Date: 20110908
Docket: A-480-10
Citation: 2011 FCA 247
CORAM: SHARLOW
J.A.
PELLETIER J.A.
STRATAS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
ROGER LADOUCEUR
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
The
Attorney General of Canada appeals from a judgment of the Federal Court (per
Justice Hughes): 2010 FC 1148. The Federal Court quashed a decision dated July
9, 2009 of the Veterans Review and Appeal Board.
A. Background
[2]
The
respondent, Mr. Ladouceur, suffered a severe injury to his ankle during his military
service in Cyprus and is
entitled to a disability pension under the Pension Act, R.S.C. 1985, c.
P-6. The issue before the Board concerned the amount of his disability pension.
[3]
Subsection
35(1) of the Pension Act provides that the amount is to be determined
“in accordance with the assessment of the extent of [his] disability.”
Subsection 35(2) provides that that assessment is to be “based on the
instructions and a table of disabilities to be made by the Minister.”
[4]
The
Minister has made a table of disabilities with instructions. The main issue
before the Board was how this should be applied to Mr. Ladouceur’s case.
Specifically, the Board had to consider which of two tables, Table 17.9 and
Table 17.12, should apply to Mr. Ladouceur’s disability. Table 17.9 gives Mr.
Ladouceur a higher disability pension than Table 17.12 does.
[5]
The
Board decided that Table 17.12 applied. Mr. Ladouceur brought an application
for judicial review of that decision in the Federal Court and succeeded.
[6]
The
Federal Court quashed the Board’s decision on three grounds: the Board did not
select the most appropriate table, the Board improperly received and relied
upon advice from a medical advisor, and the Board relied on certain undisclosed
decisions. The Attorney General appeals on all three grounds.
B. Analysis
(1) The
reasonableness of the Board’s choice of Table 17.12
[7] The parties agree in this Court
that the standard of review of the Board’s choice of Table 17.12 is
reasonableness.
[8] It is not clear from the Federal
Court judge’s reasons whether he adopted correctness or reasonableness as the
appropriate standard of review. However, he did analyze the Board’s choice of
table in a way that approached correctness review. He embarked upon his own
analysis of the Minister’s table of disabilities and instructions and arrived
at his own view that Table 17.9 was “the more appropriate table” (at paragraph
14). He did not engage in the methodology of reasonableness review required
under Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 54, [2008] 1
S.C.R. 190, which is to focus upon whether the outcome reached by the Board, as
explained in its reasons, fell within the range of what was defensible on the
facts and the law. In the end, he required the Board to redetermine the matter
“mindful of [his] reasons,” which included his own view of which table was more
appropriate.
[9] In
choosing which table to apply, the Board had to make factual findings
concerning Mr. Ladouceur’s physical and medical condition. These are matters
calling for the application of the deferential standard of review of
reasonableness: Beauchene v. Canada (AG), 2010 FC 980
at paragraph 21; Gilbert v. Canada (AG), 2010 FC 1300. Then it had to
interpret the tables and accompanying instructions – legislation closely
related to this Board’s home statute – and apply its interpretation to its
factual findings. For this, reasonableness is also the standard of review: Dunsmuir
v. New
Brunswick,
2008 SCC 9 at paragraph 54, [2008] 1 S.C.R. 190. Therefore, I agree with the
parties’ joint view that reasonableness is the standard of review to be adopted
in this case.
[10] Under this deferential standard
of review, Mr. Ladouceur must convince this Court that the Board’s choice of
Table 17.12 is unreasonable based on the evidence before the Board, the wording
of the Tables and the instructions given by the Minister. In other words, he
must show that the Board reached an outcome that was outside of the range of
what was defensible on the facts and the law. See Dunsmuir, supra,
at paragraph 47.
[11] In my view, Mr. Ladouceur has not
met that burden. The Board’s choice of Table 17.12 was reasonable. The Board
found that Mr. Ladouceur suffered from post traumatic arthritis in his left
ankle, a matter that, in its view, fell within the plain wording of Table
17.12. The Board, noting an example in the instructions supplied for Table
17.9, observed that Table 17.9 “is more applicable for a neurological disorder
that affects the lower limbs as a whole.” In its view, other tables, such as
Table 17.12, are to be “used to assess the disability resulting from a specific
part of the body,” such as an ankle. The Board observed that there is no
language in the instructions that allows the Board to choose a Table that would
give a claimant a more favourable disability pension. All of these
considerations supplied the Board with a defensible basis for its decision that
Table 17.12 applied.
(2) The Board’s
receipt of and reliance on advice from a medical advisor
[12] In reaching its conclusion, the
Board took into account advice from a medical advisor that:
Table 17.12 was to be used.
This is seen from the following excerpt from the Board’s decision:
The Board was advised by the
Medical Advisor that Table 17.12 – Loss of Function – Lower Limb – Ankle – is
the appropriate Table to use for the entitled condition Post Traumatic
Arthritis Left Ankle.
[13] The medical advisor’s identity is
unknown. Whether the advice was given in writing or orally is unknown. The
circumstances that prompted the medical advisor’s advice are unknown. Whether
the advisor was given any information or documents is unknown. If the advisor
had been given information or documents, exactly what the advisor was given is
unknown.
