Pension Act

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Sections745

• 1Short title

  This Act may be cited as the Pension Act.

• 2Construction

  The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.

• 3Definitions
• 3(1)

  In this Act,

• 3(1)[p4]Repealed

  appearance of the injury or disease[Repealed, 1990, c. 43, s. 3]

• 3(1)[p5]

  applicant means a person who has applied for an award or for an increase in an award; (demandeur)

• 3(1)[p6]

  application means an application for an award; (demande)

• 3(1)[p7]

  award means a pension, compensation, an allowance or a bonus payable under this Act; (compensation)

• 3(1)[p8]Repealed

  Bureau[Repealed, 1995, c. 18, s. 46]

• 3(1)[p9]

  Canadian Forces means the armed forces referred to in section 14 of the National Defence Act, and includes any predecessor naval, army or air forces of Canada or Newfoundland; (Forces canadiennes)

• 3(1)[p10]Repealed

  Chief Pensions Advocate[Repealed, 1995, c. 18, s. 46]

• 3(1)[p11]

  child, in relation to a member of the forces or a prisoner of war, includes

• 3(1)[p11](a)

  an adopted child or foster child of that member or prisoner, and

• 3(1)[p11](b)

  a child, adopted child or foster child of the spouse or common-law partner of that member or prisoner; (enfant)

• 3(1)[p14]Repealed

  Commission[Repealed, 1995, c. 18, s. 46]

• 3(1)[p15]Repealed

  commissioner[Repealed, 1995, c. 18, s. 46]

• 3(1)[p16]

  common-law partner, in relation to an individual, means a person who is cohabiting with the individual at the relevant time in a conjugal relationship, having so cohabited for a period of at least one year. For greater certainty,

• 3(1)[p16](a)

  in the case of an individual’s death, the relevant time means the time of that death; and

• 3(1)[p16](b)

  common-law partners cease to be common-law partners when they cease to cohabit; (conjoint de fait)

• 3(1)[p19]

  compensation means compensation payable under this Act on account of time spent by a former prisoner of war in enemy captivity or in evading or escaping from enemy captivity; (indemnité)

• 3(1)[p20]

  Department means the Department of Veterans Affairs; (ministère)

• 3(1)[p21]

  dependent condition, with respect to a person, means the condition of being without sufficient income or assets, other than the premises in which the person resides, to maintain that person; (état de dépendance)

• 3(1)[p22]

  died or death includes death presumed for official purposes; (décédé ou décès)

• 3(1)[p23]

  disability means the loss or lessening of the power to will and to do any normal mental or physical act; (invalidité)

• 3(1)[p24]Repealed

  Entitlement Board[Repealed, 1995, c. 18, s. 46]

• 3(1)[p25]Repealed

  Examiner[Repealed, 1995, c. 18, s. 46]

• 3(1)[p26]

  improper conduct includes wilful disobedience of orders, vicious or criminal conduct and wilful self-inflicted wounding — except if the wound results from the receipt of medical assistance in dying and the requirement set out in paragraph 241.2(3)(a) of the Criminal Code has been met; (mauvaise conduite)

• 3(1)[p27]

  Korean War means the military operations undertaken by the United Nations to restore peace in the Republic of Korea, and the period denoted by the term Korean War is the period from June 25, 1950 to July 27, 1953, inclusive; (guerre de Corée)

• 3(1)[p28]

  medical assistance in dying has the same meaning as in section 241.1 of the Criminal Code; (aide médicale à mourir)

• 3(1)[p29]

  member of the forces means

• 3(1)[p29](a)

  a person who has served in the Canadian Forces at any time since the commencement of World War I, and

• 3(1)[p29](b)

  a Canadian merchant mariner of World War I, World War II or the Korean War, as described in section 21.1; (membre des forces)

• 3(1)[p32]

  military service or service means service as a member of the forces; (service militaire ou service)

• 3(1)[p33]

