Thomson v. Canada (Attorney General), [2015] F.T.R. TBEd. AU.045

• Judge: Gascon, J.
• Court: Federal Court (Canada)
• Case Date: May 06, 2015
• Jurisdiction: Canada (Federal)
• Citations: [2015] F.T.R. TBEd. AU.045;2015 FC 985

Thomson v. Can. (A.G.), [2015] F.T.R. TBEd. AU.045

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. AU.045

Robert James Thomson (applicant) v. Canada (Attorney General) (respondent)

(T-2012-14; 2015 FC 985)

Indexed As: Thomson v. Canada (Attorney General)

Federal Court

Gascon, J.

August 18, 2015.

Summary:

Thomson was a civilian passenger on a Canadian Forces aircraft flying over the Northwest Territories. He was on duty as an employee of the Department of National Defence involved in the management of retail outlets serving members of the Canadian Forces. The plane crashed. Thomson survived but he was very seriously injured in the accident. He became paraplegic, suffered multiple amputations due to frostbite developed while awaiting rescue for 30 hours, and eventually developed post-traumatic stress disorder. Thomson elected to be compensated for his injuries under the Flying Accidents Compensation Regulations (FAC Regulations). In his application for entitlement, Thomson requested both a pension and, because of his high degree of disability, an assessment for special allowances, including an attendance allowance, a clothing allowance and an exceptional incapacity allowance. The Department of Veterans Affairs awarded Thomson a pension but denied his request for attendance and clothing allowances as well as for the Exceptional Incapacity Allowance under the Pension Act, on the basis that those special allowances were not included in the compensation scheme for FAC Regulations pensioners. Thomson appealed the decisions refusing the special allowances. Two levels of the Veterans Review and Appeal Board denied the appeal, concluding that the entitlement to the special allowances arose under specific portions of the Pension Act (Can.) and had not been included in the list of benefits available to civilian pensioners under the FAC Regulations. Thomson applied for judicial review of the decision that he was ineligible for the Exceptional Incapacity Allowance. Thomson claimed that the Appeal Panel erred in its interpretation of the FAC Regulations and in concluding that he was not allowed to claim the Exceptional Incapacity Allowance. He also argued that the Appeal Panel's interpretation of the FAC Regulations infringed his rights under s. 15(1) of the Charter, thereby discriminating against him on the basis of his severe disability.

The Federal Court dismissed the judicial review application. The court could not conclude that the Appeal Panel's decision regarding the interpretation of the FAC Regulations was unreasonable or that its disposition of Thomson's claim resulted in a discriminatory treatment in violation of s. 15 of the Charter.

Armed Forces - Topic 7543

Civilian personal - Pensions (incl. disability) - Entitlement (incl. special allowances) - Thomson, a Department of National Defence employee, was a civilian passenger on a Canadian Forces aircraft when it crashed - Thomson survived but was left a paraplegic, having suffered multiple amputations - He eventually developed post-traumatic stress disorder - Thomson elected compensation under the Flying Accidents Compensation Regulations (FAC Regulations), passed under the Aeronautics Act - He was awarded a pension, however, the Veterans Review and Appeal Board denied an Exceptional Incapacity Allowance, holding that the special allowance was not included in the scheme for FAC Regulations pensioners but was only for military personnel under the Pension Act - Thomson applied for judicial review, respecting the Exceptional Incapacity Allowance decision, claiming that the Appeal Panel erred in its interpretation of the FAC Regulations - The Federal Court dismissed the application - The Appeal Panel's interpretation was reasonable - In light of the express language used by Parliament in s. 3 of the FAC Regulations, the Appeal Panel's interpretation of the relevant provisions of the FAC Regulations and of the Pension Act fell within the range of reasonable possible outcomes - In fact, it was the only reasonable interpretation of the FAC Regulations in light of the statutory wording - See paragraphs 44 to 71.

