Bremner v. Canada (Attorney General), 2006 FC 96

                                                                                                                                  Date: 20060130

                                                                                                                             Docket: T-1504-04

                                                                                                                          Citation: 2006 FC 96

BETWEEN:

                                                            LIONEL BREMNER

                                                                                                                                            Applicant

                                                                           and

                                            ATTORNEY GENERAL FOR CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

STRAYER D.J.

INTRODUCTION

[1]                This is an application for judicial review to set aside a decision of the Veterans Review and Appeal Board of June 15, 2004, in which the Board determined that the applicant's degenerative disc disease and associated lower back pains are not attributable to his war service, therefore disentitling him to a pension in respect of this condition.

FACTS

[2]                The applicant was born in 1920. He enlisted in the Canadian Armed Forces in 1942 and served in active duty in Canada and Europe. He landed in Normandy shortly after D Day and fought through France and Belgium.

[3]                It is not in dispute that he fell from a Bren gun carrier while training in England and again while under fire in France. It is his position that these falls while he was on active service caused the condition from which he now suffers. However he did not report any injury at the time.

[4]                The record of his medical examination upon joining the army disclosed no back or other problems. When he was examined by a medical board in January, 1946 upon his discharge, Lieutenant Morin, Medical Officer, reported that the applicant complained of having a sore back and made this observation:

Physical findings - Pain in the back when doing hard work and back gets stiff.

In the report of the Surgeon Examiner, Lieutenant Montour, it is stated that:

History [sic] fell on his back Dec 44, Pain for 1 week, complete recovery until last Dec when he had pain again after working hard . . . . Back ok. . . . May refer to DVA if back keeps on bothering him.

The President of the Medical Board, Lieutenant Surchin, in his report stated:

No treatment currently required. May need treatment at a later date.

According to one of his doctors, Doctor F. Cenaiko of Wakaw, Sask. The applicant had seen him intermittently since 1955 and on March 1, 1977 complained to Dr. Cenaiko of low back pain. In a letter of June 14, 1990 Dr. Cenaiko concluded as follows:

In my opinion, there is obviously a good reason to believe that his back pains originate from his injuries in 1944. . . .

In a further letter to the Bureau of Pensions Advocates on August 18, 1990 Dr. Cenaiko said:

This patient has a long history of low back pain secondary to degenerative changes which has occurred in the lumbosacral joint.

A report of a radiologist dated August 15, 1990 reported "degenerative change" in the applicant's back.

[5]                In 1991 the applicant applied to the Canadian Pension Commission for a pension based on his claimed condition of "degenerative disc disease lumbar spine" as a result of the injury incurred in his falls from a Bren gun carrier while on active service. The Commission denied his claim, concluding that his condition was a "late post discharge development . . unrelated to Active Force Service". In 1992 he appealed that decision to the Canadian Pension Entitlement Board which also denied his claim. While accepting the facts of the applicant's injuries while on active service it was unable to relate those injuries to his current condition of degenerative disc disease. The applicant further appealed that decision to the Veterans Appeal Board. While the Veterans Appeal Board appeared to accept the findings of fact of the Entitlement Board (which included a finding that the applicant had suffered the two accidents of falling off a Bren gun carrier) the Veterans Appeal Board later appears to say that these accidents "cannot be substantiated". It also went on to say that a causal connection has not been established between such accidents, if they occurred, and the degenerative condition in the lumbar spine. On March 6, 1991 the Pensions Medical Advisory Division prepared a medical opinion for the Board which concluded as follows:

In a medical opinion prepared by the Pensions Medical Advisory Division on 6 March 1991 the following is reported:

. . . . Upon reviewing the service documents, there are no relevant entries until discharge, at which time the applicant gave a history of having fallen on his back in December 1944, followed by pain of one week's duration. At the time of discharge (January 1946), there were recurrent complaints of back pain, but examination was negative.

The early post-discharge period is silent regarding the claimed condition.

On the medical evidence available, the claimed condition is degenerative in nature, late post-discharge in origin and unrelated to service.

