Bruyea v. Canada

Bruyea v. Canada
Court (s) Database
Federal Court Decisions
Date
2022-10-17
Neutral citation
2022 FC 1409
File numbers
T-1106-20
Notes
Digest
Decision Content
Date: 20221017
Docket: T-1106-20
Citation: 2022 FC 1409
Ottawa, Ontario, October 17, 2022
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
SEAN BRUYEA
Plaintiff
and
HIS MAJESTY THE KING
Defendant
Table of Contents
I. Background 5
A. The Nature of the Claims 5
B. The Benefits at Issue 5
II. The Proposed Class Members’ Experience 9
A. Mr. Bruyea 9
B. Danny Carvalho Raposa 11
C. Andre Joseph Serge St-Jean 12
D. Perry Robert Gray 14
E. Ronald Joseph Cundell 15
III. The Preliminary Issue: Systemic Negligence or Negligent Misrepresentation and Whether the Plaintiff Should be Granted Leave to Amend the Further Amended Statement of Claim 16
IV. Overview of the Parties’ Positions 18
A. The Plaintiff 18
B. The Defendant 21
V. The Amended Statement of Claim, Further Amended Statement of Claim and Proposed Further Amended Statement of Claim 22
A. The Claims 22
B. The Proposed Class 26
VI. The Statutory Provisions 27
VII. The Issues 30
VIII. Do the Pleadings Disclose a Reasonable Cause of Action? 31
A. Is Systemic Negligence—or Alternatively Negligent Misrepresentation—a Reasonable Cause of Action? 32
(1) The Plaintiff’s Submissions 32
(2) The Defendant’s Submissions 37
(3) The Claim of Systemic Negligence has no Reasonable Prospect of Success 39
(4) The Plaintiff may Amend the Pleadings to Specifically Claim an Alternative Cause of Action for Negligent Misrepresentation 42
(5) Negligent Misrepresentation is a Reasonable Cause of Action 43
B. Breach of Fiduciary Duty 48
(1) The Plaintiff’s Submissions 48
(2) The Defendant’s Submissions 49
(3) The Claim for Breach of Fiduciary Duty is not a Reasonable Cause of Action 50
C. Unjust Enrichment 55
(1) The Plaintiff’s Submissions 55
(2) The Defendant’s Submissions 56
(3) The Claim for Unjust Enrichment is not a Reasonable Cause of Action 57
IX. Has the Plaintiff Established “Some Basis in Fact” for the Remaining Certification Requirements? 60
A. General Principles 60
B. An Identifiable Class 61
C. Do the Claims Raise Common Questions of Law or Fact? 64
(1) The Plaintiff’s Submissions 64
(2) The Defendant’s Submissions 68
(3) Common Questions Exist 70
D. Is the Class Proceeding the Preferable Procedure? 73
(1) The Plaintiff’s Submissions 73
(2) The Defendant’s Submissions 74
(3) The Plaintiff has Established Some Basis in Fact That a Class Proceeding is Preferable Procedure 75
(4) Mr. Bruyea is an Appropriate Representative Plaintiff 78
X. Conclusion 79
ORDER AND REASONS
[1] The Plaintiff brings this motion seeking to certify this action as a class action on behalf of an estimated 10,000 veterans who were eligible for a Supplementary Retirement Benefit in 2019 and who may not have received this benefit or who may have received this benefit in a lower amount than the Plaintiff claims they should have received due to the alleged conduct of the Defendant.
[2] The issue on this motion is not whether the Plaintiff has established his claim, but whether the Plaintiff has established that the conditions of Rule 334.16(1) of the Federal Courts Rules, SOR/98-106 have been met, as this governs whether an action should be certified as a class proceeding. In other words,
that the pleadings disclose a reasonable cause of action;
that there is an identifiable class of two or more persons;
that the claims of the proposed class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
that a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law and fact; and,
that there is an appropriate representative plaintiff.
[3] For the reasons that follow, the Plaintiff’s motion is granted; I find that the Plaintiff has satisfied the requirements of Rule 334.16. These reasons explain the contents of the Order that is being issued under Rule 334.17.
