A-244-74
The War Amputations of Canada (Applicant)
v.
The Pension Review Board and the Canadian
Pension Commission (Respondents)
Court of Appeal, Jackett C.J. and Pratte and Urie
JJ., Ottawa, February 26 and March 14, 1975.
Judicial review Whether Pension Review Board incorrectly
interpreted s. 26(2) of the Pension Act—Whether an interpre
tation under s. 81(3) of the Act a decision within the meaning
of s. 28 of the Federal Court Act—Whether "a decision ... of
an administrative nature not required by law to be made on a
judicial or quasi-judicial basis"—Pension Act, R.S.C. 1970, c.
P-7, ss. 26(1) and (2) and 81(3)—Federal Court Act, s. 28.
In response to an application under section 81(3) of the
Pension Act, the Pension Review Board interpreted section
26(1) and (2) of the Act as not empowering the Canadian
Pension Commission to enlarge the group of pensioners to
whom special benefits were given in 1938.
Held, setting aside the decision and referring the matter back
to the Board; the Board should be directed to interpret section
26(2) as authorizing the Commission to make the rule in
question with general application, provided it do so bona fide
only to instruct those to whom it is directed as to the extent of
disability to be estimated. (1) The Board's "interpretation" is a
decision within the meaning of section 28 of the Federal Court
Act. (2) What the Commission issues under section 26(2)
constitutes delegated substantive legislation regulating the
amount of pension awards; the proposed rule is one that may be
made under section 26(2) as long as it is based on views as to
the quantum of disability arising from injury resulting from
military service. Subsections 26(1) and (2) empower the Com
mission to adopt a policy of the kind under review and the
Board erred in expressing the opinion that it ought to have been
authorized by Parliament, and that any extension thereof must
be so authorized.
In re Danmor Shoe Company Ltd. [1974] 1 F.C. 22,
followed.
JUDICIAL review.
COUNSEL:
B. N. Forbes and J. D. Adam for applicant.
D. F. Friesen for respondents.
SOLICITORS:
Adam, Forbes, Singer, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: I agree with the disposition of
this matter proposed by my brother Urie and with
his reasons in so far as they deal with the power of
the Commission to make the section 26(2) instruc
tion proposed for the future. Having regard to the
complex nature of the matter I have decided to set
out, as briefly as possible, the reasoning whereby I
reach that result.
This is a section 28 application to set aside an
"interpretation" given on July 23, 1974, by the
Pension Review Board under section 81(3) of the
Pension Act,' by which it, in effect, interpreted
section 26(2) of that Act 2 as not authorizing the
Canadian Pension Commission to include in the
"instructions and ... table of disabilities" made
under that provision a clause reading as follows:
When a pensioner who is in receipt of a pension for a
disability or disabilities which carry a fixed assessment at the
rate of 50% or more in respect of an amputation, wound or
injury reaches the age of 55 years an additional 10% should be
added to his assessment, with a further 10% additional at each
of ages 57 or 59, subject to the limitation of three increases of
10% only, and an overall ceiling of 100%.
1 Section 81(3) reads as follows:
(3) The Pension Review Board shall entertain any request
for an interpretation of any provision of Parts III to VII of
this Act made by the Commission, the Chief Pensions Advo
cate or any veterans' organization incorporated by or under
any Act of the Parliament of Canada.
2 Section 26 reads as follows (in part):
26. (1) Subject to the provisions of section 12, pensions
for disabilities shall, except as provided in subsection (3), be
awarded or continued in accordance with the extent of the
disability resulting from injury or disease or aggravation
thereof as the case may be, of the applicant or pensioner.
(2) The estimate of the extent of a disability shall be
based on the instructions and a table of disabilities to be
made by the Commission for the guidance of physicians and
surgeons making medical examinations for pension purposes.
Before considering the application on its merits,
consideration must be given to the question wheth
er this Court has any jurisdiction in the matter. In
other words, a conclusion must be reached con
cerning the question whether an "interpretation"
given by the Pension Review Board under section
81(3) of the Pension Act is a "decision" that this
Court has jurisdiction to set aside under section 28
of the Federal Court Act. 3
An interpretation under section 81(3) is given
pursuant to a statutory direction that "The Pen
sion Review Board shall entertain any request for
an interpretation of any provision of Parts III to
VII ... made by the Commission, the Chief Pen
sions Advocate or any veterans' organization ..."
The jurisdiction of this Court depends, therefore,
in the first instance, upon an "interpretation"
given by the Board pursuant to such a request
being a "decision" within the meaning of that
word in section 28(1) of the Federal Court Act.
