Date: 20040811
Docket: T-57-04
Citation: 2004 FC 1106
Ottawa, Ontario, August 11, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
JACK NISBET
Applicant
and
THE ATTORNEY GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of the decision of the Veterans Review and Appeal Board (Board) dated November 4, 2003, wherein the Board denied the Applicant's claim for a pension under the Pension Act, R.S.C. 1985, c. P-6.
ISSUE
[2] The only issue is as follows. Was the Board's decision patently unreasonable?
[3] For the reasons below, I answer in the negative and will dismiss the application for judicial review.
FACTS
[4] The Applicant started serving in the RCMP in the early '70s. He suffered a knee injury while playing hockey for the RCMP Burnaby Detachment team on December 12, 1972. He also hurt his shoulder while playing hockey for the same team on November 13, 1974. In both instances, he signed a document in which he stated that "the knee has responded to treatment. I am fully satisfied with the treatment received and will not be receiving any further medical consultation on the knee" and, about the shoulder, that "the injury would not cause permanent injury".
[5] On February 28, 2002, Veterans Affairs denied the Applicant's application for disability pension for Osteoarthritis Left Knee (operated), Osteoarthritis Right Knee (operated), Osteoarthritis Left Shoulder, Osteoarthritis Right Shoulder and Optic Atrophy Right Eye because none of these disabilities were pensionable under section 32 of the Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11 (RCMP Superannuation Act), which requires the injury or disease or aggravation thereof to arise out of, or to be directly connected with, the person's service in the Force. Section 2 states that "Force means Royal Canadian Mounted Police".
[6] The Applicant sought review of the Minister's decision and on September 18, 2002 and November 4, 2003 respectively, the Entitlement Review decision and the Entitlement Appeal decision confirmed the Minister's decision. The Applicant withdrew the Optic Atrophy Right Eye application at the Entitlement Appeal.
CONTESTED DECISION
[7] In its November 4, 2003 decision, the Board provided the following reasons for rejecting the Applicant's claim (page 4):
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.
The Board in rendering its decision would like to point out that it recognizes that there are many issues associated with each of the Appellant's claimed conditions.
The Appellant has been involved in two non-duty related motor vehicle accidents in 1990 and 1992.
The Board reviewed the medical opinion from Dr. John le Nobel dated 27 June 2003 where he says that the Appellant's problems were the result of the wear and tear associated with his work and work related activities. However, the Board finds that much of Dr. le Nobel's opinion is based on the subjective information provided by the Appellant. Dr. le Nobel does not provide any specific medical information relating the Appellant's claimed conditions to his RCMP service.
The Board recognizes that the Appellant did play hockey during his R.C.M.P. service in the Burnaby Detachment. The Board notes that the written submission from Insp. Murray Dauk dated 24 March 2003 leaves the impression that the hockey activities were organized, however, the Board found no statement from a commanding officer that the Appellant was injured while in the performance of his R.C.M.P. duties while playing hockey.
The Board, based upon a review of all the documented evidence, notes that the Appellant indicated that he had to rest at times on account of his multiple sclerosis. However, the Board found no clear medical opinion identifying what role that (sic) the Appellant's multiple sclerosis has to the claimed upper and lower limb conditions. In addition, the Board found no medical opinion stating what role the Appellant's motor vehicle accidents might have played in his claimed knee and shoulder conditions.
The Board has not been provided with any additional factual or medical information that would cause it to differ from the Entitlement Review Panel decision [...]
ANALYSIS
Standard of Review
[8] In Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 26, McLachlin, C.J., writing for the Supreme Court of Canada, described the four factors in determining the standard of review as follows:
In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors -- the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question -- law, fact, or mixed law and fact. [...]
[9] The legislative framework provides for a privative clause: the Board's decision is final and binding (section 31 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18). This factor suggests great deference towards the Board.
[10] As for the expertise of the tribunal relative to that of the reviewing court on the issue in question, the Board is given full and exclusive jurisdiction to determine all appeals and all matters relating to those appeals (section 26 of the Veterans Review and Appeal Board Act). The Board's weighing or interpretation of medical evidence and determining whether the claimant's disability was in fact caused or aggravated by military service is at the very heart of the specialized jurisdiction of the Board, as stated in Mactague v. Canada (Attorney General), [2000] 1 F.C. 647 (T.D.) at paragraph 46:
... [the] standard of patent unreasonableness is applicable when the issue in dispute is the Board's weighing or interpretation of often conflicting or inconclusive medical evidence and determining from it whether the claimant's disability was in fact caused or aggravated by military service: MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (T.D.) (QL); Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (F.C.T.D.) [page 667]; Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (F.C.T.D.); Henderson v. Canada (Attorney General) (1998), 144 F.T.R. 71 (F.C.T.D.)
This factor therefore suggests great deference towards the Board.
