Injured soldier lawsuit should be dismissed, Ottawa tells B.C. court

VANCOUVER – Lawyers for the federal government are asking a British Columbia judge to dismiss a class-action lawsuit filed by current and former soldiers injured in Canada’s combat mission in Afghanistan, saying Ottawa owes them nothing more than what they have already received under its controversial New Veterans Charter.

The lawsuit filed last fall by six veterans claims that the new charter, and the changes it brought to the compensation regime for Canadian Forces members, violates the constitution and the Charter of Rights and Freedoms.

That claim is “unnecessary, frivolous or vexatious or otherwise an abuse of process,” argue lawyers for the federal Attorney General, who were in B.C. Supreme Court last week asking a judge to dismiss the case.

“In support of their claim, the representative plaintiffs assert the existence of a ‘social covenant,’ a public law duty, and a fiduciary duty on the part of the federal government,” Jasvinder S. Basran, the regional director general for the federal Justice Department, said in an application filed with the court.

The lawsuit invokes the “honour of the Crown,” a concept that has been argued in aboriginal rights claims.

“The defendant submits that none of the claims asserted by the representative plaintiffs constitutes a reasonable claim, that the claims are frivolous or vexatious, and accordingly that they should be struck out in their entirety.”

Each of the six current and former soldiers named in the lawsuit has received a pension and other compensation from the Department of Veterans Affairs, including lump sum payments ranging from $41,000 to nearly $261,000, the document said.

But the soldiers say the disability payments for injured soldiers pale in comparison to awards handed out for worker’s compensation claims and by civil courts for far lesser injuries in motor vehicle accidents or personal injury.

Among the soldiers named in the suit is Maj. Mark Douglas Campbell, a 32-year veteran of the Canadian Forces who served in Cyprus, Bosnia and Afghanistan.

In June 2008, Campbell, of the Edmonton-based Princess Patricia’s Canadian Light Infantry, was struck by an improved explosive device and Taliban ambush. He lost both legs above the knee, one testicle, suffered numerous lacerations and a ruptured eardrum. He has since been diagnosed with depressive disorder and post-traumatic stress disorder.

Campbell received a lump sum payment for pain and suffering of $260,000. He will receive his military pension, with an earnings loss benefit and a permanent impairment allowance but he is entirely unable to work and will suffer a net earnings loss due to his injuries, the lawsuit claims.

The new charter eliminated the lifetime disability pension for disabled soldiers and replaced it with lump sum payments.

Another plaintiff soldier suffered severe injuries to his leg and foot in the blast that killed Canadian journalist Michelle Lang and four soldiers. He was awarded $200,000 in total payments for pain and suffering and post-traumatic stress.

The allegations in the lawsuit have not been proven in court.

The federal government application says policy decisions of the government and legislation passed by Parliament are not subject to review by the courts.

“The basic argument that they’re making is that Parliament can do what it wants,” said Don Sorochan, the soldiers’ lawyer.

He said he receives calls almost daily from soldiers affected by the changes, and thousands ultimately could be involved.

Sorochan, who is handling the case for free, said he doesn’t believe the objective of the legislation was to save money at the expense of injured soldiers, but that’s what’s happened.

“When the legislation was brought in it was believed by the politicians involved — and I’ve talked to several of them, in all parties — that they were doing a good thing,” Sorochan said.

“But anybody that can objectively look at what is happening to these men and women who have served us, can’t keep believing that.”

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