Date: 20000406
Docket: T-672-99
| Between: Danno Gary SCHUT, |
Applicant,
- and -
The Attorney General of Canada,
Respondent.
REASONS FOR ORDER
Muldoon, J.
[1] Corporal Danno Gary Schut, a courageous search and rescue technician, was a field engineer and "a soldier"s soldier" but he was not exempt from basic human frailties. The past tense is employed because Cpl. Schut became unfit to be a soldier in a horrendous one-car motor vehicle collision on December 27, 1989.
[2] Mr. Schut applies for judicial review, pursuant to section 18.1 of the Federal Court Act, S.C. 1990, Chap. 8, section 5, of a decision by an appeal panel of the Veterans Review and Appeal Board arising from a hearing on February 11, 1999, in which a claim for pensionable
Page: 2
entitlements was rejected. He seeks an order setting aside the decision of the board and such further relief which this Court may deem just.
Facts
[3] The applicant began his career as a search and rescue technician in January, 1977. He was stationed at CFB Comox as a member of 442 Transport and Rescue Squadron. While on Christmas leave in 1979, the applicant learned of a shipping disaster: the Panamanian vessel Lee Wang Zin had capsized off the west coast in 12 metre waves, with some of her crew still inside the hull. The applicant twice telephoned Warrant Officer Copeland, his leader, on December 26 and volunteered his services. The warrant officer accepted that offer, and the applicant returned to the base on December 27, 1979.
[4] The purpose of the applicant"s trip to the base was to ensure that his personal operational gear was in order, fully operational and prepared for the following morning"s mission. On his way home, after inspecting and preparing his gear, the applicant spent approximately three and one half hours at the Westerley Hotel discussing the upcoming mission with a colleague. He states that he consumed two beers. Both men left the hotel in the applicant"s car at approximately 11:30 pm. Constable Lapp of the RCMP asserts that he began to follow the applicant, eventually turning on his flashing lights, as the applicant was speeding down the centre of a city street at speeds which subsequently reached 130 km/h, as estimated by Const. Lapp. The applicant states that he does not remember anything after the flashing lights were turned on. In any event, he eventually lost control of his car and hit a tree plus a power pole before coming to a stop. The applicant suffered serious injuries and was charged with three counts of dangerous driving. The applicant"s only passenger on that occasion, Private Neil Fredheim, who had been with him at the Westerley, suffered injuries which were serious enough, too.
[5] The applicant was discharged from the regular forces in February, 1981 and subsequently applied for pension benefits from Veterans Affairs Canada. He initially based his application to the Canada Pension Commission on the claims that he was on duty at the time of the accident and that the crash was caused, not by his attempt to flee the police, but because he was terribly anxious about the next day"s mission. There was no evidence put before the Commission, however, to support this last contention. The applicant"s application was turned down on April 6, 1992. He appealed this decision, however, to a review panel of the Veterans Review and Appeal Board (the review panel) pursuant to subsection 19(1) of the Veterans Review and Appeal Board Act , S.C. 1995 Chap. 18, section 39.
[6] In his appeal, the applicant argued that the accident was related to duty or, in the alternative, arose out of or was directly connected with his military service. At the beginning of the hearing, on September 23, 1997, counsel for the applicant also began to introduce evidence that, at the root of the accident, was the applicant"s acute stress disorder (hereinafter a.s.d.). The review panel suggested to counsel, however, that evidence of anxiety would be better dealt with through another application to Veterans Affairs Canada and, after some consultation with the applicant, counsel discontinued these submissions. Based solely on the duty and military service issues, the applicant"s appeal was rejected in an undated decision. The applicant appealed this decision to an appeal panel of the Veterans Review and Appeal Board (hereinafter appeal panel). In the meantime, an application to the Canada Pension Commission, based on evidence of a.s.d. proffered by Dr. Fraser and Dr. Nozick, was rejected after a hearing on February 27, 1998. His appeal of this decision to a second review panel was heard in 1998 and 1999 but a decision continues to be pending.
