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Government Law - Armed forces - Personnel - Conditions of service - Compensation and benefits

Thursday, November 24, 2016 @ 7:00 PM  


Appeal by a civilian employee of the Department of National Defence from the dismissal of his application for judicial review of a decision of the Veterans Review and Appeal Panel, in which the Panel found he was ineligible for an Exceptional Incapacity Allowance. The appellant was on duty when the plane in which he was a passenger crashed over the Northwest Territories. The appellant suffered severe injuries that left him a paraplegic and amputee. He also developed post-traumatic stress disorder (PTSD) following the crash. The appellant elected to receive compensation for his injuries under the Flying Accidents Compensation Regulations as opposed to the Government Employees Compensation Act. He and his dependents were awarded pensions, but the appellant was denied special allowances including an attendant, special clothing and exceptional incapacity. The appellant’s application for special benefits was denied because the Department determined that he was not entitled to those allowances as he was not a member of the Canadian Armed Forces. The appellant’s appeals were dismissed at all levels of the appeal process, with the Appeal Panel ultimately concluding that the special allowances were not available to civilian pensioners. The Panel also rejected the appellant’s assertion that his equality rights under s. 15 of the Charter had been contravened through the differential treatment he had been afforded as compared to members of the military. The Federal Court dismissed the appellant’s application for judicial review. It held that the Panel’s interpretation of the relevant provisions in the Regulations and the Pension Act was reasonable. The Federal Court also found that the Panel’s assessment of the appellant’s Charter claim was reasonable and conformed with the applicable case law under s. 15 of the Charter.

HELD: Appeal dismissed. The Panel’s decision interpreting the Regulations and the Pension Act was reasonable and there was no denial of the appellant’s Charter rights. The only possible interpretation of s. 3(1)(a) of the Flying Accidents Compensation Regulations was the one adopted by the Panel, namely, that the appellant was entitled to a pension in accordance with the Pension Act and that additional entitlements he sought were not pensions but rather allowances, which were not pensions under the Pensions Act. There was no purposive interpretation that would allow ignoring the clear words of the Regulations in favour of finding that a pension included the special allowances. The appellant was treated different not because of the nature of his disability, but because of the nature of his employment. Differential treatment based on the different nature of an individual’s employment did not constitute discrimination on the basis of an analogous ground under s. 15 of the Charter.