Martel v. Canada (Attorney General), 2004 FC 1287

Date: 20040921

Docket: T-1131-03

Citation: 2004 FC 1287

Ottawa, Ontario, this 21^st day of September, 2004

Present:           The Honourable Justice James Russell                                

BETWEEN:

                                                                JEAN MARTEL

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision of the Veteran's Review and Appeal Board ("VRAB") of May 23, 2003 ("Decision"), made in the course of a reconsideration of an earlier decision dated May 25, 2000 in which Mr. Jean Martel ("Applicant") was denied full entitlement to a disability pension for an injury to his right knee. In its decision of May 25, 2000, the VRAB granted the Applicant an award of three-fifths of the overall disability for that part of the disability or aggravation that arose out of, or was directly connected with, military service in peace time pursuant to ss. 21(2) of the Pension Act, R.S.C. 1985, chap. P-6 ("Pension Act").

BACKGROUND

Service History: January 1979 to September 25, 1997

[2]                The Applicant was a member of the Canadian Armed Forces from 1979 to 1997. His service included postings at Petawawa, British Columbia, Ottawa and Israel.

[3]                From 1982 to 1987, he was a member of the 764 Communications Squadron and participated in a compulsory physical fitness program called the General Wylie Award Program. Under this program, members had to sign up for certain authorized activities, such as cross-country skiing and squash, in order to maintain an acceptable level of fitness and accumulate qualifying points towards certification in the program. When members engaged in these activities, they were considered to be "on duty." The General Wylie Award Program is recognized as a component of the Canadian Forces Expres Plan ("CF Expres Plan"), which is the physical fitness program that is a mandatory military requirement for members of the armed forces.

The Injuries - 1985, 1990 and 1995

[4]                On or about December 29, 1985, while cross-country skiing, the Applicant sustained an injury to his right knee and underwent surgery for an anterior cruciate ligament ("ACL") tear repair on December 31, 1985.

[5]                After the surgery, the Applicant was off on sick leave for two and a half months. He was then required to follow a treatment plan that included a cast for 5 months, physiotherapy for over 12 months, and personalized individual home exercises. He was told to follow-up with his treating physician, Dr. Smallman, every 6 months or so for 2 to 3 years.

[6]                On September 23, 1986, Dr. Smallman recommended that the Applicant not participate in the Junior Leader's Course until the Spring.

[7]                Notwithstanding Dr. Smallman's recommendation, the Applicant was sent to the Combat Leader's Course, which is the equivalent of the Junior Leader's Course, effective January 1987 and there he participated in extensive combat training for a period of 12 weeks.

[8]                This extensive combat training was contrary to the recommendations of the Applicant's treating physician who had recommended placing the Applicant on a temporary category to allow him time to rehabilitate. In his report of April 30, 1987, Dr. Smallman acknowledged that the Applicant had some problems at the end of his training course from January to March 1987. Dr. Smallman also indicated in this report that the Applicant was not fully rehabilitated and should have been given a temporary category and allowed to "train for the next several months even up to a year in order to get himself back to optimal physical condition."

[9]                In June 1987, the Applicant was assigned a temporary medical category for 6 months of light duties and access to medical care.

[10]            Despite these medical restrictions, effective August 1987, the Applicant was transferred to Petawawa and participated in full field exercises for the next 3 years without accommodation for his medical conditions.

[11]            On April 7, 1990, the Applicant re-injured his knee during a non-service related activity for which he sustained arthroscopic surgery with ACL reconstruction.

[12]            On January 27, 1995 the Applicant sustained an injury to his left shoulder while participating in a fitness registered skiing activity.

The Claim

[13]            On April 24, 1998, the Applicant filed a First Application for pension entitlement for injuries he had suffered to his right knee and left shoulder pursuant to s. 21(2) of the Pension Act. Specifically, the claims were for "Torn Cruciate Ligament Right Knee (Operated) leading to Post Traumatic Arthritis and Impingement Syndrome and Bursitis Left Shoulder/Tendonitis Rotator Cuff Left Shoulder."

[14]            On or about October 29, 1998, the Department of Veterans Affairs ("Department") ruled on the Applicant's application for disability. The Department denied his claim for the right knee injury on the basis that it was not pensionable under ss. 21(2) of the Pension Act. According to the Department, he did not sustain the injury while "on duty." As for the injury to his shoulder, the Department ruled that he was entitled to a disability pension, effective April 29, 1998 for this injury and that his disability was assessed at 10%.

[15]            In the Department's October 29, 1998 ruling, the Applicant was denied a disability pension for his right knee on the basis that there "was no documented evidence to establish that his right knee injury arose out of or was caused by or permanently aggravated by his military service."

[16]            On or about January 27, 1999, the Applicant submitted additional evidence to the VRAB to contest the Department's denial of his entitlement to a disability pension for his right knee. In its Entitlement Review decision of March 18, 1999, the VRAB confirmed its entitlement ruling and concluded that the injury to the Applicant's right knee "did not arise out of nor was it directly connected with service in peace time."

[17]            On May 25, 2000, the Applicant, through his then representative, presented new evidence before the VRAB for the Entitlement Appeal hearing which was held in Charlottetown, Prince Edward Island. Relying in part of this new evidence, the VRAB ruled that the skiing injury which the Applicant sustained to his right knee on December 29, 1985 "resulted in a major cause of the claimed condition" and awarded "an aggravation award of three-fifths, for that part of the disability that arose out of, or was directly connected" with the Applicant's military service in peacetime. The VRAB withheld two-fifths pension entitlement on the basis of the injury of April 6, 1990, which it ruled was not service related. The percentage of a condition that is related to military service is usually expressed in terms of fifths and the subsequent assessment of the degree of this disability is expressed in percentages from 0 to 100%.

[18]            On August 22, 2000, the Department assigned a conditional assessment of 10% to the Applicant's right knee disability. As a result of the VRAB's decisions relating to the Applicant's entitlement and the assessment by the Department of the degree of his disability, the Applicant's pensionable assessment for his knee is 6% (3/5 x 10%).

[19]            On April 4, 2003, the Assessment Review Panel in Ottawa, Ontario increased the conditional assessment of 10% for the Applicant's knee disability to 20% retroactive to September 26, 1997. In its assessment of the degree of the Applicant's disability, the VRAB considered and accepted the medical report of Dr. Michel Petit, psychiatrist, dated March 28, 2002.

[20]            On February 27, 2003, the Applicant filed a reconsideration application before the VRAB, requesting the VRAB to reconsider its decision of May 25, 2000 in which he had been awarded three-fifths entitlement for his knee injury. For the purposes of this reconsideration application, the Applicant submitted the same medical report from Dr. Michel Petit, dated March 28, 2002 as he had submitted in support of the appeal of the conditional assessment of his knee disability.

[21]            In his report, which is specifically referred to by the VRAB, Dr. Petit concluded that there was a link between the two injuries in 1985 and in 1990 in that the Applicant's knee had not been properly healed or rehabilitated by the time the second injury occurred. This created a predisposition to re-injury. The VRAB rejected this conclusion stating that there was no evidence to suggest that the rehabilitation of the knee had been anything but normal.