[4] In summary, I find that the Plaintiff’s claims for systemic negligence, breach of fiduciary duty and unjust enrichment have no reasonable prospect of success. The Plaintiff is granted leave to amend his Further Amended Statement of Claim to specifically and alternatively plead negligent misrepresentation. I find that the Plaintiff’s claim for negligent misrepresentation is a reasonable cause of action and that the Plaintiff has established some basis in fact for the other requirements of certification. The Order below reflects the reasons and the requirements of Rule 334.17, including setting out the common questions that are certified. The Case Management Process will be relied on to address the potential need for amendments to the common questions, Litigation Plan and other procedural matters.
I. Background
A. The Nature of the Claims
[5] The Plaintiff, Mr. Sean Bruyea, is the proposed representative plaintiff and class member. He joined the Canadian Armed Forces [CAF] in 1982 and was medically released in 1996. He recounts that he has continued to experience service-related injuries and illnesses that have prevented him from rejoining the civilian workforce.
[6] In this motion, Mr. Bruyea seeks the certification of a class proceeding on behalf of himself and other veterans, alleging systemic negligence (and alternatively, negligent misrepresentation, as explained below), breach of fiduciary duty, and unjust enrichment by Canada, more particularly, Veterans Affairs Canada [VAC].
[7] Mr. Bruyea claims that VAC, through its operations and management, failed to properly inform and advise him and other veterans about the financial benefits for which they were eligible, in particular the Supplementary Retirement Benefit [SRB] (described below) and its underlying criteria, resulting in smaller payouts than they would otherwise have been entitled to or received.
B. The Benefits at Issue
[8] To better understand Mr. Bruyea’s claim and to determine whether it is appropriate for certification, some of the benefits available to veterans are described below. This description should not be regarded as comprehensive. The benefits have various eligibility requirements. In addition, amendments to the governing statutes made over the years, with a view to enhancing the benefits available to veterans, have resulted in further complexity in understanding who is entitled to what and when.
[9] The Service Income Security Insurance Plan [SISIP] was established in 1969 as a long-term disability program for losses unrelated to military service. In 1976, the SISIP was extended to service-related injuries. The CAF long-term disability plan [CAF-LTD] is part of SISIP and falls within the mandate of the Department of National Defence, not VAC. CAF-LTD is administered by Manulife and is for members of the CAF who are designated as “totally disabled” for the purposes of the plan. [“Total disability” for the purpose of CAF-LTD is basically equivalent to “totally and permanently incapacitated” [TPI], which is the term used for the benefits administered by VAC]. The CAF-LTD payable is calculated at 75% of the veteran’s pre-release salary and is available until the veteran reaches age 65.
[10] On April 1, 2006, the Canadian Forces Members and Veterans Re-establishment and Compensation Act, SC 2005, c 21 [the 2006 Act, also referred to as the Veterans Charter] came into force. The 2006 Act established several new programs and benefits, including a rehabilitation and vocational services program to assist veterans in their return to civilian life [the Rehabilitation Program]. To be eligible for the Rehabilitation Program, veterans must either have been medically released from the CAF (section 9 of the 2006 Act) or have been determined to have a “physical or a mental health problem resulting primarily from service in the Canadian Forces that is creating a barrier to re-establishment in civilian life” (section 8). These two eligibility criteria have been referred to by the Defendant’s affiants as the “gateways” to the Rehabilitation Program.
[11] As explained by the Defendant’s affiants, to be eligible via either gateway, a veteran had to apply and be approved for the Rehabilitation Program. Once approved, the veteran was then also eligible for the Earning Loss Benefit [ELB] and the SRB.
[12] The ELB was an income replacement benefit available to veterans participating in the Rehabilitation Program (subsection 18(1) of the 2006 Act) who applied for ELB. The benefit continued to be payable until the veteran’s individual rehabilitation plan had been completed or cancelled, or until the veteran reached age 65 (subsection 18(3)). If a veteran were determined to be “unable to engage in suitable gainful employment as a result of being totally and permanently incapacitated” or, following the 2017 legislative amendments, to have a “diminished earnings capacity” [DEC], the ELB would continue to be payable even after completion or cancellation of the rehabilitation plan, up until age 65 (subsection 18(4)). This benefit was known as “extended ELB.” In such cases, TPI and DEC determinations were made on a case-by-case basis by the veteran’s case manager based on a number of factors set out in VAC policy documents.
