Date:
20130619
Docket:
T-1421-12
Citation:
2013 FC 689
Ottawa, Ontario,
June 19, 2013
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
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BASIL MCALLISTER
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Applicant
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and
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THE ATTORNEY GENERAL
OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Veteran’s Review and
Appeal Board (VRAB) dated July 9, 2012. The VRAB refused to reconsider, pursuant
to subsection 32(1) of the Veterans Review and Appeal Board Act, SC
1995, c 18 (VRAB Act), an earlier entitlement appeal decision which denied the
Applicant’s entitlement to a pension on the basis that the Applicant’s new
evidence was neither new nor credible.
Background
[2]
The
Applicant, Mr. Basil McAllister, served in the Canadian Armed Forces from
December 30, 1954 to January 1, 1975. Much of that time was spent working
and training at Canadian Forces Base (CFB) Gagetown, New Brunswick.
[3]
Agent
Orange was sprayed at CFB Gagetown in 1966 and 1967. The Applicant’s service
records confirm that he performed field training at CFB Gagetown during the
summer of 1967.
[4]
In
1994, at the age of 62, the Applicant was diagnosed with adenocarinoma of the
prostrate (prostate cancer). On May 19, 2005, the Applicant applied to the
Department of Veterans Affairs (VAC) for disability benefits on the basis that
his prostrate cancer was related to his military service, specifically, that it
resulted from his exposure to Agent Orange.
[5]
On
March 21, 2006, the Applicant’s request for a disability pension pursuant to
subsection 21(2) of the Pension Act, RSC, 1985, c P-6 (Pension
Act) was denied. The Department of Veterans Affaires (DVA) acknowledged
that the Applicant served at CFB Gagetown in one of the known time frames when
spraying of Agent Orange occurred and that current medical research supported
an association between exposure to Agent Orange and adenocarcinoma of the
prostate. However, it found that there was no evidence that the Applicant had
been exposed to that substance. The Applicant was advised that the decision
could be reviewed on the basis of any new information or evidence that he might
provide, and, that he had the option of appealing the decision to the VRAB. The
Applicant exercised that option.
[6]
On
September 25, 2008 an entitlement review panel of the VRAB upheld the DVA
decision (Entitlement Review Decision). The review panel listed the evidence
that it considered in making its decision. It was satisfied that studies which
arose from a comprehensive review of the Agent Orange test spraying rebutted a
presumption of exposure, as the evidence did no more than establish that the Applicant
was serving at CFB Gagetown during the relevant time period. Therefore, the
Applicant failed to establish that his prostate cancer arose out of or was
directly related to his military service.
[7]
The
review panel stated that the Agent Orange test spraying occurred in an unused
and remote area of the base; flagmen were posted to indicate the designated
spray area to helicopters; officers were assigned to ensure the flagmen were in
the correct positions; and, according to the research, the two sprayed plots of
land were not used again. The Task 3A-1 Tier 1 Report indicated that even for those
directly involved with the tests (loaders, pilots, applicators and flagmen)
there was no suggestion of an increased risk of long term irreversible health
risks. For those who trained near the two sites, the exposure was found to be sufficiently
low to indicate no increased risk of dioxin-related illness.
[8]
Accordingly,
the panel found that there was no more than a possibility that the Applicant
was actually exposed to Agent Orange during his service and that a possibility
was insufficient to establish entitlement under the Pension Act. Further,
even if some exposure occurred, the level of risk attributable to the exposure
was insufficient to establish a case for a pension award.
[9]
The
Applicant was advised that, pursuant to section 25 of the VRAB Act, if he
was dissatisfied with that decision he could appeal to a VRAB board, which he
did.
