Ewing v. Canada ( Veterans Review and Appeal Board )
T-511-96
Gibson J.
15/10/97
8 pp.
Judicial review of Veterans Review and Appeal Board decision applicant not entitled to pension under Pension Act, s. 21(2) because disability neither arising out of nor directly connected with military service in peace time-Applicant serving as military policeman with Royal Canadian Air Force in West Germany in 1965-Seriously injured in automobile accident-Board of Inquiry finding not on duty at time-In 1993 claiming pension based on disabilities resulting from injuries sustained in accident, alleging injuries arising out of or directly connected with "military service in peace time"-Veterans Review and Appeal Board holding pension entitlement could only be granted if claimed conditions arose out of or were directly connected with military service in peacetime, but since applicant not on duty at time of incident pension entitlement could not be granted-Pension Act, s. 21(2)(a) providing in respect of military service in peace time where member of forces suffers disability resulting from injury arising out of or connected to such military service, pension shall be awarded-Application allowed-Board citing proper test, but ignoring it-Whether applicant on duty not test-Test whether injuries leading to disability arising out of or directly connected with military service in peace time-Board apparently not considering s. 21(3)(f), whether injuries arising out of training or administration as result of specific order or established military custom or practice-Given error regarding appropriate test, s. 21(3)(f), Board never considering interpretive obligations imposed by Pension Act, s. 2, Veterans Review and Appeal Board Act, ss. 3, 39-Veterans Review and Appeal Board Act, s. 31 providing decision final, binding-Relatively weak privative clause-In face of privative clause, Court's review jurisdiction restricted to errors going to jurisdiction or decisions so patently unreasonable construction cannot be rationally supported by relevant legislation-Board's error in adopting wrong test to determine pension entitlement jurisdictional-In refusing to examine question of whether applicant's disability resulting from injuries arising out of or directly connected with military service in peace time, considering Pension Act, s. 21(3)(f), Board failing to consider evidence before it and relevant provisions of law in accordance with interpretive obligations imposed by Pension Act, s. 2, Veterans Review and Appeal Board Act, ss. 3, 39-Pension Act, R.S.C., 1985, c. P-6, ss. 2, 21 (as am. by S.C. 1990, c. 43, s. 8)-Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ss. 3, 31, 39.