# Court sides with veteran



## Rifleman62 (21 Jul 2015)

http://thechronicleherald.ca/canada/1300360-court-sides-with-veteran

*Court sides with veteran*

MURRAY BREWSTER THE CANADIAN PRESS - 20 Jul 15

Woman sought disability benefit

OTTAWA — The Federal Court of Appeal has handed down a judgment that will force Veterans Affairs and its independent appeal board to take more care in deciding on the mental health claims of ex-soldiers.

In a recently released decision, the justices overturned a lower ruling and rejected arguments from the Veterans Review and Appeal Board in the case of Anne Cole, a former officer discharged because she suffered from depression.

She applied for a disability benefit, saying her military service was the cause of her mental health issues, but the Veterans Department, the appeal board and even the Federal Court rejected her claim, saying that her condition was not primarily related to military service.

But in a ruling that surprised many observers, the Federal Court of Appeal sided with Cole and said she should only have had to demonstrate that her illness “arose out of or was directly connected with” her time in uniform.

The wording is key because both the department and review board have insisted, particularly in mental health cases, that a veteran point to one traumatic incident or series of incidents that caused their depression or post-traumatic stress disorder.

The legislation does not stipulate a level or degree to which the cause of an illness must be justified, the appeal court said. In fact, the law governing veterans’ benefits says the government must be generous and give ex-soldiers the benefit of the doubt when it comes to whether their injury was caused by military service.

The May 5 ruling, which has yet to be posted online, has been circulating in the veterans’ community.

It sets out a four-part guideline for the federal government and the tribunal to follow to decide claims.

The ruling should make both the department and the independent board think twice about rejecting claims, said Stephen Aker, one of Cole’s lawyers.

“It’ll be helpful to veterans. How helpful? It depends on the individual circumstances of their cases,” said Aker.

What it does not mean is that the federal government will be forced into approving a flood of mental health claims that might otherwise have been rejected, he said.

A military law expert, retired colonel Michel Drapeau, agrees and said it should lead to “fairer, faster, more efficient and more effective adjudication of disability claims,” particularly for post-traumatic stress.

“This lowers the bar most significantly for injured veterans,” he said.

The question, Aker said, is how closely both the department and the review board will follow the decision. In the past, justices rendered a decision favourable to an ex-soldier on a specific point of law only to see the same issues land back in front of them.

A spokesman for Veterans Affairs Minister Erin O’Toole pledged that the department would review its policies and practises in order to align them with the court’s decision.

Martin Magnan said there is no intention to appeal the decision.

“The Government of Canada welcomes the Federal Court of Appeal decision and applauds the court’s clarification of the test for establishing a veteran’s entitlement to a disability pension,” Magnan said in an email.

“This Federal Court ruling provides Veterans Affairs Canada with the opportunity to re-evaluate its interpretation and application of legislation to ensure veterans receive all of the benefits to which they are entitled.”

He statement did not set out a timeline for the review, but Magnan did say the department “is committed to applying the ’benefit of the doubt’ in its adjudicating procedures.”


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## FJAG (21 Jul 2015)

Decision is here:

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/110797/index.do

 :cheers:


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## RobA (22 Jul 2015)

Is anyone worried about us veterans biting the hand that feeds us, so to speak? 

I read an article the other day about a guy who got a disability award for PTSD that he "suffered" by being yelled at in basic. He never graduated from St. Jean. 

It seems like the way its going, EVERYBODY who  puts on a uniform is going to qualify for disability benefits.

This is not ideal because it's going to dilute the pool of resources (both financial as well as human resources) available to the ACTUALLY disabled vets who need it. And eventually, the taxpayer is going to tire of what is starting to look like a gravy train for CF members.

I'm sure this won't be a popular opinion here, but gotta say something.


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## George Wallace (22 Jul 2015)

Please don't go on about that poor smuck at St Jean.  We had a whole different discussion on him.   :


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## Rifleman62 (22 Jul 2015)

Note the highlighted para. If correct, I believe this is significant. Don't believe this info is posted elsewhere.

http://thechronicleherald.ca/editorials/1300569-editorial-disability-victory-for-vets

EDITORIAL: Disability victory for vets

THE CHRONICLE HERALD - Published July 21, 2015 

In a recent decision that could have implications for former Forces personnel with mental health problems, the Federal Court of Appeal has ruled that a former Armed Forces officer should receive disability benefits.

