Docket: A-371-13
Citation: 2014 FCA 218
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CORAM:
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DAWSON A/C.J.
SHARLOW J.A.
NEAR J.A.
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BETWEEN:
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KIMBERLY NEWMAN
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Appellant
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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
SHARLOW
J.A.
[1]
The issue in this appeal is whether an Appeal
Panel constituted under the Veterans Review and Appeal Board Act, S.C.
1995, c. 18 (the “VRABA”), made an error warranting the intervention of
this Court when it dismissed the application of the appellant Kimberly Newman
for a disability award under section 45 of the Canadian Forces Members and
Veterans Re-establishment and Compensation Act, S.C. 2005, c. 21 (the “Compensation
Act”). In my view, there was such an error, and Ms. Newman is entitled to
have her application for a disability award reconsidered and granted pursuant
to paragraph 45(1)(a) of the Compensation Act.
Facts and
procedural history
[2]
Ms. Newman joined the Canadian Armed Forces in
1985, at the age of 21. She began as an Ordinary Seaman and achieved the rank
of Captain by the date of her retirement in 2009. She was consistently
recognized for her hard work and productivity, and received glowing personnel
evaluations. For a short time after her retirement she served as a member of
the Reserve Force.
[3]
It is undisputed that upon her retirement, Ms.
Newman suffered from chronic dysthymia. It is also undisputed that this is a
“disability” as defined in subsection 2(1) of the Compensation Act. In
2009, Ms. Newman applied under section 45 of the Compensation Act for a
disability award for that condition.
[4]
A disability award may be paid under paragraph
45(1)(a) of the Compensation Act for a disability resulting from
an injury or disease that arose out of service in the Canadian Forces or that
was directly connected with service in the Canadian Forces (see the definition
of “service-related injury or disease” in subsection 2(1) of the Compensation
Act).
[5]
Alternatively, a disability award may be paid
under paragraph 45(1)(b) of the Compensation Act for a disability
that did not result from a service-related injury or disease if the disability
was aggravated and the aggravation arose out of service with the Canadian
Forces or was directly connected with service in the Canadian Forces (see the
definition of “aggravated by service” in subsection 2(1) of the Compensation
Act). In such a case, the disability award is paid to the extent of the
service-related aggravation, measured in fifths.
[6]
Ms. Newman’s application for a disability award
was initially dismissed by a disability adjudicator (a delegate of the Minister
of Veterans Affairs) who was not satisfied that Ms. Newman’s condition was the
result of her military service or that it was aggravated by her military
service. Pursuant to the VRABA, Ms. Newman was entitled to appeal that
decision to the Veterans Review and Appeal Board, and she did so. An
Entitlement Review Panel concluded that her condition was aggravated by her
military service to the extent of one-fifth.
[7]
Ms. Newman appealed further to an Appeal Panel,
but without success. She then applied to the Appeal Panel for reconsideration,
alleging mistake of law and mistake of fact. She also sought to adduce new
evidence.
[8]
Section 32 of the VRABA deals with the
reconsideration of an Appeal Panel decision. It permits an Appeal Panel to
accept new evidence and requires the Appeal Panel, whether or not new evidence
is accepted, to reconsider its initial decision de novo in respect of
any errors of law and fact alleged in the reconsideration application. Section
32 reads in relevant part as follows (my emphasis):
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32. (1) … an appeal panel may, on its own motion, reconsider a
decision made by it under subsection 29(1) or this section and may either
confirm the decision or amend or rescind the decision if it determines that
an error was made with respect to any finding of fact or the interpretation
of any law, or may do so 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.
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32. (1)
[…] le comité d’appel peut, de son propre chef, réexaminer une décision
rendue en vertu du paragraphe 29(1) ou du présent article et soit la
confirmer, soit l’annuler ou la modifier s’il constate que les conclusions
sur les faits ou l’interprétation du droit étaient erronées; il peut aussi le
faire sur demande si l’auteur de la demande allègue que les conclusions
sur les faits ou l’interprétation du droit étaient erronées ou si de
nouveaux éléments de preuve lui sont présentés.
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[9]
The Appeal Panel did not accept the new evidence
Ms. Newman sought to adduce. It considered its initial decision de novo
but found no error of law or fact. Ms. Newman’s application for reconsideration
was dismissed accordingly.
