Stories to make boring stuff not so boring

"Nathan Cirillo's Law" by Captain (Retired) Matthew Edwards, B.PE, B. Ed, CD

On a sad day in October 2014, Canada lost a valiant soul.

A terrorist , Michael Zehaf-Bibeau, came up to Corporal Nathan Cirillo & cut his' life short as he stood guard with an empty weapon. He was only 24 years old.

He was a member of the Canadian Forces but he was not a Regular Force member. He was a Reservist. Reservists do not serve in the same way as Regular Force members. However, they still SERVE the nation.

Did the gunman stop & ask politely, "Excuse me? I notice that you are wearing the uniform of the Canadian Forces. Can you tell me what is your class of service so that I amy decide if I want to kill you?"

The purpose of uniforms is, in part, to cloak the soldier in the colours of the country that they are a citizen of. Everyone is "uniform," the same. Standard.

However, Canada has made certain classes of service to fill a need. The need is National Defence. It has a problem in that there is no draft where all citizens are dragooned into service to fill the role of protection of ourr society. In order to fit that need, Canada allows the proverbial "Weekend Warrior."

The key word there is Warrior. The Reservist has no magic shield to stop harm from befelling them simply because they are Class A or B. Class C is the same as a Regular Force member. They are trained to the required standard, orders flow from the top & not the bottom. They can, & do, often volunteer to serve tours of duty in a foreign land. They often get a taste of the Brotherhood of Arms & then change to the Regular Force.

Nathan Cirillo's death exposed a MAJOR problem. He was either a Class A or B Reservist. That can be inferred from the fact that Canada changed the law to fix the "gap" where a part-time soldier is left with no benefits if they die in service. In his' case, Canada made an exception to the rule. While I agree with this, the exception should not have been needed. The rules should have had the SAME benefits as the regular Force member. Was he less worthy? Are other Reservists less worthy as human beings?

I think the obvious answer to this rhetorical question is NO! Any person who VOLUNTEERS to give his' life up for Canada should not have to worry about the legacy left behind. An often stated phrase is used in this context: Canadian Forces members sign a blank cheque to the nation in the amount of "up to & including my life." This is often referred to as Unlimited Liability.

A Reservist is stated to have had Limited Liability. Did Nathan Cirillo have Limited Liability? No.

The phrase has been miscontrued. The term is often conflated to the problem of orders. A Reservist must volunteer for MORE harzardous duty whereas a Regular Force member has absolutely no choice. There is often an association with Posting to a new base as well. That is a "red herring." The Regular Force member is compensated for such moves, some say handsomely. Therefore there is no loss or discomfort.

Nathan Cirillo's law was a change in the New Veterans Charter regulation s. 19(b)(iv) where they ended the inequity within the Veterans Affairs Canada Earnings Loss Benefit (ELB) where a Reservist used to get compensation of 75% of their IMPUTED monthly salary of $2,700. They now get treated the same as Canada recognized the injustice & moved to fix it in law. Now the Reservist & Regular Force member get the EXACT same ELB. Fair right?

Not fair for the Canadian Forces' Service Income Support Insurance Plan (SISIP). The uninformed reader might think, "Why should SISIP get the same benefit? They were not hurt on duty!"

False.

SISIP policy 901102, Division 3, s. 41(a)(iii) requires a sick or injured Reservist to be ON DUTY in order to access benefits.

Think about that. That is an encroachment into VAC's area of expertise. SISIP was designed, in 1969, to complement the Pension Act pension. It was designed to pay for OFF DUTY only!

That exposes the discrimination. Yes, a harsh word. It discriminates agains & defrauds the Reservist. He paid for the SISIP plan through SERVICE. that is how the worker pays for Workers' Compensation (WCB). VAC is akin to WCB. In essence, SISIP has usurped the role of VAC. The Reservist has every Right to ask: "Why did I pay premiums through service to SISIP if I get VAC benefits when I get hurt in service? Isn't that fraud? You took my service & gave me nothing in return!"

