Date: 20060908
Docket: T-2285-05
Citation: 2006
FC 1070
Ottawa, Ontario, the
8th day of September 2006
Present: The Honourable Mr.
Justice Shore
BETWEEN:
DONAT
THÉRIAULT
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
Donat
Thériault, who served in the Regular Forces of the Canadian Army during the
Second World War and then for an additional year, from 1943 until his discharge
in 1946, filed a disability pension application that was rejected. The Board’s
review panel affirmed the rejection. Mr. Thériault appealed before the
Board’s appeal panel, which affirmed the decision of the review panel, and even
a review of the appeal panel’s decision was denied. Further, the Board stated
that new evidence submitted by Mr. Thériault added nothing new to the record,
and Mr. Thériault accordingly filed in the Federal Court a first application
for judicial review which was allowed but which was not followed up according
to the intent of the Federal Court judgment.
In his judgment of July 12,
2004 Mr. Justice Paul Rouleau allowed the application for judicial review and
quashed the decision by the Board dated May 23, 2003. The matter was referred
back for redetermination. In his reasons for judgment Mr. Justice Rouleau wrote
the following:
In the case at bar, as was stated earlier, the Board did not at all
question the credibility of the medical evidence adduced by the applicant; on
the contrary, it concluded that the evidence was credible. Nor was there any
contradictory medical evidence that was submitted to cast doubt on the merits
of the applicant’s medical evidence.
Instead, the Board chose to ignore the uncontradicted evidence on
the ground that it was not relevant. But the medical evidence in question was
of undeniable relevance since it was addressed to the vascular problems in the
lower extremities and established the potential link with military service.
The applicant has consistently alleged in the course of his pension
application that he suffers from problems with his legs. The new evidence
simply reiterates this claim, and the applicant has attempted to corroborate
the substance of his application by submitting additional evidence specifically
addressed to these problems. How can it be claimed that this evidence is not
relevant, without falling into absurdity?
It is possible that the Board meant instead that this evidence was
not conclusive and that it did not establish with certainty the causal
relationship between the disability and the applicant’s military service. This
kind of reasoning cannot prevail, as it conflicts with the scheme of the Act by
imposing an excessive burden on the applicant . . .
Although the new evidence did not unequivocally establish the
existence of a causal relationship between the applicant’s complaints and his
military service, it may nevertheless serve as a reasonable basis to support
the theory that his complaints are attributable to his military service. In
fact, in his letter of January 29, 2003, Dr. Nagpal stated:
Mr. Thériault
was in the military in the remote past and at that time he was complaining of
pain in his legs when he walked. I stated in my previous letter that it is
impossible to know exactly what the problem was at that time, but I can tell
you that young men in the military can have problems with their vasculature of
their lower legs, because of excess physical activity. The fact that his peripheral
vascular disease is significantly worse now maybe related to early problems in
the military. This particular condition is called popliteal entrapment syndrome
and certainly could be a possibility in this gentleman, if he had classic
claudication at that age...So in summary, the question you are asking me, could
this vascular problem have been a prodrome of problems in the future[?] The
answer is there is that possibility as he falls into the category of the
high-risk group for popliteal entrapment, namely young man in military service.
In the absence of any contradiction in this evidence
alone, which was considered credible, the Board had to orient its decision in
accordance with the evidentiary rules in section 39 and the interpretative
rule in section 3, that is, draw from the evidence every reasonable
inference in favour of the applicant, accept any uncontradicted evidence
presented to it by the applicant that it considers to be credible and resolve
in the applicant’s favour any doubt as to whether the applicant has established
a case.
To reach its conclusion, the
Board commented on the expert medical evidence and made some inferences from
it, although the Board itself does not have any particular expertise in such
matters. Moreover, as the applicant points out, the Board erroneously concluded
that there was no reference to the “claudication” syndrome in the applicant’s
medical file before Dr. Nagpal submitted his final report, since that
medical file did contain a report by Dr. Jean-Marie Michel, who has
been the applicant’s treating physician since 1972, in which he states:
[TRANSLATION] Since I have known Mr. Thériault, he has
always suffered from vascular problems in the lower extremities, and as early
as 1972 displayed some intermittent claudication . . .
(Thériault
v. Canada (Attorney General), 2004 FC 978, [2004] F.C.J.
No. 1198 (QL), at paragraphs 26-32.)
The Board, whose decision gave
rise to this second judicial aaplication, ignored the first judgment of Mr.
Justice Rouleau of this Court.
This Court’s first judgment
was given effect in a superficial and cosmetic way without regard to its
interpretation of, and its remarks on, the Act and applicable case law.
There is not only judicial authority for the principle that, as
benefits-conferring legislation, the Act should be liberally construed, but
also strong statutory language mandating this approach. Section 2 of the Act
reads as follows:
2. 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.
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2.
Les dispositions de la présente loi s'interprètent d'une façon libérale afin
de donner effet à l'obligation reconnue du peuple canadien et du gouvernement
du Canada d'indemniser les membres des forces qui sont devenus invalides ou
sont décédés par suite de leur service militaire, ainsi que les personnes à
leur charge.
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(Frye
v. Canada (Attorney General), 2005 FCA 264, [2005] F.C.J.
No. 1316 (QL), at paragraph18.)
Following this second judgment, it will be
necessary for the same Board to thoroughly review it to make sure that, this
time, it will be implemented concretely and not in a cosmetic or superficial
way. (See also paragraph 37 of Frye, supra.)
In view of the applicant’s age, the lengthy
delays that have plagued his case are quite substantial. The applicant should
reasonably expect a decision during his lifetime. A judgment concluding
judicial review proceedings should not be an exercise in futility. It will then
be up to the Board concerned to act following this second judgment by this
Court in the same case.
NATURE OF JUDICIAL PROCEEDING
[2]
This is an
application for judicial review made pursuant to section 18.l of the Federal
Courts Act, R.S.C. 1985, c. F-7, from a decision on March 23, 2005 by the
Veterans Review and Appeal Board (the Board). In that decision the Board
dismissed an application to review a decision by an appeal panel on the ground
that the evidence put forward by the applicant in support of his review
application added nothing new to the record, and accordingly denied the
applicant the right to a disability pension.
FACTS
[3]
The
applicant Donat Thériault served in the Regular Forces of the Canadian Army
from August 10, 1943 until his discharge on September 4, 1946. He served
overseas from January 14, 1945 to July 9, 1946.
[4]
On August
31, 1999 Mr. Thériault filed a disability pension application for arteritis in
the lower members which was allegedly due to his service in the armed forces.
[5]
On April
28, 2000 the Veterans Affairs Department (the Department) ruled that the
arteritis affecting his lower members did not entitle the applicant to a
pension as the ailment arose after his discharge and was not due to, and did
not arise during his service in the active forces.
[6]
On November
30, 2000 the Board’s review panel affirmed the Department’s decision.
[7]
Mr.
Thériault was not satisfied with this decision and on May 15, 2001 appealed
before the Board’s appeal panel, on the ground that, according to the evidence,
there was a link between the arteritis in his lower members and his service in
the armed forces.
[8]
On May 30,
2001 the Board’s appeal panel affirmed the decision of the review panel dated
November 30, 2000.
[9]
On March
25, 2003 Mr. Thériault wrote to the Board’s special advisor asking him to
review his decision of May 30, 2001, alleging that there was an error in the
assessment of the facts which led to the finding and that new medical evidence
was being offered to the Board.
[10]
On May 23,
2003 the Board refused to review the decision by the appeal panel dated
May 30, 2001, on the grounds that there was no error of fact or law
in the appeal panel’s decision. The Board further stated that the new evidence
adduced by Mr. Thériault added nothing new to the record as it was not relevant
and would have no effect on the outcome of the case.
[11]
On July
31, 2003 Mr. Thériault filed in the Federal Court an application for judicial
review from the Board’s decision of May 23, 2003. On July 12, 2004 the Federal
Court allowed the application for judicial review and quashed the Board’s
decision. The case was accordingly referred back for redetermination.
[12]
On March
23, 2005 the Board reviewed the appeal panel’s decision as directed by the
Federal Court. At that time the Board affirmed the prior decisions rendered in
Mr. Thériault’s matter and upheld the denial of entitlement to a disability
pension. It is this latter decision which is being challenged in this
application for judicial review.
[13]
On
December 23, 2005 Mr. Thériault filed a notice of application for judicial
review in the Federal Court from the latter decision of the Board.
IMPUGNED DECISION
[14]
Despite
its duty to apply the provisions of section 39 of the Veterans Review and
Appeal Board Act, R.S.C. 1985, c. 18 (the VRABA), the Board stated that it
could not accept the evidence of Dr. Nagpal that raised the possibility that
the ailment officially diagnosed over 50 years after Mr. Thériault’s
military service ended had originated during his military service, even though
Mr. Thériault’s military record contradicted that evidence.
[15]
The Board
accepted that Mr. Thériault might have suffered from pain in his legs during
the 1940s, as he had testified. At the same time, the Board found that it could
not find that there was any likelihood of a credible medical link between his
pain in the legs and arteritis in the lower members, a condition which was
treated for the first time at the earliest 25 years after his military service
had ended.
[16]
The Board
accordingly upheld the preceding decisions in the case and affirmed the denial
of entitlement to the pension pursuant to subsection 21(1) of the Pension
Act, R.S.C. 1985, c. P-6.
ISSUES
[17]
The only
issue in this case is whether the Veterans Review and Appeal Board made a
reviewable error when it refused to award Mr. Thériault entitlement to a
pension under subsection 21(1) of the Pension Act.
ANALYSIS
Legislative background
[18]
According
to section 3 of the VRABA, the provisions of the Act and of any other Act
referring to the Board are to be liberally construed; the object of the
provision is to recognize the great obligations of the people and Government of
Canada to the members of the armed forces and their families:
3.
The
provisions of this Act and of any other Act of Parliament or of any
regulations made under this or any other Act of Parliament conferring or
imposing jurisdiction, powers, duties or functions on the Board shall be
liberally construed and interpreted 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.
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3.
Les
dispositions de la présente loi et de toute autre loi fédérale, ainsi que de
leurs règlements, qui établissent la compétence du Board ou lui confèrent des
pouvoirs et fonctions doivent s’interpréter de façon large, compte tenu des
obligations que le peuple et le gouvernement du Canada reconnaissent avoir à
l’égard de ceux qui ont si bien servi leur pays et des personnes à leur
charge.
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[19]
Similarly,
section 39 of the VRABA sets out broad rules of evidence, designed to benefit
applicants:
39.
In all proceedings under this Act, the Board shall
(a) draw from all the
circumstances of the case and all the evidence presented to it every
reasonable inference in favour of the applicant or appellant;
(b) accept any uncontradicted
evidence presented to it by the applicant or appellant that it considers to
be credible in the circumstances; and
(c) resolve in favour of the
applicant or appellant any doubt, in the weighing of evidence, as to whether
the applicant or appellant has established a case.
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39.
The
Board applique, à l’égard du demandeur ou de l’appelant, les règles suivantes
en matière de preuve :
a) il tire des circonstances et des
éléments de preuve qui lui sont présentés les conclusions les plus favorables
possible à celui-ci;
b) il accepte tout élément de preuve non
contredit que lui présente celui-ci et qui lui semble vraisemblable en
l’occurrence;
c) il tranche en sa faveur toute
incertitude quant au bien-fondé de la demande.
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[20]
Subsection
32(1) of the VRABA provides as follows:
32. (1) Notwithstanding section 31, an
appeal panel may, on its own motion, reconsider a decision made by it under
subsection 29(1) or this section and may either confirm the decision or amend
or rescind the decision if it determines that an error was made with respect
to any finding of fact or the interpretation of any law, or may do so on
application if the person making the application alleges that an error was
made with respect to any finding of fact or the interpretation of any law or
if new evidence is presented to the appeal panel.
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32. (1) Par dérogation à l’article 21,
le comité d’appel peut, de son propre chef, réexaminer une décision rendue en
vertu du paragraphe 29(1) ou du présent article et soit la confirmer, soit
l’annuler ou la modifier s’il constate que les conclusions sur les faits ou
l’interprétation du droit étaient erronées; il peut aussi le faire sur
demande si l’auteur de la demande allègue que les conclusions sur les faits
ou l’interprétation du droit étaient erronées ou si de nouveaux éléments de
preuve lui sont présentés.
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[21]
Section 21
of the Pension Act governs entitlement to a pension; that provision sets
out the circumstances in which a pension will be awarded or denied:
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,
(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;
. . . . .
(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
(i)
to the
extent that the member is receiving a pension for that disability or
disabling condition, or
(ii)
to the
extent that that disability or disabling condition was obvious or was
recorded on medical examination prior to enlistment;
(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 . . .
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21.
(1)
Pour le service accompli pendant la Première Guerre mondiale ou la Seconde
Guerre mondiale, sauf dans la milice active non permanente ou dans l’armée de
réserve, le service accompli pendant la guerre de Corée, le service accompli
à titre de membre du contingent spécial et le service spécial :
a) des pensions sont, sur demande,
accordées aux membres des forces ou à leur égard, conformément aux taux
prévus à l’annexe I pour les pensions de base ou supplémentaire, en cas
d’invalidité causée par une blessure ou maladie – ou son aggravation –
survenue au cours du service militaire ou attribuable à celui-ci;
. . .
c) l’invalidité ou l’affection
entraînant incapacité dont était atteint le membre des forces qui a accompli
du service sur un théâtre réel de guerre, du service pendant la guerre de
Corée ou du service spécial, et qui est antérieure au service accompli
pendant la Première ou la Seconde Guerre mondiale, au service accompli
pendant la guerre de Corée ou au service spécial n’autorise aucune déduction
sur le degré d’invalidité véritable, sauf dans la mesure où il reçoit une
pension à cet égard ou si l’invalidité ou l’affection était évidente ou a été
consignée lors d’un examen médical avant l’enrôlement;
d) un demandeur ne peut être privé d’une
pension à l’égard d’une invalidité qui résulte d’une blessure ou maladie ou
de son aggravation contractée au cours du service militaire, ou à l’égard du
décès d’un membre des forces causé par cette blessure ou maladie ou son
aggravation, uniquement du fait que nulle invalidité importante ou affection
entraînant une importante incapacité n’est réputée avoir existé au moment de
la libération de ce membre des forces . . .
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Standard of review
[22]
In his
submissions, Mr. Thériault argued that since the issue is one of statutory
interpretation, the appropriate standard of review should be that of
correctness. However, this Court is of the view that, in this case, the issue
is actually one of mixed law and fact since the Board must consider and weigh
the relevant facts, in compliance with sections 3 and 39 of the VRABA.
[23]
This Court
has held, with respect to the decisions of the Board, that the applicable
standard of review in applying in the Act to the facts is that of
reasonableness simpliciter (McTague v. Canada (Attorney General),
[2000] 1 F.C. 647, [1999] F.C.J. No. 1559 (QL), at paragraphs 22-48).
[24]
This Court
must exercise judicial restraint when the Board is acting within the parameters
of its jurisdiction and when the Board has made no error that makes its
decision unreasonable.
Did Veterans Review and Appeal Board make
a reviewable error by denying Mr. Thériault entitlement to a pension under
subsection 21(1) of the Pension Act?
[25]
The
evidence was that on May 25, 2003, in accordance with the requirements of
section 32 of the VRABA, Mr. Thériault filed an application for review with the
Board, alleging there had been an error in the assessment of the facts that led
to the finding and that new evidence was offered to the Board.
[26]
The
evidence further established that, in its decision of May 30, 2001, the appeal
panel ruled that it did not have the medical evidence required to link the
ailment of arteritis in the lower members of Mr. Thériault with his military
service.
[27]
Therefore,
Mr. Thériault submitted two new reports, ie. the letters from Dr. Nagpal
dated August 1, 2002 and January 29, 2003. According to Mr. Thériault this new
evidence addressed the issue directly, namely the link between his medical
condition and his military service.
[28]
The Board
applied the test for determining whether it would accept this new evidence, as
stated in MacKay v. Attorney General, [1997] F.C.J. No. 495 (QL), at
paragraph 26, following Palmer and Palmer v. The Queen, [1980] 1
S.C.R. 759. The four criteria are the following:
- Evidence which could have been
adduced on appeal or on the review if due diligence had been exercised is
not “new”;
- The evidence must bear upon the
issue of the proceeding;
- The evidence must be relevant, that
is, it has or may have a decisive effect on the decision;
- The evidence should be credible,
that is, it can reasonably be relied on when taken in conjunction with all
the other evidence.
[29]
On the
first criterion, the Board found that Mr. Thériault had exercised due diligence
and that the two medical reports were new evidence.
[30]
On the
fourth criterion, the Board found that the new evidence was credible.
[31]
Mr.
Thériault alleged that, as to the other two criteria, the Board made an error
of law. The Board had to examine this new evidence in accordance with the rules
of evidence set out in section 39 of the VRABA and in the light of the rule of
liberal construction provided for in section 3 of that Act.
[32]
Mr.
Thériault submitted that the new evidence certainly could have an effect on the
outcome of the case and that it could be determinative.
[33]
In a decision
of May 23, 2003 the Board reviewed the appeal panel’s decision dated
May 30, 2001 and rejected the new evidence on the ground that it
could have no effect on the outcome of the case and was not relevant. For these
reasons, the review application was denied.
[34]
Mr.
Thériault filed an application for judicial review of this decision in this
Court. Mr. Justice Rouleau, in a judgment on July 12, 2004, allowed the
application for judicial review and quashed the Board’s decision of May 23,
2003. The matter was referred back for redetermination. In his reasons for
decision, Mr. Justice Rouleau wrote the following:
In the case at bar, as was stated earlier, the Board did not at all
question the credibility of the medical evidence adduced by the applicant; on
the contrary, it concluded that the evidence was credible. Nor was there any
contradictory medical evidence that was submitted to cast doubt on the merits
of the applicant’s medical evidence.
Instead, the Board chose to ignore the uncontradicted evidence on
the ground that it was not relevant. But the medical evidence in question was
of undeniable relevance since it was addressed to the vascular problems in the
lower extremities and established the potential link with military service.
The applicant has consistently alleged in the course of his pension
application that he suffers from problems with his legs. The new evidence
simply reiterates this claim, and the applicant has attempted to corroborate
the substance of his application by submitting additional evidence specifically
addressed to these problems. How can it be claimed that this evidence is not
relevant, without falling into absurdity?
It is possible that the Board meant instead that this evidence was
not conclusive and that it did not establish with certainty the causal
relationship between the disability and the applicant’s military service. This
kind of reasoning cannot prevail, as it conflicts with the scheme of the Act by
imposing an excessive burden on the applicant . . .
Although the new evidence did not unequivocally establish the
existence of a causal relationship between the applicant’s complaints and his
military service, it may nevertheless serve as a reasonable basis to support
the theory that his complaints are attributable to his military service. In
fact, in his letter of January 29, 2003, Dr. Nagpal stated:
Mr. Thériault
was in the military in the remote past and at that time he was complaining of
pain in his legs when he walked. I stated in my previous letter that it is
impossible to know exactly what the problem was at that time, but I can tell
you that young men in the military can have problems with their vasculature of
their lower legs, because of excess physical activity. The fact that his
peripheral vascular disease is significantly worse now maybe related to early
problems in the military. This particular condition is called popliteal
entrapment syndrome and certainly could be a possibility in this gentleman, if
he had classic claudication at that age...So in summary, the question you are
asking me, could this vascular problem have been a prodrome of problems in the
future[?] The answer is there is that possibility as he falls into the category
of the high-risk group for popliteal entrapment, namely young man in military
service.
In the absence of any contradiction in this evidence
alone, which was considered credible, the Board had to orient its decision in
accordance with the evidentiary rules in section 39 and the interpretative
rule in section 3, that is, draw from the evidence every reasonable
inference in favour of the applicant, accept any uncontradicted evidence
presented to it by the applicant that it considers to be credible and resolve
in the applicant’s favour any doubt as to whether the applicant has established
a case.
To reach its conclusion, the Board commented on the expert medical
evidence and made some inferences from it, although the Board itself does not
have any particular expertise in such matters. Moreover, as the applicant
points out, the Board erroneously concluded that there was no reference to the
“claudication” syndrome in the applicant’s medical file before Dr. Nagpal
submitted his final report, since that medical file did contain a report by
Dr. Jean-Marie Michel, who has been the applicant’s treating
physician since 1972, in which he states:
[TRANSLATION] Since I
have known Mr. Thériault, he has always suffered from vascular problems in
the lower extremities, and as early as 1972 displayed some intermittent
claudication . . .
(Thériault, supra, at
paragraphs 26-32.)
[35]
As
directed, the Board reviewed the appeal of the pension entitlement by Mr. Thériault. The hearing took place on March 23, 2005. In the
latter decision, the Board upheld the pension entitlement denial.
[36]
Mr.
Thériault submitted that the Board made incorrectly interpreted sections 3 and
39 of the VRABA, and hence rendered an unreasonable decision. In particular,
the Board ought to have recognized the following points in the evidence.
[37]
In his
first pension application, Mr. Thériault testified
that he began feeling pain in his legs during his military service and that he
thus had to ask to be excused from parades several times.
[38]
He further
testified before the review panel on November 30, 2000 that he did his active
service in aviation and that the reason he did not complain of leg pains during
his military service was that he feared he would not be sent overseas with his
comrades. Further, he added that he was young and that people did not complain
about that kind of problem at that time.
[39]
Mr. Thériault’s wife testified before the
review panel that before their marriage in 1957, he had difficulty walking and
dancing because of pain in his legs. Mr. Thériault’s cousin filed a letter
saying that they had done their service in aviation together and that
Mr. Thériault often told him he had pain in his legs when he was running
or taking part in parades.
[40]
Dr.
Michel, Mr. Thériault’s attending physician,
stated that in 1972, when he began treating Mr. Thériault, the latter was
already suffering from intermittent limping and vascular problems.
Dr. Michel considered that this ailment began during Mr. Thériault’s
military service.
[41]
According
to the evidence, Mr. Thériault underwent an
operation for vascular problems in his legs in the early 1980s.
[42]
Dr.
Nagpal, a general and vascular surgeon, who was consulted by Mr. Thériault in 2002 and 2003, did not want to give a final
opinion on the cause and the outbreak of Mr. Thériault’s ailment. On the
other hand, in his two reports he explained that Mr. Thériault had been
suffering pains in his legs since his military service and it was possible that
Mr. Thériault’s ailment was caused by his military service.
[43]
The Board
placed much emphasis on the fact that Mr. Thériault’s
military record contained no information to support the fact that he was
suffering from leg pains or that he had any medical condition whatever during
his military service. The Board appeared to consider that in the absence of
documented medical information during military service it was impossible to
establish that a medical condition could have arisen during Mr. Thériault’s
time of service. That is not a test required by the legislation.
[44]
Further,
in its decision the Board appeared to ignore Mr. Thériault’s
explanations as to the reasons why his military record contained no information
on his medical condition and the testimony by his wife and cousin which
supported the fact that he began suffering pain during his military service.
[45]
It is also
important to note that the Board never found that Mr. Thériault’s
testimony was not credible. It also recognized that Mr. Thériault could
have been suffering from leg pain during the 1940s.
[46]
The Board
dwelt at length on the lack of medical evidence as to the period going from
1946 to 1972. At the same time, the Board appears to have ignored Mr. Thériault’s testimony that he had leg pains while he was
working at the veterans’ hospital in the 1950s and that of his wife that he had
difficulty walking before their marriage in 1957.
[47]
The Board
described Dr. Michel’s comments as groundless and of little evidentiary value.
In arriving at this conclusion, the Board noted that Dr. Michel had begun
treating Mr. Thériault in 1972 and that for that
reason he could not say that his problems had begun during military service. It
is true that Dr. Michel could not say with certainty that Mr. Thériault’s
problems had developed during his military service since he was not his
physician at that time. At the same time, he could give his medical opinion as
to the cause of the medical condition. This conclusion by Dr. Michel was of
course based on Mr. Thériault’s statements, but also on his specific
condition, his history and the severity of his condition in 1972 when he began
treating him.
[48]
The Board
drew an inference which was not based on the evidence in the review record when
it found that Mr. Thériault had worked as a
fisheries officer for 28 years, a position that required him to be standing for
long periods. This inference, which was in no way supported by the evidence
before the Board, constitutes speculation.
[49]
The Board
accepted Dr. Nagpal’s medical opinions. He confirmed that Mr. Thériault was suffering from peripheral vascular illness in
both legs. In its decision of March 23, 2005 the Board considered this
evidence credible and relevant.
[50]
The Board
regarded Dr. Nagpal’s opinion as to the link between Mr. Thériault’s
ailment and his military service as a mere possibility, primarily because the
Board had no knowledge of a higher rate of vascular illness or “popliteal
entrapment” among young members of the military than in the general population.
The Board also added that the record should have contained studies or
statistics to establish such a rate.
[51]
The Board
erred in applying the rule of evidence in section 39 of the VRABA. The Board
appeared to require a much higher standard of proof than that of the balance of
probabilities.
[52]
In order
to be entitled to a pension, Mr. Thériault must
meet the following conditions, as summarized by Marc Nadon J. in MacNeill v.
Canada, [1998] F.C.J. No. 1115 (QL), at paragraph 23:
On the basis of the paragraphs noted
above, two conditions must be met before the applicant can be said to be
entitled to a pension. First, the applicant’s condition must be
pensionable. In that regard, it must be a condition which can be classified as
a “disability” resulting from an injury or disease. In my opinion the word
“disability” requires that the condition be one from which the applicant
continues to suffer. Second, the original condition must arise directly from
the applicant’s military service. After carefully reading the provision I have
concluded that the applicant’s military service must be the primary cause for
the disability. However, the Act also provides that a pension may be awarded if
the disability is aggravated by the applicant’s military service. In either
case, causation must be established and, in the absence of evidence to the
contrary, causation is presumed if the injury was incurred during the course
[of] the applicant’s service.
[53]
In Hunt
v. Canada (Minister of Veterans Affiars), [1998] F.C.J. No. 377 (QL), at paragraph 9,
affirmed by [1999] F.C.J. No. 1601 (QL), this Court held that an applicant must
prove, on the balance of probabilities, that the condition from which he is
suffering arose during his military service. The Court added that when an
applicant is trying to offer such evidence, the Board must accept any
uncontradicted and credible evidence:
Although
section 39 of the Veterans Review and Appeal Board Act requires that the
Board accept uncontradicted evidence, this evidence must be credible. The
applicant must prove the civil standard that on a balance of probabilities,
with the bonus of having this evidence put in the best light possible, his
disease was contracted while in the service of his country.
[54]
The Board
invoked its expertise and specialized knowledge of the various ailments pleaded
before it every year. The Board stated that it had no knowledge of any study
indicating that there was a higher rate of this ailment among members of the
military. Nonetheless, the Board has no medical expertise and cannot disregard
medical evidence by stating that it has special medical knowledge.
[55]
Section 38
of the VRABA authorizes it to obtain the opinions of a qualified physician on
any inconclusive medical question.
[56]
In Rivard
v. Canada (Attorney General), 2001 FCTD 704, [2001] F.C.J.
No. 1072 (QL), at paragraphs 39- 43, Mr. Justice Nadon stated that under
section 38 of the VRABA the Board may obtain medical advice on uncertain
questions. He concluded that, on the basis of this provision, it could be
inferred that that the Board had no particular medical expertise:
If required, the Board is entitled to obtain medical
evidence, other than evidence adduced by the applicant. Subsection 38(1) of the
VRAA allows it to obtain medical advice regarding any matter before it. Under
subsection 38(2), the Board is required to give notice that it will in fact
obtain expert evidence to allow applicants to produce evidence in reply.
In my view, the fact that section 38 of the VRAA allows
the Board to seek medical advice on any medical matter suggests that the Board
has no particular medical expertise. That was acknowledged by jurisprudence,
beginning with Moar v. Canada (Attorney General) (1995), 103 F.T.R.
314 (T.D.). Mr. Justice Heald’s conclusion in Moar, supra, was
cited in several cases, in particular in Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (T.D.). MacKay J.’s comments at paragraphs 14
and 15 read:
Under section 38 of the
Act, the Board may seek independent medical opinions regarding any matter
before the Board. Mr. Justice Heald, in Moar v. Canada (Attorney
General), (1995), 103 F.T.R. 314, at p. 316 commenting on a similar provision,
s.10(3) of the former, and now repealed Veterans Appeal Board Act, and
its significance for the deference to be accorded by the Court to the Board’s
decision, had this to say:
The issue in this case clearly involves medical
matters. Section 10(3) of the Veterans Appeal Board Act empowers the
Board to obtain independent medical opinions relating to any matter before the
Board. On this basis I conclude that the Board is not to be afforded the
deference usually given to tribunals of a specialized nature because of their
particular expertise.
That decision must be
read in light of Tonner v. Canada (June 12, 1996), Court File
No. A-263-95, [1996] F.C.J. No. 825 (F.C.A.), a decision of the Federal Court
of Appeal, which held that the privative clause found in the former Veterans
Appeal Board Act entitled that Board to deference. A similar clause is now
found in s. 31 of the present Act. I conclude that the Court is to defer to a
decision of the VRAB, other than one concerning jurisdiction of the Board,
unless it is patently unreasonable.
In Moar, supra, Heald J. concluded that
the very existence of a provision similar to section 38 of the VRAA suggested
that the Board did not have any particular medical expertise and therefore
could not be afforded deference from the courts. The Federal Court of Appeal
later determined that the privative clause contained in the VRAA required
deference from the court reviewing the Board’s decision since that was the
legislator’s intent. That decision to give deference resulted solely from the
existence of the privative clause and not from a reassessment of Heald J.’s
reasons in Moar, supra, concerning the Board’s medical expertise.
In my view, the substance of Justice Heald’s analysis concerning the Board’s
medical expertise still applies; the existence still today of section 38 of the
VRAA confirms that the Board does not have any specific medical expertise.
In my opinion, the very existence of section 38 suggests that the
Board does not have an inherent jurisdiction over medical matters. It does not
have any particular medical expertise that would enable it to state without
supporting evidence that Dr. Sestier’s opinion and the article he adduced
in this case were not part of the medical consensus. Therefore, I believe that
the Board could not present medical facts that had not been adduced as evidence
for the purpose of rebutting the applicant’s evidence. If the Board required
evidence other than that adduced by the applicant or evidence representing the
medical context, it had only to invoke section 38 and seek medical advice.
Therefore, I am of the view that sections 38 and 39 of the VRAA and
the case law, when read together, require that contradictory evidence be
adduced in the file before rejecting medical evidence adduced by the applicant.
Unless the Board believed that the evidence was not credible, which was not the
case here, it could not reject Dr. Sestier’s opinion without having
contradictory evidence before it.
[57]
In this
case, the Board did not receive additional medical evidence: rather, it appears
instead to have conducted a cursory research into Mr. Thériault’s
ailment by referring to a medical dictionary (the Merck Manual) found on the
Internet. Without having obtained medical opinions to the contrary, the Board
could not substitute its opinion for that of Dr. Nagpal or question his
opinion. Thus, the Board did not comply with sections 3 and 39 of the VRABA.
[58]
In MacDonald
v. Canada (Attorney General), 2003 FC 1263, [2003] F.C.J. No. 1645 (QL), a
similar case in which this Court allowed an application for judicial review
because it found that the Board had ignored the medical evidence and
substituted its own opinion, Mr. Justice François Lemieux stated at paragraphs
18-19 and 24:
My review of the tribunal’s decision leads me to conclude it did not
find the evidence provided by either Dr. Wiltshire or Dr. St. Arnaud to be not
credible. Rather, it considered that evidence to be credible so far as it went.
