Date: 20110415
Docket: T-861-10
Citation: 2011 FC 449
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, April 15, 2011
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
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STÉPHANE DESCHÊNES
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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
[1]
This
is an application for judicial review of the decision dated January 5, 2010, by
the Veterans Review and Appeal Board (Board) rejecting the application for reconsideration
of the appeal panel’s decision to refuse the applicant’s entitlement to a pension
in accordance with subsection 21(2) of the Pension Act, R.S.C.,
1985, c. P-6, on the basis of a hemorrhoids condition.
[2]
For the
following reasons, the application will be allowed.
Facts
[3]
Mr.
Deschênes (applicant) has worked in the Regular Force since 1988.
[4]
On
November 18, 2005, he submitted his application with respect to his hemorrhoids.
He contends that they were caused by the nature of his service as an infantryman
and sniper. To carry out his duties, he had to assume certain positions that
consequently increased intra-abdominal pressure and thus contributed to the
development of hemorrhoids.
[5]
His
application was rejected by a delegate of the Minister, in review, by the Board’s
appeal panel, and in reconsideration.
[6]
The
issue below was whether the applicant’s military duties had played a
determinative role in the development of his hemorrhoids.
Impugned decision
[7]
The
Board reviewed the appeal panel’s decision dated May 27, 2009, and found that
no error in law and in fact had been demonstrated and that, consequently, the application
for reconsideration was unjustified.
[8]
The
Board was of the view that the appeal panel had not erred by obtaining additional
information after the hearing. In fact, the appeal panel had specifically used
certain passages from medical texts, namely, the documents Merck Manuel Home
Edition (Tribunal
Record, volume 1, page 209) and Australian Statements of Principles
(Tribunal Record, volume 1, page 212) on the web site to explain the
reasons it believed that the report by the applicant’s medical specialist, Dr. Pierre Hallé,
did not constitute credible evidence for the granting of an award.
[9]
Despite
the fact that the applicant raised several grounds for judicial review, that
is, an error in the interpretation of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18,
and an error in that the appeal panel had exceeded its authority, the Court
believes that one alone is sufficient for disposing of this case. This is a
breach of procedural fairness or a breach of the principles of natural justice.
[10]
In
similar cases, the standard of review has been correctness (Marshall
Johnston v. Canada (Attorney General), 2010 FC 348).
[11]
In
the case at bar, the applicant filed a medical report from his gastroenterologist,
Dr. Hallé, which stated the following: [translation]
“The review of the detailed exercises that he reported to us since 1993
confirms numerous exercises in the squatting position for several hours,
increasing intra-abdominal pressure and contributing to prolapsed hemorrhoids. The
presence of internal hemorrhoids was confirmed by a short colonoscopy done at
the CHUL in January 2006 by Doctor Valéry Lemelin. . . . ”.
[12]
The
specialist’s report concludes with the following: [translation] “The training requirements for Stéphane
Deschênes in carrying out his military duties played an integral role in the
development of internal hemorrhoids and related symptoms.”
[13]
The
respondent argues that the appeal panel was completely justified in consulting
external sources, meaning the Merck Manuel Home Edition and the Australian Statements of
Principles, in order to contradict and set aside the medical report by the
applicant’s specialist. This justification is based on two arguments: the
appeal panel’s jurisdiction to consult sources other than those in the record,
and the fact that other contemporaneous evidence in the record suggests that hemorrhoids may
be caused by other factors, including constipation.
[14]
The
Court cannot support this reasoning. The respondent is entirely correct when he
argues that the appeal panel may consult sources other than those in the record.
However, with respect, it cannot use this evidence to contradict a medical
report by a specialist as it did in this case, without giving the applicant the
opportunity to make additional submissions or, if he so desired, to supplement
the medical evidence he had already submitted.
[15]
The
evidence here clearly demonstrates that the above-mentioned external sources
consulted by the appeal panel had not been provided to the applicant before the
decisions of May 27, 2009, and January 5, 2010. Reference was made to them previously,
but to then use them to state that Dr. Hallé’s report is not credible seems
unreasonable to me.
[16]
According
to the Court, the appeal panel should have at least clearly stated and discussed
with the applicant the external sources on which it wanted to rely before
setting aside the report by the gastroenterologist, Dr. Hallé, who found that
the applicant’s hemorrhoids were [translation]
“very likely related to the exercises he had to perform in all of his periods
of training, especially as a sniper”.
[17]
Moreover, Dr. Hallé had considered
the applicant’s history in his expert’s report (Stella Aucoin’s affidavit,
volume 1, page 97). To issue his opinion, the specialist had relied not only on
what the applicant said, but also on his file and the clinical examination done
by Dr. Lemelin.
[18]
The
Court is not claiming that Dr. Hallé’s report cannot be contradicted, but that,
to do so, more was required than merely referring to an external source and finding
that the most obvious cause for the applicant’s condition was not the one
determined by Dr.
Hallé. The respondent could have, if so desired, obtained expertise to the
contrary pursuant to section 38 of the Veterans Review and Appeal
Board Act.
[19]
The
intervention of the Court is warranted.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that
the
application for judicial review be allowed. The decision dated January 5, 2010,
is set aside. The matter is referred back to a differently constituted panel of
the Veterans Review and Appeal Board for redetermination. The respondent will
pay costs in the form of a lump sum of $1,500 to the applicant.
“Michel Beaudry”
Certified
true translation
Janine
Anderson, Translator
ANNEX
Veterans
Review and Appeal Board Act
(S.C. 1995, c. 18)
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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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14.
The Board and each member have, with respect to the carrying out of the
Board’s duties and functions under this Act, all the powers of a commissioner
appointed under Part I of the Inquiries Act.
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14. Le
Tribunal et chacun de ses membres ont, pour l’exercice des fonctions que leur
confie la présente loi, les pouvoirs d’un commissaire nommé au titre de la
partie I de la Loi sur les enquêtes.
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38.
(1) The Board may obtain independent medical advice for the purposes of any
proceeding under this Act and may require an applicant or appellant to
undergo any medical examination that the Board may direct.
Notification
of intention
(2)
Before accepting as evidence any medical advice or report on an examination
obtained pursuant to subsection (1), the Board shall notify the applicant or
appellant of its intention to do so and give them an opportunity to present
argument on the issue.
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38.
(1) Pour toute demande de révision ou tout appel interjeté devant lui, le
Tribunal peut requérir l’avis d’un expert médical indépendant et soumettre le
demandeur ou l’appelant à des examens médicaux spécifiques.
Avis
d’intention
(2)
Avant de recevoir en preuve l’avis ou les rapports d’examens obtenus en vertu
du paragraphe (1), il informe le demandeur ou l’appelant, selon le cas, de
son intention et lui accorde la possibilité de faire valoir ses arguments.
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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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Inquiries
Act (R.S.C.,
1985, c. I-11)
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4.
The commissioners have the power of summoning before them any witnesses, and
of requiring them to
(a)
give evidence, orally or in writing, and on oath or, if they are persons
entitled to affirm in civil matters on solemn affirmation; and
(b)
produce such documents and things as the commissioners deem requisite to the
full investigation of the matters into which they are appointed to examine.
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4. Les
commissaires ont le pouvoir d’assigner devant eux des témoins et de leur
enjoindre de :
a)
déposer oralement ou par écrit sous la foi du serment, ou d’une affirmation
solennelle si ceux-ci en ont le droit en matière civile;
b)
produire les documents et autres pièces qu’ils jugent nécessaires en vue de
procéder d’une manière approfondie à l’enquête dont ils sont chargés.
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