King v. Canada (Veterans Review and Appeal Board), 2001 FCT 535

Date: 20010529

Docket: T-680-00

Neutral Citation: 2001 FCT 535

BETWEEN:

                                        GARRY R. KING

                                                                                         Applicant

AND:

     THE VETERANS REVIEW AND APPEAL BOARD CANADA

               and THE ATTORNEY GENERAL OF CANADA

                                                                                    Respondents

                                  REASONS FOR ORDER

NADON J.

[1]    This is an application for judicial review, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision of the Veterans Review and Appeal Board Canada (the "VRAB") dated March 21, 2000. The VRAB denied the applicant's claim for a pension.

[2]    The relevant facts can be summarized as follows. The applicant, Garry R. King, served in the Royal Canadian Air Force and, later, in the Canadian Armed Forces from September 3, 1959 to June 19, 1991. At the time of his retirement from the Canadian Armed Forces, the applicant held the rank of Brigadier General.

[3]    In the spring of 1968, while on authorized temporary duty in Sardinia to participate in NATO training exercises, the applicant consumed tainted mussels. He became ill as a result and was hospitalized with a diagnosis of infectious type A hepatitis on March 13, 1968. In May 1970, the applicant was admitted to hospital and diagnosed with genitourinary tuberculosis.

[4]    By notice of application dated June 14, 1993, the applicant applied to the Canadian Pension Commission for a pension on the basis of hepatitis, pursuant to subsection 21(2) of the Pension Act, and genitourinary tuberculosis, based on subsection 21(5) of the Pension Act. With his application, he submitted a medical report from Dr. James Gill dated April 19, 1993. The Canadian Pension Commission obtained a medical opinion from Dr. R. Lund dated February 10, 1994.

[5]    By a decision dated March 7, 1994, the Canadian Pension Commission ruled as follows:

00939    HEPATITIS

No entitlement to pension can be granted because the medical evidence reviewed does not disclose the existence of a disability as described in the legislation.

(Subsection 21(2) of the Pension Act.)

00128    GENITOURINARY TUBERCULOSIS

Not pensionable under Subsection 21(5) of the Pension Act as the requirements of Paragraph (a) of that subsection have not been met.

(Subsection 21(5) of the Pension Act.)

[6]                A review hearing of the decision of the Canadian Pension Commission was held before the Entitlement Board of the Canadian Pension Commission on May 25, 1995. The Entitlement Board affirmed the denial of the applicant's claim.

[7]                The applicant appealed to the VRAB, before which the applicant's representative provided written submissions as well as portions of hospital records in relation to the applicant, a letter from Retired Brigadier General Christie dated December 6, 1995 and a letter from the applicant dated August 2, 1996. The letter from Retired Brigadier General Christie addressed the issue of "official temporary duty" and stated the following:

I have reviewed the contents of the Canadian Pension Commission Entitlement Board's findings on King's case, dated May 25, 1995, and have the following comments:

Temporary Duty: The findings claim that King ate the contaminated mussels off Base "while he was not on duty." This is untrue and misleading:

a. Official temporary duty away from home base means that an individual is ON DUTY 24 hours a day from the time he leaves his base until the time he returns. This was particularly important in NATO Europe where TD was the norm and international incidents inevitable. As a Base Commander of the time I routinely administered and approved cases involving insurance and compensation regarding personnel on temporary duty.

b. Pilots on temporary duty in Sardinia had FULL AUTHORIZATION to proceed into the local economy for meals and recreation. They did so under the full understanding and knowledge that they were protected by the "rules and regulations of the RCAF". It was clearly impractical to impose meal restrictions anywhere in NATO Europe for aircrew on temporary duty, especially Sardinia.

[8]                By decision dated October 2, 1996, the VRAB dismissed the applicant's appeal and ruled as follows:

00939    HEPATITIS

Did not arise out of nor was it directly connected with service in peace time.

ss. 21(2), Pension Act

00128    GENITOURINARY TUBERCULOSIS

Not consequential under ss. 21(5) of the Pension Act as the requirements of paragraph 21(5)(a) of that Act have not been met.

[9]                By originating notice filed January 20, 1997, the applicant sought judicial review of the VRAB's decision. In his Reasons for Order dated November 7, 1997, Campbell J. quashed the VRAB decision on the basis that it was patently unreasonable. Campbell J. referred the matter back for rehearing by a differently constituted panel of the VRAB and awarded costs to the applicant. The rehearing of the matter by the VRAB was scheduled for May 27, 1998.

[10]            In a letter dated May 21, 1998, the VRAB wrote to the Office of the Judge Advocate General (the "OJAG"), seeking an opinion regarding the notion of "official temporary duty" given by retired Brigadier General Robert Christie in his letter dated December 6, 1995. The VRAB's letter to the OJAG, which was copied to the applicant's representative at the Bureau of Pensions Advocates, stated the following:

The purpose of this letter is to seek the views of your office on some information contained in the enclosed letter from Brigadier General Robert Christie dated December 6, 1995 which was provided to the Board in support of Mr. King's claim.

In his letter, Mr. Christie offers comments on the status of the pilots from one Air Division (Marville, Zweibrucken, Baden-Sollingen and later Lahr) who were deployed to Sardinia in the spring of 1968 to participate in NATO training exercises.

[...]

It would be most appreciated if you could provide answers to the following questions in order to assist the Board in reaching a better understanding of the information contained in Mr. Christie's letter.

1, Could you provide information about the origin and meaning of the term "Official Temporary Duty" as well as the authority under which this type of duty was introduced into the Canadian Armed Forces. Would you also provide us with a copy of any relevant legislation, regulations, order(s) or policies under which this concept was introduced.

2.    Could you provide information about the situation in which "Official Temporary Duty" was or is used by the Canadian Armed Forces?

