Annotated Veterans Well-being Act

Reading and understanding the Annotated Veterans Well-being Act

The Annotated Veterans Well-being Act brings together excerpts and summaries from decisions made by the Federal Courts, the Board and its predecessors that address certain sections of the legislation. These annotations make the Act easier to understand by highlighting issues that may arise during hearings as well as the nature and extent of the evidence required by the Board. They also identify trends in the case law. The Annotated Veterans Well-being Act only contains sections of the Act for which there are annotations. To view the full-text Veterans Well-being Act, click here.

Disclaimer: These documents are not the official versions.

Section 2 (Service-related injury or disease)

Cross-Reference: Pension Act, paragraph 3(1)

For judicial comment on an identical provision, please consult the case notes mentioned in paragraph 3(1) of the Pension Act.

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

The Veterans Well-being Act sets forth the conditions under which members and veterans of the Canadian Forces are entitled to receive compensation. The simple fact that a member of the Forces or veteran was injured or developed a disease while he was serving is not sufficient to entitle him to a disability award. The injury or the disease must be service-related or must have been aggravated by service. The definition of a service-related injury or disease under the Act clearly encompasses two alternative criteria: an injury or disease is service-related if it arose out of the service in the Forces or if it was directly connected with the service in the Forces. It appears from the words used by Parliament that the criteria referring to the “arose out of” military service is less stringent than the “directly connected with” portion of the definition.

Cross Reference : Pension Act, Section 2; Veterans Review and Appeal Board Act, Section 3

For judicial comment with respect to a similar provision, please consult the case notes mentioned Section 2 of the Pension Act and Section 3 of the Veterans Review and Appeal Board Act.

Section 45 (Eligibility and Compensable fraction)

Cross References : Pension Act, section 21.

Newman v. Canada (Attorney General), 2014 FCA 218

A disability award may be paid under paragraph 45(1)(a) of the Veterans Well-being Act for a disability resulting from an injury or disease that arose out of service in the Canadian Forces or that was directly connected with service in the Canadian Forces (see the definition of “service-related injury or disease” in subsection 2(1) of the Act). Alternatively, a disability award may be paid under paragraph 45(1)(b) of the Act for a disability that did not result from a service-related injury or disease if the disability was aggravated and the aggravation arose out of service with the Canadian Forces or was directly connected with service in the Canadian Forces (see the definition of “aggravated by service” in subsection 2(1) of the Act). In such a case, the disability award is paid to the extent of the service-related aggravation, measured in fifths.

Section 45 of the Act requires the Minister to determine the cause of the disability for which a disability award is sought. If the Minister’s determination is appealed under the Veterans Review and Appeal Board Act, the responsibility for determining the cause of the disability falls to the Review panel or the Appeal panel, as the case may be.

Fournier v. Canada (Attorney General), 2018 FC 464

The case law dealing with section 21 of the Pension Act is still relevant because the issue boils down to interpreting and applying the same terms used in section 45 of the Veterans Well-being Act.

Balderstone v. Canada (Attorney General), 2014 FC 942

The applicant had alleged medical mismanagement. The Board did not commit a reviewable error when it rejected a medical opinion that did not address the standard of care at the relevant time.

Ben-Tahir v. Canada (Attorney General), 2015 FC 881

Sections 43 and 45 of the Canadian Forces Members and Veterans Re-establishment and Compensation Act and sections 3 and 39 of the Veterans Review and Appeal Board Act mean that an applicant must submit sufficient credible evidence to show a causal link between his or her injury or disease and his or her time of military service. The injury must be sufficiently proximate to justify an award of disability benefits. This means that the injury must arise out of service in the Canadian Forces or be directly connected with service in the Canadian Forces. Any injuries suffered while working as a civilian do not engage section 45 of the Act.

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

The Veterans Well-being Act sets forth the conditions under which members and veterans of the Canadian Forces are entitled to receive compensation. The simple fact that a member of the Forces or veteran was injured or developed a disease while he was serving is not sufficient to entitle him to a disability award. The injury or the disease must be service-related or must have been aggravated by service. The definition of a service-related injury or disease under the Act clearly encompasses two alternative criteria: an injury or disease is service-related if it arose out of the service in the Forces or if it was directly connected with the service in the Forces. It appears from the words used by Parliament that the criteria referring to the “arose out of” military service is less stringent than the “directly connected with” portion of the definition.

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

The fact that an application is made under the Veterans Well-being 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.

Section 46 (Consequential injury or disease)

Cross References: Pension Act, subsection 21(5).