Canada's fix of the law, "Nathan Cirillo's Law", was not entirely successful. SISIP refused to comply with the law! They stated that that change only applied to VAC. Show us why! Laws are meant to cover all citizens and SISIP must comply. In 2011, Bill C-55 fixed the problem of paying less to Reservists than Regular Force members. Sound familiar?

Bill C-55 came in, but SISIP refused to comply. Then, months later, they fixed it. That does not detract from the fact that SISIP/Manulife/SISIP tried to evade paying the injured or ill Reservist the raise announced.

Think about that. SISIP LTD is administered by Manulife "on behalf of the CF." Soldiers serve the CF. That is what is termed a CONFLICT OF INTEREST! The CF is trying to save money on the back's of the CF members! Add to this the fact that the SISIP plan is Non-Public Property as per the National Defence Act s. 39(1).

That means that it is not tax money. It belongs to the soldiers.

Canada has appropriated this fund & thinks it owns the money! INSANE. They want us to believe that they own the money as they paid into it! INSANE.

When they pay the money, say on Nathan Cirillo's behalf into the SISIP pool of insurance, it either:

1. Belongs to Nathan Cirillo as it was part of his' remuneration for service; OR

2. It is Manulife's money, if this is not an Administrative Services Only (ASO) insurance plan.

Either way, it cannot be said to belong to Canada! NO WAY!

Canada has announced that there will be an increase from 75% to 90% in the ELB pension. Yes, pension. Pensions are monthly payments for service. Pensions are akin to insurance. People want insurance for when they retire. They want security. The word "pension: is just that, a word. What really matters is not the word but the EFFECT.

The purpose of this article is to, before the same mistake is repeated as made last year when SISIP did not increase in lock-step with ELB, increase awareness so that SISIP will also be increased to 90%. To do otherwise is totally UNFAIR!

Hold on, some will say. Members hurt in service have a Right to more benefits than an insurance plan that MIGHT be for an off duty injury!

To those people, "GO TO HELL!"

What an entitled bunch. To think that they have an increased entitlement because they too were injured in service.

SISIP is first payer in the event of a service injury. The fact that a person gets SISIP is strong proof that a member was injured in service. 70-75% of medical releases are service related. SISIP is granted on medical release. Therefore, 70-75% of SISIP beneficiaries are related to service.

Based on this, I have a proposal: Make VAC benefits payable on Medical Release (SISIP too, just as the pension + SISIP was OK).

There might be 25-30% of non-duty injuries include in this proposal BUT these members volunteered to serve at their own peril, like Nathan Cirillo. I think it is time to aid recruitment & retention by extending the INSURANCE principle that VAC has for Special Duty Areas (SDA) where anything that happens to you while in a SDA is covered AUTOMATICALLY!

When not in a SDA, a member must prove his injury was in relation to duty. That is CRAZY! A person on WCB has only to have something happen while working. A soldier that has a heart attack while on duty in Canada might not get VAC benefits. That, if true, is totally UNFAIR.

The same human being would be covered as a civilian. I stress "human" as there are Human Rights in Canada. To impose this ARBITRARY limit is NOT democratic.
In a democracy, laws must be reasonable. The link to service proof is NOT reasonable. It is not reasonable as it is not required in the civilian world. WCB has a 98% approval rate. Why? The proof is that the person got sick or hurt at work, a geographical proof. VAC has a 65% approval rate. 33% is a HUGE difference & should not exist. In trying to save money, VAC is hurting the National Defence public policy as this parsinimous attitude cannot but help to limit volunteers from enrolling.
Nathan Cirillo's Law.

A weak & ineffective law, to date.

We can change that. We can make Canada act fairly.

They can do it the easy way, by changing it themselves.

They can do it the hard way by making us SUE again!

Either way, they MUST fix it.

