Docket: T-407-16
Citation:
2016 FC 1246
Ottawa, Ontario, November 9, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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PHILIP M. RYAN
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to subs. 18.1(3) of the Federal Courts Act, RCS 1985, c F-27,
of a January 13, 2016 decision [Decision] of the Veterans Review and Appeal
Board [the Board]. The Board upheld the Entitlement Review Panel’s 2011
decision, which denied the Applicant’s disability award request based on his
spondylosis lumbar spine [Spondylosis]. After considering both oral and
written submissions, I find the Decision to be reasonable, and accordingly
dismiss this judicial review.
II.
Background
[2]
The Applicant dutifully served Canada as an
artilleryman in the Canadian Forces from 1975 to 1979 [Service]. The
Applicant’s Service was physically demanding as it included physical training,
parachute jumping, and artillery training.
[3]
During his Service, the Applicant suffered four
injuries, for which he is currently receiving disability award entitlements:
disc disease, right immersion foot injury, left immersion foot injury, and
tinnitus. His claim compensation for Spondylosis was, however, refused in the
2011 and 2016 decisions noted above.
[4]
The Applicant incurred these injuries as a
result of two accidents.
[5]
First, on September 10, 1976, the Applicant was
injured during a low-level parachute jump when his feet and legs became
entangled in his parachute risers, causing him to hit the ground head and
shoulders first.
[6]
Second, on January 28, 1978, the Applicant was
injured when assisting to push a mortar toboggan up an embankment, which then
slid back downward, pushing the Applicant against the snow with his body bent
backwards, and coming to a stop on top of him. The Applicant also sustained
severe frostbite on both legs and feet.
[7]
The Applicant did not report any back pain
during his medical examination when released from the Canadian Forces in 1979,
but indicated other injuries, including frostbitten feet.
[8]
After leaving the Canadian Forces, the Applicant
worked for Canada Post during which time he made four Workers’ Compensation
Board back injury claims related to his employment:
(1) In 1982, the Applicant injured his back when he fell from a height
of four feet onto a rubber conveyor belt;
(2) In 1983, the Applicant lifted a mail bag weighing seventy pounds and
injured his back;
(3) In 1988, the Applicant attempted to prevent six mail boxes from falling
off a forklift palate and injured his lower back;
(4) In 1988, the Applicant injured his back in a motor vehicle accident.
[9]
The Applicant’s Spondylosis was first diagnosed
in 1992.
[10]
In 2010, the Applicant applied for a disability
entitlement for Spondylosis per s 45 of the Canadian Forces Members and
Veterans Re-establishment and Compensation Act, SC 2005, c 21 [the Act]. He
alleged that this injury was attributable to the 1976 parachute and 1978
toboggan accidents described above, in addition to over one hundred parachute
jump exercises carried out during his Service.
[11]
On February 24, 2011, a Veterans Affairs Canada
Official denied the application [VAC Decision] on the basis that the
Applicant’s Spondylosis neither arose out of, nor was directly connected to his
Service.
[12]
The Applicant appealed. On July 5, 2011, the
Entitlement Review Panel affirmed the VAC Decision denying the Applicant
entitlement to a disability award. The Applicant then appealed the Entitlement
Review Panel’s decision to the Board, which was also dismissed. That appeal is
the subject of this judicial review.
III.
Decision Under Review
[13]
The Board considered whether the Applicant’s
Spondylosis arose out of or was directly connected with his Service (per s 45
of the Act), providing a detailed review of the Applicant’s evidence and
arguments. The Board also noted that it applied the statutory requirements
under s 39 of the Veterans Review and Appeal Board Act, SC 1995, c 18
[VRAB Act], which requires it to draw reasonable inferences and resolve any evidentiary
weight issues in favour of the Applicant, as well as accept any uncontradicted
evidence from the Applicant where credible.
