Thomson v. Canada (Attorney General)

Thomson v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-08-18
Neutral citation
2015 FC 985
File numbers
T-2012-14
Notes
Digest
Decision Content
Date: 20150818
Docket: T-2012-14
Citation: 2015 FC 985
Ottawa, Ontario, August 18, 2015
PRESENT: The Honourable Mr. Justice Gascon
BETWEEN:
ROBERT JAMES THOMSON
Applicant
And
CANADA (ATTORNEY GENERAL)
Respondent
JUDGMENT AND REASONS
I. Overview [1] On October 30, 1991, the applicant Mr. Robert James Thomson was a civilian passenger on a Canadian Forces aircraft flying over the Northwest Territories. He was on duty as an employee of the Department of National Defence involved in the management of retail outlets serving members of the Canadian Forces. The plane crashed. Mr. Thomson survived but he was very seriously injured in the accident. He became paraplegic, suffered multiple amputations due to frostbite developed while awaiting rescue for 30 hours, and eventually developed post-traumatic stress disorder.
[2] Mr. Thomson elected to be compensated for his injuries under the Flying Accidents Compensation Regulations, CRC, c 10 [FAC Regulations or FACR]. The FAC Regulations were adopted under the Aeronautics Act, RSC 1985, c A-2 and prescribe compensation for bodily injury or death resulting from flights undertaken by civilian employees of the federal government in the course of their duties. In his application for entitlement, Mr. Thomson requested both a pension and, because of his high degree of disability, an assessment for special allowances, including an attendance allowance, a clothing allowance and an exceptional incapacity allowance [the Exceptional Incapacity Allowance].
[3] The Department of Veterans Affairs awarded Mr. Thomson a pension but denied his entitlement to the attendance and clothing allowances as well as to the Exceptional Incapacity Allowance, as these special allowances were found not to be included in the compensation scheme for FACR pensioners. Mr. Thomson appealed the decisions refusing the special allowances, first to the Entitlement Review Panel of the Veterans Review and Appeal Board [VRAB], and then to its Entitlement Appeal Panel. In all cases, Mr. Thomson’s requests were denied as both instances of the VRAB concluded that entitlement to the special allowances arose under specific portions of the Pension Act, RSC 1985, c P-6 and had not been included in the list of benefits available to civilian pensioners under the FAC Regulations.
[4] This is an application for judicial review of the decision made in August 2014 by the Appeal Panel finding Mr. Thomson ineligible for the Exceptional Incapacity Allowance. Mr. Thomson contends that the Appeal Panel erred in its interpretation of the FAC Regulations and in concluding that he was not allowed to claim the Exceptional Incapacity Allowance. He further submits that the Appeal Panel’s interpretation of the FAC Regulations infringes his rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11[Charter], thereby discriminating against him on the basis of his severe disability. Mr. Thomson is asking the Court to set aside the Appeal Panel decision and to return it to the VRAB with guidance regarding the interpretation of the FAC Regulations, or to declare that the Appeal Panel’s interpretation results in discriminatory treatment in violation of section 15 of the Charter and to direct the Panel to adopt an interpretation that complies with the Charter.
[5] In response, the Attorney General of Canada submits that the Appeal Panel’s decision is reasonable in this case, both with respect to its interpretation of the relevant legislation and regulations and in its assessment of Mr. Thomson’s Charter claim. The Attorney General asks the Court to dismiss Mr. Thomson’s application without costs.
[6] This application raises three issues:
What is the applicable standard of review? Did the Appeal Panel unreasonably interpret and apply the FAC Regulations in concluding that Mr. Thomson was not allowed to claim the Exceptional Incapacity Allowance? Did the Appeal Panel commit a reviewable error in denying Mr. Thomson’s Charter claim and in concluding that not having access to the Exceptional Incapacity Allowance was not discriminatory?