3. Could you confirm whether or not the term "Official Temporary Duty" means that an individual is considered by the Canadian Armed Forces as being "ON DUTY 24 hours a day from the time he leaves his base until the time he returns"?

4. If the answer to the above question is yes, could you indicate whether the Canadian Armed Forces view this status of being on "Official Temporary Duty" as meaning or implying that members injured while on official temporary duty away from home base would be entitled to benefits under the provisions of subsection 21(2) of the Pension Act for any disability or disabling condition resulting from off-duty incident?

5. Mr. Christie indicates in his letter that pilots on temporary duty in Sardinia were authorized to proceed in the local economy for meals and recreation. He further states: "They did so under the full understanding and knowledge that they were protected by the rules and regulations of the RCAF".

Are you able to comment on the nature of this "protection" and whether or not the Canadian Armed Forces viewed it as including benefits under the provisions of subsection 21(2) of the Pension Act? Also, can you comment on what "rules and regulations of the RCAF" Mr. Christie was referring to?

[11]            By letter dated May 21, 1998 to the VRAB, the applicant's solicitors objected to the VRAB's request to the OJAG By letter dated May 26, 1998, the VRAB advised the applicant's solicitors that the purpose of its letter to the OJAG "was simply to seek the views of National Defence on the issue of ‘Temporary Duty' and to seek clarification on the information contained in Brigadier General Christie's letter". The letter from the VRAB also stated the following:

The Board, which you will recall is non-adversarial, disagrees with the above statements and intends to pursue its action which is within the broad inquisitorial powers conferred on it pursuant to section 14 and 26 of the Veterans Review and Appeal Board Act. The Board is also of the view that this action does not violate the above mentioned [Federal Court] order.

[12]            By further letter dated May 26, 1998 to the applicant's representative at the Bureau of Pensions Advocates, the VRAB indicated that the hearing could not proceed in its entirety on May 27, 1998 as originally scheduled owing to the fact that the VRAB's request of May 21, 1998 to the OJAG remained outstanding. By letters dated May 26, 1998 and May 27, 1998, the applicant's solicitors and his representative at the Bureau of Pensions Advocates objected to the adjournment and to the VRAB's request to the OJAG.

[13]            The rehearing before the VRAB commenced on May 27, 1998. However, the proceedings were adjourned pending the VRAB's receipt of a response from the OJAG.

[14]            The response from the OJAG appears in a letter dated August 5, 1998. A copy of the letter was sent to the applicant's representative at the Bureau of Pensions Advocates on August 26, 1998.

[15]            The parties agreed that the remainder of the hearing before the VRAB would proceed in two stages. During the first phase, the VRAB would hear arguments regarding the applicability of section 21(3)(e) of the Pension Act to the facts in this case. If the VRAB decided that section 21(3)(e) did not apply, then a second hearing would be scheduled, which would address the issue of whether the VRAB had authority to gather additional evidence, the question of official temporary duty status, and whether section 21(3)(f) of the Pension Act applied to the facts of this case.

[16]            Two hearings were conducted before the VRAB on March 4, 1999 and October 19, 1999. On March 21, 2000, the VRAB conveyed its negative decision to the applicant. On April 13, 2000, the applicant filed this application for judicial review of the of the VRAB's decision.

[17]            There were four issues before the VRAB at the hearings of May 27, 1998, March 4, 1999 and October 19, 1999:

1.         Can the Hepatitis A condition contracted by Mr. King while serving in Sardinia in 1968 be said to have arisen out of or be directly connected with his military service in accordance with subsection 21(2) of the Pension Act?

2.         Can the area in Sardinia, where Mr. King was serving when he contracted Hepatitis A in 1968 be considered "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 the area as set out in subsection 21(3)(e) of the Pension Act"?

3.         Did the Board exceed its jurisdiction when it embarked on a "fact-gathering mission" following the Federal Court decision of 7 November 1997, and in doing so, did it lose its objectivity?

4.         Is the condition of Genitourinary Tuberculosis consequential upon the condition of Hepatitis pursuant to subsection 21(5) of the Pension Act?

[18]            With respect to the first issue, the VRAB concluded that, although the applicant contracted hepatitis during a period of service in Sardinia, the condition did not arise out of, and was not directly connected with his service in peace time as required by paragraph 21(2)(a) of the Pension Act. In its discussion of this issue, the VRAB also considered the definition of "official temporary duty", and stated the following:

The point which is at issue here and most critical not only to the decision at hand, but to similar appeals which may come before this Board, is the definition of "official temporary duty".

[...]

Because the definition of "official temporary duty" is so critical to this case and many other claims which come before the Board, it was felt necessary to exercise its inquisitional powers by requesting an opinion of the Judge Advocate General regarding the matter of "official temporary duty". This was done because of the marked departure retired Brigadier General Christie's opinion represented from the Board's understanding of the term temporary assignment/duty.

The office of the Judge Advocate General is responsible for providing legal advice to the Minister, the Department and the Canadian Forces on matters of military justice and to the Government of Canada on military law. The Board contacted this office because it can offer expert legal advice on the issue of temporary duty.

[...]

Following its requested opinion, the Board reviewed a response from the office of the Judge Advocate General dated the 5th of August 1998.

Of great importance to the matter at hand and to other similar cases coming before the Board, the letter from the Judge Advocate General responded to the Board's questions as follows:

While the term "official temporary duty" does not occur in Canadian Forces legislation, regulations or orders, the term "temporary duty" does exist. Temporary duty is one of the terms used to describe a member's status when on duty away from his or her home unit.... These terms for assignments of differing lengths are essentially administrative tools and are used primarily to determine the financial benefits including certain allowances, transportation, lodging and other expenses that apply during an assignment.

...

As you will see from the definition in paragraph 2 of the current CFAO 20-50, a member who is required to attend a course or to perform a duty for a period of six months or less at a location other than the member's permanent place of duty is normally sent on temporary duty.

