 
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.
Prepared and presented for
publication by SEAN BRUYEA
|
Published: Monday, 05/07/2012 12:00
am EDT
VVi 07 May 2012 pe
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.
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