A-474-86
Zygmunt Janke (Applicant)
v.
War Veterans Allowance Board, Canada
(Respondent)
INDEXED AS: JANKE v. CANADA (WAR VETERANS ALLOWANCE
BOARD)
Court of Appeal, Urie, Stone and MacGuigan
JJ.—Toronto, February 9 and 13, 1987.
Veterans — S. 28 application to review and set aside
Board's dismissal of appeal against refusal of application for
war veterans allowance — Applicant, born in Poland, con
scripted into German army in 1939 — Served 16 months —
Deserted and surrendered to allied forces at first opportunity
— Served in British army for four years — Awarded four
medals — Honourably discharged — Emigrated to Canada in
1965 — Retired due to ill health in 1982, at age 60 —
Unemployed and apparently unemployable due to poor health
and age — Act s. 9 denying allowance to any person who
served in enemy forces in Word War II — Fact person served
unwillingly out of fear of death or imprisonment irrelevant —
Board not to inquire into individual's state of mind — Only
Parliament or executive could alleviate consequences of s. 9 —
Application dismissed — War Veterans Allowance Act, R.S.C.
1970, c. W-5, s. 9 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), s. 15.
COUNSEL:
David R. Draper for applicant.
Thomas L. James for respondent.
SOLICITORS:
David R. Draper, Parkdale Community Legal
Services Inc., Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: The applicant brings this section 28
application to review and set aside a decision of
the War Veterans Allowance Board, Canada dis
missing his appeal from the refusal by the Ontario
Regional District Authority of his application for
war veterans allowance.
Briefly stated the relevant facts are these. The
applicant, who was born in Poland and lived there
at the time of the invasion of that country by the
German forces in 1939, was conscripted into the
German army in March 1943. He was transported
to Germany for training. Shortly after his arrival
there he was hospitalized, apparently for some
months, and he was not returned to his unit in
Marburg, Germany until after Christmas 1943. In
March 1944, he was posted to a new unit in Italy
where, according to him, at the first opportunity,
in July 1944, he deserted the German army and
surrendered to allied forces. After about a week in
prison camp he enlisted in a commando unit of the
2nd Polish Corps of the 8th British army. He
continued his service in the British army until
January 1948 when he was honourably discharged
with the rank of sergeant and the holder of four
medals awarded for his military service.
Thereafter, he was employed in England as an
engineer until 1964 when he emigrated to Holland
and during the following year, 1965, to Canada.
He worked as an engineer with a variety of compa
nies in this country until he was forced to retire
due to ill health in 1982 at 60 years of age. Since
that time he has been unemployed and ; apparently,
unemployable due to his poor health and age.
In 1979, 1983 and 1985 the applicant applied
for war veterans allowance but on each occasion
the application was rejected by the Ontario
Regional War Veterans Allowance District Au
thority ("the District Authority") on the ground
that he had served with enemy forces which is a
prohibited class by virtue of section 9 of the War
Veterans Allowance Act ("the Act") [R.S.C.
1970, c. W-5]. The 1983 rejection was the subject
of an unsuccessful appeal to the respondent. As
well, the Minister of Veterans Affairs declined to
review the applicant's case in November 1984.
In July 1986, the respondent declined to review
its previous decision and, in addition, rejected the
new submission that section 9 of the Act contra
venes section 15 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)]. It is this decision which the
applicant seeks to have set aside.
Counsel for the applicant, in this Court,
attacked the impugned decision solely on the
ground that the respondent had erred in law in its
interpretation of section 9 of the Act. He aban
doned any attack on that decision based on the
Charter.
Section 9 of the Act reads as follows:
9. No allowance shall be paid to any person who served in
enemy forces in World War II.
In general terms, the Act provides for the pay
ment of monthly allowances to war veterans and
their dependants. To qualify for such an allow
ance, an applicant must be a male war veteran
who has attained the age of 60 years, or a female
veteran or widow of a veteran who has reached the
age of 55, or any other veteran or widow who is
permanently unemployable or incapable of main
taining himself or herself. The Act also provides
for the payment of allowances to the orphans of
war veterans. Through various amendments, ben
efits under the Act were extended to veterans who
had engaged in fighting in World War II for an
allied country and who had become Canadian
immigrants with at least 10 years residency. Cer
tain maximum income requirements are also appli
cable. It was conceded that the applicant, as an
allied veteran who had served in a theatre of actual
war, met all the requirements for entitlement to
allowance had it not been for his having been
engaged in the activities with the German army
earlier referred to.
The thrust of applicant counsel's submissions, in
general terms, was that the applicant did not
"serve" in enemy forces as that term should be
understood. He did not rely on the view that
simply because a person was conscripted into mili
tary service, he did not "serve" in the conscripting
force. Rather, as we understood his argument, the
determination of whether or not a person "served"
in enemy forces is dependent in part, at least, on
the conscriptee's state of mind. If a person is
forced into the military out of fear of death or
imprisonment if he refuses to go, but never, in his
own mind, accepts the conscription, he cannot be
said to have become a member of the conscripting
force in that he did not do so as a duty. The
performance of a duty is an element recognized by
the dictionary definitions of "serve" as it pertains
to military service. In counsel's view, it was, there
fore, incumbent on the Board to consider all of the
facts surrounding the applicant's involvement in
the enemy forces to ascertain whether or not that
involvement could be characterized as service in
those forces absent the feeling, in the conscriptee's
own mind, that what he was doing was the
performance of a duty imposed on him as opposed
to service to ensure his safety from death or
imprisonment.
We do not agree. In our view, the requirements
imposed by section 9 that an applicant for war
veteran's allowance not have served in enemy
forces to be entitled thereto, does not involve the
Board inquiring into the state of mind of the
individual. All that the Board must do is to make
objective findings of fact to ascertain entitlement
based on the criteria imposed by the Act for
granting of allowances. In this case the facts are
undisputed. The applicant was a conscript in the
German army. That army was, by any measure
ment in the context of World War II, an enemy
force. The applicant trained, worked and was on
active duty with the enemy force in Germany and
Italy for about one and a half years, although he
was not involved with the carriage or firing of
weapons. He says, as is probably the fact, that he
escaped from that force at the first opportunity.
Nonetheless, by any dictionary meaning ascribed
to "served" in the context of military or para -mili
tary usage, he "served" for about sixteen months
in the German army, an enemy force. He, there
fore, was precluded by section 9 from entitlement
to war veterans allowance although in all other
respects he qualified therefor. The words of the
section, including the word "served" are plain and
unambiguous. The Board, therefore, correctly
found the applicant to be ineligible for war veter
ans allowance. The application will, accordingly,
be dismissed.
We reach this conclusion with regret because of
the applicant's honourable service on behalf of the
allied forces, and, as well, because of his present
plight. However, it is our duty, as it was the
Board's, to interpret the Act as enacted by Parlia
ment. No discretionary power is granted to the
Board or to us. Only Parliament or, perhaps, the
executive, can alleviate the consequences flowing
from the unequivocal words of section 9.
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.