Anne Cole was discharged because she suffered from depression, but Veterans Affairs Canada, in a decision upheld by the Veterans Review and Appeal Board (VRAB) and the Federal Court, rejected her disability claim.

Veterans Affairs argued that her illness did not develop as a result of military operational decisions during her 21-year career with the Forces, but resulted from personal factors, including a family history of depression.

However, the Federal Court of Appeal disagreed in a May 5 ruling. Stephen Acker, Ms. Cole’s lawyer, writes that the justices said that it was enough to show that Ms. Cole’s military service was a “significant, or not insignificant” factor and that her illness “arose out of or was directly connected with” her service.

The intent of Parliament, her lawyers argued, was to “facilitate, rather than impede, the awarding of pensions to disabled veterans, given their sacrifice and service to the country.”

However, Mr. Acker says the ruling is unlikely to unleash a flood of new approvals for mental health claims. For the department and the review board have traditionally been slow to integrate court rulings on such matters. Veterans Ombudsman Guy Parent reported in February that the department and appeal board have only partly implemented earlier recommendations to bring adjudication procedures into line with Federal Court decisions.

The department, he says, must give the review board the resources to publish board and related court decisions on its website to help other veterans with similar cases.

The 2015 report referred to a three-year-old recommendation that Ottawa is finally addressing. Veterans Affairs Minister Erin O’Toole announced last week that the federal government will fund veterans’ pension appeals all the way to the Federal Court. Until now, only appeals as far as the VRAB had been funded by Ottawa; veterans who appealed to the Federal Court had to hire a lawyer, find a pro bono one or represent themselves in court.

It is also encouraging to note that the federal government, which has frequently appealed court rulings that are not in its favour, will not dispute this ruling.

The government, wrote a spokesman for Mr. O’Toole, “applauds the court’s clarification of the test for establishing a veteran’s entitlement to a disability pension.”

Indeed, the number of veterans with mental health problems in particular has been growing. A 2013 survey found that the rate of post-traumatic stress disorder among members of the Canadian Forces has nearly doubled since 2002. And Auditor General Michael Ferguson reported in November that veterans, many of whom served in Afghanistan and Iraq, are not getting timely care for mental and other health problems.

That’s not what Canadians want. According to a 2014 federal government poll of 3,000 people, Canadians were concerned that not enough was being done to help vets with mental and other health problems.

With widespread public support for veterans, the Harper government would be wise — particularly in an election year — to ensure that all are getting the medical care and pensions that they most certainly have earned.


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## blackberet17 (23 Jul 2015)

The four-part guideline is nothing new, it is part of procedures.

The FCA decision in Cole is interesting, and the clarification it provides as regards to the terminology employed is helpful. It will be further interesting when the Board comes out with its decision following the Order to Rehear. If it is to be published on the VRAB web site, I'll do my best to remember to post a link here.

The Ombudman's follow-up report is available from his web site, <a href="http://www.ombudsman-veterans.gc.ca/eng/reports/reports-reviews/vrab-followup-report">here</a>.

Recommendation 5, to have BPA lawyers represent clients at Federal Court, may have been answered by Minister O'Toole's latest announcement the government will cover appeal costs to the Federal Court.

The FCA's decision does not "lower the bar significantly", however. The legislation allows for awarding of entitlement in fifths, IOT apportion entitlement to reflect the degree of causation which is related to military service.

Without going anywhere near the particulars of this case, it is common for entitlement to be apportioned accordingly, to encompass the (and here I will use Justice Ryer's terms) Military Factors and the Personal Factors in the development of the claimed condition.

For example, a claimant with PTSD. There are both Military Factors (exposure to death/dismemberment during an exercise) and Personal Factors (passenger in civilian motor vehicle accident which killed/grievously injured someone else or caused injury to self).

The Board would then have been tasked with determining the degree each incident would have had in the development of the condition. It may have determined the Personal Factor had a greatly influence, and consequently awarded a partial entitlement of two-fifths to reflect the lesser influence of the Military Factor.

I'll withholding adding anything on the particulars of the Cole case, as I do not know the specific factors. To speak only to what is outlined in the FCA decision would amount to conjecture.

The above is only provided as an example, and does not reflect any specific case or person.


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