A-497-79
War Amputations of Canada (Applicant)
v.
Pension Review Board (Respondent)
Court of Appeal, Urie and Ryan JJ. and Kerr
D.J.—Ottawa, December 18, 1979 and January
25, 1980.
Judicial review — Application to review and set aside
decision of Pension Review Board's interpretation of s. 57 of
the Pension Act so as to exclude any unpensioned fraction of a
disability in determining entitlement to an exceptional
incapacity allowance — Whether Board erred in law — Pen
sion Act, R.S.C. 1970, c. P-7, ss. 12(1),(3.2), 57, 81.1 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside the
decision of the Pension Review Board whereby, pursuant to
section 81.1 of the Pension Act, in response to the request of
the applicant, the Board gave its interpretation of section 57 of
the Act. The applicant raised the issue as to whether the Board
erred in law by interpreting section 57 of the Act so as to
exclude an unpensioned fraction of a disability in determining
entitlement to an exceptional incapacity allowance or, in other
words, that only the pensionable parts of the fractionally-pen-
sionable disability may be considered in determining the exist
ence of exceptional incapacity within the meaning of section 57.
Held, the section 28 application is allowed. Section 1.1 of the
Act provides for a liberal construction of the Act to the end
that the obligation of the people and the Government of
Canada to provide compensation of those members of the
forces who have been disabled or have died as a result of
military service, may be fulfilled. Section 12 provides the basis
of an award of a pension on an aggravational or fractional basis
when the Canadian Pension Commission determines that a
medical condition or disability existing prior to enlistment was
aggravated during military service. Section 12(3.2) enables the
Commission to award an additional pension on a fractional
basis where it finds that as a consequence of a pensioned
disability the member of the forces suffers an additional dis
ability. Schedule A prescribes the various classes of pensions
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
section 26(2). Section 57(1)(a) provides that where a member
of the forces is in receipt of a pension in the amount set out in
Class 1 of Schedule A, i.e. 98-100%, he has fulfilled the first
condition necessary to qualify him for the exceptional incapaci
ty allowance. The difficulty in the interpretation of paragraph
(b) has led to this application. The submission of the applicant
is that for the purpose of determining whether the incapacity is
to be considered exceptional once the member of the forces has
attained a disability rating under Class 1 of Schedule A, the
composition of that disability rating is irrelevant; upon a causal
relationship being established between the disability for which
an applicant is in receipt of a pension and his claimed level of
incapacity, the full extent of the incapacity must be considered
in assessing the individual's exceptional incapacity application,
notwithstanding that one or more of the disabilities for which
he is in receipt of a pension may have been awarded on a
fractional or aggravational basis. Respondent's counsel says the
whole scheme of the Act makes it clear that pensions may only
be awarded for injury or disease arising out of military service
or for aggravations by such service of pre-existing injury or
disease. Section 57 is capable of rival constructions. That being
so resort must be had to the object or principle of the statute if
that can be collected from its language. Section 57 by its terms
represents a deliberate departure from the intention or principle
which prevails in the award of a pension. The section does not
authorize the award of an additional "pension". It authorizes
the payment of an "allowance" if certain conditions are ful
filled. Nothing in it indicates that it must be predicated only on
pensionable disabilities, nor, by the same token does it exclude
from the determination of "exceptional incapacity" that part of
the incapacity which is attributable to non-pensionable injury
or disease. In determining such incapacity the Commission
must take into account the matters referred to in section 57(2).
But it is not limited to these matters. Indeed, it is an error in
law to interpret subsection (2) as imposing such a limitation.
APPLICATION for judicial review.
COUNSEL:
Brian N. Forbes for applicant.
W. L. Nisbet, Q.C. and T. R. Giles for
respondent.
SOLICITORS:
Adam, Forbes, Singer, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
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 whereby, pursuant to section 81.1 of
the Pension Act, R.S.C. 1970, c. P-7, as amended,
in response to the request of the applicant herein,
the Board gave its interpretation of section 57 of
the Act. In The War Amputations of Canada v.
The Pension Review Board' this Court held that
interpretation decisions of this nature by the Board
were reviewable under section 28 of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
The relevant subsections of section 57 of the Act
read as follows:
57. (1) In addition to any other allowance or pension award
ed under this Act, a member of the forces who
(a) is in receipt of a pension in the amount set out in Class 1
of Schedule A, and
(b) is suffering an exceptional incapacity that is a conse
quence of or caused in whole or in part by such disability,
is entitled to an allowance in an amount determined by the
Commission, which allowance shall not be less than eight
hundred dollars per annum and not more than twenty-four
hundred dollars per annum.