[14]
The Board upheld the 2011 Entitlement Review
Panel decision, denying a disability award entitlement for the Applicant’s Spondylosis
lumbar spine due to a lack of objective, contemporaneous medical evidence
needed to substantiate sustained significant specific trauma to his back,
allegedly causing Spondylosis. The Board also found that the 1976 parachuting
incident led to the Applicant’s cervical spine injury, which resulted in
compensation for cervical disc disease.
[15]
Further, the Board found the following:
Although he [the Applicant] may have hurt
his back as a result of the toboggan incident, there is simply no objective
contemporaneous medical evidence to ascertain that he sustained a back injury
during the toboggan incident. As well, there are no complaints of back injury
in the Applicant’s service medical file from 1975 to 1979 to such an extent as
to cause spondylosis of the lumbar spine and absolutely no complaints of back
pain in his medical examination at release in 1979 (Certified Tribunal Record
at 129 [CTR]).
[16]
The Board considered the Applicant’s four
Workers’ Compensation Board back injury claims that occurred during his
employment with Canada Post, which all transpired after his discharge from the
Canadian Forces. The Board found that the medical reports relied on by the
Applicant did not exclude these four separate back injuries as possible causes
of the Applicant’s current condition. The Board also noted that the four
post-discharge Workers’ Compensation claims resulted in significant time off,
whereas the 1976 parachute and 1978 toboggan injuries did not.
[17]
The Board further noted that the earliest
diagnosis of the Applicant’s condition was in 1992, well over a decade after
his Service, and subsequent to the various Canada Post-related injuries.
[18]
Finally, the Board discounted the medical
opinions contained in the medical reports tendered by the Applicant as not
credible for entitlement purposes, as they did not persuasively establish that
the two Service-related incidents led to the Spondylosis, particularly in light
of the significant post-discharge injuries.
IV.
Preliminary Issues
[19]
Two preliminary issues were addressed at the
hearing, as follows.
A.
Should this Court exercise its discretion to
allow the late filing of the Applicant`s judicial review application?
[20]
The Applicant filed this judicial review
application six days past the thirty-day deadline set by subs. 18.1(2) of the Federal
Courts Act.
[21]
I have considered four questions in exercising
my discretion to extend the thirty-day deadline, per Exeter v Canada
(Attorney General), 2011 FCA 253 at para 4:
(1) Does the moving party have a continuing intention to pursue an
application for judicial review?
(2) Has the responding party suffered any prejudice as a result of the
moving party's delay?
(3) Has the moving party offered a reasonable explanation for the delay?
(4) Does the intended application for judicial review have any prospect
of success?
[22]
As this judicial review application was only
delayed by six days, it was presumed – particularly given the length of time
that the Applicant patiently awaited the outcome of his appeal before the Board
– that he had a strong and continuing intention to pursue this matter. The
Respondent suffered no prejudice due to the short delay. As for the third and
fourth questions, both were answered in the affirmative as the Applicant
represented himself and put forward a strong case, given the constraints and
passage of time.
[23]
In view of the short delay, and the Respondent’s
position, the time extension is granted.
B.
Should this Court strike paragraphs 4-77 of the
Applicant’s Affidavit?
[24]
The Respondent objected to this large portion of
the Applicant’s Affidavit, submitting that this Court should solely rely on
material before the Board, with additional evidence only being admissible when
addressing questions of procedural fairness or jurisdiction (Peles v Canada
(Attorney General), 2013 FC 294 at paras 11-13).
[25]
As a general rule, the evidentiary record before
this Court on judicial review is restricted to that which was before the
administrative decision-maker (Delios v Canada (Attorney General), 2015
FCA 117 at para 42; Assn of Universities & Colleges of Canada v Canadian
Copyright Licensing Agency, 2012 FCA 22 at para 19 [Access Copyright]).
