) is a severe injury the sole cause of LDD. It was reasonable for the Board to withhold a portion of the entitlement on the ground that the condition was a naturally occurring process which occurs with ageing and on the other references to back trauma such as an off-duty bicycle accident.

Trainor v. Canada (Attorney General), 2011 FC 484

In a case involving the precipitating or aggravating of a genetic or congenital predisposition, under subsection 21(2.1) of the Pension Act the panel may make a partial award, which would potentially be four-fifths if the entire cause was service-related. If the evidence demonstrates that non-service factors also contributed to the precipitating or aggravating of the condition, then the Board may award fewer fifths in light of the evidence.

Armstrong v. Canada (Attorney General), 2010 FC 91

The applicant, an RCMP member, was diagnosed with thoracic outlet syndrome. She claimed that her disability stemmed from a service-related injury. The Minister dismissed her application because her disability was not work-related. An entitlement review panel of the Board awarded a partial disability pension. That decision was upheld by an entitlement appeal panel. The appeal decision found that the root cause of her shoulder problem was a hockey injury she suffered before she joined the RCMP. Some of the evidence also referred to a congenital susceptibility. The applicant introduced new evidence at a reconsideration screening hearing that challenged the finding that her disability was related to the hockey injury.

The judicial review application was allowed. The refusal to reconsider was unreasonable. Subsection 21(9) of the Pension Act raises a rebuttable presumption that the applicant was in good health when she joined the RCMP, a few years after her hockey injury. There were no facts before the entitlement appeal panel that would allow it to connect the disability to the hockey injury. The finding that connected the disability to the hockey injury was outright speculation and could not be given any weight.

Gagnon v. Canada (Attorney General), 2009 FC 147

The Board awarded a two-fifths pension on the basis that the applicant's back injuries were partly hereditary and partly caused by non-military activities. It was noted at enlistment that he had incurred injuries playing hockey as a teenager. He suffered further back injuries while playing hockey on a Canadian Forces hockey team and in performing duties involving lifting computer equipment. He was diagnosed with degenerative disc disease with disc herniation and underwent back surgery. He continued to suffer from back pain and a loss of sensation and mobility. The Board considered his service-related injuries, but also noted other sources of back problems, specifically a family history noted in the medical evidence. The Federal Court found that the Board drew every reasonable inference and resolved any doubt in the applicant's favour. The Board had a co-existing duty to award "only that fraction of the total disability, measured in fifths, that represents the extent to which the injury or disease was aggravated" during military service [Pension Act, ss. 21(2.1)]. It did so in awarding the two-fifths pension.

Dugré v. Canada (Attorney General), 2008 FC 682

The applicant filed credible medical evidence of the connection between a fall related to the service and the appearance of a back disability. The issue was whether the Board could withhold some fractions of pension entitlement because of a congenital back condition. The Federal Court decision ruled that subsection 21(9) of the Pension Act in combination with subsection 21(2.1) did not permit the Board to withhold any entitlement when the medical evidence established that the condition, although congenital, would have remained latent but for an injury related to the claimant's service. The Federal Court decision notes that the Board is at liberty to impugn and reject any report but, in the case of credible evidence for the applicant, it must do so by relying on medical evidence responding to the points raised in the impugned report and in accordance with the specific provisions of section 39 of the Act. The judicial review application was allowed.

Skouras v. Canada (Attorney General), 2006 FC 183

A new medical report characterized the likelihood of the aggravation of the claimant's condition as "at least moderate". The applicant submitted that the report should be read to mean that the applicant's military duties would have caused a moderate, as opposed to a mild, aggravation of the applicant's rheumatoid arthritis. The Board found this opinion to be no different from the previous medical opinions already considered by the Board in arriving at its previous decision awarding a 1/5th pension entitlement for a medical condition whose etiology is unknown. The Court concluded that this finding was reasonably open to the Board on the evidence and was not a failure to consider the new evidence.

Kozak v. Canada (Attorney General), 2002 FCT 169

The applicant served in the Forces from 1968 to 1996. There were no ankle problems at discharge. But in 1998 she filed a pension claim for an ankle condition— tenosynovitis. The Minister denied the claim. The Entitlement Review panel awarded a 2/5ths pension, although there was no medical evidence supporting a link between the service and the condition. There were some entries in the service medical records about her ankle but nothing to indicate that any significant problems were service-related. Given the lack of evidence of a service connection, the appeal panel simply affirmed the review panel's decision. The claimant applied for a judicial review.

Madame Justice Dawson could not discern how the 2/5ths award had been arrived at. She indicated that for an aggravational award, there must be an existing non-service related injury or disease. It was not clear to her that there was such an injury or disease. She did not appear to believe that a partial award is the right thing to do in lieu of having medical opinions and analyzing the evidence. The judgment contains the paragraph: “All of this is not to say that it might automatically follow that Ms. Kozak is entitled to a full pension. What she is entitled to is a decision based on a proper interpretation of the legislation.”

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Subsection 21(3)

Fournier v. Canada (Attorney General), 2006 FCA 19 affirming Fournier v. Canada, 2005 FC 453

The appellant was involved in a motor vehicle accident on a public road, having left her military post in the afternoon in her own vehicle to get something to eat at a fast food restaurant with the intention of returning to work. The evidence showed that it was customary to go out for food from the place of work but the causal connection between the accident and her military service was too remote to allow disability pension entitlement under subsection 21(2) and paragraph 21(3)(f) of the Pension Act.

Factors such as the location where the accident occurred, the nature of the activity being carried on by the applicant at the time, the degree of control exercised by the military over the appellant when the accident occurred and whether she was on duty at the time are all relevant to the determination that the Board must make that the injury arose out of or was connected to the applicant's military service. No one factor is determinative.

The presumption in paragraph 21(3)(f) of the Pension Act arises only after the application of subsection 21(2) has been considered and where there is no evidence to the contrary.

Elliot v. Canada (Attorney General), 2003 FCA 298

Unless an applicant establishes a causal link between an event and his or her service (in this case whether there was a causal link between a lunch at the base and the applicant’s irritable bowel syndrome), there is no reason to deal with the issues arising under paragraph 21(3)(f) of the Pension Act and whether or not eating in the mess hall arose out of or was directly connected with military service.

McLean v. Canada (Attorney General), 2011 FC 1047

Regarding the application of ss. 21(3) of the Pension Act, the Board did not err in its approach. The applicant asserted that ss. 21(3) of the Act operates to create a presumption that the knee injuries he sustained in training in 1970 were service-related. However, that presumption does not establish a causal connection between those injuries and a current disability. The applicant's injuries during training are presumed to be service-related, but that does not prove that his osteoarthritis was caused by those injuries.

Lunn v. Canada (Veterans Affairs), 2010 FC 1229

The subsection 21(3) presumption is not engaged unless causation is established. Causation must thus be established, and in the absence of evidence to the contrary, the presumption found in ss. 21(3) allows for causation to be presumed if the injury was incurred during the course of the veteran's service. In the present case, the Applicant's medical records constituted the “evidence to the contrary”. The military medical records evidenced no hearing loss in service or upon discharge. Also, there was no evidence of significant injury to the back; the evidence indicated a back injury that was resolved with physiotherapy.

Léonelli v. Canada (Attorney General), 2003 FC 1374

The presumption under subsections 21(3) and (9) of the Pension Act was not considered by the Board. Nevertheless, it is part of the Act, and must be taken into account when the Board is evaluating a pension application. Under those provisions, the Act presumes that a disability that was incurred in the course of normal or sports activities by the soldier arose out of or was directly connected with those activities.

Elliot v. Canada (Attorney General), 2002 FCT 972

The Board concluded that the applicant's condition, IBS, did not arise nor was it directly connected to the diarrhea condition, which resulted from the applicant's meal in the Mess Hall. Without such a causal link being established, it is unnecessary to consider whether a presumption arises under paragraph 21(3)(f) of the Pension Act.

King v. Canada (Veterans Review and Appeal Board), 2001 FCT 535

Although paragraph 21(3)(f) of the Pension Act creates a presumption that an injury or disease incurred during a military operation, training or administration, is one that arises out of or is directly connected with military service, paragraph 21(2)(a) does not so limit the occurrence of the injury or the disease.

Bradley v. Canada (Attorney General), 2001 FCT 793

Subsection 21(3) merely sets out a series of presumptions to be assumed in the absence of evidence to the contrary, in circumstances described in each of paragraphs (a) to (f). While paragraph 21(3)(f) may not be applicable in this case, it is unnecessary to consider whether that or any other presumption in subsection 21(3) applies before considering the application of subsection 21(2) itself.

Shmyr v. Canada (Attorney General), (2000-10-06) FCT T-405-98

The applicant contends that the absence of a report of any injuries does not amount to contradictory evidence, and therefore the presumption found in subsection 21(3) of the Pension Act and section 39 of the Veterans Review and Appeal Board Act should apply . . . . (I)t must also be noted that the applicant must present evidence suggesting a causal link between his RCMP service and the condition for which he now seeks a disability pension. Every reasonable inference must be drawn by the panel, every reasonable doubt resolved in the applicant's favour. Yet, he still must demonstrate a causal link.

Gavin v. Canada (Attorney General), (1999-05-07) FCT T-1875-98

The Pension Act [subsection 21(3)] creates a presumption, subject to the absence of evidence to the contrary, that an injury or disease arises from RCMP service, if the injury or disease was incurred in the course of certain activities.

Macdonald v. Canada (Attorney General), (1999-03-11) FCT T-1081-98

In further assistance to applicants, the Pension Act creates favourable presumptions; the relevant one for the purposes of the case at bar is contained in subsection 21(3) . . . Thus, in the absence of evidence to the contrary, causation is presumed if the injury was incurred during the course of the applicant's service.

Bradley v. Canada (Attorney General), (1999-01-27) FCT T-157-98

The Board simply refused or neglected to enter upon an examination of the question as to whether or not the applicant's disability resulted from injuries that arose out of or were directly connected with his military service in peace time, taking into account paragraph 21(3)(f) of the Pension Act. In so refusing, it failed to consider the evidence before it and the relevant provisions of law in accordance with the interpretive obligations imposed on it by section 2 of the Pension Act and sections 3 and 39 of the Veterans Review and Appeal Board Act.

(18/5/99) Veterans Review and Appeal Board #6553831

The case, which involved an off-duty fall in a shower on board a ship, examines the history of subsection 21(3) which in its original wording created mandatory presumptions, but which now creates rebuttable presumptions.

(16/7/86) Pension Review Board #E-13436/1P

The provisions of subsection 12(3) [now 21(3)] do not create an insurance principle as found in subsection 12(1) [now 21(1)]. Subsection 12(3) was intended to be an aid in determining service connection, and not an exception to the principles set out in subsection 12(2) [now 21(2)]. Paragraph 12(3)(f) [now 21(3)(f)] is intended to apply to activities which are in furtherance of military duties or obligations. . . . the member must be able to establish that he suffered a disability in the course of these activities.

[1976] 5 Pension Review Board Reports 460

The late veteran drowned while fishing from a boat at an approved recreational facility for members of the isolated RCAF station at Goose Bay, Labrador. Repairs to the camp's equipment were activities incidental to those described in 12(3) [now 21(3)] where they were authorized. However, where the applicant had completed the repairs and had gone fishing, it was held that he proceeded in his own interests and was not engaged in an activity incidental to the one authorized.

[1974] 4 Pension Review Board Reports 202

Subsection 12(3) [now 21(3)] of the Pension Act does not permit of the conclusion that pension entitlement in its entirety under 12(2) [now 21(2)] must follow a finding of aggravation of a disability under the provisions of paragraphs (a) to (g) thereof.

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Paragraph 21(3)(a)

Rochon v. Canada (Attorney General), 2013 FC 379

In 1985, the applicant while jogging was hit by a car injuring his knee. He claimed he was training for his unit's cross-country ski team when the accident occurred. He had surgery and a knee fusion. In 1989, he was diagnosed with osteoarthritis in the knee. The Canadian Pension Commission denied the claim for a disability pension. It accepted that the accident caused the arthritis but not that it arose out of or was directly connected with the service. An Entitlement Board and the Veterans Appeal Board subsequently reached the same conclusion.

The applicant applied to the Board for a reconsideration on the basis of new evidence - letters from former members of the Forces about physical training requirements at the time of the accident and about the ski team. He also submitted letters from two physicians concerning the appropriateness of the surgery to fuse the knee.

The Board applied the "Palmer" test and refused to admit the evidence with regard to the training because it was not "new" evidence. Although the letters were relevant, the writers did not indicate they had witnessed the accident; did not confirm that the applicant was engaged in authorized physical training at the time; and did not provide any information about the applicant's training program for cross-country skiing. The applicant applied for a judicial review.

The Federal Court found that the Board's decision was reasonable because the applicant had failed to provide any reason why he could not have presented the evidence regarding his training at the earlier VAB hearing.

The Board had reasonably concluded that the letters could not reasonably be expected to alter the outcome of the decision. Although the letters gave additional details about the physical training requirements, they did not provide anything new in relation to the decisive issue, which was the relation of the particular accident to the applicant's service. The Court also found that because the claim of medical mismanagement had not been advanced in any of the earlier proceedings and because it was an entirely new claim, a new application for that claim should have been made to the Minister.

Boisvert v. Canada (Attorney General), 2009 FC 735

The Board was found not to have adequately addressed the presumption in paragraph 21(3)(a) of the Pension Act concerning injuries allegedly incurred while playing hockey on a Forces team.

(28/2/03) Veterans Review and Appeal Board 508981

A fall while hiking or climbing off-duty did not result in a pensionable disability. Under paragraph 21(3)(a) of the Pension Act, any physical activity which was performed under some form of endorsement or authorization, or on orders and instructions issued by the RCMP prior to participation in the activity, could reasonably fall within the meaning of an activity authorized under the authority of the service.

(23/4/97) Veterans Review and Appeal Board #6597323/BFF

The appellant hurt his ankle while water-skiing at a gathering of his unit. He claimed a pension under 21(3)(a) and (f) on the grounds that the gathering was in the interests of the service or that it constituted an established military custom or practice. The Board held that the gathering was primarily a social one. The fact that, incidentally, the interests of the service were furthered was not sufficient to bring it within 21(3)(a).

(15/4/97) Veterans Review and Appeal Board #6597452/RFF

The RCMP member claimed a pension under 21(3)(a) for a fractured hip suffered in a hockey game. The member was not on duty and the game was not authorized or organized by the RCMP. But the member claimed the game was an activity performed in the interests of the RCMP. The Appeal Board said the test to be applied is whether the sport activity was performed in the best interests of the service, was expected to bring credit to the RCMP or was meeting a service requirement or was otherwise serving the interests of the service rather than the member's own interest. The Board ruled that there was no evidence indicating that the interest of the RCMP was the dominant factor in the appellant's decision to participate in the hockey game, as opposed to his own personal interest.

(29/8/96) Veterans Review and Appeal Board #VE-14923/BFF

The appellant, an RCMP member, hurt his back weight-lifting and playing racquetball. He claimed that the injuries were related to service under paragraph 21(3)(a) of the Pension Act on the grounds that the RCMP promoted fitness in the Force and any reasonable activity carried out to maintain fitness is duty-related. The Board disagreed, however, and found that the injuries were not related to RCMP duties.

(16/9/96) Veterans Review and Appeal Board #VE-15471/BFF

An RCMP member hurt his arm in a softball game which he argued was a community activity recognized by the Force that he participated in for the purpose of keeping in good condition, a mandatory requirement for RCMP members. The Board found that the game did not fall within paragraph 21(3)(a) of the Pension Act. It noted that the game was not organized nor authorized by the RCMP and the member was not on duty at the time. The Board stated that activities undertaken in the member's own interest do not necessarily come within the terms of the Pension Act merely because they coincide with the best interests of the service. Members engaged in recreation activities after normal duty hours are deemed to be doing so for their own pleasure rather than meeting a service requirement. The Board advised that physical training or sports activities would meet the requirements of 21(3)(a) if the event was expected to bring credit to the CF or RCMP or was meeting a service requirement, or was serving the interests of the service, as opposed to serving the interest of the participating member.

(09/1/92) Veterans Appeal Board #VE-4391-R/FED.CT2

The Board reconsidered this case following a decision of the Federal Court. Upon reviewing the evidence the Board concluded that the member had been cycling to work as part of a physical training program he had begun specifically to prepare himself for return to a field unit. He had therefore been engaged in physical training in the interests of the service as required by paragraph 21(3)(a). The Board awarded a pension for his death under paragraph 21(2)(b).

[1980] VIII(2) Pension Review Board Reports 117

The appellant injured his knee while playing football with a civilian team. The Board found that the sports activity was expressly authorized by a military authority (the Commanding Officer of the appellant's base) and was, in the particular circumstances, in the interest of the service. Therefore the presumption in paragraph 12(3)(a) [now 21(3)(a)] applied.

[1978] 7 Pension Review Board Reports 454

The applicant was swimming in a pool at a military camp when he injured his back. He was stationed at the camp for basic training and was not allowed to leave. He was not using the pool pursuant to any authorized or organized sports program. But it was argued that his activity was performed in the best interests of the service since servicemen were encouraged to take part in sports activities to improve physical fitness and morale. The Board rejected the argument. It found that the applicant was in the pool for his own recreational purposes and not in the interests of the service.

[1977] 7 Pension Review Board Reports 17

A Regular Force naval officer drowned during a yachting trip. He was receiving a pension for asthma at 20% disability. The widow claimed his drowning was a direct result of the pensioned condition, and that the weekend yacht trip constituted a sports activity performed in the interests of the service within the meaning of paragraph 12(3)(a) [now 21(3)(a)]. The Board rejected both claims.

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Paragraph 21(3)(b)

Milligan v. Canada (Attorney General), 2004 FC 1112

The applicant was a member of the CFB Chilliwack Ski Club. However, mere membership in the Ski Club did not in any way prove that a skiing injury was part of a military organized or authorized activity. The evidence did not establish that the skiing events in question were military approved or sponsored skiing as opposed to recreational skiing.

Nisbet v. Canada (Attorney General), 2004 FC 1106

The applicant suffered knee and shoulder injuries while playing hockey for his RCMP detachment's team. He had also been involved in two off-duty motor vehicle accidents. The medical opinion provided by his doctor was based on subjective information provided by the applicant, and did not provide any specific medical information relating the claimed conditions to the RCMP service. It also did not address the impact of the motor vehicle accidents on the conditions. The Board was entitled to reject uncontradicted medical evidence in support of the causal link. It had given a reasonable explanation for its rejection of the doctor's evidence. The presumption in paragraph 21(3) of the Pension Act did not apply because the medical evidence did not establish the causal link between the injuries and the disability.

Desloges v. Canada (Attorney General), 2001 FCT 506

The Board's failure to mention subsection 21(3)(b) constitutes a reviewable error because it is clear that this subsection includes as part of military service those activities incidental to the performance of physical training activities, which reasonably includes the act of showering after completing physical activity conducted for training purposes. This is particularly true since subsection 21(3)(b) provides that transportation between the place the member normally works and the place of the physical activity is included as activity incidental to an activity described in paragraph (a).

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Paragraph 21(3)(c)

(10/8/98) Veterans Review and Appeal Board #6255502

The claimant had been transferred. Between periods of work he was on leave and was loading personal effects into his own car when an injury occurred. The Board found that he was not in the course of his duties given that he was on leave and that the payment by the RCMP of some of his travel expenses did not establish that he was acting in the course of his duties.

The Board also found no evidence that the travel in his own personal vehicle had been “authorized” as opposed to permitted or tolerated. It also found that the loading of personal effects into his vehicle was not incidental to his transportation as required by paragraph 21(3)(c) but rather was something within his own personal sphere of activity.

(07/2/90) Veterans Appeal Board #E-3137/2P

The appellant's work station was a radar installation about 2 miles from the military base. The appellant hitched a ride to the radar station on a private vehicle, which was then involved in an accident. The Board ruled against the appellant's claim under 21(3)(c). The Board stated that it had long been held that injury or disease incurred during Regular Force service travel to or from the place where service duties are performed, prior to the commencement of such duties or after the termination thereof, is not pensionable pursuant to the provisions of 21(2), unless other factors relate it to service.

[1985] IX Pension Review Board Reports 43

On the facts before it, the Board determined that the disability – supra-orbital neuritis – was incurred during the transportation of the member, in the course of his duties, in a military aircraft, and thus the deeming provisions of paragraph 12(3)(c) were applicable in determining the service relationship of the claimed condition.

[1978] 7 Pension Review Board Reports 289

A Regular Force veteran was injured while trying to catch a bus chartered by the military authorities to take him and other servicemen to their place of duty. The military authorities who investigated the accident concluded that his injuries were related to service because he was in uniform and on his way to work. But the Board confirmed previous decisions that injury or disease incurred during a Regular Force member's travel to or from the place where duties are performed, prior to the commencement of such duties or after their termination, is not pensionable unless other factors relate it to service.

[1977] 7 Pension Review Board Reports 171

While in the Regular Force, on a cruise aboard a warship, the serviceman contracted lymphosarcoma, from which he subsequently died. The Board said: “. . . the disease still has to be related to service . . . the late serviceman was engaged in the normal duties of his service while at sea, he was not being transported as envisioned by paragraph 12(3)(c). The ship, under these circumstances, became the sailor's training base.” The Board found no evidence to show that the condition arose when the veteran was actually engaged in the performance of a duty, and rejected the claim.

[1975] 5 Pension Review Board Reports 28

The Board found that 12(3)(c) [now 21(3)(c)] did not apply in a case where the claimant was transferred from one base to another and was involved in a motor vehicle accident in his own car while he was on leave and proceeding from one posting to another.

[1974] 3 Pension Review Board Reports 237

The appellant suffered a hearing condition which he claimed had arisen while on a Canadian warship in southern waters. The Board stated that paragraph 12(3)(c) [now 21(3)(c)] did not apply because the paragraph was enacted to enable a pension to be awarded to the Regular Force serviceman who, during the course of his assigned duties, was assigned conveyance from one place to another in order to carry on with or complete such duties and was disabled during transportation. It was not enacted to cover the case of the Regular Force serviceman who was employed aboard the conveyance, whether it be plane, train, truck, ship or any other means of transportation authorized by military authority.

[1973] 2 Pension Review Board Reports 430

The appellant was driving from his off-base residence to work in a private vehicle driven by a civilian employee of the base when he was involved in an accident. A bus to the military base was provided for some personnel, but the appellant was among those directed to use other means of transportation. The Board held that the appellant did not qualify for a pension under 12(2), 12(3)(c) or 12(3)(f) [now 21(2), 21(3)(c), and 21(3)(f)] of the Pension Act. The Board reasoned that the appellant had been merely proceeding on a routine trip to report to his place of duty and was not on duty when the accident occurred. The accident did not arise from, nor was it directly connected with, his service.

[1973] 2 Pension Review Board Reports 293

The Board denied a claim for a pension for chronic bronchitis under paragraph 12(3)(c) [now 21(3)(c)] where the appellant suffered an attack of acute bronchitis while on authorized travel. The Board found that the infection had commenced before the trip and was not aggravated by it. Although the condition arose during service, it could not be substantiated that exposure to poor weather and living conditions were the cause.

