Date: 20090212
Docket: T-338-08
Citation: 2009 FC 147
Ottawa, Ontario, February 12, 2009
PRESENT: The Honourable Mr. Justice O’Reilly
BETWEEN:
ROBERT GAGNON
Applicant
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr. Robert Gagnon enrolled in the Canadian
Forces in 1999. In 2005, he sought disability benefits under the Pensions
Act, R.S.C. 1985, c. P-6, claiming that he injured his back while on
military service. The Veterans Review and Appeal Board awarded him two-fifths
of a pension, but withheld the remaining three-fifths on the basis that his
injuries were partly hereditary and partly caused by non-military activities.
Mr. Gagnon submits that the Board erred in failing to grant him a full pension
and asks me to order it to re-assess his claim.
[2]
I can find no basis for overturning the Board’s
decision and must, therefore, dismiss this application for judicial review.
[3]
Mr. Gagnon presented three main issues:
1.
The advocate representing him before the Board
was incompetent.
2.
There is new evidence supporting his claim.
3.
The Board’s finding that his injury was not
entirely service-related was unreasonable.
I. Factual
Background
[4]
Mr. Gagnon joined the Canadian Forces in 1999.
On his enrolment, it was noted that he had incurred back injuries while playing
hockey as a teenager, for which he had received treatment. Still, Mr. Gagnon
remained an active hockey player. However, in 2002, he suffered another back
injury while playing on the Canadian Forces hockey team. He also hurt his back
on the job in 2005 while lifting computer monitors onto a ship.
[5]
In 2005, Mr. Gagnon was diagnosed with a
degenerative disc disease with disc herniation. He had back surgery
(discectomy) in 2005. He still has back pain, as well as some loss of
sensation and mobility.
[6]
The Board took account of Mr. Gagnon’s
service-related injuries, but also noted other sources of his back problems,
including his previous hockey injuries, a motorcycle accident, two car
accidents, an injury caused by lifting a boat, and a family history of lower
back pain. Looking at the circumstances as a whole, the Board concluded that
Mr. Gagnon was entitled to a two-fifths pension entitlement.
II. Analysis
1. Was the
advocate representing Mr. Gagnon incompetent?
[7]
Mr. Gagnon submits that the advocate (appointed
by the Board) failed to advise him that a letter from his family doctor was not
sufficient to prove an absence of a family history of back problems. The Board
concluded that the letter was not a “credible medical opinion.”
[8]
The Board’s decision details the various
submissions put forward by Mr. Gagnon’s advocate. Clearly, the advocate
presented all of the arguments in Mr. Gagnon’s favour. There is nothing in the
record to suggest that he was incompetent.
2. Does the new
evidence support Mr. Gagnon’s claim?
[9]
On a judicial review, the Court will generally
consider only the evidence that was before the decision-maker. Its role is to
determine whether the decision-maker erred “in light of the evidence that was
before it” (Kaminski v. Canada (Minister of Social Development),
[2008] F.C.J. No. 1010, at para. 10).
[10]
There is no basis for considering the new
evidence Mr. Gagnon has assembled and, therefore, I cannot take it into account
in deciding whether the Board erred.
3. Was the Board’s finding that Mr.
Gagnon’s injury was not entirely service-related unreasonable?
[11]
Mr. Gagnon cites a number of areas where he
feels the Board misconstrued or ignored evidence in his favour.
[12]
First, Mr. Gagnon states that the Board
misunderstood an opinion provided by a Dr. Garth Johnson who stated, “He has a
markedly positive family history for spine problems in both his mother and
cousin, not specific for a spondyloarthritis”. Mr. Gagnon suggests that the
Board should have realized that this statement could not be used to support a
conclusion that his back problems were hereditary, since spondyloarthritis is
itself hereditary. In other words, in Mr. Gagnon’s submission, Dr. Johnson’s
opinion is ambiguous.
[13]
Second, Mr. Gagnon argues that the Board should
not have relied on an opinion from a chiropractor (Dr. G. McBride) who observed
that Mr. Gagnon’s “family health history includes a significant maternal
history of low back pain, which is of significance because . . . those with a
family history of low back pain generally experience a five times greater
incidence than the general population.”
[14]
Third, Mr. Gagnon submits that the Board failed
to give sufficient weight to the statements of Mr. Richard Riley, Ms. Jennifer
Lapointe and a Dr. Janna, who corroborated his account of being injured by
moving computer monitors.
[15]
Fourth, Mr. Gagnon argues that the Board failed
to abide by its obligations to draw “every reasonable inference in favour of”
an applicant, to “accept any uncontradicted evidence presented to it by” an
applicant, and to resolve any doubt in favour of an applicant, according to the
Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ss. 39(a),(b),
and (c).
[16]
Mr. Gagnon’s first three arguments are really
about the weight that particular elements of the evidence before the Board
should have been given. The question of the weight of evidence is a matter
that is wholly within the Board’s discretion, subject to the statutory
obligations that are the subject of Mr. Gagnon’s fourth argument.
[17]
The Board had before it contradictory evidence
on the question of a family history of back problems. It resolved the
contradiction by favouring the opinions of Drs. Johnson and McBride over the
opinion of Mr. Gagnon’s family doctor, Dr. Lagrotteria, as it was entitled to
do. The Board did consider the evidence corroborating Mr. Gagnon’s account of
being injured while moving computer monitors. That evidence, in part,
justified the award of a partial pension. Finally, it appears to me that the
Board did draw every reasonable inference and resolve any doubt in Mr. Gagnon’s
favour. I cannot see any basis for concluding that the Board failed to
discharge its statutory obligations toward him. Indeed, the Board had a
co-existing duty to award “only that fraction of the total disability, measured
in fifths, that represents the extent to which the injury or disease was
aggravated” during military service (Pensions Act, above, s.
21(2.1)). It did so in awarding Mr. Gagnon a two-fifths pension.
III. Conclusion
and Disposition
[18]
From my review of the record, Mr. Gagnon had a
fair opportunity to present his evidence to the Board. In turn, the Board took
into account the relevant evidence in arriving at its conclusion. That
conclusion was reasonable in the sense that it “falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47).
[19]
Accordingly, the application for judicial review
is dismissed. There is no order as to costs.
ORDER
THIS COURT
ORDERS that:
1. The application for judicial review is dismissed.
2. The style of cause is amended to: Robert Gagnon v. Attorney
General of Canada.
“James W. O’Reilly”
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