  Minister means the Minister of Veterans Affairs or such other Minister as is designated by the Governor in Council; (ministre)

• 3(1)[p34]

  pension means a pension payable under this Act on account of the death or disability of a member of the forces, including a final payment referred to in Schedule I; (pension)

• 3(1)[p35]Repealed

  Pension Review Board[Repealed, R.S., 1985, c. 20 (3rd Supp.), s. 21]

• 3(1)[p36]

  pensioner means a person who has been awarded a pension; (pensionné)

• 3(1)[p37]

  personal information has the same meaning as in section 3 of the Privacy Act; (renseignements personnels)

• 3(1)[p38]

  prisoner of war has the meaning assigned to that expression by section 71.1; (prisonnier de guerre)

• 3(1)[p39]Repealed

  service in a special duty area[Repealed, 2003, c. 12, s. 1]

• 3(1)[p40]

  service in a theatre of actual war means

• 3(1)[p40](a)

  any service as a member of the army or air force of Canada in the period commencing August 14, 1914 and ending November 11, 1918 in the zone of the allied armies on the continent of Europe, Asia or Africa, or in any other place at which the member has sustained injury or contracted disease directly by a hostile act of the enemy,

• 3(1)[p40](b)

  any service as a member of the naval forces or merchant navy of Canada in the period described in paragraph (a) on the high seas or wherever contact has been made with hostile forces of the enemy, or in any other place at which the member has sustained injury or contracted disease directly by a hostile act of the enemy, and

• 3(1)[p40](c)

  any service as a member of the forces in the period commencing September 1, 1939 and ending or in any place in Canada at which the member has sustained injury or contracted disease directly by a hostile act of the enemy; (service sur un théâtre réel de guerre)

• 3(1)[p40](c)(i)

  May 9, 1945, where the service was in any place outside Canada, and

• 3(1)[p40](c)(ii)

  August 15, 1945, where the service was in the Pacific Ocean or Asia,

• 3(1)[p46]

  service in the Korean War means

• 3(1)[p46](a)

  in the case of a member of the Canadian Forces, any service from the day of the member’s departure from Canada or the United States, including Alaska, to participate in the Korean War, until the earliest of

• 3(1)[p46](a)(i)

  the day on which the member next returned to Canada or the United States, including Alaska,

• 3(1)[p46](a)(ii)

  the day on which the member was next posted to a unit that was not participating in the Korean War,

• 3(1)[p46](a)(iii)

  the day on which the unit with which the member was serving, having ceased to participate in the Korean War, arrived at the place to which it had been next assigned, and

• 3(1)[p46](a)(iv)

  October 31, 1953, and

• 3(1)[p46](b)

  in the case of a Canadian merchant mariner of the Korean War as described in subsection 21.1(5), any service during a period described in paragraph 21.1(2)(b); (service accompli pendant la guerre de Corée)

• 3(1)[p53]

  special duty service has the same meaning as in subsection 2(1) of the Veterans Well-being Act; (service spécial)

• 3(1)[p54]

  special force means the Canadian Army Special Force that was constituted for the purposes of the Korean War; (contingent spécial)

• 3(1)[p55]

  surviving common-law partner, in relation to an individual, does not include, for greater certainty, a person who, at the time of the individual’s death, was a former common-law partner of that individual; (conjoint de fait survivant)

• 3(1)[p56]

  surviving spouse, in relation to an individual, does not include, for greater certainty, a person who, at the time of the individual’s death, was a former spouse of that individual; (époux survivant)

• 3(1)[p57]

  survivor, in relation to an individual, means the surviving spouse or surviving common-law partner of that individual; (survivant)

• 3(1)[p58]Repealed

  treatment allowance[Repealed, 2000, c. 34, s. 20]

• 3(1)[p59]

  Veterans Review and Appeal Board means the Veterans Review and Appeal Board established by section 4 of the Veterans Review and Appeal Board Act; (Tribunal)

• 3(1)[p60]Repealed

  widowed mother[Repealed, 2000, c. 12, s. 211]

