Date:
20130415
Docket:
T-1007-12
Citation:
2013 FC 379
Ottawa, Ontario,
April 15, 2013
PRESENT: The
Honourable Madam Justice Hansen
BETWEEN:
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CLAUDE A. ROCHON
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Applicant
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and
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ATTORNEY GENERAL FOR CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Veterans Review and Appeal Board (VRAB) denied the Applicant’s request for a
reconsideration of a decision of the Veterans Appeal Board (VAB) brought
pursuant to section 111 of the Veterans Review and Appeal Board Act, SC
1995, c 18. The Applicant seeks judicial review of the VRAB’s decision.
[2]
The
Applicant is a former member of the Canadian Forces. He retired in June 1990
after approximately nine years of service. In September 1985, he was hit by a
car resulting in an injury to his left knee. The Applicant
claims that he was out jogging as part of his training for his unit’s
cross-country ski team at the time of the accident. The injury was
treated with physiotherapy and two surgeries. In 1989, he was diagnosed with
osteoarthritis in the knee and he had a third surgery to fuse the knee.
[3]
The Applicant’s subsequent
application to the Canadian Pension Commission for a military disability
pension was dismissed in March 1993. The Applicant claimed that he was doing required sports training at the time of the
accident. The Commission accepted that the Applicant’s osteoarthritis
condition was due to the car accident but concluded that it did not arise from
or was directly connected to his military service. In June 1993 and November
1993, the Entitlement Board and the VAB respectively, reached the same
conclusion.
[4]
In
2012, the Applicant applied to the VRAB, formerly the
VAB, for a reconsideration of the VAB
decision on the basis of new evidence. The VRAB
applied the “Palmer” test as articulated in Mackay v Canada (Attorney General), 129 FTR 286 and ultimately declined to reconsider the VAB
decision. The evidence consisted of two letters from former members of
the Canadian Forces describing physical training
requirements around the time of the accident both
generally and more specifically about the
cross-country ski team. As well, the Applicant submitted letters from two
physicians concerning the appropriateness of the surgery to fuse the knee. The
last two letters from the physicians will be considered separately.
[5]
As
to the training requirements, the first letter is from Reverend Larry Greig, a retired army officer who was “responsible for
seeing that [his] troops followed the physical fitness programmes, whether on a
specific course or on their own time or after hours”. He notes that the
Canadian Forces have always had a mandatory physical fitness program set up in
a manner that could be followed by personnel on their own time or after hours.
He also refers to two programs that were specifically designed to be followed
on a member’s own time if they were unable to attend regular physical fitness
because of their specific duty.
[6]
In
the second letter, Mr. Joe Soos, a former
member of the Canadian Forces, confirms that physical training is done at night
and in the day depending on the requirements of the unit. As well, all service
members are required to do “PT” at the unit level and participate in a sport of
choice. He notes that he was also a member of the cross-country ski team at around the same time
period as the Applicant and describes in some detail the training the Applicant
was authorized and required to do during the evening in addition to the “troop
training”. The training included running and skiing on a course at the base and working out at the base gym.
[7]
At
this point, it is convenient to note that it is not disputed that the standard
of review of a VRAB reconsideration decision is reasonableness: Bullock v Canada (Attorney General), 2008 FC 1117.
[8]
As
to the test the VRAB should apply on an application for reconsideration, the Applicant
submits that the appropriate test is set out in Dubois v Canada (Employment Insurance Commission), [1998] FCJ No
768, an employment insurance case. While it is true that the Federal Court of
Appeal in Frye v Canada (Attorney General), 2005 FCA 264 characterized
employment insurance and pension legislation similarly as both being
“benefits-conferring legislation”, this was said in the context of a discussion
regarding the liberal and generous interpretation of social welfare legislation. It is also observed that the general principle in Dubois is not at odds
with the Palmer test. Thus, it cannot
be taken as displacing the well established Palmer test
with its appropriate contextual modifications that recognize the liberal
interpretation of the legislation and the inferences that should be drawn in
favour of the Applicant on an application for reconsideration by the VRAB.
[9]
As
to the letters regarding training requirements, the VRAB applied Palmer
and refused to admit the evidence on the grounds that it was not “new”
evidence in the sense that it could have been presented in 1993; it was “not
credible for pension purposes”; and it did not provide any new evidence that could
reasonably be expected to alter the outcome of the earlier decision.
[10]
As
the Applicant had failed to provide any
reason why he could not have presented the evidence regarding his training at
the earlier VAB hearing and given the nature of the information provided in the
letters, it was not unreasonable for the VRAB to conclude that the evidence
could have been presented earlier.
[11]
The VRAB went
on to find that although the contents of the letters were relevant to the
decisive issue in the case, they were not credible because they did not
corroborate the Applicant’s contention that his osteoarthritis condition was
service related. That is, the writers did not indicate that they had witnessed
the accident; they did not provide any confirmation that the Applicant was
engaging in authorized physical training at the time he was injured; and they
did not provide any information about the Applicant’s training program for
cross-country skiing. While the use of the word “credible” in relation to the
observations that follow is misplaced, they are properly directed at the key
question in the present case. That is, would the evidence, taken with the other
evidence already adduced, reasonably be expected to alter the outcome of the
decision. In my view, the VRAB reasonably concluded that it would not. Although
the new evidence gives additional detail about the physical training
requirements, it does not provide anything new in relation to the decisive
issue.
[12]
In his
submissions, the Applicant claims that since his burden under section 21(3)(a)
of the Pension Act, RSC, 1985, c P-6 is to simply show that he was
performing the activity that gave rise to the condition “in the interests of
his military service”, he does not have to demonstrate that he was required or
authorized to perform the activity. In my view, this is an attempt to add an
additional ground for reconsideration that was not before the VRAB. The
application for reconsideration was based on new evidence only and not on an
error of fact or law in the earlier decision.
[13]
Turning to
the letters from the two physicians, in his application to the VRAB for
reconsideration the Applicant
“contends that the new evidence submitted by [the physicians] should change the
result because it confirms that the applicant suffers from a medical condition
which has resulted from medical mismanagement by military doctors during his
military service.”
[14]
The claim of
medical mismanagement was not advanced in any of the earlier proceedings and is an entirely new claim for which a
new application should have been made to the Minister in accordance with
section 81(1) of the Pension Act. It follows that in considering the
issue and in making any findings and drawing any conclusions from the evidence
of the two physicians, the VRAB clearly exceeded its jurisdiction. In these
circumstances, the Court finds that no determination was made by the VRAB for
the purposes of section 85(1) of the Pensions Act.
[15]
For the above
reasons, I conclude that the VRAB decision was reasonable and the application
for judicial review will be dismissed. The Respondent did not ask for costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed without costs.
“Dolores M. Hansen”
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