Caswell v. Canada (Attorney General), 2004 FC 1364

Date: 20041005

Docket: T-714-04

Citation : 2004 FC 1364

Ottawa, Ontario, this 5^th day of October, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

THOMAS CASWELL

                                                                                                                                            Applicant

                                                                           and

THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review in respect of a decision of the Veterans Review and Appeal Board (the "Board"), rendered February 16, 2004, which refused to reconsider, pursuant to section 111 of the Veterans Review and Appeal Board Act, a decision of a Reconsideration Appeal Panel of the Board (the "Panel") dated July 7, 2003, on the basis that no reviewable error of law had been made by the Panel and on the basis that a letter date-stamped September 16, 2003 did not constitute new evidence. The Applicant is requesting the Board's decision on both issues be set aside and the matter be sent back for reconsideration before a new Panel.

ISSUES

[2]                The issue before me is whether the Board made a patently unreasonable finding of fact or committed an error of law in making its determination.

[3]                I answer this question in the negative and dismiss this application for the reasons set out below.

FACTS

[4]                Thomas Caswell (Mr. Caswell) began his service in the Regular Force of the Canadian Forces in 1984, and was discharged in 1991. For many years now, he has suffered from a shoulder injury, first diagnosed in 1993 as chronic subluxation of the right humerus with rotator cuff impingement syndrome (chronic subluxation), which he claims is the result of an injury he sustained in the course of mandatory physical fitness training at Canadian Forces Base Chatham in 1988.

[5]                At the time of the injury in 1988, he was advised by military personnel to attend at the base's medical facility. The doctor on-site diagnosed him with bursitis. Mr. Caswell claims to have continued to feel pain in his shoulder, but sought no further diagnoses until January 1993 when, in anticipation of making an application for a disability pension from Veterans Affairs, he consulted Dr. M.L. Jacqmin. Dr. Jacqmin diagnosed him not with bursitis but with chronic subluxation. This diagnosis was confirmed in a second opinion by Dr. Nicholas A. Smith in February 1993.

[6]                Mr. Caswell brought his application for a disability pension to Veterans Affairs on March 22, 1993. On August 3, 1993 the Canadian Pension Commission denied his request, later confirmed by the Entitlement Board on May 2, 1994. Mr. Caswell then appealed to the Board, which confirmed the Entitlement Board's decision on May 11, 1995.

[7]                As a result of the Board's decision, Mr. Caswell had no further recourse in respect of a disability pension for his right shoulder injury until September 2002 when, based on new evidence, he applied for reconsideration of the May 11, 1995 decision.

[8]                In the spring of 2001, Mr. Caswell had come into contact with a former military colleague, Mr. Steven Wesch ("Mr. Wesch"), whom he had not spoken to nor had contact with for over ten years. At Mr. Caswell's request, Mr. Wesch wrote a letter setting out his recollection of the 1988 injury sustained by Mr. Caswell, as Mr. Wesch had been an eyewitness to the injury and had also accompanied Mr. Caswell to the medical centre on that day.

[9]                Following receipt of this letter, Mr. Caswell decided to obtain another medical opinion in respect to his right shoulder, and consulted Dr. T. McAllister ("Dr. McAllister"). Dr. McAllister wrote a series of letters, dated October 25, 2001, May 9, 2002, and August 14, 2002, respectively (collectively the "McAllister Reports"), which culminated in Dr. McAllister's conclusion that "it is reasonably likely that the problems with his [the Applicant's] right shoulder were caused by the injury sustained at CFB Chatham in the late 1980's."

DECISION UNDER REVIEW

[10]            In September 2002, based on Mr. Wesch's corroborating letter and the McAllister Reports, Mr. Caswell applied for reconsideration to the Panel of the Board's May 11, 1995 decision. In its decision, dated July 7, 2003, the Panel reviewed the law on new evidence and specifically the comments of Mr. Justice Teitelbaum in MacKay v. Attorney General of Canada, [1997] F.C.J. No. 495, in which he states the Veterans Review and Appeal Board should apply the "fresh evidence" test outlined in the Supreme Court of Canada case of R. v. Palmer, 106 D.L.R. (3d) 212 (S.C.C.), to the question of whether newly-submitted evidence on appeal is new and credible enough to warrant a reconsideration of the case. After an assessment of the proffered letter and McAllister Reports, the Panel rejected the Applicant's request for reconsideration, since it was of the opinion that none of these supposedly new pieces of evidence in fact met the Palmer criteria.

