Date: 20100330
Docket: T-543-09
Citation: 2010 FC 348
Ottawa, Ontario, March
30, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MARSHALL
JOHNSTON
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7, for judicial review of a reconsideration by the Veterans
Review and Appeal Board (the Board), dated February 6, 2009 (the decision),
which affirmed the applicant’s pension assessment.
[2]
The
applicant requests an order setting aside the decision of the Board and remitting
the matter with directions to a differently constituted panel of the Board for
a hearing de novo.
Introduction: The Board
[3]
The
Board is an independent tribunal established under the Veterans Review and
Appeal Board Act, 1995, c. 18, V-1.6 (the Act). The Board functions as a
review and appeal body for decisions rendered by the Minister of Veterans Affairs
(the Minister) in relation to pensions and benefits for veterans, members of
the Canadian Forces (CF), the RCMP, and their dependants. The Pension Act,
R.S.C. 1985, c. P-6, is the principle legislation by which disability pensions
for CF veterans are granted.
[4]
There
is a two-tiered system of appeals. Persons who are dissatisfied with any
decision of the Minister under the Pension Act may apply for a review of
the decision before the Board. Persons who are dissatisfied with the outcome of
this review have further recourse in the form of a right of appeal to an appeal
panel of the Board. Applicants to the Board are assigned advocates to make
submissions to the Board on their behalf. In preparation for any hearing, Board
policy is to always review all past decisions and all new evidence submitted.
[5]
Disability
pensions are awarded according to two factors. First, the extent of the
disability is assessed on a scale from 0 to 100%. Next, the extent to which the
disability was attributable to, or aggravated by, the applicant’s service is
determined on a scale by fifths (1/5 to 5/5). Finally, the two figures are
multiplied to give the pension entitlement.
Background
[6]
The
applicant served in the Regular Force from December 19, 1973 to July 31, 1995,
primarily as a flight engineer on helicopter crews and attributes his ailments
to that position.
The First Application
[7]
The
applicant first applied for pension entitlement under subsection 21(2) of the Pension
Act in 2005 for the condition of degenerative disc lumbar spine. The
Minister assessed the extent of the disability at 10%, but denied this
application on the grounds that there was no record that the condition arose
out of or was directly connected with the applicant’s peacetime military
service. Unhappy with this result, the applicant appealed to the Board. On June
30, 2006, the Board’s decision was to vary the Minister’s decision. Its
finding, backed by the applicant’s testimony and a doctor’s opinion, was that a
major aggravation of the applicant’s lumbar spine condition was directly
connected with his service. The Board held that the aggravation was three
fifths attributable to his service, but held back the remaining two fifths
based on evidence of trauma and a complaint of low back pain at the time of enrolment.
During his assessment, the applicant told the doctor that he had injured his
back in a minor motor vehicle accident at age 16.
[8]
The
ruling brought his total entitlement to 6% (3/5 x 10%), which was retroactive
to the date of his first application.
The Second Appeal
[9]
The
applicant was not satisfied with the assessed extent of his disability and
appealed, arguing that his assessment should fall in the 20 to 30% range. On
July 13, 2007, the assessment review panel of the Board concluded that the 10%
assessment was fair and adequate and affirmed the previous decision.
The Third Appeal
[10]
The
applicant then appealed the June 30, 2006 ruling, arguing that based on new
expert medical evidence and the applicant’s occupational history, the Board
should award four fifths entitlement. On August 28, 2007, applicant was
successful as the Board awarded the requested additional one fifth to “more
fairly reflect the contributing factors to the claimed condition”. This
entitlement was also retroactive.
Fourth Appeal
[11]
The
applicant then appealed his disability assessment again, arguing that it should
be raised to 20%. In a decision dated August 20, 2008, the Board reviewed the
applicant’s submissions and the most recent medical examination/assessment
conducted on January 15, 2007 and concluded that a 20% assessment was not
justified. In preparation for the hearing the Board had also reviewed:
-
All
previous decisions relevant to the case;
-
Consultation
report dated May 4, 2005;
-
Ambulatory
Care Clinic letter dated December 3, 2007;
-
Extract
from Veterans Affairs Canada documentation with attached entitlement appeal
decision dated August 28, 2007; and
-
A
copy of Table 1 to Article 19.04, chapter 19 of the 1995 Veterans Affairs
Canada Table of Disabilities.
Fifth Appeal
[12]
On
September 29, 2008, an area advocate applied on the applicant’s behalf, to the
Board for a reconsideration of the decision dated August 20, 2008 (the previous
decision), on the basis that the Board had made errors of fact and law. It is
this reconsideration decision that is the subject of this judicial review
application.
