Date: 20030604
Docket: T-452-03
Citation: 2003 FCT 703
BETWEEN:
HELEN GIANNOULAKIS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
[1] The applicant, Helen Giannoulakis, the widow of the late Vasilio Giannoulakis, who died on April 21, 1997, seeks to set aside a decision of the Veterans Review and Appeal Board (the "Board") made on November 19, 2001.
[2] By its decision, the Board upheld a December 15, 1999 decision of the Ontario Region Review Committee, which agreed with a departmental adjudicator's decision that the applicant was not entitled to a widow's allowance because her late husband's military service did not meet the requirements of the War Veterans Allowance Act, R.S., c. W-5 (the "Act"), the relevant provisions of which are as follows:
| 6.2 (1) Subject to this Act, an allowance payable under section 4 or awarded under section 5, on or before February 27, 1995, to or in respect of a person who is an allied veteran within the meaning of paragraph 37(4)(b) or an allied dual service veteran within the meaning of paragraph 37(6)(b), as those paragraphs read immediately before that day, shall continue to be paid during the lifetime of the recipient and shall cease with the payment for the month in which the recipient dies.
(2) Subject to this Act but notwithstanding subsections 4(4) and (5), a survivor or orphan of an allied veteran or an allied dual service veteran to whom payment of an allowance was continued by subsection (1) may, on or after February 27, 1995, apply for and be paid an allowance under section 4 or be awarded an allowance under section 5, and any allowance so paid or awarded shall continue to be paid during the lifetime of the recipient and shall cease with the payment for the month in which the recipient dies.
******** 37. (4) An allied veteran is any former member of (a) any of His Majesty's forces, (b) any of the forces, other than resistance groups, of any of His Majesty's allies, or (c) any of the forces, other than resistance groups, of any power associated with His Majesty in World War I who was domiciled in Canada at the time when he or she joined that force or at any time while a member of that force, and (d) served in a theatre of actual war during World War I or World War II, (e) is in receipt of a pension for disability under the Pension Act in respect of service during World War I or World War II as those wars are defined in that Act, (f) has accepted a commuted pension in respect of service described in paragraph (e), (g) is, after death, declared to have been eligible for, or awarded, a pension described in paragraph (e), or (h) served in the United Kingdom during World War I.
[Emphasis added] |
|
6.2 (1) Sous réserve des autres dispositions de la présente loi, les allocations payées ou accordées en vertu des articles 4 ou 5 en date du 27 février 1995 pour un ancien combattant allié, au sens de l'alinéa 37(4)b), ou un ancien combattant allié à service double, au sens de l'alinéa 37(6)b), en leur état avant cette date, continuent d'être versées jusqu'à la mort du bénéficiaire, le dernier paiement étant pour le mois de son décès.
(2) Sous réserve des autres dispositions de la présente loi et malgré les paragraphes 4(4) et (5), le survivant ou l'orphelin d'un ancien combattant allié ou d'un ancien combattant allié à service double qui a reçu l'allocation visée au paragraphe (1) peut, à partir du 27 février 1995, faire une demande pour recevoir une allocation au titre des articles 4 et 5 jusqu'à sa mort, le dernier paiement étant pour le mois de son décès.
********** 37. (4) Sont des anciens combattants alliés les anciens membres_: a) de l'une des forces de Sa Majesté, b) de l'une des forces - autres que les groupes de résistance - d'un allié de Sa Majesté, c) de l'une des forces - autres que les groupes de résistance - d'une puissance associée à Sa Majesté dans la Première Guerre mondiale, qui étaient domiciliés au Canada à la date de leur engagement dans cette force ou tant qu'ils avaient la qualité de membre et, selon le cas_: d) ont servi sur un théâtre réel de guerre au cours de la Première ou de la Seconde Guerre mondiale, e) reçoivent une pension pour invalidité sous le régime de la Loi sur les pensions pour le service pendant l'une ou l'autre de ces guerres, au sens de cette loi, f) ont accepté une pension rachetée pour ce service, g) ont, après leur décès, reçu la pension visée à l'alinéa b) ou ont fait l'objet d'une déclaration confirmant leur droit à celle-ci, h) ont servi au Royaume-Uni pendant la Première Guerre mondiale.
|
|
|
|
|
| [Le souligné est le mien] |
|
|
|
|
|
|
Sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1995, ch. 18 (the "VRAB Act"), are also relevant and I hereby reproduce them:
| 3. The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled.
