Docket: T-2214-16
Citation: 2017 FC 586
Ottawa,
Ontario, June 15, 2017
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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COMMANDER HENRICK
OUELLET
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Applicant
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and
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CANADA
(ATTORNEY GENERAL)
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Respondent
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JUDGMENT
AND REASONS
I.
Overview
[1]
This is the second time that Commander Henrick
Ouellet has sought judicial review of a decision of the Entitlement Appeal
Panel [Appeal Panel] of the Veterans Review and Appeal Board [Board] made under
the Veterans Review and Appeal Board Act, SC 1995, c 18 [VRABA]. The
Appeal Panel has twice found that Cdr. Ouellet is not entitled to a disability
award under s 45 of the Canadian Forces Members and Veterans
Re-establishment and Compensation Act, SC 2005, c 21 [Compensation Act].
[2]
Cdr. Ouellet’s application for judicial review
of the Appeal Panel’s first decision was granted by Justice Cecily Strickland
on May 31, 2016 (Ouellet v Canada (Attorney General), 2016 FC 608 [Ouellet]).
Justice Strickland quashed the Appeal Panel’s decision, and remitted the matter
to a differently-constituted panel for redetermination “taking
into consideration the reasons contained in [her] decision”.
[3]
The Appeal Panel rendered a second decision on
September 14, 2016, again concluding that Cdr. Ouellet is not entitled to a
disability award under s 45 of the Compensation Act. Cdr. Ouellet
now seeks judicial review of that decision, on the ground that the Appeal Panel
unreasonably departed from Justice Strickland’s findings of fact and
conclusions in Ouellet.
[4]
In Canada (Citizenship and Immigration) v
Yansane, 2017 FCA 48 at para 25 [Yansane], the Federal Court of
Appeal held that a judge who returns a case to an administrative decision-maker
for reconsideration “in accordance with these reasons”
is not giving instructions within the meaning of paragraph 18.1(3)(b) of the Federal
Courts Act, RSC 1985, c F-7. This kind of general instruction does not bind
the administrative decision-maker unless it is explicitly included in the text
of the judgment.
[5]
In light of the guidance provided by the Federal
Court of Appeal in Yansane, the application for judicial review must be
dismissed.
II.
Background
[6]
The factual background of this case was comprehensively
summarized by Justice Strickland in Ouellet at paragraphs 2 to 10.
[7]
Briefly, Cdr. Ouellet was in good health when he
joined the Canadian Armed Forces in 1988. He began to complain of shortness of
breath in 2003. X-rays revealed an extensive interstitial lung reaction, most
likely sarcoid. The results of a CT scan were said to be consistent with
advanced sarcoidosis. Subsequent medical reports reached the same conclusion. A
report dated October 15, 2009 contained a diagnosis of Stage 4 sarcoidosis.
[8]
There is no clear evidence of what triggered
Cdr. Ouellet’s sarcoidosis. Cdr. Ouellet says that he was exposed to airborne
particles (e.g., crystalline silica) when he served on HMCS Halifax
while the ship was undergoing repairs. He believes that his condition was
aggravated by a subsequent posting to HMCS Ville de Quebec from 2002 to 2005, when
that ship underwent similar repairs.
[9]
In allowing Cdr. Ouellet’s first application for
judicial review, Justice Strickland said the following (Ouellet at paras
52-56):
[52] […] Given the Applicant’s factual
evidence, which was uncontradicted and which the Appeal Panel accepted and
found to be credible, the circumstances of the case and all of the submitted
evidence – specifically the findings of the above studies which confirmed an
increased risk of sarcoidosis in certain circumstances, including those to
which the Applicant was exposed – the Appeal Panel should have considered
whether this permitted it to draw a reasonable inference that the Applicant’s
condition was the result of his military service. Further, the Appeal Panel
should have weighed all of this evidence in making its finding. Instead, it
simply dismissed the appeal on the basis that because the cause of sarcoidosis
was unknown, the information contained in the articles was speculative. In my
view, the Appeal Panel was required to take a wholistic view of the evidence in
the context of s 39 [of the VRABA] and failed to do so, thereby rendering its
decision unreasonable.
[53] The treatment of the letter from Dr.
Smith is similarly flawed. The Appeal Panel found Dr. Smith’s conclusions were
subjective and insufficient to influence the balance of probabilities necessary
to link the claimed condition to the Applicant’s military service. It then
quoted Dr. Smith’s statement that “[u]nfortunately, because the cause of
sarcoidosis is unknown it is difficult to say to what extent it is related to
his service”.
