PENSIONS |
Frye v. Canada (Attorney General)
T-2211-03
2004 FC 986, Harrington J.
14/7/04
10 pp.
Judicial review of Veterans Review and Appeal Board's decision upholding refusal of widow's pension application on ground husband's death neither "arose out of [n]or was directly connected" with military service (Pension Act, s. 21)--Plaintiff's husband, soldier, killed in 1994 while crossing highway to return to base after swim at end of 16-hour day fighting forest fires in British Columbia--Had death occurred in 2004, applicant would likely have received pension as Act amended in 2003 so as to equate "special duty service" with war time service--Board correctly held amendments had no retroactive effect--However question remaining whether amendments changed or merely clarified law--Coming down to burden of proof--Death had to arise out of or be directly connected with military service-- Meaning of "direct connection"--Cases establishing injury incurred while performing everyday activity such as sleeping on base or taking shower on ship, directly connected with military service, but injuries incurred off-base while driving car or crossing street not directly connected to military service --Here, soldier on-duty in elevated risk situation--On midnight swim with other members of Armed Forces, instead of being on holiday with wife because risking life carrying out his duty, from which taking short break--Pension Act, s. 21(2)(b) as it was in 1994 stating pension shall be awarded "where member of forces dies as result of injury or disease or aggravation thereof that arose out of or was directly connected with such military service"--Parliament's intention not clear--Phrase "arose out of" given much broader meaning by courts than "caused by", much less "directly connected with" --Also significant that "arose out of" and "directly connected with" joined by "or", not by "and"--In Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405, Major J. commented "arising out of" broader than "caused by", and must be interpreted in more liberal manner--"Directly connected with" equated to "directly caused by"--French text considered--Board failed to consider meaning of "direct"-- Test one of proximity, dominant contacts--Board did not consider all circumstances surrounding death, and unreasona-bly focussed upon act of swimming and returning therefrom as recreational activity outside scope of military service--Failed to consider commanding officer established recreational policy to ensure soldiers did not become overly fatigued--Activity close to sports activity organized by military, or performed in interest of service--Such activity deemed to have arisen out of or been directly connected with military service (s. 22(3)(a) and (b))--Direct causality, or proximity, arises from soldier being engaged in military operation, on duty 24 hours a day, seven days a week, in area of elevated risk--Application allowed--Pension Act, R.S.C., 1985, c. P-6, ss. 21 (as am. by R.S.C., 1985 (1st Supp.), c. 16, s. 2; (3rd Supp.), c. 20, s. 28; S.C. 1990, c. 43, s. 8; 1995, c. 18, s. 75; 2000, c. 12, ss. 212, 236; c. 34, s. 21; 2003, c. 12, s. 2), 22 (as am. by S.C. 1995, c. 18, s. 75).