Whitehead v. Canada (Attorney General), 2003 FCT 75

Date: 20030124

Docket: T-2260-01

Neutral citation: 2003 FCT 75

BETWEEN:

                                                              JOAN T. WHITEHEAD

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons arise out of an application for judicial review of a decision rendered by the Veterans Review and Appeal Board (the "Board") wherein the Board determined that Joan T. Whitehead (the "Applicant") was not entitled to a pension benefit as the surviving spouse of the late veteran, Paul V. Whitehead. The decision under review is dated the 3^rd of December, 2001.

[2]                 The Applicant urged that the decision under review should be quashed and returned to the Board for rehearing by a differently constituted panel in accordance with the following directions:

            -           that the Applicant is not under any obligation to produce records of radiation exposure;

            -           in the absence of evidence to the contrary, the Board must accord the statutory presumption to the Applicant and conclude that the late veteran was exposed to excessive radiation during his Active Force service; and

            -           the Board must accord the statutory presumption to the Applicant and accept the medical evidence that the late veteran's exposure to radiation may have caused the cancer which led to his death.

More will be said about the proposed directions later in these reasons. The Applicant further requested that costs be awarded to her.

[3]                 The Respondent sought dismissal of the application with costs.

BACKGROUND

[4]                 The Applicant's late spouse, Paul V. Whitehead, served in the Royal Canadian Navy, Reserve, the Royal Canadian Air Force and the Canadian Armed Forces between October 1945 and July 1982, with one break in service between December, 1947 and November, 1950.

[5]                 From 1957 to 1958, Mr. Whitehead was assigned for training in Atomic, Biological and Chemical Warfare. His training consisted of classroom instruction at Camp Borden, Ontario as well as field exercises at Camp Borden, in the State of Nevada and at Maralinga, Australia. While in Nevada, Mr. Whitehead used radioactive sources and observed a 75KT nuclear detonation.

[6]                 From August to October of 1957, Mr. Whitehead was assigned by the Royal Canadian Air Force to take part in United Kingdom nuclear testing as an Airborne Radiological Observer with the Royal Air Force detachment at Maralinga, Australia. In this capacity, Mr. Whitehead monitored radiation readings in a Vickers Varsity aircraft as it flew patterns through the fall-out from nuclear explosions. In a written statement that was before the Board, Mr. Whitehead described his experience with particular reference to the third of such flights in which he participated, and the follow-up to that flight, in the following terms:

While flying at 50 ft altitude for periods ranging from 5 hours to 7 hours, my duty was to monitor the radiation readings, from an array of approximately 8 sequential decimal instruments in the aircraft. The radiation devices were mounted in the bomb bay of the Vickers Varsity Aircraft. On the third shot of the series we took off as directed and started to fly the cross-teardrop pattern of the fall-out. I was on the detection instruments as they climbed to the maximum. At that, usually the mid-point of the tear-drop I informed the navigator to "MARK" and then awaited the usually immediate decline as we started out to the other side of the teardrop, (where I usually give another "MARK" for zero). There was no decline in the fallout reading. This situation was reported to Base at Maralinga and we were ordered to return immediately and stop just off end of runway. There we were met by a full decontamination crew. We were then processed through the decontamination centre and removed our clothing and showered. Medical staff then assessed certain body counts via an electronic counter. We were then released after our clothes were thoroughly decontaminated.

Sometime in 1970s I telephoned an NDHQ medical Officer who checked further on my records. He also checked with the RAAF. Later I was informed verbally that the RAAF and the RAF had no medical records of this incident. In view of my good health and relative ignorance of the "incubation" period of nuclear radiation exposure I took no further action.^[1]

Similarly, the Canadian Armed Forces had no medical record of the incident.^[2]

[7]                 In May of 1991, Mr. Whitehead, was diagnosed with a squamous cell carcinoma on the right side of his neck. Mr. Whitehead underwent radiation therapy which eradicated the cancer for a period of time but which resulted in a significant deterioration in his quality of life.

[8]                 In the fall of 1999, Mr. Whitehead developed a second carcinoma on the left palatoglossal area of the oral cavity. Mr. Whitehead underwent drastic treatment at that time that involved the excision of the cancer through surgery on his jaw, the removal of part of his tongue, and insertion of a tracheotomy tube in his throat to assist in breathing, and the insertion of a stomach tube as Mr. Whitehead would no longer be able to nourish himself orally.

