Date: 20030627
Docket: T-1427-01
Citation: 2003 FCT 801
Ottawa, Ontario, June 27, 2003
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
LEONARD JOHN CUR
Applicant
and
MINISTER OF VETERANS AFFAIRS
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Veterans Review and Appeal Board (the "VRAB"), dated May 9, 2001, in which it informed the applicant that it had decided not to reconsider its decision of May 28, 1998, denying the applicant's request for pension benefits retroactive to the date of his application in May 1963.
[2] The applicant, Leonard John Cur, was a member of the Active Force from August 18, 1943 to January 9, 1946.
[3] On May 14, 1963, the applicant made an application for a pension, claiming injury to the spine which, according to the applicant, was the result of an accident that he suffered on board the HMCS Gatineau in October 1945.
[4] On June 10, 1963, following the applicant's inquiries about a pension, the Pension Advocate, H. Colbeck, wrote to the Chief Pension Advocate asking for a search of collective sick reports. Searches were conducted to locate Ship records for the HMCS Gatineau that would contain information pertaining to the applicant's back injury in October 1945. No such records were found.
[5] On August 19, 1963, Mr. Colbeck sent a letter to the applicant, indicating that a complete search of the ship records for the time the applicant served on the ship was conducted and reports of his injury were not available.
[6] On February 8, 1971, the applicant wrote a letter to the Department of Veterans Affairs (the "Department") requesting information pertaining to his back injury.
[7] On March 5, 1971, Lloyd Aiken, Area Pension Advocate, wrote to the applicant indicating that the ship records for the relevant time were not available. In the letter, Mr. Aiken suggested that the applicant contact the District pensions Advocate in Montreal to go over his case and to advise him whether any further efforts could be made to establish his injury. The applicant did not pursue his application.
[8] On June 10, 1996, the applicant completed a claim for disability pension for his hearing loss and his back condition.
[9] On December 19, 1996, after contacting the applicant's doctor, the Pensions Officer, Ghislaine Belanger, submitted on the applicant's behalf the First Application Summary for the conditions of "hearing loss" and "Degenerative Disc Disease Lumbar Spine (Operated)".
[10] On January 30, 1997, the Department sent to the applicant a Decision letter advising him that it had ruled favourably in respect of his hearing loss condition. However, in the absence of any record of back injuries or complaints during service or following service for 17 years, the Department concluded that his back problems were post-discharge in origin and could not rule favourably on the back problems portion of his Pension application.
[11] On February 12, 1997, the applicant's lawyer, Leo Di Battista, informed the Department of his client's intention to seek a review by the VRAB of the Department's decision, pursuant to section 84 of the Pension Act, R.S. 1985, c. P-6, (the "Pension Act").
[12] On December 10, 1997, after the review of the Department's decision, the VRAB ruled favourably on the applicant's 1996 Pension application for Degenerative Disc Disease Lumbar Spine, effective to the date of his application of June 10, 1996.
[13] The applicant claimed that he was entitled to retroactivity back to May 14, 1963. He submitted on May 11, 1998, written arguments for an appeal of the VRAB decision with regard to retroactivity of the pension, pursuant to section 25 of the Veterans Review and Appeal Board Act, S.C. 1995, c-18, (the "Act").
[14] On May 28, 1998, the VRAB awarded the applicant three years retroactivity from the date of the award, pursuant to section 39(1) of the Pension Act. The VRAB determined that there was no legal ground to fulfill the applicant's request of an award of retroactivity back to 1963. There were also no delays caused by the Department that would entitle the applicant to two additional years of retroactivity.
[15] The VRAB held that the absence of medical records of the applicant's injury did not preclude him from pursuing his claim. It noted that at the hearing, the applicant admitted that as a result of what he interpreted as negativity in the process, he lost confidence and didn't pursue his claim until he reapplied in 1996. The VRAB was of the opinion that it was the sole responsibility of the applicant not to pursue his claim.
[16] On September 28, 1999, the applicant requested the VRAB to reconsider its decision of May 28, 1998, pursuant to subsection 32(1) of the Act.
[17] On May 9, 2001, the VRAB rendered a decision regarding the applicant's request.
[18] The VRAB determined that nobody could be held responsible for a delay until an application had been submitted. In this case, an application was never submitted by the applicant until June 10, 1996. Maximum delay was given under Pension Act legislation in the decision of May 28, 1998. While unfortunate, the applicant was considered as being the person solely responsible for all the delay that occurred dealing with his claim for pension entitlement for degenerative disc disease lumbar spine. The Department did not cause any undue administrative delay to the applicant in dealing with his claim. For all these reasons, the VRAB determined that it would not reconsider the decision of May 28, 1998.
[19] On August 2, 2001, the applicant submitted an application for judicial review of this VRAB decision.
ANALYSIS
[20] In 1995, Parliament made changes to the structure of the appeal and review process for the pensions of war veterans. Under the Act, the Veterans Review and Appeal Board replaced the Veterans Appeal Board, the Pension Review Board, and the War Veterans Allowance Board. The VRAB now acts as the sole review and appeal authority for the pensions of war veterans.