[7] For the reasons that follow, while I sympathize with Mr. Thomson and his dramatic circumstances, I must dismiss the application. I cannot conclude that the Appeal Panel’s decision regarding the interpretation of the FAC Regulations was unreasonable or that its disposition of Mr. Thomson’s claim resulted in a discriminatory treatment in violation of section 15 of the Charter. I acknowledge that Mr. Thomson raises numerous valid concerns regarding the treatment of his claim for compensation when compared to the treatment received by members of the Canadian Forces in similar situations. However, this is something that only Parliament and the legislature, not this Court, can ultimately address.
II. Background [8] Mr. Thomson’s ordeal and story is an exceptional one. He is the one and only civilian survivor of a qualifying airplane accident to apply for compensation under the FAC Regulations. His total pensionable assessment resulting from his injuries was 181%, including 100% for paraplegia, 56% for amputations and 25% for post-traumatic stress disorder. He was awarded a pension with a disability assessment of 156%, but no other allowances.
[9] For several years, Mr. Thomson has been involved in various and lengthy proceedings with the VRAB and the Department of Veterans Affairs in order to obtain what he feels should be the proper compensation for his losses, both pecuniary and non-pecuniary. In essence, Mr. Thomson contends that the narrow approach taken by the VRAB in interpreting the FAC Regulations results in a profound injustice and inequality: severely disabled civilian pensioners like him end up receiving the same compensation as moderately disabled civilian pensioners and are denied the additional amounts that are otherwise awarded to severely disabled pensioners from the Canadian Forces. This is particularly unfair in his case, says Mr. Thompson, as he suffered his massive injuries in the exercise of his duties as a civilian providing support services to the Canadian military.
[10] In fact, as Mr. Thomson ably presented it at the audience before this Court, the Appeal Panel’s approach means that Mr. Thomson is not receiving the level of compensation that he would have likely received under numerous other organized schemes compensating for personal injury in Canada, all of which include provisions covering both pecuniary and non-pecuniary losses. In that respect, Mr. Thomson referred to tort law, to the workers’ compensation legislations, to the Government Employees Compensation Act, RSC 1985, c G-5, and to the provisions covering Canadian Forces pensioners under the Pension Act.
[11] He asserts that it cannot have been Parliament’s intention to compensate civilian FACR pensioners injured in the service of their country differently from similarly disabled Canadian Forces pensioners who are covered by the Pension Act.
A. The legislative framework [12] Mr. Thomson’s application essentially raises issues of legislative interpretation, so it is important to first discuss and summarize the relevant legislative and regulatory provisions. The main elements are found in the FAC Regulations and the Pension Act.
[13] The FAC Regulations apply to civilian victims of airplane accidents. They were adopted to prescribe compensation for bodily injury or death resulting from flights undertaken in the course of duty by persons employed in the public service of Canada who are not members of the Canadian Forces. Conversely, the compensation regime for members of the Canadian Forces is elaborated in the Pension Act. The Court observes that, by choosing to be compensated under the FAC Regulations, a federal government employee becomes ineligible to receive benefits or compensation under any other act, regulation or order.
[14] Section 3 of the FAC Regulations describes the type of compensation made available to civilian victims of a flying accident. It reads as follows:
3. (1) Subject to subsections (2) and (3) and section 4, where
3. (1) Sous réserve des paragraphes (2) et (3) et de l’article 4, dans le cas
(a) an employee dies or is injured as a direct result of a non-scheduled flight undertaken by him in the course of his duties, or
a) d’un employé qui décède ou est blessé en conséquence directe d’un vol non régulier entrepris par lui dans l’exercice de ses fonctions, ou
(b) a civil aviation inspector dies or is injured as a direct result of any flight undertaken by him for the purpose of determining the competency of flight crew personnel, inspecting commercial air operations or monitoring in-flight cabin procedures in use in commercial air operations,
b) d’un inspecteur de l’aviation civile décédant ou étant blessé par suite d’un vol qu’il a entrepris pour contrôler les capacités professionnelles d’un équipage, pour inspecter une exploitation aérienne commerciale ou pour surveiller, en vol, le personnel navigant d’une telle exploitation,
compensation is payable for his death or injury in an amount equal to the pension that would have been awarded to or in respect of him in accordance with the rates set out in Schedule A or B to the Pension Act, whichever is applicable, as increased by virtue of Part V.1 of that Act, if his death or injury had arisen out of or was directly connected with military service in peace time.
une indemnité est payable à l’égard de son décès ou de ses blessures, et le montant de l’indemnité est égal à la pension qui aurait été accordée à lui-même ou à son égard, conformément aux taux indiqués aux annexes A ou B de la Loi sur les pensions, selon le cas, augmentée en vertu de la Partie V.1 de ladite Loi, si son décès ou ses blessures avaient été causés au cours de son service militaire en temps de paix ou avaient été reliés directement à un tel service.
