Visit to bar scuttles pension for search-rescue worker

Had car crash after making preparations for mission

While harshly criticizing the Veterans Review and Appeal Board, the Federal Court has upheld the board’s denial of a pension to a search-and-rescue worker.

Danno Schut, a technician with the 442 Transport and Rescue Squadron, was a “soldier’s soldier,” the court says. In fact, he was supposed to be on Christmas leave in 1979 when he heard about the wreck of a Panamanian ship, the Lee Wang Zin.

He volunteered to participate in the rescue mission, but before he could get to the shipwreck, his own personal disaster intervened.

The night before he was scheduled to leave on the Lee Wang Zin mission, Schut visited the base to prepare his gear and then spent about three hours with his colleagues in a hotel bar.

The review board accepted his evidence that he consumed only two beers, but elsewhere in its reasons seemed to suggest that he had drunk more and in doing so engaged in “moral turpitude.”

Schut left the bar around 11:30 p.m. and as he drove he was pursued by a police cruiser at speeds of up to 130 kilometres per hour. He lost control of his car and hit a tree, sustaining serious injuries which disabled him permanently.

He applied to Veterans Affairs Canada for disability benefits, claiming that he was on duty at the time of the crash and that it was caused by his anxiety over the coming rescue mission.

These arguments were dismissed at all stages of appeal, although a review panel suggested that Schut should make a new application to Veteran Affairs based on his claim of acute stress disorder.

Schut’s related appeal to the Canada Pension Commission was pending at the time of this judgment.

During the appeal process, Schut argued that his injuries were pensionable in that he was engaged in activity incidental to his duty, and that this theory was used in workers’ compensation cases, even when the underlying legislation was much stricter about such matters than the federal Pension Act, which governed his situation.

The Pension Act provides benefits for disability “or an aggravation thereof that arose out of or was directly connected with such military service.” It excludes disabilities caused by “improper conduct.”

Justice Francis Muldoon has found the review panel “snide and unfair” to, on the one hand, accept Schut’s evidence that he drank only two beers, but on the other hand express doubts about that evidence.

Justice Muldoon also has remarked that the review panel was “perverse, if not malicious” and that it was “unworthy of the panel” to say of Schut that it was “patently unreasonable for someone to invoke their own turpitude, and then claim pensionability.”

However, Justice Muldoon has held that, in the end, the panel’s view prevailed. Despite its “snide” remarks, it accepted that Schut was not impaired and it was entitled to conclude that his visit to the bar was an event breaking any relationship between his military work and the accident.

Justice Muldoon has affirmed, however, that Schut’s best course is to continue with his Canada Pension Commission case. That is, Schut might obtain happier results, Justice Muldoon suggests, by more diligently pursuing his claim that he was suffering from acute distress disorder at the time of the accident.

For more information:

Schut v. Canada (Attorney General), Federal Court (Trial Div.) file no. T-672-99, Apr. 6/00.

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