Date: 20080904
Docket: T-404-08
Citation: 2008 FC 991
BETWEEN:
SYLVAIN RIOUX
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON
J.
[1] At
the conclusion of the hearing of this application for judicial review, I
dismissed the application from the bench. These are my reasons.
[2] Master
Seaman Rioux applied, under subsection 32(1) of the Veterans Review and
Appeal Board Act, S.C. 1995, c. 18 (the Act), for reconsideration of the
Veterans Review and Appeal Board (VRAB) Appeal Panel’s decision denying his
claim for a disability pension. In support, he submitted a follow-up medical
opinion, an internet article and letters from former colleagues. The panel
held that its earlier decision contained no error in law or fact and that the
tendered documentation did not constitute new and relevant evidence.
Consequently, it dismissed the application.
[3] MS
Rioux contends that the panel erred in refusing to reconsider its decision and
further asserts that its conclusion was unreasonable.
[4] Having
considered the documentation in the records and the submissions of counsel, I
am not persuaded that the panel’s decision can be characterized as
unreasonable.
Background
[5] MS
Rioux enlisted in the Canadian Navy in 1981. In 1999 and 2001 he underwent
double hip replacements to treat bi-lateral avascular necrosis. He was
subsequently unable to return to his trade. He applied for a disability
pension with Veterans Affairs Canada in March of 2001. His application was
refused at the departmental level. He unsuccessfully appealed the decision to
the VRAB Review Panel and further appealed to the VRAB Appeal Panel. On May
31, 2002, the VRAB Appeal Panel affirmed the decision of the Review Panel and
denied the application. MS Rioux was medically discharged from the navy in
November of 2002.
[6] The
application for disability pension was denied at all levels on the basis that
there was insufficient evidence to conclude that the claimed condition arose
out of or was directly connected with regular force service. Put another way,
the causal link between the disability and MS Rioux’s service was not
established.
[7] Further
explanation of context is required. MS Rioux began his career as a radar
operator. Over the years, he received further radar training. Between June
and December of 1994, he underwent specialized training to become a naval
electronic technician. He later served as a naval electronic technician aboard
the Halifax class
multi-role patrol frigate HMCS Ville de Québec. This service included a period
of deployment to the Adriatic Sea from July until December of 1995. During
this assignment, MS Rioux was exposed to high-powered non-ionizing x-ray
radiation from separate tracking illuminating radar (STIR), depleted uranium
from spent weapon shells from 22 mm close-in weapons system (CIWS) as well
as to benzene and other exhaust fumes from the diesel and gas engine turbine
stacks aboard ships. MS Rioux states that although safety procedures were in
place, these precautions have since been revised and enhanced.
[8] After
experiencing breathing problems and flu-like symptoms, MS Rioux was diagnosed
with lymphoblastic (non-Hodgkins) lymphoma in June of 1996. He underwent
prompt treatment including chemotherapy, prophylactic brain radiation and an
autologous bone marrow transplant. He has been in remission since July 7,
1996. MS Rioux believes that his lymphoma was caused as a result of his
exposure to the previously-noted toxic substances and materials.
[9] The
medical evidence tendered in support of his application consists of
correspondence from MS Rioux’s oncologist. It states that “his high dose
multi-agent chemotherapy is likely the cause of his bilateral hip avascular
necrosis”. There is scant attention (at any level of decision-making) given to
the connection between the bilateral hip avascular necrosis (the disability
which precipitated the medical discharge) and the treatment for the
lymphoblastic lymphoma. On my reading of the various decisions, it is fair to
conclude that no particular issue was taken regarding the relationship between
the two.
[10] Rather,
the concern arose in relation to the causal link between MS Rioux’s service and
his lymphoblastic lymphoma. Beginning with the departmental level decision,
and at each level of decision-making thereafter, causal link was identified as
the critical and decisive issue. At each level, it was determined that there
was insufficient evidence to conclude that the claimed condition was a direct
result of MS Rioux’s exposure to radiation during his military service.
