Dumas v. Canada (Attorney General), 2006 FC 1533

 

 

 

 

Date: 20061220

Docket: T-694-06

Citation: 2006 FC 1533

Ottawa, Ontario, December 20, 2006

PRESENT:     The Honourable Madam Justice Tremblay-Lamer

 

 

BETWEEN:

PAUL JOSEPH DUMAS

Applicant

and

 

THE ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

[1]               This is an application for judicial review pursuant to subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 of a decision made by an appeal panel of the Veterans Review and Appeal Board (VRAB). The decision, conveyed to Mr. Paul Dumas (the applicant) in a letter dated March 15, 2006 and subsequent to a hearing held on February 21, 2006, dismissed the applicant’s entitlement appeal relating to an earlier entitlement review decision dated October 6, 2004, and to the applicant’s initial pension claim of February 1999.

 

THE FACTS

 

[2]               The applicant, Mr. Dumas, was born in 1940 and served in the Regular Force from October 1957 to November 1977. From 1959 to 1960, a period of roughly one year, he worked as a dental assistant while in service. The applicant then worked in a warehouse as a Dental Storeman until release from the Regular Forces in November 1977. He also served in the Reserve Force from December 1977 to June 1978.

 

[3]               In February 1999, the applicant initiated his claim for a disability pension entitlement under subsection 21(2) of the Pension Act, R.S.C. 1985, c. P-6, s.1, in which he linked his asthma to pneumonia he had suffered while in service. Specifically, he claimed that he contracted pneumonia as a result of not wearing a mask while working as a dental assistant in service in 1960, and that this led to his current lung condition. This claim was submitted to the Minister of Veterans Affairs (the Minister) for determination on May 25, 1999.

 

[4]               A first decision denying the applicant’s claim was made by the Minister on June 22, 1999. The adjudicator ruled that the applicant’s only documented medical complaint in service was one episode of pneumonia and bronchitis; there were no other complaints concerning his lungs. The applicant’s diagnosis of having mild chronic obstructive pulmonary disorder (COPD) was established in 1999, approximately 20 years after completing his service. The adjudicator found no evidence that factors relating to the applicant’s service had contributed to this condition, which was most commonly associated with cigarette smoking. Being dissatisfied with this decision, the applicant applied for an entitlement review, which was heard by the VRAB on October 6, 2004.

 

[5]               In this October 2004 review, VRAB noted that an X-ray report dated August 5, 1960 indicated pneumonia, though an August 30, 1960 X-ray indicated that the pneumonia had been resolved and the lungs appeared normal. A medical report from 1962 noted no abnormalities of the respiratory system. A physician’s statement from May 1999 diagnosed COPD and a “moderately severe hyper-responsive airways”. The applicant adduced new evidence in the form of a letter dated June 23, 2004 from Dr. William Yang, Executive Director of the Allergy and Asthma Research Centre in Ottawa, stating the latter’s medical opinion that the applicant’s lung condition “may very well have been caused by his unprotected exposure to airbourne [sic] irritants suffered during his tenure with the Canadian Armed Forces”.

 

[6]               In its October 2004 entitlement review decision, VRAB concluded that: the applicant had been a pack-a-day smoker for approximately 17 years and stopped in 1971; that the discharge medical examination in 1977 did not refer to any lung problems; that a 1999 diagnosis referred only to mild COPD, roughly 22 years post Regular Force service discharge; that the applicant was only employed as a dental assistant for one year from 1959 to 1960; and that the information provided by Dr. Yang was not persuasive as it was

… not a thoroughly researched medical opinion, not convincing nor detailed, nor does it take into consideration…the fact that the Applicant was a smoker.  In addition, it has not been supported by statistical data that an individual working as a dental assistant in the time frame described, being one year, would cause the condition …

 

[7]               The applicant challenged this decision by bringing an entitlement appeal before a VRAB appeal panel (the Panel), which was heard on February 21, 2006. He submitted that the research documentation he provided supporting links between dentistry work and occupational asthma, combined with Dr. Yang’s opinion, gave rise to a reasonable inference that at least a portion of his COPD is related to his work as a dental assistant in the service.