[6]                The applicant subsequently made an application for reconsideration of this decision of March 31, 1993 of the Veterans Appeal Board. His application was made to the successor body, the Veterans Review and Appeal Board. In his application for reconsideration the applicant submitted further evidence. This included a further letter from Dr. Cenaiko dated March 9, 2000 which confirmed that the applicant had for some years suffered from back pains (it is suggested here that Dr. Cenaiko first saw him for this condition in 1972) and that in 1979 an examination at the Royal University Hospital in Saskatoon confirmed that he had "degenerative changes in the cervical and thoracic lumbar spine". In a letter of June 15, 2000, also submitted, Dr. Cenaiko referred to the applicant's fall from a motor vehicle during the war and went on to say "As a result of the injury the patient has developed osteoarthritis in the back which has continued to give him pain". Other evidence submitted included a letter from a chiropractor, Dr. Brian H. Thompson, of November 15, 2002. It concluded as follows:

In conclusion Lionel Bremner has been under my chiropractic care twice in the past 8 years and his spine and pelvis and right leg has progressively regressed. In my opinion, the only means by which a vertebrae translocates anterior and/or lateral is by physical trauma. Assuming Lionel Bremner was injured back in the 1940's and the degenerative process of the spine/pelvis has manifested itself and it is clearly and objectively seen on the radiographic report dated October 10, 2002, in my opinion, there is objective evidence to support Lionel Bremner's lumbopelvis and right leg claim.

[7]                In its decision of June 15, 2004, the decision under review in this application, the Board reviewed the evidence including the new evidence submitted by the applicant in his request for reconsideration.

[8]                The Board accepted that the applicant was involved in two separate incidents where he fell off Bren gun carriers during active service. It noted that the applicant had provided evidence that his low back had continued to bother him on and off since that time. It reviewed the opinion of the Pensions Medical Advisory Division of March 6, 1991 as quoted above, to the effect that the applicant's degenerative condition was "late post-discharge" and not connected to his war time injuries. It also considered the statements of Dr. Cenaiko and Dr. Thompson that the degenerative condition is most probably connected to those injuries. It appeared to lay stress on the fact that at the time of his discharge in January, 1946 the physical examination of his back found it to be normal and that the applicant did not make a claim for entitlement for pension until 1990. The Board concluded as follows:

In reviewing the medical opinions provided by Dr. Cenaiko and Mr. Thompson, the Board finds these opinions to be based on history provided by the Veteran; however, there is insufficient evidence that the Veteran sustained a significant injury as the result of the fall in 1944. These medical opinions are found to be speculative in nature and not supported by any documented factual medical evidence. The first documented medical evidence post discharge indicates the Veteran was first seen in the post discharge period for low back complaints in 1977, this is 31 years post discharge.

Based on the evidence as a whole, the Board finds that the claimed disability was not incurred during nor is it attributable to Active Force service.

The Board therefore confirmed the decision of the Veterans Appeal Board that the applicant's condition "degenerative disc disease lumbar spine" was not attributable to nor incurred during service in World War II. In doing so it specifically stated that it had taken into account the requirements of sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18. These and other legislative provisions will be discussed below.

[9]                The applicant contends that the Board failed to exercise, or exceeded, its jurisdiction, or erred in law, in not drawing from the evidence inferences favourable to him as required by the relevant legislation.

LEGISLATIVE PROVISIONS

[10]            The most relevant provisions are as follows:

ISSUES

[11]            These appear to be

(1) What is the standard of review? and

(2) did the Board commit any reviewable error?

ANALYSIS

                                                              Standard of Review

[12]            This Court has often applied the pragmatic and functional approach in respect of the decisions of this Board or its predecessor. Generally it has been held that, where the issue is simply whether the Board was correct in its weighing or interpretation of the facts, the standard for review is that of patent unreasonability. Other kinds of decisions are reviewable on the standard of reasonableness simpliciter. (See e.g. McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (T.D.); Bradley v. Canada (Attorney General), [2004] FC 996 (T.D.).

[13]            The applicant argues that the Board here erred in law or jurisdiction in not giving effect to section 3 and paragraph 39(c) of the Veterans Review and Appeal Board Act, quoted above: that is, it failed to give the benefit of the doubt to the applicant in its weighing of the evidence.

[14]            Looking briefly at the relevant factors for the application of the pragmatic and functional approach, it may first be noted that there is a privative clause protecting the decisions of the Board, although it is not a very strong one. It is found in section 31 of the Veterans Review and Appeal Board Act and states as follows:

This does not suggest a strong intention of Parliament to protect the Board from judicial review. It has been held that the Board is not entitled to great deference in medical matters as the Board is entitled to obtain independent medical opinions (which it did not do in this case). (See Moar v. Canada (Attorney General) [1995] F.C.J. No. 1555, para. 10). More germane to the present case, the Board does not have expertise in interpreting principles of law and evidence, which in my view are centrally involved here given the specific directions of the statute to the Board as to how it is to assess evidence. The purpose of the legislation is no doubt to facilitate informal decision-making with a minimum of delay and expense for the applicant. With respect to the nature of the questions to be determined, these are generally of a factual nature but, as I have indicated above, I believe the questions raised by this proceeding involve matters of law and jurisdiction as to how the Board must conduct itself in assessing the evidence.

