LS-331E
BILL C-61: AMENDMENTS TO
VETERANS
BENEFITS LEGISLATION
Prepared by:
David Goetz
Law and Government Division
2 February 1999
LEGISLATIVE HISTORY OF
BILL C-61
HOUSE
OF COMMONS |
SENATE |
Bill
Stage |
Date |
Bill
Stage |
Date |
First Reading: |
2 December
1998 |
First Reading: |
16 March 1999 |
Second Reading: |
12 February 1999 |
Second Reading: |
18 March 1999 |
Committee Report: |
18 February 1999 |
Committee Report: |
23 March 1999 |
Report Stage: |
11 March 1999 |
Report Stage: |
|
Third Reading: |
11 March 1999 |
Third Reading: |
24 March 1999 |
Royal Assent: 25 March 1999
Statutes of Canada 1999, c.10
N.B. Any substantive changes in this Legislative Summary which have
been made since the preceding issue are indicated in bold print.
|
|
|
|
TABLE OF CONTENTS
INTRODUCTION
DESCRIPTION AND ANALYSIS
A. Greater Equity for
Merchant Navy Veterans
1.
Transfer of Provisions Governing Merchant Navy Veterans
to Main
Statutes Governing Benefits for Veterans
2.
Broadening and Clarifying Merchant Navy Veterans Eligibility
for
Benefits
a. Introduction
b. Changes to
War Veterans Allowance Eligibility for
Merchant Navy
Veterans of World Wars I and II
c.
Changes to Eligibility Criteria for Pension Act Benefits with
Respect
to Merchant Navy Veterans of World Wars I and II
d.
Changes with Respect to Eligibility of Merchant Navy Veterans
of
the Korean War for Veterans Benefits
3.
Expansion of Permissible Evidence of Qualifying Service or Injury
4.
Extension of Supplementary Pension Benefits to Certain
Veterans
of Allied Merchant Navies
B.
Continuation of War Veterans Allowances for Allied Veterans without
Pre-War
Canadian Domicile Who Reside outside Canada
C.
Additional Benefits for Disabled Former Prisoners of War
D. Survivors Pensions
E. Civilian War-Related Benefits
F.
Regulation-Making Authority of the Minister of Veterans Affairs
G. Changes to
the Veterans Review and Appeal Board Act
H. The Halifax
Relief Commission Pension Continuation Act
COMMENTARY
BILL C-61: AMENDMENTS TO VETERANS
BENEFITS LEGISLATION
INTRODUCTION
Bill C-61 was
introduced in the House of Commons and given First Reading on 2 December 1998. The
bill proposes amendments to the various statutes governing Canadian benefits for veterans.
A key thrust
of the bill is to provide enhanced recognition to the war services of merchant navy
veterans. During the wars, many merchant navy members were regularly put into danger and
suffered significant casualties as a result. Both during and since World War II, the
merchant navy has been recognized as an essential fourth branch of the services. After
that war, however, merchant navy veterans were not granted many of the benefits afforded
to veterans of the armed forces (i.e., the army, navy and air force). Their exclusion from
such benefits was based at least in part on two premises: that the merchant navy
veterans employers or unions would take care of them; and that Canada would continue
to have a large merchant navy in which the veterans would continue to have careers.
Unfortunately, in many cases, these premises turned out to have been faulty and, as a
result, many merchant navy veterans and their families went uncompensated.
Finally, in
1992, Parliament extended the principal veterans benefits to merchant navy veterans with
the enactment of the Merchant Navy Veteran and Civilian War-related Benefits Act.
Complaints of unequal treatment have persisted, however. Two sources of such complaints
have been the fact that merchant navy veterans benefits are dealt with in a separate
statute, rather than in the Acts that govern benefits for armed forces veterans; and that
the war service that makes merchant navy veterans eligible for benefits is more restricted
than such war service of armed forces veterans. Bill C-61 seeks to address these concerns
by transferring the provisions governing veterans benefits for merchant navy veterans from
the Merchant Navy Veteran and Civilian War-related Benefits Act to the Acts dealing
with armed forces veterans (i.e., the Pension Act and the War Veterans Allowance
Act); and by amending those provisions so as to broaden the scope of war service
making merchant navy veterans eligible for benefits.
Other
highlights of the bill include:
deferring the deadline for
the termination of War Veterans Allowance payments to allied veterans living outside
Canada;
extending eligibility for
attendance allowance and exceptional incapacity allowance benefits under the Pension
Act to disabled former prisoners of war; and
expanding the situations in
which survivors of disability pensioners could benefit from posthumous increases in
disability assessments to include cases where the pensioners re-assessed level of
disability was less than 48%.