 

[8]               The applicant specifically attacked the entitlement review decision on the grounds that the VRAB erred by not relying on medical evidence to support their findings that the applicant’s lung condition is related to his smoking rather than to the exposure he experienced while in service. He maintained that while the department’s medical guidelines for respiratory diseases indicate that smoking is a cause of chronic bronchitis and pulmonary emphysema, it is not mentioned as a cause of asthma. Therefore, he argued, the only medically-based evidence before the Board indicated that his dental assistant work in service may reasonably be inferred to be the cause of his condition.

 

[9]               The applicant’s claim to a pension entitlement is grounded in subsection 21(2) of the Pension Act, which reads:

 

[10]           The Veteran’s Review and Appeal Board is an independent tribunal established under section 4 of the Veterans Review and Appeal Board Act, S.C., 1995, c. 18 (the Act). The VRAB functions as an appeal body for decisions rendered by the Minister in relation to pensions and benefits for veterans and others.  The Pension Act and the Act together constitute the principal legislation by which disability pensions, such as those claimed by the applicant, and related awards are granted.

 

[11]           The pension appeal scheme under the Act provides recourse to two levels of appeal: under section 18, persons dissatisfied with a decision of the Minister under the Pension Act may apply for a review of the decision before the VRAB; under section 25, persons who remain unsatisfied with the result of this first review have further recourse to an appeal panel of the VRAB (the Panel). Full hearings are provided at both the initial review and second appeal level, and all appellants are entitled to legal representation free of charge. Except for a narrow exception, there is no other right of appeal from decisions rendered by an appeal panel of the Board. However, there is a power of reconsideration whereby appeal panels may reopen decisions they have rendered under sections 23, 32 and 111 of the Act, where the grounds  provided for in those sections are met.

 

[12]           Sections 18, 31, and 38 of the Act read as follows:

 

[13]           Sections 3 and 39 of the Act provide the general rules of evidence and interpretation applicable to pension applications:

 

[14]           I note at the outset that the applicant's record contains evidence that was not before the Panel.

 

[15]           The jurisprudence has clearly established that “[…] the general rule [is] that judicial review of a decision must be based on the material that was before the decision maker. […]” Smith v. Canada, 2001 FCA 86, [2001] F.C.J. No. 450 (QL) at paragraph 7. In light of the above, the two affidavits, the nurse’s medical opinion and the medical reports not contained in the certified record, will not be considered by this Court.

 

 

 

 

STANDARD OF REVIEW

 

[16]           The central inquiry in a standard of review analysis is determining the degree to which Parliament intended the administrative decision under review to be subject to judicial scrutiny: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraph 26.

 

[17]           This analysis entails a consideration of four factors: (1) the existence of any privative clause or statutory right of appeal, (2) the expertise of the tribunal relative to that of the reviewing court in regards to the question at issue, (3) the overall purpose of the legislation and the particular provisions at issue, and (4) the nature of the question -- being law, fact or mixed fact and law: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226.

 

[18]           The privative clause in section 31, viewed in concert with the exclusive jurisdiction of the VRAB to hear all reviews and related matters under section 18, suggests that Parliament intended that great deference should be shown to the VRAB Panel's decisions.

 

[19]           With regard to the relative expertise of the VRAB, I adopt the conclusions of my colleague, Justice Richard Mosley in Powell v. Canada (Attorney General), 2005 FC 433, [2005] F.C.J. No. 537 (QL) at paragraphs 14 and 15, that members of the VRAB

14  … receive training relating to medical issues, the legislation they apply and the administrative decision-making process following appointment. VRAB determines approximately 10,000 claims per year.

 

15  The members of the Board would thus acquire far greater familiarity than the Court with respect to the factual determinations that are at the heart of its specialized jurisdiction: the weighing of often conflicting or inconclusive medical information and determining from it whether the applicant's injury was caused or aggravated by military service. That degree of familiarity would indicate that the most deferential standard of review should be applied to such determinations.