[…]
[…]
[15] Under the FAC Regulations, the compensation payable to Mr. Thomson is therefore specifically defined as “an amount equal to the pension that would have been awarded” to him if his injuries had arisen out of military service in peace time. However, while “pension” is not defined in the FAC Regulations, section 3 indicates that the amount of such pension is equal to what would have been awarded “in accordance with the rates set out in Schedule A or B [now Schedule I or II] to the Pension Act, whichever is applicable”. Schedule I refers to the scale of pensions for disabilities, whereas Schedule II deals with pensions for death. The FAC Regulations are silent as to the application of other forms of allowances to flying accidents pensioners covered by these regulations.
[16] The Pension Act is a federal legislation adopted to provide pensions and other benefits to members of the Canadian Forces. It was designed specifically for the members of the military and does not apply to non-military pensioners. The pensions and benefits offered vary depending on the specific type of military service, status as prisoner of war, age and other factors. A specific part, namely Part III, deals with pensions, including pensions for disabilities or for death, whereas another one, Part IV, relates to the Exceptional Incapacity Allowance. For the purposes of this application, the relevant provisions of the Pension Act are the definitions contained in section 3 and the Schedules I and II (formerly Schedules A and B) to which section 3 of the FAC Regulations specifically refers. Also worth mentioning are sections 38 and 72 describing certain types of compensation available to members of the Canadian Forces.
[17] The relevant definitions contained in section 3 of the Pension Act read as follows:
3. (1) In this Act,
3. (1) Les définitions qui suivent s’appliquent à la présente loi.
[…]
[…]
“award” means a pension, compensation, an allowance or a bonus payable under this Act;
[…]
« compensation » Pension, indemnité, allocation ou boni payable en vertu de la présente loi.
[…]
“pension” means a pension payable under this Act on account of the death or disability of a member of the forces, including a final payment referred to in Schedule I;
« pension » Pension payable en vertu de la présente loi en raison du décès ou de l’invalidité d’un membre des forces, y compris un paiement définitif visé à l’annexe I.
[…]
[…]
[18] The Court observes that, in the Pension Act, “award” includes more than only a “pension”, and covers notably a pension, compensation and an allowance. “Pension” refers to a pension payable on account of death or disability, while Schedules I and II to the legislation respectively set out the scale of “pension” payable for disability or for death, as the case may be. Although there is no definition of the word “allowance” in the Pension Act, Part IV of this act regroups two provisions (sections 72 and 73) related to “Exceptional Incapacity Allowance” whereas Schedule III provides for rates for the payment of various allowances, including the Exceptional Incapacity Allowance.
[19] In Part III regarding pensions, several provisions deal with the payment of pensions for disabilities, including section 38 which establishes access to an attendance allowance, “in addition to the pension or compensation” provided:
38. (1) A member of the forces who has been awarded a pension or compensation or both, is totally disabled, whether by reason of military service or not, and is in need of attendance shall, on application, in addition to the pension or compensation, or pension and compensation, be awarded an attendance allowance at a rate determined by the Minister in accordance with the minimum and maximum rates set out in Schedule III.
38. (1) Il est accordé, sur demande, à un membre des forces à qui une pension, une indemnité ou les deux a été accordée, qui est atteint d’invalidité totale due à son service militaire ou non et qui requiert des soins une allocation pour soins au taux fixé par le ministre en conformité avec les minimums et maximums figurant à l’annexe III.