[11] The purpose of the RCMP Superannuation Act is to give benefits to individuals who are serving or served in the RCMP. The purpose of section 32 is to give benefits to individuals who were injured while serving in the RCMP. This factor is neutral.
[12] The question of whether the disabilities arise out of, or are directly connected with, service in the RCMP is a question of fact. The expression "arise out of or directly connected with" is not defined in the legislation. As a result, this factor suggest great deference towards the Board.
[13] Taking all the factors into consideration, I come to the conclusion that the standard of review of the decision is patent unreasonableness. This same standard of review was used by Cullen J. in MacDonald v. Canada (Attorney General) (1999), 164 F.T.R. 42 (F.C.T.D.) over the same legislative provision.
Legislation, causal link and credibility
[14] Section 32 of the RCMP Superannuation Act and paragraph 21(2)(a) of the Pension Act provide the following :
| 32. Subject to this Part, an award in accordance with the Pension Act shall be granted to or in respect of
(a) any person to whom Part VI of the former Act applied at any time before April 1, 1960 who, either before or after that time, has suffered a disability or has died, or
(b) any person who served in the Force at any time after March 31, 1960 as a contributor under Part I of this Act and who has suffered a disability, either before or after that time, or has died,
in any case where the injury or disease or aggravation thereof resulting in the disability or death in respect of which the application for the award is made arose out of, or was directly connected with, the person's service in the Force.
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,
(a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I; [...]
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32. Sous réserve des autres dispositions de la présente partie, une compensation conforme à la Loi sur les pensions doit être accordée, chaque fois que la blessure ou la maladie -- ou son aggravation -- ayant causé l'invalidité ou le décès sur lequel porte la demande de compensation était consécutive ou se rattachait directement au service de l'intéressé dans la Gendarmerie, à toute personne, ou à l'égard de celle-ci :
a) visée à la partie VI de l'ancienne loi à tout moment avant le 1er avril 1960, qui, avant ou après cette date, a subi une invalidité ou est décédée;
b) ayant servi dans la Gendarmerie à tout moment après le 31 mars 1960 comme contributeur selon la partie I de la présente loi, et qui a subi une invalidité avant ou après cette date, ou est décédée.
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 :
a) des pensions sont, sur demande, accordées aux membres des forces ou à leur égard, conformément aux taux prévus à l'annexe I pour les pensions de base ou supplémentaires, en cas d'invalidité causée par une blessure ou maladie -- ou son aggravation -- consécutive ou rattachée directement au service militaire; [...]
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[15] Sections 3 and 39 of the Veterans Review and Appeal Board Act govern how the Board should evaluate the evidence before it when making a determination. They state :
| 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.
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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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.
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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[16] Paragraph 21(3)(a) of the Pension Act contains a presumption that the disability of a soldier who becomes disabled in the army is connected with his or her service in the Canadian Armed Forces :
| 21.(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
(a) any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority; [...]
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21.(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 :
a) d'exercices d'éducation physique ou d'une activité sportive auxquels le membre des forces participait, lorsqu'ils étaient autorisés ou organisés par une autorité militaire, ou exécutés dans l'intérêt du service quoique non autorisés ni organisés par une autorité militaire; [...]
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[17] King v. Canada (Veterans Review and Appeal Board), 2001 FCT 535, [2001] F.C.J. No. 850 (T.D.) (QL), at paragraphs 39 and 40, addressed the applicability of section 39 of the Veterans Review and Appeal Board Act with respect to Board decisions:
Pursuant to section 39 of the Veterans Review and Appeal Board 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. Section 39 provides that the VRAB must accept all uncontradicted evidence, but this does not mean it must accept all evidence. If the VRAB is of the opinion that the evidence is not credible, it can reject it, as stated by Cullen J. in MacDonald, supra, at paragraph 22:
It is settled law that a tribunal does not have to make an explicit written finding on each element which leads to its ultimate conclusion; indeed, there is a presumption that the tribunal has dealt with all of the documents which were placed before it: Henderson v. Canada (Attorney General) (1998), 144 F.T.R. 71 (T.D.). However, this is tempered, or qualified, by section 39 of the Veterans Review and Appeal Board Act, which requires that when new and credible evidence is presented during a reconsideration proceeding, the Board has a duty to consider and weigh the evidence, drawing every reasonable inference in the applicant's favour. This does not mean that the Board must automatically accept whatever submission is made by a veteran; rather, the evidence must be accepted if it is credible and reasonable, and uncontradicted.