[7] In respect of the appeal to the appeal panel, a hearing was held in Charlottetown and in Ottawa with the help of videoconferencing equipment on February 11, 1999. In an undated decision which all parties agree was made on March 15, 1999, the appeal panel rejected the appeal of the first review panel"s decision.
[8] [The two preceding paragraphs indicate date-posting failures upon which the respective veterans" boards need to be "smartened up".]
[9] In coming to its decision, the appeal panel remarked on the conflicting evidence with regard to why the applicant had gone to the base in the first place. It wrote at page 7:
| What is troubling with Corporal Fredheim"s statement is not that he omits to speak to their going to the base "to check out the gear" but that he actually spoke of "going to the club at the base". The Tribunal finds that there is some doubt as to whether or not the Appellant and Mr. Fredheim did proceed earlier on in the evening to check the Appellant"s gear, and that there is a problem of credibility as to the quantity of beer consumed during the period of at least three hours they were at the Westerley Hotel. |
The panel resolved its doubts concerning the applicant"s intent on going to the base in favour of the applicant, however, writing at page 2:
| The Appellant would have returned to Comox, arriving on or about 1800 hours on the eve of his departure. On that same day (the eve of his departure) the Appellant as well as Private Fredheim, went to the base to check the Appellant"s gear in order to be fully prepared for the departure the following morning. [emphasis added] |
The panel diluted the crispness of its findings by its curious use of the conditional tense [ie: would have returned ...].
[10] The appeal panel also turned its attention to the number of beers which the applicant drank previous to the accident. Despite its uncertainty on this issue, as indicated in the passage cited above, it wrote in the portion of its decision dealing with facts at page 2:
| That same evening, on or about 2030 hours, the Appellant and Private Fredheim went to a hotel by the name of Westerley where they would have consumed respectively two and four beers up until the approximate time of 2330 hours. [emphasis added] |
As a result, at page 8, it resisted concluding that the applicant had been impaired at the time of the accident:
| This Tribunal has already decided to grant the Appellant and his companion the benefit of the doubt and does not conclude at this time whether the Appellant was impaired or not. |
Having come to this conclusion, was the panel not somewhat snide and unfair to have disseminated previously the above expressed doubts? The panel is, after all, bound by section 3 of the Veterans Review and Appeal Board Act. What a strange expression : "does not conclude... whether the Appellant was impaired or not".
[11] The appeal panel also addressed the issue of whether the applicant"s actions leading up to the accident could be linked to his military service. In answering submissions by the applicant on this matter, it wrote at page 14:
| That the Review Panel could consider section 97 [of the National Defence Act] in order to ascertain the nature of "on duty status" and/or "warned to duty status", but that in any event, it is not the proper test; |
It went on to address what sort of link is required under subsection 21(2) of the Pension Act, R.S.C. 1985, Chap. P-6 in order for a claimant to be entitled to pensionable benefits. Counsel for the applicant suggested that, in determining whether a link existed at the time of the accident, the panel take advantage of the incidental activity theory. The panel declined the invitation at page 13:
| Although recognizing that the incidental activity theory that may be found in the Workers [sic] Compensation Cases is of interest, this theory or concept has never been adopted by this Board. The only and proper test is the one provided by subsection 21(2) of the Pension Act, ie whether the injuries arose out of or were directly connected with military service. |
[12] In applying the facts to the criteria of subsection 21(2), the panel focussed, in part, on the fact that the applicant had spent time at the Westerley Hotel. It wrote at page 7:
| However, this stopover at the hotel (the pub) although possibly being of factual circumstances not directly causing the accident which would later occur in the evening, constitutes a supplemental element of fact that creates an additional element severing the causal relationship necessary to find that the injuries arose out of or were directly connected with military service as prescribed by subsection 21(2) of the Pension Act. |
[13] Finally, in perhaps answering one of the applicant"s six main submissions, the panel wrote, at page 14:
| That it would be patently unreasonable for someone to invoke their [sic] own turpitude, and then claim pensionability; |
It is not clear to what this comment was directed or how it answered the applicant"s submissions. No "turpitude" has been proved by anyone against the applicant. Whatever it means, though, the finding strikes this Court as perverse, if not malicious.