DESCRIPTION
AND ANALYSIS
A. Greater Equity for
Merchant Navy Veterans
1. Transfer of
Provisions Governing Merchant Navy Veterans
to Main
Statutes Governing Benefits for Veterans
Two main
statutes provide for financial benefits for Canadas armed forces veterans: the Pension
Act, R.S.C. 1985, c. P-6, and the War Veterans Allowance Act, R.S.C. 1985, c.
W-3. The Pension Act, which was first enacted during World War I, provides for the
payment of pensions to veterans, veterans who were taken prisoner by the enemy, and to the
surviving dependants of all such veterans and of veterans who were killed or disabled in
the course of their military service. The War Veterans Allowance Act, first enacted
in 1930, provides special income-support benefits to veterans in need.
As indicated
above, Bill C-61 proposes to transfer the provisions for merchant navy veteran benefits
from the Merchant Navy Veterans and Civilian War-related Benefits Act, S.C. 1993 c.
C-31, to the Pension Act and the War Veterans Allowance Act, which currently
apply only to veterans of the armed forces (i.e., the army, navy and air force). Clause 1
of the bill would amend the definition of "veteran" in the War Veterans
Allowance Act to include merchant navy veterans of the two World Wars and the Korean
War. Likewise, clause 4 of the bill would amend the definitions of "member of the
forces" and "military service" or "service" in the Pension Act
to include Canadian merchant navy veterans and their wartime service during those wars.
2.
Broadening and Clarifying Merchant Navy Veterans Eligibility
for
Benefits
a. Introduction
Bill C-61
would clarify and broaden the contexts in which merchant mariners would be deemed to be
merchant navy veterans entitled to benefits under the War Veterans Allowance Act
and the Pension Act, to bring their situation more into line with that of the armed
forces veterans.
Former members
of the armed forces are eligible for War Veterans Allowance if they served in the United
Kingdom during World War I;(1) served in a
"theatre of actual war" during World War I or World War II;(2) departed from Canada or the United States prior to the Korean
War armistice date of 27 July 1953, in order to participate in United Nations
military operations in Korea;(3) or were
entitled to a pension in respect of an injury or disease incurred or aggravated during
their service in World War I, World War II or the Korean War.(4) Pension Act benefits are available to members of the
armed forces who were killed or disabled during their service in the forces during World
War I or World War II.(5) The death or
disability need not be attributable to service in a theatre of actual war.(6) Moreover, the timeframes of those conflicts are broadly
defined as, in the case of World War I, 4 August 1914 through 31 August 1921;
and, in the case of World War II, 1 September 1939 through 1 April 1947.(7) In the case of armed forces veterans of the
Korean War, those who served in the special force for Korea and those members of the
regular force who served in the Korean theatre of operations are treated for the purposes
of Pension Act benefits as having served in World War II.(8)
By contrast,
the Merchant Navy Veteran and Civilian War-related Benefits Act requires that
merchant mariners generally must have had service on a Canadian ship during a "high
seas voyage" to qualify as "merchant navy veterans" entitled to benefits
under the War Veterans Allowance Act and the Pension Act.(9) In the case of the Korean War, to qualify for benefits
merchant navy veterans must also have served in "dangerous waters" as defined by
the Veterans Review and Appeal Board.(10) A
"high seas voyage" is defined as a foreign voyage, any part of which was outside
Canadian territorial waters;(11) a home trade
voyage, any part of which was outside Canadian territorial waters and which was between
two provinces, Canada and the United States or between Newfoundland and Labrador or Saint
Pierre and Miquelon and any outside port, respectively (but excluding any voyage where the
ship went south of 36º North latitude or through the Bering Strait); or any voyage during
which the ship was attacked by the enemy.(12)
b. Changes to War
Veterans Allowance Eligibility for
Merchant Navy
Veterans of World Wars I and II
Clause 3(1) of
Bill C-61 would clarify and to some extent expand the eligibility criteria for War
Veterans Allowance benefits for merchant navy veterans. This would be achieved by adding a
definition of merchant navy veteran to the War Veterans Allowance Act in a proposed
new section 37(7.3); this new definition would go beyond that found in section 6(1) of the
Merchant Navy Veteran and Civilian War-related Benefits Act (discussed above).
