Date: 200400809
Docket: T-222-03
Citation: 2004 FC 1091
Ottawa, Ontario, this 9th day of August, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
DONALD A. COMEAU
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, seeking judicial review of an Entitlement Appeal Panel decision of the Veterans Review and Appeal Board Canada (the "Appeal Panel") dated January 8, 2003. In its decision, the Appeal Panel upheld a decision of the Entitlement Review Panel of the Board which denied Donald E. Comeau (the "applicant") pension benefits under subsection 21(2) of the Pension Act, R.S.C. 1985, c. P-6 on the basis that his medical condition did not arise out of nor was it directly connected with military service in peace time.
[2] The applicant requests:
1. an order in the nature of certiorari quashing the decision of the Appeal Panel;
2. an order in the nature of mandamus compelling a just person appointed by this Court to hear his claim or alternatively, for a differently constituted Appeal Panel to hear his appeal in accordance with the law and principles of fairness;
3. costs of this application and all associated expenses listed by the applicant in accordance with Column III of Tariff B of the Federal Court Rules, 1998, S.O.R./98-106;
4. costs of his medical care since being released from the Canadian Forces on July 2, 1974 in accordance with Tariff A of the Federal Court Rules, 1998, supra;
5. costs for projected interim treatment for the applicant's condition to include, but not be limited to, medical, legal and associated costs to the amount of $450,000.00; and
6. such other relief as this Honourable Court may deem just and appropriate upon the presentation by the applicant of matters which may further be revealed upon disclosure of material.
Background
[3] The applicant, Donald E. Comeau, served in the militia from September 18, 1961 to March 4, 1963 and in the Royal Canadian Navy from May 8, 1964 to July 2, 1974.
[4] In 1971, the applicant was examined at the hospital at Canadian Forces Base Halifax and diagnosed with high blood pressure, mononucleosis and hepatitis.
[5] In April 1991, the applicant was diagnosed with non-ischemic dilated cardiomyopathy by Dr. R.C. Poblete. This diagnosis was confirmed in 1994 by Dr. W. M. Fitch.
[6] The applicant submitted an application to the Department of Veteran Affairs for a disability pension. In a decision dated May 29, 1995, the Canadian Pension Commission concluded that the applicant's condition was not pensionable under subsection 21(2) of the Pension Act, supra, as neither the condition nor any aggravation thereof arose out of, or was directly connected with military service in peacetime in the regular forces. The Commission reasoned that since his medical records at the time of discharge showed no cardiomyopathy and there was no medical evidence that job stress could cause or worsen cadiomyopathy, the applicant's condition resulted from post-service factors and was therefore not pensionable.
[7] The applicant appealed this decision to an Entitlement Review Panel of the Veterans Review and Appeal Board. The Review Panel held a hearing on February 27, 2001.
[8] As evidence before the Review Panel, the applicant submitted the following:
1. Letters dated February 21, 1989 and April 11, 1991 by Dr. R.C. Poblete regarding abnormal cardiac symptoms and a diagnosis of non-ischemic dilated cardiomyopathy;
2. A letter dated July 4, 2000 by Dr. G. D. Douglas which stated, in part, "[i]n short, there is evidence to suggest the possibility of the development of cardiac abnormalities during the period of his service";
3. A handwritten note dated September 21, 2000 by Dr. G. D. Douglas which stated that "[i]f Mr. Comeau did develop the beginning of his problems during his service, aggravation of his condition due to service is likely, given his present state of health. My review shows there is evidence to suggest the possibility it could have so developed, during his period of service" [emphasis in original];
4. A letter dated April 7, 1994 by the applicant in which he attributes his disability to his military service and recalls the onset of dizziness and other symptoms in 1966;
5. A letter dated August 17, 1994 by the applicant in which he states that upon release from the military he was told he was medically fit. The applicant goes on to submit that his present condition would not be as serious, had he been informed of his true medical status by military staff before his release.
