Date: 20091102
Docket: T-605-09
Citation:
2009 FC 1122
Montreal, Quebec, November 2, 2009
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
ELVIN
F. ANDERSON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Anderson seeks judicial review of the decision of the Veterans Review and
Appeal Board (the Board) to deny his request for reconsideration of the Board’s
decision, dated February 21, 1991,
regarding the osteoarthritis in his left knee, on the basis that the new
medical evidence submitted did not meet the four-prong test set out in Mackay
v. Canada (Attorney General) (1997), 129 F.T.R. 286, 71 A.C.W.S. (3d) 270
(F.C.) (applying the Supreme Court of Canada decision in R. v. Palmer (1979),
[1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212).
Background
[2]
Mr.
Anderson first applied for a disability pension in respect of several
conditions, including osteoarthritis in his left knee, in August 1988. A
physician’s report dated December 1988 from a doctor who started treating him
in June 1984 notes that there were marked degenerative changes in his left
joint. At the time, Mr. Anderson also established that he injured that knee
when he fell from his horse during equitation training in the spring of 1955
and reinjured it when he slipped on the snow during a storm in November 1955,
while on patrol.
[3]
However,
a report entitled “Medical Opinion” from the Pensions Medical Advisory
Division, dated September 13, 1989, concludes that “the claimed condition is thus
considered late post-discharge in origin, related to aging and there is no
indication that service factors were in any way causative”.
[4]
The
application was first denied on October 16, 1989 on the basis that the Canadian
Pension Commission (the Commission) considered his condition to be a
degenerative condition, not abnormal for a person of his age (53 years old at
that time). As there was no report of osteoarthritis on file before Mr.
Anderson retired from the Royal Canadian Mounted Police (RCMP) in 1974, the
Commission found that this condition was post-discharge in origin and not
related to his service in the RCMP.
[5]
On
July 17, 1990, the Entitlement Board, after a hearing wherein Mr. Anderson
testified, also rejected his application. It noted that despite the fact that
after recovering from his injuries, the applicant still had crepitation in his
left knee as well as some clicking and discomfort that he allegedly complained
of regularly,
there was no indication that the said injuries were the cause of his osteoarthritis.
[6]
Mr.
Anderson appealed to the Board arguing that his condition did originate in the
1955 events. In its decision of February 21, 1991, the Board clearly accepted
Mr. Anderson’s evidence in respect of his injuries. It was not contested that
these events occurred while he was an active member of the RCMP. Nevertheless,
the Board confirmed the decision of the Entitlement Board. In doing so, the
Board noted that an x-ray report dated June 12, 1978, also speaks of “bilateral
degenerative joint disease most marked in the region of the patello-femoral
component”, but that this diagnosis was made approximately 23 years after the
1955 injuries. The Board also referred to the September 13, 1989 opinion concluding
that “the claimed condition cannot be said to be related to the 1955 history of
knee sprain”.
[7]
It
is in light of the Board’s decision in 1991 that, as instructed by Mr.
Anderson, the Senior Area Advocate (the Advocate) filed, on November 25, 2008,
his request for reconsideration. This request was submitted along with written
submissions that specifically refer to Dr. Irving’s medical opinion issued in
September 2008,
as well as a letter from Mr. Anderson dated September 26, 2008, which was filed
with all attachments thereto.
[8]
As
the reconsideration was sought on the basis of new evidence pursuant to section
111 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the VRAB
Act), it is clear that the only “new” evidence submitted with the request
was Dr. Irving’s medical opinion, since Mr. Anderson’s
letter, and its attachments, focused on the
events that occurred in 1955 and the evidence establishing those facts.
[9]
In
his submissions, the Advocate duly notes that the Board accepted that these
injuries were related to his RCMP services and that the only remaining
issue was whether or not these injuries led to the current disability. In that
respect, in addition to referring to Dr. Irving’s evidence, the Advocate also
specifically refers to the explanation put forth by Mr. Anderson himself in his
letter.
[10]
On
January 27, 2009, the Advocate communicated with the applicant to advise him of
the date of the hearing, noting that viva voce evidence was not
permitted in the context of a request for reconsideration, and to inquire as to
any other new documentary evidence to be submitted. After the hearing on
February 9, 2009, the Advocate reported on the hearing and the avenues that
would be open to the applicant should his request be refused.