[9]                 In November of 1999, Mr. Whitehead applied for a disability pension under the Pension Act^[3].    His application was supported by a letter from his family doctor that reads in part as follows:

The etiology of this cancer is uncertain. It might very well be related to radiation exposure, which Mr. Whitehead suffered in Australia. He also smoked but stopped in 1963.^[4]

[10]            Mr. Whitehead died from the effects of his cancer on the 26^th of June, 2000 at the age of seventy-one (71). Cancer was not a factor in the deaths of his parents, grandparents, aunts or uncles, all of whom had lived beyond eighty (80) years of age.

[11]            On the 29^th of June, 2000, three (3) days after Mr. Whitehead's death, the Department of Veterans Affairs denied his application for a disability pension, this, despite the fact that the Department acknowledged the opinion of Mr. Whitehead's family doctor as to a possible causal relationship between his cancer and radiation exposure. The rejection letter reads in part as follows:

A review of the actual service documents ...does not reveal any record of radiation exposure throughout your military service.

As there is insufficient evidence to indicate that you were exposed to radiation or that the type of radiation that you claim you were exposed to would cause or contribute to the type of cancer that you currently present with, the Department must conclude that the Carcinoma Left Palatoglossal Area of the Oral Cavity did not arise out of, is not directly connected with, and was not aggravated by your Regular Force Service.^[5]                                                                      [emphasis added]

[12]            The Applicant, as she was entitled to do pursuant to subsection 48(2) of the Pension Act, appealed the decision of the Department to an Entitlement Review Panel. That Panel, while acknowledging that Mr. Whitehead had been exposed to radiation, upheld the Department's decision. In reaching its decision, the Panel wrote:

The Panel is of the opinion that, when the late Veteran tried in 1970 to obtain information, and because of the fact that he was not sick, it was not just for a pension factor, it was for his own information. The Panel is, however, sympathetic to the late Veteran's incident, but, in order to give a positive decision, it would be necessary to have a report from a doctor to say that it is possible to have a link, possibly from a specialist in the related medical field, who had medically followed the late Veteran before he died. The specialist could tell us if it is possible to have a link between that experience and his death.^[6]                                      [emphasis added]

[13]            Responding to the foregoing concern, the Applicant obtained a brief letter from a radiation oncologist who had treated Mr. Whitehead. That letter, which was before the Board the decision of which is here under review, reads in part as follows:

In your letter you inquire whether it is a possibility that there would be a relationship between an alleged radiation exposure that he [Mr. Whitehead] would have received while in the Armed Forces in Australia in 1997/1998 [should be 1957-1958] and the occurrence of this oral cancer.

Not withstanding [sic] the fact that Mr. Whitehead was a heavy smoker and this is a well known factor in the incidence of oral cancer it is a well recognized fact that heavy radiation exposure can increase the incidence of most types of cancers many years after the exposure.^[7]                                                                     [emphasis added]

THE DECISION UNDER REVIEW

[14]            While the decision under review runs to some five (5) pages, the element that constitutes the reasons and conclusion of the Board is relatively brief. It is quoted here in full:

The Board has thoroughly reviewed the late Veteran's file and all of the evidence and testimony before it and, in particular, the statement of Dr. Girard, Oncologist, dated 8 June 2001 [as quoted above]. Dr. Girard noted that smoking is a well known factor in the incidence of oral cancer and, as well, heavy radiation exposure can increase the incidence in most types of cancers, many years after exposure. The Board also notes there is no evidence or reports available to substantiate the radiation dosage levels the late Veteran many [sic] have been exposed to during his Active Force service. As a result of the lack of documentation to link the claimed condition to the Veteran's service, this Board affirms the Entitlement Review decision dated 14 December 2000.

In arriving at this decision, this Board has carefully reviewed all the evidence, medical records and the submissions presented by the Representative, and has complied fully with the statutory obligation to resolve any doubt in the weighing of evidence in favour of the Applicant or Appellant as contained in sections 3 and 39 of the Veterans Review and Appeal Board Act.^[8]

There follows in the decision under review a substantially longer description of relevant provisions of the Pension Act^[9] and the Veterans Review and Appeal Board Act^[10] but there is no analysis of the interrelationship of those provisions with the evidence that was before the Board.

THE LEGISLATIVE SCHEME

[15]            The Pension Act provides for pensions of the nature applied for by Mr. Whitehead and pursued by the Applicant following Mr. Whitehead's death. The most relevant provisions of that Act are set out in Schedule "A" to these reasons.