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Paragraph 21(3)(d)

[1977] 7 Pension Review Board Reports 391

The Regular Force member, when stationed in Germany, had obtained a pass to go to town. He set out in a vehicle provided by the service. On the way, he was injured in an accident. The Board held that paragraph 12(3)(d) [now 21(3)(d)] of the Pension Act was not intended to extend to the circumstances which gave rise to his injury. The Board outlined the circumstances in which it thought the paragraph would apply:

It is intended to provide for situations that arise when, for instance, the Regular Force soldier is serving at some isolated post, is given leave and has no way of reaching a public transportation service except by way of service transport. Alternatively, it is intended to provide for the case where the Regular Force soldier is posted to another area and is at the same time granted leave. His posting requires him to move his goods and chattels, which, in this day and age, usually include a motor car, so he is authorized by military authority to travel by private vehicle to the place where he is to take leave.

The Board also stated that, under the Pension Act, there is no difference between going on pass and on leave.

[1977] 7 Pension Review Board Reports 214

After completing his duties, at an unusually late hour, the claimant left for home on a weekend pass, riding his motorcycle. He was injured. It was argued that he was travelling by an authorized means to the place where he was to take his leave—his home—and that therefore paragraph 12(3)(d) [now 21(3)(d)] applied. It was claimed that because his superiors knew of his method of travel, they must be taken to have approved it. The Board held that his having been permitted to go home on leave did not make paragraph 12(3)(d) applicable because his leave commenced when his duties finished. Whether he went home or not was his own decision.

[1977] 7 Pension Review Board Reports 123

The claimant had worked in the Sergeants' Mess until 3:00 a.m. on New Year's Day. He then left the barracks, where he was quartered, on authorized leave. During the trip to his home, he drowned. The Board held that paragraph 12(3)(d) [now 21(3)(d)] did not apply because his leave commenced at the camp gate and not at his home, 250 miles away.

[1976] 6 Pension Review Board Reports 181

The applicant was injured in an accident while returning home from his station by private car. He had been excused from duty by a dental officer. It was held that being granted permission to leave at an earlier hour than usual did not make his leaving an action in the course of duty. A pension was not awarded because the presumption under 12(3)(d) and (f) [now 21(3)(d) and (f)] did not apply.

[1975] 5 Pension Review Board Reports 28

The appellant, on leave and in his own car, was involved in an accident. The Board held that the applicant took his leave from his point of disembarkation, and that there were no specific arrangements on the part of the service as to any specific means of transport to be used by the applicant. The applicant from his point of disembarkation was a free agent and free to go about his travel at his own choosing.

[1974] 3 Pension Review Board Reports 80

The appellant was injured while travelling in a private car from military base to home. He was on “short leave” and his travel expenses to home were being paid by the RCAF from which he was about to be discharged. The Board found the appellant was not on duty at the time of the accident but it held that the term “authorized leave” in 12(3)(d) of the Pension Act should not be given a restricted meaning and the appellant was covered by that provision of the Act.

Note: See also the case of (29/9/79) Pension Review Board E-4725 annotated under paragraph 21(3)(f).

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Paragraph 21(3)(e)

(02/10/96) Veterans Review and Appeal Board #VE-14517/YFF

The appellant was a pilot on "temporary duty" in Sardinia. He ate contaminated mussels at a local restaurant and contracted hepatitis and then genito-urinary tuberculosis. The Board found that paragraph 21(3)(e) did not apply because the Board had not been presented with any statistical evidence that would persuade it that Sardinia was a hazardous area because of the prevalence there of infectious hepatitis.

(29/9/89) Veterans Appeal Board #E-3070/1P

The appellant contracted poliomyelitis shortly after serving in an area of Manitoba which at the time experienced a large number of polio cases. The Board awarded a pension under subsection 21(2) and paragraph 21(3)(e) of the Pension Act.

[1977] 6 Pension Review Board Reports 343

During Regular Force service the applicant contracted pulmonary tuberculosis. There was evidence that he had on occasion, as a member of an army band, and in the course of duty, visited a hospital where tubercular patients were being treated. The medical evidence was that the chance of infection on such occasions was very remote. It was held that there was insufficient evidence to relate the condition to service.

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Paragraph 21(3)(f)

Bradley v. Canada (Attorney General), 2004 FC 996

The claimant, on a training voyage, fell in the shower and injured his lower back. He later applied for a disability pension for a cervical spine condition. The Board concluded that the claimant's activities at the time of his fall were personal ones, rather than coming within the realm of professional or occupational activity related to military service.

(25/6/03) Veterans Review and Appeal Board 560297

The claimant suffered an eye injury while on duty and in uniform and on his military base working in the base auto club on his own vehicle. He argued that his injury should be pensioned because it was the fault of the mechanic who was also on duty at the relevant time and that contends that the practice of having private cars repaired at the club was a customary practice, which was accepted and used by all members of the Base. The panel in its decision stated that its interpretation of the provisions of subsection 21(2) and paragraph 21(3)(f) is that the activities foreseen by paragraph 21(3)(f) are for the furtherance of military duties and obligations. The activities are meant to be military activities carried out in the context of military undertakings.

(26/6/02) Veterans Review and Appeal Board 344728

Injuries from a fight on a military base in Germany were found not to be pensionable under paragraph 21(3)(f) and subsection 21(2) of the Pension Act.

(31/1/02)Veterans Review and Appeal Board 330434

The applicant, while serving in Germany, on leaving an area of the base where he had gone after his evening meal and having consumed some alcohol, unfortunately stuck his hand through a closing, swinging, glass-centred door. The fact that an injury occurred in, or around facilities provided by the military does not mean that the disability has arisen out of or was directly connected to military service. Looking at the circumstances of the injury, there is no evidence that the applicant was performing a task or service relating to his military duties at that time. He was clearly not in the course of an undertaking in the military, or involved in training when the injury arose. Nor was he acting under any military order, nor was he required to be in the particular place where the injury occurred as a result of any coercion of command from the military. He had been socializing and relaxing on his own time. He was simply leaving the premises where he had been socializing when the injury occurred. There is no evidence to establish that the door itself was a hazard. The evidence indicates that he was accidentally injured while in the course of an activity which was personal in nature.

(17/1/02) Veterans Review and Appeal Board 268124

The claimant fell while taking a shower in a military barracks. The panel observed that in relation to paragraph 21(3)(f) of the Pension Act, in order for the rebuttable presumption of service-relatedness to apply, there should be some evidence of a military order and some evidence of a direct relationship between the activity required by the order and the activity which gave use to the injury or disability.

(18/5/99) Veterans Review and Appeal Board #6553831

The claimant was injured in a shower on board a ship while he was off-duty. The Board found that 21(3)(f) did not apply because the fall did not result from a specific order or established military custom or practice.

(23/4/97) Veterans Review and Appeal Board #6597323/BFF

The appellant hurt his ankle while water-skiing at a gathering of his unit. He claimed a pension under 21(3)(a) and (f) on the grounds that the gathering was in the interests of the service or that it constituted an established military custom or practice. The Board also refused to award a pension under paragraph 21(3)(f) because the activities foreseen by that paragraph are activities in furtherance of military duties or obligations. The activities are meant to be military activities carried out in the context of military undertakings.

(16/1/97) Veterans Review and Appeal Board #6500992/BFF

The appellant had corrective surgery on a finger that had been injured in a pre-enlistment accident. It was unsuccessful and eventually led to amputation. The advocate argued that the fact the surgery took place in military hospitals was relevant and a pension under 21(2) was deserved, even where there was no evidence of negligence or medical mismanagement. The Board found that simply because the individual was a member of the military and was treated in a military hospital does not mean that all unfortunate results of such treatment are covered. It found no evidence of medical negligence or mismanagement and observed that 21(3)(f) of the Pension Act involved military operations, training or administration, rather than medical procedures.

(03/10/95) Veterans Review and Appeal Board #VE-12481/BFF

The late member had been attending a military social function that was found to be neither obligatory nor compulsory. He was killed in a motor vehicle accident after the function. The Board found that his death was not covered by 21(2)(b) and 21(3)(f).

(04/12/86) Pension Review Board #E-13950/2P

The appellant was cleaning the barrack floors during basic training. He left the barracks for a cigarette break and on re-entering twisted his knee resulting in a tear of the medial meniscus. The Board held that the injury could not be said to have arisen out of or to be directly connected to the appellant's military duties in peace time as required by 12(2) and 12(3)(f) [now 21(3)(f)].

(28/8/86) Pension Review Board #E-13460/2P

The appellant, who was in the Militia, was proceeding from his place of duty to his residence when an injury occurred. The Board ruled that the legislation does not provide "portal to portal" coverage. A pension was denied because the injury was not suffered in the course of activities in furtherance of military duties or obligations.

[1984] IX Pension Review Board Reports 36

The Board said: “The Board is not persuaded that 12(3)(f) [now 21(3)(f)] is intended to apply to military operations or training in general, but rather to specific activities arising out of military duties.”

(29/9/79) Pension Review Board E-4725

A forces member was on temporary duty for 18 days at a training centre. One day there was no supper for him at the centre at 1730 hours and he proceeded off the base to obtain a meal. He was under orders to be back later in the evening for a briefing on the next day's activities. At about 1845 he was killed in a private vehicle in an accident off the base. The Entitlement Board found that the member was not on duty when the accident occurred. It was not part of training or administration nor was it the result of established military custom or practice for a member of the forces to proceed by private motor vehicle to a place outside his place of duty for a meal. The Entitlement Appeal Board confirmed the decision of the Entitlement Board and stated:

. . . (I)t is well established that in the absence of unusual circumstances service personnel are not being transported in the course of their duties when proceeding by private transportation to and from their place of duty. In the claim under review, the late veteran was proceeding in the manner that he did on his own time, free to use whatever means of transportation he chose without any degree of service related compulsion. The fact that the late veteran was deprived of his usual evening meal on the base, as indicated in the evidence, does not in this Board's view, lend support to the claim in the circumstances.

[1977] 7 Pension Review Board Reports 327

The Board heard the case of a motor vehicle accident that occurred while the appellant was en route to a promotion party. It decided that in determining the somewhat narrow point whether attendance at a mess party constitutes “established military custom” [paragraph 12(3)(f)], it is necessary to differentiate between actions taken as a result of established military custom or practice and those undertaken voluntarily in a service context. Some mess functions are considered “command performances”, even though failure to attend is not a disciplinary matter. Others, such as promotion parties, are private functions that happen to be held in the mess. It was never intended that the legislation should be extended to include the latter.

[1976] 6 Pension Review Board Reports 181

The applicant was injured in an accident while returning home from his station by private car. He had been excused from duty by a dental officer. It was held that granting him permission to leave even though at an earlier hour than usual did not make his leaving an action in the course of duty. A pension was denied. No presumption was raised under 12(3)(d) and (f) [now 21(3)(d) and (f)].

[1976] 5 Pension Review Board Reports 430

The appellant, on a weekend pass, was killed in an accident while travelling in a private vehicle from the military camp where he was posted to another location where he was to have discussions with service personnel concerning employment matters. The Board found that he was not covered by paragraph 12(3)(f) [now 21(3)(f)].

[1975] 5 Pension Review Board Reports 65

The appellant was on military manoeuvres but was off-shift and was walking from his tent to the mess hall when he sustained a knee injury. The Board found that the appellant was off-duty and not on 24-hour duty, as claimed by the advocate. Therefore his claim under 12(2) [now 21(2)] and 12(3)(f) [now 21(3)(f)] failed.

[1973] 2 Pension Review Board Reports 430

The appellant, while driving from his off-base residence to work in a private vehicle driven by a civilian employee of the base, was involved in an accident. A bus to the military base was provided for some personnel but the appellant was among those who had been directed to use other means of transportation. The Board held that the appellant did not qualify for a pension under 12(2), 12(3)(c) or 12(3)(f) [now 21(2), 21(3)(c) and 21(3)(f)] of the Pension Act. The Board reasoned that the appellant had been merely proceeding on a routine trip to report to his place of duty and was not on duty when the accident occurred. The accident did not arise from, nor was it directly connected with, his service.

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Paragraph 21(3)(g)

McAllister v. Canada (Attorney General), 2014 FC 991

There is no requirement of “direct” exposure for the presumption set out in subparagraph 21(3)(g) of the Pension Act to apply.

Moar v. Canada (Attorney General), 2006 FC 610

The applicant served in the Canadian Forces from 1961 to 1988. He suffered from asthma which he claimed was caused or aggravated by events during his service. In 1965 he was accidentally sprayed with jet fuel that came into contact with his eyes, ears, nostrils and mouth. In 1972 he spent one month fuelling torpedoes with a fuel that produced toxic fumes. The Board accepted that the applicant had a disability but found the medical evidence which concluded that the asthma was caused by his exposures to the jet and torpedo fuels was not credible. The Federal Court decided that the Board did not err when it rejected the medical opinions. The record included no medical literature that exposure to the fuels caused asthma. There was a lack of evidence of long-term exposure to the torpedo fuel. One medical opinion was not based on the facts of this case. Another was too vague to be accepted as credible. It therefore was not patently unreasonable for the Board to conclude that there was no more than a mere possibility that the applicant's condition was caused or aggravated by the exposures during his service.

Whitehead v. Canada (Attorney General), 2003 FCT 75

Both the Pension Act and the Veterans Review and Appeal Board Act contain provisions directed to those responsible for the administration of the acts to interpret them in a liberal way in favour of veterans and their dependants to the end that "the recognized obligation of the people and Government of Canada... may be fulfilled". Section 2, subsection 5(3) and paragraph 21(3)(g) of the Pension Act reflect and amplify this obligation.

(21/7/87) Pension Review Board #E-14821/1P

The Board found that granuloma left lung was a consequence of the tuberculosis the appellant contracted during Regular Force service. But it ruled that the tuberculosis did not come about as a result of the service. In its decision, the Board stated that even though tuberculosis was more prevalent in Western Europe, where the appellant had been stationed, than in Canada, it was not so prevalent as to be called an epidemic, much less endemic to the area. Therefore, paragraph 12(3)(g) [now 21(3)(g)] did not apply to the appellant because it required the member to be at a particular "risk".

[1978] VIII(1) Pension Review Board Reports 90

The Board held that two wartime episodes of bronchitis, which were resolved with treatment at the time, could not support a claim for bronchial asthma which developed some 30 years later. It was argued that exposure to industrial pollution during peacetime service precipitated the condition, and that such pollution constituted an environmental hazard within the meaning of paragraph 12(3)(g) [now 21(3)(g)] of the Pension Act. The Board found that it was not such a hazard, nor could it find a relationship between the pollution and the asthmatic condition.

[1975] 5 Pension Review Board Reports 329

The appellant was serving with the RCMP in western Manitoba when he contracted poliomyelitis. The Board held that because the incidence of polio was high in that area the appellant had been exposed to an environmental hazard within the meaning of 12(3)(g) [now 21(3)(g)].

[1973] 2 Pension Review Board Reports 453

The appellant's claim for a pension for hiatus hernia due to exposure to physical stress during Regular Force service was rejected. The Board stated that the words “environmental hazard” in 12(3)(g) [now 21(3)(g)] of the Pension Act have significance only where it is recognized, or should be recognized by the authority requesting the performance of a duty, that the risk of injury or disease exists for any serviceman who is required to perform the duty.

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Subsection 21(5)

Cross Reference: Veterans Well-being Act, Section 46

The cases interpreting Subsection 21(5) are arranged under the following headings:

  • Burden of proof
  • Effects of treatment, medication
  • Etiological relationship not required
  • Lock step policy
  • Accident subsequent to primary condition
  • Other

Burden of proof

Percy v. Canada (Attorney General), 2004 FC 729

The applicant, an 83-year-old World War II veteran, had to establish under subsection 21(5) of the Pension Act that the osteoarthritis in his knees was consequential to the pensioned condition of pes planus. Even though uncontradicted evidence should be accepted in the absence of a finding of lack of credibility and every reasonable inference should be drawn and any reasonable doubt resolved in his favour, he had to establish a causal connection between the pensioned condition and the claimed condition. The medical evidence disclosed that he had only minor osteoarthritis. His real complaint was severe pain in his knees, more severe than expected from a mild case of osteoarthritis. The connection between the pain in his knees and his pes planus had been addressed in the medical evidence. However, none of the evidence, including the new physician's letter, addressed osteoarthritis or degenerative changes. The evidence was not new, was not relevant, and would not have changed the result.

Kripps v. Canada (Attorney General), 2002 FCT 575

The applicant had received a pension under subsection 21(1) of the Act for bilateral pes planus (flat feet). He then claimed for osteoarthritis right knee consequential on the foot condition. The applicant had a letter from a physician stating there was a causal connection. The Board followed the Veterans Affairs medical guidelines, which stated that pes planus, pes cavus, or hallux valgus are not considered to be the cause of changes in lower limbs or lumbral-sacral spine. The applicant applied for a judicial review of a decision of the Board and argued that the Board should not have relied on the Departmental Medical Guidelines to dismiss his application for pension entitlement. Mr. Justice Pinard held that the Board weighed all of the evidence in light of the Guidelines in making its finding that the osteoarthritis did not result from the applicant's pensionable condition. The Board had not come to an unreasonable conclusion in applying the guidelines.

Smith v. Canada (Attorney General), 2001 FCT 857

The burden of proof rests on the applicant to establish, on a balance of probabilities, and with the Board viewing the evidence in the most favourable light, that the claimed condition is pensionable and results from a previously pensioned condition in accordance with paragraph 21(5)(b) of the Pension Act.

Rivard v. Canada (Attorney General), 2001 FCT 704

The Board committed a procedural error in addressing a claimed consequential relationship between a pensioned chronic anxiety condition and later arteriosclerotic disease. The Board in rejecting a medical opinion had not obtained independent medical advice and had not placed on the file any evidence of a medical consensus to rebut the medical opinion presented by the applicant.

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Effects of treatment, medication

Berneche v. Her Majesty The Queen and the Veterans Appeal Board (26 January, 1989), Hugessen, J.A., A-314-88 (F.C.A.)

The Appellant had suffered a broken collarbone, which was found to have been aggravated to the extent of two-fifths by service factors. He suffered a number of consequential conditions as a result of complications arising from the injury and treatment. The Appeal Board refused to award pension entitlement on the grounds that there was no evidence of medical mismanagement.

The Federal Court of Appeal, however, found that the Board had erred. Following this decision of the Federal Court, the Board issued a new decision in which it ruled the consequential conditions were fully pensionable as a consequence of the primary condition. In that final decision the Board did not raise the issue of medical mismanagement or negligence. The issue was clearly beside the point, given that the consequential conditions obviously arose as a result of the primary injury which had already been found (two-fifths) service-related.

(20/3/97) Veterans Review and Appeal Board #6547531/BFF

The applicant claimed that her late husband's carcinoma left lung was consequential upon the pensioned condition of pulmonary tuberculosis because prior treatment for tuberculosis had made it impossible to perform surgery for the lung cancer. The Board ruled that there was no connection between the cancer and the tuberculosis. The ruling appears to hinge on the fact that there was no medical evidence that the pensioned condition had caused the veteran to receive less adequate or effective medical care than he otherwise would have.

(15/5/95) Veterans Appeal Board #VE-12251/BFF

The appellant claimed a pension under 21(5) for toxic erythema (adverse reaction) to anti-inflammatory drugs taken to treat a pensioned condition of bilateral metatarsalgia. The Board found that the toxic erythema was caused entirely by the pensioned condition of bilateral metatarsalgia and awarded a pension.

(27/11/89) Veterans Appeal Board #E-3295/2P

The appellant's condition, benign prostatic hypertrophy, could have been surgically corrected and, supposedly, based on the evidence, completely cured, were it not for his pensioned condition of arteriosclerotic heart disease. The Board therefore ruled that the appellant was entitled under subsection 21(5) to pension entire for the consequential condition.

(16/3/89) Veterans Appeal Board #E-1756/YFF

The appellant was pensioned for asthmatic bronchitis (Active Force service). He claimed that the medication he took to treat the bronchitis affected his atrial fibrillation and arteriosclerotic heart disease. Under subsection 21(5), and based on the medical evidence, the Board awarded one-fifth entitlement for both the atrial fibrillation and the arteriosclerotic heart disease.

(03/2/86) Pension Review Board #E-11834/4P

Under subsection 12(3.2) [now 21(5)] the Board found that the appellant began steroid medication in 1955 for his pensioned condition of asthmatic bronchitis. The links between steroid therapy and osteoporosis and osteoporosis and cervical disc disease were recognized by the Board. It ruled the Appellant pensionable three-fifths for that part of the cervical disc disease which was a consequence of the pre-enlistment condition of asthmatic bronchitis for which he was receiving a one-fifth pension. The Board rejected the principle that the secondary award could not be greater than the award upon which it was based.

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Etiological relationship not required

(23/3/87) Pension Review Board #E-14574/2P

The Board faced an argument from the advocate that subsection 12(3.2) [now 21(5)] of the Pension Act does not require a "cause and effect relationship" for pension entitlement. The advocate cited a previous decision, E-4109 from 1980, in which the Pension Review Board states that an etiological or causative relationship between the two conditions is not necessary. Rather, it is sufficient to establish that the presence of the disability from the pensioned condition has adversely affected the disability resulting from the claimed condition. In this case, however, the Board found that the claimed condition was not “adversely affected by” the pensioned condition.

[1984] IX(1) Pension Review Board Reports 1

Although the Board declined to accept that the ulcer condition could be a cause of psychoneurosis, it did accept that the presence of the one might aggravate the other condition. In this case, the degree of aggravation was set at one-fifth.

(05/8/80) Pension Review Board #E-4109/2P

The Appellant was receiving a pension for gunshot wound with arteriovenous fistula. He suffered a myocardial infarction and claimed that the disability resulting from his cardiac condition was an additional disability consequential in whole or in part upon his pensioned disability. The Board stated there was no requirement under subsection 12(3.2) [now 21(5)] for an etiological or causative relationship between the two conditions. Rather, it is sufficient to find that the presence of the disability from the pensioned condition has "adversely affected" the disability resulting from the claimed condition. In this case, however, the Board found no progression of the sclerotic changes due to the fistula.

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“Lock step” policy

(15/4/92) Veterans Appeal Board #VE-7549/2I

The Appellant had pension entitlement of one-fifth, assessed at 20%, for peptic ulcer. He had an operation for the ulcer and, as a direct consequence, underwent a splenectomy. The Canadian Pension Commission ruled that, as the peptic ulcer held only a one-fifth entitlement, then the splenectomy, of necessity, could hold only one-fifth entitlement. This was its "lock step" policy. The Board ruled, however, that the Commission's policy was clearly wrong because it had fettered its discretion and failed to examine the facts of the individual case. All of the evidence indicated the splenectomy was fully consequential upon the previously pensioned peptic ulcer. Therefore, in accordance with subsection 21(5), the Board awarded a full pension for the splenectomy.

(21/3/89) Veterans Appeal Board #E-1251/YFF

The Board confirmed that bilateral calcaneal spurs were entirely consequential upon the pensioned condition of pes planus. The Board increased the entitlement from three-fifths to full given that the calcaneal spurs were fully consequential upon the pensioned condition of pes planus and the legislation [21(5) of the Pension Act] does not permit the entitlement award of the pensioned condition being used to limit the award of entitlement in a consequential claim.