• 3(1)[p61]

  World War I means the war waged by the German Emperor and His Allies against His Majesty and His Majesty’s Allies, and the period denoted by the term World War I is the period between August 4, 1914 and August 31, 1921, both dates inclusive; (Première Guerre mondiale)

• 3(1)[p62]

  World War II means the war waged by His Majesty and His Majesty’s Allies against Germany and Germany’s Allies, and the period denoted by the term World War II is the period between September 1, 1939 and April 1, 1947, both dates inclusive. (Seconde Guerre mondiale)

• 3(2)Persons deemed members of forces

  A British subject resident and domiciled in Newfoundland at the time of enlistment who served in the naval, army or air forces of His Majesty or in any of the naval, army or air forces of the countries allied with His Majesty during World War II shall be deemed to be a member of the forces for the purposes of section 21 if the disability or death in respect of which the application is made is not otherwise pensionable under that section or sections 64 to 66.

• 3(3)Couples deemed to be living together

  A member of the forces and the member’s spouse or common-law partner or survivor shall be deemed to be or to have been living together for the purposes of this Act where it is established that the member and the spouse or common-law partner are not, or the member and the survivor were not, living together by reason only of injury or disease, circumstances of a temporary nature or other circumstances not attributable to the member or the spouse or common-law partner or survivor.

• 3(4)Deeming — medical assistance in dying

  For the purposes of this Act, if a member of the forces receives medical assistance in dying, that member is deemed to have died as a result of the illness, disease or disability for which they were determined to be eligible to receive that assistance, in accordance with paragraph 241.2(3)(a) of the Criminal Code.

• 3.1No award payable
• 3.1(1)

  Despite any other provision of this Act, no award is payable under this Act in respect of any application made by or in respect of a member of the forces after April 1, 2006 unless

• 3.1(1)(a)

  the application is in respect of a disability for which a pension has been granted or is an application under section 36 in respect of such a disability;

• 3.1(1)(b)

  the application is in respect of the death of a member of the forces, if the death occurred before April 1, 2006 or is the result of an injury or a disease, or the aggravation of an injury or a disease, for which a pension has been granted;

• 3.1(1)(c)

  the application is in respect of an injury or a disease that was attributable to or was incurred during, or arose out of or was directly connected to, service in the Canadian Forces on or before April 1, 1947, or was attributable to or was incurred during service in the Korean War or is an application under subsection 21(5) in respect of such an injury or a disease;

• 3.1(1)(d)

  the application is in respect of an aggravation of an injury or disease, if the aggravation was attributable to or was incurred during, or arose out of or was directly connected to, service in the Canadian Forces on or before April 1, 1947 or was attributable to or was incurred during service in the Korean War or is an application under subsection 21(5) in respect of such an aggravation;

• 3.1(1)(e)

  the Minister has determined under the Veterans Well-being Act that the injury or disease, or the aggravation of the injury or disease, for which the application is made is inseparable — for the purpose of assessing the extent of disability — from an injury or a disease, or the aggravation of an injury or a disease, for which a pension has been granted; or

• 3.1(1)(f)

  the application is made under section 38 by a pensioner.

• 3.1(2)Exception

  Subsection (1) does not apply in respect of an application for compensation made under Part III.1 if the application relates to a period spent as a prisoner of war that began before April 1, 2006.

• 4Status of males and females

  Male and female members of the forces under this Act enjoy equality of status and equal rights and obligations under this Act.

• 5Powers of the Minister
• 5(1)

  Subject to this Act and any other Act of Parliament and to the regulations made under this or any other Act of Parliament, the Minister has full power to decide on all matters and questions relating to the award, increase, decrease, suspension or cancellation of any pension or other payment under this Act and to the recovery of any overpayment that may have been made.

• 5(2)Additional duties

  The Governor in Council may, by order, confer on the Minister duties like those under subsection (1) in respect of pensions or other payments authorized by any other Act of Parliament or by the Governor in Council.