[16]            The Veterans Review and Appeal Board Act^[11] provides for the establishment of the Board, its mandate, powers and duties. The most relevant provisions of that Act are reproduced in full in Schedule "B" to these reasons.

[17]            Both the Pension Act and the Veterans Review and Appeal Board Act contain provisions directed to those responsible for the administration of the acts to interpret them in a liberal way in favour of veterans and their dependants to the end that "the recognized obligation of the people and Government of Canada... may be fulfilled". Section 2, subsection 5(3) and paragraph 21(3)(g) of the Pension Act, as reproduced in Schedule "A", and sections 3 and 39 of the Veterans Review and Appeal Board Act, as reproduced in Schedule "B", reflect and amplify this obligation.

THE ISSUES

[18]            Counsel for the Applicant identified a number on issues on this application for judicial review including standard of review. While counsel for the Respondent identified only one (1) issue, not including standard of review, both counsel made submissions on the issue of standard of review. In the result, I am satisfied that the issues raised before the Court can best be described in the following terms: first, standard of review; and second, whether the Board, in light of its statutory obligations, erred in determining that there was not sufficient evidence before it to establish that Mr. Whitehead's fatal illness was causally connected to radiation exposure during his military service. Implicit in the second issue is, I am satisfied, the subsidiary issue of whether the reasons provided by the Board were sufficient to support its decision as to the insufficiency of the evidence.

ANALYSIS

            a)         Standard of Review

[19]            In McTague v. Canada (Attorney General)^[12], Justice Evans, then of the Trial Division of this Court, had before him a decision of the Veterans Review and Appeal Board, as here, dismissing an appeal from the Board's review panel. He analysed the issue of standard of review in the light of submissions of counsel before him. He wrote at paragraphs [18] to [20]:

Counsel for the applicant appeared to argue that the Court's jurisdiction to set aside a decision of a federal administrative tribunal for error of law mandates the Court to review any question of law decided by the tribunal under review by asking whether it was correct. This, with respect, is not the law. Indeed, it is quite contrary to the elaboration by the Supreme Court of Canada since the mid-1980s of a pragmatic or functional analysis for determining the standard of review that legislatures should be regarded as implicitly prescribing when a specialist tribunal's interpretation or application of its constitutive statute is challenged in judicial review proceedings.

The search for legislative intent in this context is at bottom about determining a rational allocation of decision-making responsibility between specialist tribunal and reviewing court. An important element of this quest is an assessment of whether the tribunal or the reviewing court is better equipped to decide the issues in dispute: ...

Also important is a concern that the administration of the statutory scheme not be encumbered with costly and protracted litigation. In public administration, quality cannot be considered in the abstract without regard to its attendant costs and the implications for the system of limited resources. Accordingly, even if a reviewing court might conceivably make a "better" decision than the tribunal under review, Parliament may be regarded as nonetheless preferring the benefits of finality and a relatively inexpensive and expeditious administrative decision-making process.                                                                                                                      [citation omitted]

[20]            Justice Evans then turned to a consideration of the components of the pragmatic or functional approach relevant to the case before him in order to determine the applicable standard of review. The components which he examined are the following: first, the statutory language; second, the statutory decision-maker and its decisions; and third, the issues in dispute. Based upon his analysis of the foregoing components in the context of statutory language and a statutory decision-maker and its decisions essentially identical to those at issue here, and issues in dispute quite similar to the issues here, Justice Evans concluded at paragraph [48] of his reasons:

The weight of the factors considered above in the pragmatic or functional analysis suggests that Parliament should be regarded as prescribing a deferential standard of review in this case. However, they do not indicate that the most deferential standard should be applied. "Patent unreasonableness" seems increasingly to be reserved as the standard of review applied to the decisions of administrative agencies that are protected by strong preclusive clauses and have a wider range of regulatory responsibilities than the merely adjudicative functions performed by the Board. It is also the appropriate standard, as I have indicated above, where the issue in dispute involves findings of primary fact, including the drawing of inferences from the evidence.

Against the foregoing, Justice Evans went on to examine whether the decision of the Board that was before him was "unreasonable".