[10]
On
August 11, 2009, an entitlement appeal panel of the VRAB upheld the above
described VAC decision and the Entitlement Review Decision (Entitlement Appeal
Decision). At the entitlement appeal, the Applicant presented additional
evidence from Captain James W. Bloomfield (retired) and a report from Dr. Liam
Hickey. The appeal panel noted that a pension benefit entitlement had been
denied on the basis that there was no evidence that the Applicant had been
exposed to Agent Orange and found that the new evidence did not answer the
objections raised in the previous decision. That is, the Applicant failed to
adduce evidence of direct exposure Agent Orange.
[11]
The
appeal panel made particular note of the fact that the entitlement review panel
had referred to the Task 3A – Tier 3 Report (in fact, it referenced the Task
3A-Tier 1 report). In addition, the appeal panel noted that the Applicant was
diagnosed with prostate cancer when he was 73, while the median age of the
diagnosis in the general population is 72 years of age. Further, that the only
scientific study on which it could assess the risk of contamination is one
sponsored by the Canadian government and that there was no documented evidence
to lead the appeal panel to consider that study as not being credible. The
appeal panel found that it could not rely on Dr. Hickey’s opinion to
relate the Applicant’s condition to his military service because the opinion
was not of probative value. In addition, the statistics in Captain James W.
Bloomfield’s letter were not in keeping with the conclusion of the study sponsored
by the Canadian government. The appeal panel upheld the previous decisions and
affirmed that there was no evidence that the Applicant’s prostate cancer is
related to his military service.
[12]
The
Applicant sought a reconsideration of the Entitlement Appeal Decision pursuant
to subsection 32(1) of the VRAB Act on the basis of errors of fact and law. On
March 29, 2010 a VRAB reconsideration panel affirmed the Entitlement Appeal Decision
(First Reconsideration Decision).
[13]
The
reconsideration panel acknowledged an error of fact made in the Entitlement Appeal
Decision which stated that the Applicant was diagnosed with prostate cancer at
the age of 73 when, in fact, he was diagnosed at the age of 62. The reconsideration
panel further acknowledged that it could not trace the source of the
entitlement appeal panel’s statement that the median age for prostate cancer diagnosis
in the general population was 72 years old.
[14]
The
reconsideration panel did not accept the Applicant’s submission that a second
error of fact arose because, although he had corroborated his prior evidence
with the statements of two witnesses confirming that he had spent a lot of time
in the training areas in 1967 immediately after they were sprayed and possibly
even during spraying, it understood, according to the “Furlong Report”, that
the sprayed areas were not accessible for regular training and that only those
who were directly exposed may have been at higher risk.
[15]
As
to the Applicant’s submissions that these two alleged errors of fact constituted
an error of law by erroneously rebutting a presumption arising from subsection
21(3)(g) of the Pension Act that the Applicant’s prostate cancer was connected
with his military service, the reconsideration panel stated that it could find
no support for that contention.
[16]
The
reconsideration panel also disagreed with and dismissed the opinion of Dr. Liam
Hickey. His opinion was that there was a medical connection between the
Applicant’s condition and Agent Orange exposure which was consistent with the Department
of National Defence (DND) studies. The reconsideration panel stated that there
are very specific circumstances where a link can be established and, according
to the available evidence, the panel could not find that such a link exists in
this case.
[17]
The
Applicant also submitted a report from an oncologist, Dr. Michael Sia, that had
been prepared for another applicant; a copy of the Chamie Study as well as
three similar fact VRAB decisions which awarded pensions to individuals who served
with the Applicant at Gagetown and suffered disabilities related to Agent
Orange exposure. The reconsideration panel stated that it could not rely on that
evidence as circumstances vary from case to case and each case must be decided
on its own merits. It concluded that it could find no evidence to indicate
that the Applicant was directly exposed to Agent Orange. It upheld the Entitlement
Appeal Decision that the Applicant was not entitled to pension benefits.
[18]
Pursuant
to subsection 32(1) of the VRAB Act, the Applicant then sought a second
reconsideration on the basis of new evidence in the form of two new witness
statements. On July 9, 2012 a second reconsideration panel denied the
Applicant’s request (Second Reconsideration Decision).
