Ottawa revives Harper-era legal arguments to block pensions for injured vets

Justice department lawyers willrevive legal arguments advanced by the former Harper government to try to block a lawsuit by sixAfghan war veterans intent on restoring pensions for injured and wounded soldiers.

CBC News first reported last month that the federal government is taking veterans involved in the Equitas lawsuit back to court to try to block certain benefits forsoldiers,despite aLiberal campaign promise to better support themafter an era ofConservative cuts.

A peaceagreement of sorts, reached by former veterans affairs minister Erin O'Toole, recentlyexpired without any sort of resolutionmeaning the litigation will now proceed at the B.C. Court of Appeals.

• Court action turns 'Liberal election campaign into a lie'
• Frustration over New Veterans Charter boils over

The government's handpicked lawyers will arguethatCanada does not have a social contract or covenant with veterans, and that a "scheme providing benefits cannot be said to amount to a deprivation merely because claimant views the benefits as insufficient."

The plaintiffshave argued in court that the lump-sum payment wounded veteransreceiveunder the New Veterans Charter as opposed to the lifetime pension that was offered to veterans before 2006 is inadequate compensation, as they receive less money over a lifetime.

In court documents filedthis week, the government's top class action lawsuitlawyer, Paul Vickery, said that"the submissions made by [former Conservative attorney-general Rob Nicholson] on hearing of the appeal, as set out in the factumfiled by him, accurately reflect the current position of the federal government."

That is a controversial position among many in the veterans community as there is a long-held belief that Canada has a special responsibility to its veterans asocial contractbased on the promisepoliticians have made for generations to adequately care for those soldiers who arehurt in the line of duty.

"No set of principles exist that can be stated with certainty, understood with clarity, or accepted with unanimity among the people of Canada to define a 'social contract' or 'social covenant' as alleged," the government lawyers argued in 2014, adding there is no fiduciary duty"to place the interests of disabled veterans above the interests of all other Canadians."

Those arguments were later repudiated whenO'Toolewas brought in to replace the embattledJulian Fantino, who had a fractious relationship with veterans groups.

O'TooleremovedVickeryfrom the caseand replaced him with Joel Watson, a litigatorfrom the private sectorand himself a former veteran. But after the Liberals defeated the Conservativeslast October, the new veterans affairs minister, Kent Hehr, put Vickery back in charge.

"I cannot discuss the specifics of an ongoing court case," Hehr said in a recent statement to CBC News.

The case returns to court on Friday.

Trudeau promised lifetime pensions

TheLiberal platform in the last electionexplicitly promised to restore the pension benefit."We will re-establish lifelong pensions as an option for our injured veterans, and increase the value of the disability award," the platform reads. Prime Minister Justin Trudeaureaffirmed that commitment in a stump speech on the campaign trail.

The promise was also included inHehr's mandate letter from the prime minister, but was notably absent from the government's first budget introduced in March, although the government did make substantial new funding commitments to other veterans programs.

Moreover, all parties voted unanimously in favour of a motion introduced by NDP MP Fin Donnellylast May, which recognized a "stand-alone covenant of moral, social, legal and fiduciary obligation exists between the Canadian people and members of the Canadian Armed Forces who have been injured, disabled or died as a result of military service."

Don Sorochan, the lawyer representing the veterans, said it would be the height of hypocrisy if the Liberal government now rejects those principles in court.

Resolution symbolic, Liberals argue

But government lawyers will do exactly that, according to their memorandum,arguingthat theresolution was largely symbolicand does not oblige the governmentto provide pensions to injured veterans.

"The House of Commons motion referred to by the plaintiffs, while it records the opinion of the then members of Parliament on the matters referred to in the motion, does not have the force of law and cannot bind the federal government," the lawyers wrote.

• Trudeau promises lifelong pensions for injured veterans

Sorochanhas said that the appeal court should not render a decision in the case without hearing additional evidence, namely that the Liberals explicitly campaigned on restoring pensions and voted for Donnelley's motion. He said the original Harper-era appealscase, from December 2014, is outdated and does not reflect the change in governance.

But the government lawyers batted that suggestion away, saying the plaintiffs have no right to introduce evidence at this stage of the legal proceedings.

"It is not open to the plaintiffs to attempt tointroduce evidence on the appeal, since the appeal is from an order madeon a pleadings motion, in which no evidence may be tendered," the memorandum reads.

FollowJohn Paul Tasker on Twitter @JPTasker