[13] The amount of the ELB was initially calculated at 75% of the veteran’s imputed income (the higher of the veteran’s pre-release salary and a prescribed minimum), subject to deductions for certain income sources [offsets], including CAF-LTD. Because both the ELB and CAF-LTD were calculated at 75% of the veteran’s imputed income, a veteran who was already receiving CAF-LTD and who applied for ELB would not receive any additional income.
[14] On October 1, 2016, the ELB was increased to 90% of the veteran’s imputed income, and the minimum imputed salary was raised. As a result, veterans to whom ELB was payable (although not necessarily paid due to the offset) received a top-up over the amount received as CAF-LTD.
[15] The SRB was a one-time, lump sum payment intended to be paid when the veteran reached age 65. The SRB was designed to acknowledge that veterans in receipt of ELB had a diminished capacity to contribute to a retirement pension plan. The SRB was available, on application, to veterans who had been approved for extended ELB payments due to a TPI or DEC designation when their entitlement to the ELB ended, which was typically at age 65, or where the criteria for a TPI or DEC designation were no longer met (subsection 25(1) of the 2006 Act). The SRB was calculated at 2% of the total ELB payable (regardless of whether it was paid out) to a veteran, without considering any income offsets (section 29 of the Canadian Forces Members and Veterans Re-establishment and Compensation Regulations, SOR/2006-50).
[16] In the event of a veteran’s service related death, the ELB was available, on application, to the survivors until the veteran would have reached age 65 (sections 22 and 23 of the 2006 Act) at which point the survivors became eligible to receive the SRB (subsections 25(2) and (3)).
[17] On April 1, 2019, amendments to the 2006 Act, which had since been renamed the Veterans Well-being Act, came into force and replaced the ELB and SRB with other benefits, including the Pension for Life and Retirement Income Security Benefit [RISB]. Transitional provisions in the amendments to the Veterans Well-being Act provided for a one-time, lump sum payment equal to the amount of the SRB to which an eligible veteran would have been entitled as of March 31, 2019 [the SRB payout], if they had not yet received the SRB. [In other words, veterans who had not reached age 65 and who would have received SRB upon reaching age 65 under the 2006 Act, received a lump sum amount pursuant to the transitional provisions pro-rated to that date; they were not denied this benefit, but did not receive the amount they would have received at age 65].
II. The Proposed Class Members’ Experience
[18] Mr. Bruyea and other veterans provided affidavits attesting that, due to their service-related injuries, they struggled to re-establish themselves in civilian life. The affiants described their experience seeking and receiving information from VAC about the ELB and SRB benefits.
A. Mr. Bruyea
[19] Mr. Bruyea joined the CAF in 1982 and was medically released in 1996. In 2000, he was determined to be “totally disabled” and was approved for CAF-LTD. He attests that he learned about the VAC Rehabilitation Program and the ELB in 2005 when the 2006 Act was introduced. He states that he spoke to VAC employees several times between 2005 and 2011 and was always advised that there was no benefit to him to apply for the new program because the ELB—to which he would be entitled—would be entirely offset by his CAF-LTD. Mr. Bruyea states that VAC never informed him of the SRB, its eligibility requirements or how it would be calculated.
[20] Mr. Bruyea recounts that in 2011 he spoke to his VAC case manager about improving his conditions. The case manager suggested that he apply for the Rehabilitation Program and the ELB. He applied and was approved for the Rehabilitation Program in early 2012. He was subsequently designated as TPI in March 2012. In September 2012, VAC advised him by letter that he had been approved for the ELB but was not entitled to any additional payment because he was receiving CAF-LTD. In 2016, when the ELB was increased from 75% to 90%, of pre-release salary, VAC informed Mr. Bruyea that he may be eligible for the top-up. He submitted the necessary forms and began to receive the top-up payments in November 2016. Mr. Bruyea attests that none of the communications he received from VAC during this time mentioned the SRB or its eligibility criteria.
[21] Mr. Bruyea attests that in 2019, when the termination of the SRB was announced, his VAC case manager advised him that he would receive a lump sum amounting to 2% of the total ELB to which he had been entitled since his acceptance into the Rehabilitation Program in 2012. Mr. Bruyea explains that it was only at that time in 2019 that he understood that if he had applied for the Rehabilitation Program and ELB and had been approved when those programs were first established in 2006, rather than six years later, he would have been entitled to a significantly greater SRB payout.