[9] Before the Review Panel, the applicant argued that his condition was pensionable because it was, in part, caused and/or aggravated by his service. The applicant pointed to the following factors to support his position: that the military supplied cigarettes at a very small price, he was often subjected to high levels of stress, the navy provided daily rations of rum, he had no family history of cardiomyopathy, and the medical opinion of Dr. G. D. Douglas. Furthermore, the applicant argued that not being informed of his heart condition upon release from the military worsened his medical condition.
[10] In its decision dated March 14, 2001, the Review Panel agreed with the decision of the Commission, stating that there was no evidence connecting the applicant's condition with his navy service.
[11] The applicant's appeal to an Entitlement Appeal Panel of the Veterans Review and Appeal Board Canada (the "Appeal Panel") was heard on October 15, 2002.
[12] Before the Appeal Panel, it was the applicant's position that during his hospital stay in 1971, although military medical staff made note of a number of symptoms, he was never told that he had a heart murmur, an abnormal electrocardiogram, an enlarged liver or a variety of other conditions. This lack of information caused the applicant to later misreport his medical history to his physician, Dr. Poblete, as simply involving high blood pressure. The applicant argued that the military's failure to inform him of his medical conditions amounted to medical mismanagement which led to a prolongation of his illness and further deterioration of his health prior to diagnosis.
[13] On behalf of the applicant, a pension advocate argued before the Appeal Panel that the military has an obligation to communicate all critical health information to assist in disease treatment rather than aggravate it. The advocate asked the Appeal Panel to draw all reasonable inferences from the uncontradicted medical evidence on file, and to resolve any doubt in the applicant's favour by finding that his condition arose, at least in part, out of aggravation factors directly connected to peace time military service within the meaning of subsection 21(2) of the Pension Act, supra.
Decision of the Entitlement Appeal Panel (Veterans Review and Appeal Board Canada)
[14] In a decision dated January 8, 2003, the Appeal Panel affirmed the decision of the Review Panel, concluding that the applicant was not entitled to benefits because his condition did not arise out of nor was directly connected with his military service.
[15] The Appeal Panel acknowledged its statutory obligation to draw all reasonable inferences from the evidence presented in favour of the applicant, and also to resolve any doubt in the weighing of the evidence in his favour as set out in sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18. The Appeal Panel decided, however, that the applicant had not established the causal link between his condition and service that is required by subsection 21(2) of the Pension Act, supra.
[16] The Appeal Panel, in reaching its decision, did not find any of the medical reports on file to be persuasive or credible enough to justify the award of a pension in the applicant's case. It characterized the evidence of Dr. G. D. Douglas as using the concept of causation not as understood by the Appeal Panel, and generally "speculative in nature and presented as hindsight".
[17] The Board concluded that the applicant's condition arose during his service but was not caused by it.
[18] In response to the allegations of medical mismanagement, the Appeal Panel stated that for non-service related injury or disease to be pensionable, it must be the result of medical negligence, that is, of a failure by the military to provide the relevant standard of care to the applicant.
[19] The Appeal Panel concluded that there was no evidence that the military breached the standard of care it owed the applicant, or if the standard of care was inadequate, that the applicant's condition was permanently caused or aggravated by any breach of care. To the contrary, the Appeal Board noted that the applicant had received considerable specialist care during his time of service.
[20] This is the judicial review of the Appeal Panel's decision that the applicant's medical condition is not pensionable.
Applicant's Submissions
[21] The applicant submits that the Appeal Panel erred in law by failing to observe procedural fairness in giving careful consideration in their decision given that contradictory evidence was neither offered nor heard. The applicant further submits that the Appeal Panel failed to equitably review and assess all of the reports from the medical professionals involved in his diagnosis and treatment. In the applicant's view, the Appeal Panel refused to accept the evidence that his current heart and blood pressure conditions are directly attributable to his military service.
[22] The applicant argues that the Appeal Panel erred in law by failing to show a documented break and/or breach in training in the applicant's service record during his enlistment with the Royal Canadian Navy, May 8, 1964 to July 2, 1974 inclusive.
[23] The applicant argues that the Appeal Panel erred in law by not resolving any doubt in his favour as required by section 39 of the Veterans Review and Appeal Board Act, supra, given the lack of contradictory medical evidence, the letters by Drs. G. D. Douglas, W. M. Fitch and R.C. Poblete, and the statements that the applicant's current condition "could have so developed during his period of service" and that "aggravation of his condition due to service is likely".
