Date: 20050331
Docket: T-1234-04
Citation: 2005 FC 433
Ottawa, Ontario, this 31st day of March, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
DAVID POWELL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Powell served in the Canadian Forces for over twenty years - in the infantry, as an airborne paratrooper and as a drill instructor. In the infantry he was required to march and, at times, to run for long distances and with full loads of gear. In the airborne regiment, he jumped out of airplanes many times and landed hard. Now he suffers pain in his knees that affects his ability to earn a living. The Veterans' Review and Appeal Board affirmed the denial of a disability pension for Mr. Powell. He seeks judicial review of that decision.
[2] After he left the Forces, Mr. Powell began working in a mine. That job required him to climb up and down ladders and to walk on loose rubble. Experiencing problems with his knees, he sought treatment and was diagnosed with grade III osteo-arthritis in the left knee and possibly the right. Mr. Powell attributed this condition to his military service and sought a disability pension from the Department of Veterans Affairs.
[3] In March 2003, the Department denied Mr. Powell a pension in relation to the knee injury. That decision was upheld on an entitlement review in September 2003 by a two member panel of the Veterans' Review and Appeal Board ("VRAB") and again on appeal to a three member panel ("the Appeal Board") on May 11, 2004.
[4] Under paragraph 21(2)(a) of the Pension Act, R.S.C. 1985 c. P-6, Mr. Powell was entitled to a pension for a disability resulting from an injury "that arose out of or was directly connected" with his military service.
[5] In affirming the entitlement review decision, the Appeal Board found that "...there is no documented medical or other evidence of significant service-related injuries which could be considered to have resulted in the current left knee disability." Mr. Powell challenges that finding and seeks to have the matter reconsidered by a different panel.
[6] The issues argued before me are as follows:
1. Did the Appeal Board deal properly with the evidence?
2. Did the Appeal Board apply the correct legal test?
3. Was there a reasonable apprehension of bias in the Appeal Board's consideration of the application?
ARGUMENT & ANALYSIS
Standard of Review
[7] Before turning to the listed issues, I must determine the appropriate standard of review to bring to this analysis. The applicant did not directly address this question in his written submissions. At the hearing, however, counsel for the applicant argued that the standard of review of the Board's decision should be one of correctness as the errors alleged to have been committed by the Board went directly to its jurisdiction: Moar v. Canada (Attorney General) (1995), 103 F.T.R. 314 (T.D.).
[8] The respondent argued that the standard of review should be one of patent unreasonableness, or, as described in the terms of section 18.1 of the Federal Courts Act, for the applicant to succeed he must establish that the Board's decision was based on an error of law, or on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it: Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (T.D.); Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (T.D.).
[9] As noted by Evans J., as he then was, in McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (T.D.) at paragraph 18, the Court's jurisdiction to set aside a decision of a federal administrative tribunal for error of law does not mandate the Court to review every question of law decided by the tribunal by asking whether it was correctly decided. This would be contrary to the pragmatic or functional analysis required by the Supreme Court of Canada when a specialist tribunal's interpretation or application of its statute is challenged in judicial review proceedings.
[10] 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.
[11] The analysis requires consideration of four factors for each question at issue in judicial review proceedings: (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 purpose(s) of the legislation as a whole and the provisions at issue in particular, 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.
[12] The Veterans Review and Appeal Board ("VRAB") is an independent tribunal established pursuant to section 4 of the Veterans Review and Appeal Board Act, S.C., 1995, c. 18 ("the VRAB Act"). It conducts a two-tiered scheme of reviews and appeals of decisions rendered by the Minister of Veterans Affairs in relation to pensions and benefits for veterans, members of the Canadian Forces, the Royal Canadian Mounted Police, and their dependants under the Pension Act.
[13] The Board is given full and exclusive jurisdiction to determine all appeals and all matters relating to those appeals pursuant to section 26 of the VRAB Act. With very limited exceptions, not relevant to these proceedings, Parliament has provided no right of appeal from decisions rendered by an appeal panel of the Board. There is a privative clause - a decision of a majority of the members of an appeal panel is final and binding under section 31 of the VRAB Act. This would suggest that Parliament intended that great deference should be shown to the Board's decisions.
[14] According to information filed with the certified tribunal record, the members of VRAB come from a variety of backgrounds, occupations and professions. They would, initially at least, have no particular expertise in the matters determined by the Board. However, they 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.