Clause 3(1) would retain the existing eligibility criteria for merchant navy veterans of
World War I or World War II: service on a Canadian ship during a foreign voyage; a home
trade voyage where the ship went outside the territorial waters of Canada; or any voyage
during which the ship was attacked by the enemy.(13)
However, clause 3(1) would also clarify the scope of these criteria by specifically
addressing certain scenarios. For a "foreign voyage" to qualify for the purposes
of War Veterans Allowance benefits, the ship would no longer have actually had to leave
Canadian territorial waters; it would be sufficient that the ships destination (or
point of departure) was outside Canada, Newfoundland, the United States or Saint Pierre
and Miquelon.(14) Furthermore, search and
rescue, salvage, cable-laying and cable repair operations would be specifically added to
the definition of a qualifying "home trade voyage."(15) Finally, in addition to the situation in which a ship
suffers enemy attack during a voyage, the following scenarios would qualify a voyage for
the purposes of War Veterans Allowance benefits: where another Canadian or allied ship in
the vicinity was attacked; where the ship was attacked or damaged by friendly forces
engaging the enemy; or where the ship was damaged by marine hazards due to the war.(16)
Clause 3(1)
would also add some new situations that would make merchant navy veterans eligible for War
Veterans Allowance benefits: where the veteran had taken part in a voyage for which a war
risk bonus was available;(17) where the
veteran had travelled through or over a theatre of actual war for the purposes of
proceeding to a Canadian ship in order to serve on a qualifying voyage (see above, clause
3(1), new War Veterans Allowance Act section 37(7.3(a)) or to return home from such
a voyage;(18) or where the veteran had served
in a theatre of actual war as a member of a Canadian manning pool or while returning home
from such service.(19) Clause 3(1) would also
extend eligibility for War Veterans Allowance benefits to anyone of Canadian domicile who
met the foregoing criteria in respect of service on an allied ship or who was a distressed
mariner.(20) As is currently the case, War
Veterans Allowance benefits would also be available to persons eligible for a pension
under the Pension Act in respect of their service as Canadian merchant mariners
during the two World Wars.(21) However, the
bill would also amend and expand the eligibility criteria for merchant navy veterans in
respect of Pension Act benefits (see discussion of clause 5 below) so that merchant
mariners killed or disabled in a variety of service situations other than a high seas
voyage would be eligible for Pension Act benefits.(22)
c.
Changes to Eligibility Criteria for Pension Act Benefits with
Respect
to Merchant Navy Veterans of World Wars I and II
In terms of Pension
Act benefits for World War I or World War II service, clause 5 of the bill would
extend eligibility to anyone who met the criteria set out in clause 3(1) with respect to
the War Veterans Allowance Act: service on a voyage for which war risk bonus was
payable; service on a foreign voyage; service on a home trade voyage that went outside
Canadian territorial waters; service on a voyage where the ship saw war-related action; a
persons travel to or from service on such a voyage; or service in a theatre of
actual war as part of a Canadian manning pool.(23)
In addition,
clause 5, in new Pension Act sections 21.1(3)(b) and (4)(b), (c) and (d), would
extend Pension Act coverage to service in a Canadian manning pool(24) during World War I or World War II and to any of the
following forms of service or any other reasonably similar form: service in any capacity
under an agreement signed with the Director of Merchant Seamen to join a Canadian manning
pool and to serve at sea on foreign-going ships, as directed, for a period of two years or
the duration of the war (whichever was shorter); being permanently or recurrently employed
at sea by an owner or charterer of a ship or by Canadian Marconi Company Limited, where
the person signed an agreement to continue to serve at sea for the duration of the war if
required by the employer, was paid war service bonus by that employer, or made two or more
qualifying voyages as described above in relation to the War Veterans Allowance Act
(see proposed new section 37(7.3)(a) in clause 3(1) of the bill, above)(25) on ships operated by certain shipping companies;(26) or being a trainee at a Canadian marine
training school under an agreement to join a Canadian manning pool thereafter.(27) The intent of these changes is to place Pension
Act coverage for merchant navy veterans on the same basis as that for armed forces
veterans; that is to say, coverage would be based on the persons liability to serve
in a theatre of war, rather than only on actual service in a theatre of war.
d.
Changes with Respect to Eligibility of Merchant Navy Veterans
of the
Korean War for Veterans Benefits
Clause 3(1)
would also clarify which Canadian merchant navy veterans of the Korean War would be
eligible for War Veterans Allowance benefits. Included would be any person who had served
on a Canadian ship during the period of the Korean War (25 June 1950 to 27 July
1953) in any of the waters within a specified zone off the coasts of Siberia, Korea and
China,(28) or who was or would be eligible for
a pension in respect of a disability incurred or aggravated during merchant marine service
in the Korean War as defined in the new section 21.1 of the Pension Act (see clause
5 of the bill).(29) Clause 5 would provide for
Pension Act coverage for merchant navy veterans on the same basis as is proposed in
clause 3(1) for War Veterans Allowance benefits.(30)
However, clause 5 of the bill would add certain elements to the definition of eligible
Korean War service for the purposes of the Pension Act. Clause 5 (see new Pension
Act section 21.1(2)(b)) refers to the portion of a voyage that was in the specified
zone referred to above as the "Korean-related part of the voyage." Clause 5
would extend Pension Act coverage to those portions of a voyage that were outside
that zone but which, in the opinion of the Minister of Veterans Affairs, were essential to
the prosecution of the war. Eligible Korean War service would also include any period of
authorized leave with pay during the Korean-related part of the voyage; any period of
enemy captivity that started during the Korean-related part of the voyage or was a result
of that part of the voyage; any period of hospitalization resulting from the
Korean-related part of the voyage; and any period as a distressed mariner that began
during the Korean-related part of the voyage.