**********
39. In all proceedings under this Act, the Board shall (a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and ©) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case. |
|
3. Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s'interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l'égard de ceux qui ont si bien servi leur pays et des personnes à leur charge.
**********
39. Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les règles suivantes en matière de preuve_: a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci; b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l'occurrence; c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande. |
|
|
|
|
FACTS
[3] A brief summary of the facts will be helpful in understanding the questions which I must decide. In 1986, Mr. Giannoulakis applied for a war veterans allowance, but as his military service could not be verified, his application was denied. However, on May 17, 1987, the Board concluded that his service met the requirements of the Act and thus, his war veterans allowance was approved.
[4] Mr. Giannoulakis received his allowance until it was terminated effective September 1, 1995, as a result of a legislative change that implemented Parliament's declaration that the purpose of the war veterans allowance was to provide income support to Canadian and allied veterans with formal military and not resistance service.
[5] Despite Mr. Giannoulakis' attempt to prove that his service on the island of Crete was formal military service, i.e. in that in addition to being a member of the Greek national resistance service, he was also a member of the allied counterintelligence which supported the British, he was advised on February 12, 1997, that his service did not meet the requirements of the Act.
[6] Following Mr. Giannoulakis' death, his son, Gus Giannoulakis, submitted arguments that his father's service should be considered service with an allied (British) force, rather than with a resistance force. In support of his submission, Gus Giannoulakis provided additional documentation to prove that his father had indeed worked with British Intelligence on Crete. It is on the basis of that information that the applicant applied for a veterans allowance as Mr. Giannoulakis' widow.
[7] A Veterans Affairs Departmental Memorandum, dated February 10, 1993, which deals with Greek service eligibility, states that only Greek military service between October 28, 1940 (the date Greece declared war on Germany) and May 31, 1941 (the date Greece was occupied by Germany) constitutes formal military service. Consequently, all service in the Greek military during the war, after German occupation, is considered resistance force service. The Memorandum also provides that military service in Greece following liberation does not qualify for war veterans allowance service.
[8] On August 28, 1997, the applicant was advised that her application was refused because her late husband's service did not meet the requirements of the Act. The applicant, represented by her son, appealed that decision to the Ontario Region Review Committee, which, on December 15, 1999, upheld the departmental decision.
[9] On November 19, 2001, the Board affirmed the Ontario Region Review Committee decision and, on December 24, 2001, the applicant filed her judicial review application seeking an order setting aside the Board's decision.
SUBMISSIONS OF THE PARTIES
[10] The applicant argues that her late husband served in both the Greek and British military during World War II on the island of Crete. She submits that his service should be deemed to be qualifying service as an allied veteran within the meaning of paragraph 37(4)(b) of the Act.
[11] The applicant submits that the Board did not properly consider part of the evidence adduced. Specifically, she contends that the Board made its decision without regard to the following documents: letters from the British High Commission, indicating that much of the documentation recording events during World War II was destroyed; a letter from Wolfgang Stierle, confirming that Field Marshall Erwin Rommel made stopovers on the island of Crete during the war; and a picture of her late husband and a British soldier on Crete taken during the war, which is found in a book written by Patrick Lee Fermor and Georgios Epsichountakis regarding the events that took place on Crete during World War II. The applicant argues that the Board did not understand or realize the importance of the information found in these documents.
[12] The applicant also contends that a letter issued by the Canadian Embassy in Athens, to the effect that two affidavits affirming a person's military service are equivalent to a type A certificate issued by the Greek government, has been lost.
[13] Finally, the applicant relies on the grandfathering provisions found in subsections 6.2(1) and (2) of the Act.
[14] The respondent firstly submits that in view of the privative clause contained in section 31 of the VRAB Act, the relevant standard of review is that of patent unreasonableness. Secondly, the respondent submits that the Board's conclusion that Mr. Giannoulakis' service does not qualify for war veterans allowance, which excludes resistance fighters from consideration as allied veterans, is not an unreasonable conclusion.