24 Hour Duty

I am not aware of any reference in any order or other policy instrument that places a member on duty 24 hours a day solely as a result of being on temporary duty.

In addressing retired Brigadier General Christie's comments regarding being on duty 24 hours a day while on official temporary duty, the Judge Advocate General notes:

...I would be very hesitant to accept that as an accurate statement of either law or fact. As I indicated earlier, there is no direction to that effect. On the contrary, the relevant legislation appears to indicate members are not on 24 hour duty due simply to temporary assignment overseas. If a member were on duty 24 hours a day merely because he or she was on a temporary assignment away from the normal place of duty, there would appear to be little need for the Special Duty Pension Area legislation.

...Areas have been designated as special duty areas where members would be exposed to hazardous conditions not normally associated with peacetime service. Sardinia has not been so designated.

In short, the existence of the Special Duty Area legislation underscores a key point:

·            members outside Canada on temporary assignment do not appear to have been considered to be on 24 hour duty and therefore prima facie covered under the Pension Act for any mishap taking place at any time within the duration of the assignment; special legislation was considered necessary to effect that result in respect of certain areas.

In commenting on retired Brigadier General Christie's statement that,

...pilots authorized to have meals on the local economy, "did so under the full understanding and knowledge that they were protected by the rules and regulations of the RCAF" the Judge Advocate adds ".... I am not aware of any law other than the Special Duty Area legislation that has, to had, the effect of "protecting" members on a 24 hour basis. Since Sardinia was not a designated special duty area, I do not know to what rules and regulations Mr. Christie can be referring."

While it may have been Brigadier General Christie's understanding that official temporary duty away from home base provided Mr. King full authorization to proceed into the local economy (of Sardinia) for meals and recreation and that such authorization provided him with 24 hour protection by the "rules and regulations of the RCAF", it is clear from the office of the Judge Advocate that his understanding was deficient or misguided or erroneous. While the Federal Court decision found that Brigadier General Christie's evidence was "....clear, unequivocal and on the face of the record unassailable," this Board in the light of the evidence before it, that while Mr. King's Hepatitis condition was contracted during his period of service in Sardinia in 1968, it can not be said to have "arisen out of or directly connected with his service in peacetime" as that term is defined in the Pension Act.

The Board accepts that on the basis of the Applicant's August 2, 1996 letter, he does not know whether he contracted Hepatitis from eating mussels in Sardinia restaurant or in the all-rank mess on the base.[...]

However, even if the Board assumes that the contaminated mussels were eaten on the military base, this is not sufficient in itself, to bring this case under the umbrella of subsection 21(2) of the Pension Act in the absence of evidence indicating that the claimed condition of Hepatitis resulted from a military activity or as a result of an activity in furtherance of military duties or obligations. The Board was not provided with any evidence in that respect.

[19]            Regarding the second issue, the VRAB concluded that Sardinia was not a hazardous area as defined by section 21(3)(e) of the Pension Act:

In addressing the issue as to whether or not Sardinia should be considered a "hazardous area" as that term is found in subsection 21(3)(e) of the Pension Act, this Board as did the former Canadian Pension Commission in their decision of 7 March 1994, has been provided with no statistics regarding the incidence of Hepatitis "A" in Sardinia as compared to other areas of the world, including Canada. In the absence of such data, the Board simply cannot determine that the hygiene standards in Sardinia in 1968 were such that they constituted as health hazards to those serving in that area. Even if Mr. King and his comrade Mr. MacSween both contracted Hepatitis "A" while in Sardinia, this is not sufficient for this Board to find that Sardinia should be considered to have been en endemic area for infectious Hepatitis.

[20]            In reference to the third issue, the VRAB held that it acted within its jurisdiction when it requested an opinion from the OJAG regarding the meaning of "official temporary duty". The VRAB indicated the following:

The procedures before the Board are non-adversarial and informal. The Board is also inquisitorial. This means that it is incumbent upon the Board and the party appearing before it to research and present the evidence.

The inquisitorial nature of the Board is confirmed by the powers vested to the Board pursuant to section 14 of the Veterans Review and Appeal Board Act which states:

The Board and each member have with respect to the carrying out of the Board's duties and functions under the Act, all the powers of a commissioner appointed under Part I of the Inquiries Act.

The decision of the Board to seek clarification from the Department of National Defence on the comments made by retired Brigadier General Christie regarding the concept of "official temporary duty" was justified in light of the importance of the issue and the fact that the comments from Brigadier General Christie represented a marked departure from the Board's understanding of the expression.

[...]

The Board is satisfied that it acted fairly and in compliance with the rules of natural justice. The Board is also of the view that it remained open-minded on the issue of the meaning of "Official Temporary Duty" and that it's [sic] request for information from the Department of National Defence on this issue was not made to oppose Mr. King's claim but only to be in a position to render an informed decision. This has nothing to do with bias.

[...]

There is nothing in the written reasons provided in support of the [Federal Court's] decision or in the Order suggesting any intent on the part of the Federal Court to prevent the Board from considering new evidence in the course of the rehearing of the appeal. There is nothing also suggesting that the scope of the appeal hearing conducted by the Board should be restricted to the evidence existing at the time of the original appeal decision dated 2 October 1996. This Board is of the view that as long as the appeal hearing is conducted in accordance with the reasons of the Federal Court, it is free to consider any other evidence at the time of the subsequent appeal hearing in accordance with the broad inquisitorial powers provided to it by the Veterans Review and Appeal Board Act.

The Board is of the view that it acted within its jurisdiction and appropriately in requesting information from Judge Advocate General and did not lose its objectivity.

[21]            Finally, with regard to the fourth issue, because the claim for genitourinary tuberculosis was made under section 21(5) of the Pension Act, entitlement was determined by whether the applicant contracted hepatitis during service. The VRAB ruled that the hepatitis was not contracted during service, and, therefore, denied the claim under section 21(5) of the Pension Act since the requirements of paragraph 21(5)(a) of the Pension Act had not been met.