• 5(3)Benefit of doubt

  In making a decision under this Act, the Minister shall

• 5(3)(a)

  draw from all the circumstances of the case and all the evidence presented to the Minister every reasonable inference in favour of the applicant or pensioner;

• 5(3)(b)

  accept any uncontradicted evidence presented to the Minister by the applicant or pensioner that the Minister considers to be credible in the circumstances; and

• 5(3)(c)

  resolve in favour of the applicant or pensioner any doubt, in the weighing of evidence, as to whether the applicant or pensioner has established a case.

• 5(4)Decisions shall be made expeditiously

  Decisions of the Minister shall be made as informally and expeditiously as the circumstances and considerations of fairness permit.

• 6Property and moneys in trust

  The Minister may accept and administer any property and moneys conveyed to the Minister in trust for the benefit of pensioners, their dependants or any other persons on such terms and conditions as are set out in the terms of the conveyance or, if no conditions are set out, on such terms and conditions as the Minister deems reasonable for the purposes of the trust.

• 7 to 14Repealed

  [Repealed, 1995, c. 18, s. 47]

• 15
• 15(1)Repealed

  [Repealed, 1990, c. 43, s. 5]

• 15(2) and (3)Repealed

  [Repealed, 1995, c. 18, s. 47]

• 16Repealed

  [Repealed, 1990, c. 43, s. 6]

• 17 to 20Repealed

  [Repealed, 1995, c. 18, s. 47]

• 21Service during war, or special duty service
• 21(1)

  In respect of service rendered during World War I, service rendered during World War II other than in the non-permanent active militia or the reserve army, service in the Korean War, service as a member of the special force, and special duty service,

• 21(1)(a)

  where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that was attributable to or was incurred during such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I;

• 21(1)(b)

  where a member of the forces dies as a result of an injury or disease or an aggravation thereof that was attributable to or was incurred during such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;

• 21(1)(c)

  no deduction shall be made from the degree of actual disability of a member of the forces who has rendered service in a theatre of actual war, service in the Korean War or special duty service on account of a disability or disabling condition that existed in the member before the member’s period of service in World War I or World War II, service in the Korean War or special duty service, as the case may be, except

• 21(1)(c)(i)

  to the extent that the member is receiving a pension for that disability or disabling condition, or

• 21(1)(c)(ii)

  to the extent that that disability or disabling condition was obvious or was recorded on medical examination prior to enlistment;

• 21(1)(d)

  an applicant shall not be denied a pension in respect of disability resulting from injury or disease or aggravation thereof incurred during military service or in respect of the death of a member of the forces resulting from that injury or disease or the aggravation thereof solely on the grounds that no substantial disability or disabling condition is considered to have existed at the time of discharge of that member;

• 21(1)(e)

  where a member of the forces who has seen service during World War I or World War II is, on retirement or discharge from that service, passed directly to the Department for treatment, a pension shall be paid to or in respect of the member for disability or death incurred by the member during treatment;

• 21(1)(f)

  no pension shall be paid for disability or death incurred by a member of the forces, unless the disability or death was attributable to that military service;

• 21(1)(f)(i)

  while on leave of absence without pay,

• 21(1)(f)(ii)

  during a period of absence without leave for which the pay of the member was stopped, or

• 21(1)(f)(iii)

  when the member of the forces has, during leave of absence with pay, undertaken an occupation that is unconnected with military service,

• 21(1)(g)

  where the pension shall, regardless of the cause of the change, be increased, decreased or discontinued, as the case requires, to reflect the new degree of actual disability in respect of that service, except that, if a member is receiving a pension in respect of more than one type of service referred to in subparagraph (i), the total pension payable by virtue of this subsection may not exceed the amount of pension for the total actual disability arising from all the service referred to in that subparagraph;

• 21(1)(g)(i)

  a pension for disability has been awarded to a member of the forces in respect of service in a theatre of actual war, service in the Korean War or special duty service, and