[24] The applicant submits that the Appeal Panel ignored procedural fairness by failing to take note that he was not informed of his medical condition or associated symptoms prior to his release from the military in 1974.
[25] Relying on Blencoe v. British Columbia (Human Rights Commission), [1998] B.C.J. No. 320 (S.C.)(QL), the applicant states that there was excessive delay in providing him a decision, which is contrary to the interests of justice. This matter, states the applicant, has been unjustly prolonged over nine years. As a result, the applicant submits, his family has suffered financial hardship.
[26] The applicant submits that the Appeal Panel breached the principles of procedural fairness by selectively quoting from the supporting documentation rather than reviewing the evidence objectively with a concern about equity and providing justice to the applicant: Teubert v. Canada (Attorney General) (2002), 220 F.T.R. 151, 2002 FCT 634.
[27] As was found in John Doe v. Canada (Attorney General), [2002] F.C.J. No. 157 (QL), 2002 FCT 106, the applicant argues that the Appeal Panel made a patently unreasonable error in light of the facts before them by ignoring uncontradicted medical evidence.
[28] Relying on King v. Canada (Veterans Review and Appeal Board) (2001), 205 F.T.R. 204, 2001 FCT 535, the applicant argues that the Appeal Panel applied the wrong legal test in denying him pension entitlement. The applicant relies on paragraph 21(1)(a) of the Pension Act, supra, which states that "any injury or disease incurred during an applicant's military service is pensionable".
[29] Furthermore, the applicant argues the Appeal Panel erred in law by failingly to expressly deal with the evidence from which inferences favourable to him might have been drawn, by requiring a much greater standard of proof than 'the balance of probabilities'.
[30] The applicant argues that the Appeal Panel acted without jurisdiction and beyond its jurisdiction, contrary to paragraph 18.1(4)(a) of the Federal Courts Act, supra.
[31] The applicant submits that the Appeal Panel based its decision on an erroneous finding of fact that it made in a perverse or capricious manner and without regard to the material before it, contrary to paragraph 18.1(4)(d) of the Federal Courts Act, supra.
[32] The applicant also argues that the Appeal Panel erred in law in that it acted in a way that was otherwise contrary to law, in violation of paragraph 18.1(4)(f) of the Federal Courts Act, supra.
Respondent's Submissions
[33] The respondent submits that the standard of review by this Court on judicial review of a tribunal such as the Appeal Panel is limited to an error of law, an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it, or a finding that the tribunal acted outside its jurisdiction. The respondent emphasizes that a judicial review is not a rehearing on the merits of the applicant's pension entitlement or an opportunity for this Court to substitute its opinion for that of the Appeal Panel.
[34] Section 31 of the Veterans Review and Appeal Board Act, supra, the respondent submits, is a privative clause that protects the Appeal Panel's decision from review unless it cannot be sustained on any reasonable interpretation of the facts or of the law: Ballingall v. Canada (Minister of Veterans Affairs), [1994] F.C.J. No. 461 (T.D.)(QL).
[35] The respondent argues that the Appeal Panel properly interpreted section 21 of the Pension Act, supra, which draws a distinction between wartime and peacetime service and the pensionable benefits that flow from each kind of service. Whereas members who become disabled during wartime are provided with pension benefits regardless of the cause of their disability, peacetime benefits pursuant to subsection 21(2) of the Pension Act, supra, are more restricted. Members who are disabled during peacetime must establish a causal connection between their service and their disability.
[36] The respondent emphasizes that although a liberal interpretation should be given to benefits under subsection 21(2) of the Pension Act, supra, it should not be so liberal as to undermine the clear distinction intended by the legislative drafters between subsection 21(1) wartime benefits and subsection 21(2) peacetime benefits.
[37] Citing Hunt v. Canada (Minister of Veterans Affairs), [1998] F.C.J. No. 377 (T.D.) (QL), aff'd [1999] F.C.J. No. 1601 (C.A.) (QL), the respondent submits that the applicant bears the onus of meeting the civil standard of proof when advancing a claim for pension entitlement, with the qualifier that any credible evidence that favours the claim must be viewed in the best light possible.