Secondly, assuming that such an "interpretation"
is such a decision, the jurisdiction of this Court
depends upon its being a decision "other than a
decision ... of an administrative nature not
required by law to be made on a judicial or
quasi-judicial basis". 4
3 Section 28(1) reads as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission- or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
4 No question has been raised as to whether there is a legal
duty imposed on the Board by section 81(3) to give an "inter-
pretation". In my view, it is clear enough that there is a duty on
the Board to give any "interpretation" requested as authorized
by that provision.
In considering whether an "interpretation"
given pursuant to section 81(3) is a "decision"
within the meaning of that word in section 28(1), I
think it must be recognized that the word "deci-
sion" in section 28(1) does not embrace everything
that falls within the meaning of the word "deci-
sion" in the broadest possible sense of that word.
For example, section 11.1(1) of the Pension Act
imposes a duty upon the Bureau of Pensions Advo
cates to give legal advice to applicants for pensions
and a pension advocate is, in the broadest sense of
the word, giving a decision (as to what, in his
opinion, are the legal rights of the applicant) when
he advises, as he is required by the statute to do;
and yet, clearly, in my opinion, legal advice so
given is not a "decision" within the meaning of
that word in section 28(1). At the other end of the
spectrum, section 23 of the Public Service Staff
Relations Act, in effect, imposes upon the Public
Service Staff Relations Board a duty to determine
certain questions of law or jurisdiction and, as it
seems to me, when that Board determines such a
question, it is giving a "decision" within the mean
ing of that word in section 28(1). I am not pre
pared at this stage to attempt to enunciate a rule
for determining where the line is to be drawn
between the two classes of decisions. It will be time
enough to attempt to enunciate such a rule when
there has been more experience in applying section
28(1). All that is necessary, for present purposes,
is to reach a conclusion as to the side of the line on
which a section 81(3) "interpretation" falls.
There is no doubt in my mind that a section
81(3) "interpretation" is a "decision" as to what
the particular provision interpreted means. The
difficulty of classifying it, from the point of view of
section 28(1), arises from the difficulty in reaching
a conclusion as to the legal effect of such an
"interpretation". If section 81(3) had no effect
except to make the Board a bureau for giving legal
advice to the bodies mentioned therein, clearly, in
my view, section 81(3) interpretations would not
be decisions within section 28(1). However, in my
view, that is not the purpose or effect of section
81(3). Rather, section 81(3) creates a means
whereby problems concerning the interpretation of
the Pensions Act may be solved speedily and I am
satisfied that interpretations given pursuant there
to have legally binding effect, the extent of which
need not be determined for present purposes.' My
conclusion is, therefore, that, as a section 81(3)
"interpretation" has legally binding effect and is
the very thing provided for by section 81(3), it is a
"decision" within the meaning of that word in
section 28(1) of the Federal Court Act.
I turn to the question whether an interpretation
under section 81(3) is a decision other than "a
decision ... of an administrative nature not
required by law to be made on a judicial or
quasi-judicial basis". A section 81(3) interpreta
tion falls outside those words, in my view, if it is
either
(a) of a legislative nature, or
(b) of an administrative nature and is required
by law to be made on a judicial or quasi-judicial
basis.
In my opinion, the better view is that a section
81(3) interpretation is a decision of a legislative
nature (i.e., it is the equivalent of a regulation that
is given force as though it were in the statute) and,
for that reason, falls within section 28(1). How
ever, no firm opinion need be expressed on that
question because, if a section 81(3) interpretation
is not of a legislative nature, it is of an administra
tive nature, in which event, in my view, it falls
within section 28(1) for the reason indicated in the
next paragraph.
If an interpretation under section 81(3) is of an
administrative nature, in my view, it is required by
5 At the very least, they are binding upon the Commission
and the paying authorities and, it may be, they are also binding
on the Board itself and upon the Courts, subject always to their
being set aside under some such authority as section 28. If such
an "interpretation" is binding on the Board unless and until it
is set aside, it may be that the "interpretation" under attack in
this case would have been found, upon consideration, to be
valid by virtue of a prior "interpretation" given by the Board
under section 81(3) on May 15, 1973. This point was not,
however, taken before us and does not, therefore, have to be
considered. Had it been taken, there are indications that, upon
inquiry, it might have been found that the matter was kept
open and no final "interpretation" was given on the point at
that time. (See, e.g., Mr. Jutras' letter of May 15, 1974 (page
168): " ... this matter was not argued on April 3, 1973".)
law to be made on a judicial or quasi-judicial
basis. Section 81(4) 6 of the Pension Act makes
provision for regulations respecting the procedures
to be followed by the Board "in hearing" and
considering requests for such interpretations. This
makes it clear that Parliament requires such inter
pretations to be given only after affording interest
ed parties an opportunity to be heard and thus
requires that such interpretations be made on a
quasi-judicial basis.
My conclusion on the first question is, therefore,
that this Court has jurisdiction to dispose of this
section 28 application.
I turn to the substantive question raised by this
section 28 application.