[22]            Dr. Petit concluded that the second blow sustained by the Applicant to his right knee would not have resulted in such a serious tear injury had the Applicant's knee been fully rehabilitated. Dr. Petit relied on several factors in arriving at this conclusion, including the following:

(a)             During the post-operative consultations, Dr. Smallman, realizing the Applicant's knee had not fully rehabilitated, had recommended that the Applicant not be assigned to a field position for up to one year and that he be assigned a temporary category for that purpose;

(b)            The Applicant was assigned a temporary category but the restrictions were not sufficient in that they should have been more specific regarding activities such as running, standing still, sports involving pivoting, etc. The temporary category assigned did not specify that the Applicant was not to engage in field exercises as Dr. Smallman had recommended;

(c)             The Applicant was transferred to Petawawa where he was required to engage in full field exercises;

(d)            Despite the fact that the Applicant had access to physiotherapy, this treatment was sporadic due to the nature and requirements of the field exercises and training.

DECISION UNDER REVIEW

[23]            In its Decision dated May 23, 2003, the VRAB confirmed its prior decision and upheld the award of a three-fifths entitlement for the Applicant's knee injury and rejected the evidence of Dr. Petit on the basis that it had no evidence to suggest that the rehabilitation of the Applicant's knee had been anything but normal.

PERTINENT LEGISLATION

[24]            Any application for a pension under the Pension Act involves answering two questions:

(1) Is the Applicant entitled to a pension?; and

(2) If entitled, what is the assessment (expressed as a percentage of the extent of disability resulting from the injury in light of the Table of Disabilities and Schedule A to the Pension Act)?

[25]            First level decisions are rendered by adjudicators within the Department, who review and adjudicate on written applications. Based upon information provided in the application and in an applicant's military medical documentation, the adjudicator renders a decision on various issues surrounding entitlement to pension, and the extent of disability resulting from any disability thus found to be pensionable.

[26]            Where an applicant is dissatisfied with the adjudicator's decision, he or she is entitled to have that decision reviewed by way of a full hearing by a review panel of the VRAB, in accordance with s. 84 of the Pension Act. The applicant may be represented, as was the case here, and may present oral testimony or produce witnesses.

[27]            Even after a review panel releases its decision, under s. 23 of the Veterans Review and Appeal Board Act ("Appeal Board Act") the panel may re-open the matter on its own motion if it determines that an error was made with respect to any finding of fact or the interpretation of any law. The VRAB is permitted to reconsider its own decisions, and may either confirm a decision, or amend or rescind a decision if it determines that an error was made.

[28]            Where an applicant is dissatisfied with a decision rendered by a review panel, the applicant may appeal. A full hearing is provided with opportunity to be represented and to present documentary evidence and make argument, but no oral evidence is admissible on an appeal.

[29]            By s. 31 of the Appeal Board Act, a decision of an appeal panel is final and binding. However, an appeal panel is permitted to re-open and reconsider its decision pursuant to s. 32(1) of the Appeal Board Act where the appellant has new evidence, or if the panel determines on its own motion, or it is alleged by any person, that an error was made with respect to any finding of fact or the interpretation of any law. On reconsideration, the appeal panel may confirm, amend or rescind its original decision.

[30]            Section 32(1) of the Appeal Board Act sets up an extraordinary remedy. It is not simply another level of appeal. This reconsideration jurisdiction allows the appeal panel to re-visit its own appeal decision and ask itself whether, in light of new evidence or legal argument, its own previous decision would have been different had it had the benefit of that material when it made the original decision.

ISSUES

[31]            The Applicant raises the following issues:

What is the applicable standard of review?

Did the VRAB err in law by basing its Decision on a patently unreasonable finding, namely that the Applicant was not entitled to full disability pension?

Did the VRAB err in law by not accepting the uncontradicted medical evidence presented by the Applicant and by failing to draw from the evidence every reasonable inference in favour of the Applicant?

Did the VRAB err in law by not applying the proper test for reconsideration?

ARGUMENTS                      

Applicant

Standard of Review

[32]            Except with respect to errors of jurisdiction, the Applicant says that the appropriate standard of review in this case is that of patent unreasonableness. Accordingly, the Court's intervention is warranted if the Applicant succeeds in establishing that the Decision contains an error of law or is so unreasonable, arbitrary or absurd that it was made in disregard of the material before it (UES, Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 at 1086 per Beetz, J.; MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (T.D.); Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (T.D.); Hunt v. Canada (Minister of Veterans Affairs), [1998] F.C.J. No. 377 (T.D.)).

[33]            An administrative tribunal loses jurisdiction only if it acts in a patently unreasonable manner. Where, however, the issue is a breach of a legislative provision limiting a board's power, "a mere error will cause it to lose jurisdiction" (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Pezim v. British Columbia (Securities Commission), [1994] 2 S.C.R. 557).

Jurisdictional Errors

[34]            The Applicant submits that the VRAB committed a jurisdictional error when it failed to draw from the evidence every reasonable inference in favour of the Applicant and failed to accept uncontradicted evidence, contrary to ss. 3 and 39 of the Appeal Board Act and in a manner that is inconsistent with ss. 2 and 21 of the Pension Act.

[35]            Section 3 of the Appeal Board Act mandates that its provisions are to be liberally construed and interpreted in favour of an applicant. Subsection 39(b) of the Appeal Board Act states that the VRAB shall accept any uncontradicted evidence presented to it by an applicant that it considers to be credible in the circumstances. Subsections 39(a) and (c) state that the VRAB must draw every reasonable inference in favour of an applicant, and resolve any doubt in favour of an applicant.

[36]            The effect of s. 39 of the Appeal Board Act is to give claimants the benefit of any reasonable doubt:

While paragraphs (a), (b) and (c) of this section [39] may not create a reverse onus by requiring the respondent to establish that a veteran's injury or medical condition was not attributable to military service, they go a considerable way in this direction by requiring, in effect, that claimants be given the benefit of any reasonable doubt.

Metcalfe v. Canada (Attorney General), [1999] F.C.J. No. 22 (T.D.) at para. 17.

[37]            The entitlement to a disability pension arises out of the provisions of ss. 2 and 21 of the Pension Act:

[38]            In its Decision of May 25, 2000, the VRAB stated as follows:

The Board, based on a review of all the evidence in its entirety, has concluded that the skiing injury incurred on December 29, 1985, resulted in a major cause of the claimed condition and will rule to award an aggravation award of three-fifths, for that part of the disability that arose out of, or was directly connected with the Appellant's military service in peacetime. The Board withholds two fifths pension entitlement on the basis of the injury of 6 April 1990 which was not service related.

The Board committed a jurisdictional error

[39]            The Applicant says that he tendered uncontradicted medical evidence that established a direct link between the first injury sustained on December 1985 and the injury he sustained in April 1990. According to the evidence of Dr. Petit, the Applicant's knee had not been satisfactorily/optimally rehabilitated such that the second injury, albeit more moderate in nature, was just as traumatic and severe as the first one due to the pre-disposition to injury of the Applicant's right knee.