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Accident subsequent to primary condition

Stuber v. Canada (Attorney General), 2003 FCT 768

A Korean War veteran applied for torn medial meniscus of the right knee as consequential on left knee conditions. The Minister and the Board applied the departmental medical guidelines in finding that there was no consequential relationship. The claimant relied on medical opinions that suggested there could be a relationship. The judicial review appeal application was allowed. The Board erroneously found no history of a long-standing abnormal gait caused by the left knee, as there was evidence that the applicant had walked with a limp from the end of his military service until the surgery for the right knee. In addition the medical evidence suggested that the left knee could have caused the applicant to slip, therefore causing the right knee injury. The preponderance of the evidence was therefore that there was a nexus between the left and the right knee injuries.

[1984] IX(1) Pension Review Board Reports 33

Where the evidence disclosed that the accidental fall occurred entirely as a result of the instability of the pensioned left knee, the Pension Review Board concluded that the torn ligaments right elbow could not be other than wholly pensionable. It could find no reason to justify an award of only partial entitlement.

[1978] 7 Pension Review Board Reports 458

As a result of wounds, the claimant lost the use of his right eye and right ear. He was granted pension entitlement for those conditions. Some time later he was struck by a motor vehicle while crossing a street and suffered a leg injury. He claimed that his disabilities prevented him from seeing or hearing the vehicle in time to avoid the accident. The Board held that he had not had the disabilities long enough to be completely adjusted to them, and that his leg injury was consequential upon them to the extent of one-fifth.

[1976] 7 Pension Review Board Reports 63

The applicant maintained that were it not for his pensioned leg disability he would have been able to avoid a motorcycle accident. The Board held that any fault on the part of the applicant should not be a factor in determining whether the disability incurred was consequential upon the pensioned disability. But the Board found that the evidence indicated that the pensioned disability did not contribute to the accident.

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Other

Patterson v. Canada (Attorney General), 2009 FC 801

The Board denied an application for MS as consequential to a one-fifth pension for PTSD. The applicant served in the forces from 1981 to 2003. He began suffering serious medical symptoms in 1998 and was diagnosed with MS in 2000. He was not diagnosed with PTSD until 2002, but his medical experts indicated that he had suffered PTSD prior to his diagnosis and that the stress precipitated his MS. The Board found the applicant had failed to establish a consequential relationship between PTSD and MS.

In its decision the Board referenced a passage from the VAC Guidelines that denied any clear connection between stress and arterial sclerosis. This was an error, as the Board had based its decision on a condition other than the MS suffered by the plaintiff. The Board was also heavily influenced by the dates of diagnoses, despite uncontradicted medical evidence that the applicant had suffered PTSD before being diagnosed with it and before suffering MS.

Sangster v. Canada (Attorney General), 2002 FCT 97

The pension requested, which was a request for a disability pension due to a COPD diagnosis pursuant to subsection 21(1) of the Act, is completely distinct from the request where the applicant, in fact, asked for a supplementary disability pension for COPD being consequential to the already pensioned condition of CS pursuant to subsection 21(5) of the Act.

Interpretation I-19 [1976] 6 Pension Review Board Reports 1

The term "arteriosclerosis" is to be used to identify all of the following: arteriosclerotic heart disease; arteriosclerotic cerebral vascular disease and arteriosclerotic peripheral vascular disease. Arteriosclerosis is a natural degenerative process of the blood vessels common to all individuals but varying in its rate of progression. When medical evidence of the disease appears, the affected vessels have been involved in the process for a prolonged, but variable, period of time. Hypertension and diabetes hasten the progress of arteriosclerosis. An award for "arteriosclerosis" is proper under subsection 12(3.2) [now 21(5)] when any or all areas of arteriosclerosis are involved as a consequence of hypertension or diabetes.

Interpretation I-11 [1973] 2 Pension Review Board Reports 261

This interpretation of sections 26 and 67 (now 35 and 87) of the Pension Act concerning pulmonary tuberculosis is probably of little use now, given subsequent changes to the policy on tuberculosis and in the treatment of tuberculosis. The decision is cited, however, in the Table of Disabilities as justification for the current approach on pensioning for disabilities arising from thoracoplasty. The decision discusses the question of whether such disabilities are consequential or are part of the condition of tuberculosis.

(02/7/02) Veterans Review and Appeal Board 372403

A psychiatric condition was found to be not consequential on hearing loss.

(21/2/02) Veterans Review and Appeal Board 293948

Conditions in one part of the spine were found not to be consequential to a herniated disc in another part of the spine. The Minister's decision had denied entitlement on the basis that the lumbar and thoracic regions are segments of the spine which are independent of each other.

(04/7/94) Veterans Appeal Board #VE-6291-RR/BFF

The Board concluded that (1) a pension awarded under subsection 21(5) cannot be made retroactive under subsection 39(1) to a date that is before the date of entitlement for the primary condition; (2) an application under 21(1) for a condition does not also constitute an application under 21(5) to claim the condition as a consequential one.

(27/11/89) Veterans Appeal Board #E-3289/YFF

The appellant had been pensioned for depressive neurosis. The advocate argued that where there is evidence of stress resulting from chronic nervous problems, the stress can aggravate arteriosclerotic heart disease. The Board found that the arteriosclerotic heart disease was pensionable one-fifth for that part of the disability which was a consequence of depressive neurosis pursuant to 21(5).

(22/9/87)Pension Review Board #E-14810/2I

The appellant was pensioned at one-fifth for recurrent appendicitis and Meckel's diverticulum, both of which were assessed at nil. He claimed for inguinal hernias. The Board found that the right inguinal hernia was pensionable in full as a consequence of the pensioned conditions of recurrent appendicitis and Meckel's diverticulum, but it could not find a consequential relationship for the left inguinal hernia and the pensioned conditions. The Board pointed out that under subsection 12(3.2) [now 21(5)] it is only necessary to show that the primary condition would be pensionable if it had resulted in a disability. The fact that the primary condition results in no assessable disability is not a bar for the award of a pension.

(31/8/87)Pension Review Board #E-15436/BFF

It was recognized by the military that the appellant (deceased) was an alcoholic, but preventive action was delayed. The Board held that, given the expert psychiatric evidence, the expert opinion of the Registered Social Worker, and the evidence of the Director of the Alcoholism Rehabilitation Centre, the late member's condition was aggravated by his Regular Force service and possibly, to a degree, by the military medical authorities who failed to treat him sooner. It awarded a one-fifth entitlement. The Board also awarded full pension entitlement for cirrhosis of the liver on a consequential basis under subsection 12(3.2) [now 21(5)]. It also ruled, however, that although death was due to the cirrhosis, it did not arise out of nor was it directly connected with military service in peace time.

(03/3/87) Pension Review Board #E-14498/2P

The Board found that a single high blood pressure reading of 150/95, recorded at medical examination at discharge, was not a manifestation of a hypertensive condition diagnosed 25 years later. As the primary condition of hypertension had not been granted pension entitlement, the consequential claim for arteriosclerosis was also denied as the requirements of subsection 12(3.2) [now 21(5)] of the Pension Act were not met. Furthermore, death due to myocardial infarction was found not attributable to Active Force service.

(12/11/86) Pension Review Board #E-13928/3P

The Board found that thrombophlebitis was fully consequential upon the pensioned condition of hallux valgus left foot, given that the thrombophlebitis arose from surgery for the hallux valgus. The Board wrote that there can be no doubt that a person in receipt of a pension on an aggravation basis is in fact in receipt of a pension (for the purposes of subsection 12(3.2) [now 21(5)]), as was clearly stated in Interpretation I-16.

[1975] 5 Pension Review Board Reports 147

The Board stated that subsection 12(3.2) [now 21(5)] only allows an application for a condition consequential on a pensionable condition to be made by the claimant himself. But under subsection 34.1(3) [now 48(3)] his widow may achieve the same result. In this case, the claim was only based on subsection 12(1) [now 21(1)], and the Board stated it could not adjudicate on the subsection 34.1(3) matter.

(19/2/98) Veterans Review and Appeal Board 6087491/BFF

In this entitlement appeal lifetime claim case, a surviving spouse claimed retroactive payment of a pension which had not been paid to the late veteran because he had not submitted Life Certificates as required by subsection 21(8) of the Pension Act. The claimant's representative argued that Veterans Affairs Canada should have been more pro-active in establishing the late veteran's whereabouts, but the Board decided that he had been given every opportunity to fulfill his obligation. His failure to do so was not the responsibility of the Department.

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Subsections 21(9), (10) and (12)

Cross References: Veterans Well-being Regulations, section 51.

Trainor v. Canada (Attorney General), 2011 FC 484

In a case involving the precipitating or aggravating of a genetic or congenital predisposition, subsection 21(9) of the Pension Act does not have any application where the claimed condition did not exist at the time of enrolment but rather the applicant's diagnosed condition at the time of enrolment predisposed him to the claimed condition.

Armstrong v. Canada (Attorney General), 2010 FC 91

The applicant, an RCMP member, was diagnosed with thoracic outlet syndrome. She claimed that her disability stemmed from a service-related injury. The Minister dismissed her application because her disability was not work-related. An entitlement review panel of the Board awarded a partial disability pension. That decision was upheld by an entitlement appeal panel. The appeal decision found that the root cause of her shoulder problem was a hockey injury she suffered before she joined the RCMP. Some of the evidence also referred to a congenital susceptibility. The applicant introduced new evidence at a reconsideration screening hearing that challenged the finding that her disability was related to the hockey injury.

The judicial review application was allowed. The refusal to reconsider was unreasonable. Section 21(9) of the Pension Act raises a rebuttable presumption that the applicant was in good health when she joined the RCMP, a few years after her hockey injury. There were no facts before the entitlement appeal panel that would allow it to connect the disability to the hockey injury. The finding that connected the disability to the hockey injury was outright speculation and could not be given any weight.

Dugré v. Canada (Attorney General), 2008 FC 682

The applicant filed credible medical evidence of the connection between a fall related to the service and the appearance of a back disability. The issue was whether the Board could withhold some fractions of pension entitlement because of a congenital back condition. The Federal Court ruled that subsection 21(9) of the Pension Act in combination with subsection 21(2.1) did not permit the Board to withhold any entitlement when the medical evidence established that the condition, although congenital, would have remained latent but for an injury related to the claimant's service. The Board is at liberty to impugn and reject any medical report but, in the case of credible evidence for the claimant, it must do so by relying on medical evidence responding to the points raised in the impugned report and in accordance with the specific provisions of section 39 of the Act. The judicial review application was allowed.

Cormier v. Canada (Attorney General), 2006 FC 118

Because the Board considered the role of microtrauma prior to enlistment and failed to refer specifically to subsection 21(9) of the Pension Act in its decision, it could not reasonably be inferred that the Board applied the presumption of fitness. That was an error of law that was reviewable on a standard of correctness. Therefore the case was referred back to the Board for a new hearing and reconsideration.

Léonelli v. Canada (Attorney General), 2003 FC 1374

The presumption under subsections 21(3) and (9) of the Pension Act was not considered by the Board. Nevertheless, it is part of the Act, and must be taken into account when the Board is evaluating a pension application. Under those provisions, the Act presumes that a disability that was incurred in the course of normal or sports activities by the soldier arose out of or was directly connected with those activities. Further, a finding that there was no disability in the medical examination at the time of enlistment suffices to establish that the person was not suffering from a disability at the outset, unless there is evidence that the disability was diagnosed within three months after the enlistment or evidence can be presented beyond a reasonable doubt that the disability existed prior to enlistment.

Woo Estate v. Canada (Attorney General), 2002 FCT 1233

According to subsection 21(9) of the Pension Act, proof beyond a reasonable doubt that a disabling condition existed prior to the enlistment of the member is required when a healthy condition is recorded on the medical entrance exam. In the case at bar, however, there was medical evidence that Mr. Woo suffered from schizophrenia after his enlistment and discharge from the military. Therefore, the question of whether he suffered from schizophrenia prior to his enlistment is not the determinative issue in this case. Even assuming that Mr. Woo was healthy prior to his enlistment, the Board was still required to assess and weigh the conflicting medical evidence to determine whether Mr. Woo's disability was the result of schizophrenia, or some other illness.

Leclerc v. Attorney General of Canada (9 February 1998) T-900-97 Noël J. (F.C.T.D.)

A war pensioner is entitled to a pension for any invalidity incurred during military service, irrespective of its origin, while a peace-time pensioner must establish a causal relationship between his invalidity and the military service. In this regard, the presumption enjoyed by the applicant establishes that his condition did not exist prior to his military service. The evidence discloses, moreover, that this condition existed when he left the military service. It must thereby be concluded that his condition was incurred during his military service. But the presumption is silent concerning the cause of his condition, which leaves the onus on the applicant to establish a direct relationship between the cause of his condition and his military service.

Interpretation I-21 [1977] 7 Pension Review Board Reports 141

The Board stated that subsection 12(5) [now 21(9)] provides a presumption of fitness upon enlistment for those members of the forces who have not served in a theatre of actual war. 12(5)(a) or (b) then sets out how the presumption can be rebutted. Furthermore, the presumption has only a conditional existence in that if, as provided by subsection 12(6) [now 21(10)], the veteran had, upon enlistment, given information concerning a disability or disabling condition and the information was later corroborated by evidence beyond a reasonable doubt that the condition had existed prior to enlistment, then the presumption ceases to exist. But this presumption in no way affects the veteran who has served in an actual theatre of war. His only concern when applying for a pension is whether or not the condition for which he was claiming pension had been “obvious” or “recorded upon medical examination prior to enlistment”, as defined in subsection 12(7) [now 21(12)]. Also, the words “written record” in 12(7) refer to the medical examiner's findings and opinion as the result of the examination. The histories given by the member at that time are no more than lay evidence though it may well serve to alert and assist the medical examiner. It is not medical evidence and is not a “written record” of a disability or disabling condition.

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Paragraph 21(9)(a)

(12/10/89)Veterans Appeal Board #E-3088/2I

The issue in this case was whether or not the appellant's condition of functional dyspepsia could be considered pre-enlistment in origin. The Board found that the mere fact that the condition had been diagnosed during the first month of service was not sufficient to conclude that the condition was pre-enlistment. That early diagnosis did, however, rebut the presumption of fitness. The presumption of fitness having been rebutted, it was then up to the Board to decide if the medical evidence established "beyond a reasonable doubt" that the condition was pre-enlistment. The Board examined the appellant's history of neurosis and eating disorders and found that functional dyspepsia was pre-enlistment.

(28/4/88) Pension Review Board #E-15497/YFF

No foot problems were recorded at enlistment. The evidence revealed that the appellant's right foot was recorded as moderate pes cavus during service, but there was no mention of the left foot having that condition until well after discharge. The Board awarded full pension entitlement for the right foot and none for the left. The Board commented on subsection 12(5) [now 21(9)] of the Pension Act and observed that the fact that the condition was diagnosed within three months of enlistment may rebut the presumption of fitness but does not establish that the condition was pre-enlistment in origin. In this case, there was no evidence to support the conclusion that the condition was pre-enlistment.

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Paragraph 21(9)(b)

(10/12/93) Veterans Appeal Board #PE-984-VRR/FED.CT2

Although there was nothing on enlistment, the Board found that, under 21(9)(b), there was sufficient medical evidence to overcome the presumption of fitness. Letters from doctors and hospital records showed beyond a reasonable doubt that the claimant had problems since childhood with his left ear and that his claimed condition of otitis media was chronic and pre-enlistment.

(19/9/90) Veterans Appeal Board #VE-4992/YFF

The Board found that there was sufficient medical evidence to overcome the presumption of fitness in subsection 21(9). The evidence was in the form of a consultant's report that indicated the appellant had "peculiar" feet characterized by rigidity, a degree of clawing, unusual shape and the possibility of the presence of gout. The Board therefore refused to award full entitlement and confirmed a partial award.

(15/7/88) Pension Review Board #E-7064-V/1P

The claimant enlisted in 1942, and no nasal abnormalities were reported. Five months later, a deviated nasal septum was diagnosed although there was no medical report of any injury. Although x-rays of frontal sinuses during his service were found to be negative, in 1950 a diagnosis was made, from those x-rays, of chronic maxillary sinusitis. The claimant maintained that he had injured his nose in 1942. The Board found that the lack of a medical report on the injury was not sufficient to refute the presumption of good health. It therefore could not find with certainty that the appellant suffered from a deviated nasal septum before enlistment.

(27/4/87) Pension Review Board #E-14766/YFF

An Entitlement Board had awarded a three-fifths pension for aggravation of a pre-enlistment condition. The Review Board examined carefully the medical advisor's claim, apparently relied on by the Entitlement Board, that the condition was "developmental" and therefore pre-enlistment. The Board concluded that the claimant did not have a pre-enlistment structural deformity but, rather, a "characteristic of body build" that made her susceptible to a foot disability. Susceptibility or predisposition, standing alone, however, is not sufficient to overcome the presumption established in subsection 12(5) [now 21(9)]. The Board held that there was not sufficient evidence to establish beyond a reasonable doubt that the pes cavus existed as a disabling condition prior to enlistment and awarded a full pension.

(13/11/86) Pension Review Board #E-13925/2P

The advocate contended that the medical evidence did not establish beyond a reasonable doubt, as required by paragraph 12(5)(b) [now 21(9)(b)] of the Pension Act, that the appellant had a pre-enlistment condition of valvular heart disease. The Board found, however, that because mitral systolic murmur was recorded at enlistment and subsequently during his service, the appellant suffered from his condition prior to his Active Force enlistment.

[1975] 5 Pension Review Board Reports 125

The Board held, in this Active Force case, that the fact that the claimant was predisposed to neurotic complaints was not sufficient to rebut the presumption of fitness where there was no “referable entry” and category “A” had been assigned on enlistment. The Board stated that the factors precipitating a clinical neurosis cannot be fully defined and it was not possible to state that the predisposition was so significant that it could be taken as a pre-enlistment condition from which the psychiatric disability developed.

[1973] 3 Pension Review Board Reports 71

The Board accepted evidence that the appellant's psychopathic personality disorder was congenital or constitutional. Therefore, by definition, and according to the relevant medical history, was pre-enlistment and not pensionable. The appellant had claimed that because the condition could be influenced by events during youth, it may have been worsened during his Active Force service which commenced when he enlisted underage at 16.

[1973] 3 Pension Review Board Reports 8

The applicant's statements concerning colds were not precise or conclusive enough to rebut the presumption of fitness and the medical evidence suggested that his bronchial asthma might have been a type that occurs in middle age rather than earlier in life. The Board accepted that the condition arose during Active Force service in Canada.

[1973] 2 Pension Review Board Reports 371

The appellant had a pre-enlistment history that demonstrated he was a “constitutionally emotionally unstable person”. The Board was satisfied that the personal and family history evidence permitted a finding that the condition was pre-enlistment under 12(5)(b) [now 21(9)] of the Pension Act. The Board declined to award a pension given that there had been no worsening of the condition during Active Force service.

[1973] 2 Pension Review Board Reports 353

The Board accepted a medical opinion that the appellant's personality disorder, although not recorded or obvious on enlistment, was determined in his early years and was therefore pre-enlistment. The Board also ruled that the condition was not aggravated during service.

[1972] 2 Pension Review Board Reports 69

The Board found that asthma or asthmatic bronchitis is usually found in persons with an inherited allergic constitution, but that is not necessarily so. Asthmatic bronchitis may also be of the acquired type, i.e., due to bacteria in the bronchi caused by chronic bronchitis. In this case, therefore, the presumption of fitness upon enlistment could not be rebutted, because the medical evidence demonstrated there was a possibility the condition was not inherited but, rather, acquired during service.

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Subsection 21(10)

De Leeuw v. Canada (Attorney General), 2011 FC 237

Subsection 21(10) does not assist the Applicant. He had not provided any information about a heart condition when he enlisted. Even if he had, that information would have been corroborated by the medical tests performed on him at the time.

(28/4/87) Pension Review Board #E-14596/4P

The appellant had indicated on an enlistment questionnaire that he had "backaches". An Entitlement Board found that entry sufficient, based on a Medical Advisor's Opinion, to establish beyond a reasonable doubt that the appellant's lumbar disc disease was pre-enlistment. The Appeal Board ruled that it was inconceivable that a reference in an enlistment document to "backache", without any diagnosis or further description that could constitute the evidence necessary to rebut the presumption of fitness contained in subsection 12(5) [now 21(9)] of the Pension Act. It also found the statement of the appellant at enlistment to be excluded by subsection 12(6) [now 21(10)], which provides that a statement made at enlistment is not evidence, unless there is other evidence that establishes pre-existence beyond a reasonable doubt.

(02/4/87) Pension Review Board #E-13922/2P

The Board found that the appellant's bronchial condition was not pre-enlistment in origin. In its decision, the Board disagreed with a statement of the advocate that under subsection 12(6) [now 21(10)], where a statement made on enlistment was excluded, subsequent repetitions of it should also be excluded. The Board observed that the subsequent statements were not inadmissible but should rather be given whatever weight they deserved.

[1976] 5 Pension Review Board Reports 396

Information given by a member of the Forces at the time of enlistment is not a record within the meaning of subsection 12(7) [now 21(12)]. Such information should have served only to alert an investigating medical officer to the possibility that such a condition might exist. If the condition was then discovered through further investigation and became noted upon the enlistment medical record, it became a record in accordance with the definition contained in subsection 12(7); but otherwise, and even if future investigation revealed the presence of the condition previously referred to by the member of the Forces, this merely establishes as envisaged by subsection 12(6) [now 21(10)] that the condition had been of pre-enlistment origin. No enlistment record of the claimed condition exists in this claim.

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Subsection 21(12)

(13/2/87) Pension Review Board #E-14375/YFF

The Board found that the appellant had a pre-enlistment condition of hypertension. That finding was based on a single check at enlistment which the Board said constituted a record for the purposes of establishing that the Appellant had high blood pressure when he joined the service.

[1977] 6 Pension Review Board Reports 464

The veteran enlisted on 16 December 1940. He was medically examined on 14 December, when an x-ray was taken. The radiologist's comments on the x-ray were dated 18 December. They described a condition of mild bronchitis. It was argued that since they were dated two days after enlistment, they could not constitute a record within the meaning of subsection 12(7) [now 21(12)]. The Board held that the x-ray, and the x-ray report with findings, constituted one record, and that the condition must be taken as having been recorded.

[1976] 6 Pension Review Board Reports 194

A record of glycosuria alone is not a record of diabetes. The condition was found, however, to be pre-enlistment in origin.

[1975] 5 Pension Review Board Reports 129

At enlistment, the condition (psoriasis) was not apparent to the medical examiner. Therefore it would not have been apparent to an unskilled observer, was not obvious and could not be used to restrict the applicant's entitlement.

[1975] 5 Pension Review Board Reports 102

The Board held that a statement made on enlistment was not a record within the meaning of subsection 12(7) [now 21(12)] and, as the hearing condition was not obvious, the condition was pensionable in its entirety under paragraph 12(1)(c) [now 21(1)(c)].

[1975] 5 Pension Review Board Reports 75

An enlistment chest film constituted a record of peribronchitis.

[1975] 5 Pension Review Board Reports 61

The Board indicated that a record of disability made in a report of a Workmen's Compensation Board is a record for the purposes of paragraph 12(1)(c) [now 21(1)(c)]. But a condition of back strain recorded prior to enlistment was held not to be evidence of the claimed condition of lumbar disc disease, pursuant to 12(7) [now 21(12)].

[1973] 2 Pension Review Board Reports 79

The Board held that disabilities noted during previous service in the British forces amounted to a record of a pre-enlistment condition.

