VRAB I-4

VETERANS REVIEW AND APPEAL BOARD

INTERPRETATION DECISION

Re: In the matter of an interpretation of the Veterans Well-being Act and related Regulations in respect of Additional Pain and Suffering Compensation

EVIDENCE:

THE INTERPRETATION PANEL DECIDES:

The Interpretation Decision Panel (the Interpretation Panel) finds that Chapter 25 of the Table of 2006 Disabilities is ultra vires the authority of the Minister of Veterans Affairs Canada (VAC).

Given that Chapter 25 is ultra vires, the Interpretation Panel finds that the second question is moot.

The Interpretation Panel finds that it does not have jurisdiction over the third question.

Authority to Issue Interpretation Decision

The authority of the Veterans Review and Appeal Board (the Board) to issue an Interpretation Decision stems from Section 37 of the Veterans Review and Appeal Board Act which reads:

The Chief Pensions Advocate (CPA) first submitted questions for an Interpretation Decision regarding Canadian Armed Forces (CAF) members. At the request of the VRAB Chair, CPA consulted with the Attorney General of Canada to identify an agreed set of questions.

The Board and its Empowering Legislation

In accordance with the Veterans Review and Appeal Board Act, the Board has full and exclusive jurisdiction to hear, determine and deal with all applications for review and appeal that may be made to the Board under the Pension Act, and the Veterans Well-being Act - Part 3.

Process

In accordance with subsection 37(2) of the Veterans Review and Appeal Board Act, invitations to participate and make written submissions were extended to organizations which are listed in Appendix A, in accordance with the Prescribed Persons and Organizations Regulations.

The Attorney General of Canada (AGC), The Army, Navy and Air Force Veterans in Canada (ANAVETS), and the Chief Pensions Advocate, as represented by the Bureau of Pensions Advocates (BPA), indicated that they would make written submissions. The AGC and BPA also indicated that they would also make oral presentations. Written submissions were received, along with numerous exhibits. The written submissions can be found in Appendix B.

The Interpretation Panel reviewed all submissions and carefully considered the presentations made during the hearing. In making this decision, the Interpretation Panel was mindful of the statutory obligations upon it as set out in Section 3 of the Veterans Review and Appeal Board Act and in Section 2.1 of the Veterans Well-being Act. These provisions call for a broad and liberal construction and interpretation of the provisions of these statutes in recognition of what veterans have done for their country.

Introduction

BPA and AGC presented the following three questions at the hearing:

1. Does the Minister have legal authority under the Veteran’s Well-being Act and Regulations to create binding statutory instructions for assessing APSC?
2. Are the instructions reflected in Chapter 25 of the 2006 ToD consistent with the object and purpose of the APSC award and the Veterans Well-being Act?
3. How should the Minister and VRAB assess the extent of a Veteran’s permanent and severe impairment under the Veterans Well-being Act and Regulations when determining the grade level, given the requirement for credible and reliable evidence for assessments?

At the hearing, BPA and AGC agreed on the following principles applicable in this case:

• The modern principle of statutory interpretation applies. The Board should choose the interpretation that best ensures that the objectives of the enactments are met.
• The legislation must be interpreted liberally.
• The exercise of delegated authority must be consistent with the specific provisions of the legislation and with its overriding purpose.
• The policy merits of Chapter 25 are not at issue in a vires review. The Board need not determine whether it is “necessary, wise, or effective in practice.”
• Pursuant to subsection 49(1), the 2006 ToD is a valid piece of subordinate legislation for the purpose of completing disability assessments.
• The Minister of Veterans Affairs Canada may issue non-binding guidelines for the better administration of the Veterans Well-being Act provided the guidelines respect the limits of the Minister’s statutory authority and are consistent with the specific provisions and the objectives of the legislation.
• APSC assessments must be informed by the purpose of APSC as set out in the Regulatory Impact Analysis Statement (RIA).
• APSC assessments must be based on any relevant factor.
• The evidentiary principles in the Veterans Well-being Act, s. 43, and Veterans Review and Appeal Board Act, s. 39, must be respected in all cases.¹

At the beginning of the hearing, the Chair confirmed that the general validity of the ToD is not at issue. Rather, the issue raised by Question 1 is whether the Minister has the authority to adopt binding statutory instructions for assessing APSC, specifically Chapter 25 of the ToD.

The remaining two questions before the Interpretation Panel will be addressed as initially formulated by the parties.