[38] The respondent submits that no causal link existed between the applicant's service and his condition, meaning that according to cases such as Elliot v. Canada (Attorney General), [2002] F.C.J. No. 1264 (QL), 2002 FCT 972, aff'd 2003 FCA 298, 307 N.R. 344 and Hall v. Canada (Attorney General), [1998] F.C.J. No. 890 (T.D.) (QL), aff'd [1999] F.C.J. No. 1800 (C.A.) (QL), his claim for pension benefits must fail. The Board was unconvinced that a causal link existed even after reviewing the medical evidence of Drs. Poblete, Fitch and Douglas.
[39] The respondent states that the weight to be given evidence must be left to the Appeal Panel, and that evidence offered by an applicant need not be automatically accepted - it must be credible and reasonable: Tonner v. Canada, [1995] F.C.J. No. 550 (T.D.) (QL), aff'd [1996] F.C.J. No. 825 (C.A.) (QL). The respondent submits that the Appeal Board's treatment of the evidence in this case does not provide any basis for the intervention of this Court. Although the medical evidence established the applicant's disability, it did not prove medical negligence by the military or that the disability arose out of or was directly connected with his military service.
[40] The respondent submits that the Board was correct in their examination of the medical evidence and their findings regarding causation.
[41] The respondent submits that the Appeal Panel discharged its statutory obligations in applying sections and 39 of the Veterans Review and Appeal Board Act, supra, which requires every reasonable inference to be drawn in favour of the applicant, for any uncontradicted evidence considered credible to be accepted, and for the applicant to be given the benefit of the doubt in weighing the evidence as to whether a case has been established.
[42] The respondent submits that the Appeal Panel is not required to have contradictory medical evidence before it in order to question the accuracy of conclusions drawn by medical practitioners.
[43] Even applying these statutory obligations, the respondent argues, the applicant in this case was unable to meet the onus of proving his claim on a balance of probabilities. As such, the evidence before the Appeal Panel did not support a finding of entitlement to pension benefits.
[44] The respondent requests that this application be dismissed with costs.
Issues
[45] The essential issues to be resolved on this application are:
1. What is the applicable standard of review?
2. Did the Appeal Panel violate the duty of procedural fairness owed to the applicant?
3. Does the Appeal Panel's decision otherwise contain any reviewable error?
Legislative Framework
[46] The Pension Act, supra, must be liberally construed and interpreted contextually. Section 2 states:
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2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
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2. Les dispositions de la présente loi s'interprètent d'une façon libérale afin de donner effet à l'obligation reconnue du peuple canadien et du gouvernement du Canada d'indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge.
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[47] The Pension Act, supra, draws a distinction between pension entitlement for disabilities incurred during wartime and peacetime. The applicant's claim for benefits was based on subsection 21(2) of the Pension Act, supra, relating to peacetime service, which provides:
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(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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(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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(2.1) Where a pension is awarded in respect of a disability resulting from the aggravation of an injury or disease, only that fraction of the total disability, measured in fifths, that represents the extent to which the injury or disease was aggravated is pensionable.
(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;
(b) any activity incidental to or directly connected with an activity described in paragraph (a), including the transportation of the member by any means between the place the member normally performed duties and the place of that activity;
(c) the transportation of the member, in the course of duties, in a military vessel, vehicle or aircraft or by any means of transportation authorized by a military authority, or any act done or action taken by the member or any other person that was incidental to or directly connected with that transportation;
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(2.1) En cas d'invalidité résultant de l'aggravation d'une blessure ou maladie, seule la fraction - calculée en cinquièmes - du degré total d'invalidité qui représente l'aggravation peut donner droit à une pension.