3.
Expansion of Permissible Evidence of Qualifying Service or Injury
Bill C-61 also
seeks to deal with a particular administrative and evidentiary problem faced by merchant
navy veterans and their survivors in applying for benefits. Many personnel records in the
hands of private shipping companies were destroyed after World War II. In such cases,
clause 3(1) of the bill would amend the War Veterans Allowance Act to permit the
Minister of Veterans Affairs to accept a statutory declaration or like statement from
anyone regarding a persons service as a merchant navy veteran of World War I, World
War II or the Korean War, subject to the following conditions : there would have to be
corroboration in official records as to the existence of the ship on which the person
claimed to have served; no information in the statement could be contradicted by other
evidence; and, after taking into account such corroboration as might be available, the
Minister of Veterans Affairs would have to be satisfied (on a balance of probabilities)
that the information in the statement was true.(31)
Clause 5 would amend the Pension Act to permit the acceptance of such statements in
the same circumstances with respect to such merchant navy service and with respect to any
injuries or disease suffered or contracted by a person during such service.(32) Currently in such cases, the Minister may
accept such a statement only from a disinterested person, thereby precluding veterans
themselves as a source of such information.(33)
Clause 5 would also specifically admit a manning pool record card as conclusive evidence
of service in a Canadian manning pool or, in the absence of evidence to the contrary,
would admit evidence that the Director of Merchant Seamen had paid the person a war
service bonus.(34)
4. Extension of
Supplementary Pension Benefits to Certain
Veterans of
Allied Merchant Navies
The Pension
Act offers supplementary pension benefits to persons who served in allied forces
during World War I or World War II and who were domiciled in Canada prior to their war
service (see sections 64 through 68 of the Act). Clauses 10 through 14 of Bill C-61 would
amend the Pension Act to extend such benefits to persons who had eligible service
with an allied merchant navy during those wars.
B.
Continuation of War Veterans Allowances for Allied Veterans without
Pre-War
Canadian Domicile Who Reside outside Canada
Canadian War
Veterans Allowance benefits are not limited to Canadian citizens or to persons who served
in the Canadian military. They have also been available to and in respect of any person
who served in any of His Majestys forces or other allied forces in World War I or
World War II, provided that the person was domiciled in Canada at the time of enlistment;
or has resided in Canada for a total period of ten years.(35)
In 1995,
however, amendments to the War Veterans Allowance Act cut off veterans allowances
for allied veterans without pre-war Canadian domicile who continued to reside outside
Canada after February 1996.(36) The federal
Cabinet decided in 1995, however, not to enforce this cut-off date in view of unforeseen
hardships for overseas recipients and their Canadian families resulting from the
requirement for recipients to return to Canada. Clause 2(1) of the bill would formalize
this policy decision so that affected recipients could continue to receive the allowances
until a date fixed by the Minister of Veterans Affairs. Clause 2(1) would, however,
preclude survivor benefits under the Act for persons who became the spouse or child of
such non-resident allied veterans after 2 December 1998. Clause 2(2) would validate
all War Veterans Allowance payments made to the affected veterans and survivors after the
unenforced February 1996 cut-off date.
C. Additional
Benefits for Disabled Former Prisoners of War
In addition to
disability pensions intended to compensate recipients for diminished work and earning
potential, the Pension Act provides financial benefits to cover special expenses
relating to the persons disabled condition or to compensate for such things as pain
and suffering.
Where a person
receiving a disability pension becomes totally disabled (for whatever reason), he or she
is entitled to receive additional funds in the form of an "attendance allowance"
to cover such things as home nursing care (see Pension Act, section 38(1)). Clause
6 of the bill would extend the availability of the attendance allowance to persons in
receipt of prisoner of war compensation under the Pension Act (see Part III.1 of
the Act), who have since become totally disabled.
Furthermore, a
person who is receiving a full disability pension and who is suffering an exceptional
incapacity a helpless condition, continuing pain and discomfort, resultant loss of
enjoyment of life or diminished life expectancy is entitled to additional funds in
the form of an "exceptional incapacity allowance" (see Pension Act,
section 72). Clause 16 of the bill would extend eligibility for this allowance to disabled
former prisoners of war where the amount of their disability pensions combined with their
prisoner of war compensation was equal to or exceeded the value of a full disability
pension (and where the person otherwise met the criteria of "exceptional
incapacity").
