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ARMED FORCES - Personnel - Conditions of service - Compensation and benefits

Friday, January 05, 2018 @ 8:30 AM  


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Appeal by Canada from the decision in its largely unsuccessful application to strike claims by six members and former members of the Canadian Forces who suffered injuries in the line of their military duties. The plaintiffs alleged that Canada acted unconstitutionally in creating an inadequate system of compensation for them and other members of the Canadian Forces. The New Veterans Charter provided for lump sum earnings loss benefits for members and veterans suffering from disabilities relating to their service, as well as other benefits. The essence of the plaintiffs’ claim was that Canada had bound itself to a social covenant to provide adequate disability benefits for them. They alleged that this social covenant had constitutional status such that it circumscribed Parliament’s ability to legislate in the area of disability. They raised the doctrine of honour of the Crown and also argued that the social covenant gave rise to property rights of which the New Veterans Charter sought to deprive them. The plaintiffs also raised claims under the Canadian Charter of Rights and Freedoms (Charter) arguing that they were an analogous ground subject to discrimination because the New Veterans Charter provided them with lesser benefits than were provided to injured workers or individuals harmed as a result of an actionable tort. They claimed that the New Veterans Charter violated their s. 7 Charter rights to life, liberty and security of the person. In dismissing Canada’s application to strike the claim as disclosing no reasonable cause of action, the judge noted that Canada had accepted that the social covenant existed, but not that it had failed to fulfil it. The judge held that the doctrine of the honour of the Crown could apply to the social covenant. He found that it was not plain or obvious that status as a Canadian Forces member or veteran injured while serving would never be found to constitute one of an analogous group. He found it arguable that section 7 of the Charter could include a positive obligation on Canada to protect the security of the plaintiffs based on the unique interactions between the Crown and its armed forces. The judge did not itemize those few portions of the plaintiffs’ claim that he decided should be struck.

HELD: Appeal allowed. The plaintiffs’ claim was struck and the action was dismissed. The judge erred in finding that Canada accepted that a social covenant existed. Canada accepted that Prime Minister Borden stated in 1917 that the government considered it a duty to show its appreciation for service in the Canadian Forces. Borden’s vague statements did not bind Canada to a specific legislative regime in perpetuity. The doctrine of the honour of the Crown applied specifically to dealings with Canada’s First Nations people, and the plaintiffs’ situation bore no resemblance to that of First Nations. The plaintiffs were not an analogous group for the purpose of seeking a remedy for the discriminatory impact of the New Veterans Charter. The plaintiffs, as military personnel, were not resented or discriminated against by the general population of Canada, and their treatment under the New Veterans Charter did not serve to perpetuate prejudice or stereotyping. Section 7 of the Charter did not impose a positive duty on Canada to enhance the lives of the plaintiffs.

Scott v. Canada (Attorney General), [2017] B.C.J. No. 2446, British Columbia Court of Appeal, H. Groberman, D.C. Harris and P.M. Willcock JJ.A., December 4, 2017. Digest No. TLD-January12018010