As a preliminary to considering that question, it
should be explained that, in 1938, a first version of
the proposed rule set out in the second paragraph
hereof was added to the "instructions and ... table
of disabilities" that had, prior to that time, been
made under the provision in the Pension Act now
contained in section 26(2) thereof, but it was so
worded as to be limited to disabilities in respect of
amputations, wounds or injuries "due to, or arising
out of direct action with the enemy" and that,
when this matter came before the Board and this
Court, it was discussed as though the question was
whether the words "due to, or arising out of direct
action with the enemy" can be deleted by the
Commission from the rule as previously made by
it.' The question that has to be decided, and that
the Board should have decided, is more accurately
framed, in my view, as I have indicated in the
second paragraph hereof, viz:
6 Section 81(4) reads as follows:
(4) The Governor in Council may make regulations
respecting the procedures to be followed by the Pension
Review Board in hearing and considering requests for inter
pretation made under subsection (3).
7 There are references throughout the record to "ministerial"
approval obtained by the Commission before making various
versions of the rule at different times. As, however, there does
not appear to be any requirement or authority in the statute for
the Commission obtaining such approval, I do not see any way
in which such approval enters into a consideration of what the
Commission has authority to do in the future. It is not neces
sary to consider, for the purposes of this section 28 application,
whether consultation with the Minister in any way affected the
validity of what this independent Commission did in the past.
Can the Canadian Pension Commission, under
section 26(2) of the Pension Act, include in the
"instructions and ... table of disabilities" made
under that provision a clause reading as follows:
When a pensioner who is in receipt of a pension for a
disability or disabilities which carry a fixed assessment at
the rate of 50% or more in respect of an amputation,
wound or injury reaches the age of 55 years an additional
10% should be added to his assessment, with a further 10%
additional at each of ages 57 or 59, subject to the limita
tion of three increases of 10% only, and an overall ceiling
of 100%. s
It would seem obvious that, if the Commission
can, in the exercise of its powers under section 26,
make the rule in the form in which it was made in
1938, it can make it with the restriction deleted so
that it would apply not only where the pension was
for a disability in respect of an injury due to
"direct action with the enemy" but also where the
same disability was, otherwise, "attributable to or
was incurred during ... military service". What
the Board has held, however, in effect, as I under
stand it, is that the Commission did not have the
power under section 26 to make the present rule
and does not, therefore, have power to make it
with the limitation removed. 9 -If the Board is right
in this view, it would seem to follow that the effect
of its decision is that the present rule is void and
inoperative unless there is some law, to which we
have not been referred, giving legal effect to such
an ultra vires rule that has operated in fact for a
long time.
B In fact, the relevant part of the request made under section
81(3) was that
The Pension Review Board entertain an interpretation of
Subsection 26(1) and Subsection 26(2) of the Pension Act, to
the effect that the Commission is empowered to provide
Automatic Age Increases to former members of the Forces in
receipt of pensions for amputation or gunshot wound arising
from accident; ...
According to the Board, the present rule should, neverthe
less, be accepted as having legal effect because it has been in
operation in fact since 1938 but it cannot be broadened except
by Parliament.
Before reaching a conclusion that the rule as it
now stands is completely beyond the Commission's
powers under section 26, which conclusion would,
I gather, have very disturbing effects, consider
ation should be given to just what the Commission
does under section 26(2), and, for that purpose, it
is necessary first to outline very briefly the rele
vant part of the scheme of the Pension Act.
Section 12(1)(a) of the Pension Act requires
that, in respect of certain military service, pensions
shall be awarded "in accordance with the rates set
out in Schedule A" when the injury resulting in
the disability in respect of which the application
for pension is made was attributable to or was
incurred during such military service. Schedule A
sets out a table of pension rates that vary with,
among other things, "percentage of disability".
Applications for pension must be made to the
Commission 10 which must collect relevant material
and make inquiries" and then, if satisfied that an
applicant is entitled to an award, must "determine
the amount of the award payable"; ' 2 and such
award must be "in accordance with the extent of
the disability resulting from the injury". 13
Nowhere in the Act, as far as I have been able
to ascertain, do we find any express requirement
that the Commission is to have before it, when it
makes an award under section 63, a report of a
physician or surgeon. (That it should have such
reports was probably regarded as too obvious to
require special mention in the statute.) Neverthe
less, the only provision to be found in the Act
concerning the methods to be followed in relating
the amount of an award to the "extent of disabili
ty" resulting from "the injury" is to be found in
section 26(2), in the shape of authority that is
given to the Commission to issue "instructions and
10 Section 61.
Section 62.
12 Section 63(1)(a).
13 Section 26(1).
a table of disabilities" for the guidance of physi
cians and surgeons making medical examinations
for pension purposes. Section 26(2) provides fur
ther that "The estimate of the extent of a disabili
ty should be based" on such instructions and table.