Any exception to this rule must (i) not usurp the administrative
decision-maker’s role as a merits-decider and (ii) further the reviewing role
of this Court (Bell Canada v 7262591 Canada Ltd, 2016 FCA 123 at para
20). As explained by the Court of Appeal in Access Copyright at para
20, such exceptions include affidavits that:
(1) provide general background that might assist the Court in
understanding relevant issues;
(2) bring procedural defects to the attention of the Court (such defects
are limited to those that cannot be found in the evidentiary record before the
administrative decision-maker); and
(3) highlight a complete lack of evidence before the administrative
decision-maker when making a particular finding.
[26]
I agree that in this case much of the Affidavit
evidence was not before the decision-makers below, and cannot be considered
given that it goes to the merits of the matter before the Board. The Affidavit
evidence does not raise matters that fall into any of the three exceptions
identified above. To consider such evidence would offend the demarcation of
roles between this Court as a judicial review court, and the Board as a
fact-finder and merits-decider.
[27]
However, even if all of the evidence in the
Affidavit is considered, that still does not change any of the following
analysis regarding the reasonability of the Decision.
V.
Issues and Standard of Review
[28]
The sole issue before this Court is whether the
Board committed a reviewable error in finding that the Applicant did not
qualify for a s 45 disability award entitlement. The Applicant raises four
issues, namely did the Board:
- Fail to
consider the Applicant’s evidence that he injured his back in the 1976
parachuting and 1978 toboggan incidents?
- Err in
concluding that the Applicant’s Workers’ Compensation injuries most likely
caused his Spondylosis?
- Err in
ignoring its Entitlement Eligibility Guidelines?
- Err in
rejecting uncontradicted medical evidence?
[29]
The standard of reasonableness applies to
decisions of the Board such as the one under review, which was based on factual
findings and questions of mixed fact and law (Ouellet v Canada (Attorney
General), 2016 FC 608 at paras 23-24). To be reasonable, the Board’s
decision must fall “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(New Brunswick (Board of Management) v Dunsmuir, 2008 SCC 9 at para 47).
While there might well be more than one reasonable outcome, “as long as the process and the outcome fit comfortably with
the principles of justification, transparency and intelligibility, it is not
open to this Court to substitute its own view of a preferable outcome” (Khosa
v Canada (Minister of Citizenship & Immigration), 2009 SCC 12 at para
59).
VI.
Analysis
[30]
Section 45 of the Act requires the Minister to
determine the cause of the disability for which compensation is sought. If the
Minister's determination is appealed, as it was in this case, the Board is then
required make its own finding on the cause of the Applicant’s disability (Newman
v Canada (Attorney General), 2014 FCA 218 at para 14 [Newman]).
[31]
The burden of proof lies on the Applicant, who
must submit sufficient credible evidence establishing, on a balance of
probabilities, a causal link between his injury and the incidents that
transpired during his Service. In other words, the injury must be sufficiently
proximate to the Applicant’s Service to justify a disability award: it must
arise out of, or be directly connected with, the Applicant’s service in the
Canadian Forces (Ben-Tahir v Canada (Attorney General), 2015 FC 881 at
para 62 [Ben-Tahir]).
[32]
In proving the causal link between his Service
and his injury, the Applicant benefits from the various statutory presumptions
provided by s 39 of the VRAB Act, discussed above.
[33]
Subsection 50(f) of the Canadian Forces
Members and Veterans Re-establishment and Compensation Regulations,
SOR/2006-50 [Regulations] provides that, in the absence of contrary evidence, a
veteran has established that an injury or disease is service-related if s/he
demonstrates that it was incurred in the course of any military operation,
training or administration.
[34]
Finally, in light of the nation’s great moral
debt to those who have served this country (MacKay v Canada (Attorney
General), [1997] FCJ No 495 at paras
20-21 (FCTD)), s 3 of the VRAB Act mandates a liberal and purposive
approach by the Board regarding claims for disability awards for veterans.