[14] At the end of this Court"s hearing of the applicant"s application, counsel were invited to make submissions in writing addressing any points they considered needed clarifying. Counsel for the respondent clarified where the applicant stood vis à vis his appeal of the original decision concerning his claim of a.s.d. Counsel for the applicant chose not to make any additional submissions.
Legal Issues
[15] The panel was obliged to apply the following provisions of the Veterans Review and Appeal Board Act.
| 1. This Act may be cited as the Veterans Review and Appeal Board Act.
18. The Board has full and exclusive jurisdiction to hear, determine and deal with all applications for review that may be made to the Board under the Pension Act, and all matters related to those applications.
39. In all proceedings under this Act, the Board shall
| (a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; |
| (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and |
| (c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case. |
|
1. Loi sur le Tribunal des anciens combattants (révision et appel).
18. Le Tribunal a compétence exclusive pour réviser toute décision rendue en vertu de la Loi sur les pensions et statuer sur toute question liée à la demande de révision.
39. Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les règles suivantes en matière de preuve_:
| a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci; |
| b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l'occurrence; |
| c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande. |
|
[16] The following provisions of the Pension Act were also relied on by the panel.
| 1. This Act may be cited as the Pension Act.
2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
3. (1) In this Act,
[...]
"improper conduct" includes wilful disobedience of orders, wilful self-inflicted wounding and vicious or criminal conduct;
21 (2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,
| (a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I; |
[...]
22. (1) Subject to this section, a pension shall not be awarded when the disability of the member of the forces was due to improper conduct.
(2) The Minister may, when the applicant is in a dependent condition, award such pension as the Minister deems fit in the circumstances.
(3) Where venereal disease was contracted by a member of the forces prior to enlistment and aggravated during service, pension shall be awarded for the total pensionable disability existing at the time of discharge in all cases where the member saw service in a theatre of actual war, and no increase in disability after discharge is pensionable, but, if it subsequently appears on examination that the disability has decreased in extent, pension shall be decreased accordingly; and pension may thereafter be increased or decreased, subject to the limitation prescribed in this section, in accordance with the degree of disability that may be shown to exist on any subsequent examination.
|
1. Loi sur les pensions.
2. Les dispositions de la présente loi s'interprètent d'une façon libérale afin de donner effet à l'obligation reconnue du peuple canadien et du gouvernement du Canada d'indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge.
3. (1) Les définitions qui suivent s'appliquent à la présente loi.
[...]
"mauvaise conduite" Sont assimilés à une mauvaise conduite la désobéissance préméditée aux ordres, le fait de se blesser délibérément soi-même et la conduite malveillante ou criminelle.
21 (2) En ce qui concerne le service militaire accompli dans la milice active non permanente ou dans l'armée de réserve pendant la Seconde Guerre mondiale ou le service militaire en temps de paix,
| a) des pensions sont, sur demande, accordées aux membres des forces ou à leur égard, conformément aux taux prévus à l'annexe I pour les pensions de base ou supplémentaires, en cas d'invalidité causée par une blessure ou maladie " ou son aggravation " consécutive ou rattachée directement au service militaire; |
[...]
22. (1) Sous réserve des autres dispositions du présent article, une pension ne peut être accordée lorsque l'invalidité du membre des forces est due à sa mauvaise conduite.
(2) Le ministre peut, lorsque le demandeur est dans un état de dépendance, accorder la pension qu'il juge convenable dans les circonstances.