"A Short Study of the Compensation Principle as it Relates to the New Veteran Charter Veteran in Canada" by Captain (Retired) Matthew Edwards, B. PE, B. Ed., CD

1. Watts Tax Court of Canada (TCC)

Counsel for the applicant also relied upon Livingstone v. Western Assurance Co. (1868), 14 Gr. 461, per Spragge, V.-C., at p. 463; reversed by 16 Gr. 9, but without affecting the passage cited, and Mitchell v. City of Toronto (1921), 50 O.L.R. 585 at p. 592, 64 D.L.R. 569 at pp. 574-5, per Hodgins, J.A., dissenting. No purpose would be served by quoting from these cases which in essence set out similar definitions to those above quoted.

The basic elements which are common to all of these definitions may be stated as follows:

i) an undertaking of one person;

ii) to indemnify another person;

iii) for an agreed consideration;

iv) from loss or liability in respect of an event;

v) the happening of which is uncertain.

[18] Insurance is essentially a contractual arrangement between an insured and an insurer and involves an obligation by an insurer, upon payment of premiums, to pay an amount upon an event whose occurrence is uncertain. The statutory regime administered by the CPP contains none of those elements. The payments under it are therefore not income from an office or employment as described in paragraph 6(1)(f) of the Income Tax Act. Rather, they are taxable as income by reason of paragraph 56(1)(a).

2. Sarvanis Supreme Court of Canada (SCC) 2002

35 The key difference among all three of these examples of pensions which, upon receipt or eligibility, do foreclose an action pursuant to s. 9 of the Crown Liability and Proceedings Act is not simply the fact that the bar is repeated in each particular statute. Rather, it is that in each case the crucial condition of eligibility is the occurrence of “death, injury, damage or loss”, and that it is because of that occurrence that the pension is received. For example, s. 21(1)(a) of the Pension Act provides that a pension is granted only “where a member of the forces suffers disability resulting from an injury or disease . . . that was attributable to or was incurred during . . . military service . . .” (emphasis added). Similarly, the Government Employees Compensation Act at s. 4(1)(a) provides benefits only where an employee:

(i) is caused personal injury by an accident arising out of and in the course of his employment,

or

(ii) is disabled by reason of an industrial disease due to the nature of the employment;

That is, these pensions are paid on the same basis as a tort claim is, while the CPP is paid on the same basis as an insurance claim.

36 The interpretation adopted here is further bolstered by considering the context of the broader legislative purpose of the Crown Liability and Proceedings Act as a whole. This Act was passed in order to establish Crown liability, which had hitherto been blocked by the common law. Although it was passed prior to the establishment of the CPP, it would be surprising indeed if the Canada Pension Plan, and the quasi-contractual insurance scheme it created, were meant to nullify the increased exposure of the Crown liability legislation. Put another way, why would the Crown Liability and Proceedings Act explicitly give so much by removing the common law obstacle, yet tacitly take almost all of it away by the construction of the Canada Pension Plan advanced by the Crown? Given the mandatory nature of contribution to the CPP, such would be the effect of the reading of s. 9 urged by the respondent.

37 That Parliament most likely did not intend this outcome is also consistent with the absence of any explicit provision suggesting so in the Canada Pension Plan, measured alongside the clear provisions citing to, or replicating in substance, s. 9. Unlike the Canada Pension Plan, the Acts which do reproduce the bar of actions are comprehensive schemes designed to ensure the efficacious compensation of persons for their injuries and losses incurred in the public service.

3. Gill SCC 1973

The Canada Pension Plan is provided for by a statute of the Parliament of Canada which now appears as R.S.C. 1970, c. C-5, and which had previously appeared as 1964-65 (Can.), c. 51.