[10]
Ms. Newman applied to the Federal Court for
judicial review of the reconsideration decision on the basis of errors of law
and fact (she did not challenge the decision of the Appeal Panel not to accept
new evidence). The Federal Court reviewed the reconsideration decision on the
standard of reasonableness and found it reasonable. Ms. Newman’s application
was dismissed with costs (2013 FC 354). Ms. Newman now appeals to this Court.
[11]
On an appeal from the disposition of an
application for judicial review, this Court must determine whether the Federal
Court identified the appropriate standard of review and applied it correctly: Canada
Revenue Agency v. Telfer, 2009 FCA 23, at paragraph 18; Agraira v.
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
S.C.R. 559 at paragraphs 45 to 47. The parties agree, as do I, that the Federal
Court correctly identified reasonableness as the appropriate standard of
review.
[12]
In determining whether the reasonableness
standard of review was applied correctly, this Court must stand in the shoes of
the Federal Court to focus on the administrative decision under review (Merck
Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23). The
decision under review is the reconsideration decision of the Appeal Panel.
[13]
A decision is reasonable if it falls within a
range of possible, acceptable outcomes that are defensible in respect of the
facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at paragraph 47). Given section 32 of the VRABA (quoted above), a
reconsideration decision by an Appeal Panel is not reasonable if its initial
decision was based on an error of law or fact that should have been corrected
on reconsideration and was not.
Discussion
[14]
Section 45 of the Compensation Act
requires the Minister to determine the cause of the disability for which a disability
award is sought. If the Minister’s determination is appealed under the VRABA,
the responsibility for determining the cause of the disability falls to the
Entitlement Review Panel or the Appeal Panel, as the case may be.
[15]
The determination of the cause of a disability
must be made in a manner that respects the statutory presumptions in section 43
of the Compensation Act, which reads as follows:
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43. In making a decision under this
Part or under section 84, the Minister and any person designated under
section 67 shall
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43. Lors
de la prise d’une décision au titre de la présente partie ou de l’article 84,
le ministre ou quiconque est désigné au titre de l’article 67 :
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(a) draw from the circumstances of the
case, and any evidence presented to the Minister or person, every reasonable
inference in favour of an applicant under this Part or under section 84;
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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;
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(b) accept
any uncontradicted evidence presented to the Minister or the person, by the
applicant, that the Minister or person considers to be credible in the
circumstances; and
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b) accepte tout élément de preuve non contredit
que le demandeur lui présente et qui lui semble vraisemblable en
l’occurrence;
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(c) resolve in favour of the applicant
any doubt, in the weighing of the evidence, as to whether the applicant has
established a case.
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c) tranche en faveur du demandeur toute
incertitude quant au bien-fondé de la demande.
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[16]
Substantially the same presumptions are found in
section 39 of the VRABA.
[17]
Additional presumptions favourable to the
claimant for a disability award are found in sections 50, 51 and 52 of the Canadian
Forces Members and Veterans Re-establishment and Compensation Regulations,
SOR/2006-50 (the “Regulations”). Those provisions read as follows:
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50. For the purposes of subsection
45(1) of the Act, a member or veteran is presumed, in the absence of evidence
to the contrary, to have established that an injury or disease is a
service-related injury or disease, or a non-service-related injury or disease
that was aggravated by service, if it is demonstrated that the injury or
disease or its aggravation was incurred in the course of
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50. Pour
l’application du paragraphe 45(1) de la Loi, le militaire ou le vétéran est
présumé démontrer, en l’absence de preuve contraire, qu’il souffre d’une
invalidité causée soit par une blessure ou une maladie liée au service, soit
par une blessure ou maladie non liée au service dont l’aggravation est due au
service, s’il est établi que la blessure ou la maladie, ou leur aggravation,
est survenue au cours :
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…
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[…]
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(f) any military operation, training
or administration, as a result of either a specific order or an established
military custom or practice, whether or not a failure to perform the act that
resulted in the injury or disease or its aggravation would have resulted in
disciplinary action against the member or veteran ….
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f) d’une
opération, d’un entraînement ou d’une activité administrative militaire, soit
par suite d’un ordre précis, soit par suite d’usages ou de pratiques
militaires établis, que l’omission d’accomplir l’acte qui a entraîné la
blessure ou la maladie, ou leur aggravation, eût entraîné ou non des mesures
disciplinaires contre le militaire ou le vétéran […].