[22] Mr. Bruyea attests to his belief that VAC employees did not properly understand the interlocking benefit schemes and, therefore, failed to provide him and others with the necessary information and advice to take full advantage of the benefits. He complained to the Office of the Veterans Ombudsperson [OVO] in May 2019 alleging unfair treatment by VAC about the start date for the calculation of his SRB.
B. Danny Carvalho Raposa
[23] Mr. Raposa attests that he served in the CAF from 1987 until his medical release in November 2001. He has received CAF-LTD since December 2001. Around December 2005, VAC determined that he was TPI.
[24] Mr. Raposa attests that he was not assigned a VAC case manager until 2014. He states that he first learned of the Rehabilitation Program in 2014 from sources other than VAC. He applied and was approved. Mr. Raposa adds that his case manager advised him to apply for ELB but did not advise him about the interrelationship between the benefit programs. He attests that although he was approved for ELB in 2015 he did not receive any additional payment because the ELB (at 75%) was offset by his CAF-LTD. He began to receive payments for ELB after it was increased to 90%.
[25] Mr. Raposa attests that he received a lump sum SRB payout of approximately $4,000 in 2019.
[26] The Defendant notes that VAC communicated with Mr. Raposa, including with respect to his approval for the Rehabilitation Program and ELB on June 23, 2014. The November 5, 2014 letter from VAC advised Mr. Raposa that he was determined to be TPI and that he was eligible to receive ELB until the age of 65 or until his status changed. The letter further advised that when the ELB ends, he could apply for SRB, a taxable lump sum payment calculated as equal to 2% of ELB he was eligible to receive. The letter also explained that he could request a review and provided a contact number if he had any questions.
[27] The Defendant notes that Mr. Raposa was immediately informed of the SRB once he satisfied all three criteria. Although, Mr. Raposa recalls that he learned of the SRB at a conference, VAC advised him by letter in November 2014.
[28] On cross-examination, Mr. Raposa was asked whether he thought he was entitled to more than the SRB lump sum he received. He acknowledged that he did not know how the amount was calculated and could not, therefore, respond.
C. Andre Joseph Serge St-Jean
[29] Mr. St-Jean served in the CAF from 1976 until his medical release in 2013. He has received CAF-LTD since August 2013. He attests that he was also advised about the Rehabilitation Program from his case manager in August 2013, immediately applied and was approved in September 2013.
[30] By letter dated October 2, 2013, VAC advised him that he was also eligible for ELB, adding: “However, as you are eligible for this type of benefit through Service Income Security Insurance Plan Long Term Disability (SISIP LTD) there is no VAC Earnings Loss Benefit payable to you from VAC at this time.” The letter also explained that he could request a review and provided a number to call with any questions.
[31] By letter dated March 21, 2014, VAC notified Mr. St-Jean that a rehabilitation plan would not be developed, as his rehabilitation needs had not been identified, and that his participation in the program was considered to be completed. Mr. St-Jean did not request a review.
[32] Mr. St-Jean attests that VAC did not advise him that the completion of the Rehabilitation Program would have implications for the ELB or SRB.
[33] On May 19, 2015, Mr. St-Jean was advised that his SISIP claim had been reviewed and that his condition met the definition of “total disability.”
[34] Mr. St-Jean attests that in 2016, upon learning that the ELB had increased to 90%, he inquired about how to apply for the top-up. He states that he was advised by a VAC case manager that his file had been improperly closed in March 2014 upon completion of the Rehabilitation Program. The case manager advised him that he should have been designated TPI at that time and that he would be reinstated into the VAC Rehabilitation Program and designated TPI so that he could access the ELB top-up.
[35] By letter dated November 3, 2016, VAC advised Mr. St-Jean that his ELB would continue to age 65. The letter also explained that when ELB ends, he could apply for SRB, and also explained how SRB is calculated. The letter further advised Mr. St-Jean that he may be eligible for the RISB at age 65, which is a benefit available to veterans who were eligible for ELB as a result of being TPI and are also in receipt of a disability benefit. The letter provided information about requesting a review and a number to call with any questions.
