With notes from Mishall Rehman
In May 2012, the Government of Canada announced it would end the practice of offsetting Disability Pension benefits payable under the Pension Act, from Veterans Affairs Canada (VAC) income support programs: the Earnings Loss Benefit and Canadian Forces Income Support benefit under the Canadian Forces Members and Veterans Re-establishment and Compensation Act (now the Veterans Well-being Act), and the War Veterans Allowance benefit under the War Veterans Allowance Act.
This announcement set in motion the court lawsuit Toth vs. Her Majesty the Queen in 2014. Raymond Michael Toth, the representative plaintiff, and the class action alleged that pension reductions were happening because of disability benefits; in turn, this was a violation of former military members’ Section 15 Charter rights.
The Suit: Toth vs. Her Majesty the Queen
The suit revolved around low-income veterans with disabilities whose financial aid benefits were being clawed back by the government. The defendants alleged that it was discriminatory for the government to claw back the financial aid from those who received disability pensions for injuries sustained while in uniform.
“The settlement focuses on compensation for harm, including pain, suffering, humiliation, and loss of dignity, resulting from this discrimination,” stated the decision from the Federal Court.
Under S. 15 of the Canadian Charter of Rights and Freedoms, discrimination based on disability is prohibited. The class action seeks damages for all members who received a deduction.
This class action challenged the validity of the offsets, which were made before May 2012. Approximately 14,000 class members and estates are part of this settlement.
In approving the settlement, the Federal Court determined that the settlement agreement was fair and reasonable and in the best interests of the class.
VAC must receive all remaining requests for payment
In accordance with the Federal Court Order issued January 6, 2021, Veterans Affairs Canada VAC must receive all remaining requests for payment under the approved settlement, with all necessary documentation, on or before 1 February 2021.READ VETERANS WIN $100 MILLION SETTLEMENT
According to the website, this will have no impact on the services and benefits that are offered. The Government of Canada will continue to take action to strengthen the support available to Canadian Armed Forces members, Veterans, and their families by restoring critical access to services and support for financial independence.
“If any Class Member or representative of a Class Member or their estate that is eligible for a payment under the approved settlement is experiencing difficulties submitting all necessary documentation to VAC, contact Class Counsel as soon as possible,” stated Adam Bazak, Class Counsel, Associate lawyer at Gowling WLG.
All settlement funds not claimed by Class Members or their estates eligible for a payment under the approved settlement will be distributed to charities that assist Canadian veterans and their families, says Bazak.
Undistributed Settlement Funds
By agreement with Canada, and as approved by the Federal Court, payments of undistributed settlement funds will be made to:
- a special bursary fund that will provide financial assistance for education fees of Class Members, their survivors, or descendants;
- the Royal Canadian Legion Poppy Fund;
- the Veterans Legal Assistance Foundation; and,
- the Ottawa Innercity Veterans Outreach & Support program
Bazak expressed that Gowling WLG and Michel Drapeau Law Office have worked hard to ensure that all of the eligible class of Canadian Forces and war veterans suffering from service-related disabilities receive their entitlements under the settlement.
“We are very pleased with the exceptional take-up rate we have achieved, and we understand that all living Class Members entitled to a payment under the settlement have been sent payments by VAC. We are also pleased to inform our Class Members that we negotiated additional benefits with respect to the educational bursary fund that ensures the settlement has a lasting and positive legacy of helping Class Member and their families,” he added.
Details of the bursary fund, including the application process, will be made available soon.
The Federal Court Orders that:
The following schedule shall apply to the submission of remaining claims for payment [Remaining Claims] to Class Members or their estates under the FSA:
All Remaining Claims under the FSA, with all necessary documentation, must be received by Veterans Affairs Canada [VAC] on or before February 1, 2021;
VAC shall make its best efforts, consistent with the FSA, to fully administer all Remaining Claims by March 31, 2021;
Inability by VAC to effect payment of a Remaining Claim by March 31, 2021, will not extinguish a Remaining Claim if the claim is submitted to VAC with all necessary documentation on or before February 1, 2021; and,
Any claim for payment under the FSA received by VAC on or after February 2, 2021 [Late Claims] or any claim that is incomplete on that date shall be denied.
The Parties will confer, and attempt to resolve, any disagreements regarding whether a Remaining Claim for which notice is provided by February 1, 2021, is supported by necessary documentation or whether it would be unfair to require particular documentation on the facts of a particular case. If the Parties cannot resolve the disagreement, the Parties may request the assistance of the Court.
Distribute the Residue
VAC shall distribute the residue [Residue] of the ELB/CFIS and WVA Funds in two phases, as follows:
In the first phase, VAC shall distribute $4,000,000 of the Residue as soon as practicable after the date of this Order to the following three charities in the following amounts:
In the second phase, VAC will distribute, on or before March 31, 2021, any remaining Residue not used or reserved to pay Remaining Claims to the following four charities in the following proportions:
The Court retains jurisdiction to deal with any further issues or questions arising from the administration of this Order or the FSA.