Date: 20101116
Docket: T-1853-09
Citation: 2010 FC 1148
Toronto, Ontario, November 16,
2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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ROGER LADOUCEUR
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant Roger Ladouceur is a veteran of the Canadian Armed Forces. While
serving with the Forces in Cyprus in the early 1980’s the Applicant suffered
severe injuries to his ankle which left him with a permanent disability. Since
1998 the Applicant has been seeking appropriate pension compensation for this
disability. The present proceeding has been preceded by a long chain of events
in that regard. In the present application the Applicant is requesting judicial
review of a decision of the Veterans Review and Appeal Board dated July 9, 2009.
That decision denied the Applicant’s request for an increase of the assessment
and a variance of the starting date applicable to his compensation. For the
reasons that follow I have allowed this application for judicial review and
direct that the matter be retuned for re-determination having regard to these
reasons. The Applicant is entitled to costs fixed at the sum of $3500.00.
[2]
I
will briefly set out some of the history respecting the Applicant’s pursuit of
what he claims to be an appropriate pension in compensation for his injuries:
a. On January
30, 2004 the Minister of Veterans Affairs determined that the Applicant was
entitled to a pension to be assessed at 3% effective 6 October 2003.
b. An
Entitlement Review decision dated 14 January 2005 changed the date of
entitlement to 30 January 2001.
c. A decision of
the Veterans Review and Appeal Board dated 14 January 2005 increased the
pension rate to 5% and confirmed that the effective date of entitlement was 30
January 2001.
d. The Applicant
appealed this assessment requesting a 15% pension, that appeal was dismissed.
This decision was the subject of judicial review in this Court. On 28 November
2006 Justice Mactavish set aside this decision (her decision is cited as 2006
FC 1438) and remitted the matter for re-determination by a different panel of
the Board.
e. On 7
February, 2007 a different panel of the Veterans Review and Appeal Board
maintained the assessment at 5%.
f.
On
23 August 2007 the Applicant requested a medical reassessment of his condition
as a result of which his pension was increased to 10% effective 23 August 2007.
g. On 13
February 2008 the Applicant requested a review by the Veterans Review and
Appeal Board both as to the quantum of the pension awarded and the effective
date assigned.
h. On 9 January
2009 the Veterans Review and Appeal Board ruled that the pension should be
increased to 11% but that the effective date of the increase was to remain as
23 August 2007, the date a new medical examination was requested.
i.
On
9 July 2009 in dealing again with the matter the Board maintained its decision
of 9 January 2009. It is this decision of 9 July 2009 that is the subject of
this judicial review.
ISSUES
[3]
The
Applicant has raised two issues for determination:
i.
Did
the Veterans Review and Appeal Board err in law in the application of the
appropriate category of Table of Disabilities in this case?
ii.
Did
the Veterans Review and Appeal Board err in law, exceed its jurisdiction or breach
the rules of natural justice by consulting a Medical Advisor of Veterans
Affairs Canada? I have described this issue as whether the Board improperly
delegated its decision making duties?
Bound up with these issues is the necessity
to determine the standard of review.
STANDARD OF REVIEW
[4]
There
is no doubt that in considering the questions of law, of procedural fairness
and natural justice the standard of review to be applied by the Court is that
of correctness.
[5]
In
considering jurisdiction, the Courts, in general, should adhere to a standard
of correctness however if it comes to the interpretation of a statute in
respect of which the Board has considerable expertise, the Court should take
cognizance of the Board’s determination in that regard.
[6]
When
it comes to consideration of the application by the Board if its mandated
duties under the appropriate statutes and regulations the Court must, as
directed by the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190 afford deference to the Board so long as its decisions are
within an appropriate range of reasonableness. The decision of Simpson J. of
this Court in Goldsworthy v. Canada (Attorney
General)
2008 FC 380 at paragraphs 10 to 14 is instructive in this regard.
[7]
There
is an aspect of the Dunsmuir criterion that must be viewed differently
when considering the Veterans Review and Appeal Board Act, SC 1995,
c.18 in that s. 3 requires that the Act and any other Act or
Regulation dealing with the jurisdiction, powers, duties or functions of the
Board must be liberally construed and interpreted in a manner favourable to
veterans such as the Applicant:
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Les dispositions de la présente loi et de toute autre loi
fédérale, ainsi que de leurs règlements, qui établissent la compétence du
Tribunal ou lui confèrent des pouvoirs et fonctions doivent s’interpréter de
façon large, compte tenu des obligations que le peuple et le gouvernement du
Canada reconnaissent avoir à l’égard de ceux qui ont si bien servi leur pays
et des personnes à leur charge.
