Equitas B.C. Class Action Lawsuit

The answer is no.

See highlighted in blue, para 8

We are writing to you because you have reached out to us in the past regarding your interest in being involved in or obtaining information about the class action lawsuit brought against the Government of Canada on behalf of Veterans who have been effected by decreased compensation under the New Veterans Charter.

As you may have heard in the media or through your friends and colleagues, there have been recent settlement negotiations with the Government on this lawsuit. As a result, we wanted to provide an update to as many Veterans as possible to properly inform everyone about what has occurred.

The first point we want to make clear is that the lawsuit has not settled. Earlier this year, following the appointment of Minister O’Toole, the government, and specifically representatives of the Minister, reached out to the representative plaintiffs and counsel on this lawsuit to see if the parties could work together to resolve the issues in this litigation. To that end, we have met with the government many times over the last several months and have expressed our concerns about the lack of benefits as well as problems in the culture at VAC, and shared our recommendations for further change.

As you may know, the Government has recently tabled legislation (Bill C-58) containing proposed reforms that will require legislative enactment. While these changes are not enough for the parties to agree to settle the lawsuit, we see these proposed changes as a positive first step. For the first time since the lawsuit commenced three years ago the Government has shown an intention to take steps and open a dialogue with us towards proposed change and therefore this is the beginning of the process we were hoping to make with this lawsuit. However, it is not enough to settle.

What has occurred, is that the parties have agreed to hold off on the court processes for one year, in order that we can continue negotiations and work with the Government towards further proposed reforms.

It is our view that a negotiated resolution to this lawsuit is in the best interests of Veterans for several reasons. Chief among them is the frailties of the legal process and the need for an efficient solution to getting better benefits for those suffering now.

First, it is important to realize the frailties of the litigation process. When we started this process the Government brought an application to strike out the case arguing that the Veterans did not even have the legal right to sue the Government for decreased benefits. There is quite a lot of case law out there that suggests that a government is entitled to spend their money any way they see fit. What we are arguing for is a novel exception to that which is that the government has a special obligation to veterans that requires them to provide adequate and fair compensation for injuries suffered in service to the country. While this view seems obvious and would carry the day in the court of public opinion, there is no law on the books to support it. Currently the matter is before the Court of Appeal and they have yet to render judgment. The Government attempted to abandon this appeal in Court on Monday, however unfortunately, the Court would not allow the appeal to be abandoned as argument had already been heard by the Court. Instead the Court of Appeal ordered that the Appeal also be held in abeyance for a period of one year. Therefore there remains a risk that the Court could reject our argument and strike out the case entirely, resulting in a bad legal precedent for Veterans going forward. Whether we win or lose in the Court of Appeal the matter would likely proceed to the Supreme Court of Canada and we again cannot be certain that the outcome would be successful there. All this is to say that we still have a long legal battle ahead just to gain the right to sue at the trial court level.

The next issue with the legal process is that the ultimate victory that we could receive would be merely a declaration of invalidity. When Courts find legislation to be unconstitutional they declare it invalid and then direct the Government to fix it. The Court cannot re-draft the legislation itself. In other words, the Courts cannot order the government to increase the lump sum or return to a pension scheme. All the Court has the power under our Constitution to do is to declare that the NVC is unconstitutional and that the government must fix it. There is no guarantee what that fix may be.

This brings us to where we are today. Since Minister O’Toole has been appointed there has been a shift in Veterans Affairs from ignoring or fighting that there is a problem, to acknowledging that there is a problem and wanting to fix it. If the Government is in a position where they are ready and willing to fix it now, rather than 7 years from now when ordered to do so by the Courts, then we truly believe that it is in the best interests of all Veterans to work with them, rather than fight them, to make sure they get the fix right.

The difficulty with ongoing litigation is that the government cannot work with us if we are engaged in litigation. In addition, if we were to be successful after trial and the Court ordered the government to fix the legislation, the government would be under no obligation to seek our input on what the proposed changes would be. By holding the litigation in abeyance we have created the opportunity for our team to be involved in driving what the changes will be. During this period of abeyance, the plaintiffs and their counsel will assess the Government’s implementation of the tabled reforms. We will also provide input to the Government and the Minister of Veterans Affairs as to what additional reforms should be made so that Canada may fully honour the obligations under the Social Covenant. Specifically we will have two representative Plaintiffs working on a stakeholder advisory committee and acting as liaisons between the Veterans community, the government and the legal team regarding reforms that are needed.

It is our view that a negotiated outcome will be the fastest and most effective way to see change.

While it may seem that giving up the “legal fight” for the time being is a loss, we see it as a temporary and necessary measure to try to affect change in the most efficient way. We all know that there are Veterans who are suffering daily without needed benefits and they cannot wait for a seven year legal battle. Change needs to happen now and we see the political process as the best way to achieve that.

In addition, it is important to note that our agreement with the Government does not silence us at all. We have specifically reserved the right for our legal team and representative plaintiffs to continue to comment in the media and raise issues of veterans’ benefits. It is our full intention to stay vocal during the upcoming election and to put our support behind whichever party comes out with the best proposed benefits for Veterans and to challenge the government of the day to do better.

If nothing fruitful comes of this negotiation process, which we view as unlikely, than we just pick back up where we left off in a year. While a year may seem to be a long time, in the lifespan of litigation like this it is only a temporary pause. We are using our experience as legal professionals to look for the best possible outcome for Veterans, and sometimes the best route is not always through litigation. That said, I would reiterate that the litigation is not over and the agreement reached with the Government gives us the right to recommence the action.

Please do not hesitate to follow up with any additional questions you may have to our legal team at: veterans@millerthomson.com. We want to be sure that the message that is getting to the veterans community about what this all means is accurate and we are happy to address your concerns.

For additional information, attached is a link to the Global News interview with Miller Thomson counsel, Don Sorochan Q.C. which explains what has happened with the lawsuit: https://globalnews.ca/video/2030538/veterans-government-put-lawsuit-on-hold

Regards

Kelsey Thompson
Miller Thomson LLP