Date: 20071031
Docket: T-2177-06
Citation: 2007 FC 1127
Ottawa, Ontario, October 31,
2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
ARTHUR
MOORE
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Veterans
Affairs Canada (the Department) provides an array of benefits to veterans. The
Applicant challenges the legality of a decision made on November 8, 2006
(the impugned decision) by R. Herbert, Director General of the National
Operations Division of the Department (the Official) which upheld the previous
refusal of two other officials of the Department to reimburse travel and
related expenses in relation to medical treatment received in Montreal.
[2]
The
impugned decision has been rendered under the authority of the Veterans
Health Care Regulations, SOR/90-594, as amended (the Regulations) which
provide for the reimbursement of certain travel and related expenses incurred
by an eligible veteran (designated as a “client” in the Regulations).
[3]
Subparagraph
7(1)(a)(i), section 35.1 and section 36 of the Regulations, which are
particularly relevant in the case at bar, read as follows:
|
7. (1) Subject
to subsections (2), (2.1), (2.2) and (3), the costs of travel referred to
in paragraphs 6(a) and (b) are payable in respect of a client who
receives treatment benefits in Canada in respect of
(a) transportation
by the most convenient and economical means of transportation appropriate to
the condition of the client
(i) where the
client is resident in Canada, between the client’s residence and
the appropriate treatment centre nearest to that residence, and
[…]
35.1 The
Minister shall notify a client or the client’s representative of any decision
relating to the award, increase, decrease, suspension or cancellation of any
benefit under these Regulations concerning or affecting the client.
(…)
36. (1) A
person who is dissatisfied with any decision made under these Regulations
may, within 60 days after receiving notice of the decision or, where
circumstances beyond the control of the person necessitate a longer period,
within that longer period, apply in writing to the Minister for a review of
that decision by an official of the Department of Veterans Affairs other than
the official who made the original decision.
(2) Where a
person is dissatisfied with the results of a review referred to in subsection
(1), the person may, within a period of 60 days after receiving notice of the
decision on the review, apply in writing to the Minister for a final decision
to be rendered by an official of the Department of Veterans Affairs other
than the official who made the original decision or who reviewed it.
(My
underlining)
|
7.
(1) Sous réserve des paragraphes (2), (2.1), (2.2) et (3), les frais de
déplacement visés aux alinéas 6a) et b) sont payables à l’égard du client
qui reçoit des avantages médicaux au Canada relativement :
a) au
transport par le moyen le plus pratique et économique eu égard à son état
:
(i)
dans le cas où le client réside au Canada, entre son lieu de résidence et
le centre de traitement adéquat le plus proche,
[…]
35.1
Le ministre avise le client ou son représentant de toute décision concernant
l’attribution, l’augmentation, la diminution, la suspension ou l’annulation
d’un avantage mentionné au présent règlement qui vise le client.
[…]
36.
(1) La personne qui conteste une décision prise aux termes du présent
règlement peut, dans les 60 jours suivant la réception de l’avis de la
décision ou, lorsque des circonstances indépendantes de sa volonté nécessitent
un délai plus long, dans ce délai, présenter une demande par écrit au
ministre en vue de la révision de la décision par un fonctionnaire du
ministère des Anciens combattants autre que celui qui a rendu la décision
originale.
(2)
La personne qui conteste les résultats de la révision visée au paragraphe (1)
peut, dans les 60 jours suivant la réception de l’avis de la décision
découlant de la révision, présenter une demande par écrit au ministre en vue
de la prise d’une décision définitive par un fonctionnaire du ministère des
Anciens combattants autre que celui qui a rendu la décision originale ou qui
l’a révisée.
|
[4]
The
Applicant has been claiming travel costs, escorts, parking and lunches in
relation to medical appointments at St-Mary’s Hospital in Montreal from October 17,
1997 to March 22, 2006. An initial decision denying the reimbursement of
same for future claims was rendered by an official on March 23, 2006,
after it was noticed that the total paid claims for travel expenses to the
Applicant between April 2003 and February 2006 were in the amount of $10,768.10.
In the opinion of this official, the reimbursement of the claimed expenses could
no longer be justified under the Regulations because the medical services
received by the Applicant in Montreal were also available at the Foundation du
Centre hospitalier regional de Lanaudière (the CHRDL), a hospital that is
closer to the Applicant’s residence. This initial decision was later reviewed
by two other officials of the Department. After careful consideration of the
relevant facts and applicable regulatory provisions, these officials upheld the
initial decision. The Applicant asks for the review of the final decision made
in this regard on November 8, 2006.
[5]
The
Department recognizes that the most convenient and economical means of
transportation appropriate to the condition of the Applicant, who is a
76 year old veteran residing in Rawdon, is transportation by car with the
assistance of an escort. At issue in this case is the Department’s final decision
to limit the car allowance for medical appointments to the equivalent of
80 kilometres per visit, which corresponds to the travel distance (return
trip included) between the Applicant’s residence and the closest hospital, in
this case the CHRDL.
