Date: 20110429
Docket: T-554-10
Citation: 2011
FC 501
Ottawa, Ontario, April 29, 2011
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
|
|
TRENT CHAYTOR
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
First Respondent
|
|
|
and
|
|
|
|
VETERANS REVIEW AND APPEAL BOARD
|
Second Respondent
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Trent Chaytor (the “Applicant”) seeks judicial review of a decision made by the
Veterans Review and Appeal Board (the “Board”), sitting as an Entitlement
Appeal Panel, pursuant to the Veterans Review and Appeal Board Act, S.C.
1995, c. 18 (the “Act” or the “Veterans Review and Appeal Board Act”).
In that decision, dated March 12, 2010, the Board dismissed the Applicant’s
appeal from the decision of the Entitlement Review Panel dated January 3, 2005.
Background
[2]
The
Applicant joined the Canadian Armed Forces in 1984 as a naval technician.
Because he suffered from sea sickness, the Applicant became a Vehicle Technician
at Canadian Forces Base Gagetown. He began on-the-job training in May 1992.
He served until 1996 at CFB Gagetown in that capacity, that is as a Vehicle
Technician.
[3]
In
July 1996, the Applicant was transferred to Canadian Forces Station St. John’s,
still working as a Vehicle Technician, primarily in Building #202. In February
1998, he collapsed with chest pain, which required emergency assistance and a
four-day period of hospitalization. According to the Applicant, these seizures
have continued intermittently since that time.
[4]
The
Applicant was placed on medical restrictions in July 1998. In the beginning, he
was diagnosed with atypical seizures. A CAT scan in 2001 disclosed a bilateral
calcification of the Applicant’s basal ganglia.
[5]
In
February 2002, the Applicant’s neurologist, Dr. Mark Stefanelli, expressed the
opinion that this may have been related to carbon monoxide exposure. The
Applicant was put on a course of anti-epileptic medications, but an EEG
conducted in May 2002 showed no evidence that suggested epileptic
abnormalities. The Applicant sought an extension of his medical restrictions
in July 2002 that had begun in July 1998.
[6]
The
Applicant also consulted Dr. Anne Williams, a cardiologist, to whom he was
referred in April 2001, but was primarily treated by Dr. Stefanelli. Dr.
Stefanelli provided a number of letters and reports to Veterans Affairs Canada
(“VAC”) and to the Board. The most recent correspondence in the Board’s Record
is a letter dated May 8, 2009 from Dr. Stefanelli. While he said that he could
not make a definite conclusion, Dr. Stefanelli expressed the opinion that,
having ruled out other possibilities, the Applicant’s basal ganglia
calcification was likely related to chronic exposure to carbon monoxide.
[7]
In
his Affidavit, the Applicant says that he was exposed to noxious gases,
including carbon monoxide, throughout his career. The “Environmental” portion
of his job description includes exposure to noxious odours and toxic gases.
During his training at CFB Gagetown, five of the Applicant’s routine duties
exposed him to carbon monoxide.
[8]
At
CFS St. John’s, the Applicant was primarily exposed to carbon monoxide in
Building #202.
[9]
In
April 1993, three years before the Applicant arrived at CFS St. John’s, a
Preventative Medicine Inspection Report for CFS St. John’s was prepared. In the
section entitled “Noise and Emissions Survey Vehicle Workshop, Building #202”,
concerns were expressed regarding the workers’ exposure to fumes. That report
made recommendations to reduce the exposure to carbon monoxide and nitrogen
dioxide. The report noted that one worker had been complaining of symptoms of
carbon monoxide over-exposure.
[10]
In
1999, Lieutenant Steve Taylor reported that the air quality in Building #202
was very poor. He provided a statement to this effect in May 2003.
[11]
In
March 2002, Health Canada conducted a workplace inspection and found that
Building #202 had acceptable levels of carbon monoxide when ventilation
equipment was in use. The Applicant submits that the testing done on that day
was not representative of the ordinary operating conditions in that building.
[12]
On
September 9, 2002, the Applicant applied for a disability pension pursuant to
paragraph 21(2)(a) of the Pension Act, R.S.C. 1985, c. P-6. He made this
application because he believed that the Career Medical Review Board would
likely decide that he should be discharged. The Applicant was not released from
service until May 2004. On November 27, 2003, VAC decided that the Applicant
had provided insufficient evidence of exposure and denied his pension
application. This decision was confirmed by a Departmental Review on
March 3, 2004.