[11]            The Applicant Mr. Caswell then requested the Board reconsiders the Panel's decision. His application materials included a letter, date-stamped September 16, 2003, that purported to explain why Mr. Wesch's letter could not have been produced sooner. The application for reconsideration was denied on February 16, 2004:

The Board has heard your [the Applicant's] arguments regarding your claim that it erred in law and in fact in the way in which it dealt with the previous evidence from both the witness Mr. S. Wesch and the medical opinion of Dr. McAllister, and concludes, after a careful review of the facts, that no reviewable error has been committed.

Insofar as the most recent letter from Mr. Caswell is concerned, the Board finds that it does not consider this letter to be new evidence, which could bear upon the decisive issue in the adjudication of the claim before it.

Regrettably, therefore, the Board will not reconsider its own motion.

SUBMISSIONS

The Applicant

[12]            Mr. Caswell submits that the Board erred in fact and in law in concluding that no reviewable error had been committed by the Panel in its failure to accept Mr. Wesch's letter and the McAllister Reports as new evidence. First, Mr. Caswell says that the letter from Mr. Wesch could not have been adduced sooner, since he had had no contact with Mr. Wesch from the time of his (Mr. Caswell's) 1991 discharge until 2001, when Mr. Wesch contacted him (so he claims - the evidence on this point is not clear from the Applicant's Record: see Mr. Caswell's affidavit, p. 13, para. 18, and Mr. Wesch's letter, p. 16, para. 6). Second, he says that the Panel erred in failing to deal with the substance of Mr. Wesch's letter, and therefore failed to deal with evidence from which an inference favourable to Mr. Caswell might have been drawn. Finally, Mr. Caswell is of the opinion that the Board erred in its assessment of the McAllister Reports as these were in fact credible and definitive in pinpointing a cause for his injury, thus squarely bearing upon the decisive issue of his entitlement to a disability pension.

[13]            Mr. Caswell also submits that the Board further erred by not accepting his own letter as new evidence. This letter, date-stamped September 16, 2003, purports to explain why the letter from Mr. Wesch was not obtained at an early date in the proceedings.

[14]            Finally, Mr. Caswell is of the opinion that since he has presented uncontradicted evidence that his injury was sustained in the course of authorized physical training, the Board erred in failing, contrary to its statutory obligations under the Act, to presume that his injury arose out of his military service.

The Respondent

[15]            The Respondent, the Attorney General of Canada, takes the position that the Applicant Mr. Caswell has failed to establish that the Board committed any patently unreasonable errors in its decision and, as such, there is no basis for setting aside the Board's decision.

[16]            The Respondent states that both the Board in its review and the Panel in its initial decision properly followed the test for new evidence as set out in R. v. Palmer and endorsed by the Federal Court in MacKay, supra, and that neither the letter from Mr. Wesch, the McAllister Reports, nor Mr. Caswell's letter meet the criteria for admissibility. Therefore, the Respondent claims that there is no reason for this Court to interfere with the Board's decision.

ANALYSIS

[17]            Both parties to this action were in agreement that the standard of review to be applied by this Court to decisions of the Veteran Review and Appeal Board is that of patent unreasonableness. This is in accordance with previous decisions of this Court and of the Federal Court of Appeal; e.g., McTague v. Canada (Attorney General), [2000] 1 F.C. 647 at paras. 46-47 (T.D.):

[P]atent 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. [...]

Factual determinations of this nature are at the very heart of the specialized jurisdiction of the Board. Considerations of cost effectiveness and relative institutional competence call for maximum curial deference to findings of fact. [Cites omitted.]