[…]
[…]
[20] Section 72 describes the conditions allowing the award of an Exceptional Incapacity Allowance, specifically recognizing the entitlement of a member of the Canadian Forces to such allowance. It reads as follows :
72. (1) In addition to any other allowance, pension or compensation awarded under this Act, a member of the forces shall be awarded an exceptional incapacity allowance at a rate determined by the Minister in accordance with the minimum and maximum rates set out in Schedule III if the member of the forces
72. (1) A droit à une allocation d’incapacité exceptionnelle au taux fixé par le ministre en conformité avec les minimums et maximums de l’annexe III, en plus de toute autre allocation, pension ou indemnité accordée en vertu de la présente loi, le membre des forces qui, à la fois :
(a) is in receipt of
a) reçoit :
(i) a pension in the amount set out in Class 1 of Schedule I, or
(i) soit la pension prévue à la catégorie 1 de l’annexe I,
(ii) a pension in a lesser amount than the amount set out in Class 1 of Schedule I as well as compensation paid under this Act or a disability award paid under the Canadian Forces Members and Veterans Re-establishment and Compensation Act, or both, if the aggregate of the following percentages is equal to or greater than 98%:
(ii) soit, d’une part, une pension moindre et, d’autre part, l’indemnité prévue par la présente loi, l’indemnité d’invalidité prévue par la Loi sur les mesures de réinsertion et d’indemnisation des militaires et vétérans des Forces canadiennes ou ces deux indemnités, lorsque la somme des pourcentages ci-après est au moins égale à quatre-vingt-dix-huit pour cent :
(A) the extent of the disability in respect of which the pension is paid,
(A) le degré d’invalidité pour lequel la pension lui est versée,
(B) the percentage of basic pension at which basic compensation is paid, and
(B) le pourcentage de la pension de base auquel l’indemnité lui est versée,
(C) the extent of the disability in respect of which the disability award is paid; and
(C) le degré d’invalidité pour lequel l’indemnité d’invalidité lui est versée;
(b) is suffering an exceptional incapacity that is a consequence of or caused in whole or in part by the disability for which the member is receiving a pension or a disability award under that Act.
b) souffre d’une incapacité exceptionnelle qui est la conséquence de l’invalidité pour laquelle il reçoit la pension ou l’indemnité d’invalidité prévue par cette loi ou qui a été totalement ou partiellement causée par celle-ci.
[21] The Court further notes that sections 3 and 39 of the Veterans Review and Appeal Board Act, SC 1995, c 18, direct the VRAB to liberally construe and interpret the applicable legislation and regulations in the exercise of its functions, in recognition of Canada’s obligations to those who have served the country. Evidence presented to the VRAB shall be looked at and considered in favour of the applicants or appellants.
[22] Turning to section 15 of the Charter, it enumerates grounds of discrimination and provides, at subsection 1, that every individual is “equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.
B. The Appeal Panel decision [23] Even though Mr. Thomson’s accident dates back to 1991, the Appeal Panel’s decision denying his request for an Exceptional Incapacity Allowance was only issued in August 2014, further to a hearing that took place in June 2014.
[24] In its decision, the Appeal Panel referred extensively to the prior proceedings leading to a decision of the Minister of Veterans Affairs [the Minister], issued in April 2008, and to the VRAB Review Panel decision issued in October 2013. They both concluded that Mr. Thomson was not eligible for an Exceptional Incapacity Allowance under the Pension Act as no entitlement to any form of special allowances arose through the FAC Regulations.
[25] Specifically, the Appeal Panel’s decision quoted the Minister’s statement that section 3 of the FAC Regulations provides only for compensation in accordance with the rates set out in Schedules A and B (now Schedules I and II) of the Pension Act, which do not include the Exceptional Incapacity Allowance (as it is only found under Schedule III). The Review Panel had arrived at the same conclusion as the Minister. In addition, the Review Panel’s decision highlighted the definition of the word “pension” in section 3 of the Pension Act: it is a “pension payable on account of the death or disability of a member of the forces.” This definition makes no reference to allowances, unlike the broader term “award” defined as including pensions, compensation and allowances. According to the Review Panel, this choice of a more restricted term was intentional on the part of the drafters and means that Mr. Thomson, as a civilian FACR pensioner, was not eligible to receive the Exceptional Incapacity Allowance.
