De Leeuw v. Canada (Attorney General), 2011 FC 237

• Judge: O'Reilly, J.
• Court: Federal Court (Canada)
• Case Date: February 09, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 237;(2011), 385 F.T.R. 256 (FC)

De Leeuw v. Can. (A.G.) (2011), 385 F.T.R. 256 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. MR.003

Gerard Charles De Leeuw (applicant) v. The Attorney General of Canada (respondent)

(T-238-10; 2011 FC 237)

Indexed As: De Leeuw v. Canada (Attorney General)

Federal Court

O'Reilly, J.

March 7, 2011.

Summary:

The applicant applied for a veteran's pension based on a disability (heart murmur and coronary heart disease). The Minister of Veterans Affairs dismissed the application because the applicant failed to establish that his disability was in any way connected to his military service. The applicant sought to overturn the Minister's decision before a Review Tribunal, an Appeal Board, and two reconsideration panels of the Veterans Review and Appeal Board, but at each step his application was dismissed. The applicant applied for judicial review.

The Federal Court dismissed the application.

Armed Forces - Topic 8082

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

Armed Forces - Topic 8094

Pensions - Disability and survivor pensions - Entitlement - Activity connected to military - The applicant applied for a veteran's pension based on a disability (heart murmur and coronary heart disease) - The Minister of Veterans Affairs dismissed the application because the applicant failed to establish that his disability was in any way connected to his military service - The applicant sought to overturn the Minister's decision before a Review Tribunal, an Appeal Board, and two reconsideration panels of the Veterans Review and Appeal Board, but at each step his application was dismissed - The applicant applied for judicial review of the last reconsideration decision, asserting that the panel erred in its interpretation of the provisions of the Pension Act - The Federal Court dismissed the application - The panel correctly applied s. 21(1)(a) when it required the applicant to provide evidence of a linkage between his condition and his military service - In light of the evidence showing that the applicant's condition existed before he entered the military and the absence of evidence that it was aggravated during his services, the court could not conclude that the panel erred in finding that he was not eligible for a pension - The other provisions of the Act to which the applicant referred did not appear to have been relied on at his hearing before the panel - In any case, they did not assist him - Neither s. 21(1)(c) nor s. 21(10) assisted the applicant - There was no error in the panel's conclusion that the applicant was not eligible for a pension under the Act - See paragraphs 14 to 20.

Armed Forces - Topic 8094

Pensions - Disability and survivor pensions - Entitlement - Activity connected to military - The applicant applied for a veteran's pension based on a disability (heart murmur and coronary heart disease) - The Minister of Veterans Affairs dismissed the application because the applicant failed to establish that his disability was in any way connected to his military service - The applicant sought to overturn the Minister's decision before a Review Tribunal, an Appeal Board, and two reconsideration panels of the Veterans Review and Appeal Board, but at each step his application was dismissed - The applicant applied for judicial review of the last reconsideration decision, asserting that he had been treated differentially on the basis of his disability in breach of s. 15 of the Charter - He asserted that other soldiers who developed heart trouble during their military service were entitled to a pension while he, because he had a heart condition before he enlisted, was not - The Federal Court dismissed the application - The panel correctly decided that the applicant had not been subjected to differential treatment because of his disability - The applicant "has not been singled out for differential treatment; he has simply had his claim denied" - See paragraphs 21 and 22.

Armed Forces - Topic 8094

Pensions - Disability and survivor pensions - Entitlement - Activity connected to military - The applicant applied for a veteran's pension based on a disability (heart murmur and coronary heart disease) - The Minister of Veterans Affairs dismissed the application because the applicant failed to establish that his disability was in any way connected to his military service - The applicant sought to overturn the Minister's decision before a Review Tribunal, an Appeal Board, and two reconsideration panels of the Veterans Review and Appeal Board, but at each step his application was dismissed - The applicant applied for judicial review of the last reconsideration decision, asserting that he had been subjected to cruel and unusual treatment or punishment in breach of s. 12 of the Charter - He submitted that he had been denied a disability benefit on the grounds that he had a disability - The grounds on which he deserved a pension had been given as a reason for denying him one - And this, he maintained, amounted to cruel and unusual treatment - The Federal Court dismissed the application - See paragraphs 23 and 24.

Civil Rights - Topic 960.1

Discrimination - Mental or physical disability - General - [See second Armed Forces - Topic 8094 ].

Civil Rights - Topic 3801

Cruel and unusual treatment or punishment - General - [See third Armed Forces - Topic 8094 ].

Civil Rights - Topic 5658

Equality and protection of the law - Particular cases - Pension legislation - [See second Armed Forces - Topic 8094 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See second Armed Forces - Topic 8094 ].

Government Programs - Topic 2542

Veterans' pensions - Entitlement - Evidence and proof - [See first Armed Forces - Topic 8094 ].

Government Programs - Topic 2551

Veterans' pensions - Entitlement - Statutory interpretation by board or tribunal - [See first Armed Forces - Topic 8094 ].

Cases Noticed:

Lunn v. Veterans Affairs Canada (2010), 379 F.T.R. 59; 2010 FC 1229, refd to. [para. 17].

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. [para. 25].

Statutes Noticed:

Pension Act, R.S.C. 1985, c. P-6, sect. 21(1), sect. 21(10) [Annex].

Counsel:

Gerard Charles de Leeuw, on his own behalf;

Susan Eros, for the respondent.

Solicitors of Record:

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

This application was heard on February 9, 2011, at Winnipeg, Manitoba, by O'Reilly, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on March 7, 2011.