The necessity to look at the Panel's decision

[18]            There was debate over the extent to which I was entitled to look at the July 7, 2003 decision of the Panel when reviewing whether the Board's decision of February 16, 2004 was reasonable. The Attorney-General of Canada, for the Respondent, pointed to the decision in MacKay, supra, as authority for the principle that a reviewing Court could only look at the immediate decision at hand when assessing whether a decision was reasonable. Thus, the Respondent urged, I could only turn my mind to the Board's determination to not review the Panel's decision, and s. 111 of the Act which gives the Board authority to make such a determination. According to this analysis, the Board did not err in refusing to reconsider the Panel's decision.

[19]            However, I feel that the assessment undertaken by Teitelbaum J. in MacKay of a reviewing court's jurisdiction to overturn earlier decisions cannot be read as narrowly as counsel for the Respondent proposes. While it is true that a court should not engage in a "full-fledged judicial review" of the earlier decision, it is imperative the reviewing court turn its attention to the earlier decision when determining whether potential errors of law or fact were made at the time of reconsideration by the VRAB (the "Board"). At paragraphs 45-48 of the decision, Justice Teitelbaum states:

[... T]he court in the case at bar cannot decide in a vacuum if the VRAB on June 21, 1996 properly exercised its discretion. The court must also pay some attention to the earlier decision of the VAB dated January 19, 1994 because it was at issue in the VRAB reconsideration proceeding.

However, I wish to emphasize that it is not for the court in the current proceeding to conduct a full-fledged judicial review of the January 19, 1994 decision of the VAB. The validity of the earlier decision of January 19, 1994 cannot properly be challenged in a judicial review of the VRAB's June 21, 1996 reconsideration decision. The court does not have jurisdiction to overturn the earlier decision. By its very nature, a reconsideration under the auspices of the Veterans Review and Appeal Board Act is backward-looking but there cannot be a point of infinite regression. The applicant can only argue that the VRAB in its June 21, 1996 decision did not properly exercise its discretion under s. 111 because it did not reconsider on its own motion the earlier decision of the VAB despite the existence of errors of fact and law in the VAB decision.

[...] A reconsideration proceeding by its very nature requires some harkening back to the earlier decision by the reconsideration panel, the VRAB, and imposes the same requirement on the court considering an application for judicial review of the VRAB's decision. [Emphasis in original.]

[20]            Therefore in order for me to assess whether the Board properly exercised its jurisdiction pursuant to s. 111 of the Act, I must also look to the earlier decision of the Panel to determine whether any errors of law or fact were made in its assessment of whether the evidence submitted by Mr. Caswell in support of his request for reconsideration was in fact new evidence. In order to determine whether the Board properly assessed the Panel's reasons, the Board has to look at the Panel's reasons. It appears to me that the Court, as the reviewing body of the Board's decision, has to be in the same position as was the Board when it reviewed the Panel's decision, and it cannot do so without also looking at the Panel's reasons. By not doing so, the Court would not have the full understanding of the situation and would not be in a position to make a determination on the merits of the Board's decision.

[21]            The test by which new evidence should be assessed was set out by the Supreme Court of Canada in Palmer, supra at page 224:

- the evidence should generally not be admitted, if, through the exercise of due diligence it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

- the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

- the evidence should be credible in the sense that it is reasonably capable of belief; and,

- it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[22]            I have reviewed the Panel's reasoning, as well as the Palmer test, and see no reason to interfere with the Panel's determination that these pieces of evidence were not new and therefore inadmissible. There is no clear and convincing evidence on the record adequately explaining why Mr. Caswell was unable to obtain the letter from Mr. Wesch at an earlier date. Mr. Caswell then professes to address this issue in his letter of September 16, 2003, which he submitted to the Board upon its review of the Panel's decision; however, I am again of the opinion that the Board did not err in refusing to admit this letter as new evidence. Not only could Mr. Caswell have introduced his letter at an earlier point in the proceedings (an obvious point would have been as an accompaniment to Mr. Wesch's letter), but he should have done so. What Mr. Caswell is doing is trying to get the proverbial "second kick at the can" by submitting evidence that purports to adequately explain why the letter from Mr. Wesch is admissible as new evidence. The time for this explanation was at the reconsideration hearing before the Panel in September 2002.