[19]
On
July 23, 2012 the Applicant filed a Notice of Application seeking judicial
review of the Second Reconsideration Decision. It is that decision which is under
review by this Court.
Decision
Under Review
[20]
In
the Second Reconsideration Decision, the VRAB stated that when determining an
application for a reconsideration based on new evidence, a four part test
prescribed by the Supreme Court of Canada in R v Palmer, 106 DLR (3d)
212 (SCC) and adopted in Mackay v Canada (1997), 129 FTR 286, [1997] FCJ
No 495 [Mackay] and Canada (Chief Pensions Advocate) v Canada
(Attorney General), 2006 FC 1317, [2006] FCJ No 1646 [Chief Pensions
Advocate], aff'd in 2007 FCA 298 is to be applied in determining if the
evidence should be accepted:
i) the evidence should
generally not be admitted if, by due diligence, it could have been adduced at a
previous hearing ;
ii) the evidence must be
relevant in the sense that it bears upon the decisive or potentially decisive
issue in the adjudication;
iii) the evidence must be
credible in the sense that it is reasonably capable of belief, and
iv) 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.
[21]
The
new evidence that the Applicant sought to submit by way of his request for the
second reconsideration was:
a) Statement of Gordon A.
Gravelle Sgt (R) (Gravelle statement) which stated:
I was Platoon Sgt. of 7 Platoon “C” Company and Sgt.
McAllister Basil J. was 12 Platoon “D” Company which was on our right flank
when Agent Orange was sprayed on us.
We were ordered before that to put on respirators
and ponchos for the attack. This occurred when 2nd Battalion the
Black Watch (RHR) of Canada were Enemy Force of 1st Battalion The
Black Watch (RHR) of Canada in the summer of 1967.
b) Statement of H. J.
Harkes, MC, CD, Lieutenant – Colonel (R) (Harkes statement) that the Applicant
was a member of Mr. Harkes’ battalion, The Black Watch (Royal Highland
Regiment), at CFB Gagetown, which was assigned to design and conduct a training
program to prepare the 1st battalion of The Black Watch for a
six month deployment to Cyprus and that:
The practical phase of the training included a
series of field training exercises conducted throughout Gagetown’s manoeuvre area…
The training culminated with a major field exercise involving almost every
soldier from both battalions in the middle of June 1967 – just days after parts
of the training area had been sprayed with ‘Agent Orange’. Mr. McAllister, a
rifle platoon sergeant at the time, participated in the exercise. Moreover, as
an element of the exercise control staff, he would have been in the training
area in the weeks prior to the final exercise conduction reconnaissance and
making the preparations necessary to ensure that the exercise provided for
realistic training.
Although I cannot state that I personally witnessed
Mr. McAllister being sprayed or otherwise in contact with ‘Agent Orange’, I am
certain that he would have been in or around the affected area at, and in the
days immediately after, the spraying took place.
[22]
The
VRAB reasoned that the Applicant had submitted similar evidence in the past. This
included a letter of support submitted to the entitlement appeal panel and
corroborating letters from two witnesses that were before the first reconsideration
panel. The latter letters attested that the Applicant had spent a lot of time
in the training area immediately after, and possibly during, the spraying of Agent
Orange. The VRAB quoted the statement of the panel in the First
Reconsideration Decision that it understood the Furlong Report to contradict
this evidence as that report found that the sprayed areas were not accessible
for regular training and only those who were directly exposed to Agent Orange
were at a higher risk. The VRAB adopted that reasoning.
[23]
The
VRAB found that the new evidence which the Applicant sought to submit in the
Second Reconsideration was not “new” because the new statements reiterated the
same contention. The VRAB stated that with respect to the second part of the
test for new evidence, relevance, the statements did not address in a credible
manner the decisive point that the Applicant was not directly exposed to Agent
Orange. Accordingly, that criterion was not met.