D.
Survivors Pensions
In addition to
pensions to persons disabled as a result of military service, the Pension Act
provides for the payment of benefits to their surviving spouses and dependent children and
certain other persons. The rates of such benefits are based on the level of the
pensioners disability pension at the time of death. The Act already makes provision
for situations where the pensioners level of disability had increased prior to
death, but where no increase in pension had been awarded. Section 48 provides for the
survival of pension increase applications after the death of the applicant pensioner and
vests the survivors with appeal rights in respect of any decision on such an application.
Section 49 provides for situations where no application for an increase was pending at the
time of the pensioners death by permitting such an application to be made
posthumously by a survivor of the pensioner. However, this provision applies only in
respect of pensioners who were receiving disability pensions in the range of 47% or less
at the time of death and where the claimed increase would put them above the 47% range.
Clause 8 of the bill would amend the Pension Act to permit disability assessment
increases for survivors within the 0% to 47% range.
The bill would
also clarify the provisions of the Pension Act governing the effective date of
survivors pensions payable in respect of deceased members of the forces (which,
under the Act, includes former members of the forces) and of increases in those pensions.
Clause 9 of
the bill would redraft section 56(1)(a) to make the following clarifications. Under the
new section 56(1)(a), the effective date of pensions in respect of the death of a member
of the forces would be the day following the date of the members death, where the
pension was awarded within three years of the death, or a date three years prior to the
award, where the pension was awarded three years or more after the death. These new
effective dates would apply in the case of a death pension awarded in respect of a
members death during military service, or in the case where the survivor was already
known to the Department because the disability pension being paid to the member at the
time of death included an additional amount for the dependant. However, where no such
additional amount was being paid, or where the dependants application was continuing
a members pension application that was pending at the time of the members
death (see section 48 of the Act), the effective dates in new section 56(1)(a.1) would
apply: the later of the day on which the application was first made or a day three years
prior to the day on which the pension was awarded. Where, however, the member died while
still serving in the Canadian Forces and the dependant was receiving a payment or payments
that were in substance a continuation of the members pay and benefits, none of the
effective dates given above would apply. Rather, in those cases, new section 56(1)(a.2)
would set the effective date of the death pension as the day following the last day of the
period in respect of which the payment or payments were received.
Clause 9 would
also establish new section 56(1.1) to clarify the effective dates of pension increases
sought on behalf of a members dependants after the members death to reflect
increases in the level of the members disability prior to death (see section 49 of
the Act). In the case of a members surviving spouse or child, or of a members
parent or any person in place of a parent who was being wholly or substantially maintained
by the member at the time of the latters death, the effective date for such
increases would be the later of the day on which the application was made and a day three
years prior to the day on which the increase was awarded (new section 56(1.1)(a)). In the
case of a surviving parent or person in place of a parent who was not being wholly or
substantially maintained by the member at the time of the latters death, the day on
which such increases would be payable would be fixed by the Minister of Veterans Affairs
(new section 56(1.1)(b)).
E. Civilian War-Related Benefits
Bill C-61
would make certain adjustments to the war-related benefits available to certain civilian
personnel who played a role in the war effort. Under the Merchant Navy Veteran and
Civilian War-related Benefits Act (which would be renamed the Civilian War-related
Benefits Act pursuant to clauses 18 and 19 of the bill), certain civilian personnel
are eligible for certain Pension Act or War Veterans Allowance Act benefits
in respect of their war services.
Clause 22
would replace the term "Canadian salt water fishermen" in the Merchant Navy
Veteran and Civilian War-related Benefits Act with the term "Canadian salt water
fishers" and would provide a consolidated definition of the term that would clearly
cover those engaged in the Newfoundland, as well as the Canadian, salt water fishing
industry. This would render unnecessary section 15 of the Act, which would be repealed by
clause 26 of the bill. The new definition of the term would also clarify that such fishing
activity need not have been within Canadian or Newfoundland territorial waters. The
Acts definition of "enemy action or counteraction against the enemy,"
which is the necessary context for any death or disability for which Pension Act
benefits may be awarded in respect of such persons, would use the phrase "marine
hazards occasioned by the war," in place of "extraordinary marine hazards
occasioned by the war," to relax the standard for incidents eligible for coverage by
the Pension Act in respect of salt water fishers.
Where official
records were not available, clause 23 of the bill would amend section 8 of the Merchant
Navy Veteran and Civilian War-related Benefits Act to permit corroborated and
uncontradicted formal statements to be accepted from anyone, including the person applying
for benefits, as proof of the persons service as a Canadian salt water fisher and of
any disability suffered in the course of such service.