[14] Only the Board received the medical
advisor’s advice. If the advice were written, it should have appeared in the
record of the Board that was filed with the Federal Court and, in this appeal,
to our Court. If oral, it should have been documented and that document should
have appeared in the record.
[15] During the course of the
proceedings leading up to the Board’s decision, Mr. Ladouceur did not receive
the medical advisor’s advice. He never had an opportunity to test, challenge or
rebut it.
[16] Leaving to one side the question
of whether the choice of the appropriate table is a proper subject for medical
advice or is an ultimate issue on which an expert should not opine, I agree
with the Federal Court judge that the Board’s receipt and reliance on this
advice was a reviewable error. On this ground alone, I agree with him that the
Board’s decision must be quashed.
[17] Like the Federal Court judge, I
see no express or implied authority for the Board to receive and consider the
medical advisor’s advice in the way that it did. Further, the manner in which
it received the medical advisor’s opinion was procedurally unfair.
[18] The Veterans Review and Appeal
Board Act, S.C. 1995, c. 18 (“VRAB”) provides guidance on how the
Board may receive and take into account evidence, such as the medical advisor’s
advice.
[19] Under section 38(1) of VRAB, the
Board may obtain independent medical advice and may require that a claimant
undergo a medical examination. Before accepting as evidence any advice or
report concerning the examination, the claimant has the right under subsection
38(2) to make submissions about its admissibility. These provisions do not
apply here since Mr. Ladouceur was not examined by an independent medical
examiner. But they do suggest that obligations of procedural fairness arose in
this case. In this case, the medical advisor advised the Board as to which
table should apply. We can only assume that in arriving at this advice, the
advisor must have examined and assessed the medical and other evidence. This is
a task akin to that under section 38(1), a task that requires strict observance
of procedural fairness to the claimant.
[20] Another indicator of the level of
procedural fairness that should apply is section 14 of VRAB. Under section 14,
the Board has been given the powers of a Commissioner under Part I of the Inquiries
Act, R.S.C. 1985, c. I-11. Using these powers, the Board can summon
witnesses before it and require them to attend, give evidence and produce
documents: see sections 4 and 5 of the Inquiries Act. Opportunities for
a claimant to cross-examine or rebut that evidence would then follow.
[21] Finally, I note that the level of
procedural fairness to be afforded in cases such as this should be quite high
given the importance of the matter to the claimant: Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph
25.
[22] By receiving the medical
advisor’s advice without disclosure to Mr. Ladouceur and without giving him an
opportunity to test, challenge or rebut it, the Board worked a fundamental
unfairness to Mr. Ladouceur. Had Mr. Ladouceur been afforded that opportunity,
he might have been able to convince the Board that his disability falls under
Table 17.9 rather than Table 17.12, or, alternatively, he might have been able to
convince this Court that the Board’s choice of Table 17.12 was unreasonable in
light of all of the evidence. In light of this, I do not accept the Attorney
General’s submission that if there were a procedural error in this case, it was
minor and should be disregarded.
[23] In light of the Board’s improper
receipt of the medical advisor’s evidence and the significant impact that that
error might have had on Mr. Ladouceur, its decision to choose Table 17.12
rather than Table 17.9 cannot stand.
(3) The
Board’s reliance on certain undisclosed decisions
[24] In
support of its decision to choose Table 17.12 rather than Table 17.9, the Board
offered an additional reason. It stated:
In total fairness with other Appellants
with the same type of disability, the Board considered in order to have fair
assessments across Canada, the same Table must be used.
[sic]
Mr. Ladouceur interprets this as meaning
that the Board took into account certain other decisions it had made. He
complains that this was procedurally unfair because the decisions are unknown
and undisclosed.
[25] I do not interpret the Board’s
words as referring to specific decisions that it has already rendered. Rather,
in my view, the Board was simply making the point that there is merit in
treating persons with similar injuries in the same way. However, if I am
incorrect and the Board was referring to some of its other decisions, at a
minimum it should have identified those decisions and, subject to any legal
obligation of confidentiality, it should have made them available upon request.
C. Disposition
[26] The
Federal Court set aside the Board’s decision and returned it to a differently
constituted Board mindful of the reasons of the Federal Court.
[27] I agree that the Board’s decision
should be set aside and returned to a differently constituted Board for
redetermination of all issues, but on a different basis. To the extent that the
reconstituted Board does receive advice from a medical advisor, it should
disclose it to Mr. Ladouceur, along with any information and instructions given
to the medical advisor. It should afford Mr. Ladouceur the opportunity to
respond to that advice by way of cross-examination or rebuttal evidence. After
receiving submissions from the parties, the Board should reconsider all issues,
including the table that should apply, in light of all applicable law and the
entire evidentiary record before it.
[28] It follows from the foregoing
that I would allow the appeal but only to the extent of varying the Federal
Court’s judgment by deleting the
words “mindful of these Reasons” in paragraph 2.
[29] As this Court has agreed with the
Federal Court that the Board’s decision should be quashed, in substance Mr.
Ladouceur has prevailed in this appeal. I would award him his costs, fixed at
$5,000 inclusive of disbursements and taxes.
"David Stratas"
“I
agree
K. Sharlow J.A.”
“I
agree
J.D. Denis Pelletier J.A.”
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