[1972] 2 Pension Review Board Reports 73

The appellant had a hammer toe condition not recorded on enlistment, although there was a related scar. The Board held that the condition was not recorded or obvious because it would not have been obvious to an unskilled observer that the scar meant the appellant had a hammer toe condition. Because the condition was not recorded or obvious on enlistment, the appellant served in an actual theatre of war and suffered during service an aggravation of the condition, the Board awarded a full pension.

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Section 22 (Improper conduct)

Matchee v. Attorney General for Canada (5 January, 1999) T-1489-97 Wetston J. (F.C.T.D.)

The member was on service in a Special Duty Area. While detained in connection with the death of a civilian, he attempted suicide by hanging and was left with anoxic encephalopathy. The only issue was whether or not his disability was due to improper conduct, defined in subsection 3(1) of the Pension Act as including “wilful self-inflicted wounding”. The Board had concluded that the attempted suicide was a “wilful self-inflicted wounding” and was therefore improper conduct. It ruled that subsection 22(1) prevented the award of a pension where the condition was the result of improper conduct. Mr. Justice Wetston in the Federal Court review found that because the member did not intend to wound but rather to kill himself, his actions could not amount to improper conduct. The 1980 amendments to subsection 22(1) of the Act, which removed death from the section dealing with improper conduct, suggest that a self-inflicted injury caused in an attempted suicide is not improper conduct, whereas a wounding without a suicide attempt may be improper conduct.

Prior to 1980, death was included in the section dealing with "improper conduct". The definition at that time (s.2) was the same; i.e. improper conduct could have been death by wilful self-inflicted wounding. This, of course, could include death by suicide. Death or disability do not have the same meaning. While death did not result, the attempted suicide resulting in brain damage, in this case, where there is no evidence of falseness or artifice, does not amount to improper conduct.

(02/5/96) Veterans Review and Appeal Board #6033510/RFF

The applicant was hurt in a vehicle accident while on duty. He was not wearing a seat belt, was apparently exceeding the speed limit, and may have been impaired. The issue was whether he was precluded from receiving a pension for his injuries because they were due to improper conduct. The Board found that there was a doubt that the accident was due to alcohol impairment and awarded a pension. The Board did not address the issues of whether or not speeding and failure to fasten the seatbelt constituted improper conduct.

(15/9/94) Veterans Appeal Board #VE-10966/BFF

The appellant was serving in a Special Duty Area. He got drunk and while in the Command Post Office deliberately put his fist through a glass window lacerating his arm and severing nerves and arteries. The Board found that he was not prevented by subsection 22(1) from being awarded a pension because his actions did not amount to “improper conduct”, according to the definition of that term in subsection 3(1). The Board focussed on the wilfulness of the appellant's actions.

(04/4/87) Pension Review Board #E-143-42/1P

Nothing indicates that the injury suffered by the appellant was attributable to misconduct in accordance with the definition given in subsection 2(1) [now 3(1)] of the Pension Act. To state the contrary would be to suggest that subsection 13(1) [now 22(1)] applies to any situation in which an injury occurs while an appellant is being punished for a criminal offence. The Board held that that would not be a correct interpretation of the applicable legislative texts.

[1974] 3 Pension Review Board Reports 4

The Board stated that venereal disease incurred during service has not been pensionable under the Pension Act since the inception of the Act. During the Ralston inquiry in 1922-24, a recommendation was made and incorporated into the Act, to the effect that an aggravation for pre-enlistment venereal disease should be granted where the claimant had served in a theatre of actual war and the aggravation had occurred during service. The Board stated it was also aware that a recommendation that the award of pension for venereal disease be no longer fettered by the provisions of section 13 [now 22] had not been implemented when the Pension Act was last (prior to 1974) extensively amended.

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Section 34 (Children)

Lapalme v. Canada (Attorney General), 2012 FC 820

Subsection 34(3) of the Pension Act permits the Minister of Veterans Affairs to award a pension to a member of the Forces in respect of a dependent child. However, under section 43 of the Act, certain conditions must be satisfied:

Additional pension for disability shall not be paid to a member of the forces in respect of a spouse or a dependent child unless the person in respect of whom additional pension is payable lives with the pensioner or maintains, or is maintained by, the pensioner to an extent that, in the opinion of the Minister, is at least equal to the amount of the additional pension.

In this case, for all practical purposes, the Board endorsed the Department's interpretation that sufficient maintenance will be taken to have been provided if the pensioner, spouse or dependent child, as the case may be,

  1. makes monthly payments of a sum of money equivalent to the additional pension for the spouse or dependent child, as applicable, or
  2. pays for the cost of, or provides, one of those items which goes to make up the necessities of life (e.g. shelter, food, clothing, and medical services including medical insurance and prescriptions) provided the cost equates to the amount of additional pension for the spouse or dependent child, as applicable. The payment for such items as rent, mortgage, property taxes, the cost of clothing, food, medical insurance or prescriptions qualifies as the provision of maintenance or support for such purposes of Section 43.

The Department's policies are unenforceable, non-binding guidelines. That said, they refer to relevant criteria that enable the decision-maker to determine whether a child is a dependent child of the person applying for an additional pension.

Section 43 of the Act expressly provides that, to be entitled to an additional pension, the applicant must establish that the dependent child “lives” with him or her or “maintains, or is maintained by” the applicant to an extent that is at least equal to the amount of the additional pension set out in Schedule 1 to the Act. The French version of this provision uses, respectively, the terms “demeure” and “subvient à ses besoins ou est à sa charge” which, at the very least, may reasonably assume that there is a certain continuity and regularity in time.

In finding that the only question to answer in this case was whether the applicant provided sufficient evidence to establish that she maintained her common-law partner's child “on an ongoing, uninterrupted basis”, the Board did not impose a requirement that is not in section 43 of the Act nor did it add a criterion foreign to the conditions set out in the Act.

(07/3/10) Veterans Review and Appeal Board 493711

There are four statutory requirements which must be satisfied in order to establish entitlement to an additional pension for or in respect of a child who is over the age of 18 (i.e., an adult child) on the basis of the child’s infirmity, under section 34 of the Pension Act.

The four criteria on which evidence is required are:

  1. the child is unable to provide for the child’s own maintenance;
  2. because of an infirmity that occurred before the age of 21;
  3. and the infirmity incapacitates the child from earning a livelihood;
  4. finally, the child must be legally entitled to be maintained by his or her veteran parent.

(17/2/99) Veterans Review and Appeal Board #6471953/6239306

The Board found that an appellant, who was injured at age 20, was not entitled to a pension as a child of a pensioner. The Board based its ruling on section 43, which required that a child be living with or maintained by the pensioner at the time of his death. It confirmed an Entitlement Review decision that found the claimant was not entitled under section 43 and subsection 34(3) because, at the time of the accident, he was not entitled to be supported by the pensioner.

(09/3/99)Veterans Review and Appeal Board #6580910

The evidence demonstrated that the claimant, born in England during the Second World War to a Canadian father killed during the war, had suffered from a psychiatric condition from a young age. Although he had attempted to pursue gainful employment, including in Canada, he had never succeeded. The Board ruled that neither section 34 nor 43 prevented the claimant from receiving a pension in view of the fact that although he had tried to work and support himself he had never been able to do so.

(28/1/99) Veterans Review and Appeal Board #6411941

The claimant, the son of a pensioner, had been hurt in a car accident when he was 20. He worked for many years after that despite the injuries he received. He later applied for a pension. The Board noted that in the long period from the accident in 1972 until the 1990s, the appellant successfully educated and supported himself. During that time, he was not in any way entitled to be maintained by his father and was not in fact dependent upon, nor was he maintained by, his father. Although it was clear that the appellant was injured in a motor vehicle prior to the age 21 cut-off date, it could not be concluded, given the appellant's circumstances over the succeeding years, that an infirmity as contemplated by the Pension Act had occurred before the age of 21. The Board distinguished the case from other cases decided by it under Section 34 in which the claimant could be said to have suffered an infirmity prior to age 21, because he was unable to maintain himself from the date of the relevant accident or illness, and therefore the infirmity had occurred at the date of the accident or illness rather than later in life, as in the present case. The Board also found that the requirements of section 43 had not been met.

Interpretation I-32 (20 September, 1984) Pension Review Board

The Board ruled that paragraph 25(1)(a) [now 34(1)(a)] of the Pension Act is not intended to include provincial governments among those responsible for the maintenance of children. This meant that, under subsection 25(7) [now 34(6)], an applicant could qualify for a pension even if a provincial government had assumed responsibility for his or her care. An amendment to the Pension Act [to what is now paragraph 34(1)(a)] subsequent to I-32 now ensures that the issue is whether or not the child can provide for his or her own maintenance and that whether or not a provincial government has assumed responsibility is irrelevant to the question of pension entitlement.

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Subsection 34(3)

(13/4/99) Veterans Review and Appeal Board #6514281

The member was in a common-law relationship with the mother of two children. He claimed additional pension for the mother and her children. The children's natural father was paying some support for them. The Board first examined the definition of child in section 3 of the Act and found that, because the common law relationship satisfied subsection 42(6) of the Act, the children were step-children within the meaning of section 3. The Board then looked to section 43 and found that the child was living with or being maintained by the pensioner as required by that provision. The Board then examined subsection 34(3) which requires that the child be entitled to be maintained by the pensioner. The Board considered the relevant provincial legislation, which indicated that the pensioner would be obligated to support the child if he had been in a common law relationship for more than three years and had demonstrated a settled intention to treat the child as a child of his own family. In this case the Board believed there was sufficient evidence to satisfy subsection 34(3). It considered a recent Supreme Court of Canada decision which identified some factors that would indicate that a step–parent was acting in the place of a parent including whether or not the child participates in the extended family in the same way as would a biological child, whether or not the adult provides financially for the child, disciplines the child as a parent, represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; and the nature of the nature or existence of the child's relationship with the absent biological parent (however a parent-child relationship between another adult and a step-child can exist even where the biological parent is paying financial support.)

(25/2/97) Veterans Review and Appeal Board #6491516/BFF

The Board addressed the issue of whether the appellant could receive an additional pension for the son of his common law wife in a case where the natural father was making support payments for the child. The Board decided that the step-son met the definition of “child” at subsection 3(1). Therefore a pension was possible under 34(3), if the member had an obligation to support the child. The Board found that under the relevant provincial laws there was such an obligation. The Board also found that the requirements of section 43 were met by the fact that the child was living with the member. All the requirements having been met, the Board awarded an additional pension for the child.

(03/7/96) Veterans Review and Appeal Board #2898997/YFF

The applicant had applied for an additional pension for his stepdaughter. The stepdaughter lived with the applicant and the stepdaughter's mother. The applicant had not adopted the child because her biological father opposed it. The biological father was paying some maintenance for the child, but the veteran was able to show he was providing for her financially, beyond the amount he would receive in additional pension. The Board granted the additional pension under subsection 34(3) and section 43 of the Pension Act.

(23/5/90) Veterans Appeal Board #VE-4693/YFF

The appellant applied under subsection 34(3) for an additional pension for a grandchild who lived in his home for 20 months from August 1988 until April 1990. The appellant's spouse had died in July 1988, and a separated daughter moved back home to act as housekeeper. The child in question was her daughter. Both the Canadian Pension Commission and the Entitlement Board denied the request for the additional pension. The Commission and the Board both said that, under the definition of "child" in subsection 3(1) of the Pension Act, and subsection 34(3), the required parent-child relationship could only be established by a court of law or pursuant to an order of a Provincial Director of Child Welfare. In this case there was neither. The Board said that that position was a fettering of discretion by the Commission, which should examine each case to determine whether a de facto parent-child relationship exists. In this case, however, there was no de facto parent-child relationship. Therefore, no additional pension could be awarded.

Interpretation I-40 (19 May, 1989) Veterans Appeal Board

The Board decided that the legislative authority for award of additional pension to children rests in both section 21 and subsection 34(3) of the Pension Act: Section 21 provides the authority for the award of additional pension to children in the majority of cases, whereas subsection 34(3) would only be resorted to in unusual or extraordinary circumstances.

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Subsections 34(6) and 34(7)

Interpretation I-30 [1984] Pension Review Board Interpretations 169

The Board held that a proportionate widow's pension payable under subsection 34(3.1) [now 45(3)] is not subject to the adjustments required under sections 19 and 20 [now 25 and 26]. The Board indicated that a widow's pension under 34(3) [now 45(2)] would be subject to adjustment under sections 19 and 20 and that its reasoning extended to subsections 25(7) and (8) [now 34(6) and (7)] which deal with children's pensions.

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Section 35 (Pensions for disabilities)

Canada (Attorney General) v. Ladouceur, 2011 FCA 247 varying Ladouceur v. Canada (Attorney General), 2010 FC 1148

Subsection 35(1) of the Pension Act provides that the amount of a disability pension is to be determined “in accordance with the assessment of the extent of the disability.” Subsection 35(2) provides that the assessment is to be “based on the instructions and a table of disabilities to be made by the Minister.” The Minister has made a Table of disabilities with instructions.

The issue before the Board was how this Table should be applied to the applicant's case. Specifically, the Board had to consider which of two tables applied to the applicant's disability.

The Board found that the condition fell within the plain wording of the table it had chosen. In the Board's view, some tables were to be “used to assess the disability resulting from a specific part of the body.” The Board observed that there was no language in the instructions that allowed the Board to choose a table that would give a claimant a more favourable disability pension. All of these considerations supplied the Board with a defensible basis for its decision regarding the applicable table.

In reaching its conclusion, however, the Board took into account advice from a medical advisor whose identity is unknown. By receiving this advice without disclosure to the applicant and without giving him an opportunity to test, challenge or rebut it, the Board worked an unfairness to him.

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Nelson v. Canada (Attorney General), 2006 FC 225 affirmed by Canada (Attorney General) v. Nelson, 2007 FCA 200

There is no question that the Minister can establish and use a table to assess the extent of a disability, but to determine whether or not there is a disability, section 3 of the Pension Act applies.

Ladouceur v. Canada (Attorney General), 2010 FC 1148

The Board was found to have erred when it relied on the advice of an unnamed VAC Medical Advisor with regard to the appropriate table from the Table of Disabilities with which to assess an ankle condition.

Gilbert v. Canada (Attorney General), 2010 FC 1300

The applicant contended that the Board erred in assessing his claim under s. 35 of the Pension Act. Based on the medical information available at the time, the Department assessed the ankle disability at a level four disability under Table 17.12 of the 2006 Table of Disabilities. The applicant appealed the decision to the Board and submitted an updated medical report from his orthopaedic surgeon. The Board declined to make any adjustment to the Departmental disability assessment. In its reasons the Board quoted a substantial portion of the physician's most recent report, but in its conclusion only referred to his report from a year earlier. The Board has no authority to independently substitute its opinion for that of the physician. It could reject his evidence if there was a rational evidentiary basis and a stated rationale for doing so. The failure here, however, to provide intelligible reasons for rejecting the opinion apparently in favour of older and presumably less reliable accounts is a reviewable error.

Patterson v. Canada (Attorney General), 2009 FC 801

The 1995 Table of Disabilities was replaced with the 2006 edition by the time the VRAB was rendering its decision. However, the new Guidelines state that the former Guidelines will continue to apply to certain proceedings. It provides as follows:

The 2006 edition of the Table of Disabilities will replace the 1995 edition of the Table of Disabilities on the date that it is implemented. The 1995 edition of the Table of Disabilities will still apply to certain proceedings initiated prior to, on or after the date of implementation, as directed by Departmental Transition Protocols.

It could not be determined from the record whether the application, which was initiated prior to the implementation date of the 2006 Guidelines, is one of the “certain” proceedings referenced in the above passage. If it is, then the 1995 Guidelines would continue to apply. The burden of proof is on the applicant to establish that the VRAB erred in relying on the former Guidelines; he has failed to meet that onus as there is no evidence before the Court showing that the decision under review was not one of those certain proceedings. Aside from the applicant having the burden of proof, the VRAB is familiar with its processes and should not be assumed to have applied the wrong Guidelines in reaching its decision.

Gillis v. Canada (Attorney General), 2009 FC 504

The Board upheld the Department's assessment of bilateral knee disabilities and the applicant applied for a judicial review. The judicial review application was allowed. The Board had assumed that a contradiction existed between two medical reports, where one did not necessarily exist. A careful reading of the evidence indicated that both reports supported a higher disability assessment. The Board had insufficiently considered portions of the report that it favoured. That was an error that warranted the Court's intervention.

Sonier v. Canada (Attorney General), 2007 FC 1278

Subsections 35(1) and 35(2) of the Pension Act direct that the amount of a disability pension is calculated by assessing the degree of disability resulting from the injury or disease in question.

The instructions and table of disabilities constitute authoritative medical evidence and the Tribunal may reject other medical evidence in the case of conflict.

Cramb v. Canada (Attorney General), 2006 FC 638

The Federal Court decided that the Board could reject an opinion about a claimed condition on the grounds that it did not accord with the Table of Disabilities, the Entitlement Eligibility Guidelines and the medical consensus as described in a medical text. The decision states:

Subsection 35(2) of the Pension Act provides that the assessment of the applicant's disability shall be based on the instructions and a table of disabilities made by the Minister for guidance to persons making those assessments. These instructions and table of disabilities are authoritative medical evidence and the Board can reject other medical evidence where it conflicts.

Garrammone v. Canada (Attorney General), 2004 FC 1553

In reviewing assessment decisions under section 35 of the Act and the Table of Disabilities, the Board was found to be able to cast doubt on the credibility of a physician's opinion about the extent of a disability insofar as that opinion was largely based on facts that were medically unverifiable or directly derived from impressions communicated by the applicant during the sole consultation he had with the physician. The Board may assign limited probative value to specific evidence when the evidence as a whole tends to affirm the contrary.

Yates v. Canada (Attorney General), 2004 FC 1159

The applicant suffered from diabetic retinopathy. The Board in examining the assessment allowed 5%. The Board relied on the Table of Disabilities, Chapter 8 and a POW report in Part III of the Table which was not part of the Board's record. The application for judicial review was dismissed. The Board did not err in referring to the POW report without giving the applicant prior notice.

Gillis v. Canada (Attorney General), 2004 FC 751

The Board does not error when in assessing a pensioned condition it excludes the effects of non-pensioned conditions which may be consequential to the pensioned condition but for which pension entitlement has not been yet awarded.

Kripps v. Attorney General of Canada, 2002 FCT 575, Pinard, J.

The claimant applied for osteoarthritis right knee consequential on bilateral pes planus (flat feet). A letter from a physician stated there was a causal connection between the conditions. The Board followed the entitlement guidelines, which stated that pes planus, pes cavus, or hallux valgus are not considered to be the cause of changes in lower limbs or the lumbral-sacral spine. The claimant applied for a judicial review and argued that the Board should not have relied on the Departmental Medical Guidelines in dismissing his application for pension entitlement. Mr. Justice Pinard held that the Board weighed all of the evidence in light of the Guidelines in making its finding that the osteoarthritis did not result from the claimant's pensionable condition. The Board had not come to an unreasonable conclusion in applying the guidelines.

Yates v. Canada (Attorney General), 2002 FCT 111, Hansen J.

The RCMP claimant had a pension for diabetes or an aggravation thereof arising out of or directly connected with his service. He then claimed for two consequential conditions: diabetic neuropathy and diabetic retinopathy which are related conditions. The Department (Veterans Affairs Canada) conducted an assessment, rolled the two assessments into one, and gave him an assessment of the neuropathy which, it appears, was to include the retinopathy. Therefore the Department gave a nil assessment for the retinopathy. The Board in its decision explained what had happened and ruled that the assessments were fair.

The Federal Court decision looked only at the eye disability and found there was one and it was assessed at nil. It found that it was misleading to give the diabetic retinopathy a nil assessment when the claimant apparently had a vision disability. It referred the matter back to the Board to establish an assessment for the eyes which had already been assessed as part of the diabetic neuropathy. The error in this case was in not combining the two conditions or establishing a separate assessment for each of them. Although the overall level of assessment for disability may have been correct, the Board's reasoning was wrong. If a claimant is pensioned for more than one condition, the disabling effects of each must be assessed separately.

Yates v. Canada (Attorney General), 2003 FCT 749, Kelen J.

The claimant was a former member of the RCMP. He received a disability pension for several medical conditions including diabetes. The claimant was diagnosed with hypoparathyroidism. He experienced fatigue, muscle cramping as well as balance and coordination difficulties. He took medication. The side effects of the drugs included weakness, constipation and muscle pain. The Minister granted the claimant a disability pension for the thyroid condition as consequential to another pensioned condition. The pension assessment was five percent. The claimant requested an increase to 15 percent because of the severe side effects from his medication. He was examined by a physician who recommended no change. Additional medical evidence indicated that the condition was under control with drugs. The Board decided he was not entitled to an increase because there was no objective medical evidence to support his request.

The judicial review application was dismissed. The claimant had failed to prove that the Board made an error. To succeed, the claimant would have to present medical evidence that supported his complaints and to show that the symptoms were not related to the other conditions for which he received a disability pension.

King v. Canada (Attorney General), (11 February 2000) T-1530-98 Pelletier J. (F.C.T.D.)

The decision includes the following guidance on section 35. It should be noted that the Act has been amended to eliminate the reference to “physicians and surgeons”:

It is true that s. 18 of the Act gives the Board jurisdiction with respect to reviews of pension decisions and s. 26 gives the Board jurisdiction with respect to appeals. It is also true that the Board cannot have been intended to simply rubber stamp any medical opinion put before it. But s. 35(2) is clear that the Table of Disabilities is provided for the guidance of physicians and surgeons, no doubt to promote a uniform standard for assessment. If physicians and surgeons are limited to listing symptoms and signs which the Board will then classify according to the Table, it cannot be said that the Table is for their guidance. In such a case, the Table would be for the Board"s guidance.

The French version of the section says that the Table is provided to help ("aider") physicians and surgeons who conduct medical examination "pour déterminer des pensions". . . . This does not support the view that physicians and surgeons are mere cataloguers of indicia of disability for the Board. It is not necessary for me to decide the respective roles the Board and physicians and surgeons in the pension scheme for purposes of this application but I do not accept the Board's narrow definition of the role of physicians and surgeons in the assessment process. It is sufficient for these purposes to say that having regard to the expertise of physicians and surgeons in assessing disability, and the legislative provisions which suggest that physicians have a role to play in assessing the degree of disability, the Board cannot reject a physician's assessment of disability without providing meaningful reasons as to why it is doing so.

Section 7 of the Veterans Review and Appeal Board Regulations requires the Board to give reasons for its decisions. Its failure to do so is an error of law which justifies the intervention of the Court.

In Mehterian v. Canada, [1992] F.C.J. 545, the Federal Court of Appeal held that where reasons are required to be given, "the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary". In that case, as in this one, the reasons consisted of a statement of conclusions reached but did not show how that conclusion had been reached.

Gavin v. Canada (Attorney General) (7 May 1999) T-1875-98 McKeown J. (F.C.T.D.)

In determining whether the Board committed a jurisdictional error by relying on the Guidelines as opposed to relying on the medical opinion . . . , I must bear in mind subsections 35(1) and (2) of the Pension Act . . . the Guidelines are specifically authorized by legislation. This distinguishes the case before me from Re Dale Corporation and Rent Review Commission et al[149 D.L.R. (3d) 113 (N.S.S.C., Appeal Div.)], where the guidelines relied on by the decision-maker were not authorized. The Board, in following the Guidelines on when a pension becomes payable, did not fetter its discretion and did not commit a reviewable error.

. . . .