[24]
The
VRAB also found that the new evidence was not credible and, therefore, did not
meet the third criterion. While the Gravelle statement stated that the
Applicant’s platoon was on his “right flank when Agent Orange was prayed on us”,
the VRAB stated that, based on the Furlong Report, it understood that Agent
Orange was never sprayed in training areas, but only in remote areas where no
training was held. Further, the Harkes statement did not provide any evidence
of direct exposure to Agent Orange and his recollection was also not in keeping
with the Furlong Report.
[25]
The
VRAB concluded that the tendered evidence was not new or credible and would
not, when taken with the earlier adduced evidence, be expected to affect the
result. As the Applicant did not meet the criteria in Mackay, above, the
VRAB declined to reopen the otherwise final and binding Entitlement Appeal Decision
for reconsideration.
Issues
[26]
The
Applicant is a self-represented litigant. While he does not explicitly
identify issues, his Notice of Appeal, Memorandum of Fact and Law and oral
submissions suggest that to him the issues are whether the Board erred: in denying
his entitlement to a pension, particularly as others who served with him at CFB
Gagetown are receiving that benefit; in the discounting of all other evidence
in favour of the Furlong Report; and, in the assessment of the credibility of
his proposed new evidence.
[27]
In
its written submissions, the Respondent identifies the issue as being whether the
VRAB’s decision that the Applicant is not entitled to a pension under subsection 21(2)(a)
of the Pension Act is reasonable. However, when appearing before me,
the Respondent submitted that the issue was limited to the reasonableness of
the Second Reconsideration Decision.
[28]
In
my view, the issues are as follows:
a) What is the
standard of review for a reconsideration decision of a VRAB appeal panel?
b) Did the
VRAB err by refusing to admit the new evidence and, as a result, in declining
to reconsider the Entitlement Appeal Decision?
Submissions and
Analysis
Standard
of Review
[29]
The Supreme Court of
Canada in Dunsmuir
v New Brunswick, 2008 SCC 9, [Dunsmuir] at para 57 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. (Dunsmuir, above;
Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 [Kisana]
at para 18).
[30]
Prior
jurisprudence has held that the standard of review for a reconsideration
decision of a VRAB panel is reasonableness (Bullock v Canada (Attorney General),
2008 FC 1117 [Bullock] at paras 11-13; Rioux v Canada (Attorney General), 2008 FC 991 [Rioux]
at para 15 and 17; Dugré v Canada (Attorney General), 2008 FC 682 [Dugré];
Lenzen v Canada (Attorney General), 2008 FC 520). The question of
whether an appeal panel gave proper effect to section 39 of the VRAB Act also
attracts a standard of reasonableness: Wannamaker v Canada (Attorney General), 2007 FCA 126 [Wannamaker] at para 13. Thus, the
standard of review in this case is reasonableness.
[31]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility of the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law (Dunsmuir, above, at para
47; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC
12 [Khosa] at para 59). Put otherwise, the Court should only intervene
if the decision was unreasonable in the sense that it falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law” (Dunsmuir, above, at para 47).
[32]
On
a judicial review the Court must show considerable deference to decisions
rendered by a VRAB appeal panel that refuses to reconsider its own decision (Furlong
v Canada (Attorney General), 2003 FCT 731 [Furlong] at para 14).
Did
the VRAB err in refusing to admit the new evidence and, as a result, in
declining to reconsider the Entitlement Appeal Decision?
Applicant’s
Position
[33]
The
Applicant submits that the VRAB has granted disability pensions for prostate
cancer, and other medical conditions attributable to exposure to Agent Orange, to
comrades with whom he served side by side at CFB Gagetown during the relevant
time frame.
[34]
He
submits that the common theme of the VRAB refusals is an alleged lack of
evidence that he was directly exposed to Agent Orange during his military
service. Yet, in nine other decisions of the VRAB where claimants were found
to be entitled to pension benefits, only one, a flagman, was directly sprayed
with “Agent Orange”.