[26] Stated differently, both the Minister and the VRAB Review Panel had concluded that there was no legislative authority permitting the Department of Veterans Affairs to grant the benefit requested by Mr. Thomson.
[27] The Appeal Panel then addressed each of Mr. Thomson’s submissions made at the hearing before it.
[28] More specifically, the Appeal Panel considered Mr. Thomson’s contention that the Review Panel’s decision was contrary to established policy regarding severely disabled pensioners. The Appeal Panel rejected that argument as the applicable legislation (the Pension Act) relates to members of the Canadian Forces who are exceptionally incapacitated, reflecting the government’s commitment to these members and its efforts to compensate their suffering. It found that the Review Panel’s decision properly reflected this understanding and the distinction made by Parliament between pensioners who are or were members of the Canadian Forces and those who are civilian FACR pensioners.
[29] The Appeal Panel also considered the Review Panel’s interpretation of section 3 of the FAC Regulations and affirmed its findings, based on the clear language used in the regulations. The Appeal Panel emphasized that, though its discretion requires it to liberally construe legislative provisions and view evidence in the most favourable light for Mr. Thomson, it does not permit it “to read the words of section 3 of the FAC Regulations as though the limitation ‘in accordance with the rates set out in Schedule A or B to the Pension Act’ did not exist.” The Appeal Panel further confirmed the Review Panel’s interpretation of the words “pension”, “allowance”, “compensation” and “award”, stating that the word “pension” in the FAC Regulations was specifically used “for the sole purpose of limiting the compensation to such pension, and not to other awards, or allowances.”
[30] The Appeal Panel further addressed Mr. Thomson’s criticism of the Review Panel for failing to adopt the common law compensation principle of restitutio in integrum, agreeing that this principle does not apply within the specific legislative framework put in place by the Pension Act and the FAC Regulations. Statutory compensation schemes such as this one can, and often do, place limits on compensation that would otherwise result from the common law.
[31] Finally, the Appeal Panel discussed Mr. Thomson’s claim that denying him the Exceptional Incapacity Allowance offended his section 15 Charter rights, but found that it did not in fact discriminate against him on the basis of his severe disability. The Appeal Panel first noted that Mr. Thomson was not seeking a declaration that the statutory provision is unconstitutional, and looked at whether the denial of the Exceptional Incapacity Allowance was discriminatory towards him.
[32] In its analysis, the Appeal Panel followed the direction of the Supreme Court of Canada in Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 [Law] and examined a) whether the denial of the allowance imposed differential treatment between Mr. Thomson and others, b) whether the differential treatment was based on one of the Charter’s enumerated grounds, and c) whether the denial had a purpose or effect that is discriminatory. In its analysis, the Appeal Panel selected disabled pensioners under the Pension Act as the appropriate comparator group and noted (at page 12 of the Decision) that:
The Panel finds that this Appellant is not part of that group of persons. As has already been stated, this application is not adjudicated under the Pension Act. It is adjudicated under the Flying Accident Compensation Regulations. The Appellant is not a former member of the forces who is a pensioner under the Pension Act; he is a flying accident pensioner under the regulations made pursuant to the Aeronautics Act. Under like circumstances, other disabled flying accident pensioners would be entitled to the same benefits as the Appellant – namely, a pension in accordance with the rate set out in the Schedules to the Pension Act.
The Panel finds that there is no discrimination against the Appellant on the basis of his disability; in fact, he is receiving a pension because he is a disabled person who was able to bring himself with the application of the Flying Accident Compensation Regulations. The Appellant is not entitled to the benefits he is seeking because he is not part of the same group to whom he is comparing himself. [emphasis in original]
[33] The Decision concluded by affirming, in light of these considerations, the Review Panel’s decision denying Mr. Thomson’s eligibility for the Exceptional Incapacity Allowance.
III. Analysis A. What is the applicable standard of review? [34] The issues raised by Mr. Thomson involve the Appeal Panel’s interpretation and application of the FAC Regulations and whether such interpretation results in differential discrimination in violation of the Charter.
