Date: 20091130
Docket: T-1820-08
Citation: 2009 FC 1218
Ottawa, Ontario, November 30, 2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
CHERYLYNN
HUNT
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Veteran’s Review
and Appeal Board, dated September 18, 2008, denying the Applicant’s request for
reconsideration of their previous decision refusing to grant benefits for a
knee condition claimed by the Applicant.
[2]
For
the reasons set out below the application is dismissed.
I. Background
[3]
The
Applicant joined the Canadian Regular Forces in June 1982 and worked as an
engineer. According to the Applicant, she had no medical knee problems when she
joined the Canadian Forces. She began to experience general to extreme knee
pain and discomfort during her initial years at the Royal Military College as an
Officer Cadet and during training at the Canadian Forces School of Military
Engineering.
[4]
In
2002, the Applicant applied to the Department of Veterans Affairs (DVA) for a
disability pension for chondromalacia patella in both her right and left knees
(the knee condition). It is her position that the exigencies of her service,
particularly during Basic Training, Recruit Training and the period when she
was a first year cadet, initiated the problem with her knees that then underwent
further aggravation during Phase II and Phase III training.
[5]
The
DVA determined that the Applicant was not entitled to a pension for this
condition as the available medical evidence did not support that the knee
condition arose out of, or was directly connected with, her Regular Forces
service. The Applicant appealed this decision to the Veterans Review and Appeal
Board Entitlement Review Panel (Entitlement Review Panel or the Panel). The
Entitlement Review Panel conducted a de novo hearing and determined that
the knee condition was not pensionable as there was no indication of service
related trauma to either knee noted in any of the Applicant’s service documents
and that no medical opinion was presented to the Panel to relate the claimed
condition to the Applicant’s Regular Forces service.
[6]
The
Applicant appealed the Entitlement Review Panel decision to the Veteran’s
Review and Appeal Board (the Board). On January 13, 2005, the Board affirmed
the Entitlement Review Panel decision, stating that the there was no medical
opinion which could have allowed the Panel to infer a causal or aggravation relationship
to the Applicant’s military service.
[7]
On
February 25, 2005, the Applicant filed a Notice of Application with this Court
to have the Board’s decision judicially reviewed. The Applicant also applied to
the Board for reconsideration of their decision and provided additional evidence
from Dr. J.A. Ross dated April 25, 2005. The Federal Court dismissed the
Applicant’s application for judicial review for her knee condition. Justice
Johanne Gauthier found that the Board made no reviewable error when it concluded
that it could not infer a causal or aggravation relationship between the
Applicant’s condition and her military service on the basis of the evidence
presented (see Hunt v. Canada (Attorney General), 2006 FC 1029, 299
F.T.R. 84).
[8]
Following
the decision of Justice Gauthier, the Applicant’s request for reconsideration
was revived and submissions were made by the Applicant’s pension advocate. On September
18, 2008, the Board denied the reconsideration.
A. The
Legislative Scheme
[9]
Subsection
32(1) of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the
VRAB Act or the Act) authorizes the Board to reconsider a
previous decision if one or more of the statutory grounds for reconsideration
is established. Subsection 32(1) reads as follows:
|
Reconsideration
of decisions:
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.
|
Nouvel
examen:
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.
|
[10]
Sections
3 and 39 provide for the Act’s liberal interpretation in favour of the
pension applicant:
|
Construction:
3.
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.
[…]
Rules
of evidence:
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.
|
Principe général:
3.
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.
[…]
Règles
régissant la preuve:
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.
|
B. The
Decision
[11]
In
her submissions to the Board, the Applicant argued she had new evidence to
present. The new evidence was a March 23, 2005, letter from the Applicant and a
letter dated April 25, 2005, from Dr. Ross. The Board determined that the
evidence did not meet the legal requirement to be new evidence as it could have
been presented at the de novo hearing, was not credible, and would not
ultimately affect the previous result. The Board denied the application for
reconsideration.
[12]
The
Board held that the new evidence must meet the test for “fresh evidence” as set
out in Mackay v. Canada (Attorney General) (1997), 129 F.T.R. 286, 1997
F.C.J. No. 495. The principles of this test are:
1. The evidence should
generally not be admitted, if, by due diligence, it could have been adduced
earlier;
2. The evidence must
be relevant in the sense that it bears upon the decisive or potentially
decisive issue in the adjudication;
3. The evidence must
be credible in the sense that it is reasonably capable of belief; and
4. It must be such
that if believed, it could reasonably, when taken with other evidence adduced
earlier, be expected to affect the result.
[13]
In
their decision, the Board determined that the evidence could have been adduced
earlier by due diligence. They added that the Applicant had been put on notice
in previous decisions that a medical opinion would be helpful in for
Entitlement Review Panel decision, but the Applicant did not bring any such
evidence to the de novo hearing.
[14]
The
Board also held that Dr. Ross’ evidence was not credible as it was not
reasonably capable of belief. They found it was not reasonably capable of belief
as the evidence was not supported by the documentary evidence. The Board took
the position that it was difficult to reconcile the findings of the on-going medical
reports that did not reference the knee condition with Dr. Ross’ statement that
the Applicant would have, on several occasions from 1982 to the present day,
been symptomatic with her knee condition. The Board also found that Dr. Ross’
opinion did not accord with the prevailing medical wisdom on the matter.