In my view this case is similar to the one before Justice Muldoon in Bleakney v. Canada (Minister of Veterans Affairs). . . .

Even if the hearing loss in the applicant's case was caused by his service in the RCMP, it does not meet the level required to receive compensation.

Leclerc v. Canada (Attorney General), (1996) 126 F.T.R. 94

The medical guideline on which the Board relied sets out some rules of general application that cannot be applied blindly and irrespective of the evidence.

Bleakney v. Her Majesty the Queen (Minister of Veterans Affairs) (15 February 1994) T-1561-93 Muldoon J. (F.C.T.D.)

The Federal Court decision states that the Board's statement that it had “carefully weighed the evidence in light of the medical guidelines provided to assist in making a determination” is no indication of unlawfully or unduly fettering its discretion. Subsection 35(2) of the Pension Act specifically refers to “the instructions and a table of disabilities . . . for the guidance of physicians and surgeons” as a basis for estimating the extent of a disability. That is a statutory direction which lawfully directs the “boards” on how to go about their work.

(02/2/04) Veterans Review and Appeal Board 688799

The Board awarded a temporary high assessment for back surgery, even though the procedure was a microdiscectomy procedure which a Medical Advisor had ruled was not the kind of surgery to which a temporary high assessment should apply. The panel reasoned that what the applicant underwent was indeed “surgery”. To the Board members' knowledge, the Medical Advisor's opinion was neither a formal instruction made by the Minister, nor did it form part of the Veterans Affairs Canada Table of Disabilities. In the circumstances and until an instruction is issued by the Minister, or the Veterans Affairs Canada Table of Disabilities is amended appropriately, the panel would choose to rely on the statutory instruments to which the Pension Act refers.

(28/10/03)Veterans Review and Appeal Board 649101

The claimant had a 5% assessment for hearing loss and then claimed for tinnitus as a separate condition. The Board identified the date of application for the tinnitus award as the effective date and found that it was not appropriate to use section 39 of the Pension Act to award greater retroactive benefits. The decision includes a useful history of the guidelines concerning hearing loss and tinnitus.

(04/9/02) Veterans Review and Appeal Board 399274

In the case of a deteriorating knee condition, the 5% assessment granted in 1998 had a retroactivity date of 1997, which was the date of the pension entitlement application. A departmental increase to 20% was based on a medical examination in January 2002, which took into account X-rays done in December 2001, which showed that, with time, the condition claimed had deteriorated. This followed a new request for an assessment review, which is considered to be the initial application for this review, i.e. the date of 24 August 2001. The Board therefore concluded that the application for review of 24 August 2001 instituted a new assessment process. Thus, the previous process for the awarding of pension entitlement in 1998 with retroactivity in 1997 no longer applied. The first phase was extinguished by the application for review which was completed by the new medical examination. The increase from 5 to 20% in the assessment for the condition of bilateral patellofemoral syndrome therefore went into effect on 24 August 2001.

(06/3/02) Veterans Review and Appeal Board 313992

In a case where there is a significant discrepancy between the application date and the date on which medical evidence indicated a deterioration in the medical condition, it would not be reasonable to award a pension increase retroactive to a date which significantly predates the actual request for reassessment. This would effectively circumvent the scheme for applications in reassessment matters established under the Pension Act. Relying on the date of complaint for establishing the effective date of an assessment increase, is reasonable unless there is evidence of some exceptional or compelling circumstances which suggest that to do so would be unfair.

(22/9/99) Veterans Review and Appeal Board #6760784

The Board affirmed a nil assessment for a dental condition. The appellant had received extensive treatment benefit from Veterans Affairs Canada and a prosthesis which restored the appellant's ability to masticate. Pain, infection, and bleeding gums, and the treatment records were not evidence of a permanent disability under the departmental guidelines, which the Board viewed as “persuasive if not binding”.

(18/2/92) Veterans Appeal Board #VQ-1958/YFF

The appellant's assessment for lumbar disc disease was set at 30% and increased temporarily to 40% for six months following surgery. The Board confirmed both the basic assessment and the temporary increase following surgery.

(04/5/87) Pension Review Board #E-12570/YFF

The appellant sought to impugn the Canadian Pension Commission's "medical guidelines" on the consequential relationship between hypertension and arteriosclerosis. The guideline stated that, as a general rule, the appearance of disability from secondary clinical arteriosclerosis in a veteran in his 30s or earlier would allow for a three-fifths relationship, in his 40s, two-fifths, and in his 50s and older, one-fifth. The Board observed that the Federal Court decision in War Amputations of Canada v. Pension Review Board, (1975) Fed. R. 447, confirmed that the Commission had the power to issue a table of disabilities which constitutes delegated substantive legislation regulating the amount of pension awards. As to the appellant's claim that the Board had erred in law by religiously or capriciously following the guidelines without considering the absence of other risk factors, the Board found no error of law given that evidence showed hypertension had played but a minimal role in the onset of the arteriosclerosis.

(13/1/87) Pension Review Board #Q-2681/1P

The policy of the Canadian Pension Commission regarding a nil assessment of a pensioned dental condition, where a dental appliance restores the appellant's ability to masticate, is quite applicable and appropriate in the majority of cases, but exceptions are possible where a loss of bone or deformity of bone is present. Two pertinent questions are: Does the appellant currently suffer from an inability to wear dentures? Does the appellant suffer from any symptoms, such as inflammation, pain, or bone loss, that can be considered to be an assessable disability?

[1980] VIII(2) Pension Review Board Reports 141

Impotence resulted from adenocarcinoma of the colon. In fixing the assessment at 20%, the Board explored the meaning of the word “disability” and referred to a number of factors which should be considered in assessing disabilities, including the mental and emotional impact of the physical impairment.

[1978] VIII(1) Pension Review Board Reports 112

The Board reviewed some of the factors relevant to the establishment of assessments and disabilities. It stated that one of the factors is inability to compete in the labour market.

Interpretation I-24/E-3172 [1977] 7 Pension Review Board Reports 407

The Board discussed the evidentiary nature of the medical guidelines, medical precis and Statement of Case. It wrote:

This Board must point out that the medical guidelines are required under . . . the Pension Act. Theses instructions and tables represent, in the opinion of the Commission, the consensus of medical opinion. They are expression of the Commission's policy of general application to be taken as a guide. The general instructions state: “The Table of Disabilities exists only to assist the Canadian Pension Commission and medical officers in fulfilling their responsibilities. It does not offer final or absolute values”. These instructions, therefore have the same status as a textbook and the right of cross-examination does not extend to such material.

The medical precis is of a different nature. It is a recommendation by the Medical Advisory Branch to the members of the Commission on a medical aspect of the claim. It consists of a summary of the pertinent medical evidence in each individual case and an interpretation of those facts by the Medical Advisory Branch. The Commission is required by Section 69 to include this evidence in the Statement of Case. All this evidence is made available to the appellant and/or his representative prior to the preparation of his appearance before the Entitlement Board. The appellant is then free to challenge the medical advisor's comments and present positive medical evidence in support of his claim. The present procedure at the Entitlement Board level, which has evolved over the years, does not allow for the cross-examination of the Commission's medical officers.

[1975] 4 Pension Review Board Reports 374

The Board made an increased assessment effective the date of the Pension Medical Examination at which the first concrete evidence of the problem giving rise to the increase came to light.

[1974] 3 Pension Review Board Reports 214

Loss of teeth corrected with dentures is not considered a disability.

[1973] 2 Pension Review Board Reports 112

The fact that a condition prevented “certain forms of employment” resulted in an assessment of 5%.

[1972] 2 Pension Review Board Reports 111

The Board held that loss of time from work to travel to obtain treatment is not a factor in assessment of a disability.

[1972] 1 Pension Review Board Reports 87

In this decision, the Board addressed the relationship between the appellant's functional problem, or “functional overlay” and the manifestations of his arteriosclerotic heart condition in quantifying the appellant's disability.

[1972] 1 Pension Review Board Reports 90

The Board, in its decision, confirms the policy of the Commission that disabilities may be actual inabilities or imposed inabilities — prohibitions. The advocate had raised the question of the weight to be given “subjective symptoms” — worry or “functional overlay” — in considering the quantum of disability.

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Section 38(Attendance Allowance)

Subsection 38(1)

Arial v. Canada (Attorney General), 2010 FC 184

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. The words “has been awarded” in subsection 38(1) of the 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. 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.

However, the “additional award” provided for in subsection 39(2) of the 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”.

(3/5/2000) Veterans Review and Appeal Board #6166521

The claimant applied, seven months prior to his death, for a disability pension for a peptic ulcer disease. He also applied for an attendance allowance just one day before he died. An entitlement board granted pension entitlement, effective from the date of initial application. With regard to the attendance allowance, the Board pointed out that the claimant was not in receipt of a pension when he applied for the attendance allowance. The Board found that he (his estate or survivors) could not receive an attendance allowance, because the allowance could only be awarded from the date the pension entitlement was awarded and not the effective date of the pension. The Board found that the Department's policy on the matter was properly based on the legislation, that is, subsection 38(1) of the Pension Act.

(28/7/93) Veterans Appeal Board #VQ-1697-R/FED.CT2

The Board noted that the legislative provisions which allow for attendance allowances do not require that the applicant be totally disabled as a result of the pensioned condition. A claimant can be totally disabled for the purposes of attendance allowance without being in receipt of a 100% disability pension. Therefore the Board did not accept the appellant's submission that a 100% assessment had been conceded by the Commission when it awarded an attendance allowance.

[1979] VIII(2) Pension Review Board Reports 151

To qualify for an attendance allowance, it is not necessary that the pensioner be “helpless”, if that word is taken to mean more than the words “totally disabled”, which appear in section 28 [now 38] of the Pension Act.

Interpretation I-22 [1978] 7 Pension Review Board Reports 150

This decision discusses the origins of the exceptional incapacity allowance and its relationship to the disability pension and attendance allowance provisions. An attendance allowance is determined solely by the need for attendance. It is not compensation in whole or in part for incapacity under the exceptional incapacity allowance provisions.

[1976] 5 Pension Review Board Reports 485

There are two issues which must be determined when granting an attendance allowance: whether the applicant is incapable of caring for himself and the extent of the incapacity. The applicant need not be absolutely incapable before he may be granted an attendance allowance.

[1973] 2 Pension Review Board Reports 396

An assessment of 25% for a pensionable condition and 100% for a non-pensionable condition together meet the requirements of subsection 28(1) [now 38(1)] of the Pension Act. The Board also found that the appellant was “in need of attendance” where he could perform many acts for himself but still required help in some of the “day-to-day requirements of existence”.

Interpretation I-6 [1972] 2 Pension Review Board Reports 5

The Board ruled that, under subsection 28(1) [now 38(1)], an application for an award of attendance allowance or an increase in attendance allowance may be made at any time by a totally disabled pensioner and a decision on it cannot be delayed because the member is in a DVA hospital. It also ruled, on subsection 28(1.1) [now 38(2)], that an application for continuation of attendance allowance while in a hospital under the jurisdiction of the Department may be made at any time, and the Commission shall render a decision as to whether it will continue or cease.

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Subsection 38(3)

(22/2/00) Veterans Review and Appeal Board #6480703

The Board ruled that retroactivity for attendance allowance prior to the date of awarding entitlement was not contemplated by the Pension Act. The purpose of the one year payment period following the death of a pensioner is to ease the financial transition from a family budget, which had included the allowance, to one that does not. In the case where the claimant is not in receipt of an attendance allowance at the time of his death, a transition period is not required nor authorized.

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Section 39 (Date from which disability pension payable)

Arial v. Canada (Attorney General), 2014 FCA 215

The imperative nature of sections 39 and 56 of the Pension Act is confirmed by the case law, which is well settled. The pension that may be paid under subsection 56(1) upon the death of a veteran is subject to the same limits as the pension paid to a veteran’s survivor under subsection 39(1). The only exception is provided in subsections 39(2) and 56(2), which authorize an additional payment equal to two years’ pension. This regime applies to any form of award payable under the Act—including a pension, compensation, an allowance or a bonus, according to the definition appearing in section 3—such that the maximum award paid under the Act cannot, in any event, ever exceed the three-year retroactivity period (subsections 39(1) and 56(1)) and the additional award equivalent to two years’ pension (subsections 39(2) and 56(2)). The Federal Court decision in MacKenzie v. Canada (Attorney General), 2007 FC 481, has no bearing on these parameters.

Canada (Attorney General) v. MacDonald, 2003 FCA 31 affirming MacDonald v. Canada (Attorney General), 2001 FCT 678

A complicated and protracted series of entitlement and assessment decisions about two wrist conditions culminated in an assessment appeal decision. That decision established the effective date for the increased assessments as the date on which the panel perceived the claimant had requested assessment increases. The panel attempted to apply the Departmental Policy Manual as a basis for the effective date. The claimant sought a judicial review because, in his opinion, the assessment increases were never the result of a claimed worsening of the condition and therefore the assessment increase should have gone back to the date of entitlement.

The Federal Court decisions identified a gap in the Departmental Policy Manual. The Policy did not address the matter of retroactivity for non-deteriorating conditions. Therefore the assessment increases would have to be retroactive to the date of entitlement. The Federal Court of Appeal stated that section 39 of the Pension Act could be applied to limit the retroactivity of assessment increases. The Departmental Policy Manual has now been amended to reflect the fact that the two kinds of assessment retroactivity cases — deteriorating and non-deteriorating conditions — are different and require different policy provisions to establish effective dates.

Phelan v. Canada (Attorney General), 2014 FC 56

The applicant submitted that the Board erred by finding that his 2002 application was not “completed”. He argued that the legislation required only that an application be “made”. He submitted that he did not abandon or withdraw the 2002 application. Rather, he was simply unable, through no fault of his own, to obtain the necessary records to complete it. He also submitted that a medical diagnosis was not required and that it was unfair to require an applicant to provide a diagnosis as this may be beyond their control. The key issue was whether the applicant’s pension claim was “made” in 2002 or 2009. The record was silent from 2002 to 2009. If the applicant’s intention had been to pursue the 2002 application, it would have been reasonable to expect some further communication by the applicant or by his representative with the Department of Veterans Affairs. The diagnosis was provided only after the 2009 application had been commenced. A claim cannot be submitted to start the clock for the purposes of retroactivity if the diagnosis or the aggravated symptoms may not be present until a later date. While a fully completed application may not be required under subsection 39(1) of the Pension Act in order for the Department to assess the claim, something more than a bare application is required in order to support the view that the application is “made”.

Arial v. Canada (Attorney General), 2013 FC 602

The applicant wanted an award of increased retroactivity to compensate for the failure of Veterans Affairs Canada to provide proper advice and counselling. However the maximum retroactivity permitted by the legislation had already been awarded. The legislation does not permit the Board to go beyond what the Act allows with respect to the date on which a pension may be paid. Section 85 could not be used for an award that the Board itself could not consider nor for giving the Minister the power of ignoring the Act.

Belleau v. Canada (Attorney General), 2013 FC 215

An appeal panel of the Board could not modify its decision and change the effective date of a pension awarded for one psychiatric condition, chronic dysthymia, based on an earlier application for a different condition (anxiety neurosis). Furthermore, the Board had refused to award a pension for anxiety neurosis. The appeal panel could therefore not indirectly reverse that decision when ruling on an application for reconsideration concerning the effective date of a pension awarded for chronic dysthymia.

MacDonald v. Canada (Attorney General), 2009 FC 1254

This was a case where the delays in the matter, the difficulty beyond the Applicant’s control in obtaining documentation, and the two Federal Court hearings, resulted in significant delays that were not wholly within the Applicant’s control. The Board applied subsection 39(2) of the Pension Act, thereby granting the additional two years pension. Therefore, the Board gave the Applicant full, allowable retroactive payment period allowed under section 39.

Robertson v. Canada (Attorney General), 2010 FC 233

The issue of retroactivity is a question of statutory interpretation not within the VRAB's particular area of expertise and is subject to a correctness standard.

The power of the Board to alter the effective date of a pension is very circumscribed. Pursuant to subsection 39(1) of the Pension Act, there are two ways by which the retroactive effect of a pension can be established: a pension is payable on the later (not the earlier) of the day on which the application is made and a day three years prior to the day the pension is awarded [Atkins v. Canada (Attorney General), 2009 FC 939 at par. 32]. The practical anticipated effect of the provision is that any award should be made within three years of an application being filed [Atkins at para. 32; Leclerc v. Canada (Attorney General), (1998) 150 F.T.R.1, at par. 18].

The legislative intent of subsection 39(1) of the Pension Act is to establish a time limit on the retroactive effect of awarding a pension (Leclerc, at par. 19). As noted in Leclerc at par. 20: “The fact that the cause of the delay is not attributable to the applicant does not mean that subsection 39(1) may be disregarded, as it applies to any pension regardless of the circumstances in which it is awarded” (see also Cadotte v. Canada, 2003 FC 1195 at paras. 20-21).

Therefore, a letter from the applicant's daughter, which did not request specific assistance to file an application for disability benefits and which pre-dated the formal pension application, did not constitute an application under the Act and did not give rise to an earlier effective date.

Atkins v. Canada (Attorney General), 2009 FC 939

The applicant in 1992 filed a Notice of Application for a pension in which he included, amongst other matters, a claim for both his back (lumbar) and cervical spine injury. In 1994, on the recommendation of a medical adviser at Veterans Affairs, the neck claim was dropped by the Bureau of Pensions Advocates. Later the applicant made an application for cervical disc disease, and the pension was granted. The effective date was confirmed as June 29, 2005; the date on which the complete application was made. The applicant contended that the true application date was in 1992 when he first raised cervical injury as a possible claim.

The Federal Court held that under ss.39(1) the pension is payable on the later (not the “earlier”) of the day on which the application is made and a day three years prior to the day the pension is awarded. The practical anticipated effect of the provision is that any award should be made within three years of an application being filed. Since the applicant withdrew the cervical injury claim from his 1992 application, that application has no bearing on the calculation of the date on which the award is payable and does not form a basis for retroactivity. The cervical pension application was completed June 29, 2005 and awarded October 11, 2005 (three years earlier being October 11, 2002). The pension was made payable on June 29, 2005, the later of the two possible dates under ss. 39(1).

Subsection 39(2) sets a two (2) year maximum on retroactivity where there have been delays in securing service or other records or administrative delays. On the record here there was no such evidence of any of these circumstances. It was therefore reasonable for the Reconsideration Panel to refuse ss. 39(2) relief. Any suggestion that the applicant was not well served by the BPA is not a matter to be determined in this proceeding.

Skouras v. Canada (Attorney General), 2006 FC 183

The applicant submitted that the pension should have been rewarded retroactively for five years under subsection 39(2) of the Pension Act because the pension had been delayed by "administrative difficulties beyond the control of the applicant". When pressed to explain what these administrative difficulties were, the applicant submitted that the administrative difficulties were the decision of the Canada Pension Commission in 1991 which denied the applicant's pension application with respect to rheumatoid arthritis.

The Federal Court found that the delay was caused by the applicant waiting until 2003 to request a review of the Canada Pension Commission's 1991 decision. The 11 year delay could not be characterized as "administrative difficulties beyond the control of the applicant".

Trotter v. Canada (Attorney General), 2005 FC 434; [2005] 272 F.T.R. 1

The applicants sought compensation for time spent as prisoner of war or in evading capture. The Board ruled they were eligible from the date of application for the benefit. However the Federal Court found that the Board had erred in concluding that applicants would be entitled to such compensation only as of date of the application for it. Applicants are entitled to compensation retroactively to April 1, 1976, which was date of coming into force of legislation first providing for such compensation, regardless of when they apply. The applicants had acquired right to apply for compensation effective April 1, 1976, and ss. 71.2(4) and s. 39 of Pension Act should not be construed to abolish that right in absence of clear language to that effect.

Cur v. Canada (Minister of Veterans Affairs), 2003 FCT 801

The claimant, a veteran of World War II, applied for a disability pension in 1963, on the grounds that he had injured his back while on a warship in 1945. At the time of the application, he was informed that no records existed from the ship, and he did not pursue his claim. In 1996, the claimant applied for a pension for the back condition. The Board awarded a pension in 1998, retroactive to the date of the 1996 application. It later extended the retroactivity to three years prior to the date of the award. The claimant had sought an award retroactive to 1963, the date of his initial application. He argued that he had not been able to pursue the claim because there were no records of the accident or his injuries.

Madame Justice Tremblay-Lamer dismissed the application. The applicant did not pursue his 1963 application. The Department had attempted to accommodate the applicant and cannot be held responsible for any delay that resulted in the treatment of his claim. The Department did not cause any undue administrative delay to the applicant in dealing with his claim. Thus, it was reasonable for the Board to award him three years of retroactive pension under subsection 39(1), but not an additional two years under subsection 39(2).

Cadotte v. Canada (Attorney General), 2003 FC 1195

The claimant at discharge in 1945 suffered from a knee condition. He applied for a pension. In 1949 his application was denied. He applied again in 1985 and obtained a pension in 1986. In 2001 the Board awarded three years retroactivity and established the effective date as 20 October 1983. The Board denied the claimant's applications for further retroactivity. The claimant argued that he was entitled to an additional award under subsection 39(2) of the Pension Act because, as it turned out from the 1986 decision, his knee condition would have been pensionable from 1949.

Madame Justice Gauthier held that the error in 1949 would have been one that could have been corrected by an appeal or a request for a reconsideration by the claimant. The Act permitted the claimant to have an error corrected. Therefore the circumstances were not beyond the control of the applicant as required under subsection 39(2). In light of all the evidence there was no error in refusing to apply that provision to award additional retroactivity. The decision also examined the legislative provision that was in place prior to the enactment of the current section 39 and found that it did not establish any right to pension payments beyond those already awarded.

Sangster v. Canada (Attorney General), 2002 FCT 97

The claimant, a veteran of the Second World War, applied in 1994 for a pension for Chronic Obstructive Pulmonary Disease (COPD). The Canadian Pension Commission turned down the application. In March 1999 he applied for Chronic Sinusitis. The Minister awarded a pension for that condition, effective the date of application. In November 1999 he applied for COPD consequential on the Chronic Sinusitis. The Minister awarded that too. The effective date was the date of application for the consequential claim which was November 1999. The claimant said the effective date should be 1994 when he first applied for a pension for COPD. The Board said that it could not go back to 1994 because of section 39 of the Pension Act which establishes the effective date as the date of application.

The judicial review application was dismissed. The pension requested in 1994 was completely distinct from the 1999 request for a supplementary disability pension for COPD being consequential to the already pensioned condition of Chronic Sinusitis. The Board's decision was reasonable, given that the pension award for COPD was effective on the date on which the application was first made. The Court stated that the application for COPD under 21 (1) was an application for a different pension than the application under 21(5). Therefore the Board's decision was “correct”.

Vaillant v. Attorney General of Canada (30 October 2001) T-1107-00 (Nadon ) F.C.T.D.

In 1999, an Entitlement Appeal panel of the Board granted a pension for the death of a former member of the RCMP due to paranoid schizophrenia, effective 3 years prior to the date of the award. The appellant was not satisfied with that and sought greater retroactivity. The Board researched the files and found an RCMP application for a disability pension but no evidence it was ever submitted to any relevant authority. The claimant applied for a judicial review but the Federal Court dismissed the application.

Leclerc v. Canada (Attorney General), (9 February 1998) T-900-97 Noël J. (F.C.T.D.)