[13]
The
applicant first alleged that the Board failed to provide reasons explaining its
decision, and secondly, alleged that the Board failed to properly assess his
condition in accordance with the evidence and did not draw from the evidence
all reasonable inferences in favour of an increase in his assessment.
[14]
In
reasons dated February 6, 2009, a three member panel of the Board indicated
that the previous decision as well as the written submissions had been
reviewed. The Board determined that the previous decision was not based on any
error of fact or law and consequently would not reconsider the previous
decision. The Board also reminded the applicant that if he felt his condition
had worsened, he could always have a new assessment conducted.
Issues
[15]
The
issues are as follows:
1. What is the applicable
standard of review?
2. Is the Board, on an
application for reconsideration, obliged to conduct a hearing de novo?
3. Did the Board fail
to provide adequate reasons for its decision?
Applicant’s Submissions
[16]
The
applicant submits that the application for reconsideration should have been a
hearing de novo. The Board failed to do this. The Board simply restated
the ratio decidendi of the previous decision and affirmed it. This is an
error of pure law pertaining to the Board’s interpretation of its jurisdiction.
No deference is to be afforded.
[17]
The
applicant submits that the Board failed to provide meaningful reasons for its
decision. This error is ironic since paucity of reasons in a previous decision
was a primary ground for the reconsideration submitted by the applicant. The
reasons offered by the Board offer no confidence to the applicant that the
Board undertook a meaningful and thorough review.
Respondent’s Submissions
Standard of Review
[18]
Reasonableness
is the appropriate standard to be applied in reviewing Board decisions says the
respondent. The right of appeal to the Board granted under section 25 of the Act
represents a factor of statutory purpose which attracts deference. The fact
that Board determinations of whether an applicant meets pension criteria are
primarily fact-oriented decisions militates further towards deference. There is
also a privative clause in the Act.
The Decision was
Reasonable
[19]
The
respondent submits that sections 3 and 39 of the Act are meant to ensure that
reviewing courts remain alert to the unique contributions made by such
individuals to Canadian society. Nevertheless, it is the applicant who bears
the onus of proving his case on a balance of probabilities.
[20]
Under
subsection 32(1) of the Act, an appeal panel may reconsider a decision it made
under subsection 29(1) and may confirm the decision or amend or rescind the
decision on an application from a person alleging that an error was made with
respect to any findings of fact or the interpretation of any law or if new
evidence is presented. Here, the Board reviewed all of the information
available and by refusing to reconsider the previous decision, effectively was
agreeing with the previous decision. There was a significant history of
previous decisions for the Board to rely on.
[21]
There
was a sufficient existence of transparency, justification and intelligibility
in the decision-making process that against the standard of reasonableness, the
decision should not be interfered with.
Analysis and Decision
[22]
Issue
1
What is the applicable standard
of review?
The applicant first challenges
that the Board was required to hold a hearing de novo, in regard to his
reconsideration application. His second ground challenges the paucity of
reasons provided by the Board for its decision. I would characterize both as
issues of Board procedure. The first issue relates primarily to interpretation
of the Board’s constituting statute and as such, is to be accorded deference
and falls to be reviewed against the standard of reasonableness (see Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12
(QL) at paragraph 25). Paucity of reasons, on the other hand, is an
issue of procedural fairness and does not attract any deference. Administrative
boards and tribunals cannot deviate from minimum standards imposed by the
common law.
[23]
I
wish to first deal with Issue 3.
[24]
Issue
3
Did the Board fail to
provide adequate reasons for its decision?
The Veterans Review and
Appeal Board Regulations, SOR/96-97, section 7, require the Board to state
the reasons for every decision it makes. Thus, the true question for me to
determine is whether the reasons provided by the Board were adequate.
[25]
Where reasons are required by law, decision makers must give
reasons that are adequate, in the sense that they are sufficiently clear and
intelligible to enable the individual to know why the tribunal decided as it
did and to enable the losing party to assess whether there are grounds to
challenge the decision (see Brown, D. J. M., and J. M. Evans. Judicial
Review of Administrative Action in Canada, 1998 (loose-leaf ed. updated
September 2009), at pages 12 to 61-2 and Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1
S.C.R. 684).
[26]
There
is no specific test for the adequacy of reasons. It will always depend on the
context (see Gardner v. Canada (Attorney
General),
2005 FCA 284, [2005] F.C.J. No. 1442 (QL) at paragraphs 28 to 31). A reviewing
court must look at more than just the stated reasons, but must look to other
communications between the parties and consider whether in the all
circumstances the individual was adequately informed of the basic deciding
factors.