II. Standard
of Review
[15]
The
applicable standard of review for reconsideration decisions of the Board is reasonableness
(Rioux v. Canada (Attorney General), 2008 FC
991, [2008] F.C.J. No. 1231 at paragraph 17; Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
III. Issues
[16]
There
is one issue to consider in this matter: was the decision of the Board that the
Applicant did not meet the requirements for reconsideration under subsection 32(1)
of the VRAB Act reasonable?
A. The
Evidence Was Not New and Could Have Been Introduced At One of the De Novo
Hearings
[17]
The
Applicant argues that the Board’s use of the test in Mackay, above,
resulted in process and due diligence being placed before the “benefit of the
doubt” principle in the VRAB Act. The correctness of using this test has
been challenged in this court previously, notably in Canada (Chief Pensions
Advocate) v. Canada (Attorney General), 2006 FC 1317, 302 F.T.R. 201 and Nolan
v. Canada (Attorney
General),
2005 FC 1305, 279 F.T.R. 311.
[18]
In
Canada (Chief
Pensions Advocate), above, the applicant challenged the Board’s interpretation
of subsection 32(1) and section 111 of the Act. The issue before the
Court was whether the Board may consider the principle of “due diligence” in
deciding whether to exercise its discretion to reconsider an appeal decision
pursuant to subsection 32(1) and section 111. Justice Elizabeth Heneghan
answered the question affirmatively, subject to the provision that the Board’s
discretion must be exercised in a manner that conforms to the broad purpose of
the Act and respects the intent and meaning of sections 3 and 39.
[19]
In
Nolan, above, at the reconsideration hearing, the applicant tried to
introduce a second letter from his doctor. The Board held that the second
letter did not meet the requirements of new evidence as set out in Mackay,
above. The applicant in Nolan, above, argued that the word “new” in subsection 32(1)
should be given its ordinary and literal meaning and that applying the
threshold test set out in Mackay, above, was contrary to the liberal
provisions of section 3 and 39 of the VRAB Act. Justice Konrad
von Finkenstein did not accept this argument. He held at paragraph 21 that the
Board’s adoption of the test set out in Mackay, above, to deal with
fresh evidence followed existing jurisprudence, was consistent with good agency
management, avoided unnecessary expense, and was a practical way of applying
the principle of finality in an agency context.
[20]
In
this matter, the Board found that the Applicant had not acted with due
diligence. She knew or ought to have known that medical evidence on causation
was necessary and had an opportunity to produce this evidence at her de novo
hearing before the Board. She states that she did not produce the evidence
because she felt the application was strong enough without it and that the
evidence met the Medical Guideline’s causation requirements. On reconsideration,
the Board found that she could have produced the letter from Dr. Ross but chose
not to until the reconsideration hearing and therefore she had not acted with
due diligence. This was reasonable.
a.
The
Evidence Was Not Credible and Could Not Ultimately Affect the Previous Result
[21]
The
Board held that while Dr. Ross was credible, his opinion was not as it appeared
to be based on the Applicant’s self-reporting and was not consistent with other
evidence, including the objective medical evidence. The Board then determined
that Dr. Ross’ evidence, when considered with the other evidence, did not
provide a credible opinion on causation. Causation was the decisive issue in
the matter and therefore the new evidence could not reasonably have affected
the results.
[22]
The
Applicant argues that Dr. Ross’ evidence should have been found to be credible
as he is a doctor employed by National Defence. However, I note that the Board
did not find Dr. Ross not credible; they found his opinion not credible. The
Applicant makes further arguments that the Board did not consider the full extent
of her knee condition, that many incidences of pain and discomfort were not
reported, and that there were other opinions about the cause and treatment of
her knee condition.
[23]
Dunsmuir, above,
teaches us that reasonableness is a deferential standard concerned with the
existence of justification, transparency and intelligibility within the
decision-making process and that “reasonable” decisions will fall within a
range of possible acceptable outcomes which are defensible in respect of the
facts and law. The Board may reject evidence if it has before it contradictory
evidence or if it states reasons which would bear on the credibility and
reasonable of the evidence (see Wood v. Canada (Attorney
General)
(2001), 199 F.T.R. 133, [2001] F.C.J. No. 52 (T.D.) at paragraph 33).
[24]
Based
on their review of the letter from Dr. Ross, the objective medical evidence,
and their conclusion with regard to the credibility of the evidence on
causation, the Board’s decision was reasonable.
[25]
Decisions
of the Veteran’s Review and Appeal Board are final and binding. Under
subsection 32(1), the Board is able to reconsider previous decisions if there
is an error of fact, law, or new evidence. It is important to note that under
the legislation, each review, except the reconsideration review, is conducted
on a de novo basis, with the opportunity to submit new evidence and
arguments. As set out by Justice von Finkenstein at paragraph 20 of Nolan,
above, applicants should be prepared to use the appeal hearing as their last
opportunity to raise all potential arguments and avenues of appeal. Conducting
a reconsideration every time any form of evidence is offered subsequent to the
release of a final and binding appeal decision does not respect the principle
of finality or promote the efficient use of resources.
[26]
The
decision of the Board to deny the Applicant’s application for reconsideration
was reasonable.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. this
application for judicial review is dismissed; and
2. there is no Order as to costs.
“ D.
G. Near ”
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