SOLDIER LOSES IN COURT, WINS NOD
Denied benefits for crash before deployment
Air Force Captain Kim Fawcett, who lost her leg and her only child in a horrific car crash in 2006 while dropping her son at daycare in preparation for her second deployment to Afghanistan, this week lost her long-running court battle over disability compensation.
There is, however, one thing she is celebrating. Fawcett has been nominated as the Conservative candidate in the Toronto riding of Scarborough Southwest for the upcoming federal election, opening the potential of a soldier who has been fighting the Canadian Forces and Veterans Affairs for 15 years, becoming the next Veterans Affairs or Defence minister.
Fawcett’s tragic story was documented in June by the National Post.
She was gearing up for her second deployment in Canada’s war in Afghanistan. As a new mother who had just returned from maternity leave — and with her military husband already ordered onto base to prepare for an imminent mission of his own — she phoned her commanding officer and received approval to trigger the military’s pre-deployment childcare plan for their nine-month-old son, Keiran, court heard.
She put on her uniform and placed Keiran in the family’s Jeep and, before driving to Canadian Forces Base Kingston she was going to drop him off at her in-laws’ house.
As she merged from the on-ramp onto Highway 401, her Jeep spun on ice and slammed into the road’s concrete median.
As she waited for assistance, she bundled Keiran up and was carrying him to the shoulder of the highway, she previously told the Post.
“I stepped down into the ditch and then we were hit broadside right out of nowhere,” she said.
A truck hit the pair, sending her son flying onto the highway and pulling her down under its undercarriage. Her right leg was torn off. She had 21 additional fractures but the worst blow she learned after waking up in hospital: Keiran had died. In the time since, she adapted to life as an aboveknee amputee. She returned to work and completed a second tour of duty in Afghanistan — the first female soldier to serve in a war zone with a prosthetic leg. Along the way, she fought for military benefits and disability benefits to cover her treatments and prosthetics. After years of appeals and litigation, her case was taken to the Federal Court of Appeal seeking to overturn the decision that she was not on duty at the time of the crash, reducing the amount she was eligible for.
The court dismissed her appeal this week.
The judges ruled the military’s decision “falls within the legally and factually defensible range of possible, acceptable outcomes,” which meets the legal test used of a decision being reasonable rather necessarily being correct.
The court’s dismissal has not derailed her fight, said David Levangie, her lawyer on the case. Two avenues of appeal remain open — an internal appeal identified by the appeal judges and the other a challenge to the Supreme Court of Canada. Levangie said both are under consideration. “This is not the end of the battle,” he said.
“She has already been fighting this battle for 13 years. But she’s a warrior. She is a fighter. She is going to continue fighting. And not only for herself — there is a lot of push for legislative change. That may not help her, but it would ensure nobody else has to go through this ordeal.”
It was her fight for changes to how injured soldiers are treated that put her in political circles.
Her cause was championed by Conservative politicians in the past. Her case was raised in the House of Commons last year, leading to words of praise from Defence Minister Harjit Sajjan. “I want to thank Capt. Fawcett for her service to our country. Our hearts go out to her for the loss she has suffered. We are committed to making sure she gets the support she needs, including for the prosthetic leg,” Sajjan said in the House.
“Due to the complexity of the decisions made some time ago, this file is very complex. However, we will not only make sure that she has the right support, but we will work through that complexity to make sure we do right by her.”
On Friday, the minister’s office said Fawcett’s case is still a priority. Officials are in regular contact with her and Sajian continues to work towards a solution.