ANALYSIS AND REASONS

Positions of the Parties

BPA

In a nutshell, BPA argues that in light of subsections 49(1), 56.6(4), 63(c) and 94(a.1) of the Veterans Well-being Act, it is the Governor in Council (GIC), not the Minister, that holds the authority to create binding regulatory criteria governing APSC such as Chapter 25 of the ToD.

AGC

In a nutshell, AGC argues that subsection 49(1) of the Veterans Well-being Act authorizes the creation of Chapter 25 of the ToD on the basis that APSC is merely an extension on a continuum of benefits for disabilities set out under the Pain and Suffering Compensation (PSC)². As such, Chapter 25 is within the statutory authority of the Minister, the Minister’s discretion in administering the Veterans Well-being Act, and principles of administrative law.

ANAVETS

In their written submissions, ANAVETS refers the Interpretation Panel to the submissions of BPA and essentially argues that Chapter 25’s narrow criteria is incompatible with the Veterans Well-being Act and Section 54 of the Veterans Well-being Regulations which considers “any relevant factor” in the assessment of APSC.

Framework of Analysis

In answering Question 1, the Interpretation Panel must understand the nature and scope of the Minister’s authority within the legislative scheme of the Veterans Well-being Act and related statutory instruments. This will involve consideration of:

• The Test of Vires Subordinate Legislation
• Purpose of the Veterans Well-being Act
• Purpose of PSC
• Purpose of APSC
  • Legislative Provisions
  • Origin
  • Extrinsic evidence informing purpose
• Minister’s Authority with respect to APSC

The Test of Vires Subordinate Legislation

According to the Supreme Court of Canada (SCC) in the Auer³ decision, the standard of review that presumptively applies when reviewing the vires subordinate legislation is the reasonableness standard as set out in Vavilov⁴ unless the “legislature has indicated that it intends a different standard to apply or where the rule of law requires that the correctness standard be applied⁵”.

No exception to the presumption of reasonableness review applies in the present case. The legislature has not indicated that the Minister’s decision to establish Chapter 25 of the ToD must be reviewed on a standard other than reasonableness, nor does the rule of law require that the correctness standard be applied to a vires review of Chapter 25 of the ToD. Accordingly, the Interpretation Panel finds that the presumptive standard of reasonableness applies in the present case.

In the Auer decision, the SCC also determined that the following four factors from their earlier decision in Katz Group Canada Inc.⁶ continue to inform a reasonable review⁷:

The SCC also determined that “for subordinate legislation to be found ultra vires on the basis that it is inconsistent with the purpose of the enabling statute, it no longer needs to be “irrelevant”, “extraneous” or “completely unrelated” to that statutory purpose⁸”.

As instructed by Auer, the Interpretation Panel will now conduct a vires review of Chapter 25 of the ToD, keeping in mind the following SCC’s guidance:

In this case, the Panel has analyzed the different factors mentioned above in a different order:

• Not an assessment of policy merits;
• Presumption of validity;
• A broad and purposive approach; and
• Consistent with both specific provisions of the enabling statute and its overriding purpose or object

(1) A vires review does not involve assessing the policy merits of the subordinate legislation to determine whether it is necessary, wise, or effective in practice

The SCC in Auer has cautioned that reviewing bodies must be careful not to assess the policy merits of the subordinate legislation but only review its legality or validity. As stated in Auer, at para. 33:

(2) Subordinate legislation benefits from a presumption of validity

In Auer¹⁰, the SCC affirmed its position in Katz Group Canada Inc., that the presumption of validity has two aspects: (1) the burden is on challengers to demonstrate the invalidity of subordinate legislation; and (2) where possible, subordinate legislation should be construed in a manner that renders it intra vires; i.e. “if the reasonable standard applies, to overcome the presumption of validity, challengers must demonstrate that the subordinate legislation does not fall within a reasonable interpretation of the delegate’s statutory authority”.

For the reasons outlined below, the Interpretation Panel finds that this presumption has been rebutted as it is not reasonable to interpret Section 49 of the Veterans Well-being Act as granting the Minister the authority to create binding instructions for APSC assessments.