Clauses 28
through 34 would amend the Act to extend attendance allowance, clothing allowance (i.e.,
for wear and tear on clothing or for specially made apparel necessary due to a disability
such as an amputation) and exceptional incapacity allowance benefits under the Pension
Act to certain civilian personnel for war service related disabilities. The bill
would, in certain cases, extend eligibility for such allowances to the following
personnel: auxiliary services personnel; Corps of (Civilian) Canadian Fire Fighters for
Service in the United Kingdom; air raid precautions workers; persons receiving remedial
treatment, having been either conscripted for training, service or duty under The
National Resources Mobilization Act, 1940, or having volunteered for active service in
the armed forces but not accepted by reason of their physical condition; voluntary aid
detachment workers; overseas welfare workers; and Canadian Civilian Air Crew of the Royal
Air Force Transport Command.
Section 57(1)
of the Merchant Navy Veteran and Civilian War-related Benefits Act provides that
certain civilians are entitled to War Veterans Allowance benefits on the basis of certain
wartime service. Section 56 of the Act defines the civilians and war services that are so
eligible, which include: anyone who, during World War I or World War II, served at sea on
a ship of Canadian or Newfoundland registry for at least six months and who made at least
one trip through dangerous waters during that period of service; and anyone who served in
like manner on a British or allied ship and who was a Canadian citizen, Canadian national
or British subject domiciled in Newfoundland at the commencement of their service. Clauses
35(4) and 35(5) of the bill would amend section 56(3) of the Act to exclude any period
where the person was under the age of fourteen from the calculation of the persons
eligible service at sea for the purposes of this definition.
F.
Regulation-Making Authority of the Minister of Veterans Affairs
Section
5(1)(g.1) of the Department of Veterans Affairs Act, R.S.C. 1985, c. V-1, gives the
Minister of Veterans Affairs the authority to make regulations, subject to the approval of
the Governor in Council, for the provision of gravemarkers and financial assistance
towards the expenses of last sickness, funeral, burial and cremation of former members of
the Canadian Forces, former members of Her Majestys armed forces or of any forces
allied thereto who meet certain criteria.
Clause 37 of
the bill would amend section 5(1)(g.1) of the Act to provide the Minister with the
authority to establish and stipulate standards for the services and assistance referred to
above and to enter into agreements with any body for the provision of such services and
assistance. Clause 37 would add merchant navy personnel to those eligible for such
assistance and provide the Minister with the authority to make regulations governing the
maintenance and replacement of gravemarkers as well as their initial provision. Clause 37
would also provide the Minister with the authority to make regulations determining when
insufficient funds were available for an eligible persons funeral, burial or
cremation, a situation in which the Minister may provide financial assistance for such
services. Finally, clause 37 would add a further situation in which gravemarkers or
financial assistance towards the expenses of last sickness, funeral, burial and cremation
could be provided by the Minister: where another department or agency of the Government of
Canada, or the government of another country requested the Department to provide such
assistance and services and agreed in writing to reimburse the Department for the costs.
G. Changes to the Veterans
Review and Appeal Board Act
Section 19(2)
of the Act provides that the Chairperson of the Board may refuse to establish a review
panel to hear an application for a review of a decision on a Pension Act award
where the Chairperson considers the application to be "trivial, frivolous or
vexatious." Under clause 38, section 19(2) would be amended to provide that the
authority to refuse to establish a panel in such cases could be delegated by the
Chairperson to any member of the Board. The wording characterizing an application refused
in these circumstances would be changed from "trivial, frivolous or vexatious"
to "such that no reasonable review panel could dispose of [the application] in a
manner favourable to the applicant."
Clause 40
would amend section 36(1) of the Act to make it clear that in determining the time and
place of the Boards sittings, the Chairperson must have regard to the convenience of
both the applicant and the Board.
Section 111 of
the Act gives the Board the authority to reconsider the decisions of predecessor bodies in
certain situations and either to confirm, amend or rescind them where it determines that
an error has been made with respect to any finding of fact or the interpretation of any
law. For the decisions of the Veterans Appeal Board, the Pension Review Board or the War
Veterans Allowance Board, the Board may reconsider on its own motion or on an application
where new evidence is presented to it. Clause 41 would add Assessment Boards or
Entitlement Boards established under the former Pension Act to the section 111 list
in the Act of predecessor bodies whose decisions may be reviewed on the Boards own
motion.
H. The Halifax
Relief Commission Pension Continuation Act
This Act (S.C.
1974-75-76, c. 88, as amended) provides for the continuation of disability pensions for
victims of the 1917 Halifax explosion. Section 5(1) of the Act created a special account
in the Consolidated Revenue Fund, known as the Halifax 1917 Explosion Pension Account,
from which these pension were to be paid. As it now seems that the Account will be
depleted prematurely, clause 42 of the bill would amend sections 5(2) through 5(4) of the
Act to allow for the continued payment of such pensions from the Consolidated Revenue Fund
after such depletion.