[35]
However, while the legislative scheme provides
various mechanisms that favour the claimant in entitlement claims and appeals,
it does not provide a carte blanche to the Applicant to the effect that any
submission must automatically be accepted. Rather, evidence presented must be
credible and reasonable (Weare v Canada (Attorney General), [1998] FCJ
No 1145 at para 19 (FCTD)). Evidence is credible when “it
is plausible, reliable and logically capable of proving the fact it is intended
to prove” (Wannamaker v Canada (Attorney General), 2007 FCA 126
at para 6).
A.
Did the Board fail to consider the Applicant’s
evidence that he injured his back in the 1976 parachuting and 1978 toboggan
incidents?
[36]
The Applicant alleges that the Board disregarded
(i) his account of how he injured his back in the 1976 parachuting and 1978
toboggan incidents, (ii) evidence provided by his work colleagues, and (iii)
his Statement contained in his Application for Disability Benefits signed on
October 5, 2010.
[37]
I do not find that the Board overlooked
evidence. Rather, it simply found that there was an absence of contemporaneous
evidence regarding the back injury that gave rise to the Spondylosis. I
further find that the Board was aware of its obligations and evidentiary
presumptions in favour of the Applicant under the relevant legislation.
[38]
The Board’s reasons for its decision establish
that the Advocate for the Applicant referred to the Applicant’s Statement
contained in his 2010 Application for Disability Benefits, which describes in
detail the 1976 parachuting and 1978 toboggan incidents. The Board also states
that it considered the Applicant’s Statement, as well as the other evidence on
the record, finding that it supported the conclusion that the Spondylosis
neither arose out of, nor was directly connected to his Service, but rather to
the post-Service events that occurred during his employment with Canada Post.
B.
Did the Board err in concluding that the
Applicant’s Workers’ Compensation injuries were the most likely cause of his
Spondylosis?
[39]
In Cole v Canada (Attorney General), 2015
FCA 119 at para 97, the Court of Appeal held in a related (pensions) matter
that the causality must be “directly related” to
service:
Thus, an applicant’s military service will
provide a sufficient causal connection with his or her claimed condition, such
that the claimed condition is “directly connected with” such military service,
where he or she establishes that his or her military service was a significant
factor in bringing about that claimed condition.
[40]
Here, I do not agree with the Applicant that the
Board erred by improperly relying on certain evidence and concluding that the
Applicant’s back injuries at Canada Post were the most likely cause of his
Spondylosis, as opposed to military-related incidents. The Applicant’s
evidence supporting his claim was before the Board, and clearly considered, but
ultimately rejected. In its Decision, the Board acknowledged that the
Applicant “may have hurt his back as a result of the
toboggan incident” but noted the lack of any corroborative
contemporaneous medical evidence. Even with the benefit of s 39 of the VRAB
Act I find that the Board was nonetheless reasonable in finding that, in light
of the intervening evidence from the Canada Post years and the four
back-related claims arising therefrom, the Applicant’s evidence failed to
establish a causal connection between his Spondylosis and the Service-related
incidents.
[41]
The Board specifically noted that the first
indication of his Spondylosis occurred years after his release from the
Canadian Forces. Furthermore, there was little time taken off work for the two
accidents while in the Forces, and no evidence of any follow-up treatment.
During his Service, there was only one brief notation about lower back pain,
but he was considered fit for duty. Had there not been compelling evidence to
the contrary, then I would agree with the Applicant that he could have
benefitted from the presumption of subs. 50(f) of the Regulations.
[42]
In short, there were several intervening
incidents during the course of the Applicant’s Canada Post employment,
including a car accident, which resulted in significant time off work and
treatment, unlike the injuries resulting from the 1976 parachute and 1978
toboggan accidents with the Forces. Indeed, the earliest (1992) diagnosis of
the Applicant’s condition occurred years after his discharge (1979) and
subsequent to all four Canada Post injuries, the last of which took place in
1988.
[43]
In making its findings – all reasonable and
available based on the evidence before them – the Board reasonably rebutted the
subs. 50(f) presumption.
C.
Did the Board err in ignoring its own
Entitlement Eligibility Guidelines?