(2) Without restricting the generality of paragraph (1)(b),
in determining whether the incapacity suffered by a member of
the forces is exceptional, account shall be taken of the extent to
which the disability for which he is receiving a pension has left
the member in a helpless condition or in continuing pain and
discomfort, has resulted in loss of enjoyment of life or has
shortened his life expectancy.
While the applicant in its memorandum of
points for argument raised a number of issues, it
seems to me they can all be condensed into the
single issue expressed by the respondent in its
memorandum, namely, whether or not the Pension
Review Board erred in law by interpreting
section 57 of the Pension Act so as to exclude any
unpensioned fraction of a disability in determining
entitlement to an exceptional incapacity allowance.
As the last of its points in issue the applicant
expressed the question before us in this way:
the validity of the specific ruling of the Pension Review Board
that only the pensionable parts of the fractionally-pensionable
disability may be considered in determining the existence of
exceptional incapacity within the meaning of section 57.
To understand the issues it is necessary to have
some understanding of the scheme of the Act. It
should first be noted that it is described as an "Act
to provide pensions to or in respect of members of
the ... Canadian naval, army and air forces."
Section 1.1 says that:
' [1975] F.C. 447.
1.1 The provisions of this Act shall be liberally construed
and interpreted to the end that the recognized obligation of the
people and Government of Canada to provide compensation to
those members of the forces who have been disabled or have
died as a result of military service, and to their dependants,
may be fulfilled.
Section 12 of the Act provides for the award of
pensions and in particular section 12(1)(a) 2 pro
vides the basis for an award of a pension on an
aggravational or fractional basis when the Canadi-
an Pension Commission (hereinafter called the
Commission) determines that a medical condition
or disability existing prior to enlistment was
aggravated during military service. The method
adopted to determine the aggravation is to assess
the total disability and to award a pension for it on
a fractional basis as a means of measuring the
degree of the disability attributable to military
service. Section 12(3.2) 3 enables the Commission
to award an additional pension on a fractional
basis where it finds that as a consequence of a
pensioned disability the member of the forces suf
fers an additional disability. In such circumstance
the Commission finds the consequential disability
is only partly consequential of the disability for
which he receives a pension.
Under the Act, a member of the forces (defined
by section 2(1) as being a person who has served in
the Canadian Forces or in the naval, army or air
forces of Canada or Newfoundland since the com
mencement of World War I) may attain a level of
pension of 100% as a maximum which, in effect,
2
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;
3
12....
(3.2) In addition to any pension awarded under this section a
member of the forces who is
(a) in receipt of a pension for a disability, and
(b) suffering an additional disability that is in whole or in
part a consequence of such disability
shall, on application, be awarded a pension in accordance with
the rates set out in Schedule A, in respect of that part of the
additional disability that is a consequence of the disability for
which he is in receipt of a pension.
represents a measurement of his disability as pro
vided under section 26 of the Act. Schedule A,
referred to in paragraph (a) of section 12(1)
supra, prescribes the various classes of pensions
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 section 26(2)
of the Act. 4 For each class a percentage in round
figures is prescribed as the annual rate of pension.
Thus, under Schedule A, Class 1 is for a range of
disabilities of 98-100%, for which the percentage
of pension to be paid annually is 100%.
This brief review of the scheme of the Act
brings us to the point where the issue before the
Court may be examined namely, the proper con
struction or interpretation to be given to section 57
of the Act.
It can be seen that by paragraph (a) of subsec
tion (1) of that section, when a member of the
forces is in receipt of a pension in the amount set
out in Class 1 of Schedule A, i.e. 98-100%, he has
fulfilled the first condition necessary to qualify
him for the exceptional incapacity allowance. The
difficulty arises in the interpretation of paragraph
(b) of section 57(1).
The policy of the Commission, arising out of its
interpretation of the section, is disclosed in a letter
from the Chairman of the Commission to the
Secretary of the applicant dated November 10,
1978, which is part of the record, the relevant
portion of which follows:
The current practice of the Commission is that only to the
extent that a disability was pensionable would account be taken
of the extent to which it contributed to the member's exception
al incapacity.
This policy was challenged by the applicant
when it requested an interpretation of section 57 of
the Act as it was permitted to do by section 81.1
4
26....
