Date: 20110315
Docket: T-617-09
Citation: 2011 FC 309
Ottawa, Ontario, March 15, 2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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BRIAN C. BRADLEY
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
This
Applicant, a self-represented former member of the Armed Forces, has been
locked in litigation over his disability claim for a slip in the shower of HMCS
Qu’Appelle for several years and in this Court since 1999 (see Bradley
v. Canada (Attorney
General),
[1999] F.C.J. No. 144). His first application for a pension based on upper back
and neck injuries was finally settled in 2004.
[2]
After
the 2004 Federal Court decision, the Applicant started a second application for
mechanical lower back pain based on the same incident. After further
proceedings it was determined that the Department of Veterans Affairs was
required to determine this new claim. It is the new claim which is the subject
matter of this judicial review.
II. FACTUAL
BACKGROUND
[3]
The
Applicant was undergoing officer training as an Acting Sub-Lieutenant aboard
HMCS Qu’Appelle, a destroyer
escort. The ship was alongside in Vancouver near the end of a
training cruise in the Pacific. The ship was ultimately destined to its home port of CFB
Esquimalt.
[4]
The
Applicant, having completed training for the day, went to the mess (presumably
the Wardroom) where he had a few beers. The exact quantity was not established
but the drinking took place on board a warship in a tightly regulated
environment.
[5]
Mr.
Bradley contends that he slipped while in the shower cleaning up from his daily
duties and prior to going ashore. He was found the next day in his bunk in
severe pain. There was a notation in the medical file that he had significant
alcohol in his system. There was some suggestion drawn that there was a
connection between the shower incident and the consumption of alcohol on board;
however, how that could have happened in the circumstances of an officer in
training, in a wardroom, was not established.
[6]
When
the Department finally considered this new claim, it reached the conclusion
that the fall in the shower did not arise out of, and was not directly
connected with, the Applicant’s military service. The Department made no
further determination as to whether the fall caused the mechanical low back
pain.
[7]
A
Review Panel affirmed the Department’s decision to deny the Applicant pension
entitlement.
[8]
The
Applicant appealed to the Appeal Board; however, on August 5, 2008, the Appeal
Board affirmed the negative decision. It is this decision which is the subject
of this judicial review.
III. APPEAL
BOARD DECISION
[9]
Despite
the new evidence in the form of two medical opinions linking the fall in the
shower to mechanical lower back injury, the Appeal Board rejected the causal
relationship. While acknowledging the legislative presumption favouring an
applicant (including presumably s. 39 of the Veterans Review and Appeal
Board Act, S.C. 1995, c. 18 (Act)), the Board simply found itself not
satisfied that there was a linkage to the 1990 injury.
[10]
There
was no evidence contrary to the Applicant’s own testimony or to the medical
evidence submitted.
[11]
The
Appeal Board also found that the showering incident was not related to military
service. In that regard, the Appeal Board made five specific findings:
1. The
exact nature of the activity of showering was an ordinary personal event.
2. The
specific location, on a warship, was more analogous to a personal residence or
a barracks and thus not “suggestive of any worthwhile degree of relation to the
performance of duty”.
3. There
was no control over the Applicant because his superiors did not know what he
was doing at the precise moment of injury, he was not part of a shore party and
he had consumed an amount of alcohol such that he was not deployable.
4. The
Applicant was not “on duty” at the time of the injury.
5. The
accident was not rooted in some way to the performance of service because of
his consumption of alcohol in the mess having come off watch.
IV. LEGAL
ANALYSIS
A. Standard
of Review
[12]
The
standard of review was not really addressed by the Applicant. The Respondent,
quite properly, argues that the standard of review is reasonableness as held in
Wannamaker v. Canada (Attorney General), 2007 FCA
126 at para. 12. The Respondent pleads for curial deference on the basis of McTague
v. Canada (Attorney
General) (T.D.), [2000] 1 FC 647 at paras. 46 and 47.
[13]
The
Court concurs that the standard of review is reasonableness with respect to
specific findings.
[14]
This
Court has had several occasions on which to address whether the Appeal Board
has carried out its responsibilities as mandated by both the letter and the
spirit of the legislation (see examples, Schut v. Canada (Attorney General),
[2000] FCJ No. 424, McTague, above, Frye v. Canada (Attorney
General),
2004 FC 986, Wannamaker, above). There are unique features to the Act
which sets the framework and approach to the Appeal Board’s decisions.
[15]
Sections
3 and 39 of the Act establish the overall intent of Parliament to recognize
that those who serve this country in the military are deserving of special care
and attention when they are injured or killed.
Section 3
sets the tone of the legislation.
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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.
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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.
