Date: 20030123
Docket: A-542-01
Neutral citation: 2003 FCA 31
CORAM: STRAYER J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
JOHN G. MACDONALD
Respondent
Heard at Halifax, Nova Scotia, on December 17, 2002.
Judgment delivered at Ottawa, Ontario, on January 23, 2003.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: STRAYER J.A.
SEXTON J.A.
Date: 20030123
Docket: A-542-01
Neutral citation: 2003 FCA 31
CORAM: STRAYER J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
JOHN G. MACDONALD
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1] This is an appeal by the Attorney General of Canada from a decision of a Judge of the Trial Division granting an application for judicial review by John G. MacDonald to set aside a decision of the Veterans Review and Appeal Board, dated August 25, 1999. The Applications Judge's decision is reported as MacDonald v. Canada (Attorney General), 2001 FCT 678.
[2] While a member of the Canadian Forces, Mr. MacDonald sustained an injury that was in part attributable to his military service. The issue between the parties concerns the backdating of the assessment of the seriousness of Mr. MacDonald's disability for pension purposes. Mr. MacDonald alleges that the Board ought to have backdated it to July 31, 1993, when his pension entitlement commenced. The Attorney General, however, takes the position that, unlike a determination that a veteran is entitled to a pension under the Pension Act as a result of a pensionable injury, an assessment of the extent of disability cannot be made retroactive, but usually becomes effective from the date when the increase was requested which, in this case, was January 20, 1998.
[3] The Board had made the assessment effective only to January 20, 1998. The Applications Judge held that the Board had erred in law in treating the assessment as based on a deterioration in the seriousness of Mr. MacDonald's disability since it was last assessed, because the deterioration of the applicant's medical condition was never in issue. He set aside the Board's decision and remitted it for redetermination.
B. FACTUAL BACKGROUND
[4] Mr. MacDonald was a vehicle technician in the Canadian Forces from March 3, 1980, until July 30, 1993, when he was released under the Forces Reduction Program as a result of injuries to his wrists. Prior to his release, he had undergone surgery to fuse his right wrist, and was suffering from pain, and reduced strength and stability in his left wrist.
[5] He applied for a disability pension in 1992, while still a member of the Forces.. In 1994, the Board held that he was entitled to a disability pension benefit under paragraph 21(2)(a) of the Pension Act, R.S.C. 1985, c. P-6. After appeals, it ultimately concluded in 1996 that the injury to Mr. MacDonald's right wrist was four-fifths attributable to military service, and the injury to the left wrist was attributable three-fifths to military service. The entitlement was backdated to July 31, 1993, which was the day after he left the Canadian Forces. At the same time that the Board determined the extent to which the injury was attributable to military service, it assessed the extent of his disability for both wrists at 20% pursuant to section 35 of the Pension Act. The amount of a pension is calculated by reference to a table contained in the Pension Act, Schedule I, and is based on the extent to which the injury is attributable to military service and on the seriousness of the resulting disability.
[6] Mr. MacDonald was not satisfied with the Board's assessment of his disability and, as a result of complaints and appeals, it was increased. In an assessment appeal decision, dated August 25, 1999, the Board confirmed an assessment review by the Board, dated December 11, 1998, to increase the left wrist disability to 30%, and increased the right wrist disability assessment to 25%. The Board made both assessments retroactive to January 20, 1998, the date of the request for a pension medical examination in connection with this assessment.
C. TRIAL DIVISION DECISION
[7] Mr. MacDonald made an application for judicial review of the Board's decision of August 25, 1999, alleging that the Board had erred in law in not backdating the assessment to July 31, 1993. In granting the application, the learned Applications Judge reasoned as follows.
[8] First, the Board had before it a letter, dated August 16, 1999, stating that Mr. MacDonald's disability had remained unchanged from before July 1993. This letter was written by the physician who had treated Mr. MacDonald from the time that he had been in the Forces. The medical evidence on this issue was undisputed. Accordingly, the Judge held, the provision in the Pension Policy Manual issued by Veterans Affairs Canada dealing with the effective date of a change of assessment following a request for reassessment based on the deterioration of the pensionable condition had no application to this case. Since the Board seemed to have relied upon this provision to determine the effective date of the assessment, it had erred in law.
[9] Second, since both the Act and the Policy are silent on the backdating of assessments when a pensioner alleges that an assessment should be increased because the earlier assessment was wrong, not because the condition had deteriorated, subsection 5(3) of the Pension Act maybe invoked to resolve any doubt on the matter in favour of the pensioner.
[10] Accordingly, the decisions of the Board of August 25, 1999, and of December 11, 1998, were set aside and the matter remitted to the Board, differently constituted, for redetermination. The Judge appears to have left it to the Board to decide the date when the increased assessment should become effective, subject to his rulings that the increased assessment was not based on a deterioration of Mr. MacDonald's medical condition and that subsection 5(3) was relevant to identifying the effective date of the assessment under review.