[11]
On
March 23, 2009, the applicant received an undated letter postmarked March 18,
2009 containing the Board’s decision. The most relevant passage of the decision
reads as follows:
The Board considered that the new
evidence failed to meet the criteria of due diligence, and there was no
reasonable explanation why such a medical opinion was not introduced at an
earlier date.
The Board also considered that this new
evidence failed to address the decisive issues raised in the Entitlement
Appeal decision dated 21 February 1991. The Board understands that the credibility
of this new evidence is questionable, because the doctor indicates that
this was the first time he examined the Appellant and that other than the
history related to him with respect to the 1955 injury, he did not know the
rest of the Appellant’s history.
The medical opinion also failed the
fourth criteria because of the way it is worded, it would not change the
result of the past Appeal decision. The medical evidence states that it is
impossible for the doctor to say whether there is a direct relationship to the
1955 injury, but that it is possible. The evidence is not persuasive.
[Emphasis added.]
Analysis
[12]
In
his Notice of Application, the self-represented applicant states that he seeks
the reversal of the Board’s decision and recognition that his condition is a
direct result of an injury sustained on April 7, 1955 while he was a member of
the RCMP. Mr. Anderson also filed a substantial affidavit which includes
documentation that was not before the original decision-maker, particularly at
tabs R to V.
[13]
At
the hearing, the applicant was advised that the Court cannot consider this new
evidence, because on judicial review the validity of the decision must be assessed
on the basis of the evidentiary record that was before the original decision-maker.
The applicant was also advised that the Court could not make a finding in
respect of the causal link. At best, the Court could quash the
decision if it contained a reviewable error
and send the file back for redetermination by a different panel.
[14]
That
said, in his Notice of Application, his written submissions and his oral
argument, Mr. Anderson raised many grounds which can be summarized as follows:
i.
The
decision was undated and was made too long after the hearing on February 3,
2009. It failed to refer to all of the evidence and the submissions made on his
behalf. It appears to be based only on partial comments of Dr. Irving;
ii. The Board
applied a four-prong test. The precise source of this is undocumented and
therefore questionable. With respect to the absence of a reasonable
explanation, such information is inconsequential as the presence of
osteoarthritis was well-documented in the file.
iii. The Board
failed to apply s. 39 of the VRAB Act and the Board’s failure to take a
closer look at his file is an indication of bias.
iv. The Bureau of
Pensions Advocates failed to give him the best services, because, in his view,
the Advocate should have referred the Board to additional evidence such as the
two medical reports filed as exhibits N and O to Mr. Anderson’s affidavit
respectively dated February 11, 2005 and January 23, 1990. In his view, he
should have filed and referred to exhibit K to his affidavit (three photographs
of RCMP members executing jumps and mounting horses). Also, since it is not
clear to whom the said Advocate addressed his letter of November 25, 2008
(distribution unit), it is not certain that these submissions and all the
evidence attached to it were effectively presented to the Board.
v. There are systemic
problems with the Board and that, overall, the system is not fulfilling its
mandate. The applicant noted that he was never given an opportunity to obtain
an orthopedic surgeon’s opinion from a member of the Board’s own medical staff.
Also, the Pensions Advocates Office failed to request a medical opinion at any
time before he contacted them with respect to a potential request for
reconsideration.
[15]
As
the present proceeding is limited to the review of the decision of the Board rendered
in March 2009, the Court has no jurisdiction to deal with the allegations of
systemic failures or with allegations concerning the services provided by the
Pensions Advocates Office in 1988-1991 or any time prior to the applicant
seeking the reconsideration decision under review. Furthermore, it is not
necessary to discuss the allegation of bias given that there is absolutely no
evidence or detailed argument to support it. One cannot simply assume bias from
the denial of the application or even from the existence of reviewable errors.
[16]
As
to the quality of the services rendered by the Advocate in this case, the Court
can only consider these submissions if the alleged “errors” amount to such an
extraordinary incompetence
that it constitutes a breach of procedural fairness in itself, such that these
errors impacted on the
decision rendered. Also, normally this ground
of review is not considered unless the counsel has been given notice and has
had an opportunity to respond. This is not the case here.
