Federal Appeal


Matter was referred back to Veterans Review and Appeal Board for reconsideration of retroactivity of pension in light of breach of duty to inform

Veteran had fought for Canada during Second World War. In 1996, veteran filed application for disability pension for stomach ulcers. Veteran passed away in 2005, and his daughter continued proceedings on his behalf. Minister rendered decision whereby pension application was denied because veteran’s condition did not arise from military service. That decision was confirmed by review panel of Veterans Review and Appeal Board (VRAB) in 2007. However, appeal panel of VRAB held that daughter and surviving spouse were entitled to pension and established effective date of pension retroactively to November 9, 2005, but no additional award was granted. In 2009, reconsideration panel of VRAB established effective date of pension as October 30, 2004, and granted additional award of 24 months, taking into consideration administrative difficulties experienced by daughter. In 2010, VRAB rejected new application for review, finding that that Department of Veterans Affairs of Canada (VAC) did not breach duty to provide counselling service under s. 81(3) of Pension Act (Can.), when processing disability pension application and that disability pension payment date of October 30, 2004 should be confirmed. On application for judicial review, judge concluded that VAC breached duty to inform under s. 81(3) of Act, which caused delay in paying pension. Application for judicial review was allowed and matter was referred back to VRAB for reconsideration of retroactivity of pension in light of breach of duty to inform. VRAB confirmed maximum retroactivity period that set pension’s effective date at October 30, 2004, and maximum additional award equivalent to two years’ pension. VRAB rejected argument that case should be remitted back to Minister for additional award. Surviving spouse and daughter unsuccessfully brought motion seeking judicial review of VRAB’s decision. Federal Court Judge found that VRAB correctly refused to remit matter back to Minister and decision was reasonable. Surviving spouse and daughter appealed. Appeal dismissed. Federal Court Judge did not err with respect to relevant standard of review of reasonableness. Federal Court Judge did not err in finding that VRAB’s decision not to remit matter to Minister was reasonable. Record showed that surviving spouse and daughter had already been granted maximum compensation. Reviewing judge’s refusal to order matter be remitted to Minister was necessarily reasonable because even if had done so, surviving spouse and daughter could not have received additional compensation.

Arial c. Canada (Procureur général) (Sep. 30, 2014, F.C.A., Marc Noël J.A., A.F. Scott J.A., and Richard Boivin J.A., File No. A-290-13) Decision at 230 A.C.W.S. (3d) 1073 was affirmed.  251 A.C.W.S. (3d) 511.

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