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Military - Veterans Well-being Act (VWA). Knisley v. Canada (Attorney General)
In Knisley v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal allows an appeal, here from an unusual 'conditional' class action certification.
Here the court comments on the Veterans Well-being Act (VWA), and is critical of it's federal administration:[2] It is not necessary, for the purposes of these reasons, to go into lengthy detail regarding the underlying claim. Some level of detail is, however, necessary to provide context. In limiting my description of the background, I do not mean to diminish the seriousness of the allegations made or the impact that they have had on many veterans. I also do not mean to minimize what appears to be the deplorable conduct to which these veterans have been subjected by Canada arising from the manner in which it has administered an assistance program designed to help them.
A. Background
[3] The respondent is a veteran of the Canadian Armed Forces (“CAF”). He joined the infantry in 2007 and was deployed to Afghanistan that same year. On January 19, 2009, he was injured by an improvised explosive device while on patrol. This resulted in the amputation of his entire right leg at the hip, a traumatic brain injury, hearing loss, a scrotal injury, renal failure, and ulnar nerve damage.
[4] The respondent says that Canada incentivizes veterans to join the military by offering them entitlement to a variety of benefits and programs, including statutory Disability Benefits and Disability Awards (collectively the “Benefits”) under the Veterans Well-being Act, S.C. 2005, c. 21, s. 2.1 (the “VWA”).
[5] The purpose of the VWA is set out in s. 2.1, which reads:The purpose of this Act is to recognize and fulfil the obligation of the people and Government of Canada to show just and due appreciation to members and veterans for their service to Canada. This obligation includes providing services, assistance and compensation to members and veterans who have been injured or have died as a result of military service and extends to their spouses or common-law partners or survivors and orphans. This Act shall be liberally interpreted so that the recognized obligation may be fulfilled. [6] Veterans Affairs Canada (“VAC”) is the government department responsible for, among other things, the administration of legislation relating to the care, treatment, and re-establishment in civilian life of veterans, as well as their survivors and dependants. VAC fulfils this mandate by delivering various programs and services that provide compensation for hardships arising from disabilities and lost economic opportunities and that recognize the achievements and sacrifices of Canadians during periods of war and conflict.
[7] More specifically, VAC provides compensation and recognition for the effects of a service-related disability through Disability Benefits. There are two types of Disability Benefits:a) Disability Pension: a multi-purpose benefit available under the Pension Act that provides compensation for the economic and non-economic impacts of a service related disability to eligible CAF members and veterans and their families.[1]
b) Pain and Suffering Compensation (formerly the Disability Award): a benefit paid in recognition of the non-economic effects of a service-related disability to eligible current CAF members and veterans under the VWA. [8] From March 2009 to October 15, 2015, the respondent applied for Benefits from Canada, through VAC. The respondent claims that VAC’s administration of his applications was marked by errors and delays that caused him significant psychological harm and aggravated his physical injuries. For example, VAC wrongly assessed his leg amputation as being a “high-above knee amputation”, which resulted in a disability rating of 68%. This was incorrect as his disability assessment should have been closer to 100%. As a result of VAC’s incorrect assessment, Andrew was awarded a disability benefit for an injury substantially less serious than the one he sustained. He was finally assessed at 89% many months later.
[9] The respondent also claims that, without his knowledge, VAC wrongfully withdrew his application for hearing loss despite his eardrum having been completely ruptured as a result of the improvised explosive device, and extensive medical documentation he produced to support the injury. VAC also wrongfully withdrew his application for renal failure, and the injury to his right arm without any explanation. The respondent has had other issues with respect to the way that he has been treated by VAC.
[10] Since his release from service in 2017, Andrew has been unemployed and unable to return to work. He has been diagnosed with Post-Traumatic Stress Disorder and Specific Trauma and Stressor Related Disorder and has been suffering from suicidal ideation resulting directly from the failures of VAC and the CAF.
[11] There are no legislated timeframes governing the speed at which VAC must provide a service or adjudicate an application. Nevertheless, VAC has developed Service Standards, representing target turnaround times for making decisions on, among other benefits and services, applications for Disability Benefits. Service Standards represent the target “turnaround time” for an application in a specified percentage of cases. The current Service Standard for Disability Benefits is for 80% of decisions to be made within 16 weeks for first applications and reassessments, and 12 weeks for departmental reviews.
[12] The motion judge found that VAC has not, at any time, attained this 80% target. He noted that in 2019–2020, 24% of the applications were processed within the 16-week target; in 2020–2021, that number rose to 39% and in 2021–2022, the number rose further to 46%.[2]
[13] The respondent claims that Canada’s failure, through VAC, to adhere to these standards leaves veterans unable to move forward with their lives, their recovery, and their employment. The respondent also claims that VAC denies veterans information about the status of their Benefits, allowing veterans to languish for indeterminate periods, unable to know when their applications may be adjudicated.
[14] The respondent claims, as a result of these failures, that veterans have suffered damages arising from the failure of Canada, through VAC, to provide timely administration of the benefits to which the veterans are entitled. The respondent claims that this has led to ongoing physical, psychological, emotional and mental harm, and other related damages.
[15] The respondent seeks to advance this proceeding as a class action on behalf of himself and other veterans who have suffered these damages arising from the failures of Canada, through VAC, to properly administer the disability program and make timely payment of the Benefits.
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[48] Canada, in its submissions, continually referenced VAC as a “regulator”. It is not. It is the administrator of a statutory plan. References to cases where proximity has been found not to exist between regulators and the regulated are inapplicable to this case. . Bienvenu v. Canada (Attorney General)
In Bienvenu v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal of an earlier denied application "challenging section 5.01 of the Regulations, seeking a declaration it is invalid and ultra vires the Veterans Well-being Act". The issue was whether the appellant was eligible for benefits, which they were if they had "served a total of at least six years in the regular force, the reserve force or both may apply for the benefit: Veterans Well-being Act, s. 5.2(1)(a)". Section 5.01 "provides a method for calculating a reservist’s length of service based on their days of service for which pay was authorized, subject to certain adjustments".
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