Armed Forces - Topic 7543

Civilian personal - Pensions (incl. disability) - Entitlement (incl. special allowances) -Thomson, a Department of National Defence employee, was a civilian passenger on a Canadian Forces aircraft when it crashed - Thomson survived but was left a paraplegic, having suffered multiple amputations - He eventually developed post-traumatic stress disorder - Thomson elected compensation under the Flying Accidents Compensation Regulations (FAC Regulations), passed under the Aeronautics Act - He was awarded a pension, but denied an Exceptional Incapacity Allowance, because that special allowance was not included in the scheme for FAC Regulations pensioners, but only for military personnel under the Pension Act - Thomson applied for judicial review, respecting the Exceptional Incapacity Allowance decision - He claimed that the Appeal Panel's interpretation of the FAC Regulations infringed his rights under s. 15(1) of the Charter (i.e., constituted discrimination on the basis of his disability) - The Federal Court dismissed the application - Not having access to the Exceptional Incapacity Allowance because Thomson was not a member of the military was not an exclusion based on an enumerated ground of discrimination or on an analogous ground - See paragraphs 72 to 104.

Armed Forces - Topic 7548

Civilian personal - Pensions (incl. disability) - Appeals and judicial review (incl. standard of review) - Thomson, a Department of National Defence employee, was a civilian passenger on a Canadian Forces aircraft when it crashed - He survived, but was severely injured - He elected compensation under the Flying Accidents Compensation Regulations (FAC Regulations), passed under the Aeronautics Act - He was awarded a pension, however, the Veterans Review and Appeal Board denied an Exceptional Incapacity Allowance, because that special allowance was not included in the scheme for FAC Regulations pensioners but was only for military personnel under the Pension Act - Thomson applied for judicial review, respecting the Exceptional Incapacity Allowance decision - He claimed that the Appeal Panel erred in its interpretation of the FAC Regulations - He also claimed that the Appeal Panel's interpretation of the FAC Regulations infringed his rights under s. 15(1) of the Charter (discrimination) - The Federal Court held that the standard of review was reasonableness with respect to both the interpretation and Charter issues - See paragraphs 34 to 43.

Civil Rights - Topic 928

Discrimination - Government programs - Pension legislation - [See second Armed Forces - Topic 7543 ].

Civil Rights - Topic 960.1

Discrimination - Mental or physical disability - General - [See second Armed Forces - Topic 7543 ].

Civil Rights - Topic 8581.2

Canadian Charter of Rights and Freedoms - Practice - Judicial review (incl. standard of review) - [See Armed Forces - Topic 7548 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - [See second Armed Forces - Topic 7543 ].

Cases Noticed:

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 32].

Chief Pensions Advocate v. Canada (Attorney General) (2006), 302 F.T.R. 201; 2006 FC 1317, refd to. [para. 35].

Trotter v. Canada (Attorney General) (2005) 272 F.T.R. 1; 2005 FC 434, refd to. [para. 35].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 35].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 35].

National Gallery of Canada v. Canadian Artists' Representation et al. (2014), 458 N.R. 233; 2014 SCC 42, refd to. [para. 35].

Fanous v. Gauthier, 2014 QCCA 1731, refd to. [para. 35].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 38].

Loyola High School v. Quebec (Attorney General) (2015), 468 N.R. 323; 2015 SCC 12, refd to. [para. 38].

Tursunbayev v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 409 F.T.R. 176; 2012 FC 504, refd to. [para. 38].

Mouvement laïque québécois et al. v. Saguenay (City) (2015), 470 N.R. 1; 2015 SCC 16, refd to. [para. 39].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 41].

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. 42].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 43].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 43].

Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al., [2012] 3 S.C.R. 405; 437 N.R. 202; 539 A.R. 17; 561 W.A.C. 17; 2012 SCC 65, refd to. [para. 43].

Arial v. Canada (Attorney General) (2010), 367 F.T.R. 1; 2010 FC 184, refd to. [para. 44].

Manuge v. Canada (2012), 411 F.T.R. 76; 2012 FC 499, refd to. [para. 44].