[16] Section 40 of the VRAB Act states that all proceedings before the Board shall be dealt with as expeditiously and informally as the circumstances and considerations of fairness permit. That would suggest that Parliament's intent in enacting the legislation was to create a mechanism to resolve issues arising from claims by individuals for benefits from the state in a fair, accessible and inexpensive manner.
[17] Section 3 of the VRAB Act provides that the Board, in carrying out its responsibilities, must construe and interpret the provisions of the statute to fulfill the obligations owed to such individuals for their service to the country. Section 2 of the Pension Act is similar.
[18] Further, in section 39 of the VRAB Act, Parliament has instructed:
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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.
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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.
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[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.
[20] The fourth and final factor to be considered in the pragmatic and functional analysis is the nature of the question to be determined. In my view, at the heart of this matter is simply the issue of causation - a factual question. There was no conflicting medical evidence before the Board that would require any particular expertise or specialized knowledge to assess. There was no dispute that Mr. Powell's knee was injured. His evidence and that of his wife was not contradicted. The sole question for the Board to determine was whether the applicant's injury resulted from his military service.
[21] Weighing all of these factors I conclude that the Board's decision in this case should be assessed on a standard of review less than the most deferential. I must determine whether the decision was reasonable, that is whether it can stand up to a somewhat probing examination, as described by Iacobucci J.in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at paragraph 56 and in Ryan supra . This does not mean that I am simply to decide whether the Board came to the right result. Rather I am to look to the reasons given by the tribunal and determine whether there is some line of analysis that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.
1. Misapprehension of the evidence
[22] Mr. Powell and his wife testified at the entitlement review hearing. No oral evidence was offered on appeal but the Board had before it, in addition to the record of the proceedings below, a letter from an orthopaedic specialist, Dr. J. Engel, dated April 18, 2000.
[23] Mr. Powell described the physical demands of being a drill instructor and paratrooper and testified that his knees gave him problems throughout his service, particularly after jumps. Mrs. Powell confirmed that Mr. Powell had these ailments and described her home treatment for these problems. She also testified that she frequently told him to go to the doctor.
[24] There was some slight evidence in Mr. Powell's service record of a complaint about problems with his knees and ankles but this was inconclusive and on the face of the record, not clearly related to the performance of his duties. Mr. Powell testified that he did not want to be seen as a complainer and thus did not report the problems with his knees when they occurred.
[25] He argues, however, that the Board should have accepted his evidence and that of his wife or given reasons for finding it not credible. He contends that the Board did not resolve any doubts in his favour as it was required to do under section 2 of the Pension Act, and sections 3 and 39 of the VRAB Act. This is a reviewable error: Moar v. Canada (Attorney General), supra;Brychka v. Canada (Attorney General) (1998), 141 F.T.R. 258 (T.D.); MacDonald v. Canada (Attorney General) (1999), 164 F.T.R. 42 (T.D.); Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133 (T.D.); King v. Canada (Veterans Review and Appeal Board) (2001), 205 F.T.R. 204 (T.D.); Bradley v. Canada (Attorney General) (2001), 208 F.T.R. 267 (T.D.); Bernier v. Canada (Attorney General) (2003), 230 F.T.R. 89 (T.D.).
[26] Further, Mr. Powell submits that the medical opinion of Dr. Engel was provided in response to a request from the VRAB. He contends that the report made a clear causal connection between paratrooping and the knee condition identified by Dr. Engel. He argues that the Board had the option to accept the report, to reject it with reasons for finding it not credible, or, under section 38 of the VRAB Act, to seek independent medical advice. Having done none of those things, the Board erred in law and exceeded its jurisdiction.
[27] The respondent argues that while the Board did not expressly reject the Powells' evidence, it was up to Mr. Powell to establish his case. While uncontradicted evidence should be accepted, absent findings of lack of credibility, the causal link between the condition and the service must be established by the claimant: Weare,supra; Hall, supra; Elliot v. Canada (Attorney General) (2003), 307 N.R. 344 (F.C.A.); Nisbet v. Canada (Attorney General) 2004 FC 1106.
[28] The respondent submits that the Board found no evidence of ongoing difficulties and no medical opinions to support a link between the condition and specific service factors. It
considered Dr. Engel's opinion and concluded that it did not support the assertion that the osteoarthritis was caused by military service. The opinion was simply speculation based on what Mr. Powell had told the doctor: Hall, supra, Elliot, supra; Nisbet, supra.