(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.
thereof. It is the Board's interpretation made pur
suant to that request which is attacked in this
section 28 application.
The problem arises where an applicant for an
exceptional disability allowance has attained a
Class 1 level of pension through the combined
result of grants of entitlement for a number of
disabilities, one or more of which may have been
awarded on a fractional or aggravational basis. To
illustrate the problem, the applicant in its memo
randum of fact and law set out the following
hypothetical case wherein a number of conditions
or disabilities have been pensioned resulting in a
total rate of pension provided for in Class 1 of
Schedule A to the Act. The applicant's example
was slightly amended, for ease of calculation, at
the suggestion of counsel for the respondent.
1) Amputation of left leg—below knee (attributable
to military service) 70%
2) Gunshot wound—right knee (attributable to
military service) 10%
3) Osteo-arthritis lumbar spine (1/5 consequential
on amputation of left leg, S.12 (3.2)) 20%
4) Right shoulder injury (1/5 consequential on
amputation left leg, S.12 (3.2)) 5%
5) Right ankle injury (1/5 consequential of amputa
tion of left leg) 5%
While the percentage of disabilities for which
entitlement may be granted may total 110%, as in
the example, or even a larger total percentage than
that, the actual payment for disability, pursuant to
sections 12 and 26, can never exceed the rate for
pension set out in Class 1 of Schedule A to the
Act. It may be further noteworthy, for the purpose
of understanding the policy of the Commission and
the interpretation given to section 57 by the Pen
sion Review Board, that the unpensionable frac
tions of disabilities 3), 4) and 5), namely four-
fifths of 100% in item 3), and four-fifths of 25% in
items 4) and 5), total 120%. It is the contention of
the respondent that only the pensioned part of the
disability may be considered in determining
whether or not the incapacity is considered to be
exceptional, and that no allowance for the unpen-
sioned part may be granted under the scheme of
the Act.
On the other hand, the submission of the appli
cant, in general terms, is that for the purpose of
determining whether the incapacity is to be con-
sidered exceptional once the member of the forces
has attained a disability rating under Class 1 of
Schedule A, the composition of that disability
rating is irrelevant. The applicant's view is "upon a
causal relationship being established in whole or in
part between the disability or disabilities for which
an applicant is in receipt of a pension, and his
claimed level of incapacity, the full extent of the
incapacity must be considered by the Canadian
Pension Commission in assessing the individual's
exceptional incapacity application, notwithstand
ing that one or more of the disabilities for which
he is in receipt of a pension may have been award
ed on a fractional or aggravational basis".
The Pension Review Board dealt with the
foregoing submissions in the following excerpt
from its reasons:
The second construction, that of the applicant, accepts the
premise that the extent of the incapacity is exceptional only to
the extent that it is related to the disability for which the
member is in receipt of a pension. It also accepts that "such
disability" in paragraph 57(1)(b) refers to the disability for
which the member is in receipt of a pension as determined in an
earlier interpretation (I-15).
The applicant argued that, in a Class 1 pensioner, once a
consequential relationship can be established between the mem
ber's exceptional incapacity and a fractional pensionable dis
ability the extent of the exceptional incapacity must be based
on the entire disability.
To suggest that once a consequential relationship can be
established between a disability fractionally pensionable and
the incapacity the full extent of the disability must be con
sidered in determining the exceptional nature of the incapacity
is to suggest that the member is in receipt of a pension for the
full extent of the disability.
Extensive reference was made to discounting or devaluing or
segregating the member's entitlement. Again, this assumes that
the member holds entitlement for the full disability. The rele
vant words are the following:
Section 57(1)(a) Class 1 pensioner
(Schedule A)
Section 57(1)(b) such disability
Section 57(2) disability for which he is in receipt
of a pension.
It should be observed that the word "disability" is used in
conjunction with Schedule A of the Pension Act and that it has
a specific meaning in this context. It means the loss or lessening
of the power to will and to do any normal, mental or physical
act as a result of injury or disease or aggravation thereof.
The wording of subsection 57(2) makes it mandatory, in
determining if the incapacity is exceptional, that account shall
be taken of the disability from injury, disease or aggravation
thereof for which the member is receiving a pension.