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Section 39 establishes
one of the ways by which the objective of s. 3 is fulfilled. It is more than “a
tie goes to the runner” provision.
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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.
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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.
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[16]
These
provisions give context against which to apply the standard of review. This is
legislation designed to protect and respect the members of the Armed Forces.
B. Reasonableness
of Decision
[17]
Members
of the Armed Forces are not entitled to a pension simply because they become
injured while they are members. There must be a relationship between the injury
and military service. The injury must “arise out of” military service.
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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;
Pension Act, R.S. 1985, c. P-6
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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;
Loi sur les
pensions, L.R., 1985,
ch. P-6
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[18]
The
Supreme Court of Canada has held that the words “arising out of” are to be
interpreted broadly in circumstances akin to those of the case at bar.
21 The question is whether
the requisite nexus or causal link exists between the shooting and the
appellant's ownership, use or operation of the van. With respect to causation,
it is clear that a direct or proximate causal connection is not required
between the injuries suffered and the ownership, use or operation of a vehicle.
The phrase "arising out of" is broader than "caused by",
and must be interpreted in a more liberal manner. A formulation of the
causation principle is found in Kangas v. Aetna Casualty & Surety Co.,
235 N.W. 2d 42 (1975), where the Michigan Court of Appeals stated at p. 50:
. . . we conclude that while the automobile
need not be the proximate cause of the injury, there still must be a causal
connection between the injury sustained and the ownership, maintenance or use
of the automobile and which causal connection is more than incidental,
fortuitous or but for. The injury must be foreseeably identifiable with the
normal use, maintenance and ownership of the vehicle.
That court recognized that the words
"arising out of" have been viewed as words of much broader
significance than "caused by", and have been said to mean
"originating from", "having its origin in", "growing
out of" or "flowing from", or, in short, "incident to"
or "having connection with" the use of the automobile. The
altercation in Kangas from which the injuries flowed occurred after the
passenger in the insured automobile alighted from the stopped vehicle, and
assaulted a pedestrian. It was similar to the fact patterns in cases such as Johnstone
v. Lee and Insurance Corp. of British Columbia, supra. The Kangas
causation test has been cited frequently in American decisions, and the case
law shows a general trend towards a fairly narrow application of the causation
principle (e.g., Thornton v. Allstate Insurance Co., 391 N.W. 2d 320
(Mich. 1986), Fortune Insurance Co. v. Exilus, 608 So.2d 139 (Fla. App.
1992), appeal dismissed 613 So.2d 3 (Fla. App. 1992)). While a majority of the
Supreme Court of Florida adopted a more generous causation test in Novak v.
Government Employees Insurance Co., 424 So.2d 178 (Fla. App. 1983), aff'd 453
So.2d 1116 (Fla. 1984), the injured plaintiff is still required to prove the
intent of his or her assailant (i.e., the intent to steal or hijack the
vehicle) before a causal link will be found.
Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405
[19]
The
Applicant is back in the same circumstance as in Justice MacKay’s decision in Bradley
v. Canada (Attorney
General),
2001 FCT 793, in that the Board took the same narrow approach to causality and
committed the same legal errors.
25 In
this case, the Board states that the applicant was engaged in a personal
activity of daily living when the accident occurred, and because this is an
normal activity which can occur anywhere, the injury did not arise out of, nor
was it directly connected with, his military service. However, it is not the
activity of showering considered in isolation from Mr. Bradley's military service
which is important. The activity might take place anywhere, but in this case
the applicant was assigned to duty on a ship and showering could only take
place onboard the ship which was away from its home port. Although he was not
ordered to take a shower, Mr. Bradley showered onboard HMCS Qu'Appelle because
there was no other choice. Assuming for the moment that his claimed disability
arose from that activity, whether it arose out of military service is the
question the Board ought to have determined. I note that in his decision in the
first application for judicial review, my colleague Mr. Justice Blais
specifically found that the applicant was on training at the time of the
incident alleged on board the Qu'Appelle.
26 In my opinion,
the Board's decision, which isolated the activity in which the applicant was
engaged at the time of his injury from the circumstances of his military
service, was unreasonable. The VRAB erred in law, as the Board was found to
have done in R.E.C v. Canada, supra, by Hugesseon, J [sic].
[20]
In
assessing the reasonableness of the Appeal Board’s decision, the Court must
consider not only the decision’s constituent parts but also its overall
approach. For the reasons outlined below, the Court finds that the Appeal Board
took an approach to the case which was inconsistent with s. 3 of the Act and
approached the claim in a bureaucratic, narrow and parsimonious manner. This is
inconsistent with the legislation and the decisions of this Court and the Court
of Appeal with respect to the manner in which the assessment of a pension claim
is to be conducted. It is not sufficient to pay lip service to the generous
reading and application of the legislation which Parliament intended, this
Court has affirmed and which members of the Armed Forces deserve.