While I find it somewhat odd that section 26(2)
provides that such instructions and table are to be
made by the Commission "for the guidance of
physicians and surgeons making medical examina
tions for pension purposes", nevertheless I think,
when the provision is read as a whole, section
26(2) must be taken as authorizing the Commis
sion to make instructions and a table of disabilities
of which account must be taken, as long as they
are outstanding, by the Commission itself when it
makes an award under section 63(1) as well as by
the medical officers who prepare the reports upon
the basis of which the Commission reaches its
decisions. 14 In other words, what the Commission
issues under section 26(2) constitutes delegated
substantive legislation regulating the amount of
pension awards, even though it does not operate in
the precise way in which we tend to think of
ordinary legislation operating.
What has to be considered, therefore, is wheth
er, having set up tables fixing percentages to oper
ate as commencement points in assessing disabili
ties in the cases of various classes of injuries, ' 5 the
Commission may add an instruction that, when a
pensioner reaches certain specified ages in the case
of certain classes of injuries, such percentages shall
be increased by certain specified amounts. 16
The Board, by its reasons, took the view, in
effect, that the rule as made in 1938 was ultra
14 It would seem clear that such instructions and table are
intended only as a commencement point for the normal case
and are not intended to put either the medical officers or the
Commission in a "strait jacket". See Article 2.03 of chapter 2,
which reads:
The Table of Disabilities exists only to assist the Canadian
Pension Commission and Medical Officers in fulfilling their
responsibilities. It does not offer final or absolute values.
15 The remainder of the document issued under section 26(2).
16 The proposed rule under consideration as the result of the
request for an "interpretation".
vires the powers conferred by section 26(2) on the
Commission because it was made to confer an
extra benefit on those who had been injured in the
face of the enemy.
Before this Court, counsel for the Government
took the view, in effect, that the rule now proposed
is ultra vires the section 26 powers of the Commis
sion because it awards a benefit for the disability
arising from advancing age and is not a rule for
assessing the disability arising from the injury
flowing from military service.
The applicant to this Court challenges the
proposition that the rule is ultra vires the section
26(2) powers of the Commission.
In my view, the Board erred in approaching the
matter by considering first whether the present
rule is valid containing as it does a limitation
restricting it to injuries sustained in the face of the
enemy. The only question that had to be decided
was whether the rule could be made with applica
tion across the board. In any event, in my view,
there is no evidence in the document issued by the
Commission under section 26(2) to support the
Board's conclusion that what the Commission
intended to do in 1938, when the rule was first
adopted, was to pay an extra benefit to persons
injured in the face of the enemy." On the face of
it, the rule adjusts the percentage of disability
arising from injury by reason of advancing age and
is, therefore, an assessing rule. There is some
outside evidence that would indicate that the rule
in question was based on medical advice that
experience showed that the quantum of disability
from serious injuries increased with advancing age.
There is, on the other hand, some outside evidence
that the rule was made to confer a benefit on
persons injured in the face of the enemy. I am not
sure that, even if the validity of the rule that was
first made in 1938 had to be decided, any of this
" Paragraph 5 of chapter 2 of that document may be ignored
because it is a mere recital of the decision that is being attacked
by this section 28 application.
secondary evidence as to the Commission's inten
tion should be looked at. 18
Whatever may be the status of the present rule,
in my view, the proposed rule is one that may be
made under section 26(2) as long as it is based on
views as to the quantum of disability arising from
injury flowing from military service.
In my view, therefore, the decision of the Board
attacked should be set aside and the matter
referred back to the Board with directions that it
should interpret section 26(2) as authorizing the
Commission to make the rule in question with
general application assuming that they do so bona
fide for the purpose of instructing how the extent
of a disability "resulting from injury . .. or aggra
vation thereof" should be estimated.
* * *
PRATTE J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside a decision of the Pension
Review Board (hereinafter called the Board), a
tribunal constituted under the provisions of the
Pension Act, R.S.C. 1970, c. P-7, (hereinafter
called the Act). In response to an application of
the applicant herein, made pursuant to subsection
81(3) of the Act, the Board interpreted subsections
26(1) and (2) of the Act as not empowering the
Canadian Pension Commission (hereinafter called
the Commission) to enlarge the group of pension
ers to whom special benefits were accorded in
1938.
18 I must say I have difficulty in conceiving how any group of
Commissioners could have been advised that the quantum of
disability would increase with age if the injury were sustained
from direct enemy action but not otherwise, but the question as
to the validity of the present rule or of this limitation in the
present rule was not raised by this section 28 application and I
express no view with regard thereto.
In order to appreciate the nature of the problem
posed it would be useful briefly to review the
scheme of the Act.