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51. Subject to section 52, if an
application for a disability award is in respect of a disability or disabling
condition of a member or veteran that was not obvious at the time they became
a member of the forces and was not recorded on their medical examination
prior to enrolment, the member or veteran is presumed to have been in the
medical condition found on their enrolment medical examination unless there
is
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51. Sous
réserve de l’article 52, lorsque l’invalidité ou l’affection entraînant
l’incapacité du militaire ou du vétéran pour laquelle une demande d’indemnité
a été présentée n’était pas évidente au moment où il est devenu militaire et
n’a pas été consignée lors d’un examen médical avant l’enrôlement, l’état de
santé du militaire ou du vétéran est présumé avoir été celui qui a été
constaté lors de l’examen médical, sauf dans les cas suivants :
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(a) recorded evidence that the
disability or disabling condition was diagnosed within three months after
enrolment; or
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a) il a
été consigné une preuve que l’invalidité ou l’affection entraînant
l’incapacité a été diagnostiquée dans les trois mois qui ont suivi
l’enrôlement;
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(b) medical evidence that establishes
beyond a reasonable doubt that the disability or disabling condition existed
prior to enrolment.
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b) il est
établi par une preuve médicale, hors de tout doute raisonnable, que
l’invalidité ou l’affection entraînant l’incapacité existait avant
l’enrôlement.
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52. Information given by a member or veteran at the time of
enrolment with respect to a disability or disabling condition is not evidence
that the disability or disabling condition existed prior to their enrolment
unless there is corroborating evidence that establishes beyond a reasonable doubt
that the disability or disabling condition existed prior to the time they
became a member of the forces.
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52. Les
renseignements fournis par le militaire ou le vétéran, lors de son
enrôlement, concernant l’invalidité ou l’affection entraînant son incapacité,
ne constituent pas une preuve que cette invalidité ou affection existait
avant son enrôlement, sauf si ces renseignements sont corroborés par une
preuve qui l’établit hors de tout doute raisonnable.
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[18]
It is convenient in this case to consider these provisions in reverse
order.
[19]
Section 52 of the Regulations has no application because Ms.
Newman’s application for enrolment does not mention chronic dysthymia or any
similar problem.
[20]
It is undisputed that Ms. Newman is entitled to the benefit of the
presumption in section 51 of the Regulations, which means that it must
be presumed, for the purposes of her disability award application, that at the
time of her enrolment she was in the medical condition found in her enrolment
medical examination.
[21]
The section 51 presumption is subject to two exceptions. In Ms. Newman’s
case, the first exception would render the presumption inapplicable if there is
recorded evidence of a diagnosis of chronic dysthymia within three months after
enrolment. There is no such evidence. The second exception would apply if there
is medical evidence that establishes beyond a reasonable doubt that the
disability existed prior to enrolment. The record discloses no medical evidence
(and a fortiori, no medical evidence that establishes beyond a
reasonable doubt) that Ms. Newman suffered from chronic dysthymia prior to her
enrolment.
[22]
Therefore, based on the presumption in section 51 of the Regulations,
the Appeal Panel was obliged to proceed on the basis that Ms. Newman did not
suffer from chronic dysthymia before her enrolment. As it is undisputed that
she suffered from that condition upon her retirement, it must have been during
her military career that she began to suffer from that condition. The only
remaining question is the cause of that condition.
[23]
Ms. Newman bears the onus of proving that her chronic dysthymia falls
within the statutory definition of “service-related injury or disease”. In
determining whether her evidence is sufficient to discharge that onus, it is
necessary to apply in her favour the general presumptions in section 43 of the Compensation
Act – (1) every reasonable inference must be drawn in her favour; (2) all
uncontradicted and credible evidence she presents must be accepted; and (3) any
doubt in the weighing of the evidence must be resolved in her favour – as well
as the more specific presumption in paragraph 50(f) of the Regulations.
[24]
The Appeal Panel concluded, initially and on reconsideration, that there
was “an absence of
evidence indicating that service factors actually contributed to the development” of her
chronic dysthymia beyond the one-fifth disability award that had previously
been granted. In my view, this conclusion fails to give due weight to the
medical evidence presented by Ms. Newman, given the statutory presumptions to
which Ms. Newman is entitled.