[22]            This judicial review application raises the following issues:

1.         Did the VRAB err when it concluded that the Hepatitis A condition contracted by the applicant while serving in Sardinia in 1968 could not be said to have arisen out of or be directly connected with his military service in accordance with paragraph 21(2) of the Pension Act?

2.         Did the VRAB err in its conclusion that the area in Sardinia where the applicant was serving when he contracted Hepatitis A could not be considered an area constituting a health hazard to persons serving in the area as set out in paragraph 21(3)(e) of the Pension Act?

3.         Did the VRAB err by not considering the application of paragraph 21(3)(f) of the Pension Act?

4.         Did the VRAB err when it requested an opinion, with respect to evidence before it, from the OJAG and used that opinion to render its decision?

RELEVANT STATUTORY PROVISIONS

Pension Act, R.S.C. 1985, c. P-6:

Veterans Review and Appeal Board Act, S.C. 1995, c. 18:

SUBMISSIONS

A. The Applicant's Submissions

(i)        Issue 1:

[23]            With respect to the VRAB's determination as to whether the applicant's hepatitis arose out of or was directly connected with his military service, the applicant suggests that on any reasonable interpretation of section 21(2)(a) of the Pension Act, it is abundantly clear that the applicant's hepatitis would not have occurred but for his presence in Sardinia pursuant to his military posting there. The applicant submits that paragraph 21(2)(a) of the Pension Act provides two distinct tests for determining pensionability: one test is that the injury was "directly connected" with military service in peace time; the other is that the injury "arose out of" military service in peace time. The applicant argues that the VRAB substituted its own test at page 11 of its decision that, in order to qualify as pensionable, the claimed condition must result "from military activity or as a result of an activity in furtherance of military duties or obligations". The applicant submits that this substitution for the statutorily required tests constitutes a reviewable error.

[24]            The applicant further contends that the VRAB was required to construe and interpret the language of section 21(2)(a) of the Pension Act liberally as directed by section 3 of the Veterans Review and Appeal Board Act and section 2 of the Pension Act. The applicant claims that by narrowing the meaning considerably to provide that a claimant must, in effect, be "on duty" in order to be entitled to pension benefits in respect of disabilities incurred during peace time service, the VRAB has rendered a decision which is perverse and patently unreasonable.

[25]            Finally, the applicant contends that the VRAB's conclusion that the applicant's hepatitis did not arise out of nor was directly connected with service in peace time can only have been reached because the VRAB failed to give adequate weight to or otherwise completely disregarded the evidence before it of Brigadier General Christie, of the applicant, and of Norman A. MacSween. The applicant submits that the VRAB's failure to accept this relevant evidence and to draw from it every reasonable inference in favour of the applicant is demonstrative of the VRAB having failed to comply with the provisions of section 39 of the Veterans Review and Appeal Board Act and having rendered a decision which is patently unreasonable.

(ii)       Issue 2:

[26]            The applicant argues the VRAB's rejection of his claim under paragraph 21(3)(e) of the Pension Act because "no statistics regarding the incidence of Hepatitis A in Sardinia as compared to other areas of the world, including Canada" was patently unreasonable, because it requires the applicant to meet a burden of proof more strict than a balance of probabilities and it ignores the clear and uncontradicted evidence on the record to the effect that Canadian pilots serving in Sardinia were directed to refrain from eating seafood (Cundell v. Canada (Attorney General), [2000] F.C.J. No. 38 (F.C.T.D.) at para. 60-61; Metcalfe v. Canada, [1999] F.C.J. No. 22 (F.C.T.D.) at para. 17).

(iii)      Issue 3:

[27]            The applicant submits that he was placed in a position of jeopardy to his health by reason only of being ordered to Sardinia as a requirement of his military service. The applicant contends that his case is directly analogous to that of Bradley v. Canada (Attorney General), [1999] F.C.J. No. 144 (F.C.T.D.), and that the provisions of paragraph 21(3)(f) of the Pension Act are directly applicable.

(iv)       Issue 4:

[28]            The applicant submits that it is trite law that an administrative tribunal is bound to comply with the statutes applicable to its creation and function. The applicant points out that the jurisdiction of the VRAB to freely exercise its discretion is limited by certain provisions, namely sections 3 and 39 of the Veterans Review and Appeal Board Act and section 2 of the Pension Act. The applicant contends that a failure on the part of the VRAB to observe and adhere to these provisions amounts to a jurisdictional error. According to the applicant, therefore, the decision of the VRAB, to the extent these provisions have not been adhered to, is subject to judicial review, whether the result is patently unreasonable or not (Ballingall v. Canada (Minister of Veterans Affairs) (1994), 76 F.T.R. 44 at para. 16).

[29]            The applicant submits that the VRAB not only failed to conform to and comply with the provisions cited above, but specifically rejected the mandatory directions of section 39 of the Veterans Review and Appeal Board Act. The applicant claims that instead of complying with the Act, the VRAB, on its own initiative and without prior notice to the applicant, sought further evidence and opinion to contradict that already present on its record.

[30]            The applicant also alleges that the VRAB failed to comply with the order of Campbell J. dated November 7, 1997, in which Campbell J. criticised the VRAB for failing to base its decision on the evidence before it. The applicant contends that notwithstanding this clear direction from the Court and notwithstanding repeated objections from the applicant's solicitors and the applicant's representative at the Bureau of Pensions Advocates, the VRAB once again proceeded to conduct its own research into the case before it. The applicant argues that this action by the VRAB was patently in excess of its jurisdiction.

