Canada’s disabled soldiers: Canada’s courts are their reluctant battlefield

Canadian soldiers expected to return to a supportive Canada, believing that they and their families will be cared for and wars will not follow them home.

By SEAN BRUYEA-The Hill Times-Published January 18, 2010

OTTAWA—For many injured Canadian soldiers, the horrific war zones of the Persian Gulf, Bosnia, Rwanda, Somalia, and Afghanistan are bearable for one reason only, they expected to return to a supportive Canada, believing that they and their families will be cared for and wars will not follow them home.

On Jan. 21, the Supreme Court will hear about how that dream has been shattered for more than 4,000 disabled Canadian men and women who proudly donned Canadian Forces uniforms. At issue is how disabled soldiers are compensated for their career of sacrifice and their lifelong injuries. I am one of these 4,000 disabled soldiers.

At issue is how disabled soldiers are compensated for their career of sacrifice and their lifelong injuries.

Prior to April 1, 2006, when Canadian Forces members were injured in the service of Canada, Veterans Affairs Canada compensated them with a lifelong monthly payment for pain and suffering which they collected along with their full salary. Even by June 2007, more than 9,000 serving soldiers were collecting pain and suffering payments along with their full salary.

If a soldier was too disabled to continue in the Forces, he or she was summarily kicked out and placed on a long-term disability plan belonging to the Canadian Forces. This plan pays out 75 per cent of the soldier’s salary. Then, in of some seeming act of vengeance, the Canadian government-structured insurance plan deducts the same amount paid for pain and suffering from the already reduced salary.

This is why Dennis Manuge has brought his case, representing more than 4,000 other veterans with disabilities, all the way to the Supreme Court of Canada.

These “profoundly unfair” deductions as described by the National Defence ombudsman have been widely condemned. The House and Senate Committees on National Defence have both strongly recommended that the process be stopped “immediately.” The majority of Parliament voted to stop the deductions in 2006.

The first Veterans Affairs Canada ombudsman also agrees.

And still the deductions continue. Parliament and oversight agencies are ignored and disabled soldiers, often with young families, suffer the indignation and financial struggles of having their disability income essentially negate what should be a well-deserved and proud award for pain and suffering.

The Supreme Court of Canada, however, will not be making a decision about stopping the unfair deductions. Government of Canada lawyers have forced Manuge’s lawyer to argue what he describes (in his submission to the court) as the removal of “artificial and costly legal barriers” placed by Canada in order “to shield itself from liability.”

Government lawyers are attempting to force the case to go to what is known as a “judicial review” as opposed to being heard in Federal Court. That a “judicial review” does not have the powers to decide upon the remedies being sought in Manuge’s class action claim raises the issue to an increasingly absurd level. The actions of Canada’s government appear to seek one goal, to place as many obstacles in the path of Manuge so that Canada never has to pay what is justly owed to more than 4,000 disabled soldiers.

Of course, the government’s argument has much broader implications for all Canadians who seek damages from the Crown. Manuge’s submission to court aptly cautions: “These added requirements will act in effect to deprive an ordinary citizen of his or her day in court and to shield the Crown from meritorious litigation.”

A judicial review has a 30-day time limit to submit a claim. It is unlikely that a lawyer will represent an individual client on a contingency fee basis if the judicial review is limited, at least in Manuge’s case if not all subsequent cases, to awards which apply solely to an individual.

It is possible that forcing the disabled soldiers down this judicial review path would require that each of the 4,000 disabled soldiers come up with $10,000 to $15,000 to hire a lawyer. More importantly, the soldiers would have to overcome their disabilities in order to fight the government which the soldiers became disabled defending.

This is what is so inexplicable for all who served in the military and most poignant for disabled soldiers.

Why is it that government bureaucrats can fight tooth and nail to avoid paying an obvious and clear liability owed to our bravely disabled when Canadian Forces members must accept what is known as “unlimited liability” at all times, up to and including loss of life?

On April 1, 2006, the government of Canada implemented new legislation to replace the lifelong payment for pain and suffering with a one-time lump sum as part of what bureaucrats claim is a completely new suite of programs. Curiously, the lump sum amount is not deductible in anyway shape or form from the unemployable soldier’s long-term disability income.

The truth is that what came after April 1, 2006, offers nothing remarkably new for disabled soldiers than what was already in place in some form before April 1, 2006… except for substituting the lifelong payment with the lump sum. Ignoring the obvious injustice of a lump sum to compensate young soldiers for lifelong disability, the government of Canada, in effect, has corrected the injustice of the “unfair deductions” for all future wounded soldiers.

But what about the 4,000 forgotten disabled soldiers and their families?

Should bureaucrats be able to ignore any, let alone strong, unanimous and repeated recommendations from Parliamentary committees? Should senior mandarins be able to ignore oversight agencies like offices of the ombudsman?

Merely because the tool is available to deny payment, should our government lawyers use that tool when it is clear it is causing harm to disabled soldiers and other marginalized citizens while clearly breaching fundamental principles of natural justice?

Should Department of Justice lawyers continue to be allowed to pursue a policy that the end of avoiding payment justifies any legal means even for those who clearly have been wronged?

Of course there is the broader question of not enough money to go around. Should we not have soldiers sign a document with independent legal advice before they go into harms way, that the Canadian government may not pay in a timely manner if at all for any disabilities suffered? Or that there is only enough money for every other wounded soldier but not for all?

The risk if the Crown wins is that our justice system, already complex and in many cases inaccessible by many Canadians, will acquire more of the same unenviable qualities.

The risk for our military is that citizen’s willingness to sacrifice for a selfish government may diminish in the face of such unfair actions.

For more than 4,000 disabled soldiers and their suffering families, they have already endured many risks but they never imagined that they would fight a war with Canada.

Sean Bruyea is a retired and disabled Air Force intelligence officer, advocate for veterans and their families and a writer on issues relating to veterans, military and government. He is also a member of the class action for the 4,000 disabled soldiers.

The Hill Times