It is clear that the VRAB can consider and weigh the evidence submitted and assign to that evidence the weight it considers appropriate. However, the evaluation of the evidence must always be done in conformity with sections 3 and 39 of the Veterans Review and Appeal Board Act, which means that the VRAB must accept the evidence submitted unless it makes a determination with respect to the lack of credibility of the evidence or unless the evidence is contradicted by other evidence submitted. [...] (My Emphasis)
[18] There is an onus on the Applicant to demonstrate a causal link between the alleged disability and his or her years of service with the RCMP. Only after that causal link is establish will it become necessary to consider paragraph 21(2)(a) and the presumption contained in 21(3)(a) of the Pension Act. That principle was confirmed by the Federal Court of Appeal in Elliot v. Canada (Attorney General), 2003 FCA 298, [2003] F.C.J. No. 1060 (F.C.A.) (QL), at paragraph 23 :
The appellant reproaches the Judge below of having failed to deal specifically with the issues arising under paragraphs 21(2)(a) and 21(3)(f) of the Act. I agree with the respondent that unless the appellant succeeds on the first issue, i.e. whether there is a causal link between the lunch at CFB Borden and his IBS, there is no reason to deal with the issues arising under paragraphs 21(2)(a) and 21(3)(f). I therefore turn to the first issue raised by the appeal.
[19] I agree with paragraph 39 of the respondent's record that without the initial establishment of the causal link between the alleged injury and service with the RCMP, the Court does not need to go further to determine whether the particular injury claimed arose out of or was directly connected with service in the RCMP. Hence, the Court is then not required to examine the Board's analysis of the presumption arising pursuant to paragraph 21(3)(a) of the Pension Act.
[20] I now turn to the facts to determine whether the Applicant established the causal link between the alleged disabilities and service in the RCMP. The Applicant tendered to the Board the medical opinion of Dr. John le Nobel dated June 27, 2003 (affidavit of Jack Nisbet, Exhibit H) as evidence that his claimed condition was directly connected with service in the RCMP as the Applicant's problems were the result of the wear and tear associated with his work and work related activities.
[21] However, the Board found that "much of Dr. le Nobel's opinion is based on the subjective information provided by the Appellant. Dr. le Nobel does not provide any specific medical information relating the Appellant's claimed conditions to his RCMP service." In his letter, Dr. le Nobel stated "He tells me of numerous and repeated injuries to his knees during the course of his work and hockey. Similarly, he had injuries to his shoulders" and "I certainly agree that this man has degenerative osteoarthritis in his knees and shoulders. He is disabled. His assessment today is certainly consistent with these problems having arisen as a result of his work and work related activities."
[22] Though Dr. le Nobel's letter contains a detailed description of the Applicant's medical condition at present, I agree with the Board that the letter does not contain any evidence linking the Applicant's condition with the performance of his duties. The Board was entitled to reject uncontradicted medical evidence in support of the causal link. On that point, I would adopt the comments of Reed J. in Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (F.C.T.D.) at paragraph 24:
I cannot conclude that the Board's weighing of the evidence ignored any of the directions set out in section 39 and the jurisprudence. In the mouths of the doctors the statement that the injury was "assumed" to relate to the 1983-84 event; or that the doctor "feels" it is "probably" the result of the 1984 injury, is speculation. Neither doctor had any first hand knowledged of the events; they were not treating the applicant in 1983-84, and had not even been doing so at the commencement of his complaints in 1987-8. Neither doctor in 1996 had any basis other that the applicant's recitation of events on which to base a conclusion as to the event that caused the injury. And, as noted, the applicant's description of the 1983-84 event as constituting a cause of injury is contradicted by documentary evidence, signed by him in 1984. (My Emphasis)
[23] All the Board had to do in rejecting the evidence was to provide a reasonable explanation for doing so (Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133 (F.C.T.D.)), and the Board did. In addition to the medical opinion being mostly based on the subjective information provided by the Applicant, the opinion was not found credible in that it fails to address what impact the Applicant's non-duty motor vehicle accidents had on his knees and shoulders.
[24] I also find not patently unreasonable the Board's findings of Dr. John le Nobel's opinion that he did not provide any specific medical information relating to the appellant's claimed conditions to this RCMP service (Elliott, supra, paragraph 13).
[25] Since the Applicant failed to meet the burden of proving that his alleged disabilities arose out of, or were directly connected with, service in the RCMP, it was reasonably open to the Board to find that the Applicant was not entitled to pension benefits. This finding on the issue of causal link makes it unnecessary to consider whether a presumption arises under paragraph 21(3)(a) of the Pension Act.
[26] The application for judicial review is dismissed without costs.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed without costs.
"Michel Beaudry"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-57-04
STYLE OF CAUSE: JACK NISBET v.
THE ATTORNEY GENERAL FOR
CANADA
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 22, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Beaudry
DATED: August 11, 2004
APPEARANCES:
Jack Nisbet FOR APPLICANT
(on own behalf)
Mary Ann Barker FOR RESPONDENT
SOLICITORS OF RECORD:
Jack Nisbet FOR APPLICANT
(on own behalf)
Langley, British Columbia
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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