Date: 20040714
Docket: T-2211-03
Citation: 2004 FC 986
BETWEEN:
ONALEE KATHLEEN FRYE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
[1] Corporal Lee Arnold Berger had been fighting forest fires for a week in British Columbia. At the end of a long day - a day in which actual fire fighting operations lasted some 16 hours - he, and other service members, went for a swim at a nearby beach. On returning to the base he had to hop a fence adjacent a highway. He lost his balance and sprawled out into the path of an oncoming tractor trailer. He was killed instantly. He is survived by his widow, Onalee Kathleen Frye.
[2] Although Mr. Berger died a soldier, his widow's pension application was turned down on the ground that his death neither "arose out of or was directly connected" with his military service (Pension Act, R.S.C. 1985, c. P-6, s. 21).
[3] That decision was reviewed and upheld, the last time by the Veterans Review and Appeal Board in reconsideration of an Entitlement Appeal decision. This is a judicial review thereof.
THE DECISION OF THE BOARD
[4] Mr. Berger was a career soldier. He was on his annual leave when he was called back on 24-hour notice to fight forest fires in British Columbia . That was on July 25, 1994. His living quarters were a tent in a temporary base near Penticton, B.C. In the opinion of his Commanding Officer, Lieutenant Colonel A.B. Leslie, he was on military operation 24 hours a day, seven days a week during this temporary deployment.
[5] When not engaged in actual fire fighting operations, restrictions were placed on leaving the camp. One was expected to sign out and to give the destination. Mr. Berger, and others, went to town for dinner, returned just before the midnight curfew, and then went for a swim. Although they did not sign out again, this apparent infraction is not relied on by the Minister as at worst Mr. Berger might have been subjected to a small fine.
[6] The Board took note of the comments of Mr. Berger's Commanding Officer who said that to ensure the soldiers did not become overly fatigued he authorized the establishment of a recreation and relaxation policy. Alcohol consumption (and there is no evidence whatsoever that alcohol played any role in this tragedy) was not to exceed two beers per man per day, non-cumulative and non-transferable. The beach and the town were authorized R & R destinations.
[7] It was accepted that Mr. Berger was on duty, akin to being "on-call", at the time of his death. However, he had not been ordered to swim. The Board found that he was carrying out an everyday activity. He had been taking advantage of relaxation and recreation and so his death could not be directly connected to his military service.
[8] Although sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18, require Canadian law to be liberally construed so that our obligations to those who have served their country well, and our obligations to their dependents, may be fulfilled, and require every reasonable inference to be drawn in favour of the applicant, the Review Board could not find a direct connection between Mr. Berger's death and his military service.
[9] Mr. Berger's death occurred in peacetime. Had the very same incident occurred in war time his widow would be entitled to a pension because his death "was incurred" during his military service (Pension Act, section 21(1)(b)).
[10] Had his death occurred this year, Ms. Frye would, in all likelihood, have received a pension as the Act was amended last year so as to equate "special duty service" with war time service. Special Duty Service includes service which in the opinion of the Minister brings with it elevated risk. Fire-fighting is hot, dirty and dangerous.
[11] The Board correctly held that the amendments had no retroactive effect. However, this begs the question whether the amendments changed or merely clarified the law. The Court is entitled to consider a statute's history, including excerpts from Hansard, as long as it remains mindful of its limited reliability and weight (Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 49).
[12] This is what the Honourable Ray Pagkatham, Minister of Veterans Affairs had to say in Parliament on April 28, 2003:
Under the existing legislation, if members incur a disability or illness while not serving in a special duty area, they are covered but there is a burden of proof. The burden of proof is intended to satisfy the requirement that the disability be shown to have arisen out of or was directly connected to service.
However by giving the members in a special duty area the 24/7, 24 hours a day, seven days a week coverage, the burden of proof requirement is removed. They will only need to show that such a condition arose during the time of service. Therefore the need for detailed medical and service evidence is simplified. Thus an award of the pension, if required, can be more easily rendered.
[13] I agree that it comes down to the burden of proof. It was not enough that Mr. Berger was serving in the Armed Forces at the time of his death. His death had to arise out of or be directly connected with his military service.
STANDARD OF REVIEW
[14] The Board's decision was a mixed one of law and fact. It must stand unless it was unreasonable. An unreasonable decision is not one made by unreasonable people. An unreasonable decision is one that cannot stand up to a "somewhat probing examination". (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, para. 56; McTague v. Canada (Attorney General), [2000] 1 F.C. 647, para. 54; Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, para. 39). Often the issue is one of fact. For instance, the question might be whether a current medical condition relates back to the applicant's military service. Such decisions are not subject to judicial review unless they are patently unreasonable.
[15] An argument could be made that the decision under review was one of law. Such decisions are entitled to less deference, as the standard of review is correctness. It is not necessary for me to probe this distinction as I have come to the same result on either test.
DISCUSSION
[16] It is difficult to abstract a general principle as to the meaning of a "direct connection" from the case law on the Pension Act because the cases are so fact specific. However, it has been established that an injury incurred while performing an everyday activity such as sleeping on base or taking a shower on a ship is directly connected with military service (R.E.C. v. Canada (Attorney General) (1998), 155 F.T.R. 306; Bradley v. Canada (Attorney General) (2001), 208 F.T.R. 253, 2001 FCT 793).
[17] Injuries incurred off-base while driving a car or crossing a street have been held not to be directly connected to military service (McTague, supra and Schut v. Canada (Attorney General) (2000), 186 F.T.R. 212).
