Date: 20100128
Docket: T-944-09
Citation: 2010 FC 98
Ottawa,
Ontario, January 28, 2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ALAIN
LEBRASSEUR
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
pursuant to section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7,
and Rule 300(a) of the Federal Courts Rules, SOR/98-106,
for judicial review of a decision by the Veteran’s Review and Appeal Board (the
“Board”) maintaining a decision of the Entitlement Review Panel (the “Panel”)
to reduce by 2/5 the disability pension to which Alain Lebrasseur (the
“Applicant”) was entitled.
BACKGROUND FACTS
[2]
The
Applicant has been a member of the Royal Canadian Mounted Police (the “RCMP”)
since July 2, 1980. He encouraged his wife to join the RCMP, and she did so.
[3]
However,
starting in May 2001, she became the victim of sustained sexual and
psychological harassment by her superiors, which ultimately made her unable to
work. She initiated legal proceedings against the RCMP in 2003, and these were
reported by the media.
[4]
The
Applicant had always been a successful and well-respected officer. Even after
his wife became the victim of the RCMP’s harassment, his performance for 2002
was reviewed positively. However, the RCMP apparently wanted him to persuade
his wife to abandon her legal proceedings against it. As he refused, he was, in
turn, harassed and abused by some of his superiors.
[5]
After the
RCMP started harassing him, the Applicant also became ill. He ceased working on
October 28, 2003. He was eventually recognised as permanently disabled due to
anxiety and depression.
[6]
He applied
for a disability pension, but his application was denied by the Minister of
Veterans Affairs on the basis that there was no evidence to show that his
disability arose directly out of his service with the RCMP; rather, it was
caused by his wife’s situation.
[7]
The
Applicant appealed to the Panel. The Panel took into account reports of health
professionals and the Applicant’s testimony, which it found to be credible, and
awarded a partial pension, reduced by two fifths because it was of the view
that two medical reports “permitted to believe” that the Applicant’s wife’s
problems with the RCMP, which appear to be at the root of the Applicant’s
conditions, are related to his own person life.
[8]
The
Applicant appealed to the Board, which upheld the award. He is now asking for a
judicial review of that decision.
DECISION UNDER REVIEW
[9]
The Board
considered that the issue before it was whether, on a balance of probabilities,
the evidence supported a finding that the Applicant’s disability “arose out of
or was directly connected with” his service in the RCMP, as required by paragraph
21(2)(a) of the Pension Act, R.S.C. 1985, c. P-6.
[10]
The Board
rejected the various medical reports’ conclusions to the effect that the RCMP
was entirely responsible for the Applicant’s disability. First, it noted that
the reports were based on what the Applicant told their authors. The evidence
in support of the health professionals’ conclusions was, therefore, subjective.
Second, given the entanglement between the Applicant’s problems with the RCMP
and his wife’s, the Board found that “it is difficult to know whether or not
[the health professionals] are referring to the actions by the RCMP vis-à-vis
his wife or the actions of the RCMP vis-à-vis the [Applicant].”
[11]
The Board
concluded that the Panel’s finding that the Applicant’s wife’s problems contributed
to the development of his illness was justified.
ISSUE
[12]
The issue
on this application for judicial review is whether the Board erred in deciding
to withhold two fifths of the Applicant’s disability pension. The Applicant
suggests that the Board’s interpretation and application of certain statutory
provisions, notably section 39 of the Veterans Review and Appeal Board Act,
S.C. 1995, c. 18, which provides directions as to the way in which the Board
ought to treat the evidence before it, is a distinct issue. However, in my view
it is inextricably linked with the review of the Board’s substantive decision.
STANDARD OF REVIEW
[13]
The
Federal Court of Appeal held, in Canada (Attorney General) v. Wannamaker,
2007 FCA 126 at par. 12, “that the Board’s determination as to whether a
particular injury arose out of military service, a question of mixed fact and
law, is to be reviewed on the standard of reasonableness.” The Court further
held, at par. 13, that “[t]he proper application of section 39 [of the Veterans
Review and Appeal Board Act] results in a decision on a question of mixed
fact and law” and is also subject to review on a standard of reasonableness.