[40]            In accordance with s. 39 of the Appeal Board Act, the Applicant says that the VRAB must accept any uncontradicted evidence presented by the Applicant that it considers to be credible in the circumstances. Section 39 requires that uncontradicted and credible evidence should be accepted as determinative of the issue. In light of the fact that the VRAB deemed the evidence of Dr. Petit to be credible in the context of the assessment of disability, the Applicant says the VRAB cannot ignore or set aside this same evidence in the absence of contradictory evidence or a negative finding as to its credibility (Re Hornby, [1993] F.C.J. No. 431 (T.D.); King v. Canada (Veterans Review and Appeal Board), [1997] F.C.J. No. 1517 (T.D.); Moar v. Canada (Attorney General), [2001] F.C.J. No. 1555 (T.D.); Rivard v. Canada (Attorney General), [2001] F.C.J. No. 1072 (T.D.); Mackay v. Canada (Attorney General), [1997] F.C.J. No. 495 (T.D.)).

[41]            If the evidence is uncontradicted and is considered credible, the VRAB must accept it. This point was confirmed in Wood, by Mackay. J. at para. 28:

The Board may reject the applicant's evidence when it has before it contradictory medical evidence. However, while there may be an absence of evidence in the form of definitive medical documentation about the injury claimed, where there is no contradictory evidence and the Board does not accept the Applicant's evidence without explanation of that, it commits an error that goes to jurisdiction ...A decision of the Board that errs in the exercise of its jurisdiction, is unreasonable and warrants intervention by the Court. The standard of patent unreasonableness, is not apt if the error concerns the exercise of the Board's jurisdiction.

[42]            If the VRAB found the evidence of Dr. Petit to be lacking in credibility, it should have said so and given its reasons. In this case, the VRAB made no such finding other than to say that it had no evidence that the Applicant's knee injury had been anything but normal. By failing to make such a finding with reasons, the Applicant says that the Decision was made in excess of jurisdiction and ought to be set aside.

[43]            In its reconsideration Decision of May 23, 2003, the VRAB referred to and relied upon the report of Dr. Smallman, dated April 30, 1987, in which he stated that the Applicant had difficulties in the training career course and that he "has had reasonable result thus far." In confirming the Decision and denying the Applicant full entitlement to a disability pension, the VRAB relied on that part of Dr. Smallman's report and on the fact that there was no evidence in the file of any complaint by the Applicant regarding this injury between the accident in 1985 and the 1990 injury.

[44]            The Applicant says that the VRAB failed to fully consider Dr. Smallman's report of April 30, 1987. In that report, Dr. Smallman comments on the Applicant's progress following "primary repair of his anterior cruciate ligament," namely the Applicant's surgery of December 1985 when he says that he "has had a reasonable result thus far." However, Dr. Smallman goes on to state that the Applicant is not fully rehabilitated and should be assigned a temporary medical category.

[45]            The Applicant says that, to the extent that Dr. Smallman's report recommended assigning a temporary medical category to the Applicant in order to "get himself back to optimal physical condition," it is consistent with that of Dr. Petit and supports the Applicant's claim for a full disability pension.

[46]            The Applicant points out that Dr. Petit's report is the only medical evidence that was before the VRAB that related to the issue of the causal link between his two injuries and his disability. There is no second medical opinion contradicting Dr. Petit's opinion and nor did the VRAB make any finding as to the credibility of Dr. Petit's evidence. In the absence of an adverse credibility finding, the VRAB should have accepted Dr. Petit's evidence. Its failure to do so is a jurisdictional error. The VRAB failed to exercise its duty to consider or reject evidence in light of its credibility and reasonableness (Moar v. Canada (Attorney General), [1995] F.C.J. No. 1555 (T.D.); Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (T.D.); Cundell v. Canada (Attorney General), [2000] F.C.J. No. 38 (T.D.); Brychka v. Canada (Attorney General), [1998] F.C.J. No. 124 (T.D.); Weare v. Canada (Attorney General), [1998] F.C.J. No. 1145 (T.D.)).

[47]            The issue in this case involves medical matters. The Appeal Board Act empowers the VRAB to obtain independent medical opinions relating to any matter before it. Accordingly, the VRAB should not be afforded the deference usually given to tribunals which, because of their particular nature, have special expertise. The VRAB in this case did not seek any independent medical opinion on the issue before it (Moar, supra; Mackay, supra; Brychka, supra; Veterans Review and Appeal Board Act, supra, s. 38).

[48]            The Applicant says that the VRAB did not analyse the prior decision nor the basis of Dr. Petit's opinion, and it did not state that Dr. Petit's opinion was not credible or reasonable. Dr. Petit is clear on the link between the first and second injuries to the Applicant's right knee and his disability.

[49]            Hence, the Applicant submits that the VRAB committed a jurisdictional error and acted contrary to ss. 3 and 39 of the Appeal Board Act when it failed to draw from the evidence every reasonable inference in his favour (Mackay,supra).

The Board's Decision is Patently Unreasonable

[50]            The Applicant also argues that the VRAB erred in law by basing its Decision on a patently unreasonable finding, namely that the Applicant was not entitled to a full disability pension.

[51]            In light of the evidence submitted by the Applicant and the statutory directions to the VRAB, it was not reasonable for the VRAB to conclude that the Applicant had not established that he was entitled to a full pension for his disability. In denying the Applicant a full pension, the VRAB did not draw every reasonable inference from the evidence in favour of the Applicant, did not accept as true, credible and trustworthy evidence produced by the Applicant and, in weighing the evidence, did not resolve any doubt in favour of the Applicant.

[52]            If a veteran suffers from a disability resulting from an injury or disease that arose out of, or was directly connected with, military service in peace time, a pension may be granted. Furthermore, if the initial injury or disease did not result in a disability, but rather resulted in a condition which then led to a disability, a pension may still be granted (MacDonald).

[53]            In this case, the Applicant sustained two injuries to his right knee within a period of 5 years. The Applicant's evidence demonstrated that at least 2 years after his first injury he was not fully rehabilitated. He was assigned to regular field exercises in spite of the fact that Dr. Smallman had recommended that he be "protected from a field posting," assigned a temporary category and "allowed to train for several months up to a year in order to get him back to optimal physical condition."

[54]            The VRAB concluded that it had no evidence indicating that the rehabilitation of the Applicant's injury had been anything but normal. But the Applicant says that the VRAB did have evidence of the fact that his medical restrictions had not been complied with as well as the evidence of Dr. Petit which concluded that the Applicant's knee was predisposed to re-injury as a result of the less than optimal rehabilitation. Despite this evidence, the VRAB concluded, on the basis of an absence of evidence, that the Applicant's rehabilitation was normal. The Applicant submits that this conclusion was patently unreasonable.

[55]            The VRAB found that the Applicant was entitled to an aggravation award for his first injury. The Applicant submits that an aggravation award, as contemplated by the Pension Act, relates to a pre-existing injury that was not service related and is aggravated through military service. In this case, the VRAB found that the Applicant's initial injury aggravated an injury which occurred subsequently. The VRAB relied specifically on the subsequent injury as the basis for withholding two fifths of the Applicant's entitlement to a full disability pension for his right knee. The Applicant submits that, in the absence of any evidence on the record to support a conclusion of aggravation of a non-service related pre-existing injury, the VRAB's Decision is patently unreasonable (Kozak v. Canada (Attorney General), [2002] F.C.J. No. 220 (T.D.)).

[56]            The Applicant points out that, under the Pension Act, once a veteran is found to have suffered a disability, he/she can apply to have the assessment of a disability pension reviewed in the event that it has worsened. In such assessments, the VRAB does not withhold any entitlement if the reason for which the disability has worsened is not related to military service (King; King v. Canada (Veterans Review and Appeal Board), [2001] F.C.J. No. 850 (T.D.)).