[21]            I am satisfied that the same question is at issue here, that is to say, on the facts before it, was the decision of the Board unreasonable? I would go further than to examine the issue of whether or not the Board's decision might be unreasonable. I am further satisfied that, on the material before me, I should examine whether the Board's decision was rationally supported by its reasons such that the reasonableness of the decision, against the liberal interpretation principles enunciated by Parliament, could be determined on the face of the reasons.

            b)         The Board's determination that there was not sufficient evidence before it to establish that Mr. Whitehead's illness was causally connected to radiation exposure during his military service and the adequacy of the Board's reasons to support that determination

[22]            In Silver v. Canada (Attorney General)^[13], Justice Richard, as he then was, wrote at paragraph [19] of his reasons:

I note that it is incumbent on the Board to give clear reasons demonstrating a rational connection between the statutory provisions, the evidence presented and the conclusion reached. It is not sufficient merely to mention the evidence put forth by the appellant and to state that the Act requires that every reasonable inference in favour of the applicant be drawn from it. ... The Board must either draw those inferences or give clear reasons why it does not find them to be reasonable.                                                                                                                                  [citation omitted]

Justice Richard had before him a decision of the Veterans' Appeal Board, the predecessor to the Veterans Review and Appeal Board, made under the Veterans' Appeal Board Act^[14], the predecessor to the Veterans Review and Appeal Board Act. For the purposes of this matter, the role of the Veterans' Appeal Board was essentially similar to that of the Veterans Review and Appeal Board and the footnoted reference omitted from the foregoing quotation, being to subsection 10(5) of the Veterans' Appeal Board Act, was to a provision essentially identical to section 39 of the Veterans Review and Appeal Board Act.

[23]            Against the foregoing authority, I determine that, while the decision of the Board that is under review might reasonably have been open to it notwithstanding the inferences required by statute to be drawn in the Applicant's favour, its decision is simply not supportable on the basis of its reasons. Those impacted are, I am satisfied, entitled in view of the Board's mandate to a decision that clearly and fully enunciates the Board's reasoning in arriving at the conclusion reached, particularly where that conclusion is unfavourable to a veteran, his or her dependants, or his or her surviving dependants.

[24]            The Appeal Board, in a brief two (2) paragraphs quoted earlier in these reasons, dismissed the Applicant's appeal. It then went on in completely unrelated paragraphs of its reasons to recite the substance of what it considered to be the relevant legislative provisions. It made no link between its understanding of the evidence before it and those legislative provisions other than to proclaim that it had carefully reviewed "...all the evidence, medical records and the submissions presented" and to further proclaim that it had "...complied fully with the statutory obligation to resolve any doubt in the weighing of evidence in favour of the Applicant or Appellant...". Those proclamations are simply not good enough. They do not come close to fulfilling the Board's obligation "...to give clear reasons demonstrating a rational connection between the statutory provisions, the evidence presented and the conclusion reached." In essence, the Board did precisely what Justice Richard determined was not sufficient: it merely mentioned the evidence put forth by the Applicant and noted the statutory requirements for reasonable inferences to be drawn in favour of the Applicant from the evidence. If it had undertaken the analysis that Justice Richard identified as incumbent on the Board, the result might very well have been different.

CONCLUSION

[25]            Based upon the foregoing brief analysis, this application for judicial review will be allowed, the decision that is under review will be set aside and the Applicant's application for pension benefits as the survivor of her late husband will be referred back to the Board for reconsideration and redetermination by a differently constituted panel.

[26]            Early in these reasons, I noted that the Applicant requested that the Court provide certain directions to the Board for use on its reconsideration and redetermination of the Applicant's application for pension benefits. I decline to do so. I will direct no more than that the application be reconsidered and redetermined in accordance with law and in a manner not inconsistent with these reasons. I would regard further directions of the nature urged on behalf of the Applicant as being inconsistent with the role of this Court and an unwarranted intrusion on the statutory mandate and responsibility of the Board.

   

[27]            An Order for costs will go in favour of the Applicant, such costs to be taxed on the ordinary scale if not agreed upon between the Applicant and the Respondent.

       

______________________________

            Judge

Ottawa, Ontario

January 24, 2003

                                           SCHEDULE "A"

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.

...

5.(3) In making a decision under this Act, the Minister shall

(a) draw from all the circumstances of the case and all the evidence presented to the Minister every reasonable inference in favour of the applicant or pensioner;

(b) accept any uncontradicted evidence presented to the Minister by the applicant or pensioner that the Minister considers to be credible in the circumstances; and

(c) resolve in favour of the applicant or pensioner any doubt, in the weighing of evidence, as to whether the applicant or pensioner has established a case.

...

21.(2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,

...

(b) where a member of the forces dies as a result of an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;

...

(3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of

...

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.

...