DISCUSSION
Applicant’s Position
[14]
The
Applicant submits that a disability that “arose out of” his service with the
RCMP within the meaning of paragraph 21(2)(a) of the Pension Act need
not have been directly caused by such service. He relies on the Federal Court
of Appeal’s holding in Canada (Attorney General)
v. Frye, 2005 FCA 264, at par. 29, that the causal nexus that a
claimant must show between the death or injury and military service need be
neither direct nor immediate. He also relies on Frye as well as on John
Doe v. Canada (Attorney General), 2004 FC 451, [2004] 249 F.T.R. 301, for the proposition that the Pension
Act ought to be interpreted generously. The Board’s approach was, in his
view, too narrow. The Board erred in applying s. 39 of the Veterans
Review and Appeal Board Act, which provides for favourable treatment of
evidence tendered to it by an applicant or an appellant.
[15]
The Panel
speculated in finding that medical reports permitted to believe that the
Applicant’s wife’s problems with the RCMP, which appear to be at the root of
the Applicant’s conditions, are related to his own personal life. The Board
then committed a reviewable error in upholding this speculative decision. Marriage
to a co-worker should not cause the Applicant to lose his entitlement, and that
the Board’s decision amounts to discrimination on the basis of marital status.
[16]
The
Board is obliged to maximize the benefits it awards, and that it failed to
discharge this obligation. Thus to reduce the pension to which it agreed that
he was entitled on the basis of speculative and irrelevant grounds is arbitrary
and thus unreasonable.
Respondent’s
Position
[17]
The
Respondent submits that while the causal connection between service and
disability need not be direct or immediate, the Applicant must still show that
one exists. The Applicant failed to show that the connection between his service
and his disability was such as to justify an entitlement to a full pension.
[18]
The
Board’s conclusion was not speculative, because medical reports establish that
the Applicant’s disability has partly been caused by wife’s problems. Thus the
Respondent quotes one report’s conclusions that the Applicant’s “difficulty is
related to the harassment his wife … was exposed to at work” and that his
stress arose “from his wife’s work-related problems that inevitably,
affect him as well.” Another report, by Dr Buteau, found the Applicant’s
“wife’s situation and health” as well as his own “personal situation at work”
as the factors contributing to his illness. On the basis of these reports, the
Board was entitled to conclude that the Applicant’s disability did not arise
entirely out of his service.
[19]
The
Respondent rejects the argument that the Board’s finding prejudices married co-workers
or amount to discrimination against them. He argues that the Board’s conclusion
would have been the same if the Applicant’s wife had been working elsewhere or
if another co-worker’s situation was at the root of his problems.
[20]
Finally,
the provisions of the Veterans Review and Appeals Board Act relied on by
the Applicant do not mean that he does not bear the burden of establishing a causal
connection between his service and his disability. Thus the Board did not have
to believe the Applicant or the medical reports he relied on and which were
based on what he had told their authors. The Board was free to determine
whether his disability arose out of his service and, in the process, to make
findings as to credibility and probative value of the evidence before it. Its
findings were not unreasonable.
Analysis
[21]
Pursuant
to paragraph 21(2)(a) of the Pension Act, when a member of the RCMP
“suffers disability resulting from an injury or disease or an aggravation
thereof that arose out of or was directly connected with [his] service,
a pension shall, on application, be awarded to or in respect of the member.” (My
emphasis.)
[22]
The terms
“arose out of” are understood as not requiring a direct causal link. In a case
turning on the interpretation of a regulation providing insurance coverage for
injuries arising “out of” the use of a motor vehicle, the Supreme Court has
cautioned against “a technical construction that defeats the object and
insuring intent of the legislation providing coverage.” (Amos v. Insurance
Corp. of British Columbia, [1995] 3 S.C.R. 405 at par. 17, 127 D.L.R. (4th)
618.) The words “arose out of” therefore only require “some nexus or
causal relationship (not necessarily a direct or proximate causal
relationship)” (ibid; emphasis in the original).