The Act established the Canadian Pension Com
mission as successor to the Board of Pension Com
missioners for Canada. Subsection 5(1) for pur
poses of this application sufficiently sets forth the
jurisdiction and powers of the Commission:
5. (1) Subject to this Act and any regulations, the Commis
sion has full and unrestricted power and authority and exclusive
jurisdiction to deal with and adjudicate upon all matters and
questions relating to the award, increase, decrease, suspension
or cancellation of any pension under this Act and to the
recovery of any overpayment that may have been made; and
effect shall be given by the Department and the Receiver
General to the decisions of the Commission.
Section 12, appearing in Part III of the Act,
confers entitlement to pensions on various classes
of persons, in accordance with scheduled rates, for
death, injury or disease, incurred in respect of
military service during World War I or World
War II.
Subsections (1)(a),(b),(c) and (g) thereof read
as follows:
12. (1) In respect of military service rendered during World
War I or during World War II and subject to the exception
contained in subsection (2)
(a) pensions shall be awarded in accordance with the rates
set out in Schedule A to or in respect of members of the
forces when the injury or disease or aggravation thereof
resulting in the disability in respect of which the application
for pension is made was attributable to or was incurred
during such military service;
(b) pensions shall be awarded in accordance with the rates
set out in Schedule B in respect of members of the forces who
have died when the injury or disease or aggravation thereof
resulting in death in respect of which the application for
pension is made was attributable to or was incurred during
such military service;
(c) no deduction shall be made from the degree of actual
disability of any member of the forces, who has served in a
theatre of actual war during World War I or during World
War II, on account of any disability or disabling condition
that existed in him prior to his period of service in either of
the aforesaid wars; but service by a member of the forces in a
theatre of actual war may only be counted for the purposes
of this paragraph when it has been rendered in the particular
war with reference to service in which pension has been
awarded; and no pension shall be paid for a disability or
disabling condition that, at the time he became a member of
the forces, was obvious or was recorded on medical examina
tion prior to enlistment;
(g) subject to the exception in paragraph (c) when a pension
has been awarded to a member of the forces who has served
in a theatre of actual war either during World War I or
World War II, it shall be continued, increased, decreased or
discontinued as if the entire disability had been incurred
during service; but service in a theatre of actual war may
only be counted for the purposes of this paragraph when it
has been rendered in the particular war with reference to
service in which such pension has been awarded.
Schedule A referred to in paragraph (a) of
subsection (1), prescribes the various classes of
pension numbering from 1 to 20. Each class
includes in it a range of percentage of disability
which appears to be found by reference to the
Table of Disabilities made by the Commission
pursuant to subsection 26(2) of the Act, although
there is nothing in the Act to confirm this impres
sion. For each class a percentage in round figures
is prescribed as the annual rate of pension. For
example, class 5 applies to a range of disability of
78% to 82%. The annual rate for this class is
stipulated as 80%. The annual amount payable in
each class for the pensioner, his spouse and
dependent children is also shown.
Subsections 26(1) and (2), which also appear in
Part III of the Act, were interpreted by the Pen
sion Review Board, and that interpretation is the
subject of this section 28 application. Those sub
sections read as follows:
26. (1) Subject to the provisions of section 12, pensions for
disabilities shall, except as provided in subsection (3), be
awarded or continued in accordance with the extent of the
disability resulting from injury or disease or aggravation there
of as the case may be, of the applicant or pensioner.
(2) The estimate of the extent of a disability shall be based
on the instructions and a table of disabilities to be made by the
Commission for the guidance of physicians and surgeons
making medical examinations for pension purposes.
The procedure for making an application for an
award and the determining of entitlement to, and
the amount of, an award is set out in Part VI of
the Act. Every application, in the first instance, is
made to the Commission as required by section 62.
After the application is disposed of by the Com
mission initially the first procedure available to a
dissatisfied applicant is to make another applica
tion, as of right to the Commission, and if after the
second decision the applicant is still dissatisfied,
the Commission may, in its discretion, consider a
further application.
By section 67 an applicant who is dissatisfied
with respect to the amount of any award granted
to him may request a hearing by two members of
the Commission and, if such request is granted,
the two Commissioners designated to preside at
the hearing may affirm or vary the decision of the
Commission as to the amount of the award.
Sections 68 to 72 inclusive, deal with the case of
an applicant who is dissatisfied with respect to his
entitlement to an award or whose award has been
cancelled or reduced by the Commission. Those
sections provide for the designation by the Chair
man of three members of the Commission as an
Entitlement Board to hear the applicant's case and
the procedure relating to the conduct of the
appeal, and the decision of the Entitlement Board.
An applicant who is dissatisfied with a decision
of an Entitlement Board or a decision of two
members of the Commission designated under
Section 67, may appeal the decision to the Pension
Review Board. This Board is independent of the
Commission and is composed of a Chairman and
four other members appointed by the Governor-in-
Council for fixed terms.
