Date: 20090610
Docket: T-1539-07
Citation: 2009 FC 626
Ottawa, Ontario, June 10,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CYRIL
EUGENE MCLEAN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is an application for judicial review of the Veterans Review and Appeal Board’s
(VRAB) decision holding that the Applicant, a retired RCMP officer, was not
pensionable under section 32 of the Royal Canadian Mounted Police
Superannuation Act, R.S.C. 1985, c. R-11.
II. BACKGROUND
[2]
The
Applicant, a former member of the RCMP, served with the force from April 14,
1970 to July 8, 1998, at which time he retired with the rank of Inspector.
[3]
The
Applicant served in detachments in several small towns in Saskatchewan for most of
the 1970s, then at the national RCMP headquarters in Ottawa and in
various overseas postings until his retirement. There is evidence that the
Applicant suffered knee pain from the time of his training at the beginning of
his career, but at the time of his admission to the RCMP, he was in good health
and there is no serious claim that those knee injuries form part of his pension
appeal.
[4]
In
the mid-1970s the Applicant was involved in a serious motor vehicle accident
while on duty, wherein he severely banged his knees. Further, during the first
decade of his RCMP service, he was in physically demanding situations, in
isolated detachments where there was minimal staff on hand.
[5]
In
a medical report of August 10, 1976, the Applicant was said to have experienced
a “snap” in his knee and pain when bending over to pick up some garbage on his
way home from the detachment. The Applicant signed a statement on August 24,
1976 that his knee had mended properly.
[6]
Mr.
McLean first applied for a disability pension in May 2005 at which time he
claimed damage to both his right and left knee and a number of other injuries
or disabilities, the bulk of which he has since withdrawn. The Applicant’s
claim was supported with letters from several RCMP contemporaries attesting to
the nature of the work, the motor vehicle accident, and the fact that the
Applicant had complained of knee problems during his service time.
[7]
The
Minister’s decision of January 26, 2006 denied the disability entitlement on
the basis that there was no evidence of ongoing complaints with regards to the
left knee, no evidence that the injury sustained in August 1976 was related to
service, and that the diagnosis provided was a provisional diagnosis. It is not
clear from the record as to the basis upon which the medical opinion was
considered provisional.
[8]
The
Applicant had a hearing before a Panel of the VRAB on July 14, 2006 for a
review of the Minister’s decision. At that time there was before the Panel
evidence from the Applicant’s current doctor that the injuries which the
Applicant now had were consistent with chronic recurrent injuries sustained by
law enforcement personnel (letter of February 22, 2006, Certified Tribunal
Record, page 63). That evidence was elaborated on further by a letter from the
doctor of June 12, 2006 confirming the legitimacy of Mr. McLean’s claim and
referring to confirmatory evidence of damage through an MRI. The Panel denied
the pension claim on the basis that there was no documented evidence to support
the contention that the complaints were attributed to RCMP service.
[9]
The
Panel’s decision was reviewed by the Appeal Board which issued the decision
that is the matter of this judicial review. The Appeal Board denied the review,
noting that there was no report on injuries to support the proposition that the
Applicant suffered a serious injury to his left knee due to service-related
activities. The Appeal Board noted the Applicant’s 1977 diagnosis of
chondromalacia patellae, and that he sustained an injury in 1976 while walking
home from work.
[10]
The
Appeal Board went on to note that there was no continuity of complaints from
the late 1970s to 2005, that there were no eyewitnesses to the motor vehicle
accident, and that there is overall insufficient evidence that injury occurred
during service-related activities. Further, the Appeal Board stated that the
x-rays do not support the findings of trauma.
[11]
Finally,
the Appeal Board noted that:
Dr. Hansen does not address the minimal
findings on the x-ray in the late post-discharge period. He states that the
Review Panel’s denial of pension entitlement is “erroneous and unsupported”,
but does not speak to the lack of continuity of complaint, substantiation of a
service relationship, nor the natural aging process associated with
osteoarthritis.
[12]
The
Applicant lists several alleged flaws in the Appeal Board’s decision, the issue
raised is essentially:
Was the Appeal Board’s determination that
the Applicant was not eligible for disability benefits based on his knee
injuries reasonable?
III. ANALYSIS
[13]
In
Wannamaker v. Canada (Attorney General), 2007 FCA
126, the Court of Appeal held that the issue of whether a particular injury
arose out of service is to be reviewed on a standard of reasonableness. A
number of other issues were to be decided on the standard of patent
unreasonableness.