[57]            The Applicant further submits that when multiple conditions have overlapping effects, consideration must be given to ss. 21(5) of the Pension Act, which provides for additional pension benefits where an applicant suffers an additional disability that is in whole or in part a consequence of the pensionable injury or disease.

Reconsideration

[58]            While the VRAB does not have to make an explicit written finding on each element that leads to its ultimate conclusion, in the context of a reconsideration proceeding the VRAB has a duty to consider and weigh the evidence and to draw every reasonable inference in the Applicant's favour when new and credible evidence is presented (MacDonald).

[59]            The impugned Decision was a reconsideration of a previous VRAB decision. Under ss. 32(1) of the Appeal Board Act, the VRAB may reconsider an earlier decision on two broad grounds, namely: (i) on application for new evidence; or (ii) on application or on its own motion for errors in fact or law. While there is no definition of new evidence in the Appeal Board Act, s. 39 does establish general principles for how the VRAB is to dispose of evidence. In effect, s. 39 requires that, when new and credible evidence is presented during a reconsideration proceeding, the VRAB has a duty to consider and weigh the evidence in the Applicant's favour (Mackay).

[60]            The Applicant contends that the VRAB failed to properly apply the test for reconsideration of an earlier decision. Section 32 of the Appeal Board Act describes the reconsideration process. In this case, the VRAB simply disregarded the new evidence and confirmed the prior decision without explicitly citing an absence of errors in fact or law in its earlier decision. The VRAB appears to have concluded that, contrary to the factors set out in s. 32 of the Appeal Board Act, it could not review the earlier decision because the new evidence did not change or outweigh the medical evidence already considered. The Applicant submits that, in so concluding, the VRAB committed an error in law because it based its exercise of discretion to reconsider on an irrelevant consideration. In order for the VRAB to properly exercise its statutory mandate under s. 32, it must look to potential errors of fact or law in the earlier decision under reconsideration and examine its merits (Mackay; Dalton v. Criminal lnjuries Compensation Board (1982), 36 O.R. (2d) 394 at 397 (Ontario High Court Justice Div. Court.)).

[61]            Besides the jurisdictional and errors of law referenced above, the Applicant submits that the VRAB's application of an improper test under s. 32 of the Appeal Board Act is sufficient to warrant judicial review of the Decision.

Respondent

A Synopsis of the Evidence

[62]            The Respondent says that this application turns on a narrow compass of the evidence. The Applicant led evidence from Dr. Petit to the effect that there was a "direct relation between" the first incident and the second. Against this, there was also a report before the VRAB from Dr. Smallman, the Applicant's treating orthopedic surgeon, from April 1987, in which Dr. Smallman said, in relation to the primary repair of the Applicant's anterior cruciate ligament that "He has had a reasonable result thus far." There was also a later report of Dr. Smallman dated October 1, 1987, that said "This man has had an excellent result and is fully fit. He can be given a category of G202 and returned to all duties. I do not need to see him again unless he has problems." Also, in a report after his second knee injury in 1990, Dr. Marshall stated that the Applicant "had done well until 3 days prior to admission when he fell and developed some right knee pain." There is also the Operation Record of April 10, 1990, which described the surgery necessary after the second injury to the knee. This record indicated that the additional injury had provoked a tear of the medial meniscus.

[63]            In view of this and other material, the VRAB concluded that, notwithstanding Dr. Petit's thesis that there was a direct relation between the first injury and the second injury because there was a lack of optimal rehabilitation of the Applicant's knee, there was no proof that the knee's rehabilitation was anything other than normal.

[64]            The Respondent says that the VRAB had before it material that allowed it to make the following findings of fact:

The first injury to the knee was a tear to the anterior cruciate ligament, which criss-crosses the knee and holds the pieces together. That tear was repaired by an operation on 31 December 1985;

The Applicant was discharged, with a full leg cast. The cast was removed on 6 February 1986, and he then had a knee hing (sic) brace. The wound was well-healed and the suture removed;

Dr. Smallman reported on 30 April 1987 (about 16 months after the first injury), "He has had a reasonable result thus far." Dr. Smallman ordered that the Applicant be given a temporary category of G3T6 04T6 to allow him to train for several months, even up to a year in order to get himself back into optimal physical condition;

On June 3, 1987, Dr. Jawahir recommended that the Applicant be put on G304 (for six months). G3 held the requirement to seek medical care, but not necessarily a physician's services. G4 consisted of light duties, with no severe or prolonged stress;

Despite these medical restrictions, in August 1987 the Applicant continued to participate in full field exercises, without any accommodation for the medical restrictions;

The Applicant saw Dr. Smallman on 23 September 1986, who recommended that he not participate in the Junior Leader's Course until spring. Notwithstanding this, however, when Dr. Smallman saw the Applicant on 1 October 1987, Dr. Smallman reported that "This man has had an excellent result and is fully fit. He can be given a category of G202 and returned to all duties. I do not need to see him again unless he has problems";

Dr. Marshall stated that the Applicant "had done well until 3 days prior to admission when he fell and developed some right knee pain";

The evidence as to the cause of the Applicant falling to the ground was contradictory;

The second injury to the knee was a tear to the same anterior cruciate ligament, PLUS a fresh tear to the medial miniscus right around to the extreme posterior horn, which is a fleshy pad between the knee-bone, thus complicating the knee symptomatology and the degree of disability even further;

The Applicant injured his left shoulder in a skiing accident in April 1995;

Based on a history that Dr. Michel Petit took from the Applicant, the Applicant led evidence from Dr. Petit to the effect that there was a "direct relation between" the first injury and the second injury.

[65]            In view of this, the VRAB concluded that, notwithstanding Dr. Petit's opinion, the evidence showed that, by the time of the second injury in 1990, the recovery of the knee from the injury in 1985 had been virtually complete.

[66]            Granting the Applicant the benefit of any doubt, however, the VRAB found on appeal that the first and service-related injury could be considered responsible for a major portion, or three-fifths, of the overall disability, withholding two-fifths for that portion of the disability considered to have arisen from the non-service related injury.

The First Knee Injury, December 1985

[67]            The first injury occurred as a result of a skiing accident on December 29, 1985. The Applicant was operated on for a tear to his anterior cruciate ligament, which was almost completely detached from its femoral origin. An arthrotomy was performed antero medially. The medial collateral ligament was detached at its distal insertion. The bone, here, was roughened and the ligament was allowed to heal in place. Drill holes were placed along the line of the anterior cruciate through the lateral femoral condyle out of the top laterally. A small skin incision was made to isolate the drill holes.

[68]            The Applicant was discharged with a full leg cast. The cast was removed on February 6, 1986, and he then had a knee hinge brace. The wound was well-healed and the suture removed. He saw Dr. Smallman on September 23, 1986, who recommended that he not participate in the Junior Leader's Course until the spring.

[69]            By April 30, 1987, Dr. Smallman saw the Applicant as a follow-up for primary repair of his ligament and reported as follows:

He has had a reasonable result thus far. As far as findings at this time, he lack [sic] a few degrees of extension, but he flexes fully. The knee is stable in extension. It opens less than 5 º at 30 º of flexion. This is not Pivot Shift.