The requirement that the Board entertain a
request for the interpretation of any provision of
Parts III to VII of the Act is provided in subsec
tion 81(3). It was a request under this subsection
that led to the impugned interpretation. That sub
section reads as follows:
81. (3) The Pension Review Board shall entertain any
request for an interpretation of any provision of Parts III to VII
of this Act made by the Commission, the Chief Pensions
Advocate or any veterans' organization incorporated by or
under any Act of the Parliament of Canada.
As above noted an application was made by the
applicant herein that the Board entertain a request
for an interpretation of subsections 26(1) and (2)
of the Act. Its decision, rendered on July 23, 1974,
following a hearing held as a result of that request
is the subject matter of this application.
The request for interpretation was made on
April 10, 1974, and arose out of a "policy" 19
instruction of the Commission relating to automat
ic age increases in pension to certain classes of
pensioners embodied in the Table of Disabilities
and instructions of the Commission made under
the authority of section 26(2) of the Act.
It appears from the record that the policy was
first made a part of the Table with the approval of
the then Minister of Pensions and National Health
in 1938. Since then it has been amended from time
to time, each time apparently with Ministerial
approval. The present version of the policy was
adopted, it is said, after it was approved by the
Minister of Veteran's Affairs 20 on June 28, 1973,
and reads as follows:
When a pensioner who is in receipt of a pension for a disability
or disabilities which carry a fixed assessment at the rate of 50%
or more in respect of an amputation, wound or injury due to or
arising out of direct action with the enemy, reaches the age of
55 years, an additional 10% shall be added to his assessment,
with a further 10% additional at each of ages 57 and 59,
subject to the limitation of three increases of 10% each only,
and an overall ceiling of 100%.
Before dealing with the merits of the application
it is necessary to deal with the respondents' sub
mission that the impugned interpretation is not a
decision or an order within the meaning of section
28 of the Federal Court Act. In considering this
submission it is clear, I think, that the Pension
Appeal Board is a federal board, commission or
other tribunal within the meaning of those words
in the Federal Court Act. Jackett C.J. in In re
19 In its context, as will be seen, the policy instruction is more
in the nature of a regulation, rule or direction, a fact that was
conceded by counsel. It is for this reason that I have placed the
word policy in quotation marks at this point in my reasons, but
the word will be used hereafter without them, the true nature of
the use of the word being understood.
20 While it was said that the original policy instruction and
each subsequent change received ministerial approval before
being adopted by the Commission and inserted in the Table of
Disabilities and instructions, there is nothing in the statute
which requires that such prior approval be obtained and noth
ing turns on the fact that such approvals were obtained.
Danmor Shoe Company Ltd. [ 1974] 1 F.C. 22, at
pages 28 and 29, in determining the distinction
between a decision of a board, commission or other
tribunal in respect of something upon which it has
jurisdiction and a declaration by such a body in a
preliminary or interlocutory matter which is not a
final disposition of the issue before it, reasoned as
follows:
A decision that may be set aside under section 28(1) must,
therefore, be a decision made in the exercise or purported
exercise of "jurisdiction or powers" conferred by an Act of
Parliament. A decision of something that the statute expressly
gives such a tribunal "jurisdiction or powers" to decide is
clearly such a "decision". A decision in the purported exercise
of the "jurisdiction or powers" expressly conferred by the
statute is equally clearly within the ambit of section 28(1).
Such a decision has the legal effect of settling the matter or it
purports to have such legal effect. Once a tribunal has exer
cised its "jurisdiction or powers" in a particular case by a
"decision" the matter is decided even against the tribunal itself.
(Unless, of course, it has express or implied powers to undo
what it has done, which would be an additional jurisdiction.)
There is a clear difference between a "decision" by the Board
of something that it has "jurisdiction or powers" to decide and
a declaration by the Board as to the nature of the powers to be
exercised by it when it comes to make the decision that it has,
"jurisdiction or powers" to make. Once the Board decides'
something in a particular case that it has "jurisdiction or
powers" to decide, that decision has legal effect and the Board's
powers in regard to that question are spent. When, however, the
Board takes a position with regard to the nature of its powers
upon which it intends to act, that "decision" has no legal effect.
In such a case, as a matter of law, nothing has been decided.
Subsection 81(3) requires the Board to entertain
any request for an interpretation of any provision
of Part III to Part VII of the Act made, as here,
by any veteran's organization. While there is noth
ing specific in the Act, so far as I can see, to
indicate that an interpretation so made is final and
binding on all parties in all future cases, the
Board's decision is not simply a declaration but is
a decision in the exercise of powers expressly
conferred on it and, therefore, as such is suscept
ible to review on a section 28 application. To reach
the conclusion that it is not such a decision would
render an interpretation made under the subsec-
tion purposeless. 2 '
It was submitted by counsel for the respondent
that the test for determining the nature of the
decision in question is firstly, whether or not the
decision is final, or whether the tribunal has the
right to change its mind and secondly, whether or
not the decision has any legal effect. In his view,
the answer to both questions in respect of a deci
sion by the Board on an interpretation under sub
section 81(3) must be no.