[54] The Respondent submits it was open to
the Appeal Panel not to interpret this as confirming that the Applicant’s
condition was, to some extent, related to his service. Rather it could
interpret it, as it did, as insufficient to influence the balance of
probabilities necessary to link the claimed condition to the Applicant’s
military service. However, in my view such reasoning does not seem to be in
keeping with the approach required by s 39. Particularly as the Respondent also
submits that the evidence was insufficient to establish any connection
between the Applicant’s service and his condition.
[55] Dr. Smith’s letter is candid and fairly
describes the studies he provided. He concludes that the research does suggest
environmental or occupational factors which may increase the risk of developing
sarcoidosis, including certain naval environments. Neither his evidence or the
studies are contradicted, nor does the Appeal Panel find either to lack
credibility. There is also no evidence of any other cause for the Applicant’s
condition.
[56] A liberal and generous interpretation
of the evidence required the Appeal Panel to consider the entirety of the
circumstances (Canada (Attorney General) v Frye, 2005 FCA 264 at para 33),
with a view to determining if the Applicant’s condition was sufficiently
causally connected to his military service to establish his eligibility for a
disability benefit. As noted by the Federal Court of Appeal in Cole [Cole
v Canada (Attorney General), 2015 FCA 119], some kind of connection other
than a direct or immediate one may be sufficient (Cole at paras 72 and
74). Instead, the Appeal Panel rejected the evidence in whole as speculative on
the basis that the cause of sarcoidosis is unknown, and without any further
analysis.
[Emphasis original]
[10]
Justice Strickland’s judgment in Ouellet
reads as follows:
1. This application for judicial review is granted;
2. The decision
of the Appeal Panel is quashed and the matter is remitted back to a differently
constituted panel for redetermination taking into consideration the reasons
contained in this decision; and
3. The Applicant shall have his costs.
III.
Decision under Review
[11]
Following this Court’s decision in Ouellet,
the Appeal Panel reconsidered Cdr. Ouellet’s appeal in the following manner:
In determining whether the Appellant has met
[his] burden, this Panel commences its analysis at square one. This is a new
hearing. The Panel is not bound and has not relied upon any conclusions or
findings from either the Department or previous Panels of this Board. The Panel
does consider evidence which has been previously submitted at all levels of
adjudication and the testimony that the Appellant gave, as recorded in the
Review Decision, at the Review hearing.
[12]
The Appeal Panel noted that three conditions
must be met before an award can be made under s 45 of the Compensation Act:
(a) there must be “a valid, existing diagnosis of the
claimed condition”; (b) the claimed condition must “constitute a permanent disability”; and (c) the
claimed condition must have been “caused, aggravated or
contributed to by military service”.
[13]
The Appeal Panel was satisfied that the first
two conditions were met. The appeal therefore turned on whether Cdr. Ouellet’s
condition was caused, aggravated or contributed to by military service.
[14]
The Appeal Panel considered whether Cdr. Ouellet
could benefit from s 50(g) of the Canadian Forces Members and Veterans
Re-establishment and Compensation Regulations, SOR/2006-50 [Regulations],
which states that there is a presumption, in the absence of evidence to the
contrary, that a condition is service-related, or non-service-related but
aggravated by service, if the condition was incurred during “the performance by the member or veteran of any duties that
exposed the member or veteran to an environmental hazard that might reasonably
have caused the injury or disease or its aggravation”.
[15]
The Appeal Panel accepted that Cdr. Ouellet was
exposed to silica on ships, but found that he had not established that he was exposed
to “significant or potentially injurious concentrations
of silica”. The Appeal Panel also found that Cdr. Ouellet had not
provided sufficient evidence of a causal link between his exposure to silica
and the onset of his sarcoidosis: “While there are a
number of studies that have been provided that discuss a correlation between
the claimed exposure to silica and the onset of silicosis, no studies have been
placed before the Panel which establish that exposure to silica causes
sarcoidosis”. The Appeal Panel therefore concluded that Cdr. Ouellet
could not benefit from the presumption in s 50(g) of the Regulations.
[16]
The Appeal Panel also considered whether the
medical evidence supported a conclusion that there “is
a significant causal connection between Regular Force service and the onset of
sarcoidosis”, holding as follows:
The preponderance of evidence does not
plausibly support the conclusion that service in the military was a significant
causal factor in the development of sarcoidosis. Therefore, the Appeal Panel
finds that the Appellant has not met his burden of showing that his military
service has caused, contributed to or otherwise aggravated his condition of
sarcoidosis.