[14]
While
the Wannamaker decision was pre-Dunsmuir (Dunsmuir v. New
Brunswick,
2008 SCC 9), the Court of Appeal’s conclusion that the standard of
reasonableness applies to the matter of injuries arising out of service (more
properly described as injuries arising from RCMP service) is still applicable.
This Court followed this standard of reasonableness in Macdonald v. Canada (Attorney
General),
2008 FC 796.
[15]
The
Applicant argues that the Appeal Board erred in determining that there was a
lack of documentary evidence, especially given that there were no adverse
credibility findings, that there was no requirement for continuity of
complaints; that evidence of a motor vehicle accident ought not to be
discounted because there were no eyewitnesses; and that weight ought to be
given to Dr. Hansen’s medical opinion.
[16]
The
Respondent places great emphasis on the Wannamaker decision. However,
that decision supports a denial of benefits decision where the only evidence of
injury came from Wannamaker himself and where the VARB did not find his
evidence reliable. There is no such adverse credibility finding in the present
case.
[17]
The
Appeal Board’s finding that there was no continuity of complaints from the late
1970s to 2005 is problematic. That finding played a central role in the Appeal Board’s
decision, as it is also referred to in the Appeal Board’s comments on Dr.
Hansen’s opinion - in that the Appeal Board suggested it was a deficiency that
the medical opinion failed to address the lack of continuity of complaint.
[18]
The
Respondent recognized the problem in the Appeal Board’s decision of the
reliance on lack of continuity of complaints and described it as a “perhaps
imperfect” finding. The Respondent then valiantly attempted to recast the
finding as one going to whether the injury was service-related.
[19]
To
the extent that lack of continuity of complaint could be relevant, it is more
logically connected to whether the injury occurred in the first place and not
to whether the injury was service-related.
[20]
The
Board ignored the type of work performed by the Applicant in wrestling
assailants, breaking up bar fights, and the day-to-day “on the ground” work of
a police officer in remote locations and often alone.
[21]
The
Board also discounted the Applicant’s evidence of his car accident injury to
his knee. The Board’s rationale was that the evidence from RCMP colleagues
could only have significance if they had been eyewitnesses to the accident. The
Board gave no regard to the policing conditions in rural Saskatchewan in the 1970s
where officers often worked alone.
[22]
The
Board’s conclusion in this regard is contrary to subsection 39(c) of the
Veterans Review and Appeal Board Act:
|
39. In all proceedings under
this Act, the Board shall
…
(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.
|
39. Le Tribunal applique, à l’égard du
demandeur ou de l’appelant, les règles suivantes en matière de preuve :
…
c) il tranche en sa faveur toute
incertitude quant au bien-fondé de la demande.
|
[23]
To
the extent that the Board was weighing the absence of a formal report of injury
against evidence of letters attesting to the crash, of trauma to the knee, and of
the RCMP culture against taking time off in a small detachment, the Board did
not apply and did not consider the application of s. 39(b) of the Act. S. 39(b)
reads:
|
39. In
all proceedings under this Act, the Board shall
…
(b)
accept any uncontradicted evidence presented to it by the applicant or
appellant that it considers to be credible in the circumstances;
|
39. Le Tribunal applique, à l’égard du
demandeur ou de l’appelant, les règles suivantes en matière de preuve :
…
b) il accepte tout élément de
preuve non contredit que lui présente celui-ci et qui lui semble
vraisemblable en l’occurrence;
|
[24]
The
Appeal Board made no adverse credibility finding, yet it discounted critical
evidence as if it had. Therefore, its conclusions on the evidence were
unreasonable.
[25]
The
Respondent did not obtain, nor was it required to obtain, an independent
medical opinion. However, unlike Wannamaker, there was relatively
contemporaneous medical evidence in 1977 which identified a knee injury
(chondromalacia) and made a tentative conclusion that the Applicant’s meniscus may
not be torn. There was no final conclusion as to whether the meniscus was in
fact torn.
[26]
For
the Board to then question Dr. Hansen’s reliance in 2005 on MRI evidence rather
than the minimal findings of the 1977 x-rays and to conclude that
chondromalacia, which an expert attributes to RCMP service, is not pensionable
because it worsens with age is as unreasonable as the other findings previously
referred to.
IV. CONCLUSION
[27]
Therefore,
the Appeal Board’s decision is reviewable and should be quashed. However, the
Court will not make its own award. The matter will be referred back to a new
panel for an assessment and determination of pension entitlement in whole or in
part. The Applicant shall have his costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the Appeal
Board’s decision is quashed. The matter is referred back to a new panel for an
assessment and determination of pension entitlement in whole or in part. The
Applicant shall have his costs.
“Michael
L. Phelan”
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