[31]            Furthermore, the applicant submits that, when the VRAB failed to accept the evidence before it on the record, but opted instead to seek out evidence and opinion to the contrary on its own volition, it ceased to be capable of recognition as an impartial adjudicator on the appeal before it. The applicant contends that the VRAB's actions in seeking out evidence and opinions from the OJAG in the present case meet not only the "reasonable apprehension of bias" test, but demonstrate a clear and palpable bias in the proceedings. In addition, the applicant alleges that the VRAB abandoned its jurisdiction and abdicated its responsibility to decide on the issue before it, opting instead to simply accept the opinion of the third party "expert" it had previously retained on the matter.

B. The Respondents' Submissions

(i)        Issue 1:

[32]            The respondents submit that the applicant's application for a pension was correctly decided pursuant to subsection 21(2) of the Pension Act. The respondents contend that in order to claim for a pension for disability from any injury or disease or an aggravation thereof, that disability or disease must arise out of or be directly connected with the military service ([1983] 2 S.C.R. 362">Merineau v. The Queen, [1983] 2 S.C.R. 362, rev'g [1982] 2 F.C. 376 (C.A.), aff'g [1981] 1 F.C. 420 (T.D.)). The respondents allege that the VRAB applied the correct test in arriving at its determination that the applicant's hepatitis did not arise out of or was directly connected with his military service in peace time, and that the opinion provided by the OJAG regarding "official temporary duty" supports the decision of the VRAB (Moar v. Canada (Attorney General) (1995), 103 F.T.R. 314 (F.C.T.D.)).

[33]            Furthermore, the respondents contend that, in rendering its decision, the VRAB accepted the evidence of the applicant that the contaminated mussels may have been consumed in an all-ranks mess on the base. The respondents submit that the VRAB correctly decided that the mere fact that the mussels may have been consumed on base did not bring the claim within section 21(2) of the Pension Act, in the absence of evidence that the applicant's hepatitis arose in the course of or was directly connected to his military service (R.E.C. v. Canada (Attorney General), [1998] F.C.J. No. 1420 (F.C.T.D.)).

(ii)       Issue 2:

[34]            With respect to paragraph 21(3)(e) of the Pension Act, the respondents claim that the VRAB reviewed the legislation itself as well as all of the available evidence submitted in support of the claim; however, the VRAB was not presented with any statistical evidence regarding the incidence of hepatitis in Sardinia as opposed to other parts of the world, including Canada. The respondents submit that without such data, the VRAB was unable to determine if the hygiene hazards in Sardinia were such that they constituted health hazards to those serving in the area.

(iii)      Issue 3:

[35]            As for paragraph 21(3)(f) of the Pension Act, the respondents argue that the applicant did not rely upon this provision in his submissions to the VRAB. The respondents contend that in any event, the VRAB considered the evidence tendered by the applicant to determine if it was credible and reasonable. The respondents submit that although the VRAB did not accept the applicant's evidence, the VRAB did not commit a reviewable error.

(iv)       Issue 4:

[36]            Finally, with respect to the opinion from the OJAG, the respondents allege that it was reasonable for the VRAB to consult with the OJAG regarding the definition of "official temporary duty". The respondents further submit that the VRAB acted within its jurisdiction and in compliance with the Order of Justice Campbell in seeking the opinion of the OJAG, rather than relying on its understanding of the term "temporary official duty". The respondents contend that the doctrine of nemo judex has not been offended by the VRAB's decision to consult with the OJAG, that the VRAB has shown no bias, and that the VRAB's letter to the OJAG did not suggest any conclusion in determining the issue of official temporary duty.

ANALYSIS

A. The Standard of Review

[37]            In MacDonald v. Canada (Attorney General) (1999), 164 F.T.R. 42 (F.C.T.D.), Cullen J. concluded the following with respect to the standard of review which must be applied when this Court is reviewing a decision by the Veterans Review and Appeal Board, at paragraph 21:

On an application for judicial review, the Court may not substitute its decision for that made by the board or tribunal which is under review. In light of the legislative framework which confers exclusive jurisdiction on the Veterans Review and Appeal Board, as well as the privative clause which renders its decisions final and binding, the applicable standard of review is that of patent unreasonableness: Weare v. Canada (Attorney General), [1998] F.C.J. No. 1145, (T-347-97, 11 August 1998). Thus, the reviewing Court may interfere only in the event that the impugned decision was based on an error of law, or on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it: Hall v. Canada (Attorney General), [1998] F.C.J. No. 890, (T-2267-97, 22 June 1998).

[38]            Therefore, the standard of review that must be applied is that of patent unreasonableness.

B. Evidence before the VRAB

[39]            Pursuant to section 39 of the Veterans Review and Appeal Board Act, the VRAB must draw from the evidence presented to it every reasonable inference in favour of the applicant and accept any uncontradicted evidence presented to it by the applicant that it considers to be credible in the circumstances. Section 39 provides that the VRAB must accept all uncontradicted evidence, but this does not mean it must accept all evidence. If the VRAB is of the opinion that the evidence is not credible, it can reject it, as stated by Cullen J. in MacDonald, supra, at paragraph 22:

It is settled law that a tribunal does not have to make an explicit written finding on each element which leads to its ultimate conclusion; indeed, there is a presumption that the tribunal has dealt with all of the documents which were placed before it: Henderson v. Canada (Attorney General) (1998), 144 F.T.R. 71 (T.D.). However, this is tempered, or qualified, by section 39 of the Veterans Review and Appeal Board Act, which requires that when new and credible evidence is presented during a reconsideration proceeding, the Board has a duty to consider and weigh the evidence, drawing every reasonable inference in the applicant's favour. This does not mean that the Board must automatically accept whatever submission is made by a veteran; rather, the evidence must be accepted if it is credible and reasonable, and uncontradicted.