(3) En cas de maladie vénérienne contractée avant l'enrôlement et aggravée au cours du service, la pension est accordée pour la totalité de l'invalidité ouvrant droit à pension au moment de la libération dans tous les cas où le membre des forces a servi sur un théâtre réel de guerre. Nulle augmentation de l'invalidité après la libération n'ouvre droit à pension, mais si, par la suite, il apparaît sur examen que le degré de cette invalidité a diminué, la pension est réduite en conséquence; la pension peut ensuite être augmentée ou diminuée, sous réserve de la restriction prévue au présent article, selon le degré d'invalidité qui peut être constaté lors de tout examen subséquent.
|
[17] There are six issues in dispute. A preliminary issue concerns whether this Court may properly have regard to affidavit evidence laid before it that was not before the appeal panel. The first substantive issue concerns whether the appeal panel erred in law in not applying section 39 of the Veterans Review and Appeal Board Act. The second issue concerns whether the appeal panel erred in law in interpreting subsection 21(2) of the Pension Act. The third and fourth issues concern whether the appeal panel erred in concluding that the necessary causal link between the injuries and the applicant"s military service was broken first, by the applicant"s stop at the Westerley Hotel and second, by the applicant being impaired. Another issue concerns whether the panel erred in stating that it would be patently unreasonable for someone to invoke his own turpitude and then claim pensionability.
[18] As a preliminary matter, the respondent takes exception to the affidavit of Mr. Gledhill being included in the applicant"s record. He submits that the affidavit was not before the appeal panel and that it contradicts the evidence of RCMP Const. Lapp with regard to the reason for the constable giving chase. This Court has commented numerous times on the legal inability of parties to introduce new evidence which was not before the tribunal in question; Brychka v. Attorney General of Canada , [1998] 3 F.C. D-12, 141 F.T.R. 258 (F.C.T.D.). There being no reason to depart from this line of authority, the affidavit of Mr. Gledhill, and all of the applicant"s references as to why he was pursued by the RCMP will be disregarded.
[19] The first substantive issue arises from the applicant"s submission that the appeal panel breached section 39 of the Veterans Review and Appeal Board Act by deciding that parts of the evidence of Private Fredheim and Major Day were contradictory. The applicant also submits that the appeal panel breached section 39 by failing to explain how Private Fredheim"s evidence was contradicted. He also submits that the appeal panel should have given less weight to or should have ignored Private Fredheim"s statement of January 15, 1980, as recorded by Major Day, and concentrated on the private"s later statement in a letter dated May 23, 1992. He alleges that the appeal panel ignored the fact that the applicant went to the base, inspected his gear and only then proceeded to the Westerley Hotel. Finally, the applicant submits that the appeal panel should not have drawn an unfavourable inference against him, in particular as his evidence was not contradicted.
[20] The respondent allows that the appeal panel found the evidence of Private Fredheim and Major Day contradictory but submits that it drew an inference in favour of the applicant. It submits that the appeal panel, therefore, did not breach section 39 of the Veterans Review and Appeal Board Act.
[21] It is clear that the evidence of Major Day and that provided later by Private Fredheim contradict each other. The former implies that the applicant came to the base with the sole intent of going for a drink, and the latter indicates that the intent was to inspect gear in preparation for the next day"s mission. Acknowledging this, is not proscribed by any of the provisions in section 39. Nor is there a duty on the part of the appeal panel, however, to spell this contradiction out word for word. Neither is there any evidence that the panel ignored Private Fredheim"s second statement concerning why he and the applicant were on the base. It is clear, in fact, that the panel accepted Pvt. Fredheim"s second statement and resolved any doubts as to why the applicant was on the base in his favour. The applicant"s submission, his point of argument, therefore prevails.
[22] The applicant submits next that the appeal panel erred in law in interpreting subsection 21(2) of the Pension Act. He submits, in particular, that the panel"s use of the word "duty" is an error as the subsection requires only that there be a causal connection between a disability and a claimant"s military service. The applicant, in essence, alleges that the panel erred in interpreting subsection 21(2) as requiring a claimant to be on duty at the time that a disability arises. The respondent submits that no such error occurred and that the panel informed itself correctly in regard to the proper interpretation of subsection 21(2) of the Pension Act .