[18] I do not consider the locale controlling. What distinguishes this case is that Mr. Berger was on-duty in an elevated risk situation. Why was he on a midnight swim with other members of the Armed Forces, instead of being on holiday with his wife? Because he was risking his life carrying out his duty, a duty from which he was taking a short break.
[19] The pertinent subsection is 21(2)(b) of the Pension Act as it was in 1994:
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(2) (b) where a member of the forces dies as a result of an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;
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(2) b) des pensions sont accordées à l'égard des membres des forces, conformément aux taux prévus à l'annexe II, en case de décès causé par une blessure ou maladie - ou son aggravation - consécutive ou rattachée directement au service militaire;
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[20] Parliament's intention is not clear. The phrase "arose out of" has been given a much broader meaning by the courts than "caused by", much less "directly connected with". It is also significant that "arose out of" and "directly connected with" are joined by an "or", not by an "and".
[21] This is what Major J., speaking for the Supreme Court, had to say about "arising out of" and "caused by" in Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405 at paragraph 21:
The question is whether the requisite nexus or causal link exists between the shooting and the appellant's ownership, use or operation of the van. With respect to causation, it is clear that a direct or proximate causal connection is not required between the injuries suffered and the ownership, use or operation of a vehicle. The phrase "arising out of" is broader than "caused by", and must be interpreted in a more liberal manner.
[22] Given the rule of interpretation in the Veterans Review and Appeal Board Act, supra, I would be tempted to ignore "directly connected with" and focus on whether Mr. Berger's death arose out of his military service. However, after considering the French text, I have come to the conclusion that the controlling language is "directly connected with" which I equate with "directly caused by".
[23] In peace time an estate is entitled to a pension if the death was "causé par une blessure ou maladie ... consécutive". In war time there is entitlement if the death is "causé par une blessure ou maladie ... survenue au cours de service militaire" (section 21(1)(b)). The word "consécutive" provides a nuance and limitation which is not present in the English version.
[24] That being said, in my opinion the Board failed to consider the meaning of "direct". The answer is to be found in the decision of the Supreme Court in Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021. Although on its surface the case dealt with claims in tort for pure economic loss, the decision of McLachlin J., as she then was, focussed on causality. She noted that in civil law jurisdictions a loss in tort is recoverable "wherever fault, damage and a direct and immediate causal connection between the two are established" (page 1143). Mention was made of Joly v. Ferme Ré-Mi Inc., [1974] C.A. 523, a case in which a chicken farmer recovered profits lost as a result of negligence which caused a power pole to fall, which in turn caused a power failure.
[25] I think it important to consider the words she used :
...The control mechanism against unlimited loss in the civil law lies not in the type of loss but in the factual determination of whether the loss is a direct, certain and immediate fault of the negligence. It appears to have worked well in avoiding frivolous claims and the threat of unlimited liability... [page 1144]
...
Proximity is the controlling concept which avoids the spectre of unlimited liability. Proximity may be established by a number of factors, depending on the nature of the case. [page 1152]
[26] She concluded at page 1154:
Viewed in this way, proximity may be seen as parallelling the requirement in civil law that damages be direct and certain. Proximity, like the requirement of directness, posits a close link between the negligent act and the resultant loss. Distant losses which arise from collateral relationships do not qualify for recovery.
[27] An analogy may also be drawn from "damages occasioned by a motor vehicle". It was held in Heredi v. Fensom, [2002] 2 S.C.R. 741, by Iacobucci J. at pages 756-757:
In other words, the true intent of the statute is that "damages occasioned by a motor vehicle" requires that the presence of a motor vehicle be the dominant feature, or constitute the true nature, of the claim. Conversely, claims, whether framed in contract or in tort, where the presence of a motor vehicle is a fact ancillary to the essence of the action, ought not be regarded as within the scope of that phrase.
See also Chisholm v. Liberty Mutual Group (2002), 60 O.R. (3d) 776 (C.A.), where Laskin J.A. compared causality with the "but for" remoteness test.
[28] The test is not whether cause and result are so inextricably linked so that a movement on the part of one brings about an effect on the other, such as between tug and tow. The test is one of proximity, one of dominant contacts.
[29] The Board did not consider all the circumstances surrounding Mr. Berger's death, and unreasonably focussed upon the act of swimming and returning therefrom as a recreational activity outside the scope of his military service. It failed to take into account that Lieutenant Colonel Leslie established a recreational policy to ensure that the soldiers did not become overly fatigued. The activity was close to a sports activity organized by the military, or performed in the interest of the service. Such activity is deemed to have risen out of or have been directly connected with military service (section 22(3)(a) and (b)). The only difference here is that Ms. Frye had to overcome the burden of proof.
[30] Direct causality, or proximity, arises from Mr. Berger being engaged in a military operation, on duty 24 hours a day, seven days a week, in an area of elevated risk. Had this accident occurred when he was on his annual leave, or even when stationed on an ordinary base, the accident would have been too remote to qualify as arising from military service.
[31] I am granting the application for judicial review and referring the matter back to the Veterans Review and Appeal Board to be dealt with on the basis that Mr. Berger's death arose out of and was directly connected to his military service.
"Sean Harrington"
Judge
Ottawa, Ontario
July 14, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2211-03
STYLE OF CAUSE: ONALEE KATHLEEN FRYE
and
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 30, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: JULY 14, 2004
APPEARANCES:
Brad Moore FOR APPLICANT
Natalie Henein
Cynthia Koller FOR RESPONDENT
SOLICITORS OF RECORD:
Fasken Martineau DuMoulin LLP
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT