Hitchcock v. Canada (Attorney General), 2006 FC 1348

 

 

 

 

Date: 20061109

Docket: T-2198-05

Citation: 2006 FC 1348

Ottawa, Ontario, November 9, 2006

PRESENT:     The Honourable Mr. Justice Beaudry

 

 

BETWEEN:

STEPHEN G. HITCHCOCK

Applicant

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision by the Service Pension Board (the SPB) dated October 6, 2005, which denies the Applicant’s request for a reconsideration of the reason for his retirement.  The Applicant is self represented.

 

ISSUES

[2]               The issues in this application are as follows:

i)        Did the SPB breach the principles of procedural fairness?

ii)       Did the SPB err in its decision to confirm the Applicant’s reason for retirement?

 

[3]               For the following reasons, the present application shall be dismissed.

 

BACKGROUND

[4]               The Applicant was born in 1954. After working as a labourer, he joined the Canadian forces in December 1973 and excelled in all his assignments in the military, both at home and overseas.  He was a member of the Regular Force for over 20 years. 

 

[5]               On May 17, 1994, the Applicant left on a voluntary release for retirement in order to take up a civilian position as an Administrative Officer with the government of British Columbia. The Applicant was released under Item 4(a) of the Queens Regulations and Orders (QR&O), Article 15.1 (Applicant’s Affidavit, Exhibit “Y”).  His release for retirement was as set out in subsection 19(1) of the Canadian Forces Superannuation Act, R.B.S. 1985 c. C-17 (CFSA). At the time of his release, the Applicant had no Medical Employment Limitations (MEL) and his medical category was 112225 (1 visual activity; 1 colour vision; 2 hearing; 2 geographical limitations; 2 occupational limitations; 5 air factor; see Applicant’s Affidavit, Exhibit “W”, pages 11 and 18).

 

[6]               Immediately upon release from the Regular Forces in May 1994, the Applicant joined the Supplementary Holding Reserve, before transferring to the Primary Reserve in March 2000, where he continues to serve in a limited capacity as a Reservist. 

 

[7]               The Applicant suffers from anxiety, neck strain and migraine headaches and has sought medical treatment since the onset of these problems as early as 1986. The Applicant continued to seek medical treatment from his civilian physicians after release from the Regular Forces. 

 

[8]               On November 19, 2002, the Applicant’s medical category as a Reservist changed to G304, which meant that the Applicant had a recognized MEL as a result of his chronic medical condition.  The Applicant was assigned the following employment limitations, as set out in the Administrative Review Medical Employment Limitations (AR/MEL):

Limitations are:

            requires periodic medical follow-up

           

            member is at risk of experiencing a crisis for which physician      services might be required.  During a crisis the member will           be unable to perform full duties

 

            unfit work in a military operational environment

 

            to wear prescription lenses as directed

 

            maximum hearing protection required.

 

(Applicant’s Affidavit, Exhibit “W”, pages 35-36).

 

 

[9]               In August 2003, the Applicant was diagnosed by the Medical Health Service Department at Formation Health Services Pacific, Canadian Forces Base Esquimalt, Victoria, B.C. as having an anxiety disorder disability directly attributable to the Applicant’s Regular Force military service.

 

[10]           In August 2004, the Applicant received notification from Veterans Affairs that he was entitled to a disability pension assessed at 20% attributable to his service in the Canadian Forces and this disability pension was increased to 35% (Applicant’s Affidavit, Exhibit “W”, pages 16-17).  At the hearing, he informed the Court that it had been increased recently to 40%.

 

[11]           On December 5, 2004 and January 12, 2005, the Applicant asked the SPB to review the reason for the Applicant’s retirement in 1994, pursuant to section 49 of the CFSA. The Applicant asked the SPB to retroactively change his reason for retirement from subsection 19(1) of the CFSA to subsection 18(1) of the CFSA for a disability on release due to an anxiety disorder attributed to military service from which he suffered. In essence, the Applicant seeked to have his reason for retirement, which as an able-bodied voluntary release was classified as “other reasons,” changed to that of “medical” release.

 

[12]           The SPB considered the Applicant’s request, gave him an opportunity to submit new evidence to support his request. Following a review of the matter, the SPB rejected the Applicant’s request on October 6, 2005, as a result of which the Applicant brings the present application for judicial review.

 

DECISION UNDER REVIEW

[13]           The pertinent portions of the decision read as follows:

In support of your request you submitted new evidence, consisting of medical reports and confirmation that you are now in receipt of a Veterans Affairs Canada, disability pension for a Panic Disorder.  This information did not exist and was not available at the time of your release.  A Career Summary was prepared and forwarded to you for your comments.

 

The SPB considered your case at their meeting of 06 October 2005 by reviewing the Career summary and the information provided by you.  The Board then had to determine whether you would have been compulsorily retired in 1994 due to having become disabled.  The Board considered your representation that you were suffering from and being treated for migraine headaches and panic attacks prior to your release.  You continued to have these problems subsequent to your release and eventually diagnosed with an anxiety (panic) disorder.  However, the Board noted that your medical category at the time of your release was G202 and an Administrative Review of Mar 2004 found that the Medical Employment Limitations that would have been applicable in 1994 were appropriate for the standards applied at that time.  You would not have been released on medical grounds.  Accordingly, the Board determined that as you were not suffering from any permanent medical condition in 1994 rendering you mentally or physically unfit to perform your duties as a member of the Canadian Forces, you had not been compulsorily retired due to having become disabled.  Your reason for retirement remains ss19(1), other reasons.

 

RELEVANT LEGISLATION

 

[14]           The duties of the SPB are set out in section 49 of the CFSA as follows:

 

ANALYSIS

Preliminary Issue:  Relevant record before a reviewing Court

[15]           The Respondent objects to the admissibility of several Exhibits to the Affidavit of the Applicant and submits that with the exception of Exhibits “A”, "E", “V”, “W”, “X” and “Y” of the Applicant’s Exhibits, the balance of the exhibits are:

i)        duplicates:  Exhibits “D”, “F”, “G”, “I”, “K”, “P”;

ii)       irrelevant:  Exhibits “B”. “C” (Summary before SPB) “H”, “J”, “M”, “N”, “O”, “Q”, “R”, “S”, “T”, “U”;

iii)     potentially relevant to procedural fairness:  cover letters in Exhibits “C” (supporting documents for summary) and “L”; (see Summary of Respondent’s submission on documents filed by the applicant, filed at hearing).

 

[16]           The Respondent asks that all the other Exhibits from “B” to “U” inclusive, except Exhibits “C” (supporting documents for summary), “E” and “L” (letter from the Secretary to the Applicant) be struck.

 

[17]           The applicant filed his comments on this at the hearing. Paragraph 2 says:

The applicant will stipulate to the Respondent's request that the items listed at page 33, paragraphs 19 (Exhibit J), 20 (Exhibit N), 21 (Exhibit M) and page 34, paragraphs 25 (Exhibit S) and 27 (Exhibit U) of the Respondent's Record are irrelevant documents that are contained in the certified record, Exhibit "W" of the Applicant’s Affidavit and those listed may be struck from the record. 

 

[18]           The Respondent draws the Court’s attention to paragraph 4 of the decision of my colleague Mr. Justice Gibson who in Lemiecha (Litigation guardian of) v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 95, [1993] F.C.J. No. 1333 (F.C.T.D.) (QL):

It is trite law that judicial review of a decision of a federal board, commission or other tribunal should proceed on the basis of the evidence that was before the decision-maker.  It is obvious that Dr. Newhouse’s report post-dated the decision in question and thus constituted evidence not before the decision-maker.  I sustained the objection.  The judicial review thus proceeded on the basis only of evidence that was before the decision-maker.

 

 

[19]           I have carefully reviewed the Applicant’s affidavit and all its Exhibits from A to Y.  I find that the vast majority of these documents are duplicates appearing in several Exhibits and even many times over within the same exhibit. For instance, in Exhibit “B” the Applicant provides his entire military medical record, which spans the period of his tenure of service in the General Forces, a period of more than twenty years. In these documents, the Applicant provides copies of numerous medical visits that have absolutely nothing to do with his migraine headaches, anxiety or neck strain, the ailments which underpin his application.

 

[20]           Given that the Applicant provided a summary of the 33 relevant medical items to the SPB, I conclude that the other 189 items contained in Exhibit “B” as a whole (such as influenza, wart above knuckle of (R) pinky-finger, injury to a foot, etc.) are irrelevant to the purposes of the present judicial review and are struck from the record before the Court.

 

[21]           While I am sensitive to the fact that the Applicant is self-represented, I must sustain the objections raised by the Respondent.

 

Did the SPB breach the principles of procedural fairness?

Standard of Review

[22]           The Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 (F.C.A.) (QL), has established that there is a distinction between procedural fairness matters and the standard of review in other applications of substantive judicial review. The pragmatic and functional analysis as prescribed by the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 does not apply to procedural matters, which are reviewed as a question of law (Sketchley, at paragraphs 40-85).

 

[23]           Procedural fairness is not absolute. As Madam Justice L’Heureux-Dubé stated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the obligations imposed by the duty of procedural fairness depend on the circumstances in each case. The reviewing Court must consider a non-exhaustive list of factors to determine the applicable degree of procedural fairness.  These factors are summarized by the Respondent as follows:

i)        the nature of the decision being made and the process followed in making it; that is, “the closeness of the administrative process to the judicial process”;

ii)       the nature of the statutory scheme;

iii)     the importance of the decision to the individual affected;

iv)     the legitimate expectations of the person challenging the decision; and

v)      the choice of procedure made by the agency itself.

 

 

i)          Nature of the decision

[24]           The nature of the SPB’s decision making process is set out in section 49 of the CFSA. The SPB consists of three members whose role is to receive the evidence of applicants who seek a reconsideration of their reason for retirement. The panel reviews the evidence and determines whether such evidence constitutes “evidence to the contrary” as stipulated in subsection 49(3) of the CFSA, with respect to the existing reason for the member’s retirement.

 

[25]           The SPB process is far removed from the adversarial trial model. There are no witnesses, no oral arguments and no hearing.  Each member of the panel considers separately the evidence submitted and arrives at his or her own decision.  It is only then that the decisions are shared; where there is conflict, the decisions are discussed in order to arrive at a common finding.  

 

[26]           Applying this first factor to the facts of the present case, I find that the SPB respected the discretionary nature of its procedures. As the cover letters in Exhibits “E” and “L” would attest, the SPB gave the Applicant every opportunity to submit evidence (cover letter of Exhibit “E”) and further to comment on a copy of the Career Summary, prepared by the Director Military Careers Administration Resource Management (DMCARM). This procedure was adopted in January 2003 to provide greater procedural fairness to individuals making reconsideration applications to the SPB (cover letter Exhibit “L”).

 

ii)         Nature of the statutory scheme

[27]           The CFSA has no privative clause. The statute also does not provide an appeal mechanism with respect to a review of a decision by the SPB. Nonetheless, there is no limit to the number of times evidence can be submitted for the SPB’s consideration. Indeed, the Applicant made two submissions: the first on December 5, 2004, and the second on January 12, 2005, after an invitation from the SPB to make further submissions. Moreover, the decision of the SPB is subject to judicial review by this Court. I agree with the Respondent that all these protections point to the direction of weaker procedural safeguards.

 

iii)        the importance of the decision to the individual affected

[28]           There is no doubt that the decision would bring significant financial benefit to the Applicant particularly if, as is implied, the decision to change the reason for his retirement from other reasons to a disability on release, is made retroactive to 1994. In addition to an initial windfall, the Applicant’s annuity payments would likely increase. However, it is important to note that the Applicant’s annuity payments will continue even if the reason for his retirement is not changed.  Moreover, the Applicant is gainfully employed and also receives a disability pension from Veterans Affairs. I agree with the Respondent that this third factor, leads to increased procedural protection but stops short of reaching the highest level as would be the case where the life or livelihood of the individual affected would hang in the balance as a result of the decision (Canada (Attorney General) v. Fetherston, 2005 FCA 111, [2005] F.C.J. No. 544 (F.C.A.) (QL); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; and McTague v. Canada (Attorney General), [1999] F.C.J. No. 1559 (F.C.T.D.) (QL)).

 

iv)        the legitimate expectations of the person challenging the decision

[29]             The Applicant made his request for reconsideration by the SPB over a decade after his retirement. He was given a copy of the Career Summary and invited to make further submissions for the SPB’s consideration and did so. The Secretary to the SPB reviewed these submissions and presented the relevant documents for the SPB’s consideration.   

 

[30]           I believe that by reviewing the Applicant’s submissions and removing where necessary all irrelevant documents, the Secretary dashed the Applicant’s legitimate expectations that his submissions would be considered by the Board in its entirety. In instances where there is a gate-keeper function, it would not be illegitimate to expect a higher level of procedural fairness safeguards. 

 

[31]           I find however that given the particular circumstances in this case, except for the omission of the Applicant’s Summary of his civilian medical record contained in Exhibit “C” to the Applicant’s Affidavit, the evidence submitted by the Secretary to the SPB contained all relevant documents as set out in the certified copy attached as Exhibit “W” to the Applicant’s Affidavit (paragraph 18, Affidavit of Gordon Duncan, Major in the Canadian Armed Forces, employed in the Legal Advisory Services section of the Department of National Defence and appointed as Secretary to the Service Pension Board. This Affidavit was sworn on March 31, 2006).

