A class action brought on a pro bono basis by a team of Miller Thomson lawyers on behalf of veterans who were injured, physically or psychologically in the course of duty has withstood a motion brought by the Government of Canada to dismiss the action on the basis that it does not disclose a reasonable cause of action.
The action challenges the New Veterans Charter (NVC) and alleges that the benefits and services formerly available to Canadian Forces members and veterans under disability pensions previously provided under the Pension Act were substantially better than those that are now available to them under the NVC.
To advance the case, the Miller Thomson team has raised several novel constitutional arguments. The foundation of these arguments is a social covenant between Canada and those who serve the nation in its armed forces promising to provide compensation to those members of the forces who have been disabled or have died as a result of military service and to their dependants. The case invokes the legal doctrine known as the “Honour of the Crown” (a doctrine previously applied by Canadian courts only in the Aboriginal context) and asserts that Canada is honour bound to carry out the promises of the social covenant.
In a decision in the case, Scott v. Canada (Attorney General), 2013 BCSC 1651, released on September 6, 2013, Mr. Justice Weatherill described the action as “about promises the Canadian Government made to men and women injured while in service to their country and whether it is obliged to fulfill those promises.” The court permitted the action to continue on the basis of the social covenant and the Honour of the Crown pleadings as well as claims for breach of fiduciary duty and claims under the Canadian Charter of Rights and Freedoms:
- s. 7 for depriving the Plaintiffs and the Class with the right to life, liberty and security of the person;
- s. 15 for violation of the equality rights of the plaintiffs and the class.
The action will continue with a certification of common issues and the normal litigation processes of discovery.
Miller Thomson’s litigation team is led by Vancouver partner Donald J. Sorochan, Q.C., with significant contributions from Darrell Roberts, Q.C. and Vancouver associates Kelsey Thompson, Richard Truman, Victor Ing, Morgan Camley and Aimee Schalles and students Silvana Lovera and Isobel Romeral.
Miller Thomson lawyers and students from across Canada have also supported the action by coordination of contacts with veteran class members in all parts of the country. They include:
Thomas Gusa, Edmonton
Troy Baril, Saskatoon
Caroline Meyer, Kitchener-Waterloo
Fadi Amine, Montréal
Gregory Cohen, Toronto