[23] The appeal panel addressed the type of connection required linking a claimant"s injuries and pension entitlements. At page 9 of its decision it wrote:
| Whether a person is on duty does not necessarily determine whether an injury arose out of or was directly connected with military service for the purposes of the Pension Act. |
| It has been the policy of this board and its predecessors to apply the broadest approach in applying the provisions of subsection 21(2) of the Pension Act. As long as it can be factually demonstrated that the member was actively engaged in the performance of some form of military service, acting within the scope of the duty assigned, meeting a bona fide military requirement or going about some activity of the service, pension could be awarded under these provisions. |
This clearly shows that the panel did not, as the applicant asserts, consider whether he was on duty. The panel does refer to the scope of an assigned duty but this is different from, and a much broader concept than that of, being on duty. The only other possible inference supporting the view that the panel may have incorrectly considered the concept of duty arises later in the reasons at page 12:
| On the question of the issue raised by Counsel on Appeal as to the Entitlement Review Panel having erred in failing to find that the injury arose out of or was directly connected with military duty, mainly in a reasonable incidental activity to the performance of his military service, this Tribunal agrees that this is the fundamental question arising out of this matter. |
The Court considers this statement, however, as an explanation of the applicant"s submission. It cannot, therefore, be indicative of an error in the panel"s analysis with regard to the concept of duty and its place within the meaning of military service.
[24] The applicant submits that the appeal panel erred in stating that the necessary causal link between the injuries and the applicant"s military service was broken, in part, by the applicant"s stop at the Westerley Hotel. In essence, he takes issue with the panel"s application of the facts to the phrase "disability that [...] arose out of or was directly connected with such military service" which is found in subsection 21(2) of the Pension Act . In addition, however, he argues that the rules of statutory interpretation, section 2 of the Pension Act and interpretations of analogous Acts, such as the Workers' Compensation Act of Alberta, S.A. Chap 1981, W-16, cited by the applicant's counsel indicate that the requirements of subsection 21(2) are relatively modest. The arguments, in essence, point to an error of law and an error of mixed fact and law. On consideration of the factors reviewed in Baker v. Minister of Citizenship and Immigration (1999) 174 DLR (4th) 193, 243 NR 22 (S.C.C.), this Court will review the question of mixed fact and law invoking the unreasonableness standard.
[25] In respect of the question of law, the applicant submits that section 2 of the Pension Act obliges one to interpret liberally the requirement in subsection 21(2) that a claimant"s injury and military service be linked. This Court finds, in the circumstances, however, that this section is of little help.
[26] Section 2 of the Pension Act, in essence, does not require that every occasion be considered as linked to military service. In particular, it cannot automatically serve to expand the concept of military service to one who has stopped off for a few hours of drinking, smoking and commiserating and who has then driven off at a high speed, followed by police officers. This is so despite the facts that a claimant may have been on his or her way home from a base, where he or she performed military service, despite facts he or she may have been embarking on a dangerous mission the next day and despite the fact that he or she may have been under some considerable stress as a result. It must be noted, however, that were this same claimant to be suffering profound anxiety stress disorder - that is, acute stress disorder - at the time of these acts, this Court"s conclusion on this matter would have to be rather favourable to the applicant's claims. Subsections 39(a) and (c) are mandatory, and 39(b) does not call on the tribunal to be overly scrupulous or critical of evidence presenters.
[27] The second question of law submitted by the applicant is that a proper interpretation of subsection 21(2) of the Pension Act includes in military service activities which are reasonably incidental to military service. The applicant alleges that this is how Ontario"s workers' compensation legislation is interpreted, legislation which has, the applicant submits, far more stringent wording than that of the Pension Act . .