[35]
The
Applicant submits that the VRAB inappropriately denied his admission of new
evidence by giving undue weight to some evidence at the expense of other
evidence that was favourable to his claim. He states that the VRAB continues to
deny his application solely on the basis of the “Furlong Report”, which
contains errors and which the VRAB has interpreted incorrectly. Specifically,
according to the VRAB, based on the “Furlong Report”, Agent Orange was never
sprayed in training areas, but only in remote areas where training was not
conducted. This is incorrect and is also not in keeping with what the Furlong
Report actually states.
[36]
The
evidence of those who were actually in service at CFB Gagetown is not only
credible, but is better evidence and should be preferred. The Applicant
submits that any and all evidence he produces as to his exposure to Agent
Orange is rejected by the VRAB because it has interpreted the Furlong Report to
contradict the Applicant’s contention. Section 3 and 39 of the Act requires
the VRAB to draw from all of the evidence every reasonable inference in favour
of the Applicant and to resolve any doubt in his favour when weighing his
evidence.
[37]
The
Applicant states that the new evidence should change the result because it
further corroborates his exposure to Agent Orange at Gagetown during the summer
of 1967. The Gravelle statement confirms that his battalion, flanked by Mr.
McAllister’s, was sprayed with Agent Orange. The Harkes statement confirms
that their training culminated with a major field exercise just days after part
of the training area had been sprayed with Agent Orange. As such, the evidence raises
a doubt, as contemplated by Sections 3 and 39 of the Act, that the Applicant’s
disability was related to his service that should be resolved in his favour. The
Applicant states that he is therefore, entitled to a pension pursuant
subsection 21(2) of the Pension Act.
Respondent’s Position
[38]
The
Respondent acknowledges that the Applicant served in the 1st
Battalion, The Black Watch (RHR) and that he participated in the field training
program at CFB Gagetown’s manoeuvre area in preparation for a peacekeeping
deployment to Cyprus. The Respondent also acknowledges that during the summers
of 1966 and 1967 the Applicant performed field training exposing him to long
transits on foot, rolling, crawling and digging on and in the ground, and,
accepts that he performed field duties at CFB Gagetown between June 14-16, 1966
and June 21-24, 1967 when Agent Orange was sprayed.
[39]
The
Respondent submits that it was reasonable for the VRAB to conclude that the new
evidence was not new or credible. It was not new as the Applicant presented
similar evidence making the same contention before the panel in the First
Reconsideration Decision. It was not credible as the VRAB found, based on the
Furlong Report, that the training areas which had been sprayed with Agent
Orange were not in areas in which training was held after the spraying. The
VRAB therefore could not accept that the new evidence which contended that
Agent Orange had been sprayed at the same time as (and in very close proximity
to the area in which) the Applicant was engaging in field exercises.
[40]
The
medical evidence did not establish that the Applicant’s condition arose out of
exposure to Agent Orange sprayed at CFB Gagetown. An individual’s mere presence
in Gagetown during the testing of Agent Orange does not constitute exposure
that would place an individual at an increased risk for long-term, irreversible
health effects.
[41]
Section
39 of the Act “does not relieve the pension applicant of the burden of
providing on a balance of probabilities the facts required to establish the
entitlement to a pension” (Wannamaker, above, at para 5). Nor does it
imply that such evidence must be automatically accepted as an Applicant’s claim
must be supported by evidence that is credible and reasonable (Tonner v
Canada (Minister of Veterans Affairs), [1995] FCJ No 550 [Tonner]).
[42]
The
Respondent submits that while the VRAB is required to draw every reasonable
inference in favour of the Applicant, the facts inferred must be grounded on
“more than a mere possibility” (Elliot v Canada (Attorney General), 2003
FCA 298 at para 46). The Applicant failed to prove on a balance of
probabilities that he suffers from a disability resulting from his military
service.