[36] In September 2019, Mr. St-Jean was advised by VAC that SRB had ended and that, because he had not yet reached age 65 and had not received SRB, he was eligible for a lump sum payment of $4,938.61. This amount was calculated based on 2% of ELB payable from April 2014 to October 25, 2016 (when he was deemed TPI). Mr. St-Jean complained to the OVO and the Minister of Veterans Affairs that a gap in his ELB, due to his wrongfully closed file, reduced his SRB payment. Mr. St-Jean attests that the OVO concluded that he had been unfairly treated.
[37] In May 2020, VAC advised Mr. St-Jean that his SRB had been recalculated to take into account the gap period from September 30, 2013 to March 31, 2014. However, the additional payment amounted to only $10.93 after taxes. Mr. St-Jean attests that VAC did not recalculate the April 2014 to October 2016 period during which VAC determined that a rehabilitation plan would not be developed. The May 10, 2020 letter from VAC includes the recalculation worksheet and provides contact information for questions.
D. Perry Robert Gray
[38] Mr. Gray served in the CAF from 1976 until his medical release in 2002. He began to receive CAF-LTD in 2002 and was subsequently deemed to be TPI. He attests that he learned of ELB in 2006 but did not apply for ELB as he was told by VAC that he did not qualify. He states that his VAC case manager never discussed the Rehabilitation Program, ELB or SRB.
[39] Mr. Gray attests that he learned of the Rehabilitation Program from another veteran in 2011, applied and was approved in November 2011.
[40] Mr. Gray states that in 2018, VAC informed him that he was entitled to ELB. He applied and began to receive ELB in 2018. He attests that VAC did not tell him about the ELB he should have received from 2006 to 2018. He believes that he was not provided with sufficient information to understand the Rehabilitation Program, a TPI designation, the ELB, or the SRB.
[41] Mr. Gray attests that he received a lump sum SRB payment in 2019.
[42] On cross-examination, Mr. Gray did not recall whether he received an application for the Rehabilitation Program and ELB from VAC in 2006, but acknowledged that this was possible.
E. Ronald Joseph Cundell
[43] Mr. Cundell served in the CAF from 1981 until his medical release in 2000. He has received CAF-LTD since 2000.
[44] He attests that he found the changes to the benefits programs implemented in 2006 to be overwhelming and did not understand which benefits he was required to apply for and which were automatic. He explains that through his own research he learned of the Rehabilitation Program in 2006 and contacted VAC. He attests that VAC asked him if he intended to forfeit his CAF-LTD, which led him to understand that he could not apply for the Rehabilitation Program.
[45] Mr. Cundell attests that in 2011, his VAC case manager applied for ELB on his behalf, and he assumes that the case manager also applied for the Rehabilitation Program. He states that his case manager presented him with forms regarding TPI, the Permanent Impairment Allowance and the Permanent Impairment Allowance Supplement, which he signed. He was deemed TPI in late 2016 or early 2017.
[46] Mr. Cundell states that he first heard about SRB in September 2019, when he received a letter from VAC advising him that the SRB would be terminated and that he was entitled to a lump sum SRB payment of $7,870.25 before deductions.
[47] Mr. Cundell attests that no one at VAC ever explained to him the interrelationship between the Rehabilitation Program, ELB, TPI and SRB.
III. The Preliminary Issue: Systemic Negligence or Negligent Misrepresentation and Whether the Plaintiff Should be Granted Leave to Amend the Further Amended Statement of Claim
[48] At the hearing of this motion, the Defendant argued that the Plaintiff had raised a new cause of action in negligent misrepresentation in the Plaintiff’s Reply submissions. The Defendant noted that the Plaintiff had amended his Statement of Claim as recently as April 29, 2022, yet had not pleaded negligent misrepresentation. The Defendant noted the challenge of responding to a “moving target.”
[49] The Plaintiff argued that he had set out the elements of negligent misrepresentation and relevant facts in support of a cause of action for negligent misrepresentation in his Further Amended Statement of Claim (April 2022). The Plaintiff disputed that the Defendant had been taken by surprise given the Defendant’s argument that the systemic negligence claim was in essence a claim for negligent misrepresentation.
[50] The Plaintiff also argued that he could seek to amend his Further Amended Statement of Claim to alternatively and specifically plead negligent misrepresentation given that the Defendant had not yet filed a Statement of Defence and the pleadings were not closed.
[51] Following oral submissions, the Court agreed that the Defendant could provide short written submissions, post hearing, to address the alternative claim for negligent misrepresentation. The Plaintiff was requested to provide a Proposed Further Amended Statement of Claim in order for the Defendant to respond to the specific pleading.