[28] The applicant submits that the appeal panel erred in concentrating on the activity in which the applicant was engaged at the time of the accident. The applicant relies on the reasons of Hugessen J. in Ruth Ellen Cummings v. Attorney General for Canada (T-1758-97, September 29, 1998) (F.C.T.D.) to suggest that the activity one is in engaged in is moot with regard to whether the criteria of subsection 21(2) are satisfied. The judgment, however, stands for a slightly different proposition. It provides that one must not look at an activity in isolation but must appreciate whether that activity was performed within the context of military service. In that case, a claimant suffered a disability during a battery while sleeping in a barracks, that which she had been ordered to do by her superiors. In the case under review, however, it cannot be said that the applicant was ordered to flee from the police or that he was ordered to drink at the Westerley Hotel. This is the simplistic conclusion to which the panel came and it can be considered an error. If the panel considered the drinking and the fleeing, it did so in a virtual vacuum of consideration and understanding of crucial evidence. Parliament has ordained that the applicant's testimony be regarded as credible. For a male in his peak physical condition, the two bottles of beer he admitted consuming must be accepted as a correct count; and also seen as not impairing his ability to drive his car carefully.
[29] The "blackout" in which he suffered acute stress disorder can - must - not be regarded as voluntary on the applicant's part. The evidence heard from the psychologist was conclusive in proving that the disorder symptoms were entirely involuntary - not a product of Cpl. Schut's will or wilfulness at all. The condition seized him unavoidably and he was powerless to exert any wilful control over it. It was a condition of strong panic and terror in which he was mindlessly fixated on the extreme, almost certain to be deadly, danger of the duty on which he knew he was to embark the next morning, indeed, in following the norm of inspecting his equipment, he had already embarked on his duty because that inspection was directly connected with his military service. It was unworthy of the review panel to characterize his aberrant conduct as a frolic of his own, as if he were a drunken lout seeking to impress his goofy contemporaries, or expressing his rebellion against, or contempt of, mature adult conduct. Such characterization was rightly abandoned by the appeal panel, in a curious, convoluted turn of phrase (decision of appeal panel p.7).
[30] As for the question of mixed fact and law, the applicant relies on Re Ramey and Workers" Compensation Board Appeals Commission, (1995) 128 D.L.R. (4th) 523 (Alta.Q.B.) in support of the proposition that even those who have stopped off at a bar for a few drinks satisfy subsection 21(2). As the respondent notes, however, that case offers little which is persuasive. First, it was overturned by the Alberta Court of Appeal, in (1997), 146 D.L.R. (4th) 460 (Alta.C.A.), in respect of the very issue on which the applicant relies. Second, the provincial pension regime in Alberta, including its appurtenant legislation and policy directives, cannot be considered as analogous to the federal one and in particular, to the Pension Act. The submission, therefore, must be dismissed.
[31] The applicant"s fourth submission is that the appeal panel erred in stating that the causal link between his injuries and his military service was broken, in part, by the applicant being impaired. At the hearing, counsel for the applicant argued, in particular, that the finding of impairment flies in the face, and betrays a disregard, of Dr. Fraser's and Dr. Nozick"s testimony, given at the second, a.s.d.-focused review panel hearing and delivered to the appeal panel in transcript form. The applicant also argues that, in finding him impaired, the appeal panel erred in finding him to be less than completely credible. The panel seems to have disregarded section 39 (a ) and (c) of the V.R.A.B. Act.
[32] With regard to whether the appeal panel erred in disregarding the medical evidence of Dr. Fraser and Dr. Nozick, counsel for the respondent is correct in observing that this is not one of the grounds for review listed in the notice of application. The Court will not, therefore, and in spite of the discretionary power which it has, consider the matter. To do otherwise would, in this Court"s opinion and in the circumstances, unjustly ignore subrule 301(e) of the Rules, 1998 SOR/98-106, which requires in mandatory language that parties list all grounds intended to be argued. Is this a proper occasion upon which to invoke rules 3, and 55 to 60? No such application was made by either party's counsel, and in fairness to the respondent the Court will not now intervene without adequate notice to all parties and appropriate preparation on the issues involved. The applicant's counsel ought really to have noticed this anomaly. But, even without taking mandamus proceedings, the applicant ought sooner, rather than later, obtain a panel decision on the a.s.d. matter. He has a prospect of success on that issue.