[35] On the interpretation of the regulations, Mr. Thomson submits that the applicable standard of review is correctness as this is not an issue within the particular expertise of the VRAB (Chief Pensions Advocate v Canada (Attorney General), 2006 FC 1317 [Chief of Pensions]; Trotter v Canada (Attorney General), 2005 FC 434 at para 13 [Trotter]). The Attorney General responds that both the FAC Regulations and the Pension Act are pieces of legislation closely connected to the Appeal Panel’s function and as such, the tribunal’s interpretation should be presumed to be a question of statutory interpretation subject to deference on judicial review (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]; Alberta (Information and Privacy Commissioner) v Alberta’s Teachers’ Association, 2011 SCC 61 at para 34 [Alberta Teachers]; Canadian Artists’ Representation v National Gallery of Canada, 2014 SCC 42 at para 13; Fanous c Gauthier, 2014 QCCA 1731 at paras 15-19).
[36] I agree with the Attorney General that reasonableness is the appropriate standard for this first issue. Though the Federal Court’s decisions in Chief of Pensions and Trotter seem to indicate otherwise, these decisions were released prior to the Supreme Court’s seminal decision in Dunsmuir which established that “deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (at para 54). Since that decision, the principle that reasonableness should apply to questions of law involving the interpretation of a tribunal’s “home statute” has evolved into a strong presumption that may only be rebutted in certain exceptional circumstances, such as “questions of law that are of central importance to the legal system as a whole or are outside the [decision-maker’s] expertise” (Alberta Teachers at para 30).
[37] Though they cannot be directly qualified as being the Appeal Panel’s home statutes, both the FAC Regulations and the Pension Act are nevertheless regulations and legislation closely connected to the VRAB’s functions, with which it is familiar. In Lapalme v Canada (Attorney General), 2012 FC 820, this Court indeed recently confirmed the link between the VRAB and the Pension Act, and applied a reasonableness standard to the VRAB’s interpretation of this statute (at para 16).
[38] With respect to his Charter argument, Mr. Thomson made no specific written submissions regarding the applicable standard of review, but his approach at the oral hearing suggests that he views the standard of review as being correctness. However, the Charter issue raised by Mr. Thomson in this application is not a constitutional challenge to the validity of the law; instead, it relates to the discretionary administrative decision made by the Appeal Panel that involves interpreting a statutory FACR provision in light of the Charter, and the application of the Charter to the particular facts of Mr. Thomson. In addition, the Supreme Court recently confirmed that the courts should not adopt a correctness standard in every case that implicates Charter values. In circumstances where the discretion of a decision-maker is involved, the standard of reasonableness applies to the review of administrative decisions that engage Charter protections (Doré v Barreau du Québec, 2012 SCC 12 at paras 36, 45 [Doré]; Loyola High School v Quebec (Attorney General), 2015 SCC 12 at paras 39-42 [Loyola]; Tursunbayev v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 504 at para 20).
[39] Deference is therefore in order where a tribunal acting within its specialized area of expertise interprets the Charter and applies the Charter’s provisions to the particular facts of a given case in order to determine whether a claimant has been discriminated against (Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at para 46).
[40] In light of the foregoing, I find that the applicable standard of review on the Charter issue raised by Mr. Thomson in this application should also be reasonableness as the matter involves determining whether the interpretation of legislative provisions within the expertise of the Appeal Panel results in discriminatory treatment in violation of a Charter provision. As stated by the Supreme Court in Doré, the task for the Court on judicial review of such decisions involving Charter issues is to decide whether, “in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (at para 57). In both the recent Doré and Loyola cases, the Supreme Court reviewed the tribunal’s decisions using this reasonableness and proportionality framework.
[41] When reviewing a decision on the standard of reasonableness, the analysis is focused on the existence of justification, transparency and intelligibility within the decision-making process. Findings involving questions of fact or mixed fact and law should not be disturbed provided that the decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at para 47). As noted by the Supreme Court in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, there might be more than one reasonable outcome but “as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome” (at para 59).