After the interpretation has been given by the
Board, it must have a continuing legal effect and
be binding on the Commission and be applied by it
in administering the Act. That legal effect will
continue and, as it seems to me, will likely bind the
Board as well as the Commission until a Court, on
an application of this nature finds that the inter
pretation given was wrong. The respondents' argu
ments based on the two tests enunciated by counsel
must, therefore, in my view, fail.
Assuming that the decision required to be made
is "a decision or order ... of an administrative
nature" within the meaning of the words in subsec
tion 28(1) of the Federal Court Act, it next is
necessary to determine whether it is one required
to be made on a judicial or quasi-judicial basis.
Subsection 81(4) empowers the Governor-in-
Council to make regulations "respecting proceed
ings to be followed by the Pension Review Board
in hearing and considering requests for interpreta
tions made under subsection (3)." (The emphasis
is mine.) No such rules of procedure were made
although the Court was informed that the Board
had informal rules for the conduct of the proceed
ings. Nothing turns on this because clearly the
subsection contemplates that a hearing will be held
in dealing with the request. This shows that the
21 The use of the word "interpretation" in subsection 81(1) is
to be contrasted with its use in subsection 81(3). In the former
the "decision" which the Commission has to reach is with
respect to the disposition of an appeal from an award or an
entitlement. The "interpretation" which the Board is called
upon to make during the course of an appeal is not, it seems to
me, a final "decision" or order within the meaning of the words
in section 28, in the sense that the interpretation required by
subsection (3) is. However, it is unnecessary in this application
to decide whether or not such apparent distinction is well
founded.
decision was one required to be made on a judicial
or quasi-judicial basis.
Turning now to the substantive issue, the rele
vant part of the request to the Pension Review
Board for interpretation reads as follows:
TAKE NOTICE that the National Secretary of The War Amputa
tions of Canada, pursuant to Subsection 81(3) of the Pension
Act, requests:
(1) The Pension Review Board entertain an interpretation of
Subsection 26(1) and Subsection 26(2) of the Pension Act, to
the effect that the Commission is empowered to provide
Automatic Age Increases to former members of the Forces in
receipt of pensions for amputation or gunshot wound arising
from accident; and
(2) That in stating in its decision of May 15th, 1973, that
any extension of the Automatic Age Increase policy would
require legislation, the Board erred; and ...
The Board in rendering its decision in effect
held that the Commission under section 26 did not
have the power to make the present policy instruc
tion but, nevertheless, it should be accepted as
having legal effect because it has been in opera
tion, in fact, since 1938 but cannot be broadened
except by an Act of Parliament.
The applicant's position in this Court was that
the Pension Review Board erred in law in failing to
conclude that the restriction contained in the auto
matic age increase provision in the Table of
Disabilities limiting its application only to those
pensioners whose amputation, wound or injury was
due to or arose out of direct action with the enemy
was ultra vires in that the restriction contravened
the powers granted the Commission by section
26(2) of the Act.
It should first be observed, I believe, that the
purpose of the instructions and Table of Disabili
ties authorized by subsection 26(2) is "for the
guidance of physicians and surgeons making medi
cal examinations for pension purposes" in estimat
ing the extent of the applicant's disability. Thus, it
is of some interest to note the scheme of the Table
of Disabilities. Chapter 1 deals with an introduc
tion and definitions; chapter 2 gives general
instructions to the user; and in the following eight
een chapters general instructions are given to
physicians for dealing with particular kinds of
amputations, injuries and diseases and in each case
provides tables of assessments, expressed as per-
centages, for the disability of the particular appli
cant. It is in chapter 2 that the present policy is
found.
Counsel for the respondents argued, surprising
ly, that the whole policy instruction was ultra
vires, not merely the limitation of its application to
those pensioners whose disabilities arose or were
due to direct action with the enemy. His basis for
this submission was that nowhere in the Act is it
contemplated that entitlement may be found and
an award of pension made automatically because
of the attainment of a given age but the award
must be made, as required by section 26, in
accordance with the extent of the disability. In
support of this proposition he referred to Part VI
of the Act in which the procedure in applying for
and being awarded a pension and appealing there
from is set out. The sections in that Part when
read with subsection 26(1), in his submission,
clearly indicate that the Commission must make
an original award, and any change therein, on an
individual basis "in accordance with the extent of
the disability" and not automatically on the basis
of age without reference to whether or not the
disability of the pensioner upon reaching a given
age has actually changed.