[33] Another reason for not entertaining submissions on a.s.d. is that the appeal panel was not asked by counsel to consider the issue of a.s.d. or the evidence of Dr. Fraser and Dr. Nozick. The last which was heard of either doctor or a.s.d., in fact, was at the first review panel hearing of September 23, 1997. The issue of a.s.d. was abandoned at this hearing, however, as is evident from reading page 6 of the review panel"s reasons:
| At the hearing the Applicant"s psychiatrist had intended to provide information concerning the mental state of the Applicant immediately prior to the incident. Specifically, he was, as the Panel understands it, about to provide evidence that the stress under which the Applicant was living at that time, specifically relating to a potentially deadly Search and Rescue mission the following morning, ,would have caused a particular anxiety state which, in turn, might have caused the Applicant to drive at speed away from the hotel once the R.C.M.P. officer began following the Applicant"s car. |
| At the hearing the Panel queried whether it might not be more appropriate to submit the particular anxiety state as being the cause of the flight with all of the other conditions being consequential upon the injuries that followed the accident. In this regard the Panel noted that no claim for anxiety state had ever been advanced for consideration by Departmental authorities and that this Panel could not add any mental condition to the list of conditions being claimed. As a result of discussions surrounding this problem, the Applicant, Ms. Crone, his lawyer, his psychiatrist, and the Service Officer requested a short adjournment after which time it was decided that the claim would proceed solely based on the Applicant"s duty status at the time the accident occurred, leaving to another day and to another forum the question of mental intent immediately prior to the accident itself. |
To entertain submissions on a.s.d. at this time would turn this judicial review into an appeal of the appeal panel"s decision, something which this Court has stated it is not prepared to do; Naredo and Arduengo v. Canada (Minister of Citizenship and Immigration) [1997] 3 F.C. 468 (F.C.T.D.). In addition, it must be noted that the issue of a.s.d. is currently before a second review panel. It would be presumptuous, therefore, for this Court to make a finding now in respect of it.
[34] With regard to the second impairment submission, the record clearly shows that the appeal panel agreed with the applicant that he had drunk only two beers. Any problems of credibility, therefore, can be assumed to have been resolved in favour of the applicant. In addition, the panel expressly withheld any finding of impairment, giving the applicant "the benefit of the doubt". Subsections 39(a) and (c) of the Veterans Review and Appeal Board Act require this approach: it is correct.
[35] The applicant"s final submission is that the panel erred in stating that it would be patently unreasonable for the claimant to invoke his own turpitude and then to claim pensionability. He submits that he was never charged with impaired driving nor was he found guilty of dangerous driving. The respondent submits that the panel"s comment had no bearing on its decision. The Attorney General submits, in the alternative, but even more curiously, that the finding was reasonable in the circumstances. Counsel for the Attorney General submits, also in the alternative, that it was proper for the panel to turn its attention to the alleged turpitude of the applicant in view of subsection 22(1) of the Pension Act , even although no turpitude on the applicant's part was ever demonstrated. This Court finds that the panel went wrong in referring to any turpitude on the applicant's part. There was no turpitude as this Court finds without doubt.
[36] It is not clear why the panel commented in the manner that it did on the nature of the applicant"s actions on the night of December 27, 1979. It is clear, however, that applicant's case was misdirected and he did not challenge the lack of a decision on the issue of acute stress disorder. One is left to wonder why the applicant did not seek diligently to enforce his claim. The applicant needs to have an adjudicated decision of the appeal board which determines his application for a pension and deals with the matter of acute stress disorder in light of the evidence adduced.
CONCLUSION
[37] The applicant having failed in all his submissions for obtaining judicial review, regretfully this Court dismisses his application for that remedy. The tribunal's inexplicable delay in publishing its decision disinclines this Court from awarding costs, of any degree or amount, to the respondent, whose counsel bears no odium in this regard. A form of order expressing the outcome shall be prepared before close of business on April 27, 2000, by the respondent's counsel who shall first attempt to obtain the applicant's counsel's approval as to form, if not content.
Ottawa, Ontario
April 4, 2000
F.C. Muldoon, J.
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