PENSIONS |
MacDonald v. Canada (Attorney General)
A-542-01
2003 FCA 31, Evans J.A.
23/1/03
11 pp.
Appeal by Attorney General of Canada from T.D. Judge's decision ((2001), 211 F.T.R. 315) granting application for judicial review to set aside Veterans Review and Appeal Board (Board) decision--Respondent, while member of Canadian Forces, sustained injury partly attributable to military service in 1993--Issue at stake concerning backdating of assessment of seriousness of respondent's disability for pension purposes--Board making assessment retroactive to January 20, 1998, date of request for pension medical examination in connection with assessment--Based decision on Pension Policy Manual provisions dealing with deterioration of pensionable condition--Since only medical evidence before Board related to respondent's medical condition remaining unchanged since 1993, Applications Judge's finding not based on deterioration, thus plainly correct--Appellant argued Pension Act containing no provision authorizing backdating of Board's assessment decision to July 31, 1993--Issue at stake ultimately depending on interpreta-tion of relevant provisions of Pension Act, in particular s. 39--Court found record unclear and until record clarified, Court has no basis for interfering with decision of Applications Judge--Applicability of s. 39 to assessment made after original entitlement decision may depend on whether assessment made as result of new application or appeal from first decision--Nonetheless, in absence of any compelling reason to limit s. 39 to entitlement decisions, particularly bearing in mind liberal construction of Act mandated by s. 2, to interpret Act as precluding any backdating of assessment made to correct previous erroneous assessment of extent of disability by Board would seem very unfair and contrary to spirit of Act--Consequently, appeal allowed, to extent that decision of Board should not have been set aside--Appeal dismissed in all other respects--Pension Act, R.S.C., 1985, c. P-6, ss. 2, 39 (as am. by S.C. 1995, c. 18, s. 57).