It follows that a member in receipt of a pension on a
one-fifth aggravation basis is not in receipt of a pension for the
non-service-related disability but is in receipt of a pension for
an aggravation of the disability. "Such disability" in subsection
(1) refers to the disability which made him a Class 1 pensioner
and the disability for which he is in receipt of a pension is not
the non-service-related disability but its aggravation. If a
member is a Class 1 pensioner by virtue of aggravations of
non-service-related disabilities, he is in receipt of a pension for
the aggravations of the disabilities and subsection 57(2) states
that account shall be taken of the extent to which the aggrava
tions contributed to his incapacity. This merely gives the word
ing of subsection 57(2) its ordinary meaning and is fully
compatible with the scheme of the Act. Under section 26, only
the aggravation is assessed. The same is true of subsection
12(3.2) in cases where the primary entitlement is held on an
aggravation basis. The consequential award is then made on an
aggravation basis. Similarly paragraph 12(1)(c) states
categorically: "No pension shall be paid for a disability or
disabling condition that at the time he became a member was
obvious or was recorded on medical examination prior to
enlistment".
Reference was made to a possible conflict between the
Canadian Pension Commission construction of section 57 and
the wording of section 26.1. The basic requirement of section
26.1 is that the member be a pensioner. He can be any one of
the 20 classes of pensioner. This issue was resolved by Interpre
tation I-16 (1976 PRBR 1). Section 57 requires that he be a
Class 1 pensioner. The basic requirement is the same: in both
cases he must be a pensioner. The difference is merely one of
two different requirements and raises no conflict.
The third construction, that of the Canadian Pension Com
mission, on which its policy statement is based, is that only to
the extent that a disability is pensionable is account taken of
the extent to which it contributed to the member's exceptional
incapacity. In the view of this Board, as appears from what has
been said, such a construction is the correct one.
Let it first be said that the Board was, in my
opinion, clearly wrong when it held in its interpre
tation of subsections (1) and (2) of section 57 that
regard must first be had to subsection (2) and that
"it is only after this determination has been made
that the operative section of subsection (1) can
take effect." Such an interpretation restricts the
breadth of the application of subsection (2), viz.,
"Without restricting the generality of paragraph
(1)(b)...".
As I see it, the only way the Board's view of the
function of subsection (2) could be maintained
would be to ignore those words. But they cannot be
ignored. They are vital. Among other things, they
mean that the subsection is not to restrict the
scope of the term "exceptional incapacity" for that
would be to restrict the generality, the "reach", of
subsection (1)(b). Their presence, in fact, points to
Parliament's intention that, in determining wheth
er the incapacity suffered is exceptional, certain
objective tests must be taken into account. These
tests are not, however, to be read as restricting the
general requirement of subsection (1)(b), which is
that exceptional incapacity is to be determined by
whatever criteria are relevant. The purpose of
subsection (2) is to make clear that account must
be taken of the matters mentioned, along with
other relevant factors, in determining whether an
incapacity is exceptional.
However, this error does not of itself invalidate
the Board's ultimate view as to the interpretation
of section 57(1). The difficulty in interpreting the
provision is caused by the somewhat obscure word
ing of paragraph (b). The words "such disability"
appearing at the end of the paragraph are without
grammatical antecedent. It is common ground that
they refer to Class 1 of Schedule A disabilities as
referred to in paragraph (a) of the section, and I
think that this is the correct view.
Still, that does not end the matter. As has been
already noted, a 100% disability pension may be
composed of one or more fractional awards for
aggravations of conditions which were not wholly
occasioned by military service or were consequen
tial only in part on disabilities incurred during
military service. The contention of the applicant is
that, once the 100% pension has been awarded, no
account need be taken of the composition of the
disabilities leading to the 100% pension award for
the purpose of determining whether or not an
applicant is entitled to an allowance for exception
al incapacity under section 57. The applicant sub
mitted that the Parliamentary intention that this
be so is shown by the use in the section of the word
"incapacity" rather than "disability" and of the
word "allowance" rather than "pension"; both of
these words are used for precise purposes through-
out the other sections of the Act. It was also
submitted that an applicant for an exceptional
incapacity allowance must firstly satisfy the Com
mission that he is a Class 1 pensioner and, second
ly, that the claimed exceptional incapacity is a
consequence of or caused in whole or in part by the
disabilities for which he is in receipt of the Class 1
pension.
On the other hand, respondent's counsel says the
whole scheme of the Act makes it abundantly clear
that pensions may only be awarded for injury or
disease arising out of military service or for aggra
vations by such service of pre-existing injury or
disease. He points to sections 12(1) and (2) and
26(1) in particular, in support of this contention.