[42] A reasonableness review may sometimes look similar to a correctness review in situations where there is a narrow range of reasonable options, for example when a question of statutory interpretation leaves only one single reasonable option (McLean v British Columbia (Securities Commission), 2013 SCC 67 at para 38 [McLean]).
[43] Furthermore, while the reasonableness standard means that the reasons must in fact or in principle support the conclusions reached, the reasons do not have to include all arguments, case law or details that the reviewing court would have liked or preferred to see. In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses], the Supreme Court has established that an alleged insufficiency of reasons is no longer a stand‑alone basis for granting judicial review; reasons need not be fulsome or perfect, and need not address all of the evidence or arguments put forward by a party or in the record. The decision-maker is not required to refer to each and every detail supporting his or her conclusion. It is sufficient if the reasons permit the Court to understand why the decision was made and determine whether the conclusion falls within the range of possible acceptable outcomes (Newfoundland Nurses at para 16). The reasons are to be read as a whole, in conjunction with the record, in order to determine whether the reasons provide the justification, transparency and intelligibility required of a reasonable decision (Dunsmuir at para 47; Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53; Construction Labour Relations v Driver Iron Inc., 2012 SCC 65 at para 3).
B. Did the Appeal Panel unreasonably interpret and apply the FAC Regulations in concluding that Mr. Thomson was not allowed to claim the Exceptional Incapacity Allowances? [44] Mr. Thomson contends that the Appeal Panel incorrectly interpreted section 3 of the FAC Regulations and that a liberal, contextual approach to the text of the regulations would lead to the conclusion that he is entitled to the Exceptional Incapacity Allowance. In his opinion, the Appeal Panel’s interpretation is illogical, unreasonable and contrary to the stated object of the FAC Regulations. Given the remedial and ameliorative objective of the regulations, the Appeal Panel should have resolved all difficulties using a generous interpretative approach, viewing the legislative silence regarding the Exceptional Incapacity Allowance as not necessarily prohibiting an eligibility to it (Arial v Canada (Attorney General), 2010 FC 184 at paras 33-40 [Arial]; Manuge v Canada, 2012 FC 499 at para 64; Arial Estate v Canada (Attorney General), 2011 FC 848).
[45] I cannot agree with Mr. Thomson’s position. The issue here is whether the Appeal Panel’s interpretation of the FACR provisions is reasonable. I conclude that, in view of the express language used by Parliament in section 3, the Appeal Panel’s interpretation of the relevant provisions of the FAC Regulations and of the Pension Act falls within the range of reasonable possible outcomes. In fact, it was the only reasonable interpretation of the FAC Regulations in light of the statutory wording.
(1) Mr. Thomson’s position [46] Mr. Thomson developed a solid three-pronged argument in support of his proposed interpretation.
[47] First, Mr. Thomson argues that the Appeal Panel erred in relying on the plain meaning rule to interpret the scope of the words “allowance” and “pension.” Neither the FAC Regulations nor the Pension Act define “allowance” and as such, no plain meaning interpretation is possible. With respect to the word “pension”, even though it is narrowly defined in the Pension Act, Mr. Thomson contends that, since the term is not defined in the legislation pursuant to which the FAC Regulations have been adopted (i.e., the Aeronautics Act), the Appeal Panel should have relied on the common usage of the term, which embraces the notion of allowances.
[48] Second, Mr. Thomson submits that the Appeal Panel’s understanding of section 3 of the FAC Regulations runs contrary to the modern, contextual approach endorsed by the Supreme Court in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 [Rizzo] and followed by this Court in McCague v Minister of National Defence, 2001 FCA 228 [McCague]. That approach would have required the Appeal Panel to read the provision’s grammatical and ordinary sense in harmony with the legislative scheme, the object of the act and the intention of Parliament, in accordance with Drieger’s “modern principle” to statutory interpretation (Construction of Statutes, 2nd ed. 1983 at p. 87). In this case, the grammatical and ordinary sense of the words “the pension that would have been awarded” permits an expansive, yet plausible interpretation that includes allowances, because these are awarded as an integral part of the monthly pension payments made under the Pension Act. Mr. Thomson adds that Parliament did not intend to strictly limit compensation only to a pension as other benefits are available to civilian flying accident pensioners under other provisions of the FAC Regulations. Lastly, with regard to the object of the regulations and the intention of Parliament, Mr. Thomson cites various governmental memoranda related to the adoption of the FAC Regulations, suggesting that these documents indicate that the regulations were intended to provide adequate compensation coverage to civilian FACR victims on the same basis as members of the Canadian Forces.