[15] The respondent points out that the Board reviewed the additional evidence adduced by the applicant and concluded that proof had been made that Mr. Giannoulakis had served in the Greek military during a period of time when Greece was occupied by Germany. The respondent also points out that the Board was fully cognizant of the issues before it and gave the evidence thorough consideration before making its decision.
[16] In the respondent's submission, notwithstanding sections 3 and 39 of the VRAB Act, which require the Board to draw from the evidence every reasonable inference in favour of an applicant and to liberally construe and interpret the relevant provisions of law, the evidence remains insufficient to prove that Mr. Giannoulakis' service satisfies the requirements of the Act.
[17] Finally, the respondent seeks an order amending the style of cause so as to substitute the Attorney General of Canada as the respondent in lieu of the Minister of Human Resources Development.
ANALYSIS
[18] In McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (T.D.), Evans J. (as he then was) made the following remarks concerning the statutory scheme set out in the VRAB Act. At paragraph 27 of his Reasons, he stated:
[27] The second aspect of the statutory language to be considered is the extent to which it expressly contemplates or precludes access to the Court from decisions by the Board. The absence of a right of appeal from the Veterans Review and Appeal Board, and the exclusive jurisdiction and finality provisions (sections 26 and 31 of the Veterans Review and Appeal Board Act) are indicative that Parliament did not intend the Board's decisions to be subject to close judicial surveillance.
[19] With those comments in mind, I cannot conclude that the Board's conclusion that Mr. Giannoulakis' resistance service did not meet the requirements of the Act so as to establish the applicant's entitlement to her late husband's war veterans allowance, is unreasonable. The Board's reasons and conclusions, which appear at pages 4 and 5 of its decision:
Reasons and Conclusions
Section 39 of the Veterans Review and Appeal Board Act states that in all proceedings under this act, the Board shall draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.
The Board referred to a Departmental Memorandum dated 10 February 1993, which deals with Service Eligibility - Greece. The Memorandum states that only Greek formal military service between 28 October 1940 (the date Greece declared war on Germany) to 31 May 1941 (date Greece was fully occupied by Germany) could be considered as formal military service. After that date, any other service with the Greek Forces would be considered as Resistance Force service. The country continued to be occupied by the enemy until October 1944.
The Board reviewed the additional evidence submitted by the Advocate and found that the only proof of service which was submitted confirms that the late Mr. Giannoulakis served in Greece from 8 March 1942 when the Greek nation was fully occupied by Germany. He also served after the country was liberated, however, according to the Departmental Memorandum dated 10 February 1993, any formal military service, raised and operating in Greece, after the country was liberated, does not qualify for war veterans allowance purposes.
According to the information available, the late Mr. Giannoulakis' service began after the 31 May 1941, therefore, his service is considered as Resistance Force service, which following legislative changes made by Parliament in 1995, no longer qualifies a person for war veterans allowance after 1 September 1995.
In conclusion, as the late Mr. Giannoulakis' service was with a Resistance Force and since the Board has not been presented with any confirmation that any of his service was with an allied force (British), the Board must confirm the decision of the Review Committee dated 15 December 1999.
[20] Although the applicant makes a compelling case that her late husband served in the British Army in some capacity during the war, she has not, regrettably, established that the Board's decision is unreasonable. Notwithstanding her contention that her late husband's service with the resistance force was, in effect, service with the Allies, i.e. because he conducted British intelligence work, she has not demonstrated that Mr. Giannoulakis' service meets the statutory definition of an allied veteran found at subsection 37(4) of the Act, which expressly excludes those who served as members of a resistance group. By reason of Germany's occupation of Greece during Mr. Giannoulakis' period of service, his service has been found to be resistance service.
[21] I now turn to the applicant's second argument. She submits that she is entitled to her war veterans allowance because subsections 6.2(1) and (2) of the Act operate to grandfather her entitlement. For this contention, the applicant relies on the fact that her late husband was in receipt of an allowance prior to February 27, 1995, i.e. the date on which Parliament announced the termination of the war veterans allowance program for resistance members. For the reasons that follow, I am of the view that this argument cannot succeed.