Nemetz J.A. gave the reasons for the majority in coming to the conclusion that the pension payments under the Canada Pension Plan should not be deducted from the award of damages. In doing so, he relied most strongly on the recent decision of the House of Lords in Parry v. Cleaver[4]. That was an appeal dealing with a claim by a police constable for damages due to injuries and was not a fatal accident case as is the present one. However, the ratio used in the House of Lords Nemetz J.A. found and, with respect, I agree with him, was most convincing. In the House of Lords the majority of the Law Lords composed of Lord Reid, Lord Pearce and Lord Wilberforce were of the opinion that the pension payment should not be deducted. Lord Pearson and Lord Morris of Borth-y-Gest dissented. It is sufficient to quote two short extracts. Lord Reid said at p. 16:

What, then, is the nature of a contributory pension? Is it in reality a form of insurance or is it something quite different? [Example quoted is omitted.] The products of the sums paid into the pension fund are in fact delayed remuneration for his current work. That is why pensions are regarded as earned income.

But the man does not get back in the end the accumulated sums paid into the fund on his behalf. This is a form of insurance. Like every other kind of insurance, what he gets back depends on how things turn out. He may never be off duty and may die before retiring age, leaving no dependents. Then he gets nothing back. Or he may, by getting a retirement or disablement pension, get much more back than has been paid in on his behalf. I can see no relevant difference between this and any form of insurance. So, if insurance benefits are not deductible in assessing damages and remoteness is out of the way, why should his pension be deductible?

Lord Pearce said at p. 37:

If one starts on the basis that Bradburn’s case (1874) L.R. 10 Ex.1, decided on fairness and justice and public policy, is correct in principle, one must see whether there is some reason to except from it pensions which are derived from a man’s contract with his employer. These, whether contributory or non-contributory, flow from the work which a man has done. They are part of what the employer is prepared to pay for his services. The fact that they flow from past work equates them to rights which flow from an insurance privately effected by him. He has simply paid for them by weekly work instead of weekly premiums.

Is there anything else in the nature of these pension rights derived from work which puts them into a different class from pension rights derived from private insurance? Their “character” is the same, that is to say, they are intended by payer and payee to benefit the workman and not to be a subvention for wrongdoers who will cause him damage.

Analysis:

The earliest case is both higher and earlier than the Watts Tax Court of Canada case so the judge in Watts erred in law as he failed to obey a Supreme Court of Canada precedent. Precedent is the basis of the common law. "Stare Decisis" in Latin. Don't re-invent the wheel. Fairness is judged by following the previous precedent unless times change drastically.

Watts does, however have a good example of how insurance works. It is a contract. You pay premiums to obtain a "peace of mind" benefit should misfortune happen to you. The elements of contract are:

1. Offer: Canada says, "We will insure you should you become disabled;"

2. Acceptance: You say, "Yes, that sounds good;"

3. Consideration (money or service): You say, "Here is my money (or service instead of money)."

On the "consideration" point, it is a factual inference that I paid the SISIP LTD premiums or I would not get the benefit. If Canada paid the premiums, they were paid "on my behalf." Any other conclusion is absurd. No one gets anything for free.

In the Canadian Forces' Service Income Support Insurance Plan (SISIP), we pay the premium to obtain "peace of mind" for disability. The where or way we become disabled is not importnt, a fact that should kill the argument that a Reservist must be hurt on duty. The present state of disability is the relevant fact. That is from the Sarvanis SCC 2002 case. It was stated for the Canada Pension Plan Disability, which despite it's name, is non-indemnity & contributory Long Term Disability insurance.

The fact SISIP LTD is insurance is a very relevant fact. Returning to Watts, it is point 3, above. Insurance money "indemnifies" a person for their loss. To "indemnify" means to repay for their loss. You cannot repay someone for something they do not already own. Yoou do not own income. You own the ability to earn income with your body. Your body is a Capital asset. With it you can exchange your services or time to get money to obtain the essentials of life &, hopefully, more than just subsistence. It is good to survive but you want to thrive.