[13]
The
Applicant appealed this negative decision to an Entitlement Review Panel of the
Board. On January 13, 2005, that Panel affirmed the Department’s decision and
held that there was no medical evidence to link the Applicant’s seizures or
basal ganglion calcification to carbon monoxide exposure.
[14]
The
Applicant appealed this decision to the Board. On March 12, 2010, the Board denied
the Applicant’s appeal. The majority held that the only scientific evidence of
exposure of carbon monoxide was the Health Canada Workplace Investigation. The
majority of the Panel was not convinced that chronic exposure to low levels of
carbon monoxide could lead to the Applicant’s claimed condition. The majority
found that Dr. Stefanelli’s conclusions amounted only to speculation and were
not supported by the medical literature.
[15]
The
dissenting member of the Panel found that it was reasonable to infer that the
Health Canada Workplace Investigation did not reflect typical operating
conditions. Having regard to the totality of Dr. Stefanelli’s reports, the
minority member concluded that the Applicant’s evidence showed that his
symptoms were caused by the basal ganglion calcification which in turn was
caused by his exposure to carbon monoxide in the course of his military
service.
Issues
[16]
This
application for judicial review raises the following issues:
(i) What is the
appropriate standard of review?
(ii) Did the Board
fail to observe a principle of natural justice or procedural fairness relative
to the oral finding of the Entitlement Review Panel that there was a factual
link between the Applicant’s service and exposure to noxious gas?
(iii) Did the Board
err by restricting its assessment of the Applicant’s exposure to noxious gases
solely to his service as a Vehicle Technician at Building #202, CFS St. John’s?
(iv) Did the Board make an
erroneous finding of fact by failing to give sufficient weight to other
evidence regarding exposure to carbon monoxide?
(v) Did the Board
err by failing to give appropriate weight to the complete, uncontradicted
medical opinion of Dr. Stefanelli?
Discussion and
Disposition
[17]
The
first matter to be addressed is the appropriate standard of review. According
to the decision of the Supreme Court in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, decisions of statutory decision-makers are reviewable
either on the standard of correctness or of reasonableness.
[18]
According
to the Supreme Court of Canada’s decision in Canada (Citizenship
and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at para. 43, the standard
of correctness will apply to questions of procedural fairness. The standard of
reasonableness will apply to questions of fact and questions of mixed fact and
law; see Dunsmuir at para. 53.
[19]
Where
the prior jurisprudence has already established the appropriate standard of
review, that standard can be used; see Dunsmuir at para. 57. Subsequent
to the release of the decision in Dunsmuir, the Federal Court has held
that decisions of the Board, involving questions of fact and the weighing of
evidence, should be reviewed on the standard of reasonableness; see Goldsworthy
v. Canada (Attorney General), 2008 FC 380 and Dugré v. Canada (Attorney
General), 2008 FC 682.
[20]
The
second issue, as stated above, raises an issue of procedural fairness and is
reviewable on the standard of correctness. The remaining issues raise matters
of fact and questions of mixed fact and law, and are accordingly reviewable on
the standard of reasonableness. The application of the standard of
reasonableness must take into account the particular statutory context that
applies here, that is pursuant to the Pension Act and the Veterans
Review and Appeal Board Act.
[21]
The
Applicant’s pension application is governed by both the Pension Act and
the Act. Paragraph 21(2)(a) of the Pension Act is relevant and provides
as follows:
|
(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;
|
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;
|
[22]
Section
31 provides that decisions of the Board are final and binding.
[23]
The
purpose of the Act is to establish the Board as an independent body to review
decisions by the Minister or his delegates regarding pension applications made
pursuant to the Pension Act. The right to appeal to the Board is
conferred by section 25 of the Act.
[24]
The
Board must determine if an applicant meets the criteria for receiving a pension
or other benefits under the relevant legislation.
[25]
The
Applicant’s application for pension benefits originated pursuant to subsection
21(2) of the Pension Act. Section 2 of the Pension Act sets out
the guiding principle for the interpretation and application of that statute,
as follows:
|
2.