Subsection 39(1) is clear as to its effects. The purpose of that section is to limit the retroactive effect of any pension awarded to a maximum of three years. The only exception to this limitation is the one set out in subsection 39(2), which allows the Board to make an additional award in an amount not exceeding the cumulative annual value of two years pension. The applicant had argued that in this case, what led to his full pension being awarded was the correction of an error of law, and that he is in no way responsible for the fact that the years went by before his entitlement was recognized. The fact that the cause of the delay is not attributable to the applicant does not mean that subsection 39(1) may be disregarded, as it applies to any pension regardless of the circumstances in which it is awarded.

(20/06/13) Veterans Review and Appeal Board 660845

The appellant argued that section 39 of the Pension Act violated the Canadian Charter of Rights and Freedoms by discrimination against him on the basis of his handicap because, in cases involving administrative error, it does not grant retroactive payments as generously as similar provisions under the Old Age Security Act and the Canadian Pension Plan. The Attorney General of Canada intervened before the Board with regards to this constitutional challenge. The Board found that the appellant failed to show that he was discriminated against within the meaning of subsection 15(1) of the Charter. The Board found that the distinctions in treatment had to be established within the same benefits scheme to seek relief under Section 15 of the Charter. By comparing section 39 of the Pension Act with provisions under the Old Age Security Act and the Canadian Pension Plan, the appellant raised a distinction that did not exist within the benefits scheme which he enjoyed, that of the Pension Act, but outside the scheme.

(11/12/12) Veterans Review and Appeal Board 804387

The Board took guidance from the Federal Court Decision in Trotter v. Canada (Attorney General, 2005 FC 434; [2005] 272 F.T.R. 1, and found that Section 39 of the Pension Act does not apply to Prisoner of War Compensation for survivors. The Board ruled to grant retroactivity to 29 June 1989, the date on which proportionate survivor benefits to the Pension Act was amended.

(28/10/03) Veterans Review and Appeal Board 649101

The claimant had a 5% pension for hearing loss and then claimed for tinnitus as a separate condition. The Board identified the date of application for the tinnitus award as the effective date and found that it was not appropriate to use section 39 of the Pension Act to award greater retroactive benefits. The decision includes a useful history of the guidelines concerning hearing loss and tinnitus.

(1/5/03) Veterans Review and Appeal Board 498225

In order for pension entitlement to be made retroactive to the date of application, it is not necessary in every case for there to have been a precise diagnosis on the application. A more general statement of the nature of the disability may be sufficient if the disability clearly existed at the time of the application and was later diagnosed.

(18/9/02) Veterans Review and Appeal Board 428558

The Board ruled that the effective date of pension entitlement was the date that a completed and signed application was submitted to the Department. With respect to an alleged telephone call from Bosnia, there is no note to this effect in the departmental files. As for the Appellant's testimony as to the number he called, it is impossible for the Board to verify whether or not the testimony in this regard is valid, because it would seem that no call of any sort was received.

(20/8/02) Veterans Review and Appeal Board 374268

The Board cannot legally deem the date of application for two distinct conditions to be interchangeable. The proper effective date for the two-fifths pension which this Board awarded in relation to the claimed and diagnosed condition under subsection 39(1) of the Pension Act is the date on which the Applicant first made application for that particular condition, not the date on which he applied for another condition which had previously been ruled to be not pensionable.

(06/3/02) Veterans Review and Appeal Board 313992

In a case where there is a significant discrepancy between the application date and the date on which medical evidence indicated a deterioration in the medical condition, it would not be reasonable to award a pension increase retroactive to a date which significantly predates the actual request for reassessment. This would effectively circumvent the scheme for applications in reassessment matters established under the Pension Act. Relying on the date of complaint for establishing the effective date of an assessment increase, is reasonable unless there is evidence of some exceptional or compelling circumstances which suggest that to do so would be unfair.

(20/2/02) Veterans Review and Appeal Board 351509

Very shortly after the war, the claimant received pension entitlement but he did not follow the Department's instructions to be assessed for the pensioned conditions. He much later claimed that he was entitled to retroactive benefits. The advocate argued that since the veteran had interrelated with the Department at various times following his entitlement, there was an onus on the Departmental personnel to review his file and inform him of his disability pension entitlements. But the Board held that to expect that the Department would completely review a veteran's file every time the veteran requested assistance on an unrelated matter would be an unreasonable expectation. The requested retroactive award therefore could not be made on that basis.

(07/2/02) Veterans Review and Appeal Board 36511

Although the Board attempts to maximize retroactive benefits, it cannot make an award retroactive to the date of an application where the application is too vague, was prior to the relevant injury or disease that actually leads to the entitlement, or is not the application which is eventually adjudicated and leads to an award.

(07/2/97) Veterans Review and Appeal Board #6546886/RFF

An Entitlement Review panel, on 8 January 1996, had awarded a pension and made it effective 26 October 1994. The appellant claimed the correct effective date should have been the date he first contacted the Bureau of Pensions Advocates – 18 May 1994. But the Board held that applications received prior to the formation of the Veterans Review and Appeal Board must use the date the application was received and date stamped by the Canadian Pension Commission which, in this case, was 26 October 1994.

(23/5/91) Veterans Appeal Board #VE-5617/BFF

The appellant had made an application for post-traumatic headaches in 1978, but the Canadian Pension Commission refused to accept the diagnosis provided with it. A subsequent application some 10 years later with a similar diagnosis resulted in full entitlement. The Board found that maximum retroactivity should be granted under subsections 39(1) and 39(2).

Interpretation I-38 [1988] Veterans Appeal Board

The Board ruled that sections 29 [now 39] and 40 [now 56] of the Pension Act are restricted in their application to pensions awarded for disability and death, respectively. And, for the purpose of calculating the date from which a pension shall be made payable, a pension is "awarded" on the day on which entitlement is granted.

(14/7/88) Veterans Appeal Board #E-545/4P

The appellant widow sought for herself and her children retroactive payment of an additional pension which the late member was entitled to from the date of his marriage but for which he never applied. The Entitlement Board held that the spouse and children were eligible for the additional pension as set out in Schedule A [now Schedule I] of the Pension Act, but that section 29 [now 39] prevented it being paid to them. The Appeal Board disagreed and held that there was nothing on the Pension Act or in Interpretation I-29 that obliged the Commission to pay the additional pension given that the late member never applied for it.

(07/6/88) Veterans Appeal Board #E-627/1P

The Board found that, following Interpretation I-34, section 29 [now 39] of the Pension Act prevented it from paying a pension more than 5 years prior to the date of its award.

Interpretation I-34 (17 June, 1986) Pension Review Board

The issue in this case was whether or not retroactivity should be extended, under section 29 [now 39] of the Pension Act, to the date of first application for a pension where the veteran was first awarded a fractional pension, later amended to an award of full pension. The Board held that a fractional award is not the same as an award of full pension and that section 29 is to be applied to each type of pension as it is awarded. Therefore, section 29 does not permit retroactivity more than five years prior to the date of the award of full pension. The reason for previous failure to make an award had no relevance to the application of section 29.

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Subsection 39(1)

(28/12/95) Veterans Review and Appeal Board #VE-13320/BFF

An Active Force member received full entitlement in 1959 for a torn medial meniscus. In 1970 she applied to, and was refused by, the Canadian Pension Commission for a claimed related condition – fracture distal radius right. A new application was made on 10 March 1992, and the Entitlement Board on 30 May 1994, granted full pension entitlement effective 10 March 1992. The advocate claimed that, given the application made prior to the 1971 amendments, the maximum retroactivity permissible under subsection 39(1) should be granted. The Board agreed and granted a full three years retroactivity to 30 May 1991.

(04/7/94) Veterans Appeal Board #VE-6291-RR/BFF

The Board examined subsections 21(1), 21(5), 81(1), and 39(1) in coming to the conclusions that (1) a pension awarded under subsection 21(5) cannot be made retroactive under 39(1) to a date that is before the date of entitlement for the primary condition; (2) an application under 21(1) for a condition does not also constitute an application under 21(5) to claim the condition as a consequential one and (3) a letter to the Bureau of Pensions Advocates does not constitute an application for the purposes of subsection 81(1).

Chief Pensions Advocate v. Veterans Appeal Board (7 October, 1992), DéCary, J.A., No. A-1234-91 (F.C.A.)

The Federal Court of Appeal held that subsection 39(1), together with the “compulsory rule of construction” set out in section 2 of the Pension Act, required that the maximum three years of retroactivity be granted to an applicant whose claim was made prior to 30 March 1971, when important legislative amendments took effect. The Board had argued that the maximum three year period could only apply to applications made after the amendments.

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Subsection 39(2)

Macdonald v. Canada (Attorney General), 2017 FCA 27

The applicant’s argument was that the inadequate funding of the Bureau of Pension Advocates compromised the ability of advocates to represent their clients in a timely manner which, in the applicant’s view, was an administrative difficulty beyond his control. Furthermore, he argued that the failure of the advocate appointed to represent him to pursue his appeal to the Board with more diligence was a manifestation of this same administrative difficulty which was beyond his control.

In deciding whether there are grounds to award an additional period of retroactivity, the Board is bound to apply the criteria that Parliament set out, namely whether there were “delays in securing service or other records” or “other administrative difficulties,” one or both of which were “beyond the control of the applicant”.

The Board found that the choice to use a member of the Bureau of Pension Advocates involves an implicit acceptance of the conditions under which such advocates work. If an applicant is unwilling to accept those constraints, then his or her remedy is to represent himself or herself or to seek assistance from a member of the private bar. Because an applicant has a readily available alternative, this constraint does not amount to administrative difficulties beyond an applicant’s control. The Federal Court of Appeal found that the Board’s conclusions were reasonable. Whether an applicant is represented by a member of the Bureau of Pension Advocates or by a member of the private bar, he or she is not obliged to accept poor service. Clients are entitled to demand that their representative deal with their matter in a timely fashion, failing which another representative can be chosen. To that extent, the decision to put up with poor service can be seen as a matter which is not beyond an applicant’s control.

Rivard v. Canada (Attorney General), 2004 FCA 306 affirming Rivard v. Canada, 2003 FCT 1490

The time required to await a ruling of the Federal Court could be viewed as “administrative difficulties beyond the control of the applicant”. The effective date in this case was calculated according to the actual date of award, but the Board committed an error when it did not apply subsection 39(2) in the circumstances.

MacDonald v. Canada (Attorney General), 2016 FC 186 affirmed by MacDonald v. Canada (Attorney General), 2017 FCA 27

The language of subsection 39(2) is permissive and there is no requirement that an additional award be automatically granted. The decision in Rivard v. Canada (Attorney General), 2003 FC 1490 (aff’d 2004 FCA 306), acknowledges the discretionary nature of the Board’s decision-making authority. The Board “may” grant an additional award where it appears from the record that there were delays or administrative difficulties that arose from circumstances beyond the control of the applicant. The reference to the “record” is a reference to the evidence before the Board.

The applicant carries the burden of proving there were delays in obtaining service or other records, for example medical records, or that there were administrative difficulties that were beyond his control, which would justify an additional award. The Board did not err in its interpretation of subsection 39(2) as requiring proof either of delays in securing records or administrative difficulties.

There was no merit in the applicant’s submissions that the inefficiencies in the Bureau of Pension Advocates’ handling of his file were matters beyond his control. The applicant had a choice about counsel and could have changed counsel at any time. The fact that counsel did not pursue the case on a schedule more preferable to the applicant did not constitute an administrative delay beyond his control.

Phelan v. Canada (Attorney General), 2014 FC 56

While there is no requirement for applicants to specifically request an additional award, subsection 39(2) of the Pension Act is a discretionary provision and the Board is not required to make an additional award even if it concludes that there was administrative delay. The Board noted that an application submitted in 2002 did not proceed because of “frustration obtaining records”, but the Board also found that the relevant application for the purpose of retroactivity was the application made in 2009. Given this finding, the applicant’s frustration in obtaining records to support the 2002 application does not support the application of subsection 39(2) of the Act.

Arial v. Canada (Attorney General), 2010 FC 184

An “additional award” is not a “pension” or “compensation” as referred to in subsection 39(1). (The French version also uses different terms: “compensation” in subsection 39(1), “pension” and “indemnité” in subsection 39(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”.

Interpretation I-42 (3 June, 1992) Veterans Appeal Board

The Board held that subsection 39(2) does not allow for an award based on a date earlier than the date that an application is made to the Canadian Pension Commission. This decision appears to mean that subsection 39(2) only applies when there are more than three years between the date the application was made and the date the pension was awarded, and that the amount awarded under 39(2) must be limited to an amount that corresponds to the length of the delay beyond the three years. The Board also held that a policy change creating a delay is not "administrative difficulties" within the meaning of subsection 39(2), and that there must be "evidentiary substantiation" for an award under 39(2).

(14/9/11) Veterans Review and Appeal Board 595663

The Board found that the negligence of the advocates who represented the appellant, if there indeed was negligence, did not constitute administrative difficulties beyond the control of the appellant under subsection 39(2) of the Pension Act.

The relationships between the appellant and the advocates of the Bureau of Pensions Advocates who represented her are the same as any other lawyer-client relationship. Difficulties arising in these kinds of relationships do not constitute administrative difficulties.

(20/8/02) Veterans Review and Appeal Board 394456

The claimant applied for an additional award under subsection 39(2) of the Pension Act on the grounds that the Bureau of Pensions Advocates had delayed his entitlement to a pension. The panel rejected the argument. It stated that an “administrative difficulty” is distinct from the type of “delay” which may arise out of the time consumed in preparing a case as part of the adjudicative process. A certain amount of time will be consumed in every case as it goes through the various stages of the quasi-judicial process. This will include time which elapses where an applicant is determining whether to proceed to a review or an appeal, time consumed by the advocate in reviewing a case and in marshalling the evidence necessary for a hearing, and in developing legal argument and submissions, arguing the merits of an appeal before a tribunal. A legitimate amount of time will also be consumed by the hearing and the tribunals' subsequent deliberations, and preparation of the decision. These are not delays which are covered by subsection 39(2) of the Act. In fact, these delays are covered by subsection 39(1) of the Act which allows for retroactivity in the award of pension payments, which is a benefit that the appellant has already obtained. A delay caused by a decision to withdraw a case is not an administrative difficulty or delay.

(09/8/01) Veterans Review and Appeal Board 38451

Subsection 39(2) does not refer to delays arising out of the adjudicative process or to the time which is legitimately consumed by the task of considering the merits of a particular case. Failure to establish entitlement after the merits of the case have been adjudicated and the case disposed of by an unfavourable determination, is not an ‘administrative delay'. As well, it is not logical to presume that the act of overturning a decision signals an earlier error on the part of a previous decision-maker. Many thousands of claims have been accepted after an initial denial. This occurs for many reasons which may include the fact that medical knowledge and opinion have advanced, policies have been changed and entitlement criteria expanded, new and relevant evidence may have subsequently been made available, and societal attitudes may have changed over time. Subsection 39(2) requires some evidentiary substantiation of the fact that there has been a delay in securing records, or other administrative delay.

(11/3/97) Veterans Review and Appeal Board #6485776/BFF

The appellant's pension application was made on 13 August 1992. On 10 September 1992, he was discharged from the forces. The CPC rejected his claim on 21 January 1994. An Entitlement Review panel reversed that decision and awarded a pension on 27 February 1996, making it retroactive to 27 February 1993. The appellant sought retroactive payment for the period between his discharge in September 1992 and 27 February 1993. The Board examined subsection 39(2) but decided not to change the effective date. It reasoned that, given the information on file, not all the delays were the fault of the Minister; some were the responsibility of the appellant and his representative. It therefore found the three years retroactivity was appropriate and refused to apply subsection 39(2) to increase the retroactive award.

(12/4/95) Veterans Appeal Board #VE-12296/BFF

The appellant, who had served in the Imperial Force, sought retroactive pension coverage under subsection 39(2). The Board found that no retroactivity was justified under section 39 because subsection 68(1) required that the British government render a final decision before the Canadian Pension Commission considered an application. The time required for the British government to decide its case did not amount to a delay or administrative difficulty beyond the control of the applicant for which he could be compensated under section 39.

(15/11/90) Veterans Appeal Board #VE-4857/3P

The Board stated that to use subsection 39(2) to make an award payable before the application was made was contrary to the intent of the legislation. Subsection 39(2) rather was intended to cover excessive delays for which compensation was not already provided. It was not intended to authorize double payment for the same delay, or what amounts to a bonus.

(07/12/88) Veterans Appeal Board #E-1767/3P

The Board agreed with the advocate's proposition that subsection 29(2) [now 39(2)] of the Pension Act applies not only to Commission delays or delays within the Department of Veterans Affairs, but also to any undue delays that are occasioned as a result of an applicant's inability to obtain service or other records. In this case the Board noted that the appellant had documented his efforts to obtain records and ruled in his favour.

(07/5/87) Pension Review Board #E-14717/3P

The Board, in interpreting subsections 29(1) and 29(2) [now 39(1) and (2)], stated that 29(2) applies only to those cases where there are more than three years between the date of application and the date of entitlement.

[1976] 5 Pension Review Board Reports 423

The Board denied a request for extra retroactivity because the onus of obtaining the evidence of a departmental consultant had rested on the applicant.

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Section 41 (Administration of awards)

Interpretation I-23 [1977] 7 Pension Review Board Reports 264

The definition of "award" includes any form of payment made under the Act, and "applicant" is not restricted to someone receiving a disability pension, but includes recipients of all forms of awards. A direction made under subsection 31(1) [now 41(1)] for the benefit of a deserted wife and child is an award. It follows that they are "applicants" within the meaning of the Act, and therefore have a right to appeal.

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Section 43 (Additional pension not payable in certain circumstances)

Lapalme v. Canada (Attorney General), 2012 FC 820

Subsection 34(3) of the Pension Act permits the Minister of Veterans Affairs to award a pension to a member of the Forces in respect of a dependent child. However, under section 43 of the Act, certain conditions must be satisfied:

Additional pension for disability shall not be paid to a member of the forces in respect of a spouse or a dependent child unless the person in respect of whom additional pension is payable lives with the pensioner or maintains, or is maintained by, the pensioner to an extent that, in the opinion of the Minister, is at least equal to the amount of the additional pension.

In this case, for all practical purposes, the Board endorsed the Department's interpretation that sufficient maintenance will be taken to have been provided if the pensioner, spouse or dependent child, as the case may be,

  • (a) makes monthly payments of a sum of money equivalent to the additional pension for the spouse or dependent child, as applicable, or

  • (b) pays for the cost of, or provides, one of those items which goes to make up the necessities of life (e.g. shelter, food, clothing, and medical services including medical insurance and prescriptions) provided the cost equates to the amount of additional pension for the spouse or dependent child, as applicable. The payment for such items as rent, mortgage, property taxes, the cost of clothing, food, medical insurance or prescriptions qualifies as the provision of maintenance or support for such purposes of Section 43.

The Department's policies are unenforceable, non-binding guidelines. That said, they refer to relevant criteria that enable the decision-maker to determine whether a child is a dependent child of the person applying for an additional pension.

Section 43 of the Act expressly provides that, to be entitled to an additional pension, the applicant must establish that the dependent child “lives” with him or her or “maintains, or is maintained by” the applicant to an extent that is at least equal to the amount of the additional pension set out in Schedule 1 to the Act. The French version of this provision uses, respectively, the terms “demeure” and “subvient à ses besoins ou est à sa charge” which, at the very least, may reasonably assume that there is a certain continuity and regularity in time.

In finding that the only question to answer in this case was whether the applicant provided sufficient evidence to establish that she maintained her common-law partner's child “on an ongoing, uninterrupted basis”, the Board did not impose a requirement that is not in section 43 of the Act nor did it add a criterion foreign to the conditions set out in the Act.

(17/12/2014) Veterans Review and Appeal Board 2048517

In order to receive this compensation, under section 43 of the Pension Act, an applicant must be maintaining his or her spouse at least to a degree corresponding to the amount of the additional pension. In the Board’s view, a transfer of funds aimed at sharing the family patrimony cannot be considered as maintaining the spouse within the meaning of this provision.

(02/10/03) Veterans Review and Appeal Board 653979

The claimant was obligated to repay an overpayment that had occurred when he received an additional pension for a spouse at a time when he had become divorced from her. The fact that he made monthly support payments to her did not make her his spouse or dependent so that he would qualify for the additional pension. The former spouse could not be considered a dependent within the meaning of the Act, but was simply a creditor with respect to the claimant, who has a contractual obligation towards her.

(25/2/97) Veterans Review and Appeal Board #6491516/BFF

The Board addressed the issue of whether the appellant could receive an additional pension for the son of his common law wife, in a case where the natural father was making support payments for the child. The Board decided that the step-son met the definition of “child” at subsection 3(1). Therefore a pension was possible under 34(3), if the member had an obligation to support the child. The Board found that under the relevant provincial laws there was such an obligation. The Board also found that the requirements of section 43 were met by the fact that the child was living with the member. All the requirements having been met, the Board awarded an additional pension for the child.

(03/7/96) Veterans Review and Appeal Board #2898997/YFF

The applicant had applied for an additional pension for his stepdaughter. The stepdaughter lived with the applicant and the stepdaughter's mother. The applicant had not adopted the child, because her biological father opposed it. The biological father was paying some maintenance for the child, but the veteran was able to show he was providing for her financially, beyond the amount he would receive in additional pension. The Board granted the additional pension under subsection 34(3) and section 43 of the Pension Act.

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Section 45 (Pensions for death)

Subsection 45(1)

(25/4/88) Veterans Appeal Board #E-13/4P

The appellant sought a widow's pension under subsection 34(3) [now 45(2)]. The appellant and the late member had separated and subsequently entered into a separation agreement. The Advocate argued that the separation agreement was not intended to be a final determination of the rights of the parties, and that the separation was because of the late member's illness and personality change resulting from his disability. Therefore, according to subsection 2(3) [now 3(3)], the appellant should be deemed to have been living with the late member at the time of his death. The Board found, however, that, while subsection 2(3) could permit the requirements of 34(5) [now 47(1)] to be ignored, in this case, subsection 2(3) was not satisfied and, given the existence of the separation agreement, subsection 34(5) limited the appellant's pension to the amount provided in the agreement.

[1977] 7 Pension Review Board Reports 429

The wife was separated from her pensioner husband, but the Board found he did not have an obligation to maintain her, and 34(1) [now 45(1)] prevented her from being entitled to a pension.

[1977] 7 Pension Review Board Reports 305

A lump sum payment by the pensioner husband to his wife during their separation allowed a finding that she was being maintained for a reasonable time prior to his death, as required by 34(1) [now 45(1)]. She was therefore eligible for a pension under 34(3) [now 45(2)].

[1977] 6 Pension Review Board Reports 383

The fact that it was the wife who left the marital home is not, of itself, conclusive evidence that she was not entitled to maintenance under 34(1) [now 45(1)].

[1977] 6 Pension Review Board Reports 441

The Board held that, despite the pensioner deserting his family many years before, and the probability that a maintenance award would have been made then, at the time of his death and for a reasonable time prior thereto, a court would have declined to award maintenance to the widow. Her claim was therefore denied under subsection 34(1) [now 45(1)].

[1976] 6 Pension Review Board Reports 154

Although there were frequent periods of separation without alimony or pension payments, there was no conclusive evidence that the wife was not entitled to be maintained by the veteran at the time of his death. She therefore was not precluded by 34(1) [now 45(1)] from receiving a pension.