[27]
In
the case at bar, the Board was asked by the applicant to reconsider the
decision it had made on August 20, 2008. One ground for reconsideration argued
by the applicant was that the August 20, 2008 decision was not supported by
adequate reasons.
[28]
The
August 20, 2008 decision was not a reconsideration but an appeal in which all
relevant previous decisions and new evidence were to be assessed. In that
decision, the Board summarized some of the medical evidence and the applicant’s
arguments for a 20% assessment for his disability and then stated:
The Board has reviewed the evidence in
its entirety, in particular, the medical evidence from Drs. McCann, Alexander
and Hennenfent.
After comparing the objective findings to
Table 1 to Article 19.04, the Board concludes that the Advocate’s request for a
20% assessment is not justified. The Board based its conclusion on the medical
evidence on file. In addition, the Board has not been provided with any new
medical evidence to support an increase in assessment.
[29]
In
my view, these reasons were inadequate. How does one challenge an
administrative decision effectively when the reasons provided do not explain
why the decision was made?
[30]
Table
1 to Article 19.04 (Tribunal Record at page 43) has column headings: Symtoms,
Posture, Range of Motion, Straight
Leg Raising, Reflexes and/or, Wasting, Toe& Heal Walking, Medication, and
Back Brace. The rows underneath correspond to assessment at levels 0 to 10%, 10
to 20%, 20 to 30%, 30 to 40% and Above 40%. The body of Table 1 evaluates each
category in regards to each corresponding level of assessment with a few words
of description. For example, assessing Straight Leg Raising at 20 to 30%
requires “Less than 75 degrees radiation beyond buttock”.
[31]
The
Board’s summary of the medical findings only mentioned some of the column
headings found in Table 1. Even had the Board listed all the headings, what was
really missing from the reasons provided was an explanation of why the overall
10% assessment was preferred over the 20% the applicant had suggested. Some explanation
is inherently required in any assessment under Table 1, since the table itself
allows for discretion by using ranges of assessment instead of precise figures.
[32]
The
applicant, frustrated with the paucity of the reasons provided to him on August
20, 2008, sought recourse to the same administrative body by applying for
reconsideration. This gave the Board an opportunity to fix the problem. It did
not. That decision dated February 6, 2009 read in part:
The Board reviewed the Assessment Appeal
decision dated 20 August 2008 and considered that although the reasons
articulated by said Panel were brief, the decision stated that based on the
medical evidence already on file, an in the absence of new medical evidence
indicating that an increase was warranted, as already noted in the Assessment
Review decision, no increase in the assessment of the Applicant’s degenerative
disc lumbar spine was warranted at that time.
[33]
Reference
was made to the Assessment Review decision dated July 13, 2007, which had
stated in part:
The Panel has carefully analysed the
evidence viv-a-vis the Veterans Affairs Canada Table of Disabilities and
is of the view that even when the Advocate’s recommendations are taken into
account, the lack of significant outcomes for straight leg raising,
reflexes, wasting and toe and heal walking are such that, when factored in the
equation, a 10% assessment is fair and adequate. Therefore the Panel
affirms the previous decision. The Panel does so with regret as the
Panel was most impressed by the Applicant.
(My Emphasis)
[34]
It
is the underlined portion of the July 2007 reasons that makes them adequate.
The underlined portion told the applicant, with some specificity, why the Board
felt a 10% assessment was fair. The reasons made reference to the table and
also referred to the particular categories that were the most significant in
the Board’s decision making.
[35]
When
the applicant appealed this in 2008 with some new medical evidence, the August
2008 reasons noted above did not explain what in particular was deficient with
the new evidence he had supplied. Merely referring to Table 1 would not have
explained why the Board ruled as it did. Nor did the August 2008 reasons
indicate whether the Board had come to its determination that a 20% assessment
was not justified for the same reasons the July 2007 Board had. They did not explain
it at all.
[36]
It
is not sufficient to merely recite the medical evidence and then state the
conclusion. The following paragraphs from Madam Justice Mactavish in Ladouceur
v. Canada (Attorney
General),
2006 FC 1438, [2006] F.C.J. No. 1817 are instructive:
22 The need for adjudicative bodies
to provide "reasoned reasons" has been recognized by the Supreme
Court of Canada in cases such as Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 and R. v. Sheppard, [2002] 1
S.C.R. 869, 2002 SCC 26. While the decision under review in this case is not of
the same significance to Mr. Ladouceur that a criminal or immigration decision
would have been, it was nonetheless important to him, and he should not be left
in any doubt as to how the Board arrived at its conclusion.