He had some problems at the end of his career course in Jan to Feb to Mar. These were at the end of the course and mostly were over-use related. He is not yet fully rehabilitated and I think that in order to protect him from a field posting, we should give him a temporary category G3T604T6 and allow him to train for the next several months even up to the year in order to get himself back to optimal physical condition.

[70]            On June 3, 1987, Dr. Jawahir reported that the Applicant had had knee problems from January to March due to overuse of the knee and suggested that he might need up to one year to strengthen the knee again for fitness. He recommended that the Applicant be put on G304 (for six months). G3 held the requirement to seek medical care, but not necessarily a physician's services. G4 consisted of light duties, with no severe or prolonged stress.

[71]            Then, on October 1, 1987, Dr. Smallman reported on the Applicant as follows:

This man is seen in follow-up for his primary repair anterior cruciate ligament that was augmented by semi tendonosis.

He really has a stable knee with Lachman's of 0.5 centimetres. No pivot shift. He opens up postero-medially at 30 º of flexion. There is no affusion. This man has had an excellent result and is fully fit. He can be given a category of G202 and be returned to all duties. I do not need to see him again unless he has problems.

The Second Knee Injury, April 1990

[72]            The Respondent says there is nothing in the record, other than the Applicant's own statements, to suggest that his knee injury bothered him between October 1987 and April 1990, when he injured his knee for the second time. On the contrary, Dr. Marshall stated that the Applicant "had done well until 3 days prior to admission when he fell and developed some right knee pain."

[73]            On April 7, 1990, the Applicant was involved in a scuffle with Corporal Curtis outside Sassy's Bar, which ended with the Applicant on the ground, and suffering a further injury to his right knee. The evidence as to the cause of the Applicant's falling to the ground is inconsistent. While it is clear that the incident was not service related, the Applicant claims that Corporal Curtis was the aggressor and pushed him to the ground. Corporal Curtis and his witnesses claim that the Applicant grabbed Corporal Curtis and put him in a headlock and that both fell to the ground.

[74]            On the Applicant's first presentation on April 8, 1990, Dr. Kirkpatrick observed that he suffered from an acute hemarthrosis with medial opening. Dr. Kirkpatrick was otherwise unable to examine, and the Applicant was transferred for ortho-evaluation to the National Defence Ministry Clinic.

[75]            The Applicant was admitted on April 7, 1990 for arthroscopy, which revealed a tear of the internal cartilage at its fore limb section, plus a patella condroromalicia (softening of the cartilage). The cartilage and the tissues were repaired, the tissues through a reconstruction using the rotular tendon beneath. The Applicant was found to have significant medial collateral ligament laxady in flexion. As he was brought out to mere full extension, he was found to have reasonable stability of the medial collateral ligament. He had a grade 2 ½ medial collateral ligament repair. He also had significant pivot shift and significant Lachman indicative of completely anterior cruciate ligament deficiency or tear. In the medial compartment, there was significant opening allowing great visualization of the medial meniscus right around to the extreme posterior horn. There was a small longitudinal posterior horn peripheral tear of the superior surface. This was, however, stable to probing. It was obviously a fresh tear. It was in a vascular portion and, due to the fact that it was stable, it was felt that it would heal. It was not felt that this condition would benefit from further suturing. It was not a complete tear and was stable. There was, however, a flap of meniscus at the anterior extreme which was arthoscopically resected and sent to pathology.

[76]            The Respondent points out that the second injury to the knee was two-fold: (1) a tear to the anterior cruciate ligament, PLUS (2) a small fresh peripheral tear of the longitudinal posterior horn of the medial meniscus, and a further tear of the anterior cruciate ligament, which were surgically repaired. The next day, the knee was quite tender and swollen and the Applicant had very limited range of motion.

The Injury to the Left Shoulder January 1995

[77]            It is central to the Applicant's case that the first and second knee injuries are related because the first injury never had an opportunity to heal properly. Despite this claim, the Applicant continued to engage in alpine skiing right up to January 1995, when he injured his left shoulder in a skiing accident.

[78]            In spite of post-operative rehabilitation, as of April 12, 1998, the diagnosis of Dr. Violette was that the Applicant suffered from moderate post-traumatic arthritis (disease of the joint of the right knee). The Applicant applied for a pension in relation to both his shoulder and his knee in April 1998.

The Applicant Applied to the Department for a Pension

[79]            The Applicant did not initially contend that the second knee injury was service related. Instead, he argued that the accident probably occurred because of inappropriate medical treatment and follow-up of his right knee after the first injury. He said that he had been posted to Petawawa and occupied a supervisory position in the Headquarters and Signal Squadron against his will because his knee was not up to par with the nature of the duties he could be called upon to perform. He was posted to a field unit and had to do morning P.T. and sometimes rigorous training, including long distance running and numerous field exercises. He claimed that his knee never had a chance to heal properly.

[80]            By a decision handed down on October 29, 1998, the Department allowed the claim for the shoulder, but denied the claim for the right knee on the ground that it was not service-related. The skiing accident in 1985 was not attributable to service as it was found not to have been sustained during the performance of military duty or during a game or physical recreation organized by or in accordance with service instructions. Likewise, the 1990 injury was not sustained during the performance of military duty.

Appeal to the Veteran's Review Appeal Board

[81]            The Applicant appealed to the VRAB in relation to his knee injury. In his submissions to the VRAB dated January 27, 1999, he argued that both injuries were service-related. He also submitted that the first injury had never had time to heal properly.

[82]            By a decision dated March 18, 1999, the VRAB ruled that the torn anterior cruciate ligament right knee resulting in post-traumatic arthritis did not arise out of, nor was it directly connected with, service in peacetime. Essentially, the VRAB found that the first skiing accident was sustained during downhill skiing, and not cross country skiing. This made all the difference under the circumstances as downhill skiing was not a sport authorized by the military authorities, whereas cross-country skiing was. The VRAB also rejected the Applicant's claim that his first injury had not had time to heal, finding that, to the extent that he was still involved in activities that might injure his knee, they were sporting activities taken on his own initiative and for his own enjoyment. The second injury was clearly not service-related, as it arose out of the bar brawl.

The Entitlement Appeal

[83]            The Applicant then applied for an Entitlement Appeal. At this hearing, the Applicant tendered fresh evidence as to the circumstances surrounding the 1985 skiing accident. In particular, the Applicant tendered evidence to the effect that the relevant officer had altered the original Report on Injuries to show that the injury occurred in the performance of the Applicant's military duties and was therefore to be attributable to his service. The Applicant also argued that, on the basis of that duty-related injury and subsequent problems associated with his military duties regarding stress on a knee that was not fully healed, he should be entitled to a full disability pension for the torn anterior cruciate ligament right knee (operated) resulting in post-traumatic arthritis. He also challenged Dr. Marshall's claim that he had done well between 1987 and 1990.

[84]            In its appeal decision dated May 25, 2000, the VRAB accepted the new evidence as to the circumstances of the first injury, and found that it arose out of the performance of the Appellant's military duties, as organized and authorized fitness training. The VRAB further found that the second injury was not attributable to service. Then the VRAB went on to find that the 1985 injury "resulted in a major cause of the claimed condition," and awarded an aggravation award of three-fifths for that part of the disability that arose out of, or was directly connected with, the Applicant's military service in peacetime. The VRAB, however, withheld two fifths of the pension entitlement on the basis of the second injury's contribution to the Applicant's overall disability, which the VRAB found was not service-related.