 

[20]           Concerning legislative purpose, sections 3 and 39 provide the VRAB with clear direction from Parliament to effectively give an applicant the “benefit of the doubt” with regard to weighing credible evidence, drawing inferences and resolving doubts. In my opinion, this suggests that the Panel’s decision should receive less deference from a reviewing court. In Powell, above, Justice Mosley came to a similar conclusion at paragraph 19:

Parliament, through these provisions, has given a clear direction to the Board to lean towards accepting the cases put forward by applicants and appellants where the Board can draw reasonable inferences from the evidence or resolve doubts in their favour. This suggests that less deference should be shown the Appeal Board's decisions by a reviewing court.

 

[21]           The final analytical factor to consider is the nature of the question to be determined. Factual findings will attract more deference than questions of mixed fact and law. In the present matter, the issues are whether the applicant’s lung condition was caused by his year working in the service as a dental assistant and the Board’s weighing of the evidence. These are fact-based determinations and therefore indicate that the highest level of deference is due.

 

[22]           In Cramb v. Canada (Attorney General), 2006 FC 638, [2006] F.C.J. No. 815 (QL), above, at paragraph 15, Justice Michael Kelen held that the issue of whether “a pension claimant's disability was caused by or arose from military service is reviewable on a standard of patent unreasonableness”, drawing support from a similar holding by Justice Judith Snider in Currie v. Canada (Attorney General) [2005] F.C.J. No. 1871 (F.C.) (QL) at paragraph 5.

 

[23]           Patent unreasonableness is the standard applicable to the Board's weighing of medical evidence to determine whether the disability in question was caused or aggravated by military service.

 

ANALYSIS

 

[24]           The Act is clear in paragraph 39(b) that the VRAB must make determinations of whether or not evidence is credible. In making such credibility determinations, the VRAB’s decision must provide sufficient reasons for not accepting medical evidence as credible. On this point, Justice Snider concluded at paragraph 23 of Moar v. Canada (Attorney General), 2006 FC 610, [2006] F.C.J. No. 766 (QL):

The Appeal Board is under an obligation to provide cogent reasons for rejecting a medical opinion (Jones v. Canada (Attorney General), 2005 FC 620, [2005] F.C.J. No. 767 (QL) at para. 18)

 

[25]           In the present appeal decision, the Panel ruled that Dr. Yang’s medical opinion was inconclusive of the link between the applicant’s year of service as a dental assistant and his lung condition. Furthermore, the entitlement review decision, which was affirmed by the Panel, found that the medical opinion was not persuasive as it was insufficiently researched, lacked detail and neglected to consider the applicant’s smoking history. The Panel also found that the applicant’s lung condition was diagnosed over twenty years after his discharge from the service, that there were no indications of this condition at the time of discharge and implied that there were other potential causes (seventeen years of heavy smoking) that had not been addressed or acknowledged in the medical opinion adduced by the applicant. These reasons sufficiently support the Panel’s rejection of the medical evidence adduced by the applicant.

 

[26]           The onus was on the applicant to prove that his service as a dental assistant had caused, or aggravated, his lung condition. There was no onus on the Panel to establish an alternative cause for the current condition, such as smoking, in order to reject the applicant’s appeal. In Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133, [2001] F.C.J. No. 52 (QL), above, Justice Andrew MacKay, at paragraph 24, commented on the necessity of a claimant to establish a causal link between the disability and military service:

Sections 3 and 39 of the Act do not, however, relieve the applicant of the burden of proving that his low back pain arose out of or in connection with military service. The applicant must still establish on a balance of probabilities, with the evidence considered in the best light possible, that his disability is service-related. [citations omitted]

 

[27]           I recognize that the standard of proof in establishing the entitlement to a pension in the statutory regime at issue is lower than the balance of probabilities.  In John Doe v. Canada (Attorney General) 2004 FC 451, [2004] F.C.J. No. 555 (QL) at paragraph 36, Justice Pierre Blais noted that:

The standard of proof in establishing the entitlement to a pension is much lower than the balance of probabilities, from the wording of the Act itself.