[15]            I have concluded that the determination of such issues should be subject to the standard of review of reasonableness simpliciter. This flows from the fact that the legislation, particularly section 3 and paragraph 39(c) of the Veterans Review and Appeal Board Act, and paragraph 21(1)(d) of the Pension Act, impose certain legal criteria as to how findings of fact are to be made by the Board in respect of whether an injury is attributable to war service.

                                                       Was there Reviewable Error?

[16]            I have concluded that the decision of the Board in this case was not reasonable.

[17]            The Board was obliged by section 3 of the Veterans Review and Appeal Board Act to construe the Act liberally "to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled." The evidence here was that this applicant served his country well indeed, having landed on Juno Beach a few days after D Day and fought through France and Belgium, sustaining an injury when he fell or jumped from a Bren gun carrier while under fire.

[18]            By paragraph 39(b) the Board was required to accept "any uncontradicted evidence" or evidence that it considers to be credible in the circumstances; and by paragraph 39(c) it was obliged to resolve in favour of the applicant "any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case."

[19]            As noted above (para 4), the applicant's Certificate of Medical Examination upon enlisting on February 9, 1942 discloses no physical injury or defect.

[20]            The Board in its decision of June 15, 2004 accepted that the applicant was involved in two separate incidents where he fell off Bren gun carriers during his active force service. It noted the applicant's evidence "that his low back has continued to bother him on or off since that time" and nowhere challenges that evidence. It had before it a report of medical board proceedings of January 8, 1946 when the applicant was interviewed and examined before discharge. Lieutenant Morin, Unit Medical Officer, reported that the applicant complained that he had a sore back. Lieutenant Montour, the Specialist Examiner under the heading "History Functional Inquiry and Examination" reported that the applicant had fallen on his back in December, 1944, had suffered pain at that time, and that upon examination "back ok" but he also added "May refer to DVA if back keeps on bothering him". Lieutenant Surchin, President of the Medical Board, made the following comment: "No treatment currently required. May need treatment at a later date". In effect all of the members of the Board appeared to accept that he had suffered some injury to his back, had suffered pain from that, that at that time there was no physical evidence of the injury, but two thought that he might require treatment in future.

[21]            The Board had before it as new evidence a letter from the applicant's doctor, Dr. Cenaiko. A letter of March 9, 2000 confirmed that Dr. Cenaiko had been attending to the applicant since 1972 and that starting then the patient had a considerable amount of pain with a sore back, sore neck and painful knees. In a letter of June 15, 2000 Dr. Cenaiko notes that the applicant had an incident during the war in which he jumped off a mobile vehicle, "injuring his back . . . . As a result of the injury the patient has developed osteoarthritis in the back which has continued to give him pain." The radiologist report of August 15, 1990 reported that in respect of his lumbar spine: "Degenerative change is noted . . .". The report of November 15, 2002 by Dr. Brian H. Thompson, a chiropractor, as quoted above, stated that the applicant had been under his care twice in the past eight years and his spine and pelvis and right leg had progressively regressed. He stated (as quoted above at para. 6):

In my opinion, the only means by which a vertebrae translocates anterior and/or lateral is by physical trauma. Assuming Lionel Bremner was injured back in the l940's and the degenerative process of the spine/pelvis has manifested itself and it is clearly and objectively seen on the radiographic report dated October 10, 2002, in my opinion, there is objective evidence to support Lionel Bremner's lumbopelvis and right leg claim.

Dr. Cenaiko had also in a letter of June 14, 1990 expressed the opinion that "there is obviously a good reason to believe that his back pains originate from his injuries in 1944...." The only evidence to the contrary was the opinion prepared by the Pensions Medical Advisory Division on March 6, 1991, which is quoted above in para. 5. It is clear that this opinion, while no doubt made in good faith, was simply based on a review of service documents. From that examination of documents it is noted that while at the time of discharge the applicant had complained of back pains there was no physical evidence of injury. It is noted that in the early years after his discharge the applicant did not complain about back pain at least to a doctor or to the Department of Veterans Affairs. The Division then concludes with this sentence:

On the medical evidence available, the claimed condition is degenerative in nature, late post-discharge in origin and unrelated to service.

In effect, then, members of the Division came to the conclusion that the applicant's demonstrated current degenerative condition is not attributable to his war time service as it was not detected at the time of his discharge and that it is "late post-discharge", that is that it took until the 1970's for him to see a doctor about it.