[17]
In
any event, as discussed at the hearing, none of the evidence that the applicant
says the Advocate should have put before the Board was of a nature that could
have impacted on the decision. A simple review of the Certified record confirms
that the Advocate did put before the Board the package he received from the
applicant. Mr. Anderson never referred to the medical report of 2005 or to his
wife’s letter of 1989.
[18]
The
only issue before the Board was properly identified in the written
representations: the link between the 1955 events which were previously accepted
by the Board as being related to Mr. Anderson’s service in the RCMP and his
current medical condition. The photographs (exhibit K) are not relevant to the
issue.
[19]
The
Court cannot find a breach of procedural fairness here. In fact, there is no
evidence that the Advocate’s services were anything but appropriate in the
circumstances.
[20]
With
respect to Mr. Anderson’s argument that the decision was undated, the Court
finds that the date is not crucial as the decision was effectively transmitted
(postmarked on March 18,
2009) and duly received by the applicant on March 23, 2009.
[21]
Turning
now to the merits of the decision itself, the Court notes that it appears that Mr.
Anderson never met or had a general discussion about the process and the
criteria which would be applied because the Advocate assigned to his file was
in a different province. This may explain why Mr. Anderson appears to be not
very well-informed about the real issue left to be determined and the test that
would be applied to determine if his new medical evidence should be admitted by
the Board.
[22]
As
mentioned, there is no doubt that the Board applied the appropriate four-prong
test here. In fact, the Board had no choice but to apply this test. Thus, the
only issue left is whether its application of the test to the facts of this
case contains any reviewable error.
[23]
The
standard of review applicable here has already been established by this Court
in many cases, therefore, as was stated in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, there is no need in the present case to engage
in a full standard of review analysis. As noted in Lenzen v. Canada
(Attorney General), 2008 FC 520, 327 F.T.R. 12 at paragraph 33, in Bullock
v. Canada (Attorney General), 2008 FC 1117, 336 F.T.R. 73 at paras. 11-15,
and in Rioux v. Canada (Attorney General), 2008 FC
991, 169 A.C.W.S. (3d) 338 at para. 17, the Court must determine if the
decision is reasonable. This means that the Court is verifying whether the
decision falls within a range of possible, acceptable outcomes, which are
defensible in respect of the facts and the law. It also looks at the existence
of justification, transparency, and intelligibility within the decision-making
process. It is important to state that there may be, and often is, more than
one such reasonable outcome. Judicial review is not meant to be used simply as
an opportunity for the Court to substitute its own views to those of the
original decision-maker.
[24]
The
fact that the Board did not refer to all the evidence and the submissions made
on behalf of the applicant does not indicate that it did not take them into
account. On the contrary, a tribunal is assumed to have considered all the
evidence, even though every piece of evidence is not addressed in the reasons,
unless the contrary is shown: Florea v. Canada (Minister of Employment and
Immigration),
[1993] F.C.J. No. 598 (QL) (F.C.A.), Hassan v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635
(F.C.A.). In
the present case, the Board’s reasons adequately support the decision and there
is no proof that it failed to consider all the evidence submitted by the
Advocate.
[25]
Mr.
Anderson does not contest that no explanation for the delay in seeking Dr.
Irving’s medical evidence linking the osteoarthritis in his left knee to the
1955 events was given to the Board. Now is not the time, as mentioned, to
provide such explanation. This is an essential criteria, for the admission of
the evidence, that cannot simply be ignored as suggested by the applicant. It
concerns the filing of evidence supporting a causal link and not the existence
of prior evidence of osteoarthritis in the file. Having considered the wording
of Dr. Irving’s letter, it was not unreasonable for the Board to conclude that
this evidence had little probative weight and was not persuasive.
[26]
Sections
3 and 39 of the VRAB Act do not relieve the applicant of his burden of
establishing a causal link between the injuries he suffered in 1955 and the
condition under review. Although the Court does not agree with the respondent’s
view that this must be done on a balance of probability, Mr. Anderson still had
to establish more than a mere possibility. Once again, having very carefully
considered Dr. Irving’s letter, the Court cannot conclude that it was
unreasonable to find that Mr. Anderson had done nothing more than raise a mere
possibility of such link.
[27]
There
is no reviewable error in this case.
ORDER
THIS COURT ORDERS that:
The application for judicial
review is dismissed without costs.
“Johanne Gauthier”
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