Equitas B.C. Class Action Lawsuit

APPEAL! APPEAL! APPEAL!

Continue the fight ladies and gentlemen.

National embarrassment!
That is an understatement.

I second Mr. C.  in saying that none of my children are, nor will be allowed to join cadets nor the C.F.

MVA,
Your next buddy!
What's the big announcement, so we can either press forward or start believing in our leadership that they have our best interest at heart!

So much for the zero suicide policy.  Financial security....That is a great starting point.

Major Mark Campbell Reacts to the Ruling.

Video:

http://brightcove.vo.llnwd.net/v1/uds/pd/1504627604001/201712/1605/1504627604001_5667687246001_5663610192001.mp4?pubId=1504627604001&videoId=5663610192001

Kamloops veteran 'very disappointed' in Supreme Court ruling

By Greg Fry/Chad Klassen --- December 4, 2017



KAMLOOPS — A former Canadian peacekeeper living in the Kamloops area has expressed his utter disappointment in a B.C. Court of Appeal ruling that went against a group of six veterans Monday.

The so-called Equitas lawsuit alleges that the veterans have been unfairly treated because of a major overhaul in 2006 to the way the government compensates those injured in the line of service.

The changes included replacing lifelong disability pensions with a lump-sum payment, career training and income support. It's a package the veterans say adds up to less than the previous pension system.

"I'm very disappointed with the ruling today. Number one, this decision should've come down months ago," said Scott Casey. "Personally, my feeling on it is that there was some politcal lobbying there, to make sure that it didn't advance quickly. I can't say as to the outcome it was the same factor, but for it to come out in December is I think irresponsible of the B.C. Supreme Court."

He said it's "irresponsible" considering the decision comes on the heels of Remembrance Day and with Christmas just a few weeks away.

"For this kind of ruling to come down is just bad news. The veterans climate right now is very angry," fumed Casey.

So, what does he think will happen next?

"I think the next step, and this is just speculation, is that the Equitas case is going to move to the Supreme Court of Canada. Take it right to the top and go from there."

http://cfjctoday.com/article/600000/kamloops-veteran-very-disappointed-supreme-court-ruling

Injured Veterans Dealt Heavy Blow in Fight for Pensions

TORONTO, Dec. 07, 2017 (GLOBE NEWSWIRE) -- The Veterans Transition Network: A group of six injured veterans suffered a devastating setback yesterday in their legal battle with the government when the Equitas case was struck down in its entirety at the B.C. Court of Appeal.

The Equitas case was filed in 2012 in response to a government decision in 2006 to replace lifelong pensions for disabled veterans with a single lump-sum payment. They allege that this overhaul discriminates against today’s veterans because the previous pension system provided more financial support over a lifetime.

The judgement on Monday did not consider whether or not disabled veterans were adequately compensated. Instead, it dismissed the claims that the charter rights of veterans had been violated and struck down the case on the grounds that there was no chance for success.

“We are more determined than ever to fight the fight for justice for disabled veterans,” Marc Burchell, President of the Equitas Society said, “and we will win because it is morally right.”

Retired Warrant Officer Brian McKenna, a representative of the Equitas Society previously stated, “This isn't the standard that Canada ought to deliver." McKenna has also taken part in an advisory group for Veterans Affairs Canada and volunteers as a paraprofessional with the Veterans Transition Network.

Veteran Affairs Canada remained optimistic, saying in a statement, "We remain committed to a lifelong benefit option for ill and injured Veterans and we will finalize a benefit for life option for pension program for ill and injured Veterans soon.”

In the meantime, the Veterans Transition Network continues to deliver specialized therapy services to Veterans who have been unable to receive timely assistance from the government.

About the Veterans Transition Network: The Veterans Transition Network is the only Canadian charity delivering mental health services to veterans from coast to coast. Founded in 1997 by Dr. Marv Westwood, their mission is to make sure no Canadian veteran is left suffering in isolation. Our programs are backed by 20 years of research and have a 98% successful transition rate, one of the highest in the world. For more information, see vtncanada.org.

About Press Pillay: Press Pillay is a socially-conscious, boutique communications agency based in Toronto. With a team of former journalists, PR professionals and social media gurus, Press Pillay offers their lifestyle tech clients the highest-possible level of digital marketing strategies, branding and content. For more information visit www.presspillay.com.

Media Contact
Nesh Pillay
647-745-4224
nesh@presspillay.com



http://www.digitaljournal.com/pr/3588829

Friday, December 08, 2017 @ 8:58 AM | By Ian Burns

The British Columbia Court of Appeal has struck down a potential class action by members of the Canadian Forces against the federal government’s current compensation scheme for veterans, but a University of British Columbia law professor is saying the court may have erred in its interpretation of what positive obligations the Charter of Rights and Freedoms places on government.