The provisions of this Act
shall
be liberally construed and
interpreted
to the end that the
recognized
obligation of the
people
and Government of
Canada to provide
compensation
to those members
of
the forces who have been
disabled
or have died as a result
of
military service, and to their
dependants,
may be fulfilled.
|
2. Les
dispositions de la
présente
loi s’interprètent d’une
façon
libérale afin de donner
effet à
l’obligation reconnue du
peuple
canadien et du
gouvernement
du Canada
d’indemniser
les membres des
forces
qui sont devenus
invalides
ou sont décédés par
suite
de leur service militaire,
ainsi
que les personnes à leur
charge.
|
[26]
A
similar provision is found in section 3 of the Act, as follows:
|
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.
|
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.
|
[27]
According
to the decision in MacKay v. Canada (Attorney General) (1997), 129
F.T.R. 286, section 3 and section 39 of the Act together guide the Board in its
assessment of the evidence presented to it. Section 39 provides as follows:
|
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.
|
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 celuici;
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.
|
[28]
Sections
3 and 39 of the Act have been interpreted to mean that an applicant must submit
sufficient credible evidence to show a causal link between his or her injury or
disease and his or her time of military service. In this regard, I refer to the
decisions in Hall v. Canada (Attorney General) (1998), 152
F.T.R. 58, aff’d. (1999), 250 N.R. 93 (Fed. C.A.) and Tonner
v. Canada (Minister of
Veterans Affairs) (1995), 94 F.T.R. 146, aff’d. [1996] F.C.J. No.
825 (Fed. C.A.).
[29]
The
Board’s conclusion is to be reviewed against the standard of reasonableness.
Section 39 of the Act directs the Board to draw all favourable inferences from
uncontradicted evidence submitted by a person seeking a pension.
[30]
The
Applicant argues that the Board failed to observe a principle of natural
justice or procedural fairness concerning the Review Panel’s oral finding that
there was a factual link between the Applicant’s service and exposure to noxious
gas. The Applicant submits that the Review Panel accepted his evidence
concerning the link between his service and exposure to carbon monoxide and
that the Entitlement Review Panel breached his rights to procedural fairness by
ignoring that earlier finding and re-assessing the issue.
[31]
The
record before the Board does not contain a transcript of the proceedings before
the Review Panel. In the absence of a transcript, I am unable to conclude that
the Review Panel made the finding of fact upon which the Applicant now relies.
In its reasons, the Review Panel does not discuss the link between service and
carbon monoxide exposure in great detail, concluding that:
The Board finds, based on the above
summary of the evidence, that there is no medical evidence to link the seizures
or the basla [sic] ganglion calcification to carbon monoxide exposure.
[32]
Even
assuming that such an oral finding was made, the Applicant has not cited any
authority to support his argument that a breach of procedural fairness occurred.
Each stage of the process concerning the Applicant’s pension application
involved a decision de novo; see Nolan v. Canada (Attorney
General)
(2005), 279 F.T.R. 311 (F.C.). This suggests that each decision-maker has a
duty to make independent findings. From this perspective, a re-assessment of
the whole case, including an assessment of issues not challenged by the
Applicant, does not give rise to a breach of procedural fairness. In any event,
the Applicant carries the burden to prove each element of this case, at each
stage. If a subsequent decision-maker makes a finding that is less favourable
than the previous decision-maker, this is not necessarily a breach of
procedural fairness.
[33]
I
am satisfied that no breach of procedural fairness occurred, as alleged by the
Applicant.
[34]
Did
the Board err by restricting its assessment of the Applicant’s exposure
to noxious gases solely to his service as a Vehicle Technician at Building
#202, CFS St.
John’s?
[35]
The
Applicant argues that the Board restricted its assessment of his
exposure to noxious gases solely to one location, that is CFS St. John’s. He
argues that the Board ignored his prior work at CFB Gagetown and
in other buildings at CFS St. John’s. He submits that in doing so, the Board made
conclusions contrary to section 39 of the the Act.
[36]
In
response, the Respondent submits that the Applicant failed to present evidence
of acute carbon monoxide exposure in the course of his military service and
that only acute exposure to carbon monoxide could cause his alleged symptoms.
The Board focused on the only independent medical evidence provided, that is
the Health Canada study. While it was open to the Applicant to bring evidence
of acute carbon monoxide exposure occurring in other buildings, the Respondent
submits that it was reasonable for the Board to make findings based on the only
scientific evidence available.