[40]            It is clear that the VRAB can consider and weigh the evidence submitted and assign to that evidence the weight it considers appropriate. However, the evaluation of the evidence must always be done in conformity with sections 3 and 39 of the Veterans Review and Appeal Board Act, which means that the VRAB must accept the evidence submitted unless it makes a determination with respect to the lack of credibility of the evidence or unless the evidence is contradicted by other evidence submitted. In Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (T.D.), MacKay J. stated the following with respect to evidence before the VRAB and the consequences of rejecting evidence contrary to section 39, at paragraph 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, in my opinion, is not apt if the error concerns the exercise of the Board's jurisdiction.

[41]            For the reasons that follow, I need only deal with the first and fourth issues to dispose of this judicial review application.

[42]            The first issue deals with paragraph 21(2)(a) of the Pension Act, which provides that in respect of military service in peace time, where a member of the forces suffers disability resulting from a disease that arose out of or was directly connected with the military service, a pension will be awarded.

[43]            In its decision, in order to answer the question as to whether the applicant's hepatitis arose out of or was directly connected with his military service, the VRAB proceeded to consider the question as to whether the applicant could be said to have been on duty when he ate the contaminated mussels. As the applicant was in Sardinia in the context of "official temporary duty", the VRAB stated the following at the beginning of its analysis under paragraph 21(2)(a) of the Pension Act:

The point which is at issue here and most critical not only to the decision at hand, but to similar appeals which may come before this Board, is the definition of "official temporary duty".

[44]            A detailed analysis of the meaning of "official temporary duty" followed, which included consideration of the opinion provided by the OJAG on the subject. After a review of the term "official temporary duty" and a finding that a member of the forces on official temporary duty was not on duty 24 hours a day, the VRAB concluded that the applicant's hepatitis could not be said to have arisen out of or to have been directly connected with his service in peacetime. The VRAB also concluded that it was not relevant whether the mussels were eaten by the applicant on or off the base, because there was no evidence indicating that the hepatitis resulted from a military activity or as a result of an activity in furtherance of military duties or obligations.

[45]            I am unable to see where in the Pension Act is the requirement that the injury or disease be the result of an incident occurring while the member of the Armed Forces is on duty. As pointed out by the applicant, paragraph 21(2)(a) of the Pension Act provides two criteria for determining whether a pension can be attributed: the disease must either (1) arise out of service or be (2) directly connected with service. It does not appear that anything else is required. Although paragraph 21(3)(f) of the Pension Act creates a presumption than an injury or disease incurred during a military operation, training or administration, is one that arises out of or is directly connected with military service, paragraph 21(2)(a) does not so limit the occurrence of the injury or the disease.

[46]            In my opinion, the VRAB's analysis with respect to the definition of "official temporary duty", including the views obtained from the OJAG, misses the point. Whether the applicant was on duty 24 hours a day or not is not the test nor the issue. The issue is whether the applicant's disease arose out of his military service or was directly connected with his military service.

[47]            The fact that the injury or disease, which caused a disability to a member of the Forces, occurred while he was on duty is a relevant factor only to the extent that it enables the VRAB to understand the context in which the injury or the disease arose. However, deciding when the disease or injury occurred does not provide the answer to the question as to whether the injury or disease arose out of military service or was directly connected with that service.

[48]            The question before me is not a new one. A number of cases have dealt with this issue. In Ewing v. Canada (Veterans Review and Appeal Board) (1997), 137 F.T.R. 298 (F.C.T.D.), the applicant, a member of the Canadian Armed Forces, was serving in West Germany. Because he spoke German and was involved with public relations activities in relation to the Canadian Air Force hockey team, his superior in the Military Police asked him to take on the public relations function, a voluntary function. As a result, the applicant was involved, inter alia, in raising funds from German businesses to support the hockey team.

[49]            On November 29, 1965, the applicant, while a passenger in the car of a West German neighbour, was seriously injured as a result of an accident. His neighbour, the driver of the car, was killed, as were other persons involved in the accident. A Board of Inquiry determined that the applicant was not on duty at the time of the occurrence.

[50]            The applicant made a claim for a pension, under the Pension Act, and the Canadian Pension Commission dismissed his application in the following terms:

There is no evidence which would tend to establish that the injury was incurred at a point in time when the Applicant was actually engaged in the performance of a duty and therefore his injuries are not attributable to Military service as such. To the contrary, the Board of Inquiry clearly establishes that the Applicant was not on duty at the time of the accident.

[51]            The applicant appealed to the Entitlement Board which dismissed his appeal. The Board concluded:

Nevertheless, as the Military Board of Enquiry [sic] subsequently found, "Corporal Ewing was not on duty at the time of the accident." Our Board also cannot in any way connect this accident which occurred off duty with his Military duties.

[52]            The applicant then appealed that decision to the VRAB. In affirming the Entitlement Board's decision, the VRAB stated:

The Board has carefully reviewed the evidence in light of the Advocate's submission and has considered and put weight on the testimony of the Appellant [here the applicant], but unfortunately cannot agree with the argument that the Appellant was on duty at the time of his accident.

There is a Report on Injuries dated November 29, 1965 which indicates that a Board of Inquiry will determine the duty status issue. This inquiry ... discusses the said accident and finds "Corporal Ewing was not on duty at the time of the accident." Pension entitlement can only be granted if the claimed conditions arose out of or were directly connected with military service in peacetime.

This Board has only one option where there is a finding that the Appellant was not on duty at the time of the accident, and that is Pension entitlement cannot be granted. The decision of the Entitlement Board of November 15^th, 1994, is affirmed.