Analysis
[43]
This
judicial review is of the VRAB’s Second Reconsideration Decision refusing to
reconsider, on the basis of new evidence, the August 11, 2009 Entitlement
Appeal Decision. The Second Reconsideration Decision is the last in a chain of
five decisions concerning the pension benefit entitlement sought by the
Applicant. Therefore, as a preliminary matter, it is necessary for the Court
to determine to what extent it can look to the previous decisions in assessing
the decision under review.
[44]
In
Furlong, above, at para 17, Justice Blanchard stated that the line of
demarcation between a decision refusing to reconsider and an earlier decision
is unclear because “a reconsideration, by its very nature, requires some
hearkening back to the substance of the earlier decision”. He quotes Justice
Teitelbaum in Mackay, above, who explained this as follows:
[17] […]
[…] Effectively in a reconsideration, the VRAB is
required to look backwards to the substance of the earlier decision. In a
similar vein, in a judicial review application concerning the VRAB’s failure to
reconsider an earlier decision, the Court must equally look backwards to the
earlier decision. Thus, the Court in the case at bar cannot decide in a
vacuum if the VRAB on June 21, 1996 properly exercised its discretion. The
Court must also pay some attention to the earlier decision of the VAB dated
January 19, 1994 because it was at issue in the VRAB reconsideration
proceeding.
However, I wish to emphasise that it is not for the
Court in the current proceeding to conduct a full-fledged judicial review of
the January 19, 1994 decision of the VAB. The validity of the earlier decision
of January 19, 1994 cannot properly be challenged in a judicial review of the
VRAB’s June 21, 1996 reconsideration decision. The Court does not have
jurisdiction to overturn the earlier decision. By its very nature, a
reconsideration under the auspices of the Veterans Review and Appeal Board Act
is backward looking but there cannot be a point of infinite regression. […]
[Emphasis in original]
[45]
Justice
Blanchard in Furlong, above accepted this analysis and concluded, that the
Court could not disregard the decisions made prior to the appeal panel’s last
decision. Although the Court did not have jurisdiction to set aside these
earlier decisions because they were not the subject of the judicial review
before it, the Court must nevertheless consider them retrospectively to better
understand the basis of the decision that is under judicial review.
[46]
Mackay,
above, was also followed in Caswell v Canada (Attorney General), [2004]
FCJ No 1655 [Caswell] at para 20 which concluded:
[20] Therefore in order for me to assess whether the Board properly exercised
its jurisdiction pursuant to s. 111 of the Act,
I must also look to the earlier decision of the Panel to determine whether any
errors of law or fact were made in its assessment of whether the evidence
submitted by Mr. Caswell in support of his request for reconsideration was in
fact new evidence. In order to determine whether the Board properly assessed
the Panel's reasons, the Board has to look at the Panel's reasons. It appears
to me that the Court, as the reviewing body of the Board's decision, has to be
in the same position as was the Board when it reviewed the Panel's decision, and it
cannot do so without also looking at the Panel's reasons. By not doing so, the
Court would not have the full understanding of the situation and would not be
in a position to make a determination on the merits of the Board's decision.
[47]
Therefore,
in this case, the Court must look to the First Reconsideration Decision and
Entitlement Appeal Decision to understand the basis of the Second
Reconsideration Decision and to determine whether the VRAB made any errors of
law or fact in assessing whether the evidence submitted by the Applicant in
support of his request for a second reconsideration was, in fact, new evidence.
[48]
On
a second preliminary point, it is trite law that in a judicial review
application, the Court can only consider the material that was before the panel
with respect to the decision under review (Ochapowace First Nation v Canada
(Attorney General), 2007 FC 920 at para 9; Ray v Canada, 2003 FCA 317 at paras 5 to 7). Therefore,
and as I advised the Applicant at the hearing, the Court cannot consider the
additional documents that he filed but which were not before the VRAB, being
his own affidavit dated August 8, 2012 and the affidavit of Mr. David Tucker,
CD SGT. (R) dated October 12, 2012.
