Federal Court


Analysis of whether injuries attributable to military service was unreasonable

Applicant and husband served in Canadian Forces. Applicant returned from maternity leave. Applicant was asked to prepare family care plan. Husband was ordered to arrive early at work to complete high readiness training. Applicant informed supervisor applicant would be late because applicant would have to drop child to daycare rather than husband. Applicant and child suffered motor vehicle accident. Child was killed and applicant suffered injuries requiring amputation of right leg above knee. Applicant was denied disability benefits. Summary investigation found applicant was on duty at time of accident but commander disagreed. Applicant filed grievance. DGPFS gave decision but could not have acted as initial authority because initial authority had to be military officer. Proper initial authority was never identified. Applicant was offered choice of restarting process at initial authority level or forward grievance to final authority. Applicant chose to forward grievance to final authority. Grievance board recommended grievance be denied. DGCFGA found applicant was not on duty at time of accident and held family care plan was not military order. DGCFGA found there was no breach of procedural fairness. Application for judicial review was allowed. Applicant was denied procedural fairness. Fact applicant was able to participate fully in decision by final authority did not rectify error that deprived applicant of decision at initial authority level. Applicant was entitled to initial authority decision and was denied one. Applicant’s choice to restart grievance with unidentified initial authority or continue to final authority was not informed choice. Applicant did not clearly waive right to procedural fairness which included decision at initial authority level. Analysis of whether injuries were attributable to military service was unreasonable. DGCFGA did not follow appropriate precedents in applying broad and liberal interpretation.

Fawcett v. Canada (Attorney General) (June 18, 2012, F.C., Rennie J., File No. T-1810-11) 219 A.C.W.S. (3d) 106 (13 pp.).

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