[53]            The VRAB's decision was challenged by way of a judicial review application to this Court. On October 15, 1997, Gibson J. allowed the application. At paragraph 8 of his Reasons, the learned judge explains his conclusion in the following terms:

8.             I conclude that the Board, in the portion of its reasons for decision cited above, cited the proper test to determine whether the applicant is entitled to be awarded a pension under paragraph 21(2)(a) of the Act but then went on to ignore that test and determined against the applicant on the basis that he was not "on duty" at the time of the accident that resulted in his injuries. Whether or not he was on duty is simply not the test. The test is whether or not the applicant's injuries leading to disability "... arose out of or [were] directly connected with ... military service [in peace time]". Further, the Board appear not to have considered paragraph 21(3)(f) of the Pension Act, whether the injuries arose out of training or administration as a result of a specific order or "... established military custom or practice ...". Given its error regarding the appropriate test and paragraph 23(1)(f), the Board never got to the point of taking into account the interpretative obligations imposed on it by section 2 of the Pension Act and sections 3 and 39 of the Veterans Review and Appeal Board Act.

[54]            A similar issue arose in McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (T.D.). In that case, the applicant, a member of the Canadian Armed Forces, was seriously injured on November 10, 1992. Upon returning to the base from his dinner at a local restaurant, the applicant, while crossing a road to return to the base, was hit by a vehicle. Because there were no mess facilities on the base, the Armed Forces had agreed to reimburse the applicant for the cost of his restaurant meals. His claim for a pension was rejected on the ground that his injury did not arise from or was not directly connected with his military service.

[55]            Ultimately, the applicant applied to this Court for judicial review of the VRAB's decision. In dealing with the issue as to whether the Board had misinterpreted the Pension Act, Evans J. (as he then was), at pages 670 and 671 of his Reasons, made the following remarks:

60.           Counsel for the applicant argued that the Board's decision was legally flawed because it was apparent from the reasons that it had misinterpreted the statutory phrase "arose from or was directly connected with" military service.

61.           First, he submitted that it could be inferred from the Board's reference in its reasons to the fact the phrase in question had a long legal pedigree, including its early appearance in British workers' compensation legislation, that it had failed to approach its application in a manner consistent with the very different context of the Pension Act.

62.           Unlike workers' compensation legislation, pensions are payable under the Pension Act regardless of whether the claimant's injury resulted in loss of income. Rather, as section 2 of the Pension Act and section 3 of the Veterans Review and Appeal Board Act make clear, the provisions dealing with pension entitlement are to be interpreted broadly, since they are a statutory recognition of the nation's debt to men and women who have been willing to put life and limb at risk in the service of their country, and to suffer the other inconveniences of a military career.

63.           There are two difficulties with this argument, however. Despite its generous wording, section 2 of the Pension Act still speaks of an obligation to compensate members of the Armed Forces disabled as a result of military service. The analogous section 3 of the Veterans Review and Appeal Board Act does not, however.

64.           Moreover, the Board's reasons do not indicate that it took an inappropriately strict compensatory approach to the statute. Nowhere did the Board state whether or not MWO McTague had sustained any loss of income-earning capacity as a result of his injury. What it did say is this:

It appears that a common thread throughout the Canadian Compensation cases (workers and veterans) regarding injuries sustained during meal break is the requirement that the employment or the service was a "contributing cause" and was not merely the setting in which the event occurred. [Veterans Review and Appeal Board, Decision No. 69665033, April 1, 1998, at page 2.]

65.           I cannot infer from this that the Board failed to interpret the relevant phrase in the statutory context of the Pension Act. It had already noted that the phrase also appears in Australian veterans legislation.

66.           Second, counsel submitted, the Board misinterpreted the Pension Act by importing terms not contained in the language of the statute itself, namely the distinction between "contributing cause" and "setting". In particular, it stated in its reasons that the fact that the applicant's injury occurred in the course of a working day did not provide a sufficient cause nexus to bring it within paragraph 21(2)(a). That the injury occurred during a working day was merely the "setting" not a "contributing cause".

67.           It is true that these words are not in the legislation; however, the phrase "directly connected" in my opinion required the Board to consider the strength of the causal connection between the injury and the applicant's military service. In contrasting "contributing cause" with "setting", the Board was distinguishing stronger from weaker causal connections between the injury and the performance of military service. Given that it is not sufficient that, when injured, the applicant was serving in the military, I find that the Board committed no error of law here in its understanding of the statutory test.

[56]            In MacNeill v. Canada (1998), 151 F.T.R. 121 (F.C.T.D.), I also dealt with this issue. After referring to section 21 of the Pension Act, I stated the following:

23.[...]

On the basis of the paragraphs noted above, two conditions must be met before the applicant can be said to be entitled to a pension. First, the applicant's condition must be pensionable. In that regard, it must be a condition which can be classified as a "disability" resulting from an injury or disease. In my opinion the word "disability" requires that the condition be one from which the applicant continues to suffer. Secondly, the original condition must arise directly from the applicant's military service. After carefully reading the provision I have concluded that the applicant's military service must be the primary cause for the disability. However, the Act also provides that a pension may be awarded if the disability is aggravated by the applicant's military service. In either case, causation must be established and, in absence of evidence to the contrary, causation is presumed if the injury was incurred during the course of the applicant's service. This presumption operates as a result of subsection 21(3) of the Act which provides that:

21(3)              For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of: ...

(f)                   any military operation, training or administration, either s 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.

[57]            It goes without saying that each case must be decided on its own facts. The facts herein are straightforward. The applicant, while on temporary duty in Sardinia, ate contaminated mussels, either on or off base, as a result of which he contracted Hepatitis type A. The issue is whether this disease arises out of or is directly connected with his military service.

[58]            I do not purport to answer this question one way or the other. It is not my role to do so in judicial review proceedings. I agree with my colleague Campbell J. that Brigadier General Christie's evidence was clear and unequivocal. However, that evidence is not determinative of the issue before the VRAB. The fact that the applicant may have been on duty 24 hours a day does not, per se, lead to the conclusion that his disease arises out of or is directly connected with his military service. If Campbell J. meant that Brigadier General Christie's evidence was conclusive on the issue, I cannot agree with him. Again, to repeat myself, the test is not whether the applicant was on duty when he ate the contaminated mussels.