[25]
According to paragraph 50(f) of the Regulations, Ms.
Newman is presumed, in the absence of evidence to the contrary, to have
established that her chronic dysthymia has a service related cause if her
evidence demonstrates that her chronic dysthymia was incurred in the course of “any military operation, training or
administration, as a result of either a specific order or an established
military custom or practice” or, in other
words, in the course of the work she was assigned to do as a member of the
Canadian Forces.
[26]
If every reasonable inference is drawn in Ms. Newman favour, and every
doubt in the weighing of evidence is resolved in her favour, Ms. Newman’s
medical evidence is capable of proving the required causal connection between
her military work and her chronic dysthymia. Her evidence indicates that early
in her military career, she was diagnosed with reactive depression, which led
to a change in her career path. Subsequently, at various times during her military
career, she was treated for anxiety and depression that, according to the notes
of the medical practitioners made at the point of diagnosis and during
treatment, were attributable directly to the stress she experienced as a result
of workplace demands. That evidence is not challenged or contradicted, and the
Appeal Panel expressed no reservation as to its credibility.
[27]
Therefore, Ms. Newman is entitled to the benefit of the presumption in
paragraph 50(f) of the Regulations. It follows that the Appeal Panel
should have determined that her chronic dysthymia has a service related cause
unless there is “evidence to the
contrary”, that is, any evidence proving that the cause of Ms.
Newman’s chronic dysthymia is something other than the stresses of her military
workplace.
[28]
The position of the Crown is that there is evidence to the contrary,
which is Ms. Newman’s admission that when she was approximately 16 years old
she suffered what she believed was a “depressive illness” apparently related to
what was then a difficult family situation. Ms. Newman’s evidence is that this
illness was resolved by medication and did not recur. Medical reports in 1985,
1989, 2000 and 2007 recount that episode as part of Ms. Newman’s medical
history, apparently based on Ms. Newman’s own statements.
[29]
The Crown argues that the Appeal Panel was relying on that evidence when
it found that “pre-enrolment factors
played a major role in her current chronic depression and anxiety”. This vague statement may be intended to express a conclusion
that Ms. Newman’s chronic dysthymia was caused by something that happened prior
to her military enrolment. Or, it may be intended to express the conclusion
that Ms. Newman was predisposed to develop chronic dysthymia. The only possible
basis for either conclusion is Ms. Newman’s own report of her experience at the
age of 16.
[30]
I am prepared to assume that Ms. Newman’s experience as a teenager is
indeed the basis of the Appeal Panel’s conclusion that there is “evidence to
the contrary” for the purpose of paragraph 50(f) of the Regulations.
The question is whether it was reasonably open to the Appeal Panel to reach
that conclusion.
[31]
The record discloses no medical opinion to the effect that Ms. Newman’s
chronic dysthymia could be the result of her experience at the age of 16. Given
the entitlement of Ms. Newman to the benefit of all reasonable presumptions in
her favour and the benefit of every doubt in weighing the evidence, Ms.
Newman’s own report of that experience is not capable by itself of rebutting
the medical evidence that expressly relates Ms. Newman’s chronic dysthymia to
the stresses of her military work. The fact that her report was repeated by
medical practitioners does not enhance its probative value.
[32]
I conclude that the only conclusion reasonably open to the Appeal Panel
on the evidence is that her chronic dysthymia resulted from her military
service and that there is no evidence of any other cause for her condition.
Therefore, she is entitled to have her application for a disability award
considered under paragraph 45(1)(a) of the Compensation Act.
Conclusion
[33]
For these reasons, I would allow the appeal and
set aside the judgment of the Federal Court. Making the judgment that the
Federal Court should have made, I would allow the application for judicial review,
quash the reconsideration decision of the Appeal Panel, and return this matter
to the Appeal Panel for fresh reconsideration with a direction to amend the
initial decision of the Appeal Panel pursuant to section 32 of the VRABA
on the basis that Ms. Newman’s disability is the result of a “service-related
injury or disease” as defined in section 2 of the Compensation Act. I
would award Ms. Newman her costs in this Court and in the Federal Court.
"K. Sharlow"
“I
agree,
Eleanor R.
Dawson A/C.J.”
“I
agree,
D. G. Near J.A.”
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