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The provisions of this Act and of any other Act of Parliament or
of any regulations made under this or any other Act of Parliament conferring
or imposing jurisdiction, powers, duties or functions on the Board shall be
liberally construed and interpreted to the end that the recognized obligation
of the people and Government of Canada to those who have served their country
so well and to their dependants may be fulfilled.
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[8]
I
will turn to the issues.
ISSUE #1: Did the
Veterans Review and Appeal Board err in law in the application of the
appropriate category of Table of Disabilities in this case?
[9]
The
Pension Act, R.S.C. 1985, c.P.6, s. 35(2), provides for “instructions
and a table of disabilities” for the guidance of persons making an assessment
of disabilities for purposes of assigning a percentage of pension applicable to
an individual veteran:
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Les estimations du degré
d’invalidité sont basées sur les instructions du ministre et sur une table
des invalidités qu’il établit pour aider quiconque les effectue.
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The assessment of the extent of a disability shall be based on
the instructions and a table of disabilities to be made by the Minister for
the guidance of persons making those assessments.
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In accordance with this provision a Table
of Disabilities with instructions has been provided. That Table opens with the
following statement:
The Table of Disabilities is the
instrument used by the Veterans Affairs Canada to assess the degree of medical
impairment cause by an entitled disability. The Table of Disabilities has been
revised using the concept of medical impairment based on a per condition
methodology. The relative importance of that body part/body system has been a
consideration in the development of criteria to assess the medical impairment
resulting from the entitled disability. The Disability Assessment will be established
based on the medical impairment rating, in conjunction with quality of life
indicators which assess the impact of the medical impairment on the
individual’s lifestyle.
The principles of assessment are thereafter
set out including a requirement that both medical impairment and
quality of life are to be determined in arriving at a final assessment:
This Table of Disabilities is to be used
to assess service related disability for disability pension/award purposes.
In accordance with the Pension Act and
Canadian Forces Members and Veterans Re-establishment and Compensation Act,
disability is defined as “…the loss or lessening of the power to will and to do
any normal physical or mental act.” As impairment refers to a loss of function
that can be measured and documented objectively, disability, as defined in the
Pension Act and the Canadian Forces Members and Veterans Re-establishment and
Compensation Act, exceeds the physical limitations or impairment and thus
requires both medical (impairment) and non-medical (quality of
life) information to determine the final assessment of a disability. (Emphasis added)
Individual tables are provided and the
following instruction given:
(III)- Choice of Table
Always use a table specific to the
condition(s) being rated unless the instructions in a chapter specify
otherwise. To choose the appropriate table, identify the loss of function,
refer to the appropriate body system table and identify the rating criteria.
At issue here is whether
Table 17.9 or 17.12 is appropriate. They are described as follows:
Section 2
Determining Impairment Assessments of Musculoskeletal Lower Limb Conditions
The tables that may be used to rate
impairment from musculoskeletal lower limb conditions are:
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Table 17.9
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Loss of Function- Lower Limbs
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This table is used to rate impairment
from musculoskeletal conditions which impact on the function of the lower
limbs as a whole.
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…
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Table 17.12
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Loss of Function- Lower Limb- Ankle
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This table is used to rate impairment
from musculoskeletal conditions affecting the active range of motion of the
ankle.
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With respect to table 17.9 instructions,
including the following, are provided:
Table 17.9- Loss of Function- Lower Limb
Only one rating may be given for the
lower limbs as a functional unit from Table 17.9. When more than one rating is
applicable, the ratings are compared and the highest selected.
Table 17.9 provides for
ratings ranging from nil to eighty-one percent. The following rating is
provided at eighteen percent.
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Rating
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Criteria
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Eighteen
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-Walks at reduced pace on flat ground,
and requires routine use of a cane or crutch and is unable to manage either
stairs or ramps without rails; or
-Pain restricts walking to 250 m or
less.
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[10]
The
decision of the Veterans Review and Appeal Board dated 9 January 2009 made a
number of findings as to the Applicant’s condition which findings were not contested
by the Board in the decision of 9 July 2009 now the subject of judicial review.