[23]            Since the Panel did not err in determining that Mr. Wesch's letter was not new evidence, the Panel consequently also did not err in failing to deal with the substance of Mr. Wesch's letter, even if to do so ignored (as the Applicant alleges) evidence from which an inference favourable to Mr. Caswell may have been drawn. It is true that ss. 3 and 39 of the Act urge the Board, inter alia, to take a liberal and purposive approach to veterans' claims and to make every reasonable inference in favour of the applicant; see Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133, MacKay, supra. However, this only applies to evidence that is admissible before the tribunal. In the present case, since the Panel correctly determined that the letter from Mr. Wesch was not admissible, it was under no duty to carry its inquiry any further.

[24]            As far as the McAllister Reports are concerned, the Entitlement Board 1994 decision found that no medical evidence related the claimed condition to any injury or trauma occurring during the applicant's military service; this, despite medical reports from Dr. Jacqmin and Dr. Smith submitted on behalf of the Applicant. At the 1995 appeal, as the Panel pointed out in its decision, no evidence was led to rebut this finding. The Applicant cites the MacKay case, supra, in support of the acceptance of the McAllister Reports. However, it is important to note that in MacKay the report of Dr. Murdoch was not only uncontradicted by any other evidence, but the credibility of Dr. Murdoch's report was also not called into question. This is not the case here. Mr. Caswell has had, since 1993, medical reports stating that he suffered from chronic

subluxation. In 1994 and 1995 these reports were deemed insufficient to causally link the 1988 injury to Mr. Caswell's current condition, and I am not convinced that this situation has changed enough to permit the McAllister Reports to be admitted. In the absence of new medical evidence, Mr. Caswell may not have multiple attempts to have his original medical evidence reassessed. Again, there is no evidence that was presented that would indicate that the McAllister Reports could not be obtained in due time. This lack in the evidence breaches again the first criteria of the Palmer test and therefore the test must fail.

[25]            Finally, the Applicant has submitted that the Board failed to discharge its statutory obligations under the Act, since it did not accept his uncontradicted evidence that his injury arose out of military service. As I have briefly mentioned above, s. 3 of the Act provides that the powers, duties or functions of 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 and to their dependants may be fulfilled. Section 39 of the Act further provides that in all proceedings under the 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.

[26]            It seems to me, however, that these legislative provisions do not impose upon either the Board or a reviewing court the obligation to automatically accept submissions made by an applicant. The burden is still on the applicant to show that the new evidence being proffered, in addition to being new, credible, relevant, reasonable and, if contradicted, more persuasive than the contradictory evidence, could reasonably have affected the initial result. The Applicant Mr. Caswell has not managed that here. The burden was on the Applicant and he has not succeeded it in meeting it. He was not successful in meeting the requirements of the Palmer test; i.e., that the evidence he was attempting to have admitted was truly fresh evidence. Furthermore, this medical evidence was in contradiction with some of the evidence already on file and therefore it remains open to the decision maker to come in favour of some evidence and by consequence, refuting the other evidence.

[27]            For all these reasons I conclude that the Board's determination in the case at bar is reasonable and therefore its decision must be upheld.

                                               ORDER

THIS COURT ORDERS THAT:

-           This application for judicial review is denied.

               "Simon Noël"                

         Judge

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-714-04

STYLE OF CAUSE: Thomas Caswell -v- Attorney General of Canada

PLACE OF HEARING:                                 Ottawa Ontario

DATE OF HEARING:                                   September 22, 2004

REASONS FOR : The Honourable Mr. Justice S. Noël

DATED:                     October 5^th, 2004

APPEARANCES:

Ms. Helen Gray                                                 APPLICANT

Ms. Sonia Barrette                                            RESPONDENT

SOLICITORS OF RECORD:

McCarthy Tétrault

Ottawa Ontario                                                 APPLICANT

Mr. Morris Rosenberg

Deputy Attorney General of Canada                                          RESPONDENT