[85]            Then, in February 2003, the Applicant applied for a reconsideration of the VRAB's appeal decision. This time, he argued that the second injury was not separate and unconnected with the 1985 injury. In so doing, he sought to overcome the problem of the earlier findings in 1998, 1999 and 2000 that the 1990 injury did not occur under service-related circumstances, for, if he could connect the two injuries, he would be able to argue that, since the first injury had now been found to be service-related, the second injury, too, might be seen to be service-related because it was merely an extension of the first. He tendered an opinion from Dr. Petit dated April 3, 2003 in support of his contention that there was a direct relation between the two incidents from a medical point of view.

[86]            The VRAB considered Dr. Petit's opinion, which was based on a history taken from the Applicant. The VRAB also considered the rest of the material in the file. The VRAB quoted the key findings of Dr. Petit and then went on as follows:

Le tribunal a très attentivement examiné toute la preuve devant lui, y compris les documents attachés à la lettre de l'appelant en date du 3 mai 2002. Le Tribunal note que le rapport docteur Smallman en date du 30 avril 1987 indique que 1 appelant a eu des problèmes à la fin de son cour de perfectionnement en ce qui concerne son genou, vraisemblablement le mois de mars 1987. Dans le même rapport, le docteur déclare "He has had a reasonable result thus far". Il n'y a pas d'autre plainte en ce qui concerne affection à l'étude entre l'accident en 1985 et l'incident en 1990. Le Tribunal remarque qu'il n'y a pas d'autre preuve documentée en ce qui concerne le genou à l'étude.

Le Tribunal conclut que, malgré la thèse du docteur Petit en ce qui concerne un manque de réhabilité optimale du genou de 1'appelant, le Tribunal n'a vu aucune preuve que le réhabilité du genou à 1'étude a été autre que normal.

Le Tribunal confirme les décisions antérieures et retient deux cinquièmes à cause de la blessure du 6 avril 1990 subie par l'appelant à l'extérieur de son service militaire.

[87]            The Respondent agrees that, before the VRAB's Decision can be set aside, it must be shown that the Decision is patently unreasonable or discloses an error of law.

The Jurisdiction of the VRAB on a Reconsideration

[88]            Section 39 of the Appeal Board Act sets up a series of statutory directions that are designed to assist an applicant's case on the evidence. However, once the VRAB has made its decision, having paid due regard to these directions, by s. 31 of the Appeal Board Act a decision of the majority of members of the appeal panel is a decision of the VRAB, and that decision is final and binding.

[89]            Subsection 32(1) of the Appeal Board Act establishes the reconsideration jurisdiction, and allows the VRAB to avoid the statutory edict that an appeal decision is final and binding. The same panel is invited to reconsider its earlier decision in light of fresh evidence or legal considerations.

[90]            It is in the nature of a reconsideration of a decision that is final and binding by statute that the original decision can be overturned only on the strongest of evidence and only if the decision-maker comes to the conclusion that the original decision might well have been different had it had the benefit of that evidence before it when the original decision was rendered. This must particularly be the case where an applicant has professional assistance, and can be presumed to have put up the highest and best case that can be mustered on the evidence. As Mansfield C.J. explained in Blatch v. Archer (1774), 1 Cowp. 63 at p. 64, 98 E.R. 969 (K.B.), "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to produce and in the power of the other side to have contradicted." This aphorism is not a rule of law in a strict sense, but lays down the practical precept that an applicant must look not just at the proof that an applicant happens to have, but also to the proof that is in an applicant's power to gather, and which ought, therefore, to have been produced. No amount of statutory direction can overcome the common sense requirement that a finder of fact must be persuaded as to the reality of the fact that is asserted. To say otherwise is to say that there is a right to a pension the moment there is a scintilla of evidence in support.

A Decision Can Be Upheld in Light of the Whole of the Record

[91]            The VRAB is appointed by the Governor-in-Council. Members are appointed from all walks of life. Some may have legal training, though many do not. The Respondent concedes that the Decision is not as carefully and skilfully written as it might have been if produced by a judge. It passes muster, however, as a reasoned statement of the VRAB's conclusion. As Cullen J. explained in MacDonald, 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 placed before it.

The VRAB's Decision is Not Patently Unreasonable

[92]            The Respondent submits that the VRAB's Decision cannot be condemned as being patently unreasonable. The VRAB was driven to choose between the expert opinion evidence of Dr. Petit, who had examined the Applicant and perforce had to rely on the history that he was given in order to make a diagnosis, on the one hand; and on other evidence before the VRAB that undermined the opinion of Dr. Petit. Some of that evidence was entitled to at least equal weight, coming as it did from medical specialists who had seen and treated the Applicant at the material times for his injuries. In this regard, the Applicant ignores the following crucial items of evidence:

While it is true that in April 1987, Dr. Smallman required the Applicant to be put on light duties, by 1 October 1987 he was able to report that "This man has had an excellent result and is fully fit. He can be given a category of G202 and be returned to all duties. I do not need to see him again unless he has problems." The accuracy of that claim, as of October 1987 (as distinct from later on), was never challenged;

Just after the Applicant suffered the second injury in 1990, Dr. Marshall stated that the Applicant "had done well until 3 days prior to admission when he fell and developed some right knee pain." The inference is that Dr. Marshall obtained that admission from the Applicant while taking his history. While that claim was challenged, the Applicant adduced no independent evidence to contradict it;

There were two separate aspects of the injury the Applicant suffered to his knee in 1990: another tear to the anterior cruciate ligament, and a tear of the medial meniscus. This complicated the knee symptomatology and the degree of disability even further;

The Applicant's injury to his shoulder while alpine skiing, in 1995, occurred when, on his account, he was medically unfit to engage in these sorts of activities;

It is also relevant to mention that there is a question raised as to the Applicant's own credibility in light of the contradictory evidence as to the fracas involving Corporal Curtis in 1990.          Dr. Petit, of course, was dependent on the Applicant being wholly truthful when taking his history.

[93]            The Applicant also ignores the inferences that were open to the VRAB. The Applicant had, in effect, reshaped his case on the reconsideration to argue that the two injuries were connected. If it came to a question of the Applicant's credibility, the contradictory accounts of the fracas with Corporal Curtis in 1990 could be said to have worked against the Applicant in terms of his not being a wholly reliable witness. There was also the fact that Dr. Petit's report was produced so late in the day. This is not a case of a new injury or disability emerging after the event. Why did the Applicant not have Dr. Petit's report when he applied originally in April 1998? Or on his entitlement appeal in March 1999? Or in May 2000? Why did the Applicant not put forward his highest and best case from the beginning? These questions have never been answered by the Applicant.

