PENSIONS
Career soldier killed when struck by tractor trailer in returning to military base from late night swim—Had gone to lake in breach of curfew, did not sign out—Soldiers, deployed in British Columbia to fight forest fires, “on duty” 24 hours per day seven days a week—Had been fighting fires 16 hours day went for swim—Widow denied pension for failure to establish death arose from, directly connected with military service: Pension Act, s. 21(2)(b)—Refusal sustained by Veterans Review and Appeal Board (VRAB) but decision set aside in Frye v. Canada (Attorney General), 2004 FC 986— Veterans Affairs Minister appealing on ground F.C. substituted view of merits for that of Board—Widow likely granted pension had death occurred after legislation amended by S.C. 2003, c. 12, ss. 1-3 (allowing pension where armed forces member killed when on “special duty service”, which could include service in area where member exposed to “conditions of elevated risk”, such as fighting forest fires, in which case claimant need not prove death arose out of military service), but amendments not retroactive to 1994—VRAB concluded soldier “taking advantage of recreation and relaxation time” when killed, so death not arising out of military service—Also held inapplicable s. 21(3)(f) which provides injury presumed due to military service if incurred in course of any military operation as result of specific order or established military custom or practice, whether or not failure to perform act resulting in injury would have resulted in disciplinary action against member—VRAB relied on fact soldier left camp without signing out, no evidence actions influenced by superiors’ orders—F.C. concluded widow had proved necessary direct or proximate causal connection between death, military service—Board decisions on whether injury “arose out of or was directly connected with” military service reviewable on reasonableness simpliciter standard but, if issues purely factual, Federal Courts Act, s. 18.1(4)(d) prescribes what amounts to patent unreasonableness—If VRAB’s interpretation of Act at issue, it is reviewable for error of law on correctness standard—Since Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, at p. 10, principle has been that social welfare legislation must be liberally construed, “any doubt arising from the difficulties of the language should be resolved in favour of the claimant”— Same principles apply to employment standards legislation, Canada Pension Plan—Pension Act “benefits conferring” legislation—Both judicial authority, strong statutory language support liberal construction—S. 2 provides “provisions of this Act shall be liberally construed and interpreted”—Veterans Review and Appeals Board Act, s. 39 prescribes liberal construction, requires Board to draw every reasonable inference in claimant’s favour, resolve in claimant’s favour any doubt in weighing evidence—Metcalfe v. Canada (Attorney General) (1999), 160 F.T.R. 281 (F.C.T.D.) holding s. 39 might not go so far as to create reverse onus, but goes considerable way in that direction—Phrase “arose out of” in s. 21(2)(b) thus to be interpreted in broad manner so that direct, proximate causal connection not required—F.C. correctly endorsed broad approach but held word “consécutive” in French version of s. 21(2)(b) imported limitation not found in broader English phrase “arose out of” —Concluded “directly connected with” controlling phrase, which F.C. paraphrased as “directly caused by”—That analysis contrary to broad interpretative approach, not demanded by statutory text—Significant that phrase “arose out of” linked to “directly connected with” by word “or” apparently indicating Parliament not intending claimant eligible for pension only if death “arose out of” and “directly connected with” military service—“Consécutive” not imposing limit suggested by F.C.—Board not erring in not considering meaning of “directly”—According to French dictionaries, “consécutif” means “resulting from”, “due to”, “following upon”, “qui suit”, “est une conséquence de”—Definitions not connoting closer causal nexus between events than non-specific English phrase “arose out of”—Even if discrepancy between two official versions, broader meaning to be chosen if better expresses intention of Parliament—Claimant may fall within s. 21(1)(b) by establishing death arose out of military service, whether or not direct connection between them— While not enough person serving in armed forces at time, causal nexus claimant must show between death, military service need be neither direct nor immediate—VRAB’s reasons reveal misinterpretation of “arose out of” by requiring immediate causal connection between death, military service —In VRAB’s view, death neither arose from nor directly connected with military service as happened when engaged in recreation—Board saw recreation, military service as mutually exclusive—Such narrow approach to phrase “arose out of or directly connected with” inconsistent with liberal, generous interpretative approach to Act required by law—Weight should have been given to Commanding Officer’s statement that, to ensure soldiers not overly fatigued by arduous, dangerous task of forest fire fighting, authorized recreation, relaxation policy and, while not in evidence that swimming in lake authorized by policy, could be inferred from entries “beach”, “town” in camp gate logs that officers condoned going to lake —F.C. not erring in principle in remitting matter to VRAB with direction to deal with it on basis death arose out of military service, as open to F.C. to conclude that, upon correct interpretation of Act, only reasonable finding that death arose out of military service—Appeal dismissed— Pension Act, R.S.C., 1985, c. P-6, ss. 2, 21(2)(b), (3)(f)— Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(4)(d) (as enacted by S.C.1990, c. 8, s. 5; 2002, c. 8, s. 27)—Veterans Review and Appeal Board Act, S.C. 1995, c. 18, s. 39.
Frye v. Canada (Attorney General) (A-441-04, 2005 FCA 264, Linden, Sexton, Evans JJ.A., judgment dated 8/8/05, 15 pp.)