These findings include:
a. The Applicant
requires the use of a custom made brace and a ski pole to walk. Pain restricts
walking to 250m or less.
b. The Applicant
falls frequently causing injuries
c. The Applicant
is unable to work at his regular occupation, his personal and social
relationships are difficult to maintain
d. The Applicant
takes strong medication for pain including morphine causing mood and sleep
disorders
[11]
It
would appear that the Applicant readily meets the criteria for eighteen percent
provided by Table 17.9 when both medical impairment and quality of life are
considered.
[12]
The
Respondent, however, argues that Table 17.12 is the correct table. It deals
with “Loss of Function- Ankle” and provides, for instance at nine percent:
Table 17.12- Loss of Function- Lower
Limb- Ankle
Only one rating may be given for each
ankle from Table 17.12. If more than one rating is applicable, the ratings are
compared and the highest selected.
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Rating
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Criteria
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Nine
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-Dorsiflexion no more than 10°; or
-Plantar flexion no more than 15°; or
-Ankle unstable* on clinical exam
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[13]
This
is the rating assigned by the 9 January 2009 decision as affirmed by the 9 July
2009 decision. The 9 January 2009 decision states, inter alia:
The Panel is very sympathetic of the
Applicant’s difficulty, but it is unable to change the use of the specific
Table of Disabilities from Table 17.12 to 17.9, as Table 17.9 does not apply
specifically to the Applicant’s condition. Therefore, the Panel will use Table
17.12- Loss of Function- Lower Limb- Ankle and determines that the criteria in
this case does not show a clinical instability of the Applicant’s ankle and
plantar flexion of not more than 15 degrees, which is not denied by the
Advocate.
[14]
It
appears that there is considerable question that arises as to whether Table
17.12 is the correct table to apply. It is essentially directed only to the
degree of flexibility exhibited by the injured ankle whereas Table 17.9 on the
other hand is directed to broader issues including the ability to walk, degree
of assistance required, level of pain and the like. Table 17.9 is the more
appropriate table when considering both medical impairment and quality
of life as is required by the instructions given.
[15]
Regrettably
the 9 July 2009 decision did not direct itself to any reasoned discussion as to
whether 17.9 or 17.12 was appropriate. Instead the Board simply deferred to the
opinion of an unnamed “Medical Advisor”. This leads to the second issue.
ISSUE #2: Did the
Veterans Review and Appeal Board err in law, exceed its jurisdiction or breach
the rules of natural justice by consulting a Medical Advisor of Veterans
Affairs Canada? I have described this
issue as whether the Board improperly delegated its decision making duties?
[16]
The
decision of the Board of 9 July 2009 states, inter alia, as follows (I
have underlined certain passages):
The Board was advised by the Medical
Advisor that Table 17.12- Loss of Function- Lower Limb- Ankle is the
appropriate Table to use for the entitled condition Post Traumatic Arthritis
Left Ankle.
This Table utilizes the objective finding of a physical examination,
specifically Range
of Motion (ROM) to arrive at the
appropriate assessment. The loss of ROM is not a disability in and of itself
but represents the degree to which the loss of ROM would affect the ankle joint
and the functioning of the limb as a whole. The rating/assessment provided by
Table 17.12 Loss of Function- Lower Limb- Ankle does not capture the
functioning of the limb as a whole and does not require a separate or
additional rating from Table 17.9- Loss of Function- Lower Limb. Table 17.9
Loss of Function- Lower Limb is designed to address the assessment of
conditions which do not lend themselves well to objective physical examination
findings such as loss of ROM.
Nowhere in this Table is it mentioned
that using Table 17.12 or Table 17.9 is an “option” and/or if the Table is more
favourable that it has to be the one to be used. It corresponds to a specific
goal and in this case, the goal of assessing the ankle condition is by the way
of using Table 17.12. In total fairness with the other Appellants with the
same type of disability, the Board considered in order to have fair assessments
across Canada, the same Table must be used. In this case, arthritis of
the left ankle must be assessed under Table 17.12. When this assessment is made
under this Table, the current assessment of 11% represents the disability
caused by the pensioned condition.
[17]
There
are two errors made by the Board as set out in this passage of the Reasons. The
first is that the Board has stated that it relied on the opinion of an unnamed
“Medical Advisor” given at some undisclosed time, that Table 17.12 was the
appropriate table. Second, the Board stated that it wanted to be consistent
with some undisclosed assessments made in respect of other undisclosed
Appellants with presumably the same disabilities.