[94]            The Respondent says that this is a complete answer to the Applicant's claim that Dr. Petit's evidence swept all before it and that there was no contradictory evidence. It cannot be said that the VRAB gave undue weight to Dr. Smallman's report of April 1987, to the effect that the Applicant was well on his way to recovery, when that is the very conclusion that Dr. Smallman came to in October 1987, and which was also supported by Dr. Marshall in 1990. Nor can the VRAB be accused of not stating why it was not persuaded by Dr. Petit's evidence, in view of its express reference to Dr. Smallman's April 1987 report. It would have been preferable if the VRAB had explicitly referred to these other items of evidence in its Decision. But its failure to do so is not a ground on which the Decision can be set aside. In any event, Dr. Marshall's evidence had been highlighted before the VRAB at its hearing in May 2000, albeit in the context of a challenge to Dr. Marshall's claim that the Applicant had done well up to the second knee injury. Hence, the VRAB was actually mindful of the evidence on this point.

[95]            The Respondent submits that, in light of these materials and the inferences that could be drawn from the way in which the Applicant had reshaped his case and had come up with new evidence so late in the day, it was open to the VRAB to conclude that, notwithstanding Dr. Petit's opinion, the evidence showed that, by the time of the second injury in 1990, the recovery of the knee from the injury in 1985 had been virtually complete. With this finding, the VRAB rejected Dr. Petit's thesis that there was a direct relation between the two incidents.

[96]            With the finding that the two injuries were unrelated, there was an obvious issue as to entitlement to a pension, which is cast in terms of apportioning causality between a pensionable cause and a non-pensionable cause. There was no evidence on this point before the VRAB. But if the VRAB started from the premise that there had been virtual complete recovery of the knee from the 1985 injury, it was an open question as to how that apportionment should be made.

[97]            Granting the Applicant the benefit of any doubt, however, the VRAB found on appeal that the first and service-related injury could be considered responsible for the major portion, or three-fifths of the overall disability, withholding two-fifths for that portion of the disability considered to have arisen from the non-service related injury.

[98]            The Respondent says that this, too, is plainly supportable. There is nothing inconsistent in finding that the first injury had healed by 1990, but gave rise to the potential for post-traumatic arthritis developing in the Applicant's right knee, and finding that, there being a second injury, in terms of causality the first had a greater causal effect on the disability than the second. By analogy to the notion of the thin skull, it is not inevitable that the Applicant would have a bad knee forever. But with the second incident, and an additional injury, the knee disability was made worse. Thus, the VRAB was forced to apportion causality between the two incidents.

[99]            The Respondent asserts that it is not possible to say that, on the materials before the VRAB, the VRAB was unreasonable to the point of being irrational when it withheld two-fifths pension entitlement in accordance with s. 21(2.1) of the Pension Act to account for that portion of the Applicant's disability that was determined to arise from the non-service related injury.

[100]        The Respondent also says that the VRAB cannot be accused of having not drawn reasonable inferences or of not giving the Applicant the benefit of the doubt. From what can be inferred as to the VRAB's own reasoning, it would appear to have been open to it to have assigned only two-fifths to the first (service-related) injury. But the VRAB gave the Applicant the benefit of the doubt and assigned more than half of the causality to service.

[101]        The Respondent argues that the major difficulty that the Applicant faces in persuading this Court that the VRAB's Decision is patently unreasonable is that the Applicant postulates that the VRAB members were not able to grasp the significance of Dr. Petit's evidence, and were intellectually unable to apply the statutory directions in his favour. But it was the same panel that had originally decided that his first knee injury was actually service-related. The latter was plainly not an irrational decision so far as the Applicant is concerned. So how can a panel that is competent one day become so incompetent the next day so as to justify the claim that its Decision was irrational? According to the Respondent, the question answers itself.

[102]        The Respondent submits that the VRAB did not stray outside of its jurisdiction in arriving at the Decision. Since the Decision is supportable on the evidence, the irresistible inference is that the VRAB obeyed the legislative mandate to favour the Applicant and to take the best view of the evidence that it could in good conscience. The crux of this case is that the VRAB was not persuaded by Dr. Petit's opinion, preferring other evidence in the record. This was not so irrational as to be patently unreasonable. It also entails finding that the VRAB acted within its jurisdiction.

There is no other Error in Law

[103]        The Applicant argues that, once entitlement is established, the pensioner can have the assessment of his disability reviewed. In the context of this application, this is irrelevant. The issue here was entitlement, that is, whether the Applicant was entitled to a pension for that part of his disability arising out of the second injury. The assessment of the degree of disability, expressed as a percentage in accordance with the tables in Schedule A to the Pension Act, is quite a different matter. The matter in issue in this reconsideration application was entitlement, not assessment.

[104]        The Applicant further argues that consideration ought to have been given to s. 21(5) of the Pension Act.

[105]        This argument is also irrelevant to any matter before the VRAB on this reconsideration. By s. 18 of the Appeal Board Act, the VRAB has full and exclusive jurisdiction to hear, determine and deal with all applications for review that may be made to the VRAB under the Pension Act, and all matters related to those applications. Under s. 26 of the Appeal Board Act, the VRAB has full and exclusive jurisdiction to hear, determine and deal with all appeals that may be made to the VRAB under s. 25 or under the War Veterans Allowance Act or any other Act of Parliament, and all matters related to those appeals.

[106]        However, before a matter can come before the VRAB arising under s. 21(5) of the Pensions Act, an application must first to be made to the Department. Here, the question of whether Dr. Petit's report provides evidence of an aggravation has never been brought before the Department. The jurisdiction of the VRAB is therefore not engaged.

ANALYSIS

[107]        In the context of a reconsideration application the reasonableness or otherwise of the VRAB's Decision has to be determined in light of the evidence before it and the relevant statutory provisions. While it remains true that claimants have the burden of proving their pension entitlement, they are considerably assisted by the special provisions that appear in s. 39 of the Appeal Board Act that direct the VRAB to draw every reasonable inference from the evidence in favour of a claimant, to accept as true credible and trustworthy evidence produced by the claimant, and to resolve any doubt in the weighing of evidence in favour of a claimant.

[108]        In addition, of course, a claimant is further assisted by s. 3 of the Appeal Board Act which requires that the powers, duties and functions of the VRAB are to be interpreted in a liberal manner that recognizes Canada's debt to its veterans.

[109]        Section 21 of the Pension Act makes it clear that, if a veteran suffers a disability resulting from an injury or disease that arose out of, or was directly connected with, military service in peace time, a pension may be granted and, even if the initial injury or disease did not result in the disability, but rather resulted in a condition that led to a disability, a pension can still be granted. This view was confirmed by Cullen J. in MacDonald, supra, at para. 8.

[110]        It would appear from the brief reasons contained in the VRAB's Decision that it was cognizant of this statutory framework and that the Applicant had raised a legitimate issue for reconsideration of his pension award.

[111]        The Applicant's case for reconsideration was contained in Dr. Petit's report. Dr. Petit had come to the conclusion that there was a link between the injury suffered by the Applicant in 1990 and the injury he had sustained earlier in 1985. He was of the view that the Applicant's knee had not been properly healed and rehabilitated after the 1985 injury and by the time the second injury occurred. Hence, there was a pre-disposition for the injury to re-occur.

[112]        The VRAB quotes Dr. Petit's important conclusions in its Decision:

À mon avis, il y a une relation directe entre le premier incident et le deuxième. De nombreux éléments au dossier portent en effet à conclure que le genou de M. Martel n'avait pas été réhabilité de façon optimale suite à la première chirurgie.

...

