Bradley v. Canada (Attorney General), 2005 FC 1470

Date: 20051028

Docket: T-401-05

Citation: 2005 FC 1470

Toronto, Ontario, October 28, 2005

PRESENT:      THE HONOURABLE MR. JUSTICE O'KEEFE

BETWEEN:

BRIAN C. BRADLEY

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review of a determination by the Minister of Veteran Affairs (the "Minister"), expressed in a letter dated February 3, 2005, that she has no jurisdiction to consider the applicant's pension application dated July 20, 2004 (the "present pension claim").

[2]                The applicant seeks:

1.         an order for a writ of mandamus compelling the Minister to decide on the present pension claim, and

      2.         costs of the application.

Background

[3]                The present pension claim relates to an accident that occurred on July 14, 1990, when the applicant fell while showering onboard the HMCS Qu'Appelle while it was tied up in Vancouver. At the time, the applicant was a member of the Regular Force and completing his officer training onboard the HMCS Qu'Appelle. On March 28, 1996, the applicant applied under the Pension Act, R.S.C 1985, c. P-6 (the "Pension Act") for a disability pension in connection with upper back and neck injuries that allegedly resulted from the shower accident (the "previous pension claim"). The previous pension claim was the subject of several decisions by the Entitlement Review Panel and the Veterans Review and Appeal Board (the "Board") as well as three judicial review decisions by the Federal Court: Bradley v. Canada (Attorney General) [1999] F.C.J. No. 144 (QL), 2001 FCT 793, and 2004 FC 996.

[4]                The history of the case involving the previous pension claim was described by Justice Rouleau in the third Federal Court decision, 2004 FC 996, at paragraphs 5 to 10:

5       On March 28, 1996, the applicant applied for a disability pension under the Pension Act, claiming that he suffers from cervical 5-6 radiculopathy because of the accident in the shower while aboard HMCS Qu'Appelle in Vancouver. On February 4, 1997, the Department of Veterans Affairs rejected the application.

6       An appeal to the Entitlement Review Panel was similarly rejected on May 8, 1997, as was an appeal to the VRAB on December 3, 1997. The applicant then applied to the Federal Court of Canada for judicial review of the VRAB's decision.

7       On January 27, 1999, Mr. Justice Blais set aside the VRAB's decision and referred the application back for rehearing and redetermination by a differently constituted panel.

8       A new panel of the VRAB reconsidered and rejected the applicant's claim by letter dated May 18, 1999. The applicant then submitted a further medical report, and a few decisions in other cases, with a request that the VRAB reconsider its decision. The VRAB, by letter dated November 25, 1999, refused to do so. The applicant then applied to the Federal Court of Canada for judicial review of the VRAB's decision.

9       On July 13, 2001, Mr. Justice MacKay set aside the VRAB's decision and referred the application back for rehearing and redetermination by a differently constituted panel.

10       The VRAB conducted a new hearing on August 12, 2002 and, in a decision dated December 16, 2002, denied the applicant's disability pension. That decision is the subject of this application for judicial review.

[5]                Justice Rouleau dismissed the application for judicial review. He concluded that the Board had not erred in finding that the applicant's accident did not arise out of, nor was directly connected with his service during peacetime. He also concluded that the Board had not erred in finding that the medical evidence did not establish that the accident caused the injuries for which the pension was sought.

[6]                The present pension claim related to mechanical low back pain allegedly caused by the same accident. The applicant asserted in the notice of motion that this is a new claim upon which he has the right to have adjudicated.

Reasons for the Minister's Decision

[7]                In response to the application for the present pension claim, the pension adjudication branch of the Department of Veteran Affairs (the "Department") wrote to the applicant in a letter dated February 3, 2005:

In the First Application Summary for the current application for Mechanical Low Back Pain, the basis of claim for this condition is an injury sustained when you fell in the shower while alongside away from homeport.

Upon review of your file, it has been noted that previous decisions made by the Department and VRAB have determined that the accident, that occurred when you fell in the shower while on board ship, was not directly related to, nor arose out of your military service.

As this condition is claimed to have resulted from the same accident which has been determined as 'not directly connected to service', the Department does not have jurisdiction to proceed with your present application.