This conclusion of itself would seem to contravene paragraph 21(1)(d) of the Pension Act which says that an applicant shall not be denied a pension for an injury "or aggravation thereof" incurred during military service

solely on the grounds that no substantial disability or disabling condition is considered to have existed at the time of discharge of that member. . . .

On this basis alone the Board should have given little or no weight to this opinion and it is the only opinion negating the applicant's claim that his degenerative back condition is the result of his undisputed accidents in training and on the front.

[22]            Even assuming that the Division's opinion does not contravene paragraph 21(1)(d), I believe that the conclusions of the Board were unreasonable in their implicit ignoring of the legal directions in paragraphs 39(b) and (c) of the Veterans Review and Appeal Board Act.

[23]            First, paragraph (b) requires the Board to "accept any uncontradicted evidence" presented by the applicant "that it considers to be credible in the circumstances". In my view evidence is not "contradicted" unless there is inconsistent physical evidence or a conflicting opinion which is properly assessed in accordance with the requirements of the Act to be clearly more credible. In the present case there was no such evidence. What the Board had before it was inconsistent opinions, all of them speculative On the one hand there were the opinions of Dr. Cenaiko and Dr. Thompson to the effect that if the applicant had suffered the accidents reported (and the Board accepts that such accidents occurred) then his present degenerative condition is probably the result of those accidents. On the other hand we have the statement of the Pensions Medical Advisory Division, expressly based not on examination of the applicant but of documents, to the effect that as there was no report of physical damage at the time of his discharge, and as it took until the 1970's for the applicant to see a doctor about his back condition, that condition is unrelated to his military service. In the circumstances this is also speculative. Faced with inconsistent opinions, in my view the Board cannot simply dismiss the medical evidence submitted for the applicant as being "contradicted". In such circumstances the Board must weigh such evidence according to the directions in paragraph 39(c). Nor do I accept that the Board was exercising its prerogative under paragraph 39(b) to dismiss the applicant's evidence as not credible. If the Board is going to rely on its right to reject evidence as not credible, as contemplated by paragraph 39(b), then it must specifically state that it finds the evidence lacking in credibility and its reasons for so finding: see Moar v. Canada (Attorney General), supra at para. 14; Brychka v. Canada (Attorney General) [1998] F.C.J. No. 124 at para. 25; and MacDonald v. Canada (Attorney General) [1999] F.C.J. No. 346 at para. 25. As decided in those cases, the Board's failure to explain that it found the evidence incredible and why it so found meant that it had exceeded its jurisdiction or erred in law. As there was no real contradiction established here and as the Board did not make specific findings as to credibility, it was left with the duty under paragraph 39(c) in weighing the evidence to "resolve in favour of the applicant . . . any doubt . . . as to whether the applicant . . . has established a case". Instead the Board contented itself with the following paragraph at the end of its decision, a paragraph which appears frequently to be employed in lieu of expressly applying the requirements of the Act.

In all reconsiderations, the Board is mindful of its statutory obligation pursuant to section 3 of the Act to liberally construe and interpret all legislation, and pursuant to section 39 to resolve any doubt, in weighing evidence, in favour of the Applicant.

The Board may well have been "mindful" of its responsibilities under paragraphs 39 (b) and (c) but there is nothing in the decision to indicate that it has fulfilled them.

[24]            The decision of the Board must therefore be set aside because it is unreasonable, no apparent attention having been given to the jurisdictional limits and legal requirements in respect of its assessment of evidence.

DISPOSITION

[25]            The decision of the Veterans Review and Appeal Board of June 15, 2004 will be set aside and the matter remitted to the Board for reconsideration in accordance with these reasons.

                                                                                                         (s) "B.L. Strayer"          

Deputy Judge

                                                 FEDERAL COURT OF CANADA

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1504-04

STYLE OF CAUSE:               LIONEL BREMNER v. ATTORNEY GENERAL FOR CANADA

PLACE OF HEARING:                     Saskatoon, Saskatchewan

DATE OF HEARING:                       January 12, 2006

REASONS FOR ORDER:                Strayer D.J.

DATED:                                              January 30, 2006

APPEARANCES:

Bruce J. Slusar                                                                                                FOR THE APPLICANT

Chris Bernier                                                                                               FOR THE RESPONDENT

SOLICITORS OF RECORD:

Slusar and Company

Saskatoon, Saskatchewan                                                                               FOR THE APPLICANT

Mr. John H. Sims, Q.C.

Deputy Attorney General of Canada

Ottawa, Ontario                                                                                          FOR THE RESPONDENT