C. LEGISLATIVE FRAMEWORK
Pension Act, R.S.C., 1985, c. P-6
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2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
5. (3) In making a decision under this Act, the Minister shall
(a) draw from all the circumstances of the case and all the evidence presented to the Minister every reasonable inference in favour of the applicant or pensioner;
(b) accept any uncontradicted evidence presented to the Minister by the applicant or pensioner that the Minister considers to be credible in the circumstances; and
(c) resolve in favour of the applicant or pensioner any doubt, in the weighing of evidence, as to whether the applicant or pensioner has established a case.
35. (1) Subject to section 21, the amount of pensions for disabilities shall, except as provided in subsection (3), be determined in accordance with the assessment of the extent of the disability resulting from injury or disease or the aggravation thereof, as the case may be, of the applicant or pensioner.(2) The assessment of the extent of a disability shall be based on the instructions and a table of disabilities to be made by the Minister for the guidance of persons making those assessments.
39. (1) A pension awarded for disability shall be made payable from the later of
(a) the day on which application therefor was first made, and
(b) a day three years prior to the day on which the pension was awarded to the pensioner.
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2. Les dispositions de la présente loi s'interprètent d'une façon libérale afin de donner effet à l'obligation reconnue du peuple canadien et du gouverne-ment du Canada d'indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge.
(3) Lorsqu'il prend une décision, le ministre_:
a) tire des circonstances portées à sa connaissance et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible au demandeur ou au pensionné;
b) accepte tout élément de preuve non contredit que celui-ci lui présente et qui lui semble vraisemblable en l'occurrence;
c) tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
35. (1) Sous réserve de l'article 21, le montant des pensions pour invalidité est, sous réserve du paragraphe (3), calculé en fonction de l'estimation du degré d'invalidité résultant de la blessure ou de la maladie ou de leur aggravation, selon le cas, du demandeur ou du pensionné.
(2) Les estimations du degré d'invalidité sont basées sur les instructions du ministre et sur une table des invalidités qu'il établit pour aider quiconque les effectue.
39. (1) Le paiement d'une pension accordée pour invalidité prend effet à partir de celle des dates suivantes qui est postérieure à l'autre_:
a) la date à laquelle une demande à cette fin a été présentée en premier lieu;
b) une date précédant de trois ans la date à laquelle la pension a été accordée au pensionné.
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D. ANALYSIS
[11] The Applications Judge did not expressly address the standard of review to be applied to the Board's decision, but seems to have applied the correctness standard. Since the disputed question involves the interpretation of the statute, I agree that in this case correctness is the applicable standard. Further, since the only medical evidence before the Board was that Mr. MacDonald's medical condition had remained unchanged since 1993, the Applications Judge's finding that the claim was not based on deterioration was plainly correct.
[12] The basic submission made by counsel for the Minister was that, in the absence of any statutory authority to backdate assessment decisions, the Applications Judge erred in law in backdating the assessment of August 25, 1999 to the date of Mr. MacDonald's entitlement to a pension, namely July 31, 1993. However, as I read the Applications Judge's reasons, he decided only that the Board had erred in treating Mr. MacDonald's case as one based on deterioration, rather than assessment error, and that in redetermining the effective date of the assessment, the Board should have had regard to subsection 5(3).
[13] While the Applications Judge presumably did not think that January 20, 1998 was the only possible date on which the assessment could be made effective, he did not decide that the assessment should be backdated to July 31, 1993. Of course, if the legislation mandates that the assessment be made effective only from the date of the request for a medical examination, then the Applications Judge should not have set the Board's decision aside. However, I am not satisfied on the record before us that the Judge erred in setting aside the decision and remitting the matter to the Board. Before I deal further with this issue, it is convenient to dispose of two more particular grounds of appeal advanced on behalf of the Minister.
[14] First, counsel submitted that the Applications Judge erred in law when he relied on subsection 5(3) of the Pension Act to fill what he perceived to be a gap in the statutory scheme. This provision deals only with questions of evidence. It directs the Minister to draw from all the circumstances of the case and all the evidence any reasonable inference in favour of a claimant or a pensioner; to accept credible uncontradicted evidence presented by a claimant or a pensioner; and to resolve in favour of a claimant or a pensioner any doubt regarding the weighing of evidence.
[15] I agree with counsel that subsection 5(3) cannot be used to resolve interpretative difficulties or to fill apparent gaps in a statutory scheme. However, in my opinion, this error is of little significance because section 2 of the Act directs that its provisions be liberally interpreted and construed "to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled ... as a result of military service ,... may be fulfilled." An identical provision is found in the Veterans' Review and Appeal Board Act, S.C. 1995, c. 18, section 3.
[16] Second, counsel submitted that the Applications Judge erred in setting aside the Board's assessment review of December 11, 1998, because this decision was not the subject of Mr. MacDonald's application for judicial review. Moreover, Mr. MacDonald's application for judicial review was filed on December 3, 1999, well outside the 30 day limitation period within which a decision may normally be challenged on an application for judicial review, and no extension of time had been requested.
