Court of Appeal Decision of the Week

Veterans’ Class Actions Litigation: Impact of “Social Covenants”; Charter; Honour of the Crown

Case: Scott v. Canada (Attorney General), 2017 BCCA 422 (CanLII)

Keywords: “New Veterans Charter”; ss. 7 and 15 of the Charter; “Social Covenant”; “Honour of the Crown”

Synopsis:

The Plaintiffs/Respondents are a class of members/former members of the Canadian Forces who suffer injuries in the course of their duties. They claim compensation under the Canadian Forces Members and Veterans Re-establishment and Compensation Act, S.C. 2005, c. 21 is inadequate – that the Act (referred to as the “New Veterans Charter”) violates an historic “social covenant” binding the Federal government. In support of their theory, the Plaintiffs/Respondents invoke the doctrine of “honour of the Crown” and assert the “social covenant” has a constitutional status which imposes obligations on the government and creates property rights. The Plaintiffs/Respondents also claim the “New Veterans Charter” scheme violates their rights under ss. 7 and 15 of the Charter.

In response, the Defendant/Appellant, the Attorney General of Canada, brings an application to have the claim struck as disclosing no cause of action. The Chambers Judge (Weatherill J.) declines to strike most of the claim, and so the Attorney General appeals to the Court of Appeal.

The Court allows the Attorney General’s appeal, and strikes the Plaintiffs/Respondents’ class proceeding in its entirety; finding the doctrine of “honour of the Crown” is not of any assistance to the Plaintiffs/Respondents. Further, the Court of Appeal finds the Plaintiffs/Respondents do not belong to a group enumerated in s. 15 of the Charter, nor are “members of the Canadian Forces” an analogous group for the purposes of this lawsuit. With respect to s. 7 of the Charter, the Court finds it does not serve to impose positive obligations on governments.

Importance:

For the Court of Appeal, the “essence” of the claim is that the federal government bound itself via statements made by Prime Minister Borden in the early 20th century, to provide adequate disability benefits for Canadians serving in the armed forces. (See para. 6).

The question for the Court, however, concerned “…whether an arguable case can be advanced that the Canadian Parliament lacks authority to enact legislation fixing and limiting compensation.” (See para. 16).

Whereas the Chambers Judge found that, “[f]or the purposes of his application, the defendant accepts that the Crown made this Social Covenant…”, and that the doctrine of the honour of the Crown could be applicable (see at paras. 24-25), the Court of Appeal disagreed, finding “The idea that inspirational statements by a prime minister containing vague assurances could bind the Government of Canada to a specific legislative regime in perpetuity does not, in any way, conform with the country’s constitutional norms”. (See para. 55).

The Court of Appeal noted that Parliament had the authority to pass the “New Veterans Charter”. (See para. 62). Turning to the question as to whether the “honour of the Crown” could be invoked to override Canadian constitutional norms in the area of veteran’s affairs, the Court disagreed with the Plaintiffs/Respondents position that the doctrine imposed a “generalized obligation on all servants of the Crown”. (See discussion at paras. 63-73).

The Court found that “The Constitution Act, 1867 gives Parliament plenary power over Canada’s armed forces, without imposing any special constitutional limitations deriving from the honour of the Crown”. (See para. 69).

With respect to the applicability of s. 15 of the Charter, the Court of Appeal confirmed that the relevant inquiry was set out by Abella J. in Quebec (Attorney General) v. A, 2013 SCC 5 (CanLII). For the Plaintiffs/Respondents, it was arguable that being a member of the Canadian Forces could be recognized as an analogous ground under s. 15. (See paras. 75-76).

Citing R. v. Généreux, 1992 CanLII 117 (SCC), the Court of Appeal found no basis to recognize being a member of the Canadian forces as an analogous basis for discrimination: “We are not in a period of massive demobilization, nor in a period when military personnel are treated as social outcasts. They are not resented or discriminated against by the general population of Canada”. (See para. 78). As such, and bearing in mind that “Not every difference in treatment…constitutes ‘discrimination’ under the Charter”, the Court found no reasonable claim under s. 15. (See paras. 78-80).

Finally, with respect to the applicability of s. 7 of the Charter, the Court of Appeal took the position that the section is targeted at action that deprives an individual and must not be interpreted as “…placing an affirmative obligation on governments to take measures that enhance an individual’s life, liberty or security of the person”. (See para. 83).

In support of this decision, the Court of Appeal referred to Gosselin v. Québec (Attorney General), 2002 SCC 84 (CanLII) and found this was simply not a case where “special circumstances” required an interpretation of s. 7 favouring the imposition of positive obligations for the Federal government. As such, the Court of Appeal found no reasonable claim on this point. (See paras. 85-90).

Ultimately, this decision is important because of the novelty of the claim and the opportunity it provided the Court to address first principles and fundamental questions:

  • why, for instance, is it the case that s. 7 must be read as having created rights in the negative or “freedoms from” only and not positive obligations for governments;
  • further, is there a space for broad “social covenants” in the analysis and interpretation of government benefits; and
  • what is the scope of the “honour of the Crown” doctrine? Does it function outside the context of Aboriginal rights and s. 35 of the Constitution Act, 1867?

Counsel for the Appellant: P.B. Vickery, T.A. Henderson, and L. Rasmussen

Counsel for the Respondents: D.J. Sorochan, Q.C., K.K. Sherriff, V. Ing, and A.N. Schalles

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Posted: Wednesday, December 13, 2017