[49]
As
for the merits of this application, pursuant to section 31 of the VRAB Act, the
Entitlement Appeal Decision is final and binding. However, the VRAB may
reconsider its decision on its own motion if it determines that there was an
error of fact and/or law, or, 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.
[50]
In
his Application for Reconsideration pertaining to the second reconsideration,
the Applicant indicated that the basis for his application was that there was
new evidence. He did not allege an error of fact or law. The Applicant
submitted that the VRAB had continued to deny a pension entitlement on the
basis that it had not been presented with evidence of his direct exposure to
Agent Orange and that the new evidence, the Gravelle and Harkes statement,
would substantiate his position.
[51]
Given
the basis for the request for reconsideration, the VRAB was correct to apply the
four part test for new evidence as described in Mackay, above. This
Court must review the VRAB’s application of that test.
[52]
As
noted above, the third prong of the test for admissibility of new evidence requires
the proposed new evidence to be credible in the sense that it is reasonably
capable of belief. The VRAB determined that the proposed new evidence, the
Gravelle and Harkes statements, both described above, were not credible. In my
view, based on the record before me and keeping in mind the context provided by
sections 3 and 39 of the VRAB Act, the VRAB erred in finding that the proposed
new evidence was not credible because of an apparent contradiction with the
“Furlong Report”.
[53]
Essentially,
the position of the VRAB has been, throughout the Applicant’s pension
entitlement review and appeal process, that the “Furlong Report” contradicts
any evidence of the Applicant’s exposure to Agent Orange. According to the
VRAB, the Furlong Report stated that the sprayed areas were not accessible for
regular training and only those who were directly exposed to Agent Orange may
have been at a higher risk. On this basis, the VRAB continued to reject any
evidence the Applicant submitted to indicate that he was exposed to Agent
Orange.
[54]
However,
I am unable to locate a document entitled the “Furlong Report” in the record
before me which was, presumably, also the record before the VRAB. The record
did contain a web page print out of National Defence and the Canadian Forces entitled
“Project Summary Task 2A: The History and Science of Herbicide Use at CFB
Gagetown from 1952 to Present”; a “Project Summary Environmental Site Assessment
of CFB Gagetown, NB: Task 2B”; a “Plain Language Summary, Fact Finding, Task 3A-1,
Tier 1: Human Health Risk Assessment for Historical Exposures to Contaminants
Associated with 1966-67 U.S. Defoliant Testing and CFB Gagetown”; a “Plain
Language Summary, Fact Finding Task 3A-1, Tier 2: Toxicological Risk
Assessment Pertaining to Potential Occupational and Related Exposures
Associated with Herbicide Spraying Operations at CFB Gagetown – Tier 2 –
Manufacturing Impurities (Contaminants)” (collectively ER – M2 of the
Entitlement Review Decision); a “Plain Language Summary Fact Finding Task 3A-2:
Human Health Risk Assessment for Current Exposures to Dioxins at CFB Gagetown”;
and, a “Report Summary, Fact Finding Task 3A-1, Tier 3” (collectively
ER-M3 of the Entitlement Review Decision).
[55]
I
am unable to find any specific reference in those documents, or elsewhere in
the record, for the proposition relied on by the VRAB that the “Furlong Report”
found that the areas sprayed with Agent Orange were not accessible for regular
training.
[56]
The
Task 3A-1, Tier 1 report referenced in the Entitlement Review Decision states
that it focuses on the contaminants in the products tested by the US military in 1966 and 1967. Further, that the US Department of the Army tested military defoliant
chemicals on two densely forested areas of land at CFB Gagetown described in
detail in Fact Finding Task 2A. As found in the record before me, Task 2A states
only that in addition to the yearly herbicide control program in place at CFB
Gagetown, “in 1966, 1967 and 1990, small tracts of land within the ranges
and training areas were used for herbicide trials” (emphasis added). In
1966 and 1967, the Forestry Branch of the Canadian Forest Service conducted
trials of certain products and in the same years but in different areas, the US
Department of the Army conducted separate trials including testing of Agent
Orange, Agent Purple and Agent White.