23 Moreover, section 7 of the Veterans
Review and Appeal Board Regulations, SOR/87-601 specifically imposes a duty
on the Board to give reasons for its decisions.
24 While counsel for the respondent
concedes that the reasons given by the Board in this case are not as detailed
as one would like, she relies on the decision of this Court in McTague v.
Canada (Attorney General), [2000] 1 F.C. 647, to say that they are
sufficient.
25 A review of Justice Evans'
comments in McTague discloses that what he actually said was that where
the Board was making an assessment based upon the specific facts of a
particular case, it was unrealistic to expect it to analyse factually similar
cases. That is not what we are dealing with here.
26 What we have here in the decision
under review is essentially a recitation of the medical evidence, followed by
the statement of a conclusion. Giving the Board the benefit of the doubt, and
assuming that it turned its mind to the issue, we can deduce that the Board did
not accept that the severe joint pain and stiffness experienced by Mr.
Ladouceur entitled him to more than a five percent pension. What we do not know
from the Board's reasons is why that was.
27 In these circumstances, the
Board's reasons were insufficient, and resulted in a denial of procedural
fairness to Mr. Ladouceur.
[37]
In
the August 2008 reasons, the Board merely recited the medical evidence and then
stated its conclusion. This was inadequate. As stated above, the reference to
the table did not provide a meaningful explanation. The reasons for the February
2009 decision were similarly inadequate because they still left the applicant
to wonder why the Board had come to its decision in August 2008.
[38]
This
has resulted in a denial of procedural fairness to the applicant. I would
therefore allow judicial review on this ground.
[39]
Because
of my finding on Issue 3, I will not deal with Issue 2.
[40]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for reassessment in accordance with these
reasons.
[41]
The
applicant shall have his costs of the application.
JUDGMENT
[42]
IT
IS ORDERED that:
1. The application for
judicial review is allowed and the matter is referred to a different panel of
the Board for redetermination in accordance with these reasons.
2. The applicant shall
have his costs of the application.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Veterans
Review and Appeal Board Act,
1995, c. 18, V-1.6
|
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.
21. A review
panel may
(a) affirm,
vary or reverse the decision of the Minister being reviewed;
(b) refer any
matter back to the Minister for reconsideration; or
(c) refer any
matter not dealt with in the decision back to the Minister for a decision.
25. An applicant who is dissatisfied with
a decision made under section 21 or 23 may appeal the decision to the Board.
26. The Board has full and exclusive
jurisdiction to hear, determine and deal with all appeals that may be made to
the Board under section 25 or under the War Veterans Allowance Act or any
other Act of Parliament, and all matters related to those appeals.
29.(1) An
appeal panel may
(a) affirm,
vary or reverse the decision being appealed;
(b) refer any
matter back to the person or review panel that made the decision being
appealed for reconsideration, re-hearing or further investigation; or
(c) refer any
matter not dealt with in the decision back to that person or review panel for
a decision.
(2) Where the
members of a review panel have ceased to hold office or for any other reason
a matter cannot be referred to that review panel under paragraph (1)(b) or
(c), the appeal panel may refer the matter to the Chairperson who shall
establish a new review panel in accordance with subsection 19(1) to consider,
hear, investigate or decide the matter, as the case may be.
32.(1) Notwithstanding section 31, an
appeal panel may, on its own motion, reconsider a decision made by it under
subsection 29(1) or this section and may either confirm the decision or amend
or rescind the decision if it determines that an error was made with respect
to any finding of fact or the interpretation of any law, or may do so on
application if the person making the application alleges that an error was
made with respect to any finding of fact or the interpretation of any law or
if new evidence is presented to the appeal panel.
(2) The Board
may exercise the powers of an appeal panel under subsection (1) if the
members of the appeal panel have ceased to hold office as members.
(3) Sections 28
and 31 apply, with such modifications as the circumstances require, with
respect to an application made under subsection (1).
|
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.
21.
Le comité de révision peut soit confirmer, modifier ou infirmer la décision
qu’on lui demande de réviser, soit la renvoyer pour réexamen au ministre,
soit déférer à ce dernier toute question non examinée par lui.
25.
Le demandeur qui n’est pas satisfait de la décision rendue en vertu des
articles 21 ou 23 peut en appeler au Tribunal.
26.
Le Tribunal a compétence exclusive pour statuer sur tout appel interjeté en
vertu de l’article 25, ou sous le régime de la Loi sur les allocations aux
anciens combattants ou de toute autre loi fédérale, ainsi que sur toute
question connexe.
29.(1)
Le comité d’appel peut soit confirmer, modifier ou infirmer la décision
portée en appel, soit la renvoyer pour réexamen, complément d’enquête ou
nouvelle audition à la personne ou au comité de révision qui l’a rendue, soit
encore déférer à cette personne ou à ce comité toute question non examinée
par eux.