• 21(1)(g)(ii)

  the member’s degree of actual disability in respect of any of that service subsequently changes,

• 21(1)(h)

  where a member of the forces is in receipt of an additional pension under paragraph (a), subsection (5) or section 36 in respect of a spouse or common-law partner who is living with the member and the spouse or common-law partner dies, except where an award is payable under subsection 34(8), the additional pension in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if an additional pension in respect of another spouse or common-law partner is awarded to the member commencing during that period, until the date that it so commences; and

• 21(1)(i)

  where, in respect of a survivor who was living with the member of the forces at the time of the member’s death, is less than a pension equal to the amount described in subparagraph (ii) shall be paid to the survivor in lieu of the pension payable under paragraph (b) for a period of one year commencing on the effective date of award as provided in section 56 (except that the words “from the day following the date of death” in subparagraph 56(1)(a)(i) shall be read as “from the first day of the month following the month of the member’s death”), and thereafter a pension shall be paid to the survivor in accordance with the rates set out in Schedule II.

• 21(1)(i)(i)

  the pension payable under paragraph (b)

• 21(1)(i)(ii)

  the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member under paragraph (a), subsection (5) or section 36 at the time of the member’s death,

• 21(2)Service in militia or reserve army and in peace time

  In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,

• 21(2)(a)

  where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I;

• 21(2)(b)

  where a member of the forces dies as a result of an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;

• 21(2)(c)

  where a member of the forces is in receipt of an additional pension under paragraph (a), subsection (5) or section 36 in respect of a spouse or common-law partner who is living with the member and the spouse or common-law partner dies, except where an award is payable under subsection 34(8), the additional pension in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if an additional pension in respect of another spouse or common-law partner is awarded to the member commencing during that period, until the date that it so commences; and

• 21(2)(d)

  where, in respect of a survivor who was living with the member of the forces at the time of that member’s death, is less than a pension equal to the amount described in subparagraph (ii) shall be paid to the survivor in lieu of the pension payable under paragraph (b) for a period of one year commencing on the effective date of award as provided in section 56 (except that the words “from the day following the date of death” in subparagraph 56(1)(a)(i) shall be read as “from the first day of the month following the month of the member’s death”), and thereafter a pension shall be paid to the survivor in accordance with the rates set out in Schedule II.

• 21(2)(d)(i)

  the pension payable under paragraph (b)

• 21(2)(d)(ii)

  the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member under paragraph (a), subsection (5) or section 36 at the time of the member’s death,

• 21(2.1)Pensionable fraction of aggravated disability

  Where a pension is awarded in respect of a disability resulting from the aggravation of an injury or disease, only that fraction of the total disability, measured in fifths, that represents the extent to which the injury or disease was aggravated is pensionable.

• 21(2.2)Repealed

  [Repealed, 1990, c. 43, s. 8]

• 21(2.3)Apportionment of pension

  For the purposes of subsection 55(1), a person who is a pensionable applicant in relation to paragraph (1)(i) or (2)(d) if the person meets one of the requirements set out in subsection 45(1), even though the person was not living with the member of the forces at the time of the member’s death.

• 21(2.3)(a)

  is the survivor of a member of the forces, or

• 21(2.3)(b)

  is a former spouse or a former common-law partner of a member of the forces who has died

• 21(3)Presumption

  For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of

• 21(3)(a)

  any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority;

• 21(3)(b)

  any activity incidental to or directly connected with an activity described in paragraph (a), including the transportation of the member by any means between the place the member normally performed duties and the place of that activity;

• 21(3)(c)

  the transportation of the member, in the course of duties, in a military vessel, vehicle or aircraft or by any means of transportation authorized by a military authority, or any act done or action taken by the member or any other person that was incidental to or directly connected with that transportation;

• 21(3)(d)

  the transportation of the member while on authorized leave by any means authorized by a military authority, other than public transportation, between the place the member normally performed duties and the place at which the member was to take leave or a place at which public transportation was available;

• 21(3)(e)

  service in an area in which the prevalence of the disease contracted by the member, or that aggravated an existing disease or injury of the member, constituted a health hazard to persons in that area;

• 21(3)(f)

  any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; and

• 21(3)(g)

  the performance by the member of any duties that exposed the member to an environmental hazard that might reasonably have caused the disease or injury or the aggravation thereof.