[52] It was understood that if the Court concluded that the Plaintiff’s systemic negligence claim is not a reasonable cause of action, the Court could then consider whether the Plaintiff had already set out the requisite elements of negligent misrepresentation in his Further Amended Statement of Claim and could also consider the Plaintiff’s request to further amend his pleadings. In the event that the Court were to grant leave to the Plaintiff to file the Proposed Further Amended Statement of Claim, the Court would then determine whether the alternative claim for negligent misrepresentation is a reasonable cause of action.
[53] As agreed, the Plaintiff submitted a Proposed Further Amended Statement of Claim, dated June 27, 2022, which specifically pleads an alternative cause of action of negligent misrepresentation. The Defendant provided brief post-hearing submissions on the alternative pleading of negligent misrepresentation.
IV. Overview of the Parties’ Positions
A. The Plaintiff
[54] The Plaintiff submits that members of the CAF voluntarily sign up and risk their lives for the benefit of Canadians and others through their service and, in doing so, expect that Canada will support them if they suffer physical or mental health related injuries. The Plaintiff alleges that veterans have not been sufficiently supported.
[55] The Plaintiff asserts that Canada has undertaken to ensure that veterans who are ill and injured in service are compensated in a way that benefits their value to the country and that “part of VAC’s mandate is to advise veterans about the benefits available to them and to explain those benefits and how to apply in order to maximize the benefits.”
[56] The Plaintiff points to the response by one of the Defendant’s affiants on cross-examination, who stated, “I would say it is true that the Government of Canada wants to ensure that veterans who are ill or injured in service to the country are compensated and cared for in a way that befits their stature and value to the country.” The Plaintiff regards this as Canada’s, and more particularly, VAC’s undertaking to do so.
[57] The Plaintiff describes the proposed class members—who may exceed 10,000—as veterans that were determined by VAC to be totally incapacitated or to have diminished earning capacity. The Plaintiff submits that this group has the most complex needs and are the most vulnerable. The Plaintiff adds that this group is no longer able to earn the income they would have otherwise earned in the CAF and has been unable to save for their retirement in the same way as other veterans.
[58] The Plaintiff claims that VAC’s conduct was systemic; VAC consistently wrongly advised proposed class members about their eligibility for benefits and, more particularly, VAC advised them that it would be pointless to apply for ELB upon becoming eligible because any ELB payment would be offset by CAF-LTD, which was initially the very same amount. The Plaintiff adds that VAC also consistently failed to inform proposed class members how the SRB would be calculated or that the SRB depended upon ELB eligibility and approval, even if the ELB payable was offset by CAF-LTD.
[59] The Plaintiff further submits that VAC’s acts and omissions were institutional and contrary to VAC’s mandate, as described by the Defendant’s affiant: to ensure that veterans are compensated in a manner that reflects their value to the country, which includes advising veterans about the benefits available to them. The Plaintiff interprets this response as acknowledging that the mandate of VAC is to compensate and care for veterans. The Plaintiff further submits that VAC was aware that these vulnerable veterans – the proposed class members – did not understand the complex benefit regimes. More troubling, VAC’s acts and omissions caused losses for the class members.
[60] The Plaintiff points to the May 13, 2020 Report of the OVO, “Supplementary Retirement Benefit (SRB) Payout Micro-Investigation” [OVO Report], that responded to his complaint and found, among other things: that it was unfair for VAC to calculate the SRB based on the ELB start date, given VAC’s failure to provide clear and easy-to-understand information about the complex benefit scheme; that VAC front-line workers are not fully informed about the complex benefit programs; and, that it is unreasonable to expect veterans to understand the eligibility criteria. The Plaintiff also points to other reports, which found that VAC workers lacked awareness of the benefit programs.
[61] The Plaintiff argues that his claim of systemic negligence is a reasonable cause of action. However, if the Court disagrees, the Plaintiff relies on the alternative claim of negligent misrepresentation. As noted above, the Plaintiff submits that the essential elements of negligent misrepresentation were set out in the Further Amended Statement of Claim (April 2022). If the Court does not agree, the Plaintiff submits that the Court should grant leave to him to amend the claim as set out in the Proposed Further Amended Statement of Claim given that the pleadings are not closed.
