Cole v. Canada (Attorney General), (2015) 475 N.R. 276 (FCA)

• Judge: Gauthier, Ryer and Webb, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 25, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 475 N.R. 276 (FCA);2015 FCA 119;[2011] 2 FCR 332;400 NR 367;AZ-50613379;[2010] FCJ No 274 (QL)

Cole v. Can. (A.G.) (2015), 475 N.R. 276 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. AU.001

Anne Cole (appellant) v. Attorney General of Canada (respondent)

(A-226-14; 2015 FCA 119; 2015 CAF 119)

Indexed As: Cole v. Canada (Attorney General)

Federal Court of Appeal

Gauthier, Ryer and Webb, JJ.A.

May 5, 2015.

Summary:

Captain Cole, after a 21-year military career, claimed a disability pension because of a major depression. The Entitlement Appeal Panel of the Veterans Review and Appeal Board refused the application on the basis that Cole failed to establish that her claimed condition "arose out of or was directly connected" with her peacetime military service (i.e., was the "primary cause" of her claimed condition), as required by s. 21(2)(a) Pension Act. Cole applied for judicial review.

The Federal Court, in a decision reported [2014] F.T.R. Uned. 117, dismissed the application. The applicant appealed.

The Federal Court of Appeal allowed the appeal. Both the Board and the Federal Court erred in their interpretation of the degree of causal connection required by the phrase "arose out of or was directly connected with" in s. 21(2)(a) in relation to Cole's pension application. The matter was returned to the Board.

Armed Forces - Topic 8093

Pensions - Disability pensions - Entitlement - Judicial review - The Veterans Review and Appeal Board denied a disability pension because the veteran failed to establish that her claimed condition "arose out of or was directly connected" with her peacetime military service (Pension Act, s. 21(2)(a)) - The veteran applied for judicial review - The Federal Court, applying the reasonableness standard to the Board's interpretation of s. 21(2)(a), dismissed the application - The veteran appealed - The Federal Court of Appeal held that the Federal Court erred in applying the reasonableness standard to the interpretative issue (i.e., to determining the degrees of causal connection required by s. 21(2)(a)) - Here, the correctness standard applied with respect to the interpretation of the "home statute" of the tribunal - The court, therefore, analysed the interpretative issue on the correctness standard (but also did so on the reasonableness standard in case it was in error on the correctness standard) - See paragraphs 30 to 60 and 115.

Armed Forces - Topic 8094

Pensions - Disability and survivor pensions - Entitlement - Activity, injury or condition connected to military service - A disability pension in respect of peacetime military service could not be granted under s. 21(2)(a) of the Pension Act unless the applicant's injury or disease (i.e., the "claimed condition"), or an aggravation thereof, "arose out of or was directly connected" with the applicant's military service - The Federal Court of Appeal interpreted this provision - The court stated that establishing entitlement to a disability pension under s. 21(2)(a) was a four step process: "a) Step one requires the applicant to demonstrate that he or she has a claimed condition - an injury or disease, or an aggravation thereof. b) Step two requires the applicant to demonstrate that the claimed condition 'arose out of or was directly connected with' his or her service as a member of the forces. c) Step three requires the applicant to establish that he or she suffers from a disability. d) Step four requires the applicant to establish that his or her disability resulted from a military service-related claimed condition" - See paragraph 37.

Armed Forces - Topic 8094

Pensions - Disability and survivor pensions - Entitlement - Activity, injury or condition connected to military service - Captain Cole claimed a disability pension because of a major depression - Both the Veterans Review and Appeal Board and the Federal Court (on judicial review), held that in order for Cole to establish that her claimed condition "arose out of or was directly connected" with her peacetime military service (Pension Act, s. 21(2)(a)), she had to establish that the military factors were the "primary cause" of the claimed condition - Cole appealed - The Federal Court of Appeal allowed the appeal and remitted the matter to the Board - Both the Board and the Federal Court erred in their interpretation of the degree of causal connection required by s. 21(2)(a) - Because Cole's claimed condition was directly linked to both the military factors and the personal factors, the determinative issue was the degree or extent of causal connection that was required to establish that her claimed condition "was directly connected with" her military service - The causal connection requirement would be satisfied if the military factors were established to have been a "significant cause" of her claimed condition - That was a lesser degree of causation than "primary cause" - See paragraphs 61 to 122.

Government Programs - Topic 2541

Veterans' pensions - Entitlement - [See both Armed Forces - Topic 8094 ].

Government Programs - Topic 2555

Veterans' pensions - Entitlement - Appeals or judicial review - [See Armed Forces - Topic 8093 ].

Words and Phrases

Arose out of or was directly connected with such military service - The Federal Court of Appeal interpreted this phrase as it appeared in s. 21(2)(a) of the Pension Act, R.S.C. 1985, c. P-6 - See paragraphs 61 to 122.

Cases Noticed:

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [paras. 28, 115].

Attaran v. Canada (Attorney General) (2015), 467 N.R. 335; 2015 FCA 37, refd to. [para. 28].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [paras. 47, 115].

Frye v. Canada (Attorney General) (2005), 338 N.R. 382; 2005 FCA 264, refd to. [paras. 50, 115].

Atomic Energy of Canada Ltd. v. Wilson (2015), 467 N.R. 201; 2015 FCA 17, refd to. [para. 55].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 58].

National Gallery of Canada v. Canadian Artists' Representation et al. (2014), 458 N.R. 233; 2014 SCC 42, refd to. [para. 60].

John Doe v. Canada (Attorney General) (2004), 249 F.T.R. 301; 2004 FC 451, refd to. [para. 65].

Boisvert v. Canada (Attorney General), [2009] F.T.R. Uned. 880; 2009 FC 735, refd to. [para. 65].

Hall v. Canada (Attorney General), [2011] F.T.R. Uned. 909; 2011 FC 1431, refd to. [para. 65].

Kaulius et al. v. Minister of National Revenue, [2005] 2 S.C.R. 643; 339 N.R. 323; 2005 SCC 55, refd to. [para. 81].

Mathew v. Canada - see Kaulius et al. v. Minister of National Revenue.

Statutes Noticed:

Pension Act, R.S.C. 1985, c. P-6, sect. 2 [para. 33]; sect. 3(1) [para. 39]; sect. 21(1), sect. 21(2) [para. 32]; sect. 21(2)(a) [para. 3].

Veterans Review and Appeal Board Act, S.C. 1995, c. 18, sect. 3 [para. 34].

Counsel:

Stephen B. Acker and Yael Wexler, for the appellant;

Craig Collins-Williams, for the respondent.

Solicitors of Record:

Faskin Martineau, Ottawa, Ontario, for the appellant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard in Ottawa, Ontario, on February 25, 2015, before Gauthier, Ryer and Webb, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered on May 5, 2015, including the following opinions:

Ryer, J.A. (Webb, J.A., concurring) - see paragraphs 1 to 113;

Gauthier, J.A., concurring reasons - see paragraphs 114 to 122.