(2)
Lorsqu’elle ne peut être renvoyée au comité de révision parce que ses membres
ont cessé d’exercer leur charge par suite de démission ou pour tout autre
motif, la décision peut être transmise au président afin qu’il constitue,
conformément au paragraphe 19(1), un nouveau comité de révision pour étudier
la question.
32.(1)
Par dérogation à l’article 31, le comité d’appel peut, de son propre chef,
réexaminer une décision rendue en vertu du paragraphe 29(1) ou du présent
article et soit la confirmer, soit l’annuler ou la modifier s’il constate que
les conclusions sur les faits ou l’interprétation du droit étaient erronées;
il peut aussi le faire sur demande si l’auteur de la demande allègue que les
conclusions sur les faits ou l’interprétation du droit étaient erronées ou si
de nouveaux éléments de preuve lui sont présentés.
(2)
Le Tribunal, dans les cas où les membres du comité ont cessé d’exercer leur
charge, peut exercer les fonctions du comité visées au paragraphe (1).
(3)
Les articles 28 et 31 régissent, avec les adaptations de circonstance, les
demandes adressées au Tribunal dans le cadre du paragraphe (1).
|
Pension Act, R.S. 1985, c. P-6
|
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;
(b) where a
member of the forces dies as a result of an injury or disease or an
aggravation thereof that arose out of or was directly connected with such
military service, a pension shall be awarded in respect of the member in
accordance with the rates set out in Schedule II;
(c) where a
member of the forces is in receipt of an additional pension under paragraph
(a), subsection (5) or section 36 in respect of a spouse or common-law
partner who is living with the member and the spouse or common-law partner
dies, except where an award is payable under subsection 34(8), the additional
pension in respect of the spouse or common-law partner shall continue to be
paid for a period of one year from the end of the month in which the spouse
or common-law partner died or, if an additional pension in respect of another
spouse or common-law partner is awarded to the member commencing during that
period, until the date that it so commences; and
(d) where, in
respect of a survivor who was living with the member of the forces at the
time of that member’s death,
(i) the
pension payable under paragraph (b) is less than
(ii) the
aggregate of the basic pension and the additional pension for a spouse or
common-law partner payable to the member under paragraph (a), subsection (5)
or section 36 at the time of the member’s death,
a pension
equal to the amount described in subparagraph (ii) shall be paid to the
survivor in lieu of the pension payable under paragraph (b) for a period of
one year commencing on the effective date of award as provided in section 56
(except that the words “from the day following the date of death” in
subparagraph 56(1)(a)(i) shall be read as “from the first day of the month
following the month of the member’s death”), and thereafter a pension shall
be paid to the survivor in accordance with the rates set out in Schedule II.
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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;
b)
des pensions sont accordées à l’égard des membres des forces, conformément
aux taux prévus à l’annexe II, en cas de décès causé par une blessure ou maladie
— ou son aggravation — consécutive ou rattachée directement au service
militaire;
c)
sauf si une compensation est payable aux termes du paragraphe 34(8), la
pension supplémentaire que reçoit un membre des forces en application de
l’alinéa a), du paragraphe (5) ou de l’article 36 continue d’être versée
pendant l’année qui suit la fin du mois du décès de l’époux ou du conjoint de
fait avec qui il cohabitait alors ou, le cas échéant, jusqu’au versement de
la pension supplémentaire accordée pendant cette année à l’égard d’un autre
époux ou conjoint de fait;
d)
d’une part, une pension égale à la somme visée au sous-alinéa (ii) est payée
au survivant qui vivait avec le membre des forces au moment du décès au lieu
de la pension visée à l’alinéa b) pendant une période d’un an à compter de la
date depuis laquelle une pension est payable aux termes de l’article 56 —
sauf que pour l’application du présent alinéa, la mention « si elle est
postérieure, la date du lendemain du décès » à l’alinéa 56(1)a) doit
s’interpréter comme signifiant « s’il est postérieur, le premier jour du
mois suivant celui au cours duquel est survenu le décès » — d’autre
part, après cette année, la pension payée au survivant l’est conformément aux
taux prévus à l’annexe II, lorsque, à l’égard de celui-ci, le premier des
montants suivants est inférieur au second :
(i) la pension
payable en application de l’alinéa b),
(ii)
la somme de la pension de base et de la pension supplémentaire pour un époux
ou conjoint de fait qui, à son décès, est payable au membre en application de
l’alinéa a), du paragraphe (5) ou de l’article 36.
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