(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;
b) d'une activité accessoire ou se rattachant directement à une activité visée à l'alinéa a), y compris le transport du membre des forces par quelque moyen que ce soit entre le lieu où il exerçait normalement ses fonctions et le lieu de cette activité;
c) soit du transport du membre des forces, à l'occasion de ses fonctions, dans un bâtiment, véhicule ou aéronef militaire ou par quelque autre moyen de transport autorisé par une autorité militaire, soit d'un acte fait ou d'une mesure prise par le membre des forces ou une autre personne lorsque cet acte ou cette mesure était accessoire ou se rattachait directement à ce transport;
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(d) the transportation of the member while on authorized leave by any means authorized by a military authority, other than public transportation, between the place the member normally performed duties and the place at which the member was to take leave or a place at which public transportation was available;
(e) service in an area in which the prevalence of the disease contracted by the member, or that aggravated an existing disease or injury of the member, constituted a health hazard to persons in that area;
(f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; and
(g) the performance by the member of any duties that exposed the member to an environmental hazard that might reasonably have caused the disease or injury or the aggravation thereof.
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d) du transport du membre des forces au cours d'une permission par quelque moyen autorisé par une autorité militaire, autre qu'un moyen de transport public, entre le lieu où il exerçait normalement ses fonctions et soit le lieu où il devait passer son congé, soit un lieu où un moyen de transport public était disponible;
e) du service dans une zone où la fréquence des cas de la maladie contractée par le membre des forces ou qui a aggravé une maladie ou blessure dont souffrait déjà le membre des forces, constituait un risque pour la santé des personnes se trouvant dans cette zone;
f) d'une opération, d'un entraînement ou d'une activité administrative militaires, soit par suite d'un ordre précis, soit par suite d'usages ou pratiques militaires établis, que l'omission d'accomplir l'acte qui a entraîné la maladie ou la blessure ou son aggravation eût entraîné ou non des mesures disciplinaires contre le membre des forces;
g) de l'exercice, par le membre des forces, de fonctions qui ont exposé celui-ci à des risques découlant de l'environnement qui auraient raisonnablement pu causer la maladie ou la blessure ou son aggravation.
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[48] The Veterans Review and Appeal Board Act, supra, is also relevant to this application. Sections 3, 31 and 39 state:
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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.
31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.
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.
31. La décision de la majorité des membres du comité d'appel vaut décision du Tribunal; elle est définitive et exécutoire.
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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[49] The applicant relies on subsections 18.1(3) and (4) of the Federal Courts Act, supra, which provide as follows:
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18.1(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
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(3) Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut:
a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
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Analysis and Decision
[50] Issue 1
What is the applicable standard of review?
The Appeal Panel decided that the applicant had not established the required causal connection between military service and his condition and there was no credible evidence to support the allegation of medical negligence. I would note that although the Appeal Panel does not have expertise in medical matters, weighing evidence and issues of credibility are within its domain and should be afforded considerable deference: MacNeill v. Canada, [1998] F.C.J. No. 1115 (T.D.) (QL), 151 F.T.R. 121, at paragraph 22.
[51] In McTague v. Canada (Attorney General), [1999] F.C.J. No. 1559 (T.D.) (QL), 177 F.T.R. 5, Evans J. (as he then was) stated at paragraphs 46 and 47:
. . . I should note that it is well established in this Court that the less demanding 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.) [page667]; 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.).
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.
I am therefore of the view that the standard of patent unreasonableness is to be applied to an entitlement decision of the Appeal Panel.
[52] I wish to next deal with Issue 3.
[53] Issue 3
Does the Appeal Panel's decision otherwise contain any reviewable error?
After serving in the militia during the early 1960s, the applicant joined the Royal Canadian Navy on May 8, 1964 and served until July 2, 1974. At the time he enlisted, he was a healthy person with no known heart or blood pressure problems. In 1971, he was diagnosed with high blood pressure, mononucleosis and hepatitis. As well, an electrocardiogram was done on August 31, 1971 which was very abnormal with complete right bundle branch block and left anterior fascicular block. The applicant was not told of the result of his electrocardiogram and this was only discovered when his current physician, Dr. Douglas, asked for and reviewed his medical files from his service years.
[54] For ease of reference, I will repeat sections 3 and 39 of the Veterans Review and Appeal Board Act, supra:
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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.
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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.
