Recent court decision supports ‘non-primary’ cause to receive benefits
A recent decision by the Federal Court of Appeal in Anne Cole v. AG will change how likely the Canadian Army and RCMP veterans are to receive disability benefits.
Anne Cole had served in the Canadian army for 20 years, was a ranked captain and had United Nations tours under her belt when she was released in 2007 for medical reasons, in part due to conditions of service.
During her service, Cole was diagnosed with three medical conditions, including depression and low iron.
"I was basically booted out because I had a condition," she said. "When they released (me), they were very, very deviant, because if you are released with three medical conditions, and they can list anything, then you are basically considered disabled and service is no longer required and (you are) put out to the curb, literally."
Many of her comrades were released with just one or two conditions check-marked in a list of three, which allowed them to quickly find other work while still receiving disability benefits, said Cole, whereas in her case, the task seemed implausible with only a clerk position on the table.
"The next day, they are working at the same level as a civilian... they have their $50,000 or $40,000 pension, plus they are getting a salary and they are disabled," she said. "I had a lot of friends, released medically and applied to get into the reserve force and I was denied, and I was furious."
Cold made three appeals to the Veterans Review and Appeal Board (VRAB), which denied her disability benefits each time.
"They were not going to pay for any treatment and any medication or anything. I was medically released and I was basically left with nothing," she said.
Cole did however have a regular pension that was automatically administered to all veterans who have served in the Canadian Army for 20 years, though she said the amount was not enough to pay for medical expenses out of pocket, with a family to support.
Cole learned she could take the issue up to the Federal Court, but she was rejected once again.
"The problem is because mine was depression and mental health (issue) and it’s all just coming on the radar right now," she said.
Law firm offers help
Following the rejection by the Federal Court, lawyers Stephen Acker and Yael Wexler at Fasken Martineau in Ottawa offered to take the case up to the Federal Court of Appeal pro bono.
"There are certainly a few cases that deal with mental illness," said Wexler. "The language of the act — that you can make an application for a disability pension for any injury or disease or aggravation thereof — that arose out of, or was directly connected to your military service, so it encompasses a broad range of physical and mental health injuries," she said.
"The important finding of the Federal Court of Appeal, which (reversed it), was to say, ‘When you have a mixture of causes’ the military one does not have to be a primary cause, it just has to be a significant cause... or not insignificant," said Acker.
The reason the Federal Court rejected Cole’s appeal during the judicial review, said Acker, was because there was a lot of case law underlining that in order to receive disability benefits, the main cause for disability had to come from service in the military. And for Cole, it was decided the illness came primarily due to family trouble.
In the Federal Court of Appeal, the lawyers were able to successfully prove Cole was in the right to receive a disability pension because, according to the Pension Act and Veterans Review and Appeal Board Act, she had to prove the illness was only "directly connected" to her service in the army rather than "arose out of" her time with the army. This very important provision was ignored in previous cases, which made up much of case law.
While the decision had a very fast turn-around time and disability awards were awarded, the amount was not in the spirit of what was recommended to Cole.
"They really didn’t want to give me anything, but they knew that they had to because of the Federal Court decision."
The award was two-fifths of the total that could have been awarded, which is the lowest possible amount, and Cole said she plans to contest it.
Influential ruling
The recent ruling has caused a stir in the veteran community, said Acker.
"The decisions that come out of that tribunal (VRAB) don’t make a whole lot of sense."
Veterans with unique or lesser known disabilities may have a harder time proving their case because the review board is not always sympathetic, he said.
"They are one of the tribunals that have been the most overturned by the courts," he added. "This is not a tribunal that has a lot of respect for the courts."
And most cases don’t even make it that far, said Cole. Internal politics, strict application cut-offs, stigma against mental illness and post-traumatic stress disorder prevent many veterans from pursuing their right to disability benefits she said.
In her experience, it was difficult enough to deal with the illness, let alone fight for disability benefits.
"I know Mental Health Commission of Canada is doing fabulous work, but it will take another whole generation before anything gets changed," she noted.
The decision has been sent back to the tribunal for a second review with a strong suggestion for the tribunal to have a more generous interpretation in mind.
"Our expectations and fond hope is that she will be awarded a pension and I think that the chances are very good," said Acker.