Arial v. Canada (Attorney General) (2011), 393 F.T.R. 268; 2011 FC 848, refd to. [para. 44].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 48].

McCague v. Canada (Minister of National Defence) (2001), 273 N.R. 82; 2001 FCA 228, refd to. [para. 48].

Wise v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 466 F.T.R. 200; 2014 FC 1027, refd to. [para. 51].

R. v. D.I., [2012] 1 S.C.R. 149; 427 N.R. 4; 288 O.A.C. 1; 2012 SCC 5, refd to. [para. 51].

Prentice v. Royal Canadian Mounted Police, [2006] 3 F.C. 135; 346 N.R. 201; 2005 FCA 395, refd to. [para. 60].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 60].

Olvera Romero v. Canada (Minister of Citizenship and Immigration) (2014), 458 F.T.R. 239; 2014 FC 671, refd to. [para. 63].

CanadianOxy Chemicals Ltd. et al. v. Canada (Attorney General) et al., [1999] 1 S.C.R. 743; 237 N.R. 373; 122 B.C.A.C. 1; 200 W.A.C. 1, refd to. [para. 64].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 64].

Professional Institute of the Public Service of Canada et al. v. Canada (Attorney General), [2012] 3 S.C.R. 660; 438 N.R. 1; 300 O.A.C. 202; 2012 SCC 71, refd to. [para. 64].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 76].

British Columbia (Minister of Education) v. Moore et al., [2008] B.C.T.C. Uned. A86; 2008 BCSC 264, refd to. [para. 76].

Miceli-Riggins v. Canada (Attorney General) (2013), 446 N.R. 172; 2013 FCA 158, refd to. [para. 87].

A. v. B., [2013] 1 S.C.R. 61; 439 N.R. 1; 2013 SCC 5, refd to. [para. 88].

Quebec (Attorney General) v. A. - see A. v. B.

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 88].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 88].

Y.Z. et al. v. Canada (Minister of Citizenship and Immigration) et al., [2015] F.T.R. TBEd. JL.055; 2015 FC 892, refd to. [para. 88].

Taypotat v. Taypotat et al. (2015), 471 N.R. 173; 2015 SCC 30, refd to. [para. 89].

Kahkewistahaw First Nation v. Taypotat - see Taypotat v. Taypotat et al.

Runchey v. Canada (Attorney General) et al. (2013), 443 N.R. 52; 2013 FCA 16, refd to. [para. 90].

Peavine Metis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., [2011] 2 S.C.R. 670; 418 N.R. 101; 505 A.R. 1; 522 W.A.C. 1; 2011 SCC 37, refd to. [para. 90].

Gosselin v. Quebec (Procureur général) (2002), 298 N.R. 1; 2002 SCC 84, refd to. [para. 90].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 93].

Reference Re Sections 32 and 34 of the Workers' Compensation Act (Nfld.), [1989] 1 S.C.R. 922; 96 N.R. 227; 76 Nfld. & P.E.I.R. 181; 235 A.P.R. 181, refd to. [para. 96].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241, refd to. [para. 96].

Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989; 244 N.R. 33, refd to. [para. 96].

Statutes Noticed:

Aeronautics Act Regulations (Can.), Flying Accidents Compensation Regulations, C.R.C., c. 10, sect. 3 [para. 14].

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 72].

Flying Accidents Compensation Regulations - see Aeronautics Act Regulations (Can.).

Pension Act, R.S.C. 1985, c. P-6, sect. 3 [para. 17]; sect. 38 [para. 19]; sect. 72 [para. 20].

Veterans Review and Appeal Board Act, S.C. 1995, c. 18, sect. 3, sect. 39 [para. 21].

Counsel:

Robert James Thomson, for the applicant (On His Own Behalf);

Pascale-Catherine Guay, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard in Montreal, Quebec, on May 6, 2015, before Gascon, J., of the Federal Court, who delivered the following decision on August 18, 2015.