The decision in Scott v. Canada (Attorney General) 2017 BCCA 422, released Dec. 4, stems from an action brought by six current and former members of the Canadian Forces who suffered injuries in the course of their duties. They claimed the compensation they received is inadequate, and violates a “social covenant” binding on the federal government by virtue of the doctrine of “honour of the Crown.” They also argued the compensation scheme violates their equality rights under s. 15 of the Charter and their right to life, liberty and security of the person under s. 7.

The federal government brought in a new scheme for benefits and compensation, called the “New Veterans Charter,” on April 1, 2006. It provided for lump sum disability payments and earnings loss benefits for Canadian Forces members and veterans who suffered from disabilities related to their service. Prior to the New Veterans Charter, disability pensions were provided under the Pension Act, and the plaintiffs in the case argued the new benefits were inferior, not only in terms of the benefits provided previously but also in comparison to compensation available to injured workers under provincial compensation regimes.

“The essence of the plaintiffs’ claim is that the federal government has bound itself to a ‘social covenant’ to provide adequate disability benefits for people serving in the armed forces,” said Justice Harvey Groberman, who wrote the unanimous decision. “The plaintiffs’ theory is that statements made by Prime Minister [Robert] Borden in the early 20th century should be broadly construed and acknowledged to form the foundation of this social covenant.”

The plaintiffs alleged this social covenant has constitutional status such that it circumscribes the ability of Parliament to legislate in the area of disability benefits for members of the Canadian Forces. In aid of this argument, they raised the doctrine of honour of the Crown, which has been applied only as a foundation of Canada’s obligations to Indigenous people. They contended current and former members of the Canadian Forces constitute a group analogous to those enumerated in s. 15 of the Charter. They argue the veterans’ charter discriminates against them as it provides lesser benefits than are provided to injured workers under provincial workers’ compensation regimes, or to individuals harmed as a result of an actionable tort.

The legal process of the claim faced a long route to the B.C. Court of Appeal. The civil claim was filed in October 2012, and in Scott v. Canada (Attorney General) BCSC 1651, Justice Gordon Weatherill of the B.C. Supreme Court accepted a “social covenant” existed and the doctrine of honour of the Crown could be applicable to the covenant and may place constitutional limitations on the federal government’s legislative powers. He acknowledged that, on the face of it, the plaintiffs’ claims do not assert a deprivation. He found, however, that there might be “special circumstances” present in this case, that would allow the imposition of positive obligations on government under s. 7 of the Charter.

Justice Weatherill said remedies could be sought and allowed the lawsuit to move forward, a decision appealed by the federal government. The issue reached the B.C. Court of Appeal in December 2014, but the court did not give judgment because it was told negotiations were taking place on settling the issue. In June 2016, the court reactivated the appeal after it was told the negotiations had been unsuccessful.

Justice Groberman allowed the appeal and struck the claim in its entirety. He said the doctrine of honour of the Crown is a constitutional doctrine arising out of the Crown’s assertions of sovereignty over lands already occupied by First Nations and was not of any assistance to the plaintiffs.

“The situation of the plaintiffs bears no resemblance to that of First Nations,” he said. “I would therefore reject the suggestion the doctrine of ‘honour of the Crown’ could expand to act as a foundation for the plaintiffs’ contentions. Such an expansion would be completely contrary to the scheme of the Constitution Act, 1867, which forms part of the fundamental law of Canada.”

The court also said the federal government has the constitutional authority to enact and administer the compensation scheme, saying the plaintiffs did not belong to a group enumerated under s. 15 of the Charter.

“Not every difference in treatment authorized by law constitutes ‘discrimination’ under the Charter,” the court said. “The plaintiffs have neither pleaded nor pointed to any features of the New Veterans Charter that could constitute discrimination as that concept has been defined under the Charter.”

Section 7 of the Charter limits the powers of governments to deprive individuals of rights, said Justice Groberman.

“It does not, generally, serve to impose positive obligations on governments,” he said. “As pleaded by the plaintiffs, the concern is not with a deprivation imposed by government, but rather with the inadequacy of a government program designed to ameliorate the situation of the plaintiffs. There is nothing in this case, as pleaded, that constitutes a special circumstance that turns what is a benefit-conferring program into a de facto deprivation.”

Justice Groberman, who was joined by Justices David Harris and Peter Willock in his decision, did point out the court was not making a determination about whether the compensation scheme was adequate but just on the facts of law presented to it.