[18]
As
to the first error, the Veterans Review and Appeal Board Act supra,
section 18 makes it quite clear that the Board has exclusive jurisdiction to
hear, determine and deal with applications for pension review:
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18. Le
Tribunal a compétence exclusive pour réviser toute décision rendue en vertu
de la Loi sur les pensions ou prise en vertu de la Loi sur les mesures de
réinsertion et d’indemnisation des militaires et vétérans des Forces
canadiennes et pour statuer sur toute question liée à la demande de révision.
1995,
ch. 18, art. 18; 2005, ch. 21, art. 110.
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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 or the Canadian Forces Members and Veterans Re-establishment and
Compensation Act, and all matters related to those applications.
1995,
c. 18, s. 18; 2005, c. 21, s. 110.
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[19]
I
disagree with Counsel for the Respondent who says that sections 14 and 15
enable the Board to seek out and rely on opinions of persons such as the
“Medical Advisor”.
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14. Le
Tribunal et chacun de ses membres ont, pour l’exercice des fonctions que leur
confie la présente loi, les pouvoirs d’un commissaire nommé au titre de la
partie I de la Loi sur les enquêtes.
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14. The
Board and each member have, with respect to the carrying out of the Board’s
duties and functions under this Act, all the powers of a commissioner
appointed under Part I of the Inquiries Act.
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15. Sous réserve de
toute autre loi fédérale et de ses règlements, le Tribunal peut consulter les
dossiers du ministère des Anciens Combattants ainsi que tous autres documents
relatifs aux affaires dont il est saisi.
1995, ch. 18, art.
15; 2000, ch. 34, art. 94(F).
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15. Subject
to any other Act of Parliament and any regulations made under any other Act
of Parliament, the Board may inspect the records of the Department of
Veterans Affairs and all material relating to any proceeding before the
Board.
1995, c.
18, s. 15; 2000, c. 34, s. 94(F).
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[20]
Section
14 simply enables the Board to act like a commission of inquiry, section 15
enables the Board to review certain records. There is no suggestion or
implication that the Board can abdicate its exclusive powers under section 18
to a “Medical Advisor”.
[21]
Respondent’s
Counsel referred to the decision of the Supreme Court of Canada in Ocean
Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2
S.C.R. 781 for the proposition that a Board can seek out the advice and
assistance of others. I do not read this decision as stating that proposition.
What it says is that by express statutory language or necessary implication
Parliament may override the common law rules of natural justice. The Chief
Justice, for the Court, wrote at paragraph 22:
22 However, like all
principles of natural justice, the degree of independence required of tribunal
members may be ousted by express statutory language or necessary implication.
See generally: Innisfil (Corporation of the Township of) v. Corporation of the
Township of Vespra, [1981] 2 S.C.R. 145;
Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301;
Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814;
Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105.
Ultimately, it is Parliament or the legislature that determines the nature of a
tribunal's relationship to the executive. It is not open to a court to apply a
common law rule in the face of clear statutory direction. Courts engaged in
judicial review of administrative decisions must defer to the legislator's
intention in assessing the degree of independence required of the tribunal in
question.
[22]
I
find no express provisions or necessary implication in the present case in any
relevant statutory provision.
[23]
I
find the decision of Nadon J (as he then was) in King v. Canada (Veterans
Review and Appeal Board) 2001 FCT 535 to be instructive in respect of
the issue here. He wrote at paragraphs 59 to 63:
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.
[24]
As
a second error, the Board based its decision on a desire to be consistent with
other, undisclosed decisions respecting undisclosed Appellants which the Board
said had similar disabilities. Those decisions are nowhere to be found in the
Record. It cannot be determined by the Applicant or this Court whether the circumstances
are truly similar. In any event, simply for a Board to be consistent does not
make its decisions right.
CONCLUSION
[25]
The
decision of the Board was made with improper delegation to a “Medical Advisor”
and improperly based on undisclosed, purportedly similar, circumstances. It
must be set aside.
[26]
A
differently constituted Board should re-determine the matter giving
consideration to both medical impairment and quality of life impairment in
respect of which Table 17.9 is more appropriate in the circumstances of this
case.
COSTS
[27]
The
Applicant is successful and is entitled to costs. After considering the
submissions of both Counsel I fix these costs at $3,500.00.
JUDGMENT
For the Reasons provided:
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
Application is allowed;
2.
The
decision of the Veterans Review and Appeal Board dated 9 July 2009 is set aside
and is returned for re-determination by a different Board mindful of these
Reasons;
3.
The
Applicant is entitled to costs fixed at $3,500.00
“Roger T. Hughes”
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