(3) The challenged subordinate legislation and the enabling statute should be interpreted using a broad and purposive approach to statutory interpretation

In relation to the principles of statutory interpretation, the SCC has consistently held that:

In the recent case of Pepa v. Canada (Citizenship & Immigration), 2025, SCC 21, the majority of the Court reiterated these principles at para. 87:

In relation to the grammatical and ordinary meaning, Pepa, at paragraph 89, specifies:

Similarly, Piekut v. Canada (National Revenue), 2025 SCC 13, at paragraph 45, instructs:

In addition to the grammatical and ordinary meaning principles of statutory interpretation, as the present case relates to the interpretation of the Veterans Well-being Act, a Federal statute, the Interpretation Panel is reminded of the SCC’s teachings in Piekut v. Canada (National Revenue), 2025 SCC 13, with regards to the interpretation of both the English and French versions of a piece of legislation, as outlined at paragraphs 46, 52, and 53:

(4) Subordinate legislation must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object

As stated in Auer:

In relation to the governing statutory scheme, the SCC stated the following in Auer at paragraphs 61 and 62¹³.

Purpose of the Veterans Well-being Act

According to its preamble, the Veterans Well-being Act is an “Act to provide services, assistance and compensation to or in respect of Canadian Forces members and veterans and to make amendments to certain Acts”.

Section 2.1 of the Veterans Well-being Act specifically sets out the purpose of the legislation:

The Minister’s position is that the Veterans Well-being Act’s purpose is essentially to provide an appropriate level of benefits to those who serve and Veterans in recognition of their service to Canada.

The Veterans Well-being Act compensates for disabilities related to service. Both PSC and APSC provide compensation for disabilities. The Minister submitted that APSC is merely an extension on a continuum of benefits for disabilities which is set out under the PSC; and as such, Section 49 authorizes the Minister to adopt binding statutory instructions for assessing all forms of disability. Further, the authority in Section 49 extends to the assessment of a “permanent and severe impairment” under subsection 56.6(4) of the Act, because a “permanent and severe impairment” is a severe form of disability. In short, the Minister’s position is that the legal authority for Chapter 25 of the ToD is found in the PSC provisions of the Act.

The Interpretation Panel notes, however, that there are a wide range of benefits for Veterans in addition to PSC such as career transition services, education and training benefits, and rehabilitation services, critical injury benefits, death benefits and clothing allowance which are broader than compensating for disabilities. Therefore, the Interpretation Panel finds that the specific benefit of PSC must be considered to determine its own specific purpose.

In this case, in light of the position of the Minister, the Interpretation Panel will now look at PSC and its purpose in order to understand if and how it relates to APSC.

Purpose of Pain and Suffering Compensation

Sections 2.1, 42, 43, 44, and 45 to 56.5 of the Veterans Well-being Act and Sections 47, 48, 49 to 53.4, 62, 63.1 of the Veterans Well-being Regulations set out the authorities for granting and administering PSC. These provisions address disabilities arising from service related injuries or diseases, aggravated by service, or consequential to other service-related injuries or diseases. The PSC provisions also address fraction entitlement, loss of paired organs or limbs, and determining the extent of entitlement. The main concept of PSC is illustrated in Sections 45 and 46:

The Interpretation Panel notes that the focus of PSC is addressing disability compensation. According to subsection 2(1) of the Veterans Well-being Act, the term “disability” means “the loss or lessening of the power to will and to do any normal mental or physical act. (invalidité)”.

The Interpretation Panel notes that throughout the Veterans Well-being Act provisions for PSC, the term disability is used exclusively. There is no reference to permanent and severe impairment.

According to VAC’s Pain and Suffering Compensation Policy¹⁴ dated 1 April 2019, its intent is:

Section 49(1) of the Veterans Well-being Act specifically gives the Minister the power to develop instructions and a table of disabilities to determine the extent of the assessment for disabilities and reads as follows:

The current ToD created by the Minister under subsection 49(1) specifically refers to “the degree of medical impairment caused by an entitled disability”. Chapter 1 of the ToD states:

As mentioned before, the general validity of this ToD is not at issue. However, because neither APSC nor its specific terminology are mentioned in the PSC provisions, the Interpretation Panel must determine if the Minister has the authority to adopt Chapter 25 of the ToD pursuant to Section 49 of the Veterans Well-being Act.

