Date:
20130603
Docket:
T-1056-12
Citation:
2013 FC 594
Ottawa, Ontario,
June 3, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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HERBERT GURZINSKI
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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
ORDER AND ORDER
[1]
The
Applicant, Mr. Gurzinski, seeks judicial review of a reconsideration decision rendered
by an Appeal Panel of the Veterans Review and Appeal Board [the Board] on April
23, 2012. The impugned decision denied the Applicant’s claim for reconsideration
of his request thereby preventing him from claiming disability benefits.
[2]
The
Applicant, a self-represented litigant, seeks an order from this Court quashing
the Board’s decision and awarding him a disability pension.
I. Background
[3]
The
Applicant served in the Reserve Force from October 30, 1961 until his discharge
on November 18, 1969.
[4]
On
May 23, 1967, the Applicant was involved in a military exercise in Simcoe, Ontario in which he was ordered by his commanding officer to jump from an armoured
personnel carrier [APC] vehicle, which allegedly resulted in him hurting both
his left and right feet.
[5]
The
Applicant did not report these injuries and his military records show that he
did not attend his pre-release medical examination. Therefore, there is no
military record of the Applicant having suffered a heel or foot injury before
his release from the armed service. The Applicant was discharged from the
Canadian Armed Forces on November 18, 1969.
[6]
On
October 19, 2009, pursuant to subsection 45(1) of the Canadian Forces
Members and Veterans Re-establishment and Compensation Act, SC 2005, c 21
[New Veteran’s Charter], the Applicant applied to the Minister for a disability
award for the claimed conditions of chronic calcaneal bursitis of his left and
right feet.
[7]
In
order to establish entitlement, an applicant must demonstrate that he suffered
from an injury that was caused by military service. As part of his application
to the Minister, the Applicant submitted the medical notes of his family doctor,
Dr. Shonk, written in 1998, which indicated that the Applicant had injured his
heels three (3) years earlier (twelve (12) years prior to his application for
disability and eighteen (18) years after his discharge from the Canadian Armed
Forces).
[8]
On
October 19, 2009, the Department of Veteran Affairs [the Department] denied his
application on the grounds that there was insufficient evidence to establish a
diagnosis of the claimed condition, or to establish a relationship between the
claimed condition and his military service, as required by subsection 45(1) of
the New Veteran’s Charter.
[9]
On
April 27, 2010, the Applicant applied to the Board for a review of the
Department’s decision. The Applicant submitted new evidence in the form a
medical report dated February 8, 2010, from Dr. Rhodes, who became his doctor
after Dr. Shonk’s retirement. The letter stated “it is entirely probable that
jumping from the APC in 1967 could have resulted in your symptoms of bilateral
heel pain. There is also some radiological evidence of an injury to that area
consistent with trauma.”
[10]
On
April 27, 2010, the Board denied the Applicant’s claim for Entitlement review.
In its decision, the Board stated that it afforded only limited weight to the
letter from Dr. Rhodes and that his opinion did not indicate a thorough review
of the Applicant’s service medical files, nor did it indicate which medical
evidence he was basing his opinion on.
[11]
On
December 24, 2010, the Applicant appealed the Board’s decision to the
Entitlement Appeal panel of the Board. On appeal, the Applicant filed
additional new evidence, including a medical report by Dr. Ranney.
[12]
On
February 1, 2011, the Entitlement Appeal panel of the Board denied his appeal
stating that the medical evidence presented by Dr. Ranney was not reliable, as
it was based upon evidence which could not be corroborated by the Applicant’s
military record.
[13]
On
November 30, 2011, an application for reconsideration of the Entitlement Appeal
Panel’s decision was filed by Mr. Gurzinski supported by a further affidavit of
Dr. Shonk, which sought to correct and alleged mistake in the date provided as
1995, when it should have been in the late 1960’s. However, Dr. Shonk did not
have access to his medical records before 1995, so could not review his records
to ascertain if there was any mention of the heel problems before that time.
