Legal questions decided by Chief of Defence Staff in interpreting Canadian Forces Administrative Order not outside adjudicator’s specialized area of expertise

Federal appeal | Pensions | Public service superannuation | Military pensions

Applicant member of Canadian Forces had leg amputated after motor vehicle accident while taking son to daycare on way to work. Chief of Defence Staff (CDS) denied disability benefits because applicant was not on duty at time of accident and that injuries sustained were not attributable to military service. Application judge dismissed applicant's application for judicial review of decision of CDS. Judge held that CDS's conclusion that applicant was exercising parental responsibility outside of military duty was based on reasonable interpretation of directives and legislation. Judge found it reasonable for CDS to conclude that applicant's discharge of parental responsibilities was not attributable to military service. Applicant appealed. Appeal dismissed. Judge correctly determined that standard of review was reasonableness, not correctness as applicant argued on appeal. Federal Court of Appeal's C case did not determine standard of review applicable in this case. Legal questions decided by CDS in interpreting Canadian Forces Administrative Order (CFAO) 24-6 did not come within category of questions of law that were both of central importance to legal system and outside adjudicator’s specialized area of expertise. Interpretation of CFAO 24-6 did not fall into exception for questions involving jurisdictional lines between two or more competing specialized tribunals because lines between CDS and Veterans Review and Appeal Board (VRAB) were not blurred. Judge made no error in determining that CDS's conclusions were reasonable. Federal Court's comments made in first application for judicial review could not bind subsequent decision-maker or reviewing court.

Fawcett v. Canada (Attorney General) (2019), 2019 CarswellNat 1249, 2019 FCA 87, Wyman W. Webb J.A., D.G. Near J.A., and J.B. Laskin J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 6889, 2017 CarswellNat 6982, 2017 FC 1071, 2017 CF 1071, Ann Marie McDonald J. (F.C.).

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