In his submission, as stated in his memorandum of
points to be argued, he says that:
11. Section 57 does not provide access to additional compensa
tion to every pensioner who suffers exceptional incapacity.
A member of the forces may be pensioned at less than
100% but nevertheless suffer exceptional incapacity caused
by fully pensioned and partly pensioned disabilities. Such
members are excluded from the operation of Section 57
even though their pensioned disability may be assessed as
high as 90% and may have contributed substantially to his
incapacity. It is therefore clear that the purpose of Section
57 is to provide compensation for a member of the Forces
in excess of that provided in Schedule A of the Act.
12. a) To be entitled to an allowance based on exceptional
incapacity, a member of the Forces must be
i) in receipt of a Class I pension;
ii) suffering an exceptional incapacity that is a conse
quence of or caused in whole or in part by a disabili
ty for which he is receiving the Class I pension.
b) In determining the existence of exceptional incapacity,
the Commission must take account of the extent to which
the disability for which he is receiving a pension has left
the member in a helpless condition or in continuing pain
and discomfort, has resulted in loss of enjoyment of life or
has shortened his life expectancy.
13. The opening words of subsection 57(2) make it clear that
the factors set out in (b) above are not the only factors
that may be considered by the Commission in determining
the existence of exceptional incapacity. These words
cannot be relied upon to support the contention that the
Commission must include consideration of any disability
or unpensioned fraction thereof not attributable to military
service.
The words "exceptional incapacity that is a consequence of
or caused in whole or in part ..." in paragraph 57(1)(b)
indicate that exceptional incapacity may be a consequence
of or caused "in part" by the disability for which a Class I
pension has been awarded. These words cannot be con
strued to mean that the unpensioned part or degree of a
disability must be considered in determining whether the
incapacity is exceptional.
There can be no question that the legislative
scheme is important in interpreting a particular
section of a statute. In that connection in the
recent decision of the Supreme Court of Canada in
The Queen v. Compagnie Immobilière BCN
Limitée', Pratte J. had this to say:
One of the most important rules to be followed in the
interpretation of a particular provision of a statute was
expressed as follows by Lord Herschell in Colquhoun v. Brooks
((1889), 14 A.C. 493), at p. 506:
It is beyond dispute, too, that we are entitled and indeed
bound when construing the terms of any provision found in a
statute to consider any other parts of the Act which throw
light upon the intention of the legislature and which may
serve to shew that the particular provision ought not to be
construed as it would be if considered alone and apart from
the rest of the Act.
And, in Canada Sugar Refining Company, Limited v. The
Queen ([1898] A.C. 735), Lord Davey said at p. 741:
... Every clause of a statute should be construed with
reference to the context and the other clauses of the Act, so
as, so far as possible, to make a consistent enactment of the
whole statute or series of statutes relating to the
subject-matter.
In an earlier judgment of the Supreme Court in
McBratney v. McBratney, 6 Duff J., as he then
was, enunciated the principle of construction in the
following way:
Of course where you have rival constructions of which the
language of the statute is capable you must resort to the object
or principle of the statute if the object or the principle of it can
be collected from its language; and if one find there some
governing intention or governing principle expressed or plainly
implied then the construction which best gives effect to the
governing intention or principle ought to prevail against a
construction which, though agreeing better with the literal
effect of the words of the enactment runs counter to the
principle and spirit of it; for as Lord Selborne pointed out in
Caledonian Railway Co. v. North British Railway Co. (6 App.
Cas. 114), that which is within the spirit of the statute where it
can be collected from the words of it is the law, and not the
very letter of the statute where the letter does not carry out the
object of it. See Cox v. Hakes (15 App. Cas. 506 at p. 517);
Eastman Co. v. Comptroller General ([1898] A.C. 571, at p.
575).
Section 57 is, of course, as counsel have argued,
capable of rival constructions. That being so resort
5 [1979] 1 S.C.R. 865 at p. 872.
6 (1919) 59 S.C.R. 550 at p. 561.
must be had to the object or principle of the
statute if that can be collected from its language.
In the case of the statute here in question, the
Pension Act, I think that it can. Its principal
sections have already been referred to earlier in
these reasons. To those I would only add the
definition of "disability" and "pension" found in
section 2, reading as follows:
2. (1) ...