[14]
On
April 23, 2012, the Appeal panel denied the Applicant’s request for
reconsideration on the basis that Dr. Shonk’s letter failed to meet the
requirement for the admission of new evidence prescribed by section 32(1) of
the Veterans Review and Appeal Board Act, SC 1995, c 18 [VRABA].
II. Issue
[15]
Did
the Board err in denying the Applicant’s reconsideration request?
III. Standard of review
[16]
The
appropriate standard of review is the standard of reasonableness (Armstrong
v Canada (Attorney General), 2010 FC 91 at para 33 [Armstrong]),
where Justice Sean Harrington confirmed Justice Richard Mosley's standard of
review analysis in Bullock v Canada (Attorney General), 2008 FC 1117 at
paras 11 to 13, and confirmed the application of the standard of reasonableness
to an appeal panel's refusal to reconsider a decision in circumstances such as
are presented in this case.
IV. Analysis
[17]
The
Respondent brings a preliminary motion to strike portions of the Applicant’s
materials, including his unsworn affidavit of September 27, 2012,
and these materials filed pursuant to this Court’s Orders dated September 21,
2012 and October 9, 2012.
[18]
With
respect to Mr. Gurzinski’s unsworn affidavit, the Respondent submits that the
affidavit contains facts not within Mr. Gurzinski’s personal knowledge, and
contains speculative, irrelevant facts as well as legal arguments and
conclusions. Essentially, it is argued that the affidavit does not comply with
the Federal Court Rules, and that it contains hearsay, which is neither
necessary nor reliable, and speculative, unfounded allegations and arguments.
[19]
I
agree. An applicant, even when a self-represented litigant, is bound to comply
with the Rules of the Court. Mr. Gurzinski’s unsworn testimony and reference to
speculative facts and hearsay is improper and cannot be allowed.
[20]
Even
if I was to allow and consider his affidavit, or portions of it, I find that
his attempt to introduce new evidence after the hearings below, which concluded
on April 23, 2012, does not meet the test to be applied under Section 32 of the
VRABA. As stated by Justice André Scott in Cossette v Canada (Attorney General), 2011 FC 416 at para 25, citing Palmer v R (1979), 106
DLR (3d) 212 (SCC) [Palmer]:
The following
principles have emerged:
(1) the evidence
should generally not be admitted if, by due diligence, it could have been
adduced at trial […];
(2) the evidence must be relevant in the sense that
it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that
it is reasonably capable of belief, and
(4) it must be such that if believed it could
reasonably, when taken with other evidence adduced at trial, be expected
to have affected the result.
[emphasis added]
[21]
By
the time the applicant reached the stage at which he sought reconsideration by
the Board, he had already had a determination of his claim by an adjudicator
from the Department, a review hearing and appeal hearing before the Board. For
hearings before the Board there are no time limitations and no grounds for
appeal are necessary. At the review hearing, the applicant was given an
opportunity to provide his testimony and the testimony of any witnesses he may
wish to produce – it was a full de novo hearing. The appeal hearing
process provided the applicant with a full opportunity to adduce new evidence
and to make oral arguments on the case. At each proceeding before the Board,
the applicant was entitled to legal advice and representation free of charge
from the Bureau of Pension Advocates. Given the nature of this administrative
process, substantial deference is warranted with respect to the Board’s
decisions.
[22]
While
I am sympathetic to the Applicant’s injuries and his concerns with his ability
to seek redress for his injuries, there is simply no new evidence that supports
a nexus between his military service and these injuries that were not
reasonably considered by the Board. Nor does the evidence meet the test as set
out in Palmer, above. The Applicant’s application is dismissed. However,
given the unique nature of this case, I do not find that costs should be
granted to the Respondent.
ORDER
THIS
COURT ORDERS that:
1.
The
application for judicial review is dismissed;
2.
No
costs are awarded.
"Michael D.
Manson"
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