 

 

 

v)                  the choice of procedure made by the agency itself

[32]           A careful reading of the statute and in particular of section 49 of the CFSA reveals that Parliament provided no guidelines for the procedures the SPB should follow in carrying out its duties. The statute’s silence on this matter is golden. The SPB remains master of its own procedure and is obligated only to review the evidence and consider whether this evidence warrants a change to the determination of the reason for retirement that has been made. I believe that the SPB did exactly that in this matter.

 

[33]           In light of these five factors when applied to the facts of the case, the Court finds that there is a lesser degree of procedural fairness and that degree was not suppressed by the SPB such that the Applicant was denied the fundamental right to procedural fairness.

 

Did the SPB err in its decision to confirm the Applicant’s reason for retirement?

Standard of Review

[34]           In determining the standard of review applicable to a substantive issue in an application for judicial review, the Supreme Court of Canada in Dr. Q, above, invites the reviewing Court to apply the pragmatic and functional analysis by weighing the following four factors:

 

i)          the presence or absence of a privative clause or statutory right of appeal

[35]           As discussed earlier in these reasons for judgment (at paragraph 27), the statute contains neither a privative clause nor a right of appeal of decisions by the SPB.  This factor is therefore neutral.

 

ii)                  the expertise of the tribunal

[36]           The CFSA gives to the SPB the power to review evidence from former members of the force who seek to change the reasons for their retirement. The members of the SPB are appointed by the Minister of National Defence (MND) and consist of a neutral chairman, a representative of the MND and a representative of the Canadian Forces (CF). The SPB meets approximately once every six to seven weeks. The members met seven times and decided 432 cases in the reporting year between April 2002 and March 2003 (Affidavit of the Applicant, Exhibit “V” pages 3-5).

 

[37]           I accept the view of the Respondent expressed at paragraph 105 (Memorandum of Fact and Law) that the expertise of the SPB is unique to the military. As such, this factor requires a high level of curial deference to the decisions of the SPB.

 

iii)                the purpose of the legislation and the particular provisions

[38]           The purpose of the CFSA is to provide for the superannuation of members of the Canadian Forces (preamble, CFSA). The reasons for retirement are fact specific and they determine the benefits payable to a retired member. This factor calls for less deference by the Court.

 

iv)                the nature of the question                  

[39]           The real question that the SPB had to determine is whether the Applicant should have been retired compulsorily by reason of disability in 1994. This is a purely factual question as a result of which this Court is required to apply the greatest deference with respect to the contested decision of the SPB. 

 

[40]           Following the pragmatic and functional analysis, the Court adopts the standard of review of patent unreasonableness.

 

Did the SPB err in its decision?

[41]           Based on the standard of review, this Court will intervene in this decision if the Applicant has shown that the SPB’s decision was patently unreasonable. The Applicant has not done so. 

 

[42]           It was reasonably open to the Board to find based on the evidence before it that the Applicant’s category at the time of his release was G202 and an Administrative Review of March 2004 found that the Medical Employment Limitations that would have been applicable in 1994 were appropriate for the standards applied at that time. It was not patently unreasonable for the SPB to find that the Applicant would not have been released on medical grounds in 1994 because the SPB determined that the Applicant was not suffering from any permanent medical condition in 1994 rendering him either mentally or physically unfit to perform his duties as a member of the Canadian Forces. The Applicant was not compulsorily retired due to having become disabled.  Rather, the Applicant retired for economic reasons to pursue a career with the government of British Columbia. It is not patently unreasonable under these circumstances for the SPB to determine that the Applicant’s reason for retirement remains subsection 19(1), “other reasons”.

 

                                                            JUDGMENT

 

            THE COURT ORDERS that the application for judicial review is dismissed.  The Respondent is not seeking costs.

 

“Michel Beaudry”

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-2198-05

 

STYLE OF CAUSE:                          STEPHEN G. HITCHCOCK

                                                            and ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                    Vancouver, British Columbia

 

DATE OF HEARING:                      October 19, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          Beaudry J.

 

DATED:                                             November 9, 2006

 

 

 

APPEARANCES:

 

Stephen G. Hitchcock                                                               FOR APPLICANT

(self-represented)                                                                    

 

Vladena Hola                                                                           FOR RESPONDENT

                                                                                               

SOLICITORS OF RECORD:

 

Stephen G. Hitchcock                                                               FOR APPLICANT

Duncan, British Columbia

 

John Sims, Q.C.                                                                       FOR RESPONDENT

Deputy Attorney General of Canada

Vancouver, British Columbia