• 21(4)Repealed

  [Repealed, 2000, c. 34, s. 21]

• 21(5)Consequential disability

  In addition to any pension awarded under subsection (1) or (2), a member of the forces who shall, on application, be awarded a pension in accordance with the rates for basic and additional pension set out in Schedule I in respect of that part of the additional disability that is a consequence of that injury or disease or aggravation thereof.

• 21(5)(a)

  is eligible for a pension under paragraph (1)(a) or (2)(a) or this subsection in respect of an injury or disease or an aggravation thereof, or has suffered an injury or disease or an aggravation thereof that would be pensionable under that provision if it had resulted in a disability, and

• 21(5)(b)

  is suffering an additional disability that is in whole or in part a consequence of the injury or disease or the aggravation referred to in paragraph (a)

• 21(6)Pension not to be denied because of members’ activities

  A pension shall not be denied to a member of the forces under subsection (5) on the ground that, having regard to the disability for which the member was already receiving a pension, the member took part in any activities or went any place that the member ought to have known would cause the consequential disability.

• 21(7)Where both spouses or common-law partners are members of the forces

  Where spouses or common-law partners are residing together and both are pensioners or members of the forces to whom pensions have been or may be awarded under this section,

• 21(7)(a)

  each spouse or common-law partner shall be awarded the pension that he or she would be awarded if they were not spouses or common-law partners;

• 21(7)(b)

  the additional pension for a spouse or common-law partner shall be paid in respect of each of the spouses or common-law partners, at the rate applicable to that spouse’s or common-law partner’s rate of pension; and

• 21(7)(c)

  if the spouses or common-law partners have children in respect of whom a pension may be paid under this Act, the additional pension that may be paid under this Act in respect of the children may be paid to one but not both of the spouses or common-law partners,

• 21(7)(c)(i)

  if the pensions of the spouses or common-law partners are payable at the same rate, at that rate, and

• 21(7)(c)(ii)

  if the pensions of the spouses or common-law partners are payable at different rates, at the rate for the member of the forces whose pension is payable at the higher rate.

• 21(8)Periodical declaration

  The Minister may require a pensioner to submit, at such times and in such form as may be prescribed by the Minister, a statutory or other declaration stating and, if the pensioner refuses or neglects to submit the statutory or other declaration, the Minister may suspend future payments of pension until it is received.

• 21(8)(a)

  that the pensioner is the person to whom the pension is payable,

• 21(8)(b)

  that any person in respect of whom the pensioner is in receipt of an additional pension is living,

• 21(8)(c)

  in any case where maintenance is relevant to the payment of pension, that the pensioner is maintaining or, where appropriate, is being maintained by the person in respect of whom the pensioner is in receipt of an additional pension, and

• 21(8)(d)

  whether an amount has been paid to or in respect of the pensioner or a deceased member of the forces that would require the Minister to reduce the pension under sections 25 and 26 and, if so, the particulars of the amount and the name of the person or body that paid it,

• 21(9)Presumption as to medical condition of member on enlistment

  Subject to subsection (10), where a disability or disabling condition of a member of the forces in respect of which the member has applied for an award was not obvious at the time he or she became a member and was not recorded on medical examination prior to enlistment, that member shall be presumed to have been in the medical condition found on his or her enlistment medical examination unless there is

• 21(9)(a)

  recorded evidence that the disability or disabling condition was diagnosed within three months after the enlistment of the member; or

• 21(9)(b)

  medical evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the enlistment of the member.