[49] Third, Mr. Thomson affirms that the Appeal Panel’s decision is contrary to the established policy of the VRAB, as the word “pensioner” is used inconsistently in the VRAB materials, sometimes including civilian FACR pensioners and sometimes not.
(2) The statutory language [50] Statutory interpretation starts with the language used by the legislator.
[51] As stated by this Court in Wise v Canada (Minister of Public Safety and Emergency Preparedness), 2014 FC 1027 at para 17, quoting from the Supreme Court in R v DAI, 2012 SCC 5 at para 26 [DAI], “the first and cardinal principle of statutory interpretation is that one must look to the plain words of the provision before turning to external evidence”. It was thus certainly reasonable for the Appeal Panel to first consider and interpret the words “compensation”, “pension” and “allowances” according to their plain meaning and in their grammatical context of section 3 of the FAC Regulations.
[52] In this case, the plain meaning of the words indicates that section 3 of the FAC Regulations grants Mr. Thomson a “compensation” rather than a “pension” and/or “allowances”. Moreover, this compensation is defined as “an amount equal to the pension that would have been awarded […] in accordance with the rates set out” in two specific schedules of the Pension Act dealing with disability or death.
[53] The express incorporation by reference of those Schedules A and B (now Schedules I and II) leads to the inescapable conclusion that the amounts payable as “pension” under the FAC Regulations do not include the “allowances” listed in Schedule III. The Exceptional Incapacity Allowance is only covered by Schedule III and it is the object of a particular section (section 72) and Part (Part IV) of the Pension Act, distinct and separate from the provisions of that act dealing with pensions.
[54] The FAC Regulations provide for payment of compensation in accordance with certain identified schedules of the Pension Act. They do not contain any other provisions or reference for the payment of other benefits or allowances under the Pension Act. Civilian FACR pensioners do not otherwise have access to the benefits described in that legislation intended to specifically cover members of the Canadian Forces. The Appeal Panel could not have ignored that specific language and it was reasonable for it to assume that the use of these words by Parliament was intentional. A distinction was made, in clear language, between pensioners who are or were members of the Canadian Forces and are covered by the Pension Act, and pensioners who are civilians and are covered by the FAC Regulations.
[55] The Court understands that this results in Mr. Thomson being treated differently from a Canadian Forces pensioner under the Pension Act in the same situation. It produces some inequality between military pensioners and civilian pensioners suffering from a severe disability. But Mr. Thomson was neither a member of the Canadian Forces nor a veteran of the Canadian Forces. His situation is partly considered within the Pension Act solely because section 3 of the FAC Regulations incorporates by reference the amounts of pension as they are set out in Schedules I and II. However, no other provision, schedule or part of the Pension Act, including Schedule III on allowances, has been incorporated by Parliament in the FACR. Section 3 of the FAC Regulations expressly grants “compensation” to civil employees of the federal government, but it does not grant “allowances” (including an Exceptional Incapacity Allowance) as these terms are described in the Pension Act.
[56] This is the law that this Court has to apply. I am mindful of the fact that this leads to differentiated treatment between severely disabled victims of flying accidents who are members of the Canadian Forces compared to those who are civilian employees of the federal government, but this is what Parliament has decided to adopt with the FAC Regulations. Nowhere does the Pension Act provide, implicitly or otherwise, for equality of compensation between military and non-military members. This is not something that this Court (or the Appeal Panel) can change without usurping the role and functions of Parliament. The limitations established by the regulations and the legislation are insurmountable.
[57] As the words used in section 3 of the FAC Regulations and the intention of Parliament are clear, there was no nee