[6]
The Applicant submits
that not all of the medical services required for his health condition are
available at the CHRDL or that none of those medical services can be guaranteed
in English as required by section 16 of the Canadian Charter of Rights
and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11, or sections 21, 24 and 25 of
the Official Languages Act, R.S.C. 1985, c. 31 (4th
Suppl.) (the OLA). Accordingly,
it is stated that the impugned decision is contrary to the constitutional or
quasi-constitutional language rights of the Applicant, or that it is otherwise unreasonable
in the circumstances.
[7]
The Respondent states
that before rendering the impugned decision, the Official verified that all the
necessary medical services required by the Applicant are not only available at
the CHRDL, but are also available in French or English to the choice of the
patient. The Respondent states that the burden of proof is on the Applicant to
provide evidence to support his position that the impugned decision was
unreasonable or contrary to the law. Indeed, the Applicant’s own affidavit
undermines his application for judicial review, as it demonstrates the
Applicant was adequately treated at the CHRDL on June 12, 2006, during which
time he was seen by an English-speaking doctor.
[8]
Having
considered all four factors directed by the pragmatic and functional approach,
I agree with counsel that the standard of reasonableness simpliciter
applies to the review of the impugned decision which must be based on the
evidence, must not be contrary to the law and must be able to stand up a
somewhat probing examination.
[9]
Contrary
to what the Applicant alleges in this proceeding, there is ample evidence on
record to sustain the Official’s finding that appropriate medical services in French
or English to the choice of the patient are available at the CHRDL. Moreover,
there is no evidence on record allowing this Court to infer that medical
services provided at St-Mary’s Hospital or at the CHRDL are being made available
to veterans by these provincial institutions on behalf of the Government of
Canada, as suggested by the Applicant. Accordingly, the allegations made by the
Applicant that his language rights under the Charter or the OLA are engaged or are
violated by the Department are not supported by the evidence on record and are
unfounded in law.
[10] At the
hearing of this application, counsel for the Applicant further submitted to the
Court that the impugned decision is otherwise unreasonable on the grounds that
the Official has not given proper weight to the fact that the Applicant, an
English-speaking veteran of the Korean War, has been treated at St-Mary’s
Hospital for a great number of years by health specialists already familiar with
his health condition.
[11] This new
argument must also fail. It is apparent from a review of the documentation on
file that the Official was well aware of the medical history of the Applicant,
including the fact that he has been seeing his General Practioner,
Dr. Miriam Boillat, at St-Mary’s Hospital for over 30 years, and that
he has been treated there by various health specialists, i.e. a
cardiologist; a vascular surgeon; a urologist; an ophthalmologist; and an ear,
nose and throat specialist. That being said, before rendering his decision, the
Official verified that all the necessary medical services required by the
Applicant were available in French or in English at the CHRDL. It appears that
the Applicant has simply failed to convince the Official that the CHRDL is
unable to provide medical treatment in English that is appropriate to his particular
health condition. Moreover, I note that there is no convincing evidence on
record that the CHRDL provides a lesser quality of medical services which would
justify the reimbursement of the extra mileage in the event the Applicant
chooses to continue to be treated at St-Mary’s Hospital.
[12] Overall, I
find the impugned decision to be reasonable and to resist a probing
examination. In administering the benefits’ programs under the Regulations, the
Department leaves the choice of the health professional or service provider to
the veteran. However, travel fees will be reimbursed only insofar as they
relate to transportation by the most convenient and economical means appropriate
to the condition of the client and only for travel equivalent to the distance between
the client’s residence and the nearest appropriate treatment centre where the
treatment is available.
[13] I am also
satisfied that the Official has not fettered the exercise of the Minister’s residual
discretion to authorize transportation costs incurred by a client to receive
medical treatment at a centre which is not the nearest appropriate centre in
special or exceptional cases. In this case, the Official determined that there
was insufficient medical documentation provided at the time by the Applicant
which would warrant approval of the Applicant’s request for reimbursement of
travel costs resulting from his medical appointments in Montreal on an
exceptional basis. It is to be noted that on January 10, 2007, that is
after the impugned decision was made, the Department, upon receiving a letter
from Dr. Louise Gagnon which exposed exceptional circumstances which
warrant the Applicant to go to Montreal to receive his psychotherapy treatments
for post traumatic stress disorder with Dr. Lise Bourgeois, approved the
Applicant’s travel costs to Montreal in order for the Applicant to continue
these treatments. This new medical evidence, which was not before the Official who
made the impugned decision, clearly shows in my opinion that the Department is
willing in the future to reconsider the impugned decision in light of new
medical evidence exposing why it is more appropriate for the Applicant to
receive a particular medical treatment in Montreal and not in Joliette. Indeed, the
Applicant is not barred in the future from asserting that the transfer of his
medical file or that a change of physicians from St-Mary’s Hospital to the
CHRDL is not feasible in practice or will cause him undue hardship in the case
of a particular medical treatment he is presently receiving at St-Mary’s Hospital.
[14] For these
reasons, the present application must fail. Considering the nature of this
case, the particular situation of the Applicant and all other relevant factors,
an award of costs in favour the Respondent is not warranted in the
circumstances.
ORDER
THIS COURT
ORDERS that the application for judicial review be dismissed. Each
party bear their own costs.
“Luc
Martineau”
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