Resolution a 'great example of access to justice,' says Daniel Wallace of McInnes Cooper
The lawyer involved in a recent class action against the federal government on behalf of military veterans says the fact that it took under two years to resolve is a positive sign for the justice system.
A class of 8,600 injured Canadian military veterans who were not paid a portion of the disability payments they were entitled to had their case heard on the merits in that time period.
“Civil litigation can be really slow these days,” says Daniel Wallace, lawyer for the class and a partner at the Halifax office of McInnes Cooper. “Not many class actions are litigated and determined on their merits, and this is one was a good example of moving quickly through the process.”
The class used the Federal Court process and got a preliminary determination through a question of law motion for the sole common issue. The federal government settled, and around half of the class members will receive retroactive benefits before June 2024. The other half will before June 2025.
The case dealt with the interpretation of Division 2, Part III(B) of the Canadian Armed Forces Service Income Security Insurance Plan, Policy 901102. The policy governs the long-term disability benefits for certain Armed Forces members. The class representative, Simon Logan, joined the military in 1988, serving in the infantry, air force, and special operations, including in Afghanistan. Due to health issues developed from the job, he got an involuntary medical release in 2016. Logan was entitled to a monthly long-term disability benefit. He argued that the Crown had left certain allowances off the calculation of his monthly income.
For members of the armed forces, a large portion of their compensation may be allowances that recognize they are in a uniquely tough job or difficult conditions, says Wallace. These include a northern allowance, an isolation allowance, and an allowance for service members deployed to a submarine, for example.
On top of his salary as a warrant officer, Logan made $3,730 per month from a “special operations assaulter allowance” and another approximately $130 for a “post living differential” and “civilian dress allowance.” So, close to $4,000 was not factored into his monthly long-term disability payments.
Logan came to Wallace with an unrelated legal question, but Wallace was familiar with the long-term disability policy and identified the error, he says.
“It affects a lot of people, and there's a lot of money at stake. Of course, it's important because almost all of these people were medically released from the forces as a result of a disability that they obtained during their service.”
“They've all sacrificed a lot for our country, so it's important that they receive everything that they're entitled to,” says Wallace.
While the federal government has not appealed the ruling, it has amended the policy to exclude allowances from long-term disability benefits. The change affects members released after Dec. 31, 2021.
Wallace says the case shows that the misapplication of these types of insurance policies can impact thousands of people who, without a class-action process, would not even be aware of it. “A great example of access to justice in a class action proceeding,” he says.