Issues

[8]                The two issues in this application are:

1.         Does the Minister have jurisdiction to determine the present pension claim?

2.         If the Minister has jurisdiction to determine the present pension claim, should the Court exercise its discretion to order mandamus to immediately compel the Minister to determine the present pension claim?

Applicant's Submissions

[9]                The applicant made no submissions regarding whether the Minister has jurisdiction to decide the present pension claim.

[10]            The applicant submitted that the Department in its correspondence dated February 3, 2005, did not provide a decision with respect to the present pension claim. The applicant submitted that the Department erred by unreasonably delaying in the provision of a decision. The applicant submitted that after he filed the application for the present pension claim on July 20, 2004, no action appeared to be taken on the file for a period of four months.

[11]            The applicant submitted that the test for mandamus has been met because there has been a public legal duty to act, a duty owed to the applicant, and a clear right to performance of that duty. The applicant submitted that there has been unreasonable delay that justifies an order for mandamus (see Hanano v.Canada(Minister of Citizenship and Immigration), 2004 FC 998.

Respondent's Submissions

[12]            The respondent submitted that all pension claims arising from the Pension Act must be made to the Minister (Pension Act, subsection 81(1)). The Minister may not consider an application for an award that has already been the subject of a determination by the Board unless the applicant has obtained the permission of the Board or the Board has referred the application to the Minister for reconsideration (Pension Act, subsection 85(1)).

[13]            In the applicant's previous pension claim, the Board determined that the applicant's fall in the shower while onboard the HMCS Qu'Appelle was not sufficiently connected with military service to meet the test for pension entitlement under subsection 21(2) of the Pension Act. Justice Rouleau for the Federal Court upheld the Board's finding upon judicial review. Thus, the respondent submitted that any injuries suffered as a result of that accident would similarly not meet the test for pension entitlement.

[14]            Since the present pension claim is for mechanical low back pain arising out of the same accident, the respondent submitted that the Minister is prohibited by subsection 85(1) from considering the claim unless the applicant has obtained the consent of the Board or the Board has referred the application to the Minister for reconsideration. The respondent submitted that there is no evidence that the Board consented to or referred the claim to the Minister for reconsideration. Thus, the respondent submitted that the Minister was correct in concluding that she had no jurisdiction to consider the present pension claim.

[15]            The respondent submitted that if the Court determines that the Minister has jurisdiction, the present pension claim should be referred back to the Minister for redetermination.

[16]            The respondent made no submissions on the issue of whether the Court should exercise its discretion to order mandamus.

Relevant Statutory Provisions

[17]            The relevant provisions of the Pension Act are as follows:

Analysis and Decision

[18]            Standard of Review

            In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, the Supreme Court of Canada held at paragraph 28 that the pragmatic and functional approach should be used to determine a standard of review, even if the question to be reviewed is jurisdictional:

Although the language and approach of the "preliminary", "collateral" or "jurisdictional" question has been replaced by this pragmatic and functional approach, the focus of the inquiry is still on the particular, individual provision being invoked and interpreted by the tribunal. Some provisions within the same Act may require greater curial deference than others, depending on the factors which will be described in more detail below. To this extent, it is still appropriate and helpful to speak of "jurisdictional questions" which must be answered correctly by the tribunal in order to be acting intra vires. But it should be understood that a question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis. In other words, "jurisdictional error" is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown.

[19]            The issue here is whether the Minister had jurisdiction to determine the present pension claim. Subsection 85(1) of the Pension Act provides that the "Minister may not consider an application for an award that has already been the subject of a determination by the Veterans Review and Appeal Board or one of its predecessors".    Applying the pragmatic and functional approach, there are several factors that indicate a standard of correctness: (1) there is no privative clause protecting the Minister's decisions, (2) the Minister has not any more expertise than a court in determining whether an application for an award has already been the subject of a determination by the Board, and (3) this application concerns a question of law that goes to whether the Minister has authority under the Pension Act to consider a pension application.

[20]            Thus, on the question of whether the Minister had jurisdiction under subsection 85(1), the standard of review is correctness.

[21]            Issue 1

            Does the Minister have jurisdiction to determine the present pension claim?