Purpose of Additional Pain and Suffering Compensation

The APSC was introduced on 1 April 2019 under the Veterans Well-being Act as part of the Pension for Life Initiative. The introduction of APSC was part of the legislative measure contained in Bill C-74 which implemented certain provisions of the Budget tabled in Parliament on 27 February 2018, and other related measures.¹⁵

VAC’s submissions refer to the purpose of APSC as follows :

Legislative provisions for APSC

The authorities for granting and administering APSC are set out in the Veterans Well-being Act (ss 56.6 – 56.8, 63 (c), and 94 (a.1) as well as in the Veterans Well-being Regulations (ss 1.1, 54-54..5). The most relevant provisions in this case are set out below:

Veterans Well-being Act

Veterans Well-being Regulations

Origins of APSC and Legislative history

APSC was introduced on 1 April 2019 under the Veterans Well-being Act as part of the Pension for Life Initiative in Bill C-74 which implemented certain provisions of the Budget tabled in Parliament on 27 February 2018, and other related measures.¹⁶

However, some distinct elements of this benefit were present in earlier versions of the legislation. The Interpretation Panel finds this history useful in situating the APSC in its current context.

In 2006, the predecessor of the Veterans Well-being Act, the Canadian Forces Members and Veterans Re-establishment and Compensation Act (CFMVRCA) came into force. The CFMVRCA included a range of benefits for Members and Veterans. Part 2 of the CFMVRCA included Rehabilitation Services, Earnings Loss Benefit, Supplementary Retirement Benefit, Income Support Benefit, and a Permanent Impairment Allowance (PIA). The Interpretation Panel takes note that in the 2006 CFMVRCA, the PIA referenced the phrase “permanent and severe impairment”, which is now unique to the APSC provision in the Veterans Well-being Act. The PIA was provided under Part 2 of the CFMVRCA and provided:

Section 41(g) of the CFMVRCA specifically retained to the Governor in Council the power to make regulations regarding this allowance:

Under the 2006 CFMVRCA, Part 3 provided for Disability Awards (starting at Section 45), Death Benefit, Clothing Allowance, Regulations, and Detention Benefit. With respect to Section 45, the language of the provision spoke specifically of a disability award. In 2006, there was no reference to “Pain and Suffering Compensation” or “Additional Pain and Suffering Compensation” in Part 3 of the CFMVRCA. The Interpretation Panel notes that the PIA (Part 2, starting at Section 38) and Disability Awards (Part 3, starting at Section 45), were in completely different Parts of the CFMVRCA, used different vocabulary and were characterized as different types of benefits (allowance versus award).

Over the years, the CFMVRCA was amended. However, the reference to Disability Awards in Section 45 continued until significant amendments were made to the entire legislated scheme in 2018 under the re-named Veterans Well-being Act.

In 2018, Section 38 was given a new title, with slightly different eligibility criteria, but still dealing with “permanent and severe impairment”:

Despite the change in title of the benefit in Section 38 from PIA to CIA, the terminology for the Disability Awards in Part 3, Sections 45 and 46 were not changed in 2018.¹⁷

Additional significant amendments were made the following year in the 2019 introduction of the Pension for Life Initiative. The 2019 amendments included the repeal of the CIA provision in Section 38, renaming the Disability Awards starting at Section 45 under the new heading “Pain and Suffering Compensation”, and the creation of a new provision under a new heading “Additional Pain and Suffering Compensation” (APSC). Of note, APSC focuses on permanent and severe impairment starting at Section 56.6. Unlike PIA and CIA, APSC is located in Part 3 of the Act; therefore, decisions regarding APSC are subject to review by VRAB.¹⁸

Extrinsic evidence informing purpose analysis

In trying to determine the purpose of APSC, the Interpretation Panel took note of the guidance provided by the SCC in Auer:

Based on the SCC’s direction, the Interpretation Panel considered the Regulatory Impact Analysis Statement (RIAS) published in the Canada Gazette to explain the intent of the 2019 amendments to the Veterans Well-being Act.

With respect to ASPC, the RIAS indicates that on 1 April 2019, the amendments in the Veterans Well-being Act and the Veterans Well-being Regulations included several changes to the benefits available to Veterans. Of particular note was the creation of the Pension for Life benefit package to constitute “…a combination of benefits that provide recognition, income support, and a better overall support and stability for the disabled CAF members and veterans and their families as they transition to post-service life”.²⁰

The RIAS also indicates that, as part of the Pension for Life, APSC was presented as a monthly non-taxable benefit. The RIAS explains:

The RIAS also explains how APSC was introduced as a replacement to the former Career Impact Allowance (CIA):

When the Pension for Life provisions were debated in Parliament, APSC was described as a “tax-free monthly benefit recognizing the non-economic impact of severe and permanent service-related impairment that create barriers to re-establishment in civilian life”.²³

