Fournier v. Canada (Attorney General), (2005) 272 F.T.R. 92 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: January 19, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 272 F.T.R. 92 (FC);2005 FC 453

Fournier v. Can. (A.G.) (2005), 272 F.T.R. 92 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. AP.030

Rhodena Fournier (applicant) v. Attorney General of Canada (respondent)

(T-1027-04; 2005 FC 453)

Indexed As: Fournier v. Canada (Attorney General)

Federal Court

Mosley, J.

April 6, 2005.

Summary:

A military police officer was injured in a 1999 motor vehicle accident when she left work in her own vehicle to get something to eat, with the intention of returning to work. She was denied a disability pension under the Pension Act on the ground that her injury neither arose out of, nor was directly connected to, military service. The Veterans Review and Appeal Board affirmed the decision on review. The officer sought judicial review of the decision.

The Federal Court dismissed the application. The standard of review was reasonableness simpliciter and the Board's decision that the causal connection between the injury and her military service was too remote was reasonable.

Armed Forces - Topic 8093

Pensions - Disability and survivor pensions - Entitlement - Judicial review - [See Armed Forces - Topic 8094 ].

Armed Forces - Topic 8094

Pensions - Disability and survivor pensions - Entitlement - Activity connected to military - A military officer assigned to a rapid deployment and surveillance unit in an unmarked warehouse got orders for a rapid deployment - Although she normally worked until 4:00 p.m., she left work at 4:30 to get food at a fast food restaurant, intending to return to work - The warehouse had no food facilities, food deliveries were not permitted and military vehicles could not be used - The officer used her own vehicle and was injured in a motor vehicle accident - A disability pension under the Pension Act was denied because the officer's injury neither arose out of, nor was connected to, her military service - The Veterans Review and Appeal Board affirmed the decision - The causal connection between the injury and military service was too remote - The Board rejected that submission that a sufficient connection was inferred under s. 21(3)(f) because there was an established military custom or practice in her unit to leave premises while on duty to obtain meals - The Board determined that a custom was not established; the officer's decision was a matter of personal choice or convenience - The Federal Court held that the test was one of proximity or dominant contacts - Whether the officer was "on duty" was not determinative - The standard of review was reasonableness simpliciter and the Board's decision was not unreasonable.

Cases Noticed:

Bradley v. Canada (Attorney General) (2004), 257 F.T.R. 73; 2004 FC 996, refd to. [para. 21].

Bradley v. Canada (Attorney General) (2001), 208 F.T.R. 253 (T.D.), refd to. [para. 21].

McTague v. Canada (Attorney General), [2000] 1 F.C. 647; 177 F.T.R. 5 (T.D.), refd to. [para. 21].

Frye v. Canada (Attorney General) (2004), 256 F.T.R. 285; 2004 FC 986, refd to. [para. 21].

Whitehead v. Canada (Attorney General) (2003), 227 F.T.R. 57 (T.D.), refd to. [para. 21].

MacDonald v. Canada (Attorney General) (1999), 164 F.T.R. 42 (T.D.), refd to. [para. 22].

Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (T.D.), refd to. [para. 22].

Nisbet v. Canada (Attorney General) (2004), 260 F.T.R. 31; 2004 FC 1106, refd to. [para. 22].

Matusiak v. Canada (Attorney General) (2005), 270 F.T.R. 160; 2005 FC 198, refd to. [para. 25].

Powell v. Canada (Attorney General) (2005), 271 F.T.R. 306; 2005 FC 433, refd to. [para. 26].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 27].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 27].

MacNeill v. Canada et al. (1998), 151 F.T.R. 121 (T.D.), refd to. [para. 29].

King v. Veterans Review and Appeal Board (Can.) et al. (2001), 205 F.T.R. 204; 2001 FCT 535, refd to. [para. 30].

Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405; 186 N.R. 150; 63 B.C.A.C. 1; 104 W.A.C. 1, refd to. [para. 30].

Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133 (T.D.), refd to. [para. 33].

Cummings v. Canada (Attorney General) (1998), 155 F.T.R. 306 (T.D.), refd to. [para. 45].

Desloges v. Canada (Attorney General), [2001] F.T.R. Uned. 297; 2001 FCT 506, refd to. [para. 45].

Ewing v. Veterans Review and Appeal Board (Can.) et al. (1997), 137 F.T.R. 298 (T.D.), refd to. [para. 45].

King v. Veterans Review and Appeal Board (Can.) (1997), 138 F.T.R. 15 (T.D.), refd to. [para. 45].

Statutes Noticed:

Pension Act, R.S.C. 1985, c. P-6, sect. 3 [para. 14]; sect. 21(2)(a) [para. 11]; sect. 21(3)(f) [para. 12]; sect. 39 [para. 14].

Authors and Works Noticed:

Gilbert, Douglas G., and Liversidge, Les A., Workers' Compensation in Ontario (3rd Ed. 2001), p. 22 [para. 43].

Counsel:

Douglas Brown and Ted Murphy, for the applicant;

Elizabeth Richards, for the respondent.

Solicitors of Record:

Nelligan O'Brien Payne LLP, Ottawa, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on January 19, 2005, at Ottawa, Ontario, before Mosley, J., of the Federal Court, who delivered the following judgment on April 6, 2005.