As I noted before, the tribunal’s decision rests on causation and,
in order to conclude insufficiency of evidence to establish causation, the
tribunal discounted the only medical evidence on the record by drawing
inferences on medical matters when it did not have on the record other medical
evidence on the point which it could properly have weighed but rather relied,
in order to fill the gap, on its own knowledge and the research it conducted.
. . . . .
In short, the tribunal embarked upon forbidden territory making
medical findings to discount uncontradicted credible evidence when it had no
inherent medical expertise and had the ability to obtain and share independent
medical evidence on points which troubled it.
[59]
Similarly,
in Rivard, supra, at paragraphs 22-25, Mr. Justice Nadon
discussed the duties imposed on the Board by section 39 of the Veterans
Review and Appeal Board Act:
In accordance with section 39 of the VRAA, the Board must accept any
uncontradicted evidence presented by the applicant that it considers to be
credible in the circumstances. It must also draw conclusions that are the most
favourable to the applicant. In MacDonald, supra, Cullen J.
stated the following on the issue at paragraph 29:
The jurisprudence indicates that the Board must accept
uncontradicted medical evidence that it considers credible in the
circumstances; however, it may reject such evidence if it has before it
contradictory evidence, or if it states reasons, which would bear on
credibility and reasonableness: Re Hornby (1993), 63 F.T.R. 188 (T.D.); King
v. Canada (Veterans Review and Appeal Board) (1997), 138 F.T.R. 15 (T.D.);
and Moar, supra.
Therefore, if the evidence is uncontradicted and is considered
credible, the Board must accept it, as stipulated by section 39. In Wood
v. Canada
(Attorney General), [2001] F.C.J. No. 52 (T.D.),
MacKay J. stated the following at paragraph 28:
The Board may reject the applicant’s
evidence when it has before it contradictory medical evidence. However,
while there may be an absence of evidence in the form of definitive medical
documentation about the injury claimed, where there is no contradictory
evidence and the Board does not accept the applicant’s evidence without
explanation of that, it commits an error that goes to jurisdiction . . . A
decision of the Board that errs in the exercise of its jurisdiction, is
unreasonable and warrants intervention by the Court. The standard of patent
unreasonableness, in my opinion, is not apt if the error concerns the exercise
of the Board’s jurisdiction . . .
Moreover, in Brychka v.
Canada (Attorney
General) (1998), 141 F.T.R. 258 (T.D.), MacKay J.
summarized the Board’s choices at paragraphs 20 and 25:
I agree with the respondent that the Board may reject medical
evidence when it has before it contradictory medical evidence . . .
As in Moar, the Board was obliged, in my view, to make an
explicit finding that this medical evidence in support of the applicant’s claim
was not credible, or to solicit its own medical evidence dealing with the issue
of a stress etiology, or to accept the uncontradicted evidence of the applicant
in rendering its decision bearing in mind ss. 3 and 39 of the VRABA . . .
There is no doubt that it is the Board’s duty to assess the evidence
before it and to give it the appropriate weight. However, the evidence must
always be assessed in accordance with sections 3 and 39 of the VRAA, which
means that the Board must accept any uncontradicted evidence adduced that it
considers credible. According to case law, in particular to Wood, supra,
and Brychka, supra, cited above, the contradictory medical
evidence must have been adduced in the file.
[60]
The Board
acted in violation of the provisions of sections 3 and 39 of the VRABA. It
selectively approved the conclusions least favourable to Mr. Thériault, it questioned uncontradicted evidence and
refused to recognize the medical opinions establishing that it was likely
Mr. Thériault’s ailment arose during his military service. Further, the
Board did not obtain an independent medical opinion and relied on its
self-proclaimed medical expertise.
CONCLUSION
[61]
According
to MacDonald, supra, the Board has no medical expertise. In the
absence of any contradiction in the evidence, the Board was required to decide
the case in accordance with the rules of evidence provided for in section 39
and the rule of interpretation provided for in section 3 of the VRABA.
[62]
The Board
stated that it was aware of its duty under sections 3 and 39 of the VRABA;
however, it did not act in accordance with the requirements of its enabling
legislation and this constitutes a reviewable error.
[63]
This
application for judicial review is accordingly allowed. The decision in this
case, on these particular facts, is referred back to the Board for
redetermination by a differently constituted panel.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be allowed with costs and the decision referred back to the Board for
for redetermination by a differently constituted panel.
“Michel M.J. Shore”
Certified
true translation
François
Brunet, LL.B., B.C.L.