[1976] 6 Pension Review Board Reports 95

The Board held that a widow's right to maintenance is not barred by passage of time, or merely because she did not apply for it. Because she had at all times the legal right to maintenance, she was entitled to the benefit of subsection 34(3) [now 45(2)].

[1975] 5 Pension Review Board Reports 80

The widow, who had been separated from her husband without a separation agreement and without judicial order, was given the benefit of the doubt and the Board therefore held the case was not within 34(5) [now 47(1)] but rather under 34(1) and (3) [now 45(1) and (2)]. This permitted the widow to receive a full widow's pension, rather than the limited amount she would have been entitled to under 34(5). The Board also found that there had been “a reconciliation to the fullest extent possible in the circumstances”.

[1975] 4 Pension Review Board Reports 484

The widow, separated from her pensioner husband, was found not to qualify for a pension under 34(5) or (6) [now 47(1) and (3)]. The Board then explored whether she would qualify under subsection 34(1) and (3) [now 45(1) and (2)]. It found that she did not because she was not entitled to be maintained by her husband.

[1973] 2 Pension Review Board Reports 22

The Board examined the case of a pensioner and wife, who had been living apart at the time of the pensioner's death. The Board advised that in such a case the correct procedure is to determine under subsection 34(5) [now 47(1)] if there has been a divorce, judicial separation or separation agreement. If so, it is restricted to rendering a decision under subsection 34(5) or (6) [now 47(1) or (3)]. If not, the adjudicating body must fall back on subsection 34(1) [now 45(1)] to determine if a pension must be paid. The Board observed that the intent of the legislature was that a separated woman would be paid a pension upon the death of her veteran husband if she had been maintained or was entitled to be maintained by him at the time of his death. Whereas in the case of divorced or judicially separated women a pension was to be paid only where the divorce or separation provided for alimony or an allowance.

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Subsection 45(2)

The War Amputations of Canada v. The Queen in Right of Canada, (20 January, 1994), Trainor, J., Sudbury #RE 2791/93, (Ontario Court, General Division), confirmed by The War Amputations of Canada v. Canada, 1997 CanLII 872 (ON CA), 36 OR (3d) 709; 155 DLR (4th) 125.

Some provisions of the Pension Act concerning widows' pensions (those that grant the same pension, as set out in Schedule II, for survivors of pensioners in classes 1 to 11 of Schedule 1) do not offend section 15 of the Charter of Rights, in that there is neither discrimination nor inequality in those provisions. This decision includes a history and explanation of the Pension Act provisions that provide for pensions for surviving spouses.

Interpretation I-30 [1984] Pension Review Board Interpretations 169

The Board held that a proportionate widow's pension payable under subsection 34(3.1)[now 45(3)] is not subject to the adjustments required under sections 19 and 20 [now 25 and 26]. The Board indicated that a widow's pension under 34(3) [now 45(2)] would be subject to adjustment under sections 19 and 20, and that its reasoning extended to subsections 25(7) and (8) [now 34(6) and (7)], which deal with children's pensions.

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Subsection 45(3)

Interpretation I-33 (26 November, 1985) Pension Review Board

The Board held that paragraphs 48(1)(a), 49(1)(a) and 50(1)(a) [now 64(1)(a), 65(1)(a) and 66(1)(a)] of the Pension Act open the door to a claim for a proportionate pension pursuant to subsection 34(3.1) [now 45(3)] by the widow of a person falling under the provisions of paragraph 48(1)(a) of the Act, even though that person was not in receipt of a Canadian pension at the time of death.

Interpretation I-30 [1984] Pension Review Board Interpretations 169

The Board held that a proportionate widow's pension payable under subsection 34(3.1)[now 45(3)] is not subject to the adjustments required under sections 19 and 20 [now 25 and 26]. The Board indicated that a widow's pension under 34(3) [now 45(2)] would be subject to adjustment under sections 19 and 20 and that its reasoning extended to subsections 25(7) and (8) [now 34(6) and (7)] which deal with children's pensions.

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Section 47 (Pension to person awarded alimony, support or maintenance)

Subsection 47(1)

(21/1/97) Veterans Review and Appeal Board #VE-13788/WFF

A divorced widow continued to receive maintenance payments from her former husband's (the veteran's) estate. An Entitlement Board granted her a proportionate widow's pension. The second widow appealed. The Veterans Review and Appeal Board held that 47(1) insures that, if a person has been given payments by a divorced spouse and the payments are interrupted by the pensioner's death, the widow may receive a pension.

In this case, however, the continuation of maintenance payments from the veteran's estate precluded the divorced widow from receiving a pension under 47(1). Under section 55, the second widow was awarded the entire proportionate widow's pension.

(25/4/88) Veterans Appeal Board #E-13/4P

The appellant sought a widow's pension under subsection 34(3) [now 45(2)]. The appellant and the late member had separated and subsequently entered into a separation agreement. The advocate argued that the separation agreement was not intended to be a final determination of the rights of the parties, and that the separation was because of the late member's illness and personality change resulting from his disability. Therefore, according to subsection 2(3) [now 3(3)], the appellant should be deemed to have been living with the late member at the time of his death. The Board found, however, that, while subsection 2(3) could permit the requirements of 34(5) [now 47(1)] to be ignored, in this case subsection 2(3) was not satisfied and, given the existence of the separation agreement, subsection 34(5) limited the appellant's pension to the amount provided in the agreement.

[1978] VIII(2) Pension Review Board Reports 64

The Board found that although a couple was separated, it was not a separation under 34(5) [now 47(1)]. This finding permitted the widow to receive a full pension under 34(1) and (3) [now 45(1) and (2)], rather than the limited pension she would have received under 34(5).

[1973] 3 Pension Review Board Reports 95

The decision explores the question of whether or not a separation agreement was terminated prior to the veteran's death by the resumption of the marriage relationship.

[1973] 2 Pension Review Board Reports 404

In order for there to be a separation agreement within the meaning of subsection 34(5) [now 47(1)], there must be “a settlement of the rights of the wife”. Therefore, even though there was a division of the pension prior to death, the couple could not be said to be separated pursuant to an agreement. The widow therefore received a full pension rather than just the agreed upon amount.

[1973] 2 Pension Review Board Reports 22

The Board examined the case of a pensioner and wife who had been living apart at the time of the pensioner's death. The Board advised that in such a case the correct procedure is to determine under subsection 34(5) [now 47(1)] if there has been a divorce, judicial separation or separation agreement. If so, it is restricted to rendering a decision under subsection 34(5) or (6) [now 47(1) or (3)]. If not, the adjudicating body must fall back on subsection 34(1) [now 45(1)] to determine if a pension must be paid. The Board observed that the intent of the legislature was that a separated woman would be paid a pension upon the death of her veteran husband, if she had been maintained or was entitled to be maintained by him at the time of his death. Whereas in the case of divorced or judicially separated women a pension was to be paid only where the divorce or separation provided for alimony or an allowance.

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Subsection 47(2)

(11/3/97) Veterans Review and Appeal Board #6337936/BFF

In this case involving two surviving spouses, the Board held that a former wife, who was awarded support payments of $100 a month upon divorce from the veteran, could use subsection 47(2) to apply for a share of the widow's pension greater than $100 a month, given that she was in a “dependent condition.”

(21/11/96) Veterans Review and Appeal Board #VE-15373/GFF

The veteran had been paying his first wife, from whom he was separated, $225 a month under a court order. After his death, an entitlement review panel apportioned the pension benefits equally between the separated widow and the deemed widow who was the veteran's common law wife when he died. That meant that each would receive $292.50 a month. The deemed widow argued that, under section 55 of the Pension Act, the separated widow was not entitled to any share of the pension in excess of the court-ordered $225 a month. The Appeal Board held, however, that it was not restricted in that way and, where the separated widow was in a dependant condition, it divided the pension benefits equally under 47(2) and 55 of the Act.

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Subsection 47(3)

(27/03/03) Veterans Review and Appeal Board 038129

A separated common law spouse was not entitled to a survivor's pension because there was no reliable evidence that she would have been entitled to alimony, support or maintenance had she applied for it under due process of law.

(29/10/02) Veterans Review and Appeal Board 446174

In order to raise the inference that there are grounds in the facts and circumstances of this case upon which the Minister could exercise discretion under subsection 47(3) of the Act, there must be some evidence which suggests that the appellant would have had a legally enforceable right to spousal support in the period between the breakdown of the marriage and the veteran's death. The legally enforceable right to make a claim for support under due process of law, which is referred to in subsection 47(3) of the Act, may exist upon marriage breakdown, but does not necessarily continue indefinitely.

(27/7/87) Pension Review Board #E-14446/4P

In an appeal of an award of widow's pension, the Board did not agree with the Entitlement Board's method of calculating the pension amount. The Appeal Board stated that the amounts set out in the Canadian Pension Commission's Policy Manual are solely for the purpose of determining the question of dependency, i.e., whether in fact the appellant is without "sufficient income to maintain herself". Once that has been determined, the Commission has a discretion to make such award as it sees fit in the circumstances, provided always that no award may exceed the rate in Schedule B [now Schedule II] of the Act or determined under subsection 34(3.1) [now 45(3)]. The Commission is not limited to the maximums set out in its Policy Manual and it is a mistake to use them for an award. Indeed the Commission may even choose to award less than the difference between income and expenses.

[1976] 6 Pension Review Board Reports 268

The Board held that, although alimony or alimentary allowance was not awarded, financial provision for future income for the divorced wife had been made. For that reason, the Board concluded that the applicant would have been entitled to an award of alimony or other allowance, had she not accepted the aforementioned financial provision. The Board held that if the applicant were found to be a divorced widow of the veteran, and to be in a dependent condition, she could receive an award of pension under subsection 34(6) [now 47(3)].

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Section 48 (Definition of “dependant”)

Subsection 48(3)

Interpretation I-37 (8 June, 1988) Veterans Appeal Board

The Board decided that under subsection 34.1(3) [now 48(3)] of the Pension Act a dependant's right to claim pension is limited to those disabilities which had never been claimed during the veteran's lifetime except where pursuant to subsection 61(2) of the Pension Act the Veteran made an application before the 30th day of March, 1971, and the application was the subject of a final determination by the Commission or any other body empowered to grant or make awards before the 30th day of March, 1971. This replaces the decision in I-2 where the Board had held that subsection 34.1(3) allowed a dependant to apply for a pension for a condition that had been rejected or partially rejected.

[1975] 5 Pension Review Board Reports 147

The Board stated that subsection 12(3.2) [now 21(5)] only allows an application for a condition consequential on a pensionable condition to be made by the veteran himself. But under subsection 34.1(3) [now 48(3)] his widow may achieve the same result. In this case the claim was only based on subsection 12(1) [now 21(1)] and the Board stated it could not adjudicate on the subsection 34.1(3) matter.

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Section 55 (Apportionment of pension)

Cross Reference: subsection 21(2.3)

The Board has established procedures for adjudicating the apportionment of a pension under section 55 of the Act.

(21/1/97) Veterans Review and Appeal Board #VE-13788/WFF

A divorced widow continued to receive maintenance payments from her former husband's (the veteran's) estate. An Entitlement Board granted her a proportionate widow's pension. The second widow appealed. The Board held that 47(1) insures that, if a person has been given payments by a divorced spouse and the payments are interrupted by the pensioner's death, the widow may receive a pension. In this case, however, the continuation of maintenance payments from the veteran's estate precluded the divorced widow from receiving a pension under 47(1). Under section 55, the second widow was awarded the entire proportionate widow's pension.

(21/11/96) Veterans Review and Appeal Board #VE-15373/GFF

The veteran had been paying his first wife, from whom he was separated, $225 a month under a court order. After his death, an entitlement review panel apportioned the pension benefits equally between the separated widow and the deemed widow, who was the veteran's common law wife when he died. That meant each would receive $292.50 a month. The deemed widow argued that, under section 55 of the Pension Act, the separated widow was not entitled to any share of the pension in excess of the court-ordered $225 a month. The Appeal Board held, however, that it was not restricted in that way and, where the separated widow was in a dependant condition, it divided the pension benefits equally.

Interpretation I-35 (13 May, 1987) Pension Review Board

The Board dealt in this case with the procedures to be followed under section 39 [now section 55] of the Pension Act (apportionment of pension). The Board held that the only legal avenue available under the Pension Act to afford the required protection to an applicant and to respect his/her right to be heard is by way of a hearing. To refuse a pensionable applicant the right to be heard would be a denial of natural justice. Further, it would be prudent practice, where there is more than one affected party, to have a hearing with notice to any affected party before any decision is made which would adversely affect their rights.

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Section 56 (Date from which death pension payable)

Arial v. Canada (Attorney General), 2014 FCA 215

The imperative nature of sections 56 and 39 of the Pension Act is confirmed by the case law, which is well settled. The pension that may be paid under subsection 56(1) upon the death of a veteran is subject to the same limits as the pension paid to a veteran’s survivor under subsection 39(1). The only exception is provided in subsections 39(2) and 56(2), which authorize an additional payment equal to two years’ pension. This regime applies to any form of award payable under the Act—including a pension, compensation, an allowance or a bonus, according to the definition appearing in section 3—such that the maximum award paid under the Act cannot, in any event, ever exceed the three-year retroactivity period (subsections 39(1) and 56(1)) and the additional award equivalent to two years’ pension (subsections 39(2) and 56(2)). The Federal Court decision in MacKenzie v. Canada (Attorney General), 2007 FC 481, has no bearing on these parameters.

Arial v. Canada (Attorney General), 2013 FC 602

The applicant wanted an award of increased retroactivity to compensate for the failure of Veterans Affairs Canada to provide proper advice and counselling. However the maximum retroactivity permitted by the legislation had already been awarded. The legislation does not permit the Board to go beyond what the Act allows with respect to the date on which a pension may be paid. Section 85 could not be used for an award that the Board itself could not consider nor for giving the Minister the power of ignoring the Act.

Arial v. Canada (Attorney General), 2011 FC 848

On the issue of retroactivity, it is paragraph 56(1)(a.1) of the Pension Act that applies since the veteran is deceased; it is thus a question of death benefits rather than a disability pension (although, in practice, the amount of the death pension is calculated according to the degree of the veteran's disability).

Even in exceptional circumstances, the statutory framework perhaps does not allow a larger number of retroactive years to be awarded to the applicant - three years before the date at which the pension was awarded.

Interpretation I-38 (5 December, 1988) Veterans Appeal Board

The Board ruled that sections 29 [now 39] and 40 [now 56] of the Pension Act are restricted in their application to pensions awarded for disability and death, respectively. And, for the purpose of calculating the date from which a pension shall be made payable, a pension is "awarded" on the day on which entitlement is granted.

Interpretation I-37 (8 June, 1988) Veterans Appeal Board

The Board decided that under subsection 34.1(3) [now 48(3)] of the Pension Act a dependant's right to claim pension is limited to those disabilities which had never been claimed during the veteran's lifetime, except where pursuant to subsection 61(2) of the Pension Act the veteran made an application before the 30th day of March, 1971, and the application was the subject of a final determination by the Commission or any other body empowered to grant or make awards before the 30th day of March, 1971. This replaces the decision in I-2 where the Board had held that subsection 34.1(3) allowed a dependant to apply for a pension for a condition that had been rejected or partially rejected. The Board also ruled that section 40 [now 56] applies to the award of all proportionate pensions under the Pension Act.

(15/5/03) Veterans Review and Appeal Board 617755

A widow remarried and her survivor's pension was discontinued. In 1989 the Act was amended to allow for the pension to be resumed, on application. She claimed she should have been advised of her right to resume the pension, which she did not apply for until 2001, and that she should be paid an amount under subsection 56(2) of the Act. The Board held that the relevant date was the date of application, there was no legal authority to deem an application to have been made and subsection 56(2) did not apply because there was no delay between the application date and the date of the decision to restore the pension.

(11/12/02) Veterans Review and Appeal Board 436798

A widow remarried and her survivor's pension was discontinued. In 1989 the Act was amended to allow for the pension to be resumed, on application. She claimed she should have been advised of her right to resume the pension, which she did not apply for until 2001, and that she should be paid an amount under subsection 56(2) of the Act. The panel could not find that a lack of knowledge was beyond the control of any applicant when such knowledge is available in official sources. It noted that at any time there is a change in legislation so as to make provisions more generous than they were before, there will always be individuals who will be affected by such change. It is for this reason that publication of information in official documents such as the Canada Gazette has been, for generations, considered by courts and other judicial and quasi-judicial bodies as being official notification to those who may be concerned. It is obviously impossible to personally notify everyone who is or may be affected of a change of legislation. Therefore, the panel could not find that the lack of knowledge, on the part of the applicant, of the increased benefits available in 1989 by the change of legislation was an administrative matter beyond her control, upon which to invoke the provisions of subsection 56(2) of the Pension Act.

(28/2/02) Veterans Review and Appeal Board 330861

The appellant and her advocate had identified the documents required to pursue a pension claim. They had taken all reasonable steps to obtain them. Delays arose from the failure on the part of two bureaucracies, one in the private sector, the other within the health care system, to respond to the request for medical documents. The delay was not caused by the appellant or her advocate, nor did it arise out of the normal delays as the case wound its way through the adjudicative processes provided for under Veterans Affairs legislation. Therefore the panel awarded an additional two years under subsection 56(2).

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Section 64 (Supplementary pensions in respect of members of allied forces and merchant navies)

Interpretation I-33 (26 November, 1985) Pension Review Board

The Board held that paragraphs 48(1)(a), 49(1)(a) and 50(1)(a) [now 64(1)(a), 65(1)(a) and 66(1)(a)] of the Pension Act open the door to a claim for a proportionate pension, pursuant to subsection 34(3.1) [now 45(3)] by the widow of a person falling under the provisions of paragraph 48(1)(a) of the Act, even though that person was not in receipt of a Canadian pension at the time of death.

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Section 65 (Persons who served in British forces or merchant navy in World War II)

Subsection 65(1)

Interpretation I-33 (26 November, 1985) Pension Review Board

The Board held that paragraphs 48(1)(a), 49(1)(a) and 50(1)(a) [now 64(1)(a), 65(1)(a) and 66(1)(a)] of the Pension Act open the door to a claim for a proportionate pension, pursuant to subsection 34(3.1) [now 45(3)] by the widow of a person falling under the provisions of paragraph 48(1)(a) of the Act, even though that person was not in receipt of a Canadian pension at the time of death.

Interpretation I-26 [1978] VIII(1) Pension Review Board Reports 6

The Board held that, with regard to paragraph 49(1)(a) [now 65(1)(a)], neither the Canadian Pension Commission nor the Board is empowered to re-adjudicate the basic right to pension granted by the United Kingdom authorities. Neither the Commission nor the Board is competent to adjudicate on the basis of the laws and regulations of the United Kingdom. The Commission, however, is charged with the responsibility to decide if a supplementary award, whether statutory or discretionary, and the extent of it, is indicated under the provisions of the Pension Act. This Commission decision must be made through the formal adjudication process laid down in the Pension Act to safeguard the applicant's right to appeal.

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Subsection 65(2)

(16/6/97) Veterans Review and Appeal Board #6770735/BFF

Subsection 65(2) of the Pension Act, if it is not to conflict with the constitutional provisions of the Newfoundland Act, can only be read so as not to include Newfoundland veterans of the United Kingdom forces. Newfoundland veterans of the United Kingdom forces in World War II are therefore entitled to supplementary pensions under section 65, even though they do not meet the residency requirements of subsection 65(2).

(12/4/95) Veterans Appeal Board #VE-12076/1P

Subsection 3(2) cannot be used in combination with 21(1) to obtain a top-up in cases where the veteran does not meet the residency requirements set out in subsection 65(2).

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Section 66 (Persons who served in allied forces or merchant navies in World War II)

Interpretation I-33 (26 November, 1985) Pension Review Board

The Board held that paragraphs 48(1)(a), 49(1)(a) and 50(1)(a) [now 64(1)(a), 65(1)(a) and 66(1)(a)] of the Pension Act open the door to a claim for a proportionate pension, pursuant to subsection 34(3.1) [now 45(3)], by the widow of a person falling under the provisions of paragraph 48(1)(a) [now 64(1)] of the Act, even though that person was not in receipt of a Canadian pension at the time of death.

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Section 68 (Maximum award from other country)

Subsection 68(1)

(12/4/95) Veterans Appeal Board #VE-12296/BFF

The appellant, who served in the Imperial Force, sought retroactive pension coverage under subsection 39(2). The Board found that no retroactivity was justified under section 39, because subsection 68(1) required that the British government render a final decision before the Canadian Pension Commission considered an application. The time required for the British government to decide its case did not amount to a delay or administrative difficulty beyond the control of the applicant for which he could be compensated under section 39.

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Section 71.1(Prisoners of war)

(15/12/89) Veterans Appeal Board #VE-3511/4P

Subsection 71.2(1) of the Pension Act establishes that compensation is payable to a "prisoner of war of another power" which is defined in subsection 71.1(1) as a person who "served in the naval, army or air forces of His Majesty or any of the countries allied with His Majesty and was domiciled in Canada or Newfoundland at the time of his enlistment.” In this case the Board had to decide if the Appellant was "domiciled" in Canada at the time of enlistment. The Pension Act does not define domicile and so the Board relied on a definition from Black's Law Dictionary which defines it as "... that place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning."

[1980] 9 Pension Review Board Reports 76

The appellant was interned by the Vichy French in Algeria during the Second World War. However, the Vichy regime was not engaged in military operations against the Allies. The Act requires that one be a prisoner of a power which is engaged in military operations against the Allies. Based on this interpretation, the appeal was unsuccessful.

Trotter v. Canada (Attorney General), 2005 FC 434; [2005] 272 F.T.R. 1

The applicants sought compensation for time spent as prisoner of war or in evading capture. The Board ruled they were eligible from the date of application for the benefit. However the Federal Court found that the Board had erred in concluding that applicants would be entitled to such compensation only as of date of the application it. Applicants are entitled to compensation retroactively to April 1, 1976, which was date of coming into force of legislation first providing for such compensation, regardless of when they apply. The applicants had acquired right to apply for compensation effective April 1, 1976, and s. 71.2(4) and s. 39 of Pension Act should not be construed to abolish that right in absence of clear language to that effect.

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Section 71.3 (Compensation for Survivor or Child)

(11/12/12) Veterans Review and Appeal Board 804387

The Board took guidance from the Federal Court Decision in Trotter v. Canada (Attorney General, 2005 FC 434, and found that Section 39 of the Pension Act does not apply to Prisoner of War Compensation for survivors. The Board ruled to grant retroactivity to 29 June 1989, the date on which proportionate survivor benefits to the Pension Act was amended.

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Section 72 (Exceptional incapacity allowance)

Stoyek v. Canada (Attorney General), 2017 FC 47 affirmed by Stoyek v. Canada (Attorney General), 2017 FCA 223

To receive an exceptional incapacity allowance under section 72 of the Pension Act, applicants must satisfy two criteria. First, they must be “in receipt” of a Class 1 pension as that term is used in section 72. Second, they must suffer an “exceptional incapacity” under the Act. The date on which a pensioner is in receipt of a Class 1 pension is the effective date from which the Class 1 pension is paid and not the date on which it is awarded.

In this case, a decision in 2010 made the applicant a Class 1 pensioner. The applicant’s disability pension, in respect of the retroactivity awarded, became payable as of 2009. Based on the credible medical evidence on record, the Board found that the applicant had started suffering an exceptional incapacity only in March 2011. The Board therefore decided that the EIA could be paid only as of March 2011. The Board’s assessment of the medical and lay evidence was found to be reasonable.