            The applicant's present claim is for a pension for a low back pain which the applicant alleged arose out of an accident in July 1990 when he slipped while having a shower onboard his ship. In March 1996, the applicant applied for pension benefits relating to upper back and neck injuries. That claim was ultimately dismissed by the Board in December 2002 and the Board's decision was upheld by the Federal Court. The applicant's claim was rejected because the Board ruled that the accident that caused the applicant's injury was not directly related to, nor did it arise out of, his military service.

[22]            In the present pension claim, the Minister applied subsection 85(1) of the Pension Act and concluded she had no jurisdiction to consider the new claim as she believed that the application had been the subject of a determination by the Board and as such, she was barred from considering the application.

[23]            "Award" is defined to mean "a pension, compensation, an allowance or a bonus payable under this Act".

[24]            Section 85 of the Pension Act only precludes the Minister from considering an application for an award that has already been the subject of determination by the Board. In my view, the applicant's present pension claim has not been considered by the Board. This present pension claim is for low back pain while the previous pension claim which was rejected by the Board was for an award as a result of upper back and neck injuries.

[25]            The Board previously made a ruling that the shower accident that occurred while the applicant was onboard the ship was not related to, nor did it arise out of, the applicant's military service. Subsection 85(1) of the Pension Act does not state that the Minister may not consider an application for an award if the Board has previously ruled that the accident that occurred to an applicant was not directly related to nor arose out of the applicant's military service. It only precludes the Minister from considering an application for an award which has already been the subject of a determination by the Board. The applicant's claim for a pension for his lower back pain has never been considered by the Board.

[26]            The Minister, and probably eventually the Board, will have to, as part of the decision on the applicant's present pension claim, determine whether the accident (falling in the shower) was directly related to or arose out of the applicant's military service, but this determination does not relate to the Minister's jurisdiction to hear the application.     It is part of the merits of the case. The Minister, when she considers the applicant's present pension claim, may come to the same conclusion and reject the applicant's claim, or come to a different conclusion but that is a decision the Minister must make when faced with an application such as this.

[27]            It is noteworthy that two decisions of this Court have held that the Board's decision relating to the applicant's previous pension claim were unreasonable (see Bradley v.Canada (Attorney General), 2001 FCT 793 and Bradley v. Canada(Attorney General), [1999] F.C.J. No. 144 (QL). The decision of Justice Rouleau in Bradley v. Canada(Attorney General), 2004 FC 996, was to the contrary.

[28]            In the end, I am of the opinion that the Minister has jurisdiction to hear this application for a pension.

[29]            I am not prepared to grant an order in the nature of mandamus, as the Minister did not believe she had jurisdiction to hear the matter. I am prepared to issue an order referring the claim back to the Minister for a determination of the application for an award of a pension.

[30]            Issue 2

            If the Minister has jurisdiction to determine the present pension claim, should the Court exercise its discretion to order mandamus to immediately compel the Minister to determine the present pension claim?

            As noted earlier in paragraph 29, I am not prepared to issue an Order in the nature of mandamus.

ORDER

IT IS ORDERED that:

1.         The matter is referred back to the Minister for a determination of the application for an award of pension benefits.

2.          No order for mandamus shall issue.

            3.         The applicant shall have his costs of the application.

"John A. O'Keefe"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-401-05

STYLE OF CAUSE:                           BRIAN C. BRADLEY

Applicant

                                                            and

                                                            THE ATTORNEY GENERAL OF CANADA

Respondent

PLACE OF HEARING:                     CALGARY, ALBERTA

DATE OF HEARING:                       OCTOBER 20, 2005

REASONS FOR ORDER

AND ORDER:                                    O'KEEFE J.

DATED:                                              OCTOBER 28, 2005

APPEARANCES:

Brian C. Bradley                                    FOR APPLICANT, ON HIS OWN BEHALF

Stacey Dej                                            FOR RESPONDENT

SOLICITORS OF RECORD:

Brian C. Bradley

Calgary, Alberta                                    FOR APPLICANT, ON HIS OWN BEHALF

John H. Sims, Q.C.

Deputy Attorney General of Canada      FOR RESPONDENT