[62] The Plaintiff further submits that the claims for breach of fiduciary duty and unjust enrichment are reasonable causes of action.
[63] The Plaintiff suggests that the Defendant’s challenges to all the causes of action asserted are about their underlying merits, which is not the focus at the certification stage.
[64] The Plaintiff submits that the Further Amended Statement of Claim and the Proposed Further Amended Statement of Claim disclose reasonable causes of action and the Plaintiff’s evidence provides some basis in fact for all other criteria for certification. The Plaintiff adds that this class action promotes the policy objectives of access to justice, behaviour modification, and judicial economy. The Plaintiff further submits that the issues raised are common to the class and should be determined by the Court on a full record.
B. The Defendant
[65] The Defendant acknowledges the importance of the role of CAF members and their commitment to Canada. The Defendant notes that the broad suite of benefits available to eligible veterans is not at issue; this action is only about the SRB.
[66] The Defendant submits that the Plaintiff’s claim does not meet the criteria for certification as a class action. The Defendant argues that: there is no reasonable cause of action for systemic negligence, breach of fiduciary duty, or unjust enrichment; the original class definition does not disclose an identifiable class; the issues raised are not common because all or many require individual determinations; and, a class action is not the preferable procedure.
[67] As noted, the Defendant submits that any alleged negligence does not rise to the level of systemic negligence. The Defendant adds that the claim of systemic negligence is really a disguised claim for negligent misrepresentation and should be struck.
[68] The Defendant further submits that the proposed alternative claim of negligent misrepresentation will not work as a class action because its determination turns on the interaction between VAC and individual veterans and the individual issues overwhelm any possible common questions of law or fact.
[69] The Defendant notes that all the Plaintiff’s affiants recounted different experiences and interactions with VAC and some acknowledged that they did not know whether they were “short changed” in their SRB payment.
[70] The Defendant submits that the Plaintiff cannot rely on the OVO Report or the other reports to support the cause of action for systemic negligence (Canada v Greenwood, 2021 FCA 186 at para 91 [Greenwood]) or to establish a basis in fact for the common questions related to the cause of action. The OVO Report can only provide context, not any basis in fact.
[71] The Defendant further submits that the Plaintiff’s claims for breach of fiduciary duty and unjust enrichment are untenable.
V. The Amended Statement of Claim, Further Amended Statement of Claim and Proposed Further Amended Statement of Claim
A. The Claims
[72] As noted above, the Plaintiff claims that, as a result of their service in the CAF, he and other class members suffer from debilitating mental and physical injuries. The Plaintiff explains that he and class members are all either “totally disabled” (the term used for CAF-LTD) or TPI or DEC and because of their disabilities, they are, by definition, vulnerable and marginalized. The Plaintiff alleges that VAC employees lack sufficient training, expertise, understanding, and awareness of programs in order to explain and communicate the programs and their eligibility requirements to veterans. He alleges that VAC failed to have the appropriate management and operations procedures that would reasonably have ensured the provision of accurate, timely, and reliable information about eligibility for the SRB. He also claims that there has been significant confusion and misinformation due to the lack of expertise, knowledge and awareness among VAC employees regarding the benefit programs, the complexity of the benefit programs, and the vulnerability of the veterans who are entitled to the benefits. He submits that, as a result, veterans have not received benefits to which they are entitled or received lower amounts than they would and should have if they had been properly advised of the eligibility criteria and the process to obtain the benefits. The Plaintiff alleges that VAC’s conduct amounts to systemic negligence (or alternatively, negligent misrepresentation), breach of fiduciary duty, and unjust enrichment.
[73] The Plaintiff commenced his proceeding on September 16, 2020. His Statement of Claim dated September 15, 2020 was amended on May 20, 2021 (Amended Statement of Claim). He filed a Further Amended Statement of Claim on April 29, 2022.
[74] In the Further Amended Statement of Claim (April 2022) the Plaintiff seeks, on his own behalf and on behalf of proposed class members, the certification of the action as a class proceeding and his appointment as representative plaintiff. The Plaintiff seeks, among other things, a Declaration that VAC was systematically negligent and erred in failing to properly advise the Plaintiff and the class members of the eligibility requirements for the SRB and the steps needed to maximize their benefit entitlements.