In addition to the RIAS, the Interpretation Panel considered Parliamentary debate and entries in the Canada Gazette. During the debate on 15 February 2018, Mrs. Sherry Romanado (then Parliamentary Secretary to the Minister of Veterans Affairs and Associate Minister of National Defence) stated, in part:

In the Canada Gazette, Part II, volume 152, NUMBER 18 (SOR/2018-177) the following was indicated:

The Interpretation Panel also took note of VAC’s policy on APSC dated 15 November 2024, which indicates that its purpose is “ to recognize and compensate Veterans for the non-economic loss associated with service-related permanent and severe impairments that cause barriers to re-establishment”.

Chapter 25 is ultra vires the Minister’s authority

Applying the principles of statutory interpretation, and in light of the above, the Interpretation Panel finds that Section 49 of the Veterans Well-being Act does not provide the authority to the Minister to create Chapter 25 of the ToD, i.e. binding statutory instructions for assessing APSC for the following reasons.

APSC is a complete scheme with a different purpose and its own legislative provisions, distinct from PSC. When compared, it is clear that the purpose of PSC is different from the purpose of APSC. Whereas the focus of PSC provisions is on compensating all disability (regardless of the severity of the disability), the APSC provisions do not focus simply on disability. Instead, APSC is an additional pension for life to compensate Veterans for “permanent and severe impairment” that has resulted in a “barrier to re-establishment in civilian life”.

As noted earlier, the purpose of PSC as set out in the Policy dated 1 April 2019 is “to recognize and compensate for the non-economic effects of service-related disability, including pain and suffering, physical and/or psychological loss, functional impairment and impact on the member’s or Veteran’s overall quality of life and the impact on the lives of the member’s or Veteran’s family (i.e. surviving spouse or common-law partner and dependent children)”. On the other hand, the purpose of the APSC, as set out in in the Policy dated 15 November 2024, is “to recognize and compensate Veterans for the non-economic loss associated with service-related permanent and severe impairments that cause barriers to re-establishment”. APSC is a personal benefit that is intended only for Veterans (who have been released from the CAF) and is paid only during the Veteran’s lifetime.

AGC argues that Disability and Permanent and Severe Impairment are inextricably linked to each other and that every enumerated form of Permanent and Severe Impairment at Section 54 of the Veterans Well-being Regulations is a form of Disability.

While the Interpretation Panel recognizes that there is a link between Disability and Permanent and Severe Impairment set out in Section 56.6 of the Veterans Well-being Act as a veteran must, inter alia, suffer “from one or more disabilities that are creating a permanent and severe impairment” in order to be eligible for APSC, the term “permanent and severe impairment” is not synonymous with disability. The Interpretation Panel notes that while “barrier to re-establishment in civilian life” is a consideration in Part 2 of the Veterans Well-being Act with respect to rehabilitation benefits, the term “permanent and severe impairment”, as defined at Section 1.1 of the Veterans Well-being Regulations, is unique and specific to the APSC benefit under the Veterans Well-being Act.

The Interpretation Act indcates that definitions or rules of interpretation in an enactment apply to all the provisions of the enactment, including the provisions that contain those definitions or rules of interpretation.²⁵ The Interpretation Act also indicates that when ”... an enactment confers power to make regulations, expressions used in the regulations have the same respective meanings as in the enactment conferring the power”.²⁶ Read together, these Interpretation Act provisions further reinforce the Panel’s understanding that Parliament did not intend for the term ”disability” within the Veterans Well-being Act to mean or extend in a way which would encompass the concept of “permanent and severe impairment”.

Guided by the teaching of the SCC in Piekut outlined earlier in relation to interpreting a Federal Statute, the Interpretation Panel reviewed the French version of the following provisions of the Veterans Well-being Act (Loi sur le bien-être des vétérans) and of the Veterans Well-being Regulations (Règlement sur le bien-être des vétérans), which reinforces its view that the APSC and PSC regimes were intended to be, and are in fact, separate and distinct.