Tort damages, in contrast to insurance, is not a contract. a contract is between two consenting adults. A Tort is when you are hurt or you hurt someone. Everyone has the right not to be hurt by another person. If you get hurt by someone, they have committed a Tort aginst you & they owe you an obligation (Duty) to repay you for your loss. The right to Compensatin exists outside contract. Strangers can commit a tort against you. To enforce your right to Compensation in Tort, you sue.
Contractual damages, on the other hand is when someone does not abide by the deal they made. For example:

1. The CF member paid premiums for SISIP LTD "peace of mind" insurance;

2. They also exchanged the right to sue to get a Workers' Compensation type award called the Pension Act pension if they get injured in service;

3. If injured in service, they have two rights to enforce. One is the right to the pension's monthly tax-free indenity insurance benefit. The other is the right to SISIP LTD's non-indemnity contractual payment. One is payable in Tort and the other is payable in contract. They took our money & made a promise to pay us if we became disabled;

4. As we all know, from 1976 to 2012, Canada took the VALUE of the pension indemnity insurance from the VALUE of SISIP's non-indemntiy insurance. That created contractual damages where SISIP failed to pay the right amount. Some people think that the SISIP class action did not have damages. What the hell did Canada pay the disabled veterans $1.9 Billion for then? From the goodness of their heart? In that case, they would never have taken it off in the first place.

It appears that Canada avoided future liability to pay both SISIP & the pension by ending the pension. That got rid of one half of the equation where a disabled veteran was allowed to get the two benefits they paid for!

They seem to think:

1. They own SISIP;

2. They give the pension out of the goodness of our heart.

They are NUTS.

1. SISIP LTD is Non-Public Property, the soldier's money. Not the taxpayer's money. It used to be the taxpayer's money until the soldier EARNED it by giving service;

2. The Pension Act pension was bought & paid for via the right to sue. It is not a benefit that is a privilege accorded to a veteran, like welfare. It is ours in Right. Not any more, as it is not available to New verteans Charter veterans. However, the right to sue is now ours OR they have to stop placing conditions on our Tort damages. They say they can only pay NVC benefits when there is a "need."

I have a NEED! A need to be treated fairly. Either I have the ABSOLUTE right to NVC benefits or I will sue Canada in Tort to achieve my indemnity for my loss. The rule of law requires everyone in a democracy to obey the law, including judge made law. The right to Compensation is also known as the Indemnity principle. We NVC vets have not been Compensated at all or we have been severely under-Compensated.

The reason for ths is the Andrews v Grand & Toy SCC case of 1978 says that the economic loss far outstrips the non-economic loss (pain & suffering). About 6 to 1. Andrews got $100,000 for pain & suffering. With inflation, that is $360,000. Sound familiar? That is the figure for the lump sum Disability Award.

If a NVC veteran gets only the Disabilty Award, they have been deprived, unjustly, of the ECONOMIC loss due to them for their RIGHT to sue having been transferred to Canada.

STOP the madness.

We need to stand up & tell Canada that this is NOT acceptable.

I've been writing stories to try & get the message out.

"A Very Small Reward" by Captain (Retired) Matthew Edwards, B. PE, B. Ed., CD

A very small reward was said by a Supreme Court of Canada Justice in the Cunningham v. Wheeler case in 1994. In that case, a person who was personally injured in a car accident & won an award in a lawsuit also had a private Long Term Disability (LTD) policy from her work.

She had paid for the LTD by a combination of service & cash. She paid 30% and the employer paid the rest on her behalf. That is a crucial distinction. It looks beyond the surface as the physical payment by the employer is a mere technicality. The reality was that the person paid for it, entirely.

The Defendant was named as Wheeler but this was really the insurer's case. The insurer pays, not the person. The insurer has agreed to insure the person for third party liability. If the driver is at fault & hurts someone, the insurer steps in to pay for the damages.