• 21(10)Information volunteered by member as to medical condition to be corroborated

  Information given by a member of the forces at the time of the enlistment of the member with respect to a disability or disabling condition is not evidence that the disability or disabling condition existed prior to the enlistment of the member unless there is corroborating evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the time the member became a member of the forces.

• 21(11)Repealed

  [Repealed, 1990, c. 43, s. 8]

• 21(12)Definitions

  For the purposes of this section,

• 21(12)[p153]

  obvious, when used with reference to a disability or disabling condition of a member of the forces at the time he or she became a member, means that the disability or disabling condition was apparent at that time or would have been apparent to an unskilled observer on examination of the member at that time; (évident)

• 21(12)[p154]

  recorded on medical examination prior to enlistment, when used with reference to a disability or disabling condition of a member of the forces, means a written record, X-ray film or photograph of the disability or disabling condition that was made in

• 21(12)[p154](a)

  any medical documentation made on enlistment of that member,

• 21(12)[p154](b)

  any official documentation covering any former period of service of that member,

• 21(12)[p154](c)

  the files of the Department relating to that member,

• 21(12)[p154](d)

  the records of any compensation board or insurance company relating to that member, or

• 21(12)[p154](e)

  the records of a medical practitioner or a clinic, hospital or other medical institution relating to that member. (consigné lors d’un examen médical avant l’enrôlement)

• 21.1Definitions
• 21.1(1)

  The definitions in this subsection apply in this section.

• 21.1(1)[p162]

  Canadian manning pool means a manning pool of the Canadian merchant navy established under Order in Council P.C. 14/3550 of May 19, 1941. (dépôt d’équipages canadien)

• 21.1(1)[p163]

  Canadian marine training school means a school established under Order in Council P.C. 148/9130 of November 22, 1941. (école d’entraînement maritime canadienne)

• 21.1(1)[p164]

  distressed mariner means a distressed mariner as defined in subsection 37(7.1) of the War Veterans Allowance Act. (en détresse)

• 21.1(1)[p165]

  war service bonus means the bonus paid under The Merchant Seamen War Service Bonus Order, 1944, Order in Council P.C. 149/2705 of April 18, 1944, as amended. (indemnité pour service de guerre)

• 21.1(2)Applicable rules

  The following rules apply for the purposes of this section:

• 21.1(2)(a)

  the period of a person’s service on a voyage or trip referred to in subsection 37(7.3) of the War Veterans Allowance Act includes but does not include any period after the person’s service on the voyage or trip was terminated for cause;

• 21.1(2)(a)(i)

  any period of duty preparatory to the voyage or trip,

• 21.1(2)(a)(ii)

  any period of duty between the end of the voyage or trip and the person’s return to Canada,

• 21.1(2)(a)(iii)

  any period of duty in Canada after the end of the voyage or trip that is consequential on the voyage or trip,

• 21.1(2)(a)(iv)

  any period of authorized leave of absence with pay during the voyage or trip,

• 21.1(2)(a)(v)

  any period of captivity, imprisonment or internment by the enemy or by any foreign power that was not allied or associated with Canada, if that period commenced during the voyage or trip or occurred as a consequence of the voyage or trip,

• 21.1(2)(a)(vi)

  any period of hospitalization resulting from an injury or disease or an aggravation thereof incurred during the voyage or trip, and

• 21.1(2)(a)(vii)

  any period as a distressed mariner,

• 21.1(2)(b)

  the period of a person’s service on a voyage referred to in subsection (5) is the “Korean-related part of the voyage”, namely, the portion of the voyage during which the ship was in waters described in subsection (5) plus those portions of the voyage before and after that portion that, in the Minister’s opinion, were essential to the prosecution of the Korean War on behalf of the United Nations, and includes but does not include any period after the person’s service on the voyage was terminated for cause;

• 21.1(2)(b)(i)

  any period of authorized leave of absence with pay during the Korean-related part of the voyage,

