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ARMED FORCES - Appeals and judicial review - Reasonableness

Tuesday, May 28, 2019 @ 8:45 AM  


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Appeal by Fawcett from a decision dismissing her application for judicial review of a decision of the Chief of the Defence Staff (CDS) dismissing her grievance and concluding that she was not on duty at the time of a motor vehicle accident. The appellant, a member of the Armed Forces, was seriously injured in a motor vehicle accident while driving her son to daycare on the way to work. Her husband, also a member of the Armed Forces, was unable to drive the child to daycare as he was called to training early that morning in preparation for imminent deployment. A summary investigation into the appellant’s injuries concluded that she was on duty at the time of the accident, but that her injuries were not attributable to military service. The Director Casualty Support and Administration approved its findings but for his conclusion that the appellant was not on duty at the time of the accident. As a result, the appellant’s application for a disability award was denied by Veterans Affairs Canada on the basis that her injury was not service-related. The appellant grieved the decision to the CDS requesting a finding that she was on duty at the time of the accident, and that her injuries were attributable to military service. She argued that because the change to her family’s childcare routine was a result of a military requirement, her execution of her family care plan was also a military requirement. The CDS concluded the appellant’s family care plan was not a regulated military duty but a contingency plan put in place by a parent to ensure her family’s care when she was away for service reasons. He found that Forces members were ordered to complete family care plan declarations to ensure that their family was cared for during the time the member was away for duty reasons. Based on his interpretation of Defence Administrative Order and Directive that all military personnel with children be required to prepare a plan according to predetermined criteria to ensure that whenever they deploy, their child care requirements would be met, the CDS found that, on the morning of the accident, the appellant was away from military duty to attend to her family responsibilities, not away from family responsibilities to attend to military duty. He therefore concluded that she was not executing her family care plan at the relevant time.

HELD: Appeal dismissed. The Federal Court did not err in applying the standard of reasonableness to the CDS’s interpretation of Canadian Forces Administrative Order, “Investigation of Injuries or Death” (CFAO 24-6), which gave guidance on the terms “on duty” and “attributable to military service” for the purposes of a military investigation. There was no basis for finding that the jurisprudence had already satisfactorily determined that correctness applied. The case relied on by the applicant did not determine the standard of review applicable in the present case. CFAO 24-6 contained no requirement that its terms be liberally construed and interpreted. The CDS’s detailed reasons exhibited justification, transparency and intelligibility. The standard of reasonableness was therefore met.

Fawcett v. Canada (Attorney General), [2019] F.C.J. No. 436, Federal Court of Appeal, W.W. Webb, D.G. Near and J.B. Laskin JJ.A., April 23, 2019. Digest No. TLD-May272019003