Ce que ceci a entraîné à mon avis, ce sont des problèmes toujours d'instabilité, de manque de proprioception au niveau du genou, un manque de récuperation totale de la force musculaire pour amener encore une fois une stabilité optimale et ceci l'a directement pré-disposé aux blessures subites lors du deuxième accident.

[113]        The way the VRAB then handles the evidence of Dr. Petit is the core of this application. This is what the VRAB writes:

Le Tribunal a très attentivement examiné toute la preuve devant lui, y compris les documents attachés à la lettre de l'appelant en date du 3 mai 2002. Le Tribunal note que le rapport docteur Smallman en date du 30 avril 1987 indique que l'appelant a eu des problèmes à la fin de son cour de perfectionnement en ce qui concerne son genou, vraisemblablement le mois de mars 1987. Dans le même rapport, le docteur déclare "He has had a reasonable result thus far". Il n'y a pas d'autre plainte en ce qui concerne l'affection à l'étude entre l'accident en 1985 et l'incident en 1990. Le Tribunal remarque qu'il n'y a pas d'autre preuve documentée en ce qui concerne le genou à l'étude.

Le Tribunal conclut que, malgré la thèse du docteur Petit en ce qui concerne un manque de réhabilité optimale du genou de l'appelant, le Tribunal n'a vu aucune preuve que le réhabilité du genou à l'étude a été autre que normal.

[114]        So the VRAB felt that "malgré la thèse du docteur Petit" it had sufficient other evidence before it and, in particular, the report of Dr. Smallman of April 30, 1987, to conclude that "le Tribunal n'a vu aucune preuve que le réhabilité du genou à l'étude a été autre que normal."

[115]        There are various problems with the VRAB's conclusion on this central issue. To begin with, the report of Dr. Smallman of April 30, 1987 to which the VRAB refers also has the following to say about the state of the Applicant's injuries back in 1987:

He had some problems at the end of his career course in Jan. to Feb. to Mar. These were at the end of the course and mostly were overuse related. He is not yet fully rehabilitated and I think that in order to protect him from a field posting, we should give him a temporary category G3T6 04T6 and allow him to train for the next several months even up to a year in order to get himself back to optimal physical condition.

[116]        The VRAB does not specifically refer to a later report by Dr. Smallman rendered October 1, 1987 in which Dr. Smallman went much further:

This man is seen in follow-up for his primary repair anterior cruciate ligament that was augmented by semitendonosis.

He really has a stable knee with Lachman's of 0.5 cm. No pivot shift. He opens up postero-medially at 30⁰ of flexion. There is no effusion.

This man has had an excellent result and is fully fit. He can be given a category of G202 and be returned to all duties. I do not need to see him again unless he has problems.

[117]        The Respondent points out that, in addition to this conclusion by Dr. Smallman that "this man has had an excellent result and is fully fit," there were other points of evidence to support the VRAB's conclusions even if they are not specifically referred to in the Decision.

[118]        For instance, there is nothing in the record, other than the Applicant's own statements, to suggest that his knee injury bothered him between October 1987 and April 1990, when he injured the knee for a second time. And to bolster this there is Dr. Marshall's statement in his report that the Applicant "had done well until 3 days prior to admission when he fell and developed some right knee pain." There is also the fact that the second injury to the Applicant's knee was two-fold. In addition to a tear to the anterior cruciate ligament, there was also a fresh peripheral tear of the longitudinal posterior horn of the medial meniscus, and a further tear to the anterior cruciate ligament that were surgically repaired.

[119]        There is also the fact that the Applicant continued to engage in alpine skiing right up until January 1995 when he injured his left shoulder in a skiing accident.

[120]        But the central issue here is that, notwithstanding Dr. Petit's opinion that "il y a une relation directe entre le premier incident et le deuxième," the VRAB concluded that "le Tribunal n'a vu aucune preuve que le réhabilité du genou à l'étude a été autre que normal."

[121]        This appears to suggest that in discounting Dr. Petit's opinion, the VRAB believed it was medically trumped by Dr. Smallman's assessments in 1987.

[122]        With respect for the stalwart work that the VRAB does in these situations, it is difficult to see how it could have come to the conclusion it did. It was, of course, perfectly at liberty to reject Dr. Petit's opinion by giving reasonable, evidentiary based reasons for doing so. But even if we assume the VRAB relied upon both opinions of Dr. Smallman and that the October 1987 opinion was considered, the fact is that Dr. Smallman's opinion does not even address the issue raised in Dr. Petit's opinion and that the VRAB was asked to address as part of the reconsideration. Dr. Smallman gives no evidence concerning the connection between the 1985 injury and the 1990 injury for the simple reason that, when he gave his opinion, the 1990 injury had not occurred.

[123]        In my opinion, the VRAB had no medical evidence before it concerning the connection between the two injuries other than the opinion of Dr. Petit. The VRAB made no mention that it had any problem with the credibility of Dr. Petit's evidence. This being the case, the VRAB required contradictory evidence to be adduced before rejecting Dr. Petit's evidence. Hence, I am of the view that, by rejecting Dr. Petit's evidence in the way it did, the VRAB erred in its application of s. 39 of the Appeal Board Act and breached its duties as found in that section. This constitutes, in my view, a jurisdictional error that nullifies the Decision in its entirety. See Rivard v. Canada (Attorney General), [2001] F.C.J. No. 1072 (T.D.), 2001 FCT 704 at paras. 43 - 44.

[124]        In addition, to the extent that the evidence against the Applicant (Dr. Smallman's opinion in particular that the Applicant had made a full recovery in 1987 from his 1985 injury), can be considered to address the central opinion of Dr. Petit that "il y a une relation directe entre le premier incident et le deuxième," I conclude that the Decision was patently unreasonable because it was based upon a mere surmize by the VRAB without any medical evidence to support it that an injury that may appear healed in 1987 cannot result in a pre-disposition and become a direct cause of an injury to the same knee in 1990. Once again, in my view, the VRAB could only have reached the conclusion it did by misapplying s. 39 of the Appeal Board Act because the Applicant produced (in the form of Dr. Petit's opinion) sufficient credible evidence about the connection between the two injuries.

[125]        The VRAB is at liberty to question and reject the evidence of Dr. Petit, but it must do so on the basis of medical evidence that addresses the issues raised in Dr. Petit's opinion and in accordance with the special provisions that appear in s. 39 of the Appeal Board Act.

ORDER

THIS COURT ORDERS that

1.          The Application for Judicial Review is granted.

2.          The matter is remitted to a panel of the VRAB differently constituted in so far as this is practicable.

3.          The Applicant shall have the costs of this application.

"James Russell"          

JFC

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1131-03

STYLE OF CAUSE: JEAN MARTEL v. ATTORNEY GENERAL OF

CANADA

PLACE OF HEARING:                                 OTTAWA, ONTARIO

DATE OF HEARING:                                   JUNE 28^TH, 2004

REASONS FOR ORDER:                            The Honourable Mr. Justice Russell

DATED:                     September 21, 2004

APPEARANCES:

MR. JAMES CAMERON

FOR APPLICANT

MR. GEOFFREY LESTER                                          FOR RESPONDENT

SOLICITORS OF RECORD:

RAVEN, ALLEN, CAMERON, BALLANTYNE AND YASBECK

OTTAWA, ONTARIO                                                

FOR APPLICANT

ATTORNEY GENERAL OF CANADA

FOR RESPONDENT