[21] Section 31 of the Act provides that a decision made by an appeal panel under subsection 29(1) of the Act is final and binding:
| 31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.
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31. La décision de la majorité des membres du comité d'appel vaut décision du Tribunal; elle est définitive et exécutoire.
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[22] However, subsection 32(1) allows for the reconsideration of a decision made under subsection 29(1) of the Act:
| 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 31, 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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[23] Subsection 39(1) of the Pension Act provides that a pension shall be payable as of the latest of the two following dates: the date of the application and the date three years prior to the date on which the pension was awarded:
| 39. (1) A pension awarded for disability shall be made payable from the later of
(a) the day on which application therefor was first made, and
(b) a day three years prior to the day on which the pension was awarded to the pensioner.
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39. (1) Le paiement d'une pension accordée pour invalidité prend effet à partir de celle des dates suivantes qui est postérieure à l'autre :
a) la date à laquelle une demande à cette fin a été présentée en premier lieu;
b) une date précédant de trois ans la date à laquelle la pension a été accordée au pensionné.
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[24] Subsection 39(2) of the Pension Act provides that the VRAB may make an additional award in an amount not exceeding the cumulative annual value of two years pension where there are administrative delays or difficulties that are beyond the control of the pensioner:
| 39. (2) Notwithstanding subsection (1), where a pension is awarded for a disability and the Minister or, in the case of a review or an appeal under the Veterans Review and Appeal Board Act, the Veterans Review and Appeal Board is of the opinion that the pension should be awarded from a day earlier than the day prescribed by subsection (1) by reason of delays in securing service or other records or other administrative difficulties beyond the control of the applicant, the Minister or Veterans Review and Appeal Board may make an additional award to the pensioner in an amount not exceeding an amount equal to two years pension.
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39. (2) Malgré le paragraphe (1), lorsqu'il est d'avis que, en raison soit de retards dans l'obtention des dossiers militaires ou autres, soit d'autres difficultés administratives indépendantes de la volonté du demandeur, la pension devrait être accordée à partir d'une date antérieure, le ministre ou le Tribunal, dans le cadre d'une demande de révision ou d'un appel prévus par la Loi sur le Tribunal des anciens combattants (révision et appel), peut accorder au pensionné une compensation supplémentaire dont le montant ne dépasse pas celui de deux années de pension.
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[25] The applicant argues that the VRAB based its decision on an erroneous finding of fact made in an inconsistent manner or without regard to the evidence before it, and that the VRAB violated section 39 of the Act.
[26] The applicant first submits that the VRAB refused to acknowledge the inquiries made by him in 1963 with regard to his pension application. He alleges that the Department caused administrative delay by not revealing all the information that was available to him. He also submits that the VRAB made a mistake when it considered him as being the person solely responsible for all the delay that occurred dealing with his claim.
[27] While I sympathize with the applicant, who feels that he was unable to pursue his claim because evidence of his injuries was not available to him, he still had the obligation to pursue his claim and the lack of medical evidence did not prevent him from doing so. In its decision of May 28, 1998, the VRAB noted that on March 5, 1971, the applicant was advised by Mr. Lloyd Aiken to contract the District pensions Advocate in Montreal to go over his case and to determine whether any further efforts could be made to establish his injury. The applicant did not pursue his application. As such, the Department attempted to accommodate the applicant and cannot be held responsible for any delay that resulted in the treatment of his claim.
[28] Thus, it was reasonable for the VRAB to award him three years of retroactive pension, but not an additional two years.
[29] The applicant further argues that the VRAB violated section 39 of the Act when it refused not to reconsider its previous decision.
[30] Pursuant to section 39 of the Act, the VRAB must draw from the evidence presented to it every reasonable inference in favour of the applicant and accept any uncontradicted evidence presented to it by the applicant that it considers to be credible in the circumstances.
[31] In the case at bar, the applicant did not submit any new medical evidence in his request for redetermination. Nevertheless, the VRAB did an additional evaluation and weighted the evidence before it and concluded that it would not reconsider its earlier decision. I am satisfied that in the circumstances, the VRAB gave full effect to the Act and did not err in law.
[32] For all these reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1427-01
STYLE OF CAUSE: LEONARD JOHN CUR
v.
MINISTER OF VETERANS AFFAIRS
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 25, 2003
REASONS FOR ORDER : Honourable Madam Justice Danièle Tremblay-Lamer
DATED: June 27, 2003
APPEARANCES:
Leonard John Cur FOR PLAINTIFF / APPLICANT
Mr. Bernard Letarte FOR DEFENDANT / RESPONDENT
SOLICITORS OF RECORD:
Mr. Leonard John Cur FOR PLAINTIFF / APPLICANT
La Macaza, Quebec
Morris Rosenberg FOR DEFENDANT / RESPONDENT
Deputy Attorney General of Canada
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