[17] While counsel's submission on this point is technically correct, nothing much of substance turns on it. The Board's decision of August 25, 1999, confirmed the assessment review of the left wrist disability, and increased the right wrist disability, backdating them both to January 20, 1998. Hence, on an application to review the decision of August 25, 1999, it is possible to consider the Board's disability assessments of both wrists, without reference to the decision of December 11, 1998.
[18] I return now to counsel's principal submission, namely that the Pension Act contains no provision authorising the backdating of the Board's assessment decision to July 31, 1993. The argument is that the Act does not provide for any backdating of assessment decisions, as opposed to entitlement decisions or, if it does, an assessment cannot be backdated to a date prior to the date on which a claimant requested the new assessment. It was presumably on this latter ground that the Board backdated Mr. MacDonald's assessment to January 20, 1998.
[19] While these questions ultimately depend on the interpretation of the relevant provisions of the Pension Act, the record provides an inadequate basis for answering them. In particular, it does not reveal the nature of the proceedings culminating in the Board's decision of August 25, 1999. Counsel for the Minister argues that if section 39 applies to assessments, which he disputes, a pensioner who requests an increased assessment of a disability thereby makes an application for a pension for the purpose of subsection 39(1)(a). Each assessment request is an application for a new pension, and thus can only be backdated to the date that the request for the increase was made, subject to a discretion to backdate for a maximum of two years' pension when delays or difficulties have occurred for which the claimant is not responsible (subsection 39(2)).
[20] Mr. MacDonald, however, states that, from the time when he received his first assessment in 1994, his position has been that his disability has been wrongly assessed. He has never requested a new assessment, but has simply been asking for a review of the original ruling and has appealed Veterans Affairs' failure to correct its original error. He states that the increased assessment decisions in his favour, prior to that of December 11, 1998, had been backdated to July 31, 1993. For example, Mr. MacDonald says that when his disability assessment was increased in 1995 from 5% to 27% it was backdated to July 31, 1993.
[21] In support of his position that he has been appealing the original disability assessment on the ground that it was wrong, not applying for a new pension, he says that he submitted no new medical evidence in support of his previous appeals and did not request a medical examination for the purpose of the decisions rendered by the Board on December 11, 1998 and August 25, 1998, although he did not have a medical examination in connection with these proceedings.
[22] Until the record is clarified on these matters, the Court has no basis for interfering with the decision of the Applications Judge. The applicability of section 39 to an assessment made after the original entitlement decision may depend on whether the assessment was made as a result of a new application or an appeal from the first decision.
[23] In contrast, when a pensioner requests a reassessment because a pensionable condition has deteriorated, the pensioner may then properly be said to be making an application for a new pension. There would be no reason to backdate an increased pension, awarded on the basis of a deterioration, to the time of the original pension application, because the deterioration had, by definition, not then occurred. Further, since the decision in Leclerc v. Canada (Procureur général) (1998), 150 F.T.R. 1, involved a pension entitlement, it is not necessarily dispositive of the issue in the present case.
[24] I would only add that, while it was said in Re Interpretation of sections 29 and 40 of the Pension Act (an unreported decision of the Veterans Appeal Board, dated December 5, 1988) that an assessment could not be backdated, the language of what is now section 39 is sufficiently broad on its face to cover both entitlement decisions and assessments, at least when originally made.
[25] I appreciate that the generous provisions for appeals and reconsiderations may justify limiting the extent to which an assessment may be backdated. Nonetheless, in the absence of any compelling reason to limit section 39 to entitlement decisions, particularly bearing in mind the liberal construction of the Act mandated by section 2, it would seem very unfair, and contrary to the spirit of the Act as enunciated in section 2, to interpret the Act as precluding any backdating of an assessment made to correct a previous erroneous assessment of the extent of the disability by Veterans Affairs and the Board.
[26] For these reasons, I would allow the appeal to the extent that the Board's decision of December 11, 1998 should not have been set aside. In all other respects, I would dismiss the appeal.
"John M. Evans"
J.A.
"I agree
B.L. Strayer J.A.
"I agree
J. Edgar Sexton J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-542-01
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. JOHN G. MACDONALD
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: DECEMBER 17, 2002
REASONS FOR JUDGMENT: EVANS J.A.
CONCURRED IN BY: STRAYER J.A.
SEXTON J.A.
DATED: JANUARY 23, 2003
APPEARANCES:
JAMES GUNVALDSEN-KLAASSEN FOR THE APPELLANT
JOHN G. MACDONALD RESPONDENT ON HIS OWN BEHALF
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE APPELLANT
DEPUTY ATTORNEY GENERAL
OF CANADA
OTTAWA, ONTARIO
JOHN G. MACDONALD RESPONDENT ON HIS OWN BEHALF
NORTH BAY, ONTARIO
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