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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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[55] The applicant has submitted that the Appeal Panel applied the wrong legal test, failed to afford him the benefits under sections 3 and 39 of the Veterans Review and Appeal Board Act, supra, ignored uncontradicted medical evidence that linked his disability to his military service and applied a much higher standard of proof than the "balance of probabilities".
[56] Tremblay-Lamer J. of this Court addressed the application of sections 3 and 39 of the Veterans Review and Appeal Board Act, supra, in Woo Estate v. Canada (Attorney General), [2002] F.C.J. No. 1690 (QL), 2002 FCT 1233 at paragraph 60:
This Court has held that notwithstanding sections 3 and 39 of the Act, an applicant still bears the onus of providing credible, reasonable evidence to establish her claim. In Hall v. Canada (Attorney General), [1998] F.C.J. No. 890, Reed J. held at para. 19:
While the applicant correctly asserts that uncontradicted evidence by him should be accepted unless a lack of credibility finding is made, and that every reasonable inference should be drawn, and any reasonable doubt resolved in his favour, he still has the obligation to demonstrate that the medical difficulty from which he now suffers arouse out of or in connection with his military service; that is, the causal linkage must be established. [My emphasis.]
[57] In Hunt v. Canada (Minister of Veterans Affairs) (1998), 145 F.T.R. 96 (T.D.), aff'd (1999), 249 N.R. 137 (F.C.A.), Muldoon J. held in paragraph 9, that the burden of proof that is on the applicant to establish pension entitlement is as follows:
Although section 39 of the Veteran's Appeal and Review Tribunal Act requires that the board accept uncontradicted evidence, this evidence must be credible. The applicant must prove the civil standard that on a balance of probabilities, with the bonus of having this evidence put in the best light possible, his disease was contracted while in the service of his country. This civil standard must be read in concert with the entitling provision of section 21 of the Pension Act, . . .
[58] As part of his evidence, the applicant submitted the medical report of his current heart specialist, Dr. Douglas. That report, along with a second report in the form of a note placed on the report is reproduced in full:
G. David Douglas, M.D., F.R.C.P.(C)
The Moncton Hospital
135 MacBeath Avenue
Moncton, NB E1C 6Z8
FAX & TELEPHONE: 506-857-2075
July 4, 2000
L. Jean Saint-Pierre
District Pensions Advocate
PO Box 1406
Saint John, NB E2L 4J7
Dear Sir or Madam:
RE: Donald COMEAU
Mr. Comeau is well known to me, having treated him for dilated cardiomyopathy for the last several years. He has asked me to review his medical file while in the services to see if there is anything which might indicate the onset of cardiomyopathy at this time.
Mr. Comeau's cardiomyopathy is not the result of stress, though stress could aggravate and worsen control of his congestive heart failure.
The only thing I find of significance in Mr. Comeau's medical file dates back to 12/10/71 when he was investigated for high blood pressure and liver function abnormalities with systemic fatigue. At that point in time his liver was described as being 1 or 2 cm. enlarged and questioned the tip of his spleen being palpable, and a positive mono test was found. A chest x-ray done at that point in time found a normal heart size, but an electrocardiogram was done 31/8/71 which was very abnormal with complete right bundle branch block and left anterior fascicular block.
Clearly his electrocardiogram was very abnormal back in 1971 in proximity to some hepatopathy, at a time when there was no ingestion of alcohol of significance. A mono test was positive. While this does not prove the onset of his cardiomyopathy was at this time, it is suggestive of this possibility in as much as he had marked electrocardiographic abnormalities with a normal chest x-ray and, in recent years, progressive cardiomegaly with similar ECG findings as years ago. While this shouldn't be mononucleosis, certainly sarcoidosis would be one possible etiology, among other things.
In short, there is evidence to suggest the possibility of the development of cardiac abnormalities during the period of his service.
I do not wish the patient to be responsible for any costs in the preparation of this brief narrative, but would appreciate your consideration if applicable.
Yours sincerely,
G. D. Douglas, MD, FRCPC
/as
C: Mr. Donald Comeau
115 Sussex Avenue
Riverview, NB E1B 3A3
Sept 21/00
Dear Sir,
If Mr. Comeau did develop the beginning of his problems during his service, aggravation of his condition due to service is likely, given his present state of health.