COMMENTARY
Bill C-61
seeks to respond to a number of suggestions by veterans for changes to veterans benefits
legislation. Many of the suggestions for change addressed in the bill reflect the evidence
of witnesses representing veterans organizations before the House of Commons Standing
Committee on National Defence and Veterans Affairs in hearings held just prior to the
tabling of the bill.(37) The most likely
source of controversy with respect to the bill would be the absence of a proposal for
retroactive compensation to surviving merchant navy veterans for their exclusion from most
of the post-war benefits given to other veterans; such compensation is a long-standing
demand of many merchant navy veterans and has been the subject of recent protests.(38)
(1) War Veterans
Allowance Act [hereafter, WVA], sections 37(3)(b) and 37(4)(a)(vii).
(2) WVA, sections 37(3)(a)(i) and 37(4)(a)(iv). As
amended by clauses 3(2) and 3(3) of Bill C-61, "theatre of actual war" would be
defined in section 37(8) of the War Veterans Allowance Act as follows. With respect
to World War I: in the case of army and air force veterans, the zone of the allied armies
of Europe, Asia or Africa, or wherever the veteran sustained injury or contracted disease
directly by a hostile act of the enemy; and, in the case of naval forces or the merchant
navy, anywhere on the high seas or wherever there was either contact with hostile enemy
forces or the causing of injury or disease to the veteran by a hostile act of the enemy.
With respect to World War II: in the case of Canadian forces veterans or merchant navy
veterans, any place outside of the Western Hemisphere, including, in the case of service
in aircraft, duties performed outside of Canada, Newfoundland, the United States, Saint
Pierre and Miquelon and the territorial waters thereof; and service anywhere in a ship or
other vessel, which service is classed as sea time for the purpose of
advancement of naval ratings, or which would be so classed were the ship or other vessel
in the service of the naval forces of Canada. Clause 3(4) would add a new section 37(8.1)
to the War Veterans Allowance Act, which would provide a definition for the concept
of " sea time for the purposes of advancement in naval ratings." In
the case of veterans of any of His Majestys other forces or of any allied forces,
"theatre of actual war" would be such places, zones or areas as are prescribed
by the Veterans Review and Appeal Board (WVA, section 37(8)(c)(ii)).
(3) WVA, section 37(7)(a).
(4) WVA, sections 37(3)(a)(ii) and (iii),
37(4)(a)(v) and (vi), and 37(7)(b).
(5) Pension Act, section 21(1)(a) and (b).
(6) The War Veterans Allowance Act is
generally aimed at military personnel who actually served overseas during a war. The Pension
Act, by contrast, is aimed at military personnel who were killed or disabled during
their military service, whether or not death or disability occurred in a theatre of war or
as a result of combat or enemy actions. Thus the extension of War Veterans Allowance
benefits to persons entitled to military disability pensions does broaden the scope of the
War Veterans Allowance program in the case of military personnel who suffered a disabling
disease or injury during their wartime military service, but not necessarily in
the war as such.
(7) Pension Act, section 3(1).
(8) Veterans Benefit Act, R.S.C. 1970, c.
V-2, section 5(1), as amended by S.C. 1985, c. 26, section 66.
(9) Merchant Navy Veteran and Civilian
War-Related Benefits Act [hereafter, MNVCWBA], sections 6(1) ("merchant navy
veteran"(a), (b) and (c)), 9, 56(1) ("merchant navy veteran") and 57(1).
Having been awarded the 1939-45 Star (the service medal for service at sea in the merchant
navy during World War II) is also sufficient to qualify for veterans benefits as a
merchant navy veteran (MNVCWBA, section 6(1) ("merchant navy veteran" (d)).
(10) MNVCWBA, section 6(1) ("merchant navy
veteran" (c)).
(11) The definition of "territorial waters
of Canada" which is used in the Merchant Navy Veteran and Civilian War-Related
Benefits Act (section 6(1)), and which would be retained in Bill C-61 (clause 3(1),
new WVA section 37(7.1), is a specially circumscribed one. For example, the definition
specifies a limit of only three nautical miles from shore and, even then, expressly
excludes certain waters that might otherwise fall within this limit, such as: any of the
waters of the St. Lawrence River which are seaward of the mouth of the Saguenay River; and
the waters of the Strait of Juan de Fuca which are westward of 124º 30 West
longitude. This definition acknowledges the threat posed by enemy forces in waters which
would not normally be considered to be on the high seas and thereby has the effect of
including more merchant navy voyages as qualifying voyages for the purposes of veterans
benefits.
(12) MNVCWBA, section 6(1) ("high seas
voyage" and "home trade voyage")).
(13) Clause 3(1), new WVA section 37(7.3)(a)(ii),
(iii) and (iv)(A).
