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Ottawa owes veterans no ‘duty of care,’ federal lawyers argue in case

Justice Minister Jody Wilson-Raybould.

Adrian Wyld/THE CANADIAN PRESS

The federal Liberal government says it agrees with an argument advanced – and later abandoned – by the former Conservative government that Canada owes no special duty of care to those injured in the line of duty.

In documents filed in the British Columbia Court of Appeal this week for a recently relaunched court case, Justice Department lawyers say that, even though the Liberals and the other parties in the House of Commons unanimously supported a motion last year saying Canada has a "moral, social, legal and fiduciary obligation" to support injured veterans, that motion holds no legal weight.

The government announced last month that it is reactivating a case initiated in 2012 by six severely disabled veterans in British Columbia who argued that they should not be forced to accept less for their injuries than they would have received through the civil courts or through workers' compensation.

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The case was sent to the B.C. Court of Appeal when the former Conservative government's attempts to have it thrown out were dismissed by the provincial Superior Court. But the legal action was put on hold last year when the Conservatives, facing a storm of criticism from veterans and opposition parties including the Liberals, backed away from their arguments and decided that it was better to try to reach an out-of-court settlement.

In the new court documents filed on Monday on behalf of the government, the Justice Department says "the submissions made by [former Conservative attorney-general Rob Nicholson] on the hearing of the appeal, and as set out in the factum filed by him, accurately reflect the current position of the federal government."

That factum, which was filed three years ago, disputes the veterans' claims that there is a "duty of care" owed to them by the federal government. It says the government is required to give disabled former soldiers only as much as Parliament chooses. It also says the principle of the "honour of the Crown," which requires the government to act honourably during negotiations and upon which the veterans relied in making their case, applies only to agreements with aboriginal people.

The factum was filed by Paul Vickery, a Justice Department lawyer who was subsequently removed from the case by former Conservative veterans affairs minister Erin O'Toole when animosity between veterans groups and the government was boiling over. The Liberal government has now returned Mr. Vickery to the file.

In the documents he filed this week, the government also discounts the importance of a House of Commons motion brought last May by New Democratic Party MP Fin Donnelly that said Ottawa is "obligated" to "provide equitable financial compensation" to injured and deceased veterans.

Even though the Liberals voted in favour of Mr. Donnelly's motion, the new government court document says: "The House of Commons motion referenced by the plaintiffs, while it records the opinion of the then members of Parliament on the matters referred to in the motion, does not have the force of law and cannot bind the federal government."

The two sides will debate arguments before the B.C. Appeal Court in Vancouver next week and veterans groups say they will be there to demonstrate their anger.

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In 2014, when he was just Liberal leader, Justin Trudeau asked the Conservative government to "live up to our sacred obligation, end this court battle and start giving our veterans the help they deserve."

And, after the Liberals were elected to form government in the fall, Mr. Trudeau wrote in his mandate letter to Veterans Affairs Minister Kent Hehr that the minister must ensure that the "government lives up to our sacred obligation to veterans" and that he must "re-establish lifelong pensions as an option for our veterans."

Among other things, the veterans who have launched the court case want to see those lifelong pensions reinstated, and they agreed to campaign with the Liberals in the last election on the promise that that would be done. There no such provision in the March budget, but Mr. Hehr has said the pensions will be brought back at some undetermined time in the future.

Mr. Trudeau was asked in the House of Commons on Monday by NDP Leader Tom Mulcair to say when he would stop fighting veterans in court and give them the services that he has promised.

The Prime Minister responded with no commitments.

"After 10 years of a government that shamefully neglected our veterans, we are proud that we are working very hard to restore the kinds of services and the kinds of respect that veterans have earned through their incredible service to our country, to its values and, indeed, to the world," he said.

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"We will continue to endeavour to restore the kinds of services they deserve," he said, "and we look forward to working collaboratively with them to ensure the kind of support that they have earned."

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About the Author
Parliamentary reporter

Gloria Galloway has been a journalist for almost 30 years. She worked at the Windsor Star, the Hamilton Spectator, the National Post, the Canadian Press and a number of small newspapers before being hired by The Globe and Mail as deputy national editor in 2001. Gloria returned to reporting two years later and joined the Ottawa bureau in 2004. More

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