5.(3) Lorsqu'il prend une décision, le ministre_:

a) tire des circonstances portées à sa connaissance et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible au demandeur ou au pensionné;

b) accepte tout élément de preuve non contredit que celui-ci lui présente et qui lui semble vraisemblable en l'occurrence;

c) tranche en sa faveur toute incertitude quant au bien-fondé de la demande.

...

21.(2) En ce qui concerne le service militaire accompli dans la milice active non permanente ou dans l'armée de réserve pendant la Seconde Guerre mondiale ou le service militaire en temps de paix_:

...

b) des pensions sont accordées à l'égard des membres des forces, conformément aux taux prévus à l'annexe II, en cas de décès causé par une blessure ou maladie - ou son aggravation - consécutive ou rattachée directement au service militaire;

...

(3) Pour l'application du paragraphe (2), une blessure ou maladie - ou son aggravation - est réputée, sauf preuve contraire, être consécutive ou rattachée directement au service militaire visé par ce paragraphe si elle est survenue au cours_:

...

(g) the performance by the member of any duties that exposed the member to an environmental hazard that might reasonably have caused the disease or injury or the aggravation thereof.

...

48.(2) Where an application for a pension or allowance, or for an increase thereof, that was made by a member of the forces is pending at the time of the member's death, the application shall, if the member is survived by a dependant, be proceeded with and determined in the same manner as if the member had not died.

g) de l'exercice, par le membre des forces, de fonctions qui ont exposé celui-ci à des risques découlant de l'environnement qui auraient raisonnablement pu causer la maladie ou la blessure ou son aggravation.

...

48.(2) La demande de pension ou d'allocation - ou d'augmentation de celles-ci - d'un membre des forces encore en suspens au moment de son décès est, si une personne à charge lui survit, étudiée et fait l'objet d'une décision sans qu'il soit tenu compte du décès.

                                           SCHEDULE "B"

  

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.

...

18. The Board has full and exclusive jurisdiction to hear, determine and deal with all applications for review that may be made to the Board under the Pension Act, and all matters related to those applications.

...

21. A review panel may

(a) affirm, vary or reverse the decision of the Minister being reviewed;

(b) refer any matter back to the Minister for reconsideration; or

(c) refer any matter not dealt with in the decision back to the Minister for a decision.

...

25. An applicant who is dissatisfied with a decision made under section 21 or 23 may appeal the decision to the Board.

26. The Board has full and exclusive jurisdiction to hear, determine and deal with all appeals that may be made to the Board under section 25 or under the War Veterans Allowance Act or any other Act of Parliament, and all matters related to those appeals.

...

  

3. Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal 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.

...

18. Le Tribunal a compétence exclusive pour réviser toute décision rendue en vertu de la Loi sur les pensions et statuer sur toute question liée à la demande de révision.

...

21. Le comité de révision peut soit confirmer, modifier ou infirmer la décision qu'on lui demande de réviser, soit la renvoyer pour réexamen au ministre, soit déférer à ce dernier toute question non examinée par lui.

...

25. Le demandeur qui n'est pas satisfait de la décision rendue en vertu des articles 21 ou 23 peut en appeler au Tribunal.

26. Le Tribunal a compétence exclusive pour statuer sur tout appel interjeté en vertu de l'article 25, ou sous le régime de la Loi sur les allocations aux anciens combattants ou de toute autre loi fédérale, ainsi que sur toute question connexe.

                                     

       

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.

39. Le Tribunal 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.

  

                          FEDERAL COURT OF CANADA

                   Names of Counsel and Solicitors of Record

  

COURT NO:                                           T-2260-01

STYLE OF CAUSE:                        JOAN T. WHITEHEAD

           Plaintiff                                                                                                                                                                                                                - and -

THE ATTORNEY GENERAL OF CANADA

Defendant                                                                                                                                                      

DATE OF HEARING:              January 7, 2003                         

  

PLACE OF HEARING:                         OTTAWA, ONTARIO

  

REASONS FOR ORDER BY:             GIBSON J.

  

DATED:                                                   January 24, 2003

  

APPEARANCES BY:                         

  

Stephen B. Acker.                                                         For the Plaintiff

  

Elizabeth Richards                                                     For the Defendant

SOLICITORS OF RECORD:     

Stephen B. Acker                              For the Plaintiff

Johnston & Buchan LLP

Barrister & Solicitors

275 Slater Street

Ottawa, Ontario, K1P 5H9

(613) 236-3882

Elizabeth Richards                                  For the Defendant

Department of Justice

Civil Litigation Section

2306 - 284 Wellington Street

Ottawa, Ontario, K1A )H8

(613)952-0279