[29] Dr. Engel's report of April 18, 2000 states in part:
As noted this man used to be a paratrooper jumping out of numerous planes. This impaction type of injury could generate some osteoarthritis of the knee...I think the main contributory factor to the knee problem would be the paratrooping with impaction injuries to the condyles.
[30] It is not surprising, perhaps, that Dr. Engel would conclude that the "main contributory factor" for the injury was the patient's history of jumping out of airplanes for the military. As noted above, there was no contradictory medical opinion in evidence. Nor did the Board seek, as the statute provides, an independent medical examination and diagnosis of the applicant.
[31] In its reasons, the Board, after citing Dr. Engel's report, states that the "only documented medical evidence is a medical attendance record dated 14 November 1976," which dealt with an injury to the right knee and ankle unrelated to Mr. Powell's military duties. Further it states "...there is no documented evidence of a left knee injury as the result of parachute jumps or as the result of activities of military service." This suggests that the Board was only prepared to accept Dr. Engel's opinion as to the cause of the injury if it could be corroborated by an entry in Mr. Powell's service record.
[32] In reference to Mr. Powell's own testimony about the knee problems he suffered during his military service, the Board's reasons state that "there is no documented medical or other evidence of significant service-related injuries which could be considered to have resulted in the current left knee disability." This suggests that Mr. Powell's own evidence was not accepted by the Board in the absence of some corroboration in his service record. No reference is made to Mrs. Powell's evidence supporting her husband's account.
[33] Mr. Powell's explanation for the lack of documentation - that he did not want to be perceived to be a complainer - was apparently given no credit by the Board as they made no mention of it in their reasons. On its face, the explanation would seem to be reasonable. One does not have to be steeped in military culture to understand that proud members of the armed forces do not wish to be perceived as complainers or malingerers.
[34] Applying the standard of review described above, I am unable to find a line of analysis in the Board's reasons that could reasonably lead it to the conclusion that it reached. I do not see how the Board could have followed the direction (in paragraph 39 (a)) to draw every reasonable inference in favour of the applicant from the evidence and still arrive at its conclusion. Moreover, the Board is directed (in paragraph 39(b)) to accept any uncontradicted evidence from the applicant that it considers credible. If it did not find the uncontradicted evidence of Mr. and Mrs. Powell credible, the Board should have clearly stated that and explained why.
[35] The sense I am left with from the Board's reasons is that it would have accepted the applicant's claim only if it was supported by some entry in his service medical record that indicated he had reported an injury to his knee during the period of time he was in the armed forces. While the onus remained upon the applicant to establish his case, the uncontradicted evidence he offered, supported by Dr. Engel's opinion, was sufficient in my view, on a balance of probabilities, to satisfy that onus. If the Board did not accept that the case was established, it had an obligation to clearly explain its reasons for that conclusion.
[36] The Board's decision does not stand up, in my view, to a somewhat probing scrutiny and I am unable to conclude that the decision was reasonable. On that ground alone, I will find in favour of the applicant and remit this matter for reconsideration before a different panel. I think it appropriate, nonetheless, to address the other issues argued before me.
3. The legal test
[37]
The applicant submits that the VRAB applied the wrong legal test because it relied on the absence of "significant" service-related injuries. There is no requirement in the legislation that the service-related injuries be significant. It need only arise out of or be directly connected to military service: Pension Act, s. 21(2)(a); King, supra.
[38] The respondent submits that the use of the word "significant" was pointing to the lack of a causal connection between the osteoarthritic left knee and military service and not to the Pension Act test.
[39] In my view, the context in which the term is used by the Board suggests that the Board was discounting the applicant's evidence about the effects of what it described as "minor" service related injuries. It distinguished between those injuries and what it considered would be sufficient to cause his disability. But in doing so, I believe it misunderstood and misstated the test it was required to apply to the evidence. I therefore accept the applicant's submission that the VRAB applied the wrong test by requiring evidence of significant service-related injuries. Only service-related injuries need to be proven. Requiring significant service-related injuries raises the bar too high.
4. Reasonable apprehension of bias
[40] In support of his contention that the Board's decision-making was tainted by a reasonable apprehension of institutional bias, Mr. Powell submitted as evidence a document found by his counsel through an Internet search of the VRAB website. The "Strategic Plan for 2003-2004" included a statement expressing concern for the financial consequences of approving claims that result in long-term disability payments and calling for responsible administration of the appeal programs. On the strength of this statement, Mr. Powell argued that a reasonable and well-informed person, faced with this public statement, would apprehend bias: [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369.
