After losing infant son and leg in horrific crash, air force captain loses legal battle for compensation

A Canadian air force captain who served two tours in Afghanistan has lost another legal bid for disability benefits, 13 years after losing both her baby son and one of her legs in a motor vehicle accident.

Capt. Kimberly Fawcett has been embroiled in a prolonged battle with the Canadian Armed Forces, which denied her compensation and reimbursement for a prosthetic limb. The CAF determined she was not on duty at the time of the accident and that her injuries were not attributable to her military service.

A series of grievances, internal reviews and legal actions led up to this week's Federal Court of Appeal ruling that sided with the CAF and the Attorney General of Canada.

On Feb. 21, 2006, Fawcett had received permission to arrive late for work. She was carrying out a military-authorized family care plan, driving her infant son to be cared for by his grandparents. That task normally was carried out by Fawcett's husband, but he had been called to last-minute training prior to deployment to Afghanistan.

On a highway ramp near Kingston, Ont., Fawcett's vehicle slid on the ice and came to rest blocking a passing lane. She tried to carry her son to the shoulder of the highway and up an embankment, but was struck by an oncoming vehicle.

In an interview with the National Post published on June 6, 2018, Fawcett described the tragedy and its aftermath. She spoke of how she turned to competitive sports to cope with her grief over losing her son Keiran, who was just nine months old at the time of the crash.

The amputee triathlete also did a second tour in Afghanistan with a prosthetic leg.

"I was serving my country and at the same time not being able to pay for my legs and my leg repairs," she told the newspaper. "I had such amazing experiences when I had both my legs and it's really hard to have to admit to yourself that you don't have the support of your chain of command."

Fawcett's lawyer David Levangie said he and his client are reviewing the decision and exploring further legal options, including a request for an appeal to the Supreme Court of Canada.

"We were hoping for a different result," he told CBC News. "But she is a warrior. She has been fighting this battle for 13 years, and I think she will continue to fight this battle until she gets the proper recognition that she deserves."

Opposition critics demand action

Opposition Conservatives and the NDP have put pressure on the Liberal government to settle the case out of court and give Fawcett the supports she needs.

"She is a patriot and the CAF should be using her in recruiting campaigns instead of fighting her in court," NDP MP Dan Harris tweeted in February.

Conservative MP Phil McColeman raised the issue in the House of Commons in December, insisting a veteran of two deployments to Afghanistan should not have to fight the government for a prosthetic limb.

"She defended our country in Afghanistan, but the military and Veterans Affairs say they will not pay for her prosthesis," he said. "When will the Liberals do the right thing and cover the costs related to her injury?"

At the time, Defence Minister Harjit Sajjan thanked Fawcett for her service and promised the government would assist.

Sajjan promised help

"Our hearts go out to her for the loss she has suffered. We are committed to making sure she gets the support she needs, including for the prosthetic leg," he said. 

"Due to the complexity of the decisions made some time ago, this file is very complex. However, we will not only make sure that she has the right support, but we will work through that complexity to make sure we do right by her."

In a statement provided to CBC News in response to the court ruling, provided by the minister's spokeswoman Renée Filiatrault, Sajjan again expressed thanks for Fawcett's continued service and said the government takes the health and well-being of women and men in uniform very seriously.

"For privacy reasons, I can't speak to the specifics of this case but my priority is to ensure we take care of our people. Officials are in constant contact with Captain Fawcett to ensure we are supporting her needs. I have been very engaged with this case and we are working towards a solution," Sajjan's statement reads.

Fawcett first filed a grievance over being denied compensation in June, 2009. Today's Federal Court of Appeal ruling deferred to the decision made by then-Chief of the Defence Staff Gen. Walt Natynczyk, stating that he "undoubtedly has expertise in interpreting these terms."

"This expertise arises both from his role in the control and administration of the Forces ... and his designation as final authority in the grievance process," the ruling reads.

"The CDS's detailed reasons exhibit justification, transparency and intelligibility. His decision, in my view, falls within the legally and factually defensible range of possible, acceptable outcomes."

'Full suite' of benefits

CAF spokesman Maj. Doug Keirstead said specific details about the support being provided to Fawcett can't be disclosed due to privacy rules. He said that, in general, a "full suite" of benefits is available for ill and injured members, including home and vehicle modification benefits and home assistance support.

"Although these tragic circumstances were not attributable to military service, as a member of the Canadian Armed Forces, Capt. Fawcett continues to receive pay and access to the full range of compensation and benefits available to serving members," he said in an email.

CAF officials are in routine contact with Fawcett to ensure she aware of, and provided with, all of the benefits and support to which she is entitled.

"We have also taken steps to ensure that Capt. Fawcett remains a member of the armed forces for the time needed, in order to put all aspects of this support in place," Keirstead said.

CBC News asked Lavengie if his client is getting all the support and assistance she needs.

"I think probably the fact the matter is before the courts and has resorted to the courts speaks volumes about whether they're doing what they should be doing to assist her."