Bradley v. Canada (Attorney General), (2011) 386 F.T.R. 92 (FC)

• Judge: Phelan, J.
• Court: Federal Court (Canada)
• Case Date: December 14, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2011), 386 F.T.R. 92 (FC);2011 FC 309

Bradley v. Can. (A.G.) (2011), 386 F.T.R. 92 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. MR.034

Brian C. Bradley (applicant) v. Attorney General of Canada (respondent)

(T-617-09; 2011 FC 309)

Indexed As: Bradley v. Canada (Attorney General)

Federal Court

Phelan, J.

March 15, 2011.

Summary:

Bradley was a member of the armed forces who fell while showering on board his ship. He applied under s. 21(2) of the Pension Act for benefits relating to upper back and neck injuries caused by the accident. The Veterans Review and Appeal Board dismissed the claim because the accident was not sufficiently connected with military service as required by s. 21(2). Bradley made a new claim related to low back pain caused by the same accident. The Minister of Veterans Affairs indicated that, because Bradley's condition resulted from an accident that had previously been determined as not directly connected to service, she had no jurisdiction under s. 85(1) of the Pension Act to proceed with the application. Bradley sought judicial review, requesting an order of mandamus to compel the Minister to determine the application.

The Federal Court, in a decision reported at (2005), 283 F.T.R. 25, allowed the application and referred the matter back to the Minister. The court declined to grant an order of mandamus. The Minister denied Bradley's application. The Veterans Review and Appeal Board affirmed the decision. Bradley sought judicial review.

The Federal Court allowed the application, quashing the Board's decision.

Armed Forces - Topic 8082

Pensions - Disability and survivor pensions - Entitlement - Evidence and proof (incl. standard of proof) - [See Armed Forces - Topic 8094 ].

Armed Forces - Topic 8094

Pensions - Disability and survivor pensions - Entitlement - Activity connected to military - Bradley was a member of the armed forces who fell while showering on board his ship - He applied under s. 21(2) of the Pension Act for benefits relating to injuries caused by the accident - The Veterans Review and Appeal Board dismissed the claim because the accident was not sufficiently connected with military service as required by s. 21(2) - The Federal Court allowed Bradley's application for judicial review, quashing the Board's decision - The Board's approach was inconsistent with s. 3 of the Veterans Review and Appeal Board Act, which indicated that those who serve in the military were deserving of special care and attention when they were injured or killed - The Board approached the claim in a "bureaucratic, narrow and parsimonious manner" - In its focus on the "mundane act of showering", the Board failed to consider the unique nature of shipboard life, its confinement, its closeness and the nature of the spaces onboard - In general, the Board's focus on whether Bradley was performing a specific military function or duty when he was injured, rather than whether the injury arose from his being in military service, was unreasonable - Further, on the question of the medical evidence of causation, the decision was also unreasonable - There was evidence which would allow a reasonably instructed Board to grant the application.

Cases Noticed:

Wannamaker v. Canada (Attorney General) (2007), 361 N.R. 266; 2007 FCA 126, refd to. [para. 12].

McTague v. Canada (Attorney General), [2000] 1 F.C. 647; 177 F.T.R. 5 (T.D.), refd to. [para. 12].

Schut v. Canada (Attorney General) (2000), 186 F.T.R. 212 (T.D.), refd to. [para. 14].

Frye v. Canada (Attorney General) (2005), 338 N.R. 382; 2005 FCA 264, refd to. [para. 14].

Bradley v. Canada (Attorney General) (2001), 208 F.T.R. 253; 2001 FCT 793, refd to. [para. 19].

Moar v. Canada (Attorney General), [2006] F.T.R. Uned. 380; 2006 FC 610, refd to. [para. 34].

Counsel:

Brian C. Bradley on his own behalf;

Kerry Boyd, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Edmonton, Alberta, for the respondent.

This application was heard at Calgary, Alberta, on December 14, 2010, by Phelan, J., of the Federal Court, who delivered the following reasons for judgment on March 15, 2011.