[75] The Proposed Further Amended Statement of Claim (June 27, 2022) is premised on the Court finding that systemic negligence may not be a reasonable cause of action and that the alternative claim of negligent misrepresentation was not previously sufficiently or specifically pleaded.
[76] In the Proposed Further Amended Statement of Claim (June 2022), the Plaintiff alternatively and specifically claims negligent misrepresentation by VAC. The Plaintiff asserts that a close and direct relationship of trust and confidence existed between VAC and the Plaintiff and class members; the relationship was one of proximity; and the injuries of the Plaintiff and class members were reasonably foreseeable to VAC.
[77] The Plaintiff asserts that VAC expressly or impliedly undertook the responsibility to provide the Plaintiff and class members with accurate information about their entitlement to the ELB and SRB, the interrelationship of benefit schemes and how the SRB was calculated. The Plaintiff also states that VAC undertook, expressly or impliedly, the responsibility not to provide the Plaintiff and other class members with erroneous and inaccurate information about the ELB and SRB programs. The Plaintiff asserts that the undertakings arise from VAC’s statutory obligations and mandate to assist the Plaintiff and other class members to reintegrate into civilian life and from the special relationship owed by Canada via VAC to veterans and the close and direct relationship existing between VAC—as administrator of the ELB and SRB programs—and the Plaintiff and class members—as beneficiaries of those programs.
[78] The Plaintiff asserts that there was a relationship of proximity with VAC and, therefore, a duty of care. He adds that given the facts set out in the whole of the claim, there are no policy reasons to negate this duty.
[79] The Plaintiff also asserts that VAC provided untrue, inaccurate or misleading representations to proposed class members with respect to the ELB and SRB.
[80] The Plaintiff states that he and his fellow class members relied on the misrepresentations and altered their position, thereby foregoing alternative and more beneficial courses of action that were available to them and that they suffered economic detriment as a consequence. He submits that it was reasonable for him and proposed class members to rely on VAC’s representations, which they did to their detriment, and that this was foreseeable to VAC. The Plaintiff claims that if he and other class members had applied for ELB when first eligible, their SRB payment would have been greater than the SRB that they actually received (because ELB, whether “payable” or not, was used to calculate the SRB).
[81] The Plaintiff also seeks a Declaration that VAC breached the fiduciary duty owed to the Plaintiff and the class in failing to properly advise him and class members of the eligibility requirements for the SRB and the steps they needed to take to maximize their benefits.
[82] In addition, the Plaintiff seeks a declaration that Canada was unjustly enriched by not paying the benefits to which the class members were entitled.
[83] The Plaintiff essentially seeks, on behalf of each class member, an additional SRB payout calculated based on each veteran’s earliest possible date of eligibility for the ELB, plus interest.
[84] More specifically, the Plaintiff and proposed class members seek arrears of payments and other losses resulting from Canada’s and VAC’s negligence and breach of fiduciary duties; general damages; special damages; exemplary and punitive damages; out of pocket expenses and disbursements; an order pursuant to Rule 334.28(1) and (2) for the aggregate assessment of monetary relief and its distribution; restitution of Canada’s profits; pre and post-judgment interest; and, costs, including costs of notice and administering the distribution plan.
B. The Proposed Class
[85] The Further Amended Statement of Claim (April 2022) describes the proposed class as all former members of the Canadian Armed Forces (veteran(s)) who were approved for the Rehabilitation Program, deemed to be TPI or DEC, approved for “extended” ELB and those who “would have” met these criteria and who received or “would have” been eligible to receive a SRB.
[86] The Defendant objects to the proposed definition, noting that it lacks objectivity due to the use of vague terms, including “would have” with respect to the eligibility criteria.
[87] The Plaintiff now submits, based on information gleaned since the April 2022 amendment to his Statement of Claim and in the course of the hearing of this motion and on the Defendant’s objections, that the proposed class can be described in a clearer and more objective way. The Plaintiff provides the following description in the Proposed Further Amended Statement of Claim;
All former members of the Canadian Armed Forces (“Veteran(s)”) who were:
1. approved to be in the VAC Rehabilitation Program sponsored and administered by the Defendant;
2. declared to be Totally and Permanently Incapacitated and/or suffering Diminished Earnings Capacity as defined in programs sponsored and administered by the Defendant including those Veterans approved for CAF-LTD and designated Totally Disabled; and
3. approved for and in receipt of an Earnings Los