"disability" means the loss or lessening of the power to will and
to do any normal mental or physical act;
"pension" means a pension payable under this Act on account
of the death or disability of a member of the forces and
includes an additional pension, temporary pension or final
payment payable under this Act to or in respect of a member
of the forces;
No definitions of either "incapacity" or of
"allowance" appear in the statute and those two
words are conspicuously present and important
words in section 57.
There is no question that sections 12(1), 12(2)
and 12(3.2) make it abundantly clear that pen
sions are awarded to members of the forces who
suffer from injury or disease or aggravation there
of resulting in a pensionable disability if they were
attributable to or incurred during military service
rendered during World War I or World War II.
Section 26, as previously noted, verifies that the
award of pension will be made in accordance with
the extent of the disability resulting from such
injury or disease or aggravation thereof. The
scheme, thus, is to ensure that pensions are pay
able only in respect of that portion of a disability
which is attributable to military service. Further
more, the scheme is, in fact, followed in the award
of pensions for various disabilities, based on injury
or disease suffered wholly as a result of military
service and, on a fractional basis, as a result of
aggravation of a pre-existing condition arising
from military service or a condition arising in part
as a consequence of injury or disease incurred
during military service. The hypothetical case
given earlier herein illustrates the kind of mix of
disabilities which may occur.
In my view, section 57 by its terms represents a
deliberate departure from the intention or princi
ple which prevails in the award of a pension. The
section does not authorize the award of an addi
tional "pension". It authorizes the payment of an
"allowance" if certain conditions are fulfilled.
Nothing in it indicates that it must be predicated
only on pensionable disabilities, nor, by the same
token, does it exclude from the determination of
"exceptional incapacity" that part of the incapaci
ty which is attributable to non-pensionable injury
or disease.
It is my opinion that the language used indicates
that Parliament intended by the enactment of this
section to provide an allowance to those veterans
who are in receipt of a 100% pension, if the
applicants for the allowance can demonstrate their
entitlement by showing that the disability or
accumulation of disabilities for which they receive
the pension results in exceptional incapacity; and
that their incapacity is a consequence of, or is
caused in whole or in part by, the pensioned
disability or accumulation of disabilities. In deter
mining such incapacity the Commission, of course,
must take into account the matters referred to in
section 57(2). But it is not limited to these mat
ters. Indeed, it is an error in law to interpret
subsection (2) as imposing such a limitation.
Such an interpretation is not strained. It flows
naturally from the words used and, moreover,
follows the mandate given in section 1.1 (set out
earlier in these reasons) that "The provisions of
this Act shall be liberally construed and interpret
ed ..." for the reasons therein stated. Neither does
it represent a failure to recognize the rule enun
ciated by Duff J. in the McBratney v. McBratney
case, supra, since obviously that rule only applies
if a contrary intention does not appear in the
statute. In my view, a contrary intention does
appear since, as stated above, I believe that section
57 represents a departure from the principle which
prevails in the award of a pension.
On the other hand, to accept the argument
advanced by counsel for the respondent requires an
interpretation of the words "in part" which is not
natural. It calls for the conclusion that the unpen-
sioned part of a disability must be disregarded in
determining whéther the incapacity is exceptional.
I do not believe that the words are capable of such
a construction. It would require that the scheme of
the Act in respect of the award of pensions,
namely, that they be awarded only in respect of
injury or disease or the aggravation of an injury or
disease incurred during military service must pre
vail in deciding whether an incapacity is exception
al despite the plain meaning of the words in para
graph (a) of subsection 57(1) which requires only
that the applicant be the recipient of a Class 1
pension.
The logic in requiring different considerations to
be applied in determining exceptional incapacity
is, I think, unassailable. A member of the forces
who is receiving a 100% pension, no matter what
the composition of the disabilities whereby such a
level is awarded, is either exceptionally inca
pacitated by those disabilities or he is not. He
merely has to show the consequential relationship
between the incapacity and the sum of his disabili
ties, each of which has already had the unpension-
able part excluded from it. To repeat the process
of exclusion would, in my view, not be consonant
with the meaning of the section or with the liberal
interpretation of the statute required by section
1.1. Exceptional incapacity must include incapaci
ty occasioned in part by the aggravation of a
pre-existing injury or disease, or which is, in part
but not wholly, a consequence of a pensioned
disability which is itself wholly due to military
service.
Accordingly, I would grant the section 28
application and set aside the decision of the Pen
sion Review Board dated July 23, 1979 and direct
the Board to interpret section 57 of the Act in
accordance with these reasons.
* * *
RYAN J.: I agree.
* * *
KERR D.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.