Judge reserves decision in dispute over disability benefit formula of veterans

Arguments in a class-action lawsuit involving thousands of military veterans around Canada were heard in Federal Court in Halifax on Tuesday.

The lead plaintiff, Simon Logan, was medically discharged from the Canadian Forces in February 2016 after 28 years of service. About 6,500 veterans from across Canada have joined Logan's suit.

At the time of his discharge, Logan was earning $10,664 each month before taxes, in the form of a base salary of $6,801 and $3,863 in allowances. Logan lives in Ottawa and was not present for the hearing.

Logan's lawyer, Daniel Wallace, said when his client was discharged he expected to receive 75 per cent of his monthly pay, or about $7,998 per month under the military's disability insurance policy.

That policy covers veterans who have suffered a physical or psychological injury during their service that makes it impossible for them to continue serving, and in some cases, impossible for them to work at any other profession.

However, Wallace told the court his client only received around $5,100 per month.

That was because the Canadian Forces calculated the 75 per cent payment on Logan's base salary of $6,801. It did not include his allowances in the calculation.

Question of allowance

The majority of the allowances were given to Logan because of his position as a "special operations assaulter." According to the Canadian Forces, assaulters perform high-risk work such as counterterrorism and hostage rescue.

Wallace argued to Justice Richard Southcott that any ordinary person or military member would include the allowances in their understanding of their pay, and it is reasonable for the court to do the same.

Wallace argued that if the court was to ask a person on Spring Garden Road in Halifax or "the Tim Hortons at CFB Gagetown" what they were paid, that person would answer based on the total amount they earn.

Wallace also argued that since the allowances were subject to employment insurance, the average person would "reasonably think" that the allowances should also be subject to disability insurance.

Wallace was previously co-counsel in a 2013 $887-million settlement of a class-action lawsuit affecting about 7,500 disabled veterans.

'Clear and unambiguous' contract

Lori Ward, who appeared on behalf of the federal government, argued the language used in the contract of military members is "clear and unambiguous" in differentiating monthly pay from allowances.

Ward pointed to sections of the contract that lay out tables defining monthly pay for members depending on their type of service. There are separate sections defining allowances.

Ward said there are certain events that would "disentitle" a person from an allowance, but not from their monthly pay. She gave an example that if a special operations assaulter stopped working as an assaulter, that person would no longer be entitled to that allowance.

She also said the differentiation between pay and allowances is broken down in separate categories on military paycheques twice a month, and that it wouldn't be a surprise to a military person that there is a difference between pay and allowance.

The judge reserved his decision until a later date.

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