MacLeod v. Canada (Veterans Review and Appeal Board) (3 April 1998) T-2863-96 McKeown J. (F.C.T.D.) affirmed by MacLeod v. Canada (Veterans Review and Appeal Board) (18 May 1999) A-290-98 (F.C.A.)

It is not automatic that a person who becomes a Class 1 pensioner is eligible for the exceptional incapacity allowance. The effective date in this case would be the date it is medically shown that the claimant is exceptionally incapacitated. The Board did not err when it found that it could not correct the Canadian Pension Commission's failure to investigate the claimant's eligibility for the exceptional incapacity allowance in 1987, when he became a Class 1 pensioner.

War Amputations of Canada v. Pension Review Board, [1980] 2 F.C. 421 (FCA)

Section 57 [now section 72] by its terms represents a deliberate departure from the intention or principle which prevails in the award of a pension. The section does not authorize the award of an additional “pension”. It authorizes the payment of an “allowance” if certain conditions are fulfilled. Nothing in it indicates that it must be predicated only on pensionable disabilities, nor, by the same token, does it exclude from the determination of “exceptional incapacity” that part of the incapacity which is attributable to non-pensionable injury or disease.

The language used indicates that Parliament intended by the enactment of this section to provide an allowance to those veterans who are in receipt of a 100% pension, if the applicants for the allowance can demonstrate their entitlement by showing that the disability or accumulation of disabilities for which they receive the pension results in exceptional incapacity; and that their incapacity is a consequence of, or is caused in whole or in part by, the pensioned disability or accumulation of disabilities. In determining such incapacity the Commission, of course, must take into account the matters referred to in section 57(2) [now 72(2)]. But it is not limited to these matters.

(29/09/12) Veterans Review and Appeal Board 808924

Most pensioned conditions involve some degree of pain and discomfort, leave pensioners helpless to a certain degree and result in the loss of enjoyment of life. These criteria are considered when a disability is assessed according to the applicable table of the Table of Disabilities. As regards Exceptional Incapacity Allowances, the issue is what is required in terms of "degree" of pain, discomfort, loss of enjoyment of life, etc., to conclude that an incapacity is exceptional.

(14/11/88) Veterans Appeal Board #E-1538/3P

The appellant had sought an exceptional incapacity allowance pursuant to the Pension Act. He was pensioned for a number of conditions, with the total disability reaching 100%. The Board pointed out that an exceptional incapacity allowance is not an extension of the disability pension beyond 100%. Rather, the Board must take into account the factors set out in the Act, namely, the extent to which the disability has left the appellant in a helpless condition or in continuing pain or discomfort, has resulted in the loss of enjoyment of life or in a shortened life expectancy.

(26/5/87) Pension Review Board #E-14757/3P

An Entitlement Board, in a decision dated 8 December 1986, had found the appellant eligible for an exceptional incapacity allowance. The Canadian Pension Commission had established a policy or guidelines regarding retroactivity. It used the day the appellant became a Class 1 pensioner, the date from which he was considered to be eligible for the allowance, or the 30th of March 1971— whichever date is the latest. The Board in this appeal could find no rationale for the effective date as established by the Entitlement Board— 29 May 1986. The Board therefore granted an effective date of 23 January 1986, which was the date of the area counsellor's report that "formed the basis for entitlement".

Interpretation I-22 [1978] 7 Pension Review Board Reports 150

This decision discusses the origins of the exceptional incapacity allowance and its relationship to the disability pension and attendance allowance provisions. The Board advised that the exceptional incapacity allowance should not be considered an extension of the 100% disability pension, but rather, an allowance. It is not based on "disability", that is, "loss or lessening of the power to will or to do", but on the extent of the "incapacity". The same factor may be relevant to both the determination of pension and exceptional incapacity allowance, or to only one of them. An attendance allowance is determined solely by the need for attendance. It is not compensation in whole or in part for incapacity under the exceptional incapacity allowance provisions.

[1976] 5 Pension Review Board Reports 356

The applicant was pensioned for loss of an eye and arm amputated on the same side. He could not wear the conventional prosthesis appliance. He suffered from phantom limb syndrome, loss of enjoyment of life and a shortened life expectancy. The Board took into account the helplessness factor, the paired organ concept, the concept that disability increases with age, his disqualification in an unskilled labour market and the synergistic effect of the pensioned conditions. The Board held that account should be taken of the degree to which the incapacity is increased by the inability to use a prosthesis. It also held that the loss of an eye and an arm on the same side seriously diminished body stability. In view of that, and in view of the fact that the pensioned disabilities were well over 100%, the Board granted an exceptional incapacity allowance.

[1975] 5 Pension Review Board Reports 354

The Board considered the synergistic effect of all pensionable disability on the personality of the individual and his ability to cope with the mental and physical exigencies of his impaired condition, in ruling on an exceptional incapacity allowance.

Interpretation I-15 [1975] 4 Pension Review Board Reports 238

The existence and extent of the exceptional incapacity are to be determined by reference, not only to the criteria specifically mentioned in subsection 57(2), but to any other criteria of a similar or like nature.

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Subsection 72(3)

Section 75 (Annual adjustment of basic pension)

Interpretation I-39 (9 January, 1989) Veterans Appeal Board

The Board ruled that a recipient of a Class 21 pension is not entitled, under subsection 58.2(3) [now 75(3)] of the Pension Act, to receive any subsequent annual adjustment to the amount of his final payment.

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Section 81 (Application made to the Minister)

Sections 80 and 81

Phelan v. Canada (Attorney General), 2014 FC 56

The opening words of subsection 81(3) of the Pension Act are clear: “The Minister shall, on request …” If the duty were owed proactively by the Department to all those who applied for a pension, the provision would not be drafted as it is. The Department is only required to provide counselling services or assist with pension applications where such a request is made. Neither the applicant nor his representative made a request for counselling services or assistance in preparing his application. The filing of a claim, whether fully completed or not, does not constitute a request for assistance.

Rochon v. Canada (Attorney General), 2013 FC 379

In a judicial review of a reconsideration decision, the Federal Court directed that because an argument concerning medical mismanagement had not been advanced in any of the earlier proceedings prior to the reconsideration, and because it was an entirely new claim, a new application for that claim should have been made to the Minister in accordance with subsection 81(1) of the Pension Act. In the circumstances, it found that no determination was made by the Veterans Review and Appeal Board for the purposes of subsection 85(1) of the Act.

Arial v. Canada (Attorney General), 2011 FC 848

Veterans Affairs Canada's duty to provide information under subsection 81(3) of the Pension Act requires that VAC provide applicants with counselling services and assist them in preparing pension applications. On the basis of this definition taken from the statutory provisions, it can immediately be concluded that the duty to inform as framed by the Act certainly does not mean that VAC must assist every person and in every situation, in cases where the applicant concerned does not come forward:

[41] Although VAC has an obligation to make arrangements for the care of veterans depending on their needs and circumstances, the Court notes not all veterans in all circumstances are to be given every benefit. The Court observed in Krasnick Estate v. Canada (Veterans Affairs), 2007 FC 1322 at par. 25 that “[t]here is nothing in the [Pension Act] or the [Award Regulations] or other Acts or Regulations that requires [VAC] to make specific benefits known to everyone or to certain persons or to be prescient and determine from signs, signals or inferences that some persons may be in need of benefits and if so, what benefits and when” . . .

Robertson v. Canada, 2010 FC 233

Although VAC has an obligation to make arrangements for the care of veterans depending on their needs and circumstances, not all veterans in all circumstances are to be given every benefit. The Court observed in Krasnick Estate v. Canada (Veterans Affairs), 2007 FC 1322, at par. 25 that “[t]here is nothing in the [Pension Act] or the [Award Regulations] or other Acts or Regulations that requires [VAC] to make specific benefits known to everyone or to certain persons or to be prescient and determine from signs, signals or inferences that some persons may be in need of benefits and if so, what benefits and when”. Hence, VAC was not required to provide specific notice pursuant to subsection 81(3) of the Pension Act to the Applicants that Mrs. Robertson may have been eligible for a disability pension.

A letter that does not request specific assistance to file an application for disability benefits does not constitute an “application” as per subsection 81(1) of the Pension Act.

Chief Pensions Advocate v. Veterans Appeal Board (7 October, 1992), DéCary, J.A., No. A-1234-91 (F.C.A.)

The Federal Court of Appeal reversed the Board's decision in I-41.

Interpretation I-41 (18 June, 1991) Veterans Appeal Board

The Board interpreted subsection 39(1) and 89(1) of the Pension Act to mean that any person who applied for a pension after 30 March 1971, was directed in the first instance to make application to the Commission. Accordingly, the date of application, for the purposes of section 39, cannot pre-date 30 March 1971.

Interpretation I-17 [1976] 5 Pension Review Board Reports 390

It was the practice of the Canadian Pension Commission to simply dismiss an application without a ruling, if the applicant was unable to prove the existence of a disability. The Commission claimed an application was not complete unless the proof of disability existed. The Board disagreed. It held that a ruling was mandatory, whether or not a disability existed. It observed that the onus of proving that a disability exists cannot be put on the shoulders of the applicant as a pre-requisite for an application.

(21/10/03) Veterans Review and Appeal Board 659404

While subsection 81(3) of the Pension Act states that the Minister is to provide a counselling service with respect to the application of the Act to a pensioner, and to assist in the preparation of applications, this duty arises “on request” from the veteran, meaning that once a request is made, the Minister is under a duty to respond to a request for assistance or counselling on the legislation. However, this does not indicate that the Minister is responsible for anticipating, or raising a possible claim for entitlements in advance of the veteran requesting information or assistance with the matter. It is only once a request for assistance or the application is duly made to the Minister, that the Minister then becomes responsible for matters relating to its adjudication and it is clear that the duty to adjudicate on, or grant, an award does not arise until an application is actually made.

(15/10/03) Veterans Review and Appeal Board 670353

The applicant had been awarded a pension for PTSD. But he claimed it should have been made retroactive to a date in 1992 or 1993 when he had initially contacted the Department of Veterans Affairs about it, although there was no written application. The panel ruled that it could not grant further retroactivity before the date of the application being submitted to the Minister in 2001. Specifically, there was no claim submitted to the Canadian Pension Commission prior to 1995 by the applicant's own testimony. Such an application must be both in writing and stamped by the Commission before it would have been adjudicated upon by the Commission. With the creation of the current Board in 1995 all applications are now administered at first level by Ministerial authorities but there is no legal authority for such Ministerial authorities to deal with pre-1995 claims when they had not been submitted to the Canadian Pension Commission at first instance. In the circumstances entitlement at an earlier date than the date of the application to the Minister in October 2001 could not be granted.

(16/1/02)Veterans Review and Appeal Board 95170

While section 39 of the Pension Act requires that an effective date for pension payment be based on the date an application was first made, by necessary implication this could only occur where the first contact initiated an application process which was properly followed through by the applicant and resulted in a completed and “duly made” application for the award in question. The applicant must respect the Minister's requirements for making an application, in order to rely on the date of first contact under Article 39 of the Pension Policy Manual. In this case, the appellant's 2000 application, upon which his claim was later accepted, did not vary factually from his 1997 application. There was sufficient information on the 1997 application form to draw an inference that the 1997 application was duly made. That, together with the fact that the Department appeared to have treated the1997 application form as a duly made application, led the panel to conclude that the 1997 application form was the first duly made application for the claimed condition. Given that the evidence indicated the Minister`s staff had not exercised its discretion in a manner consistent with the Pension Act and its own policies in declaring the 1997 application “withdrawn”, it would not be fair to take the later application as the proper effective date.

(01/5/03) Veterans Review and Appeal Board 498225

In order for pension entitlement to be made retroactive to the date of application, it is not necessary in every case for there to have been a precise diagnosis on the application. A more general statement of the nature of the disability may be sufficient if the disability clearly existed at the time of the application and was later diagnosed.

(18/9/02) Veterans Review and Appeal Board 428558

The Board ruled that the effective date of pension entitlement was the date that a completed and signed application was submitted to the Department. With respect to an alleged telephone call from Bosnia, there is no note to this effect in the departmental files. As for the Appellant's testimony as to the number he called, it is impossible for the Board to verify whether or not the testimony in this regard is valid, because it would seem that no call of any sort was received.

(12/9/02) Veterans Review and Appeal Board 454642

The claimant argued that a letter he had written should be taken as his application date for an award under subsection 21(5). The Board disagreed. It could find no indication in the letter that the claimant had intended to apply for the award as it was eventually made. Furthermore the department's date of first contact policy must be interpreted in a manner consistent with section 39 of the Act and thus it could only benefit an applicant who had actually completed an application within a reasonable time after a first contact.

(20/8/02) Veterans Review and Appeal Board 374268

The Board cannot legally deem the date of application for two distinct conditions to be interchangeable. The proper effective date for the two-fifths pension which this Board awarded in relation to the claimed and diagnosed condition under subsection 39(1) of the Pension Act is the date on which the Applicant first made application for that particular condition, not the date on which he applied for another condition which had previously been ruled to be not pensionable.

(20/2/02) Veterans Review and Appeal Board 351509

Very shortly after the war, the claimant received pension entitlement but he did not follow the department's instructions to be assessed for the pensioned conditions. He much later claimed that he was entitled to retroactive benefits. The advocate argued that since the veteran had interrelated with the Department at various times following his entitlement, there was an onus on the Departmental personnel to review his file and inform him of his disability pension entitlements. But the Board held that to expect that the Department would completely review a veteran's file every time the veteran requested assistance on an unrelated matter would be an unreasonable expectation. The requested retroactive award therefore could not be made on that basis.

(07/2/02) Veterans Review and Appeal Board 36511

Although the Board attempts to maximize retroactive benefits, it cannot make an award retroactive to the date of an application where the application is too vague, was prior to the relevant injury or disease that actually leads to the entitlement, or is not the application which is eventually adjudicated and leads to an award.

(18/12/01) Veterans Review and Appeal Board 319263

The claimant sought retroactive attendance allowance for several years prior to his application. The Board decided that, under the provisions of section 81 of the Pension Act, there is no legal duty upon the Minister or the Minister's staff to recommend or make an application for an attendance allowance, as was argued by the Advocate. First, the Act indicates that the application in each case must be made to the Minister and not by the Minister. It is clearly the obligation of the Applicant or the Applicant's representative to make the application and it is not the Minister who must make the application on behalf of the veteran. While subsection 81(3) of the Pension Act states that the Minister is to provide a counselling service with respect to the application of the Pension Act to a pensioner, and to assist in the preparation of applications, this duty arises “on request” from the veteran, meaning that once a request is made, the Minister is under a duty to respond to a request for assistance or counselling on the legislation. However, this does not indicate that the Minister is responsible for anticipating, or raising a possible claim for entitlements in advance of the veteran requesting information or assistance with the matter.

It is only once a request for assistance or the application is duly made to the Minister, that the Minister then becomes responsible for matters relating to its adjudication and it is clear that the duty to adjudicate on, or grant, an award does not arise until an application is actually made.

(04/7/94) Veterans Appeal Board #VE-6291-RR/BFF

The Board examined subsections 21(1), 21(5), 81(1), and 39(1) in coming to the conclusions that (1) a pension awarded under subsection 21(5) cannot be made retroactive under 39(1) to a date that is before the date of entitlement for the primary condition; (2) an application under 21(1) for a condition does not also constitute an application under 21(5) to claim the condition as a consequential one and (3) a letter to the Bureau of Pensions Advocates does not constitute an application for the purposes of subsection 81(1).

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Section 83 (Definition of “overpayment”)

(02/10/03) Veterans Review and Appeal Board 653979

The claimant was obligated to repay an overpayment that had occurred when he received an additional pension for a spouse at a time when he had become divorced from her. The fact that he made monthly support payments to her did not make her his spouse or dependent so that he would qualify for the additional pension. The former spouse could not be considered a dependent within the meaning of the Act, but was simply a creditor with respect to the claimant, who has a contractual obligation towards her.

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Section 84 (Review)

Interpretation I-23 [1977] 7 Pension Review Board Reports 264

The Board held that the definition of "award" includes any form of payment made under the Act and "applicant" is not restricted to someone receiving a disability pension, but includes recipients of all forms of awards. A direction made under 31(1) for the benefit of a deserted wife and child is an award. It follows that they are "applicants" within the meaning of the Act, and therefore have a right to appeal. The case also contains a discussion of when a decision becomes final.

[1972] 1 Pension Review Board Reports 82

The Review Board held that, in a case involving reduction of assessment, the Commission has a duty to provide the pensioner with reasons for the reduction. The Board stated that, by law, it is the pensioner's right to dispute any unfavourable assessment. In order to exercise that right, he must be provided with the reasons that motivated the Commission's unfavourable assessment. To state only that the assessment is “adequate” or that it “is in keeping with others across the country”, is not considered by the Board to be a sufficient disclosure of the reasons for the Commission's action.

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Section 85 (Permission of Board required)

Lunn v. Canada (Attorney General), 2017 FC 840

The Appeal Panel dismissed the applicant’s request that the matter be returned to the Minister for reconsideration under section 85 of the Pension Act. The Panel refused to return the matter to the Minister for reconsideration on the basis that it was beyond the powers of the Panel to do so. Section 85 provides the Board with the discretion to allow an application that has already been decided by the Board to be reconsidered by the Minister. The Panel determined that this power was confined to the Board, and did not apply to a Review Panel or an Appeal Panel, whose powers were limited by section 29 of the Veterans Review and Appeal Board Act. There was no error the Panel’s determination that it was not open to it to refer the application to the Minister for reconsideration.

Arial v. Canada (Attorney General), 2014 FCA 215

Section 85 of the Pension Act does not provide an independent remedy for a breach of the duty to provide a counselling service, as set out in subsection 81(3) of the Act. Sections 39 and 56 of the Act, when read together with the definition of “award” appearing in section 3 of the Act, set the parameters within which the Minister’s power of reconsideration may be exercised, and the Minister could not act outside them. The imperative nature of these provisions is confirmed by well settled case law.

Arial v. Canada (Attorney General), 2013 FC 602

Section 85 of the Pension Act is very limited. It can only be used for an award that has already been subject of a determination by the Board. The Board has jurisdiction only with respect to pensions. The applicant wanted an award of increased retroactivity to compensate for the failure of Veterans Affairs Canada to provide proper advice and counselling. However the maximum retroactivity permitted by the legislation had already been awarded. Section 85 could not be used for an award that the Board itself could not consider nor for giving the Minister the power of ignoring the Act.

Rochon v. Canada (Attorney General), 2013 FC 379

In a judicial review of a reconsideration decision, the Federal Court directed that because an argument concerning medical mismanagement had not been advanced in any of the earlier proceedings prior to the reconsideration, and because it was an entirely new claim, a new application for that claim should have been made to the Minister in accordance with subsection 81(1) of the Pension Act. In the circumstances, it found that no determination was made by the Veterans Review and Appeal Board for the purposes of subsection 85(1) of the Act.

(31/8/11) Veterans Review and Appeal Board 690930

The Board could not grant the request made under section 85 of the Pension Act because no reason or grounds had been provided to support or substantiate why the claim should be referred back to the Minister.

In very exceptional circumstances, the Board may grant permission to the Minister to consider an application for an award that has already been the subject of a determination by the Board. These exceptional circumstances would be where there are clearly new issues raised in relation to an Applicant's claim which are sufficiently novel and distinctive from those already determined by the Board that a first-level decision is required by the Minister.

(27/1/04) Veterans Review and Appeal Board 712409

Under paragraph 85(1)(a) of the Pension Act, the Department is barred from reconsidering an application which the Board has already determined unless the Board has granted permission. Therefore in any case in which the Board had awarded pension entitlement for a particular medical condition and the Department has not sought the Board's permission to change the diagnosis, the proper forum for any application to change the diagnosis is the Board by way of an application to it. The decision to change the diagnosis will then depend upon the evidence presented in support of the application.

(17/1/02) Veterans Review and Appeal Board 285048

The appellant's pension claim in 1994, was for bipolar disorder. The application was denied at the first adjudication level, reviewed by a review panel of the Veterans Review and Appeal Board and was then considered by an appeal panel of the Board, which rejected the appeal in its decision of 28 February 1997. Having been denied, reviewed and appealed, that claim could not have been considered again as an initial application, because the Department of Veterans Affairs no longer had the jurisdiction to consider it. The claim submitted by the appellant on 29 May 2000, and approved by a Minister's decision of 2 November 2000 was therefore a new application for a different disabling condition diagnosed as an adjustment disorder.

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Section 87 (Inquiries Act)

Interpretation I-28 [1981] Pension Review Board Interpretations 152

The Board ruled that, under the Pension Act, the Canadian Pension Commission had the right by virtue of the Inquiries Act to engage the services of a medical staff and obtain opinions on medical matters from the members of that staff. It recommended however that, to avoid the appearance of a de facto delegation of powers, the Commission refrain from adopting verbatim the medical comments as the decision of the Commission. The Board also ruled that members of the Medical Advisory Branch have specialized skill or knowledge as witnesses who are expert in medical matters. Therefore they may give evidence on medical matters, but they may not give evidence on other issues.

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Section 109 (Rights to inspect records, etc.)

MacDonald v. Canada (Attorney General), 2007 FC 809

The Board erred by failing to address the fact that medical records for a relevant period were missing from the official record. The military, not the applicant, was responsible for the maintenance of the personal records, including the medical records. The applicant should not be penalized for a gap in the medical history that arises from their unavailability. Although the Board focussed on the incompleteness of the record, it erred by failing to acknowledge the reasons for that state of affairs.

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Section 111 (Definition of “action”)

Lebrasseur v. Canada, 2011 FC 1075

A stay under subsection 111(2) of the Pension Act is only available in relation to actions that are not barred by virtue of section 9 of the Crown Liability and Proceedings Act. The latter provision sets out to prevent double recovery in cases of Crown liability notably under ancillary heads of damages for an event that has already been compensated. This requires a determination whether the pension or compensation is paid “in respect of ... injury, damage or loss in respect of which the claim is made”.

Levesque v. Canada (Attorney General), 2004 ABCA 43

The appellant alleged that he was a regular member of the Canadian Forces engaged in the execution of his duties when he incurred the injury of which he complains. He further alleged that his injuries resulted from the improper conduct of his superior officers and improper treatment by military medical personnel. Exclusive jurisdiction to interpret and apply the provisions of the Pension Act is vested in the Minister of Veterans Affairs (regarding the initial award of a pension) and in the Veterans Review and Appeal Board, which hears appeals from the Minister's decision. The Court of Queen's Bench has not been granted the jurisdiction to interpret the provisions of the Pension Act or to decide whether a pension is payable under that Act. As provided by s. 111(2), the issue of whether a pension is payable pursuant to the Pension Act must be resolved by the Veterans Review and Appeal Board before the Court can proceed with a tort action.

Interpretation I-31 (15 February, 1985) Pension Review Board

The Board confirmed the decision in I-25 that Regular Forces members are pensionable in cases of medical negligence. That decision had been put in doubt by the Supreme Court of Canada decision in Mérineau v. Her Majesty the Queen, which dealt with the mutual exclusivity of pension and civil claims for the same disability or death established in section 88 of the Pension Act. The Board ruled that the Supreme Court had not intended to over-rule the carefully constructed policy on medical negligence.

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