“I have considerable sympathy for the plaintiffs, who have served our nation and suffered serious injuries in doing so,” he said. “All right-thinking Canadians would agree that they should be provided with adequate disability benefits. If that is not occurring, it is a national embarrassment.”

In a statement, Minister of Veterans Affairs Seamus O’Regan said the government “remains committed to a lifelong benefit option for ill and injured veterans and we will finalize a benefit for life option for pension program for ill and injured veterans soon.”

“Previous governments have created a patchwork of policies and benefits that made it more complicated for veterans to get the support they need, when they need it,” he said. “We are changing that.”

Donald J. Sorochan, who represented the plaintiffs in the case, said no decision had been made on what further steps to take with the litigation as he had not consulted with all of his clients.

“It’s fair to say we had expected the court would give more credence to the theory that there is a social covenant than they did, particularly when there was a unanimous resolution of Parliament passed in May 2015 that there was a social covenant,” he said. “They didn’t mention that, so the social covenant was treated as only flowing from statements made by Prime Minister Borden. So we believe that finding of the Court of Appeal is in error.”

Sorochan said his clients “certainly believed” that the relationship of honour applies equally to those who served the country as it does for First Nations.

“On those two fundamental areas there is a marked disagreement with the findings of the Court of Appeal and in my opinion those are both important matters that may come within what would be an appropriate case to be considered by the Supreme Court of Canada,” he said.

Margot Young, a professor of constitutional and human rights law at the University of British Columbia’s Peter A. Allard School of Law, called the veterans’ arguments “creative legally, not just in terms of the articulation of the notion of a social covenant but also how they make arguments that are pushing at the doctrinal bounds of sections 7 and 15 of the Charter.”

“We’ve seen the courts in other instances too conservative in terms of opening up the constitutional forum to judicial appeals that present arguments that are novel in representing groups of disadvantaged and marginalized Canadians,” she said. “The tension here is really a fundamental tension to the legitimacy of the Constitution, and that is constitutions must present stable predictability of rules and they also must grow and expand and allow an interpretation that allows for that growth to be of enduring relevancy and legitimacy.”

Young said she would “take issue” with the finding there was a s. 7 claim on the argument there were no positive obligations placed on the government, pointing to Chief Justice Beverly McLachlin’s finding in Gosselin v. Québec (Attorney General) 2002 SCC 84, that “one day s. 7 may be interpreted to include positive obligations” by the state.

“If I had to land on a point where I would say there was some argument the court should have let them get some time on the merits it would be in relation to the positive obligation claim,” she said. “The court is correct in going back in discussing Gosselin but I think the court reads Gosselin down in a way I would say is undesirable and I think that’s a real frontier for us in terms of whether our Charter is going to have any meaning for those who are most disadvantaged and marginalized and therefore most in need of Charter protection.”

Young said she would be “more pessimistic than optimistic” that the Supreme Court would grant leave to hear an appeal, but said “we do need to push our judiciary to get more in line with international opinion about the positive and negative distinction and to become more subtle in our understanding of what its usefulness is and isn’t.”

“These are the cases that do that,” she said. “I think it’s a shame these cases are not getting a chance to make that argument and are getting tossed out at this preliminary stage.”

https://www.thelawyersdaily.ca/articles/5378/b-c-court-of-appeal-rules-compensation-for-forces-veterans-does-not-violate-charter

Dishonouring veterans

The Telegram
Published: Dec 07, 2017


Veterans, legion members and members of the public at a Remembrance Day service. — SaltWire file photo

Wrong church, wrong pew: at least, that’s what the British Columbia Court of Appeal said to Canadian veterans this week.

But sometimes, even in a loss, there’s a moral victory.

Earlier this week, six Canadian veterans, all of whom suffered injuries while serving this country, lost of a court battle over the New Veterans Charter, a piece of legislation put in place by the House of Commons in 2006.

The Veterans Charter replaced life-long pensions for injured veterans with lump-sum payments, creating a system that the veterans say provides them with compensation well below the level of basic provincial workers’ compensation programs.

The veterans wanted to launch a class-action lawsuit and roll back the New Veterans Charter, arguing that prime ministers back to Robert Borden have made commitments that this nation would always care properly for its injured veterans, and that those commitments should be honoured.

If veterans are not receiving adequate benefits, and it’s pretty clear they are not, that is a national embarrassment.

The Appeal Court ruled that the current legal action should be halted because it had no chance of success — essentially, because the promises of prime ministers, including Justin Trudeau’s promises to overturn the Veterans Charter during the last federal election, don’t trump the duly-passed legislation of the House of Commons.