[11] The
medical evidence, dated April 6, 2001, regarding the decisive issue stated:
MS Rioux’s work as a naval electronic technical
technician with his exposure to radar may possibly have been a risk
factor for developing his non-Hodgkin’s lymphoma. (my emphasis)
[12] On
his application for reconsideration, MS Rioux submitted letters from four
colleagues. All confirmed his exposure to the toxic substances. He submitted
an internet article that delineated the various risk factors associated with
non-Hodgkins lymphoma, including exposure to radiation and chemicals. He also
submitted a second letter dated September 23, 2002 from his oncologist.
[13] As
stated at the outset, the panel determined that no errors of fact or law were
made in its earlier decision (thereby precluding reconsideration on its own
motion) and that the new information did not conform to the factors articulated
in the test set out in MacKay v. Attorney General of Canada (1997), 129
F.T.R. 286 (MacKay).
The Relevant Legislation
[14] Subsection
32(1) of the Act authorizes the panel to reconsider a previous decision if one
or more of the statutory grounds for reconsideration is established. The
provision reads as follows:
|
Veterans
Review and Appeal Board Act,
S.C.
1995, c. 18
32.
(1) Notwithstanding section 31, an appeal panel may, on its own motion,
reconsider a decision made by it under subsection 29(1) or this section and
may either confirm the decision or amend or rescind the decision if it
determines that an error was made with respect to any finding of fact or the
interpretation of any law, or may do so on application if the person making
the application alleges that an error was made with respect to any finding of
fact or the interpretation of any law or if new evidence is presented to the
appeal panel.
|
Loi
sur le Tribunal des anciens combattants (révision et appel),
L.C.
1995, ch. 18
32.
(1) Par dérogation à l’article 31, le comité d’appel peut, de son propre
chef, réexaminer une décision rendue en vertu du paragraphe 29(1) ou du
présent article et soit la confirmer, soit l’annuler ou la modifier s’il
constate que les conclusions sur les faits ou l’interprétation du droit
étaient erronées; il peut aussi le faire sur demande si l’auteur de la
demande allègue que les conclusions sur les faits ou l’interprétation du
droit étaient erronées ou si de nouveaux éléments de preuve lui sont
présentés.
|
The Standard of Review
[15] The
parties agree, and I concur, that the applicable standard of review is
reasonableness. Dunsmuir v. New Brunswick, 2008 SCC 9
(Dunsmuir) directs a two-step process to determine the appropriate
standard of review. First, I am to consider existing jurisprudence to
ascertain whether the standard of review has already been established. If not,
I am to undertake a standard of review analysis.
[16] Historically,
decisions of the VRAB Appeal Panel have been reviewed on a standard of patent
unreasonableness or reasonableness, depending on the nature of the question.
The standard of patent unreasonableness has been collapsed and now falls under
the reasonableness standard.
[17] My
colleagues Mr. Justice Blanchard (in Pierre Dugré v. Canada (Attorney
General),
2008 FC 682) and Madam Justice Heneghan (in Lenzen v. Canada (Attorney
General), 2008 FC 520) have determined that the applicable standard of
review with respect to a reconsideration decision of the VRAB Appeal Panel is
that of reasonableness. I endorse their findings in this regard.
Analysis
[18] The
term “new evidence’ is not defined in the Act. However, it is common ground
that the test delineated by Mr. Justice Teitelbaum in MacKay (being the
same as that for new evidence on appeal articulated in R. v. Palmer,
[1980] 1 S.C.R. 759) is the appropriate test for the reception of new evidence
in the context of a reconsideration decision. The factors are:
·
The
evidence should generally not be admitted if, by due diligence, it could have
been adduced at trial;
·
The
evidence must be relevant in the sense that it bears upon a decisive or
potentially decisive issue in the trial;
·
The
evidence must be credible in the sense that it is reasonably capable of belief;
·
The
evidence must be such that if believed it could reasonably, when taken with the
other evidence adduced at trial, be expected to have affected the result.
[19] The
panel rejected the “new evidence” on all counts. As I indicated at the
hearing, in my view, the finding that the evidence was not relevant because it
did not sufficiently address the decisive issue and therefore could not have
affected the result in the case is dispositive.
[20] Notably,
before his application for reconsideration was made, MS Rioux had an
administrative decision, a review decision and an appeal. Each constituted a
hearing de novo with the opportunity to submit evidence and arguments: Nolan
v. Canada (Attorney
General)
(2005), 279 F.T.R. 311.