My review shows there is evidence to suggest the possibility it could have so developed, during his period of service.
"G. D. Douglas, MD, FRCP(C)"
Fee $100
[59] The Appeal Panel's decision reads in part as follows:
The Board has carefully reviewed the medical opinions on the file. The relevant provision of the Pension Act in this case is subsection 21(2) which requires for pension entitlement that an injury or disease have arisen out of or be directly connected with the service. Subsection 21(2) which governs pension awards for peacetime service is accepted, including by the Federal Court, as requiring a causal connection between a condition and the service. It is therefore different from subsection 21(1) of the Act which concerns service in wartime or on peacekeeping operations and which allows for pension entitlement based on the timing of the onset of a condition as well as on causation by the Appellant's service.
The Federal Court has required that the Board comment on the credibility of the medical opinions before it. Therefore the Board must state that it does not find any of the medical reports on the file to be persuasive or credible enough to justify the award of a pension in this case. The Board notes that it is not permitted simply to adopt a physician's apparent conclusion with regard to causation as its own but must exercise its own discretion and fulfil its duty to examine all the circumstances, form an opinion as to the credibility of the medical evidence, and then arrive at a decision in which, all necessary inferences having been drawn, the benefit of doubt is provided to the Appellant.
Although Dr. Douglas writes of service as a cause of an aggravation of the Appellant's condition, it is apparent to the Board that he is using the concept of causation in a different way than the Board normally does. He appears to be stating that because the Appellant's claimed condition arose during his service it was therefore causally related to the service. The Board, however, views the condition as having arisen during service but not caused by it. The fact that the service was concurrent with the development or manifestation of the condition does not lead to the conclusion that the service caused the condition even with the full application of sections 3 and 39 of the Veterans Review and Appeal Board Act which requires the drawing of all reasonable inferences from the evidence presented and the application of the benefit of the doubt in the determination of whether or not the Appellant has established a case.
[60] The Appeal Panel, in its decision, found that the applicant's condition arose during his service.
[61] The Appeal Panel appears to have merely stated that it did not find any of the medical reports on file to be persuasive or credible enough to justify the award of a pension in this case. There is no doubt that the Appeal Panel can comment on credibility, but in my view, the Appeal Panel must explain why it finds a medical report to lack credibility. In the present case, there is the uncontroverted evidence of Dr. Douglas who is an expert in this field, that, "If Mr. Comeau did develop the beginning of his problems during his service, aggravation of his condition due to service is likely given his present state of health." The qualifying "if" in Dr. Douglas' report has been removed by the Appeal Panel finding that the applicant's condition arose during his service. The Appeal Panel has given no reason why this evidence of Dr. Douglas was found to be not credible, but just the bald statement that it was not credible.
[62] In my view, it was patently unreasonable for the Appeal Panel to conclude that Dr. Douglas' reports were not credible without giving any reasons for the finding. I wish to point out that I do recognize that the Appeal Panel did state that the medical evidence provided by Dr. Douglas was speculative but this was in relation to his evidence regarding medical mismanagement. Furthermore, the Appeal Panel did not state why it considered this evidence to be speculative.
[63] Because of my finding on this matter, I need not deal with the other issues raised by the applicant.
[64] The applicant's application for judicial review is allowed and the matter is referred to a different appeal panel for re-hearing.
[65] The applicant shall have his costs of this application.
[66] I am not prepared to grant the other forms of relief requested by the applicant.
ORDER
[67] IT IS ORDERED that:
1. The applicant's application for judicial review is allowed and the matter is referred to a different appeal panel for re-hearing.
2. The applicant shall have his costs of this application.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
August 9, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-222-03
STYLE OF CAUSE: DONALD E. COMEAU
- and -
THE ATTORNEY GENERAL FOR CANADA
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: February 17, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: August 9, 2004
APPEARANCES:
Donald E. Comeau, Self-Represented
FOR APPLICANT
Melissa Cameron
FOR RESPONDENT
SOLICITORS OF RECORD:
Donald E. Comeau
Riverview, New Brunswick
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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