[57]
The
focus of Task 3A-1, Tier 1, as stated in that document, was on the contaminants
in the products tested by the US military in 1966 and 1967, dioxins and
hexachlorobenzene. Risks were assessed for mixers/loaders, applicators,
flaggers, post-application scouts and on-site military trainees. The latter
defined as “the military personnel who may have trained close to the
sprayed areas, during, and after and at the time of spraying” (emphasis added).
Despite this definition, section 5.0, titled “Evaluation of Exposure” states that
“Military trainees who trained in the area after the spraying were
assumed to have longer term exposures” (emphasis added). This would also appear
to suggest, contrary to the VRAB’s finding, that sprayed areas were in fact accessible
by military personnel for training.
[58]
With
respect to dioxins, in the context of risks from exposures due to “normal activities”
the Task 3A-1, Tier 1 report states:
▪
The
short-term exposures estimated for the people who were directly involved with the
chemical testing (mixer/loaders, pilots, applicators, scouts) do not suggest
they would have been at increased risk for long-term, irreversible health
affects…
▪
The
longer-term exposures estimated for military trainees who trained in or near
either the 1966 or 1967 spray areas following the spray applications were
low enough that no increased risk of dioxin related illness is predicted.
(Emphasis added)
[59]
As
to risks from exposure due to “accidents”:
▪
Accidents,
such as spills or other incidents, may have resulted in higher exposure for
some people. These individuals could have had elevated dioxin body burdens
following the accident event.
▪
Although
the occurrence of accidents during the 1966 and 1967 spray periods remains uncertain,
and elevated body burdens do not necessarily mean that individuals would have
experienced adverse health effects, further investigation such as body burdens
testing or an epidemiology study may be warranted.
[60]
Again,
this would at least seem to suggest that military personnel could have trained
in or near the 1966 and 1967 Agent Orange spray areas and, therefore, been
exposed to the contaminants.
[61]
Because,
Fact Finding Task 3A-1, Tier 2 focuses on the contaminants in all herbicides
sprayed at CFB Gagetown between 1952 and 2004 (manufacturing impurities) and
Task 3A-1, Tier 3 focuses on the active ingredients in all herbicides sprayed
at CFB Gagetown between 1952 and the present, it is presumably Fact Finding
Task 3A-1, Tier 1, referenced above, that was relevant to the VRAB decisions
pertaining to the Applicant.
[62]
Counsel
for the Respondent was unable to refer me to a reference within the record
stating that sprayed areas were not accessible for regular training. Counsel
did refer me to the Task 3A-Tier 1 report definition of “military trainees”,
referenced above, and suggested that it may be inferred from this that military
trainees did not have access to sprayed sites, I do not agree.
[63]
Based
on the record before me, the evidence does not support the VRAB assertion that
the “Furlong Report” determined that Agent Orange was never sprayed in training
areas, but only in remote areas where no training was held. Accordingly, the VRAB’s
finding that the new evidence was not credible, and therefore not admissible,
because as it was contradicted by the Furlong Report, is unreasonable. Further,
the excluded evidence is relevant and is such that, if believed, it could
reasonably, when taken with the other evidence adduced by the Applicant, be
expected to have affected the result.
[64]
Accordingly,
the VRAB erred in refusing to admit the new evidence and in declining to
reconsider the Entitlement Appeal Decision.
[65]
The
application is granted, the Second Reconsideration Decision is set aside and
the matter is remitted back to a differently constituted panel of the VRAB for
redetermination. The Applicant shall have his costs (Yu v Canada (Attorney General), 2011 FCA 42) in the amount of $500.00.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is granted. The
decision of the VRAB dated July 9, 2012 is set aside and
the matter is remitted to a differently constituted panel of the VRAB for
re-determination. The Applicant shall have his costs in the amount of $500.00.
“Cecily Y. Strickland”
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