[22] In 1992, the Act was amended to exclude service in resistance forces from the definition of "allied veteran" found in section 37. In turn, section 6.1 was added to explicitly "grandfather" those who were receiving allowances prior to 1992 by reason of service in a resistance force. The provision read as follows:
| 6.1 (1) Subject to this Act but notwithstanding subsections 37(4) and (6), an allowance payable under section 4 or awarded section 5, on or before March 2, 1992, to or in respect of a person who is a veteran by reason only of service in a resistance group shall continue to be paid during the lifetime of the recipient and shall cease with the payment for the month in which the recipient dies. |
|
6.1 (1) Sous réserve des autres dispositions de la présente loi mais par dérogation aux paragraphes 37(4) et (6), l'allocation payable en vertu des articles 4 ou 5 avant le 3 mars 1992 à quiconque est un ancien combattant en raison de son service au sein d'un groupe de résistance, ou à l'égard de cette personne, continue de lui être versée jusqu'au mois au cours duquel survient son décès. |
|
|
|
|
[23] However, in 1995, the Budget Implementation Act repealed section 6.1, thus removing the "grandfather" clause and indicating an intention of terminating payments to those who had been grandfathered in 1992.
[24] The 1995 amendments also repealed paragraphs 37(4)(b) and 37(6)(b) of the Act which had included within the definition of "allied veteran" and "dual service allied veteran" persons who were not born in Canada when they joined Allied forces, but who nevertheless had "resided in Canada for a total period of at least 10 years". Section 6.2 was then added, under the heading "Veterans Without Pre-War Canadian Domicile", in order to grandfather those who had been receiving payments as of 1995 under paragraphs 37(4)(b) or 37(6)(b) as those paragraphs read just prior to being repealed. Subsection 6.2(1) reads as follows:
| 6.2 (1) Subject to this Act, an allowance payable under section 4 or awarded under section 5, on or before February 27, 1995, to or in respect of a person who is an allied veteran within the meaning of paragraph 37(4)(b) or an allied dual service veteran within the meaning of paragraph 37(6)(b), as those paragraphs read immediately before that day, shall continue to be paid during the lifetime of the recipient and shall cease with the payment for the month in which the recipient dies. |
|
6.2 (1) Sous réserve des autres dispositions de la présente loi, les allocations payées ou accordées en vertu des articles 4 ou 5 en date du 27 février 1995 pour un ancien combattant allié, au sens de l'alinéa 37(4)b), ou un ancien combattant allié à service double, au sens de l'alinéa 37(6)b), en leur état avant cette date, continuent d'être versées jusqu'à la mort du bénéficiaire, le dernier paiement étant pour le mois de son décès. |
|
|
|
|
[25] In my view, section 6.2 did not apply to Mr. Giannoulakis, as he was receiving payments under a combination of the pre-1992 definition of "allied veteran" and the grandfathering provision in section 6.1. He was not receiving payments pursuant to paragraphs 37(4)(b) or 37(6)(b) as those paragraphs read immediately before being repealed, because, as of 1992, these paragraphs explicitly excluded service in resistance forces.
[26] Consequently, since Mrs. Giannoulakis has not established that her late husband's service was other than resistance service, he was not eligible to be grandfathered under 6.2. As a result, her application for judicial review must regrettably be dismissed.
[27] I shall make no order with respect to costs.
[28] The style of cause shall be modified so as to substitute the Attorney General of Canada as the respondent, in lieu of the Minister of Human Resources Development.
"M. Nadon"
J.A.
O T T A W A, Ontario
June 4, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-452-03
STYLE OF CAUSE:HELEN GIANNOULAKIS v. MHRD
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY MAR 20, 2003
REASONS FOR ORDER
AND ORDER BY: NADON J.
DATED: JUNE 4, 2003
APPEARANCES BY:
Helen Giannoulakis For the Applicant
Derek Edwards For the Respondent
Department of Justice
SOLICITORS OF RECORD:
Helen Giannoulakis For the Applicant
172 Langford Avenue
Toronto, Ontario M4J 3E6
Morris Rosenberg For the Respondent
Deputy Attorney General of Canada
Ottawa, Ontario