“The idea that inspirational statements by a prime minister containing vague assurances could bind the Government of Canada to a specific legislative regime in perpetuity does not, in any way, conform with the country’s constitutional norms,” the court wrote in its decision.

Fair enough: if promises by politicians instantly became laws, well, we’d be living in a wholly different nation.

The Appeal Court essentially said that the veterans’ argument did not have any chance of success in its current form. Worth bearing in mind, though, is what the judge who wrote the decision, Justice Harvey Groberman, said in the preamble to his reasons.

“I have considerable sympathy for the plaintiffs, who have served our nation and suffered serious injuries in doing so. We have tremendous respect and admiration for the plaintiffs. All right-thinking Canadians would agree that they should be provided with adequate disability benefits. If that is not occurring, it is a national embarrassment. Again, however, that is not the issue the Court is deciding. Rather, the question before the Court is whether an arguable case can be advanced that the Canadian Parliament lacks authority to enact legislation fixing and limiting compensation,” he wrote.

If veterans are not receiving adequate benefits, and it’s pretty clear they are not, that is a national embarrassment.

Indeed.

It should be even more embarrassing for Trudeau and his government, who said clearly that they would turn back the clock on the 2006 decision to implement the charter.

The courts might well not be the place to fix the problem.

But it should certainly be fixed, and soon.

http://www.thetelegram.com/opinion/editorials/editorial-dishonouring-veterans-168418/

ARMED FORCES - Personnel - Conditions of service - Compensation and benefits

Friday, January 05, 2018 @ 8:30 AM

Appeal by Canada from the decision in its largely unsuccessful application to strike claims by six members and former members of the Canadian Forces who suffered injuries in the line of their military duties. The plaintiffs alleged that Canada acted unconstitutionally in creating an inadequate system of compensation for them and other members of the Canadian Forces. The New Veterans Charter provided for lump sum earnings loss benefits for members and veterans suffering from disabilities relating to their service, as well as other benefits. The essence of the plaintiffs’ claim was that Canada had bound itself to a social covenant to provide adequate disability benefits for them. They alleged that this social covenant had constitutional status such that it circumscribed Parliament’s ability to legislate in the area of disability. They raised the doctrine of honour of the Crown and also argued that the social covenant gave rise to property rights of which the New Veterans Charter sought to deprive them. The plaintiffs also raised claims under the Canadian Charter of Rights and Freedoms (Charter) arguing that they were an analogous ground subject to discrimination because the New Veterans Charter provided them with lesser benefits than were provided to injured workers or individuals harmed as a result of an actionable tort. They claimed that the New Veterans Charter violated their section 7 Charter rights to life, liberty and security of the person. In dismissing Canada’s application to strike the claim as disclosing no reasonable cause of action, the judge noted that Canada had accepted that the social covenant existed, but not that it had failed to fulfil it. The judge held that the doctrine of the honour of the Crown could apply to the social covenant. He found that it was not plain or obvious that status as a Canadian Forces member or veteran injured while serving would never be found to constitute one of an analogous group. He found it arguable that section 7 of the Charter could include a positive obligation on Canada to protect the security of the plaintiffs based on the unique interactions between the Crown and its armed forces. The judge did not itemize those few portions of the plaintiffs’ claim that he decided should be struck.

HELD: Appeal allowed. The plaintiffs’ claim was struck and the action was dismissed. The judge erred in finding that Canada accepted that a social covenant existed. Canada accepted that Prime Minister Borden stated in 1917 that the government considered it a duty to show its appreciation for service in the Canadian Forces. Borden’s vague statements did not bind Canada to a specific legislative regime in perpetuity. The doctrine of the honour of the Crown applied specifically to dealings with Canada’s First Nations people, and the plaintiffs’ situation bore no resemblance to that of First Nations. The plaintiffs were not an analogous group for the purpose of seeking a remedy for the discriminatory impact of the New Veterans Charter. The plaintiffs, as military personel, were not resented or discriminated against by the general population of Canada, and their treatment under the New Veterans Charter did not serve to perpetuate prejudice or stereotyping. Section 7 of the Charter did not impose a positive duty on Canada to enhance the lives of the plaintiffs.

Scott v. Canada (Attorney General), [2017] B.C.J. No. 2446, British Columbia Court of Appeal, H. Groberman, D.C. Harris and P.M. Willcock JJ.A., December 4, 2017. Digest No. TLD-January12018010

https://www.thelawyersdaily.ca/articles/5595/armed-forces-personnel-conditions-of-service-compensation-and-benefits-