(14) Clause 3(1), new WVA sections 37(7.3)(a)(ii)
and 37(7.1) ("foreign voyage").
(15) Clause 3(1), new WVA section
37(7.3)(a)(iii)(D).
(16) Clause 3(1), new WVA section
37(7.3)(a)(iv)(A) and (B).
(17) Clause 3(1), new WVA section 37(7.3)(a)(i).
The war risk bonus was a supplement paid to ships crews by shipping companies or by
the Government of Canada for service in dangerous waters (see clause 3(1), new WVA section
37(7.1)).
(18) Clause 3(1), new WVA section 37(7.3(b)).
(19) Clause 3(1), new WVA sections 37(7.3)(c) and
37(7.3)(b)(ii)). Manning pools were pools of qualified merchant seamen who signed up for
assignment on particular voyages by shipowners and shipping companies. During the war, due
to the need to retain a sufficient number of merchant seamen to transport war supplies and
provisions in the face of the risks posed by enemy forces, the Government of Canada
offered to pay merchant seamen during their time in manning pools in between voyages. In
return, however, the merchant seamen were required to go where they were sent. The
Government also imposed other elements of military discipline over merchant seamen, such
as criminal liability for desertion from a ship or manning pool (see Merchant Seaman
Order of 1941).
(20) Clause 3(1), new WVA section 37(7.3)(d).
(21) Clause 3(1), new WVA section 37(7.3)(e) and
MNVCWBA, section 56(1) ("merchant navy veteran").
(22) Clause 3(1), new WVA section 37(7.3)(e) and
clause 5.
(23) Clause 5, new Pension Act section
21.1(3)(a) and (4)(a).
(24) Pursuant to clause 5, new Pension Act
section 21.1(2)(d), the period of a persons service in a manning pool would include:
any period of training; any period of authorized leave with pay; and any period of
hospitalization resulting from injury or disease incurred while the person was a member of
the manning pool.
(25) Pursuant to clause 5, new Pension Act
section 21.1(2)(a), the period of a persons service on a qualifying voyage or trip
as referred in clause 3(1), new WVA section 37(7.3)(a) (discussed above), would include,
for the purposes of the Pension Act: any period of duty preparatory to the voyage
or trip; any period of duty between the end of the voyage or trip and the persons
return to Canada; any period of duty in Canada after the voyage or trip that was
consequential thereto; any period of authorized leave with pay during the voyage or trip;
any period of enemy captivity which commenced during the voyage or trip or occurred as a
result thereof; any period of hospitalization resulting from the voyage or trip; and any
period as a distressed mariner. Moreover, for World War II merchant navy veterans whose Pension
Act coverage would be based on the criteria of two or more qualifying voyages with a
designated company, that coverage would extend from the beginning of the period of service
(including the periods described above) on the first such voyage until the end of the
period of service on the last such voyage, except for any period where the person was
engaged in any other employment, business or occupation (see clause 5, new Pension Act
section 21.1(2)(h)).
(26) As per clause 5, new Pension Act section
21.1(4)(c)(iii): Canadian National Steamships, Canadian Pacific Steamships, Imperial Oil,
Park Steamships or any other shipping company prescribed in the regulations. The authority
to make regulations prescribing other such shipping companies would be vested in the
Governor in Council in clause 17 of the bill in an amendment to section 91 of the Pension
Act.
(27) Pursuant to clause 5, new Pension Act
section 21.1(2)(i), the period of a persons service as a trainee at a Canadian
marine training school would include: any period of authorized leave with pay; any period
of transportation whose costs were paid by the Department of Transport under the authority
of Order in Council P.C. 148/9130 of 22 November 1941; and any period of
hospitalization for an injury or disease which arose while the person was a trainee.
(28) See clause 3(1), new WVA section 37(7.4)(a).
(29) Clause 3(1), new WVA section 37(7.4)(b).
(30) Clause 5, new Pension Act section
21.1(5).
(31) Clause 3(1), new WVA section 37(7.2)(d).
(32) Clause 5, new Pension Act section
21.1(2)(j).
(33) See MNVCWBA, section 8.
(34) Clause 5, new Pension Act section
21.1(2)(e) and (f).
(35) WVA, sections 2(1) ("veteran"),
37(4), 37(6), 6.2(1) and 6.2(2).
(36) S.C. 1995, c. 17, sections 70 and 71.
(37) See: House of Commons, Standing Committee on
National Defence and Veterans Affairs, Minutes of Proceedings and Evidence, 1st
Session, 36th Parliament, 5 November 1998, 26 November 1998 and 1 December 1998.
(38) Nelson Wyatt, "Merchant Mariners Sit In
for Recognition," The Globe and Mail (Toronto), 4 February 1999.
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