• 21.1(2)(b)(ii)

  any period of captivity, imprisonment or internment by the enemy or by any foreign power that was not allied or associated with Canada, if that period commenced during the Korean-related part of the voyage or occurred as a consequence of the Korean-related part of the voyage,

• 21.1(2)(b)(iii)

  any period of hospitalization resulting from an injury or disease or an aggravation thereof incurred during the Korean-related part of the voyage, and

• 21.1(2)(b)(iv)

  any period as a distressed mariner that commenced during the Korean-related part of the voyage,

• 21.1(2)(c)

  a distressed mariner’s period as such commences the moment the mariner was shipwrecked, discharged or left behind from a ship on which the mariner was engaged, and ends with the mariner’s arrival at the mariner’s proper return port within the meaning of section 299 of the Canada Shipping Act, 1934;

• 21.1(2)(d)

  the period of a person’s service as a member of a Canadian manning pool includes but does not include any period after the person’s service as a member of the manning pool was terminated for cause;

• 21.1(2)(d)(i)

  any period of training,

• 21.1(2)(d)(ii)

  any period of authorized leave of absence with pay, and

• 21.1(2)(d)(iii)

  any period of hospitalization resulting from an injury or disease or an aggravation thereof incurred while the person was a member of the manning pool,

• 21.1(2)(e)

  the existence of a manning pool record card for a person shall be taken as conclusive evidence that the person was a member of a Canadian manning pool during the period indicated on the card;

• 21.1(2)(f)

  evidence that the Director of Merchant Seamen paid war service bonus to a person in respect of any period shall be taken, in the absence of evidence to the contrary, as indicating that the person was a member of a Canadian manning pool during that period;

• 21.1(2)(g)

  where the service of a Canadian merchant mariner of World War II is based on subparagraph (4)(c)(ii), the period of service is the period in respect of which that mariner was paid war service bonus by the employer;

• 21.1(2)(h)

  where the service of a Canadian merchant mariner of World War II is based on subparagraph (4)(c)(iii), the period of service is the period from the beginning of the period of service on the first voyage to the end of the period of service on the last voyage with the same employer, except for any period in which that mariner was engaged in any employment, business or occupation not referred to in this section;

• 21.1(2)(i)

  the period of a person’s service as a trainee at a Canadian marine training school includes but does not include any period after the person’s service as a trainee was terminated for cause;

• 21.1(2)(i)(i)

  any period of authorized leave of absence with pay,

• 21.1(2)(i)(ii)

  any period of transportation the costs of which were paid by the Department of Transport under the authority of Order in Council P.C. 148/9130 of November 22, 1941, and

• 21.1(2)(i)(iii)

  any period of hospitalization resulting from an injury or disease or an aggravation thereof incurred while the person was a trainee,

• 21.1(2)(j)

  where official records of a person’s service as a Canadian merchant mariner of World War I, World War II or the Korean War, or of injuries or disease suffered or contracted by a person during such service, are not available, the Minister may accept a statutory declaration or like statement from anyone if

• 21.1(2)(j)(i)

  information about the existence of any registered or licensed ship on which it is claimed that the person served is corroborated by official records,

• 21.1(2)(j)(ii)

  no information in the declaration or statement is contradicted by other evidence, and

• 21.1(2)(j)(iii)

  after taking into consideration such corroboration as may be available, the Minister is satisfied, on the balance of probabilities, that the information in the declaration or statement is true; and

• 21.1(2)(k)

  the Minister may presume death in every case where, according to the evidence available as to the circumstances surrounding the disappearance of a person whose death is in question or the loss of the ship on which the person was serving, the Minister is satisfied beyond a reasonable doubt that the death has in fact occurred.

• 21.1(3)Canadian merchant mariner of World War I

  A Canadian merchant mariner of World War I is

• 21.1(3)(a)

  any person who is a merchant navy veteran of World War I referred to in paragraph 37(7.3)(a), (b) or (c) of the War Veterans Allowance Act; or