[44]
I do not agree with the Applicant’s argument
that the Board erred in ignoring its own Entitlement Eligibility Guidelines
[Guidelines]. These Guidelines are neither mandatory nor binding on
adjudicators, although in Manuge v Canada (Attorney General), 2015 FC
540 at para 13, Justice Barnes agreed that they:
[…] represent an available diagnostic
shortcut. However, the Guidelines explicitly state they are "not intended
to be a textbook of medicine or of causation" nor are they "mandatory
or binding" on adjudicators. Policy guidelines are, of course, just that;
they do not fetter the discretion of a decision-maker.
[45]
Departure from the Guidelines can be indicative
of an unreasonable decision. However, the lack of consideration of (or
reliance) on the Guidelines does not itself constitute an error. The Board
provided its own assessment of causation and proximate cause of the condition –
conclusions which were not in conflict with the Guidelines.
D.
Did the Board err in rejecting uncontradicted
medical evidence?
[46]
I cannot accept the last of the Applicant’s
arguments – that the Board erred by rejecting uncontradicted medical evidence.
The Applicant states that the lack of contemporaneous medical evidence is
explained by the Canadian Forces’ culture in his years of Service which
dissuaded members from seeking medical help. As explained by Justice Mosley in
Powell v Canada (Attorney General), 2005 FC 433 at para 33 [Powell],
seeking such help could be perceived as complaining:
[The Applicant’s] explanation for the lack
of documentation - that he did not want to be perceived to be a complainer -
was apparently given no credit by the Board as they made no mention of it in
their reasons. On its face, the explanation would seem to be reasonable. One
does not have to be steeped in military culture to understand that proud
members of the armed forces do not wish to be perceived as complainers or
malingerers.
[47]
However, the Board does not err when it relies
on the lack of objective, contemporaneous medical evidence to justify its
decision (Stevenson v Canada (Attorney General), 2014 FC 1130 at para
47). And unlike in Powell, the Board in this case considered the
Applicant’s reasons for not reporting an injury to his lower back (in stating
that it had taken into consideration the Advocate’s submissions).
[48]
As for the post-military service period, the
Applicant contends previous doctors failed to properly diagnose the
Spondylosis.
[49]
I find nothing unreasonable about the Board’s
conclusions in this regard, based on its explanation of why the Applicant’s
medical evidence lacked credibility in light of the intervening injuries. While
taking no issue with the doctors’ qualifications, the Board wrote that:
[…] these medical opinions do not address or
rule out other significant potential factors, such as the four Workers
Compensation back injury claims sustained by the Appellant in the
post-discharge period while employed at Canada [P]ost. These injuries and
claims were not addressed in the medical opinions and were not ruled out as
possible factors in the development of the claimed condition (CTR at 130).
[50]
Indeed, similar findings based on comparable
circumstances have been endorsed by this Court in the past. In Lunn v
Canada (Veterans Affairs), 2010 FC 1229 at paras 58-65, Justice Russell
held that the Board can properly weigh against establishing a causal link
between the injury and the Applicant’s Service, when a degenerative disease has
gone undetected for many years. There, like in the present case, no diagnosis
occurred until thirteen years after service. Justice Russell also held that the
Board can rely on medical evidence upon discharge to contradict subsequent
medical evidence, when there was a lack of evidence of causal relation.
[51]
It is not this Court’s role to reweigh the
medical evidence or to remake the decision, where the evidence was
comprehensively considered by the Board, and its reasons were reasonable (Ben-Tahir
at paras 41-42).
VII.
Conclusion
[52]
In sum, the Board offered justified,
intelligible, and transparent reasons to support its conclusion that the
Applicant’s Spondylosis was not caused by his injuries during Service. While
it may have been possible to arrive at a different conclusion, the role of this
Court on judicial review is not to substitute that of the Board’s with its own
view of a possible or preferable outcome. The Decision was reasonable and the
Application is therefore dismissed.
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