[23]
In my
view, this interpretation of the terms “arose out of” is well-suited to
the Pension Act. I note that Parliament, in its wisdom, has seen it fit
to make clear the Pension 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 … as a result of … service … may be fulfilled.”
[24]
Section 3
of the Veterans Review and Appeal Board Act provides that that enactment
has the same objective. Furthermore, its section 39 provides that in
considering a case:
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.
[25]
It is with
this legislative framework in mind that the Board’s decision must be reviewed.
[26]
This decision
is mainly based on two findings: first, that the medical reports relied on by
the Applicant, are less than fully probative since they are based on what the
Applicant himself told his doctors; and second, that “it is difficult to know”
whether the reports’ attribution of the Applicant’s disability to actions of
the RCMP referred to the RCMP’s treatment of him or of his wife. In my view,
these conclusions are unreasonable for the following reasons.
[27]
While the
Respondent is right that the Board is entitled to make credibility findings and
need not accept all of the evidence tendered to it, its calling in question of
the medical reports submitted by the Applicant on the basis that he was the
source of the health professionals’ conclusions is unjustified. It is not
enough to say that the reports in question are based on a story told by the
Applicant because that does not make them any less credible if that story is
true. The Board did not make any findings as to the Applicant’s credibility; yet
it disregarded the favourable credibility finding made by the Panel. Thus, it
failed to justify its decision to discount the medical reports.
[28]
I would
add that the Board’s reasoning is particularly flawed given the nature
of the Applicant’s disability. Unlike a wound or injury which a physician can
simply inspect, diagnosing the causes of a disability such as the Applicant’s –
anxiety and depression – is simply not possible unless the health professional
speaks to the patient; he has little to rely on but the patient’s words. If the
Board suspects that the patient’s perception of past events is inexact, it must
say so, and explain why. In the case at bar, however, the Applicant’s
truthfulness is unquestioned. Indeed, uncontradicted evidence establishes that
the Applicant was harassed by his superiors for a period of two years. The last
straw was his being told that they would “use and abuse [him] in other ways,”
with no end in sight. Thus, the evidence clearly supported a finding that the
Applicant’s disability “arose out of” his service with the RCMP.
[29]
As for the
Board’s finding that “it is difficult to know” whether the health
professionals’ reports attributed the Applicant’s illness to the RCMP’s actions
towards him or towards his wife, while it is entitled to deference, it cannot,
in light of the applicable law, reasonably support the conclusion that his
pension ought to be reduced. The Board concluded that the evidence is
ambiguous. This is, in my view, precisely the kind of case to which paragraph
39(c) of the Veterans Review and Appeal Board Act, which provides that
“the Board shall … 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” applies. The evidence, in the Board’s view, left room for
doubt; that doubt must have been resolved in favour of the Applicant; it was
not. The Board’s decision is thus not “defensible in respect of the facts and
law.” (Dunsmuir v. New
Brunswick,
2008 CSC 9, [2008] 1 S.C.R. 190, par. 47).
[30]
In
addition, one must recall that the mistreatment of the Applicant, who had
previously enjoyed a successful career and was held in high esteem by
colleagues and superiors alike, started when his wife made a complaint, and
subsequently initiated a lawsuit, against the RCMP. For the RCMP members who
tried bullying the Applicant into making his wife abandon those proceedings,
there was no separation between their personal lives and his service. However
appropriate it may be in other cases to distinguish personal life and career,
and the stress caused by each, it was too late to do so here. The Applicant has
suffered because this was not done, and it strikes me as unreasonable to deny
him compensation on this basis.
CONCLUSION
[31]
For
these reasons, the application for judicial review of the decision will be
allowed, with costs.
JUDGMENT
[32]
THIS
COURT ORDERS that the application for judicial
review of the decision be allowed, with costs.
“Danièle Tremblay-Lamer”
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