Section 2 of the French version of the Veterans Well-being Act, under “Définitions et interprétation” defines “invalidité” as:

« invalidité La perte ou l’amoindrissement de la faculté de vouloir et de faire normalement des actes d’ordre physique ou mental. (disability); »

The French version of subsection 49(1) of the Veterans Well-being Act regarding “assessment of the extent of a disability” is housed under the “Indemnité pour douleur et souffrance” subdivision within Part 3. It indicates that it is in fact the extent of “degré d’invalidité” which shall be assessed by the table of disabilities (“table des invalidités”). It does not refer to the concept of “permanent and severe impairment” (or, in French, “déficience grave et permanente”:

The English and French versions of subsection 56.6(1) are both housed under a new subdivision within Part 3 of the Veterans Well-being Act, i.e., “Additional Pain and Suffering Compensation” or, in French, “Indemnité supplémentaire pour douleur et souffrance”, and both refer to the same concept: that of “permanent and severe impairment and a barrier to re-establishment in civilian life” or, in French, “déficience grave et permanente et entravant sa réinsertion dans la vie civile”:

The French version of subsection 54 of the Veterans Well-being Regulations outlines what amounts to “déficience grave et permanente” (in English, “permanent and severe impairment”) while subsection 54.1 indicates what a relevant factor may be in assessing the extent of “déficience grave et permanente” (again in English, “permanent and severe impairment”):

Finally, the French version of subsection 1.1 of the Veterans Well-being Regulations indicates that the definition of “entrave à la réinsertion dans la vie civile” (i.e., “barrier to re-establishment in civilian life”) applies to Part 2 and Part 3 (which includes the APSC provisions) of the Veterans Well-being Regulations.

In summary, a comparison of the wording and definitions used in the English and French versions of the Veterans Well-being Act and Veterans Well-being Regulations further supports the Interpretation Panel’s position that the APSC provisions create a self-contained scheme that is distinct and separate from that of the PSC; both official languages versions support this conclusion.

The Interpretation Panel notes that key provisions for APSC differ from the provisions for PSC with respect to eligibility, assessment, amount, when payable and duration. These are discussed below.

• Eligibility (56.6 (1)-(3)),
• Assessment and reassessment (56.6 (4), (7) and 63(c)),
• Amount (56.6 (5)),
• When payable (56.6 (6), (8)),
• Duration (56.6(9)),
• Power to require medical examination or assessment (56.7), and
• Power to suspend or cancel (56.8).

Eligibility

Pursuant to subsection 56.6(1) of the Veterans Well-being Act, the Interpretation Panel notes that while having a PSC award is one of the criteria for eligibility, it is not sufficient for APSC entitlement. The provision clearly requires a “permanent and severe impairment and a barrier to re-establishment in civilian life”. The APSC language is distinct from the language of the PSC. Referring to the RIAS, the Interpretation Panel finds that the purpose of the APSC was to provide a subset of veterans (those with a permanent and severe impairment) with a lifelong pension. This was a new benefit that previously did not exist in the CFMVRCA, or even in the 2018 version of the Veterans Well-being Act.

Assessment and Reassessment

With respect to APSC, subsection 56.6(4) of the Veterans Well-being Act empowers the Minister to perform the assessment and provides that the GIC may make regulations as to the manner of determining the extent of the permanent and severe impairment. The Interpretation Panel finds that these are two distinct responsibilities. While the Minister is to perform APSC assessments, the Minister was not granted the authority to make regulations or create a table.

While Section 49 of the Veterans Well-being Act empowers the Minister to create instructions and a table for the assessment of disabilities under the PSC section of the Veterans Well-being Act, there is no such language empowering the Minister to create instructions or a table for APSC, or for what constitutes permanent and severe impairment. This creates a clear demarcation between the PSC and APSC provisions and is in keeping with Section 94 (a.1) of the Veterans Well-being Act which also specifically empowered the GIC (not the Minister) to make regulations respecting what constitutes a barrier to re-establishment in civilian life, another very important aspect of APSC.

Stated differently, the contention that subsection 49(1) applies to subsection 56.6(4) is undermined by Sections 63(c) and 94(a.1) which specifically do not give the Minister the power to create similar instructions or table.

The Interpretation Panel notes that the GIC exercised its authority relevant to APSC issues in the Veterans Well-being Act in enacting regulations 1.1, and 54-54.5.

The Minister’s submission made several references to the doctrine of necessary implication. This principle of statutory interpretation holds that Parliament may implicitly confer powers or obligations that are not expressly stated in the legislation where such powers or obligations are essential to giving effect to the legislative purpose. In short, the doctrine may be used where there is a gap in the legislation which prevents it from taking effect.

