Federal Court Rules on Side of 6,000 CF Members, and Feds Should Not Appeal It

This isn’t a game. Pain and suffering payments are often the only thing left for the military to know that their sacrifices meant something to Canada and to Canadians. To continue deducting their value also ‘extinguishes’ the value of military sacrifice.

By Sean Bruyea -THE HILL TIMES
Published: Monday, 05/07/2012 12:00 am EDT

OTTAWA—A Federal Court ruling on May 1 unconditionally sided with the “harsh” plight of up to 6,000 disabled medically-released Canadian Forces members. They have been fighting the federal government all the way to the Supreme Court and back again for five years.

At issue is how the federal government is, in effect, discriminating against injured CF soldiers once they are medically released.

Since World War I, Canada, like many nations, has honoured disabling military injuries with pain and suffering compensation. This compensation is paid out by Veterans Affairs Canada through the Pension Act as a monthly disability payment.

That such injuries need to be compensated is not in dispute. Compensation for pain and suffering is a cornerstone of how most developed nations respect the profound loss of quality and enjoyment of life due to disabling injuries.

However, soldiers also need income support if they are no longer able to work. The CF has its own long-term disability plan (LTD) for just that reason. The Service Income Security Insurance Plan (SISIP) pays out 75 per cent of a person’s last salary in the CF if a military member is not medically fit to stay in uniform. The SISIP LTD program is highly limited as it does not reflect the lost potential in earnings due to promotions, advancing education, or even extra allowances to care for family members.

What the SISIP plan does do is deduct from the 75 per cent income any additional payments for pain and suffering. There is no other private or public insurance plan in Canada reportedly which is allowed to deduct pain and suffering payments from income. The courts have long recognized that they are as different as chairs and desks. They both work together but they serve completely different functions…and one cannot reasonably replace the other.

The CF knows this well. At the time of SISIP’s creation in the 1970s, members injured overseas were entitled to collect full salary plus full pain and suffering compensation from Veterans Affairs. In October 2000, any disabling injury suffered in military service at home or abroad allowed members to collect 100 per cent of salary plus full compensation.

When the class action was first launched in 2007, almost 10,000 serving members received 100 per cent salary, plus full pain and suffering compensation. As of Dec. 31, 2011, there are 6,014 serving members who still receive full salary plus pain and suffering payments, as many as the almost 6,000 who are possibly affected by the court decision.

It hardly seems fair that these affected by the decision not only lose full salary and a fulsome career, but the full equivalent of their pain and suffering payments. As a result of the decision, this practice is now illegal.

There are details in both the court decision and in the deduction practice that are disturbing. For instance, disabled CF members are also provided compensation for having a spouse and children. Such compensation is commonly understood today to help compensate for the loss of quality of life for the disabled person with his or her family, but also the loss suffered by the family members when their spouse or parent is no longer the same person after the military injury.

Sadly, in some petty administrative act, SISIP deducts the amounts for family members and yet the long-term disability provides no additional amounts for family members. Perhaps this is why Judge Barnes, who is well qualified with an extensive background in insurance litigation, could write the following: “The practical consequence of the [deduction] is to substantially reduce or to extinguish the LTD coverage promised to [those receiving SISIP LTD] with particularly harsh effect on the most seriously disabled CF members who have been released from active service.  That is an outcome that could not reasonably have been intended and I reject it unreservedly.”

The injustice and unethical nature of deducting the pain and suffering payments have not been lost on either Parliament or federal service oversight bodies. Two previous DND/CF ombudsmen have soundly condemned the practice. One of them, Yves Côté, was an articulate champion for the disabled CF members who could not defend themselves, calling the deductions “profoundly unfair.” Coincidentally, he is now the associate deputy minister of justice.

The Senate National Defence Committee has unanimously called for the deductions to cease. Even the House Standing Committee on National Defence as far back as 2003 unanimously called for the unfair deductions to end the deductions “forthwith.”

Minister of National Defence Peter MacKay, Treasury Board President Vic Toews and Prime Minister Stephen Harper were all associate members of the House National Defence Committee back in 2003.

Members of Parliament, ministers, and the Prime Minister, as well as senior public service officials, have their own long-term disability plan. This plan specifically instructs that the first item to exempt from deduction is Pension Act pain and suffering compensation.

Indeed, no provincial or territorial workers’ compensation plan is allowed to deduct Pension Act pain and suffering payments.

As Judge Barnes astutely points out, the continued deduction practice asks: “Of perhaps greater significance is whether a CF member who suffers a catastrophic combat injury at a level approaching 100 per cent disability would expect to effectively receive nothing more than 75 per cent of his CF income and to be treated the same as a CF member with a disability of lesser functional significance arising outside of his military service.”

No law needs to be passed to honour the Federal Court’s findings. The minister of National Defence, Cabinet, and Treasury Board need merely order the cessation of deductions of  Veterans Affairs pain and suffering payments from long-term disability income.

To give the government credit, this court decision came about because the federal government fully agreed to ask the court to answer whether the pain and suffering compensation can legally be deducted from long-term disability income. Ottawa has also agreed upon the salient facts surrounding the case.

So why would Ottawa appeal?

The matter is now in the government’s hands. It is no longer before the courts. This removes MacKay’s and the government’s reasons for not stopping the deductions as they claimed it was a matter before the courts.

The courts have decided.

For the government to appeal would not only be wrong, it would be punishing for disabled CF members and their families. It would be akin to agreeing to a hockey match with disabled CF members and then arguing with the referee once the government is called for kicking the injured soldiers when they already down on the ice.

Except this isn’t a game. Pain and suffering payments are often the only thing left for the military to know that their sacrifices meant something to Canada and to Canadians. To continue deducting their value also “extinguishes” the value of military sacrifice.

The question will soon become not whether to appeal or not to appeal or even whether Ottawa will play by the rules or not. Instead, Canadians will ask themselves whether they would risk their lives in the military when the government and the bureaucrats are waiting on the sidelines to kick them once they have fallen.

Sean Bruyea is a columnist, graduate student in a masters of public ethics and a former CF intelligence officer. He is also affected by the Federal Court decision.


The Hill Times

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