The British Columbia Court of Appeal has dismissed injured veterans’ pension claims against the federal government because they had “no chance of success.”

“It’s difficult to understand the claim at all, at least not without completely reimagining our constitutional framework,” says David Rankin, an associate in Osler Hoskin & Harcourt LLP’s Toronto office. “The decision tracks established law and conventional understanding of the Constitution.”

Read: Military vets challenge denial of disability benefits in latest court battle

The case, launched in 2012 and known as the Equitas lawsuit, was brought by six injured veterans who alleged that a 2006 overhaul to the compensation system for those injured in the line of duty reduced their benefits. The new regime replaced lifelong disability pensions with a lump sum, career training and targeted income support.

The B.C. Supreme Court judge who first heard the case in 2014 ruled the matter could proceed to trial on some of the allegations, but the provincial appeal court struck the suit in its entirety on Monday.

Generally speaking, courts won’t dismiss cases that raise novel issues unless they have no reasonable chance of success. But as the court of appeal observed, just calling a case novel doesn’t mean it has a reasonable chance of success.

The veterans relied on an alleged social covenant with the government that emanated from a promise made in 1917 by then-prime minister Robert Borden. At the time, Borden pledged the government would always look after those in uniform.

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“The idea that inspirational statements by a prime minister containing vague assurances could bind the government of Canada to a specific legislative regime in perpetuity does not, in any way, conform with the country’s constitutional norms,” wrote Justice Harvey Groberman for a unanimous appeal court panel.

The veterans also invoked the “honour of the Crown,” a concept used by the Supreme Court of Canada to impose a duty on the federal government to consult with Indigenous peoples in matters affecting their rights.

But as Groberman saw it, the veterans’ circumstances were different from those of Indigenous peoples, in whose case the doctrine applied “to reconcile their status as original (and unconquered) occupants of the land with the assertion of Crown sovereignty.”

The upshot was that “honour of the Crown” had no application in the veterans’ case.

“The situation of the plaintiffs bears no resemblance to that of First Nations,” wrote Groberman. “The Canadian Forces were created by the Crown, and are under the Queen’s command. The Constitution Act, 1867, gives Parliament plenary power over Canada’s Armed Forces, without imposing any special constitutional limitations deriving from the honour of the Crown.”

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Jody Brown, an associate in Koskie Minsky LLP’s Toronto office, says the appeal court approached the case more meticulously than the motions judge. “The difference between the judge who first heard the case and the Court of Appeal is that the judge took a liberal view by stretching how far the ‘social covenant’ notion could go,” he says. “The Court of Appeal’s approach, on the other hand, is better characterized as methodical rather than conservative.”

The appeal court also rejected the argument that the veterans could rely on the anti-discrimination sections of the Charter of Rights and Freedoms. The veterans weren’t members of one of the protected groups enumerated in the Charter, nor were “members of the Canadian Forces” analogous to any of them.

And even if the veterans could fit themselves under the Charter, which limits the powers of government to deprive people of rights, they couldn’t use it to impose a positive obligation on the government.

The veterans have indicated they’re willing to seek leave to appeal to the Supreme Court. But neither they nor their counsel have confirmed their next step.

Meanwhile, it’s unclear what the Liberal government, which promised to reinstate lifelong pensions even as it fought the veterans in court, will do.

Read: Liberals promise lifelong pensions for injured veterans

Copyright © 2018 Transcontinental Media G.P. Originally published on

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