I do not believe that the policy statement when
read with the guidelines immediately following the
statement in chapter 2 of the Table of Disabilities
supports the respondents' argument that the award
is automatic in the sense suggested. Paragraph 4 of
chapter 2 reads as follows:
4. The following guidelines for the application of the Auto
matic Age Increase policy continue to apply:
(a) The sole fact that a disability is not likely to go below
50% is not by itself a sufficient requirement for the granting
of an Automatic Age Increase.
(b) The Commission must be satisfied that the disability is
not likely to increase.
(c) When the assessment for a disability has been main
tained at the same level for 10 years or more, it may be
considered that the disability is not likely to increase.
(d) A pensioner with a disability or disabilities with a fixed
assessment within the range of 48% to 52% and whose
pension is therefore payable at the rate of 50%, is eligible for
consideration under the above policy. [The emphasis is
mine.]
Moreover, counsel conceded that while the files
of pensioners in receipt of pensions exceeding 50%
automatically come up for review upon their
attaining the ages of 55, 57 and 59, the increases
in pension are not granted automatically. The
pensioner either is medically examined or his docu
mented case history is completely reviewed at that
time and if the Commission is satisfied that the
guidelines in section 4 of chapter 2 of the Table of
Disabilities, as well as the criteria elsewhere in the
Table, have been met, it will increase his pension
award by 10%. The Court was informed that the
award of a pension has always been made by
expressing the degree of disability as a percentage.
Similarly disabled pensioners should, under this
system, receive, as nearly as possible, similar pen
sions. Such percentages, of necessity, are arbitrari
ly fixed by the Commission to give consistency in
the administration of the Act. The use of an
additional arbitrary percentage applicable to a
disability which the Commission determines, on
the advice of its medical advisers, has been wors
ened by advancing years complies, in my opinion,
with the only manner in which, logically, the Act
can be administered and in fact has, from its
inception, been administered.
To put it another way, the Table of Disabilities
provides an instruction to the Commission's medi
cal advisers to assist them in assessing the extent
of a pensioner's disability both in respect of his
original application for pension and subsequently
in assessing the extent of additional disability on
attaining specific ages. The final responsibility for
making the award is the Commission's and it may
or may not accept the physician's finding. There
fore, in my view, subsections 26(1) and (2)
empower the Commission to adopt a policy of the
kind herein under review and the Board was in
error, in my view, in expressing the opinion that it
ought to have been authorized by Parliament and
that any extension thereof must be so authorized.
However, I do not believe that a limitation in
the application of such a policy to those whose
disabilities are due to or arose out of direct action
with the enemy is authorized by those subsections
or by any other provisions in the Act. As will have
been observed, paragraphs 12(1)(a) and (b) pro-
vide for the award of pensions for the persons
referred to for death, injury or disease attributable
to, or incurred during military service. Paragraphs
(c) and (g) of that subsection apparently apply to
those who served "in a theatre of actual war" and
that phrase is defined in subsection 2(1) of the Act
as follows:
"service in a theatre of actual war" means
(a) any service as a member of the army or air force of
Canada in the period commencing August 14, 1914 and
ending November 11, 1918 in the zone of the allied armies
on the continents of Europe, Asia or Africa, or in any other
place at which the member has sustained injury or contract
ed disease directly by a hostile act of the enemy;
(b) any service as a member of the naval forces of Canada in
the period described in paragraph (a) on the high seas or
wherever contact has been made with hostile forces of the
enemy, or in any other place at which the member has
sustained injury or contracted disease directly by a hostile
act of the enemy; and
(c) any service as a member of the forces in the period
commencing September 1, 1939 and ending
(i) May 9, 1945, where the service was in any place
outside Canada, and
(ii) August 15, 1945, where the service was in the Pacific
Ocean or Asia,
or in any place in Canada at which the member has sustained
injury or contracted disease directly by a hostile act of the
enemy;
As can be seen, nowhere in that definition nor,
for that matter, elsewhere in the Act is the phrase
"due to, or arising out of direct action with the
enemy" used, nor is any authority granted to the
Commission, in determining entitlement to pension
or the amount of an award, to distinguish between
those persons whose disabilities were sustained as a
result of direct enemy action and those sustained
as a result of accident. The imposition of such a
limitation is, therefore, beyond the powers of the
Commission. However, since, as has already been
found, it does have power under the Act to make a
policy instruction without such a limitation, the
interpretation of the Board was in error and should
be set aside. The Board should be directed to
revise its interpretation of subsection 26(2) as
authorizing the Commission to make the rule in
question one of general application to those per
sons in receipt of pensions for disabilities carrying
a fixed assessment of 50% or more in respect of
amputation, wound or injury, provided its applica
tion will be only for the purpose of instructing
those to whom it is directed as to how the extent of
disability shall be estimated.
For the above reasons, I agree with the Order
proposed by the Chief Justice.
* * *
PRATTE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.