This doctrine is to be invoked only where Parliament did not expressly confer powers²⁷. The Interpretation Panel finds that in this case, for the reasons outlined above, Parliament clearly conferred powers to the Minister with respect to PSC assessment but expressly did not do so with respect to APSC. It retained regulatory power to the GIC. Therefore, there is no gap for the doctrine to address. Indeed, to invoke the doctrine in the circumstances of the APSC provisions would be to take powers from the GIC that had specifically been withheld from the Minister. The Panel finds it does not have the jurisdiction to do so.

As stated by the SCC in Vavilov, decision-makers cannot rewrite or supplement the law where it appears that Parliament has deliberately chosen not to address a particular matter :

Amount

The amounts of PSC and APSC benefits are different. The amount of APSC is explained at 56.6(5); it is determined by referring to Schedule 4 of the Veterans Well-being Act. By contrast, the PSC amount is determined by referring to Schedule 3 of the Veterans Well-being Act. Furthermore, the veteran may opt to receive the PSC as a lump sum or as an annuity. The veteran does not have this option for the APSC, which is paid as a monthly benefit.

When Payable

The provisions for when PSC and APSC are payable are distinctly different. According to Section 56.6(6), the APSC is payable on the later of :

• the first day of the month in which the application for APSC is made,
• the day that is one year before the first day of the month in which the veteran is determined to be entitled to APSC, and
• the first day of the month on which the veteran is released from military service.

The Interpretation Panel notes that this is a narrower window of retroactive effect in comparison to the PSC. According to Section 51(1), PSC is payable on the later of

• the first day of the month in which the application for PSC is made, and
• the day that is three years before the first day of the month in which the PSC is granted.

Duration & Survivor Rights

The Interpretation Panel notes that while both PSC and APSC benefits end with the death of the Veteran, Section 54-56 of the Veterans Well-being Act outlines there are survivor rights for the PSC; there are no survivor rights for the APSC.

As illustrated above, important components such as eligibility, assessment, amounts payable, as well as duration and survivor rights, clearly differentiate the respective PSC and APSC regimes.

In light of the above, and guided by the principles of statutory interpretation dictated by the Supreme Court of Canada, the Interpretation Panel finds that Section 49(1) does not apply to APSC. Therefore, the Minister does not have the authority to adopt binding statutory instructions for assessing APSC, specifically Chapter 25 of the ToD. Chapter 25 of the ToD is, therefore, ultra vires, the Minister’s statutory authority.

Question 2: Are the instructions reflected in Table 25 consistent with the object and purpose of the APSC award and the Veterans Well-being Act?

Having determined that Chapter 25 is ultra vires the Minister’s authority and addressing the issue of the object and purpose of the APSC award in Question 1, the Interpretation Panel finds this matter to be moot.

Question 3: How should the Minister and VRAB assess the extent of a Veteran’s permanent and severe impairment under the Veterans Well-being Act and Regulations when determining the grade level, given the requirement for credible and reliable evidence for assessments?

For the reasons set out below, the Interpretation Panel finds that it does not have the jurisdiction to hear this question since it raises an issue related to the internal departmental workings of how the Minister fulfills its statutory obligations which is outside of the scope of Section 37(1) of the Veterans Review and Appeal Board Act.

The jurisdiction of this Interpretation Panel flows from Section 37(1) of the Veterans Review and Appeal Board Act which states:

Question 3 is not a request to interpret a provision of either the Veterans Review and Appeal Board Act, the Pension Act, or Part 3 of the Veterans Well-being Act, but rather to discuss how to operationalize the assessment of APSC grades based on the legislation and regulation provided. The fundamental nature of Question 3 is asking this Panel to offer commentary or instruction for the Minister and VRAB on the nature and extent of evidence necessary to address the criteria set out in the legislated scheme. This is not a question within the jurisdiction of Section 37(1) of the Veterans Review and Appeal Board Act to proffer such advice to the Minister.

The Interpretation Panel also finds it inappropriate, and outside its jurisdiction, to offer instructions, commentary or obiter dicta regarding how other VRAB Panels are to assess the extent of a veteran’s permanent and severe impairment for APSC claims. Because the circumstances of Veterans are highly individualized, unique, and specific, VRAB Panels must consider each case on its own merits, applying the relevant legislation and regulation including, but not limited, to those provisions already noted above.