[41] The respondent objected to the introduction of this statement into evidence as there was no indication on the record that the members of the Board were aware of or considered it prior to making their decision in this case. As this is an application for judicial review and not a hearing de novo, only evidence that was before the decision maker should be taken into account. Further, the respondent does not stand in the place of the VRAB but is rather, a "person directly affected by the order sought in the application" rather than the tribunal in respect of which the application is brought, as provided by Rule 303(1)(a) of the Federal Court Rules, 1998. Thus, the respondent argues, it should not be put in the position of having to explain or justify the tribunal's statement.
[42] There is a limited exception to the rule against outside evidence where the allegation is one of procedural unfairness, but the evidence must still be shown to be reliable and relevant by the party seeking to rely upon it: Liidlii Kue First Nation v. Canada (Attorney General) (2000), 187 F.T.R. 161 (T.D.); United States Polo Association v. Polo Ralph Lauren Corporation (2000), 286 N.R. 282 (F.C.A.) at paras. 10-11. In this case, no evidence was offered to establish the reliability of the statement or, indeed, who actually made it. The web site itself contains a disclaimer that it is not representing the contents to have been made by, in affiliation with, or with the endorsement of the VRAB.
[43] I allowed the statement to be introduced into evidence at the hearing but am unable to conclude that a reasonable apprehension of bias has been made out. There is no evidence that the particular VRAB members sitting on Mr. Powell's appeal (or even any VRAB members at all) had a hand in preparing or approving the Strategic Plan. Even if they were aware of its existence, there is absolutely no evidence before me that they agreed with its findings or goals. Accordingly, it does not meet the requirements of the test set out in [1978] 1 S.C.R. 369">Committee for Justice and Liberty, supra.
Conclusion
[44] For the reasons set out above, I find that the Board's decision was based on an error of law with respect to the test it applied for determining whether the injury was caused by the applicant's military service, and on erroneous findings of fact made without regard to the evidence before it. Accordingly, this application for judicial review is allowed and the matter will be remitted to the Board for reconsideration by a differently constituted panel.
[45] The applicant has requested that, in the event he was successful in this application, the Court order that the Board be directed to accept Dr. Engel's opinion of April 18, 2000 or, in the alternative, to state reasons why that evidence is not credible or, in the further alternative, to seek an independent medical opinion pursuant to section 28(1) of the VRAB Act.
[46] The applicant has also requested that the Court order the Board to accept the evidence of the applicant and his wife or, in the alternative, to state reasons why that evidence is not credible.
[47] It will be apparent from my reasons above that the Board will have to revisit the Powells' evidence and Dr. Engel's report and either accept that evidence or give a clear explanation as to why it does not. No further direction from the court would be appropriate.
Costs
[48] In the event he was successful in this application the applicant has requested that costs be granted on a solicitor and client basis.
[49] While Rule 400 confers a broad discretion upon the Court to award costs, that discretion is not unfettered. An award of costs on a solicitor and client basis is exceptional:Mackin v. New Brunswick (Minister of Justice), [2002] 1 S.C.R. 405. There must be misconduct during or closely related to the proceeding: Apotex Inc. v. Canada (Minister of National Health & Welfare) (2000), 265 N.R. 90 (F.C.A.).
[50] I note that the decision reviewed in this instance was that of an independent tribunal exercising its mandate and not that directly of the respondent. In any event, while I accept that the applicant should have his costs as the successful party in these proceedings I see no exceptional reason or misconduct on the part of the respondent that would justify the imposition of costs on a solicitor and client basis.
ORDER
THIS COURT ORDERS that this application is allowed with costs and the matter is remitted to the Veterans Review and Appeal Board for reconsideration by a differently constituted panel.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1234-04
STYLE OF CAUSE: DAVID POWELL
AND
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 14, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: March 31, 2005
APPEARANCES:
Myfanwy Bowman FOR THE APPLICANT
Kevin Staska FOR THE RESPONDENT
SOLICITORS OF RECORD:
MYFANWY BOWMAN FOR THE APPLICANT
Tapper Cuddy
Barristers & Solicitors
Winnipeg, Manitoba
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Winnipeg, Manitoba
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