 

[28]           Irrespective of this lower standard, the applicant nevertheless bears the ultimate burden of proof. A failure to discharge that burden means the claim will fail. In the circumstances of the present matter, the Panel found no credible evidence establishing the causal connection between the injury and the performance of military service, as required by subsection 21(2) of the Pension Act (McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (T.D.); Elliot v. Canada (Attorney General), 2002 FCT 972, [2002] F.C.J. No. 1264) (QL). Consequently, and in line with its obligations under the Pension Act, it rejected the claim appeal.

 

[29]           The applicant submits that the Panel erred in law in its treatment of the evidence as it contravened its special obligation to give the applicant “the benefit of the doubt”, pursuant to sections 3 and 39 of the Act.

 

[30]           In Martel v. Canada (Attorney General) 2004 FC 1287, [2004] F.C.J. No. 1559 (QL), Justice James Russell adopts the reasoning of Justice John Evans in Metcalfe v. Canada (Attorney General) [1999] F.C.J. No. 22 (QL), in concluding that the effect of section 39 is to give claimants the benefit of any reasonable doubt:

While paragraphs (a), (b) and (c) of this section [39] may not create a reverse onus by requiring the respondent to establish that a veteran's injury or medical condition was not attributable to military service, they go a considerable way in this direction by requiring, in effect, that claimants be given the benefit of any reasonable doubt. [emphasis added]

 

[31]           Crucially, in the present matter the Panel had no doubt with regard to the evidence provided by Dr. Yang and contained in the documentary evidence furnished by the applicant. It clearly and unequivocally found this evidence not to be credible. Evidently, in the absence of doubt, there was no obligation on the Panel pursuant to sections 3 and 39 of the Act to make any such determinations in favour of the applicant (Cramb, above, at para. 29).

 

[32]           The applicant finally submits that the Panel erred by not submitting a medical report contradicting the report by Dr. Yang, implying that the Panel should have sought another medical opinion under subsection 38(1) of the Act.

 

[33]           This subsection stipulates that the Panel may obtain independent medical advice and may require the applicant to undergo any medical examination that it deems necessary in the circumstances. I agree with Justice Kelen in Cramb, above, at paragraph 31 that “[t]his statutory language is permissive, not mandatory.” The Panel is under no obligation to seek independent medical advice.

 

[34]           The Panel was satisfied that the applicant had not established the necessary causal link between his one year of service as a dental assistant and the lung condition which was diagnosed almost forty years from that time. In the circumstances, and in light of the permissive nature of subsection 38(1), I do not find that the Panel had any obligation to seek an independent medical opinion.

 

[35]           Having reviewed the decision of the Panel and the evidence before it, I am satisfied that it did not err in affirming the rejection of the applicant’s claim. The findings of fact made by the Panel were properly made based on the evidence before it. The inconclusive medical opinion provided by Dr. Yang did not establish the required causal connection between the applicant’s disability and his military service. The Board’s decision cannot be said to be patently unreasonable. The application for judicial review is dismissed.

 

JUDGMENT

 

The application for judicial review of the decision of the Board dated February 21, 2006 is dismissed with no order as to costs.

 

 

 

“Danièle Tremblay-Lamer”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-694-06

 

STYLE OF CAUSE:                          Paul Joseph Dumas

 

                                                            and

 

                                                            Attorney General

 

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      December 11, 2006

 

REASONS FOR JUDGMENT:       TREMBLAY-LAMER J.

 

DATED:                                             December 20, 2006

 

 

APPEARANCES:

 

Mr. Paul Joseph Dumas	FOR THE APPLICANT
Ms. Elizabeth Kikuchi	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Mr. Paul Joseph Dumas 372 Munro Street Pembroke, Ontario K8A 4T3	FOR THE APPLICANT
Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Ottawa, Ontario K1A 0H8	FOR THE RESPONDENT