Werring v. Canada (Attorney General), 2013 FC 240

The applicant claimed that an arthritic condition made it impossible to exercise and as a consequnce he suffered coronary artery disease. However, the only medical opinion about the inability to exercise was from a cardiologist who merely repeated the applicant's assertions. It did not objectively address the extent of the applicant's arthritis and his ability to undertake a customized exercise program. The evidence, although credible as far as it went, was insufficient to support the case for a consequential award.

Malott v. Canada (Attorney General), 2015 FC 1267

Under the Veterans Well-being Act, the Minister of Veterans Affairs may reduce an applicant’s disability benefit by a prescribed amount if s/he receives a payment from a prescribed source. The Canadian Forces Members and Veterans Re-establishment and Compensation Regulations state that payment for non-economic loss is a prescribed source. In this case, the Board failed to take account of relevant evidence and statutory authority when it found that the applicant’s workers’ compensation benefit represented compensation for a non-economic loss. Accordingly, the Board’s conclusion did not fall within the range of defensible outcomes based on the facts and the law.

Cross-Reference : Pension Act, paragraph 21(3)

For judicial comment with respect to a similar provision, please consult the case notes mentioned in paragraph 21(3) of the Pension Act.

Jansen v. Canada (Attorney General), 2017 FC 8

Section 50 of the Veterans Well-being Act states that a veteran is presumed, in the absence of evidence to the contrary, to have established that an injury is a service-related injury if it is demonstrated that the injury was incurred in the course of the activities set out. In this case, the Board considered the applicant’s testimony about ankle injuries she sustained during her military service in the 1970s and a 1977 Medical Absentee Certificate referring to restrictions due to weak ankles. However, the Section 50 presumption was rebutted by declarations signed by the applicant on release saying that she had not suffered an ankle injury attributable to her military service. Those declarations were evidence to the contrary.

Ryan v. Canada (Attorney General), 2016 FC 1246

Subsection 50(f) of the Veterans Well-being Act provides that, in the absence of contrary evidence, a veteran has established that an injury or disease is service-related if s/he demonstrates that it was incurred in the course of any military operation, training, or administration. In this case, the ss. 50(f) presumption was rebutted by the evidence: the first indication of the applicant’s claimed back condition occurred years after his release from the Canadian Forces. Furthermore, there was little time taken off work for two accidents while in the Forces, and no evidence of any follow-up treatment. There was one brief notation about lower back pain, but he was considered fit for duty.

Cross References: Pension Act, subsections 21(9) & 21(10).

Section 51 (Disability Awards)

Newman v. Canada (Attorney General), 2014 FCA 218

In accordance with the presumption in section 51 of the Veterans Well-being Regulations, it had to be presumed, for the purposes of the applicant’s disability award application, that at the time of her enrolment she was in the medical condition found in her enrolment medical examination. The section 51 presumption is subject to two exceptions.

In this case, the first exception would render the presumption inapplicable if there had been recorded evidence of a diagnosis of chronic dysthymia within three months after enrolment. There was no such evidence. The second exception would have applied if there had been medical evidence that established beyond a reasonable doubt that the disability existed prior to enrolment. The record disclosed no medical evidence that the applicant suffered from chronic dysthymia prior to her enrolment. Based on the section 51 presumption, the Board was obliged to proceed on the basis that the applicant did not suffer from chronic dysthymia before her enrolment. As it is undisputed that she suffered from that condition upon her retirement, it must have been during her military career that she began to suffer from that condition. Therefore, the only remaining question to be determined by the Board was the cause of that condition.

Newman v. Canada (Attorney General), 2014 FCA 218

Section 52 of the Regulations had no application because the application for enrolment did not mention the claimed condition or any similar problem.

Malott v. Canada (Attorney General), 2015 FC 1267

Under the Veterans Well-being Act, the Minister of Veterans Affairs may reduce an applicant’s disability benefit by a prescribed amount if s/he receives a payment from a prescribed source. The Veterans Well-being Regulations state that payment for non-economic loss is a prescribed source. In this case, the Board failed to take account of relevant evidence and statutory authority when it found that the applicant’s workers’ compensation benefit represented compensation for a non-economic loss. Accordingly, the Board’s conclusion did not fall within the range of defensible outcomes based on the facts and the law.

(21/01/2015) Veterans Review and Appeal Board 1898169

A compensation received by the Criminal Injuries Compensation Program was recognized as a compensation plan of the same nature established under a provincial law. The decision contains a brief history of the objective of similar provisions in the Pension Act.

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