Digests

Veterans

Judicial review of decision by appeal panel of Veterans Review and Appeal Board dismissing application to reconsider previous decision upholding date of applicant’s entitlement to attendance allowance—In 1996, applicants taking steps to obtain disability pension from Department of Veterans Affairs—In June 2005, applicant obtaining disability pension for hearing loss—On September 21, 2005, applicant obtaining attendance allowance retroactive to September 16, 2006—After applicant’s death, widow seeking reconsideration of recognition of applicant’s entitlement to attendance allowance retroactively to March 7, 1996, date of initial steps to obtain disability pension—Application for reconsideration refused by appeal panel—Issue at heart of case being whether s. 38(1) of Pension Act, R.S.C., 1985, c. P-6, which creates entitlement to attendance allowance, allows such allowance to be awarded as of a date prior to the date on which disability pension is awarded—No provision specifically pertaining to time at which attendance allowance becomes payable—Limitation on retroactivity of attendance allowances applied by appeal panel contrary to spirit of Act as enunciated in s. 2—The words “has been awarded”, s. 38(1) to be understood as covering period during which pension made payable under section 39(1), not only period following decision to award pension—Thus, departmental policy applied by appeal panel inconsistent with liberal interpretation of Pension Act that is consistent with Parliament’s clearly expressed objective—Appeal panel therefore erred in finding that it did not have power to award attendance allowance retroactively—Application allowed.

Arial v. Canada (Attorney General) (T-1287-09, 2010 fc 184, Tremblay-Lamer J., judgment dated February 19, 2010, 16 pp.)