[21]
In
the Appeal Board’s approach to the nature of the activity, it focused on the
mundane act of showering. In so doing, it adopted an approach to shipboard life
which would involve a decision maker in “slicing and dicing” or dissecting every
activity minutely as to whether it was a military duty. An injury from
something as simple as a burn from coffee would be analysed from the
perspective of whether it occurred on the bridge or on the mess deck, whether
the injured party was on duty, off duty or in between duties, whether the cause
of the burn was a ship passing and if so, what type of ship.
[22]
In
this instance, showering is an everyday event but it is also a matter of
hygiene (critical in confined spaces of a ship) as well as a matter of discipline.
The parallel with civilian life is not entirely satisfactory.
[23]
The
Appeal Board’s analysis of the specific location equates living on a floating
weapons platform (a ship) with that of base housing. The Appeal Board failed to
consider the unique nature of shipboard life, its confinement, its closeness
and the nature of the spaces on board.
[24]
In
considering the degree of control by superiors, the Appeal Board imports the
requirement to be performing a “military duty”. That test conflates virtually all
the other factors and raises the same problem of failing to consider whether
the injury arose from military service (not a specific military duty).
[25]
The
Appeal Board appeared to be much influenced by the issue of alcohol
consumption. While acknowledging that it did not know how much alcohol was
consumed between coming off watch and taking the shower, the Appeal Board
appears to have drawn conclusions from the report of the Applicant being found
12 hours later in his rack, in pain and intoxicated.
[26]
There
is a conclusion that, based on the Applicant’s condition 12 hours later, he was
incapable of performing military functions when he was injured. There is no
analysis or evidence of how a young man could, between 1600 when duty ended,
and at or about 1800, consume sufficient alcohol in the disciplined conditions
of officers in training and Wardroom life, to be in an inebriated state
apparently so severe that it lasted for 12 hours.
[27]
The
Appeal Board’s conclusions, so central to its overall analysis, are purely
speculative. They are also inconsistent with s. 39, in particular paragraphs (a)
and (c).
[28]
While
a sailor securing excessive liquor on board a ship may not be entirely unheard
of, there must be more than speculation to ground a finding with such severe consequences.
[29]
The
factor of being “on duty” is a reasonable consideration. It does lack, however,
any consideration of what “off duty” means on a ship, particularly a training
ship. There is no consideration of the restrictions and obligations of
shipboard life or those of an officer in training while said to be off duty.
There is no consideration of the fact that the Applicant is subject to Ship’s
Standing Orders and military discipline and cannot come and go as he may
please.
[30]
In
the Appeal Board’s consideration of whether the cause of the accident was
rooted in the performance of service, the Appeal Board acknowledges the
principles of the Act. However, it does not address the issue of “arising from
service” which is a broader notion than the performance of service. The
analysis suffers from the same deficiencies as outlined in the preceding
paragraph.
[31]
The
Appeal Board, in general, focused on whether the Applicant was performing a
specific military function or duty at the specific moment of the injury, rather
than whether the Applicant’s injury arose from his being in military service.
In Wannamaker, above, a precedent on standard of review, the applicant
slipped on ice at the Downsview base while going to work. A pension was
granted. The distinction between that case and this case where the Applicant
slipped while coming off duty but still on a military site is an immaterial
distinction given the purposes of the Act.
[32]
Therefore,
the Court concludes that the Appeal Board’s decision on this aspect was unreasonable.
[33]
On
the question of the medical evidence of causation, the decision is also
unreasonable. There is no contrary evidence yet the new medical evidence was
dismissed out of hand.
[34]
While
s. 39 does not negate the burden of proof imposed on the Applicant to prove his
case (see Moar v. Canada (Attorney General), 2006 FC
610), there is a reasonable question as to whether the Appeal Board truly
applied the benefits of that provision.
[35]
There
was evidence which would allow a reasonably instructed Appeal Board to grant
this application. Given the Appeal Board’s approach to the issue of military
service, the Court cannot be confident that the Appeal Board applied the
favourable presumptions.
IV. CONCLUSION
[36]
For
these reasons, this judicial review will be granted and the Appeal Board’s
decision quashed.
[37]
In
so doing, the Court is not suggesting that the Applicant’s claim should be
granted; only that he is entitled to a fair process consistent with the
legislation which recognizes Canadian society’s obligation to protect those who
protect us. What the merits of the Applicant’s claim may be awaits the results
of a proper process.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is granted and the Appeal Board’s decision is quashed.
“Michael
L. Phelan”
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