Date: 20070912
Docket: T-137-07
Citation: 2007 FC 905
Ottawa, Ontario,
September 12, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
MOSE MURPHY by his litigation
guardian IRENE MURPHY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Mr. Mose
Murphy (by his litigation guardian Ms. Irene Murphy), seeks judicial review of
a decision of the Veterans Review and Appeal Board Canada (VRAB) dated November
23, 2006. In its decision, the VRAB denied Mr. Murphy’s claim for a pension
based on Post Traumatic Stress Disorder (PTSD) that he alleges arose from a
sexual assault suffered in 1952 while he was in military service.
VRAB Decision
[2] The VRAB was sitting in
appeal of a decision of the Entitlement Review Panel decision of March 12, 2006
(Review Panel decision), in which decision the Review Panel rejected Mr.
Murphy’s claim. At the review panel stage, Mr. Murphy’s written representations
as well as written and oral testimony from Mrs. Murphy was presented. The VRAB
review was a written proceeding. In addition to the evidence before the Review
Panel, further evidence and submissions were made.
[3] The VRAB’s decision is
very short. It begins with a list of evidence and a general statement that “the
Board has reviewed any previous decisions relevant to this case and has
examined all evidence”. The Board lists as “Facts”, only that Mr. Murphy served
in the Regular Force from 1952 to 1958, that the military record “reveals an
entry dated 24 April 1957 which provides a diagnosis of psychasthenia”, and
that a diagnosis of PTSD is found in a medical report dated May 16, 2005. The
reasons for the denial are set out in three paragraphs of the decision as
follows:
In
this case, there is a diagnosis of Post Traumatic Stress Disorder; however,
there is insufficient evidence to support a finding that this disability is
directly connected to the Appellant’s service.
The
Board has been provided with a medical opinion that suggests that an incident
of sexual assault during military service was the exciting factor in the
development of the claimed condition. However, there is no objective evidence
in the service documentation to support the medical opinion. The fact that the
Appellant has a psychiatric condition is not evidence that establishes that the
claimed precipitating event occurred and caused the condition. The Board is of
the view that the opinions have a weak factual foundation.
.
. .
The
Board has considered all of the facts, circumstances and evidence in this case
and, as previously noted, there is an absence of any record of the incident and
no record of complaint or treatment related to the incident. The diagnosis is
in the very late post-discharge period (53 years post-discharge). Therefore, the
Board cannot reasonable infer that the Appellant’s Post Traumatic Stress
Disorder arose out of or was directly connected with military service and,
therefore, the claim does not satisfy the requirements of subsection 21(2) of
the Pension Act . . .
Issues and Analysis
[4] The decision of the VRAB
that there was insufficient evidence that the PTSD arose out of or was directly
connected to Mr. Murphy’s military service is reviewable on a standard of
patent unreasonableness (see, for example, Comeau v. Canada
(Attorney General), 2007 FCA 68 at para. 9).
While acknowledging this highest deferential standard, Mr. Murphy submits that the VRAB
erred by:
(a) failing to provide
adequate reasons for its decision; or
(b) failing to have regard
to the evidence before it.
[5] Mr. Murphy raises other
issues. However, since I agree with Mr. Murphy on both of these first two
issues and will overturn the decision on that basis, it will be unnecessary to
review the other matters argued.
1. Adequacy of Reasons
[6] Mr.
Murphy submits that the reasons, in this case, do not meet the minimum standard
required by natural justice (Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R.
817; Re Pitts and Director of Family Benefits Branch of the Ministry of
Community & Social Services (1985), 51 O.R. (2d) 302 (Div. Ct.)). This
question of natural justice is reviewable on a correctness standard.
[7] On
the other hand, the Respondent asserts that the reasons acknowledge and
summarize the relevant evidence, set out the VRAB’s reasoning and explain the
VRAB’s conclusions. The Respondent argues that the Board, in affirming the
Review Panel’s decision, made additional comments regarding the evidence that
was not before the Review Panel and explained why the Board was of the view
that the evidence was insufficient to establish the requirements for obtaining
a pension under the Pension Act. The Respondent submits this is
sufficient to satisfy the requirements of natural justice as required by Baker,
above.
[8] There
are a number of problems with the Respondent’s arguments on this issue.
[9] The
first point is that the hearing before the VRAB is a de novo hearing.
While it was open to the VRAB to refer to the earlier decision of the Review
Panel, the VRAB was obligated to conduct its own assessment of the evidence.
[10] Secondly,
and more importantly, the reasons do not, in my view, provide Mr. Murphy with
an explanation of why his claim was rejected. There are a number of aspects of
the decision that leave the reader struggling to understand why the claim was
rejected:
- We can see that the
VRAB relied on a “medical opinion”, but which one? Was it the latest
opinion from Dr. Kiraly, dated July 17, 2006, or one of the earlier
opinions from Dr. Kiraly or Dr. Pankratz?