The main premise of most insurance is INDEMNITY. That is Compensation for loss. Insurance pays you back if you lose something you own. In the case above, the person sued for indemnification, wanting to be "made whole." Only so far as money can replace a Capital loss.

The common law has developed a principle that a person has a Right to be indemnified for loss if someone else causes you damage. Seems simple. You hurt me, you make it right. However, you only put me back to where I was before, I cannot profit from the insurance. That would be bad & they tried to say that the Plaintiff in the Cunningham v Wheeler had achieved a double recovery which is prohibited. However, the main goal of the INDEMNITY principle is that the injured party MUST be given total compensation. After that, anyone who has compensated is entitled to be repaid. NOT before that! SISIP takes money before total compensation, therefore they are violating the Compensation Principle.

However, there are two exceptions to this prohibition:

1. Charity; &

2. Private Insurance.

This has been called the Bradburn Principle after the policeman whose case forms the precedent that has been followed since 1875. It has been said to be unjust, unfair and against public policy for the insured person to pay for nothing. If the person paying damages was allowed to deduct the value of the insurance, they are saving at the expense of the disabled person. This fact might be getting lost in the story. A person does not get damages unless they SUFFER damages.

There was a trend in many countries towards a Workers' Compensation type of no-fault insurance that was copied by Veterans Affairs Canada (VAC) in the form of the Pension Act pension. The WCB system is designed around no-fault insurance that was the deal made between employers & employees where the workers gave up the Right to sue in tort & the employer agreed to fund the WCB system to provide insurance proceeds for the loss of Earning Capacity. Earning Capacity, not earnings. That is a big difference. Earnings Capacity is Capital, an asset but earnings are income.

The Dennis Manuge case was the CLASSIC example of Bradburn in action:

1. VAC's pension, as a WCB type benefit, provided an INDEMNITY payment from Canada but it was not given freely, it was a Right in exchange for the Right to sue & injury in service;

2. The Canadian Forces' Service Income Support Insurance Plan (SISIP) provided him NON-INDEMNITY type private insurance that he paid for with a combination of cash plus service & the SISIP did not require an event but a state of disability to triggger payment;

3. The Pension Act pension has an offset clause to ensure that there was no double recovery, in s. 25. SISIP is not listed as SISIP is not Compensation. VAC's pension takes off other Indemnity payments;

4. For 141 years, Bradburn has ruled this law. Somehow, in Canada, the Bradburn Rule has been circumvented. Perhaps it has to do with Canada self-insuring the LTD plans and they don't understand the Indemnity Principle? Regardless, the Judge in Manuge should have stated, on the first day: "SISIP is non-indemnity. The VAC pension is Indemnity. What in God's name makes SISIP believe it can reduce the value of the insurance proceeds payable on injury when these are not alike? I rule for the disabled veterans & I order punitive damages to deter future unlawful offsets. I'll use the Whiten v Pilot SCC case as my guide and award punitive damages of 300% of the amount unlawfully offset in recognition of the vulnerability of the class & the debt owed to them by Canada."

Instead, the judge made up some cockamamie yarn about "pain & suffering." He did this in spite of the fact that, years before, the SCC in the Sarvanis case stated that the Pension Act pension was granted in exchange for the Right to sue as it was akin to WCB.

Using the Cunningham v Wheeler case as a guide leads to this:

If there was a double recovery, it is a VERY SMALL REWARD for Mr. Manuge's self-denial in making the premium payments that gave him a legitimate expectation that he would get a payment should he become disabled & suffer a loss of his Earning Capacity.

In fact, since then, the IBM v Waterman SCC case helps us see the truth. IBM paid 100% of the pension payments yet the Justices said that Mr. Waterman EARNED it. Service has value, don't let anyone else tell you different. To say otherwise implies you accepted charity! You would rather EARN something, right?

A VERY SMALL REWARD. Canada disagreed. They still disagree as they offset everything they can in the New Veterans Charter.

This must stop.