VRAB Panels have a long history of exercising decision-making power within the bounds of its statutory and regulatory framework. Furthermore, for a variety of matters that come before the Board, Panels have been able to fulfill their adjudicative responsibilities without more detailed direction or guidance. Indeed, the Federal Courts have recognized the capacity of VRAB to interpret legislation and discern findings from evidence.²⁹

Assessment of evidence relating to the factors identified in Regulation 54.1 is primarily an exercise of findings of fact; an exercise with which VRAB is very familiar. The Federal Court has acknowledged the unique and specific fact situations that create “grey zones” in which VRAB Panels must frequently work. In Nicol v. Canada (Attorney General)³⁰, the Federal Court observed:

The Federal Court in Nicol went on to conclude that:

In consideration of the foregoing, the Interpretation Panel finds that it does not have jurisdiction to hear question 3, nor that it is necessary or appropriate to offer comments on what evidence is required or how VRAB Panels are to assess permanent and severe impairment, beyond confirming that it is to be done in compliance with the statutory and regulatory provisions relevant to the matter before each Panel.

Nevertheless, the Interpretation Panel would like to reiterate what the parties have themselves agreed on, which is that the Minister may issue non-binding guidelines for the better administration of the Veterans Well-being Act provided the guidelines respect the limits of the Minister’s statutory authority and are consistent with the specific provisions and the objectives of the legislation.

CONCLUSION

The Interpretation Panel finds that Chapter 25 of the Table of 2006 Disabilities is ultra vires the authority of the Minister of Veterans Affairs Canada. Given that Chapter 25 is ultra vires, the Interpretation Panel finds that the second question is moot. The Interpretation Panel also finds that it does not have jurisdiction over the third question.

ENDNOTES

¹ BPA Supplementary Written Submissions, p.1.

² Sections 45 to 56.5 of the Veterans Well-being Act.

³ Auer v. Auer, 2024 SCC 36 [Auer].

⁴ Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.

⁵ Auer, paragraph 24.

⁶ Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64.

⁷ Auer, paragraph 3.

⁸ Auer, paragraph 4.

⁹ Auer, paragraph 65.

¹⁰ Auer, paras. 37, 38, 39.

¹¹ (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, The Construction of Statutes (2nd ed. 1983), at p. 87).

¹² Auer, paras. 59 and 60.

¹³ Auer.

¹⁴ Pain and Suffering Compensation | Veterans Affairs Canada, retrieved 27 November 2025.

¹⁵ Legislative Summary for Bill C-74.

¹⁶ Legislative Summary for Bill C-74.

¹⁷ https://laws-lois.justice.gc.ca/eng/acts/C-16.8/20180401/P1TT3xt3.html retrieved 24 November 2025.

¹⁸ The Interpretation Panel notes that Parts 1 and 2 of the Veterans Well-being Act are not subject to review by the Board. Pursuant to Section 84-85, only decisions under Part 3 can be reviewed by the Board or this Interpretation Panel. Therefore, neither PIA, nor the CIA could be reviewed by the Board. However, as both PSC and APSC are in Part 3, both of these benefits may be reviewed by the Board.

¹⁹ Auer, para. 57.

²⁰ Regulatory Impact Analysis Statement, Canada Gazette Part II, Vol. 152, No. 18, SOR/DORS/2018-177, pp.3191-3192. [RIAS].

²¹ RIAS, Canada Gazette Part II, Vol. 152, No. 18, p. 3209.

²² RIAS, Canada Gazette Part II, Vol. 152, No. 18, p. 3194.

²³ Government Bill (House of Commons) C-74 (42-1) – First Reading – Budget Implementation Act, 2018, No.1 – Parliament of Canada.

²⁴ Debates (Hansard) No. 265 - February 15, 2018 (42-1) - House of Commons of Canada, time of debate 10:40.

²⁵ Interpretation Act, RSC 1985, c I-21, Section 15(1).

²⁶ Interpretation Act, RSC 1985, c I-21, Section 16.

²⁷ ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), [2006] 1 S.C.R. 140, 2006 SCC 4 para 73.

²⁸ Vavilov, paragraph 108.

²⁹ See for example Cole v. Canada, 2015 FCA 119 (CanLII), [2016] 1 FCR 173, <https://canlii.ca/t/gk8zz&gt;, retrieved on 2025-11-20, at para. 99.

³⁰ Nicol v. Canada (Attorney General), 2015 FC 785 (CanLII), <https://canlii.ca/t/gjxl1&gt;, retrieved on 2025-11-20.