[37]
In
my opinion, the Respondent’s arguments with respect to this issue are
premature. The Applicant has never argued that his condition is based on acute
exposure. At this stage of the analysis, concerning the link between service
and exposure, it would have been unreasonable for the Board to focus only on
acute exposure since this would have required a pre-determination that only
acute exposure could lead to the condition of basal ganglia calcification.
[38]
In
their decision, the majority of the Board said the following:
The Appellant is claiming to have been
exposed to carbon monoxide while in the course of working on vehicles in the
garage (Building #202) in St. John’s, that said exposure has led to his basal
ganglion calcification, and that he suffers a disability therefrom.
[39]
In
discussing “likely exposure”, the majority began a discussion of the Health
Canada Workplace Investigation. The Board does not mention the Applicant’s
prior service at CFB Gagetown. In my opinion, the Applicant presented evidence
that could have supported a reasonable inference that he was exposed to carbon
monoxide, at unspecified levels, during the four years that he spent at CFB
Gagetown.
[40]
Even
if the Board preferred scientific data in the case of Building #202, it was
unreasonable for the Panel to confine its consideration only to work that the
Applicant carried out in that facility.
[41]
In
my opinion, the majority unreasonably assumed that the Applicant was only
exposed to noxious gases while working in Building #202.
[42]
The
third issue is related to the next issue, that is whether the Board made an
erroneous finding of fact by failing to give sufficient weight to other
evidence regarding the Applicant’s exposure to carbon monoxide.
[43]
Although
the decision-maker is not required to address every piece of evidence, evidence
running contrary to that decision-maker’s conclusion must be considered. In Cepeda-Gutierrez
et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157
F.T.R. 35 (F.C.), Justice Evans held as follows at para. 14 :
However, the more important the evidence
that is not mentioned specifically and analyzed in the agency's reasons, the
more willing a court may be to infer from the silence that the agency made an
erroneous finding of fact "without regard to the evidence": Bains
v. Minister of Employment and Immigration, (1993), 63 F.T.R. 312 (T.D.).
[44]
The
Board majority indicated that the Health Canada study reflected the likely
exposure to which the Applicant was subject, due to the lack of credible
evidence to the contrary. In my opinion, the Board erred by failing to mention
two pieces of evidence that directly contradicted the Health Canada Workplace Investigation,
that is the letter from Lieutenant Taylor and the 1993 Noise and Emissions
Survey. It appears that the majority of the Board ignored this evidence.
[45]
Further,
having failed to make clear findings as to the reliability of this evidence,
the majority of the Board erred by failing to draw reasonable inferences in
favour of the Applicant, pursuant to sections 3 and 39 of the Act. The evidence
that was overlooked by the majority of the Board would reasonably support the
inference that, notwithstanding Health Canada’s
conclusions about exposure to carbon monoxide over the course of one day,
levels of noxious gases were sometimes higher and occasionally problematic.
[46]
In
my opinion, the Board erred in failing to address the evidence that was
contrary to Health Canada’s conclusions.
[47]
Finally,
the Applicant argues that the majority of the Board erred by failing to give
appropriate weight to the uncontradicted medical opinion of Dr. Stefanelli.
Given my conclusions on issues two and three, it is not necessary to address
this argument. Either solely or cumulatively, the errors of the Board discussed
above are dispositive of this application for judicial review.
[48]
In
the result, I am satisfied that the majority of the Board erred in its
assessment of the evidence presented by the Applicant, specifically by
restricting its assessment of his exposure to noxious gases only to his service
as a Vehicle Technician at Building #202, CFS St. John’s and by ignoring other
evidence regarding the Applicant’s exposure to carbon monoxide. The majority’s
failure to properly deal with the evidence with respect to these two issues
could have affected its assessment of the medical evidence and ultimately, the
determination of the appeal.
[49]
In
the result, the application for judicial review is allowed and the matter is
remitted to a differently constituted Board for re-determination. The Applicant
shall have his taxed costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for
judicial review is allowed, the decision of March 12, 2010 is set aside, the
matter is remitted to a differently constituted panel of the Board, the
Applicant to have his taxed costs.
“E.
Heneghan”
Email this Content