[59]            In my view, the VRAB did not apply the proper test and, as a result, its decision cannot stand. Furthermore, I agree entirely with the applicant that the VRAB erred in seeking and in considering the opinion of the OJAG. In my view, contrary to the VRAB's belief, section 14 of the Veterans Review and Appeal Board Act does not allow the Board to search for evidence and to seek opinions with regard to the evidence and the issues before it in a given case. That position would nullify a number of provisions in that Act and, more particularly, section 39 thereof, which provides that the Board shall draw from the evidence before it every reasonable inference in favour of an applicant and that the Board is to accept any uncontradicted evidence before it that it considers credible in the circumstances.

[60]            The position taken by the VRAB would also render meaningless section 38 of the Veterans Review and Appeal Board Act, which authorizes the Board to obtain independent medical advice in respect of the issues before it. The section also allows the Board to require an applicant to submit himself or herself to a medical examination directed by the Board. When the Board intends to exercise the power conferred upon it by section 38, it must notify an applicant of its intention to do so and allow the applicant an opportunity to argue the issue. If the position taken herein by the Board were correct, section 38 of the Veterans Review and Appeal Board Act would have to be considered as an example only of the broad powers given to the Board by section 14 of that Act. In my view, that cannot be the correct position. Consequently, the Board was wrong in seeking opinions from the OJAG and in considering these opinions in reaching its conclusion.

[61]            At page 5, paragraph 10 of these Reasons, I have reproduced, in part, the letter written by the VRAB to the OJAG, seeking out answers with respect to a number of questions. Specifically, the VRAB sought answers with respect to the meaning and origin of the term "official temporary duty", with respect to whether a member of the Armed Forces on "official temporary duty" was considered by the Armed Forces as being on duty 24 hours a day from the time he left his base until his return thereto, with respect to whether a member on "official temporary duty" was entitled to benefits pursuant to subsection 21(2) of the Pension Act for any disability or disabling condition resulting from an off-duty incident and, finally, with respect to the "protection" given to a member of the Armed Forces while on "official temporary duty" and whether that protection included benefits under subsection 21(2) of the Pension Act.

[62]            It is clear that the VRAB was seeking the assistance of the OJAG in respect of the issues that were before it and which it had to decide. It is also clear from the Board's decision, particularly from page 10 thereof, that the views of the OJAG were determinative of the first issue. At page 10 of its decision, the VRAB states the following:

While it may have been Brigadier General Christie's understanding that official temporary duty away from home base provided Mr. King full authorization to proceed into the local economy (of Sardinia) for meals and recreation and that such authorization provided him with 24 hour protection by the "rules and regulations of the RCAF", it is clear from the office of the Judge Advocate that his understanding was deficient or misguided or erroneous. While the Federal Court decision found that Brigadier General Christie's evidence was "... clear, unequivocal and on the face of the record unassailable,' this Board in the light of the Judge Advocate's opinion must conclude, based on the evidence before it, that while Mr. King's Hepatitis condition was contracted during his period of service in Sardinia in 1968, it can not be said to have "arisen out of or directly connected with his service in peacetime" as that term is defined in the Pension Act.

[63]            The VRAB had to decide the relevant issues on the basis of the record before it. That record, in my view, did not include the views of the OJAG. As the VRAB is not authorized by its enabling legislation to seek out opinions at will, its decision to seek out the OJAG's views and its consideration thereof, constitutes a reviewable error.

[64]            For these reasons, this application for judicial review must be allowed. The VRAB's decision will, therefore, be set aside and the matter will be referred to a differently constituted panel for reconsideration.

[65]            Before signing these Reasons, however, I wish to add the following, which might be helpful to the new panel. Firstly, it cannot be disputed that paragraph 21(2)(a) of the Pension Act is more narrow in scope that paragraph 21(1)(a) thereof. That is clear on the face of the two provisions. Pursuant to paragraph 21(1)(a), any injury or disease incurred during an applicant's military service is pensionable. Pursuant to paragraph 21(2)(a), only those injuries or diseases which arise out of or are directly connected with an applicant's military service are pensionable. Thus, pursuant to paragraph 21(2)(a), not all injuries or diseases which occur during an applicant's military service are pensionable. As I stated in MacNeill, supra, an applicant's military service must be the primary cause of the injury or the disability and causation must be established. That determination, it goes without saying, must be made on the basis of the evidence before the Board and not otherwise.

[66]            I am supported in this view by the decision of Evans J. (as he then was) in McTague, supra and, more particularly, by paragraphs 66 and 67 of his Reasons, where he states:

66.           Second, counsel submitted, the Board misinterpreted the Pension Act by importing terms not contained in the language of the statute itself, namely the distinction between "contributing cause" and "setting". In particular, it stated in its reasons that the fact that the applicant's injury occurred in the course of a working day did not provide a sufficient cause nexus to bring it within paragraph 21(2)(a). That the injury occurred during a working day was merely the "setting" not a "contributing cause"

67.           It is true that these words are not in the legislation; however, the phrase "directly connected" in my opinion required the Board to consider the strength of the causal connection between the injury and the applicant's military service. In contrasting "contributing cause" with "setting", the Board was distinguishing stronger from weaker causal connections between the injury and the performance of military service. Given that it is not sufficient that, when injured, the applicant was serving in the military, I find that the Board committed no error of law here in its understanding of the statutory test.

[67]            In paragraph 67 of his Reasons, Evans J. (as he then was) makes it clear that, in his view, there must be a causal connection between the injury or the disease and an applicant's military service. The learned judge also states that the fact that the injury or disease occurs during the course of an applicant's military service does not, per se, render the disability pensionable. As I have already made clear, I agree entirely with that opinion.

[68]            The applicant shall be entitled to his costs.

                                                                                        Marc Nadon

                                                                                                JUDGE

O T T A W A, Ontario

May 29, 2001