[21] The
internet article, as noted by counsel for the respondent, does not support MS
Rioux’s contention of causation. It provides a broad list of risk factors,
including, among many others, exposure to radiation and chemicals. It defines
risk factors as “anything that might increase a person’s chance of getting
cancer”. It discusses the speculation and uncertainty that exists in relation
to the cause of cancer. Further, the article is dated 12/20/98. Thus, it was
available, or could have been available, at the first stage of
decision-making. No explanation was offered as to why it could not have been adduced
earlier.
[22] The
same can be said of the letters from MS Rioux’s colleagues. With one
exception, they pre-date the administrative level decision. Again, there is no
explanation as to why they were not made available earlier. In any event, all
letters speak to MS Rioux’s exposure to radiation and chemical fumes, a fact
that was not in issue.
[23] Arguably,
the most problematic piece of evidence is the second opinion from MS Rioux’s
oncologist. Although this correspondence identified specific risk factors, the
panel concluded that “it has not sufficiently addressed the decisive issue in
this case which is whether there is a direct connection between service and the
claimed condition”.
[24] The
oncologist’s revised correspondence addresses causation as follows:
I think it is very possible
that MS Rioux’s non-Hodgkins lymphoma may have developed because of his
work-related carcinogenic exposure. (my emphasis)
There is nothing
further.
[25] While
this comment is somewhat stronger than the earlier comment that MS Rioux’s work
may possibly have been a risk factor for developing the disease, there is a
line of authority from this court holding that great deference is owed to the
Appeal Board’s expertise in weighing inconclusive medical information. Moreover,
in circumstances where similar medical reports have been rejected by the panel,
the rejections have been sustained in the Federal Court: Goldsworthy v.
Canada (Attorney General), 2008 FC 380; Comeau v. Canada (Attorney General)
(2005), 284 F.T.R. 107 (F.C.), aff’d. (2007), 360 N.R. 323 (F.C.A.).
[26] In
addition to finding that the new opinion did not sufficiently address the
decisive issue, the panel concluded, although the oncologist was a credible
source, the opinion with respect to causation was not credible. This finding
was premised on the lack of reasoning and analysis in relation to the issue of
causation and the proffered cautious opinion of possibility.
[27] Finally,
the panel concluded that the new evidence was unlikely to affect the result of
its previous decision. Given its conclusion that the new evidence did not
address the decisive issue, it necessarily follows that the evidence could not
have affected the result.
[28] Dunsmuir teaches that
reasonableness is a deferential standard concerned with the existence of
justification, transparency and intelligibility within the decision-making
process. It is also concerned with whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.
[29] Here,
the panel examined the factors required for it to receive new evidence. It
concluded that the evidence was not “new” as the term is legally understood.
The second medical opinion was neither relevant nor credible. The letters from
MS Rioux’s colleagues did not add anything to the previous information. The
“new evidence” could have been obtained earlier if due diligence had been
applied. Further, the “new” evidence raises only a mere possibility that
military service was a cause of the claimed condition.
[30] In
my view, the panel made no error in rejecting the new evidence. With the
exception of the letter from one colleague, all of this evidence could have
been, and ought to have been, adduced at the preliminary stages of the
administrative process. As for the second medical opinion, I agree with the
respondent that it was evident after the administrative-level decision that
causation was a problem. Further medical evidence was obviously required.
Moreover, even if the panel had determined (and it did not) that it could not
have been available earlier, at best, the opinion is equivocal and cautious.
[31] The
panel articulates its reasons for denying MS Rioux’s request. I am unable to
conclude that its decision falls outside the range of possible acceptable
outcomes which are defensible in respect of the facts and law.
[32] Section
39 of the Act, which requires that the panel resolve any doubt in favour of an
applicant, does not relieve the pension applicant of the burden of proving on a
balance of probabilities the facts required to establish entitlement to a
pension: Wannamaker v. Canada (Attorney General) (2007), 361 N.R. 266
(F.C.A.). That said, it is open to MS Rioux to apply again for a pension
entitlement should the evidence available to him warrant such application.
[33] The
respondent did not request costs and none are awarded.
“Carolyn Layden-Stevenson”
Fredericton,
New Brunswick
September
4, 2008
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