- Does the statement
that there is no “objective evidence in the service documentation to
support the medical opinion” take into consideration the 1957 diagnosis of
Psychasthenia?
- When the VRAB
states that Mr. Murphy’s “psychiatric condition is not evidence that
establishes that the claimed precipitating event occurred”, is the VRAB
rejecting the uncontradicted evidence of Mr. Murphy and his wife that the
assault took place?
- What is meant by a
“weak factual foundation”?
[11] In my view, it is
impossible to ascertain the reasoning of the VRAB in reaching its conclusion
that Mr. Murphy’s PTSD arose out of or was connected to his military service.
The reasons are inadequate and the decision should not stand.
2. Failure to Consider the Evidence
[12] Intertwined with the
adequacy of the reasons is the issue of whether I can be satisfied that the
VRAB had regard to all of the evidence. Even on a standard of patent
unreasonableness, a decision may be overturned where a tribunal made its
finding of fact without regard for the evidence (Federal Courts Act, R.S.C.
1985, c. F-7, s. 18.1(4)(d)).
[13] A tribunal is presumed
to have considered all of the material before it and is not obliged to refer to
each and every document. As stated by Justice Evans in Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 at para. 16 (QL):
A
statement by the agency in its reasons for decision that, in making its
findings, it considered all the evidence before it, will often suffice to assure
the parties, and a reviewing court, that the agency directed itself to the
totality of the evidence when making its findings of fact.
[14] However, this
presumption may be rebutted and a tribunal’s failure to deal with evidence very
specific to the claim may lead a reviewing court to a conclusion that the
tribunal made an erroneous finding of fact “without regard to the evidence”.
[T]he
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. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact. (Cepeda-Gutierrez, at para. 17)
[15] In the case before me,
the VRAB failed to provide any analysis of much of the evidence before it. Two
of the more important omissions of the reasons are the following:
- Dr. Kiraly’s medical opinion, which
included the opinion that “The diagnosis of Psychasthenia in 1957 and
its treatment definitely provide corroboration for the event having taken
place”;
- The uncontradicted
evidence from Mrs. Murphy and Mr. Murphy as to the events of 1952 and Mr.
Murphy’s subsequent problems in the military and in his personal
relationships.
[16] Both
of these matters were addressed in the submissions made by Mr. Murphy’s
advocate to the VRAB. Indeed, the submissions of the advocate were detailed and
clear in setting out the basis for the claim and the supporting evidence.
Almost none of this was referred to by the VRAB. In the circumstances, I am not
persuaded that the VRAB had regard to the totality of the evidence when it
reached its decision.
[17] It
was certainly open to the VRAB to reject the claim. However, in doing so, it
was obliged to address the submissions made to it and to explain why those
submissions and the underlying evidence were not sufficient to satisfy the
VRAB.
Conclusion
[18] For
these reasons, I conclude that the Court should intervene and allow the
application for judicial review.
[19] Mr.
Murphy requests that I remit the matter to the VRAB with directions that the
VRAB make a determination that Mr. Murphy’s PTSD arose out of his military
service. In my view, such directions would be inappropriate. The VRAB is an
expert tribunal with the skills and experience to assess Mr. Murphy’s claim and
should do so without direction from this Court. However, I will direct that the
reconsideration, based on the same evidentiary record, be carried out by a
different panel of the VRAB. I assume that the newly-constituted panel will
take note of the decision of this Court and provide adequate reasons that
demonstrate that the panel has had regard to the evidence before it.
[20] In
what I expect was an oversight, Mr. Murphy did not request costs in his Notice
of Motion or submissions. However, in my discretion, I would award costs at the
usual level of column III of Tariff B of the Federal Courts Rules. In
the event that the Respondent wishes to make submissions in opposition to this
part of my Order, he may do so in writing within 10 days of the date of this
Order. If such submissions are made, Mr. Murphy may respond in a further 10
days.
ORDER
THIS COURT
ORDERS
that:
1. The application for
judicial review is allowed and the decision of the VRAB dated
November 23, 2006
is set aside.
2. The matter is remitted
for redetermination, based on the existing evidentiary record and in
accordance with
these reasons, by a differently constituted panel of the VRAB.
3. The Respondent shall pay
costs to Mr. Murphy, in accordance with column III of Tariff B
of the Federal
Courts Rules.
4. In the event
that the Respondent wishes to object to the award of costs to Mr. Murphy, he
may do so in
writing to this Court within 10 days of this Order. If the Respondent objects,
Mr. Murphy will have 10 days thereafter to respond.
“Judith
A. Snider”
___________________________
Judge
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