IV.
Issue
[17]
Cdr. Ouellet does not argue that the Appeal
Panel’s second decision was unreasonable on its merits. He says only that the
Appeal Panel failed to comply with this Court’s decision in Ouellet.
V.
Analysis
[18]
Decisions of the Appeal Board under the Compensation
Act involve questions of mixed fact and law, and are subject to review by this
Court against the standard of reasonableness (Ouellet at para 24).
Following a successful application for judicial review, the Appeal Board is
bound by stare decisis to apply the law as found by the Court. However,
when the matter under reconsideration involves questions of mixed fact and law,
the Appeal Board’s decision is once again subject to review against the
standard of reasonableness (ABB Inc v Hyundai Heavy Industries Co, Ltd,
2015 FCA 157 at para 27). The Court will intervene only if the decision falls
outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47).
[19]
Cdr. Ouellet says that it was not open to the
Appeal Panel to reject his application on the ground that the cause of
sarcoidosis is unknown, given Justice Strickland’s conclusion at paragraphs 51
and 52 of Ouellet that the medical literature demonstrates “an increased risk of sarcoidosis when persons are exposed to
certain environmental factors, including particulate from non-skid surfaces”,
and “an increased risk of sarcoidosis in certain
circumstances, including those to which the Applicant was exposed”.
[20]
Cdr. Ouellet argues that many findings of the
Appeal Panel cannot be reconciled with Justice Strickland’s reasons in Ouellet,
including: (a) no studies were placed before the Appeal Panel to establish that
exposure to silica causes sarcoidosis; (b) there was no evidence before the Appeal
Panel of increased instances of sarcoidosis in naval personnel or members; (c)
the medical evidence led to contradictory conclusions; (d) one study demonstrated
that there was a lower risk of sarcoidosis in naval personnel compared to the
general population, and so there was no connection between Cdr. Ouellet’s condition
and his service; (e) there was no evidence demonstrating that Cdr. Ouellet was
exposed to “hazardous levels” of silica; (f) there
was no evidence showing that protective equipment was required when
sandblasting silica-laced ship decks; and (g) in order to succeed in his claim,
Cdr. Ouellet would need to show that inhaling airborne silica without
protective equipment could be hazardous, and sarcoidosis could result from
breathing in airborne silica.
[21]
Cdr. Ouellet also says that the Appeal Panel was
precluded from finding that his condition was neither caused nor aggravated by
his military service, given Justice Strickland’s finding in Ouellet at
paragraph 55 that “Dr. Smith’s letter was candid and
fairly described the studies he provided”, and “[n]either
his evidence nor the studies are contradicted, nor does the Appeal Panel find
either to lack credibility. There is also no evidence of any other cause of the
Applicant's condition”.
[22]
Counsel for Cdr. Ouellet referred the Court to
the recent decision of the Federal Court of Appeal in Yansane. However,
the decision does not support his client’s position.
[23]
In Yansane, Justice Yves de Montigny
explained at paragraph 15 that, in general, the purpose of judicial review is
not to replace the administrative decision-maker’s decision with the court’s own
decision; rather, the court’s role is limited to confirming the legality or
reasonableness of the decision rendered, and returning the matter for
reconsideration if the court finds that the decision was incorrect or fell
outside the range of possible, acceptable outcomes.
[24]
Exceptionally, this Court may set aside a
decision and return it for reconsideration in compliance with instructions it
deems appropriate (Federal Courts Act, s 18.1(3)(b)). The instructions
will vary with the circumstances and may include, for example, (a) setting a
deadline for re-examination; (b) limiting reconsideration to a specific
question and requiring the decision-maker to take certain evidence into
account; (c) excluding a piece of evidence; or (d) forbidding a specific result
(Yansane at para 16).
[25]
While the Court may direct a specific verdict,
this authority is exercised only in the clearest of cases, for example, when
the correct interpretation of the law permits only one possible outcome (Yansane
at para 17, citing Wihksne v Canada (Attorney General), 2002 FCA 356).
Often, as in this case, the Court simply directs that reconsideration take
place in accordance with its reasons.
[26]
Caution is warranted for any directions or
instructions that a court may issue when granting an application for judicial
review (Yansane at paras 18 and 19):
[18] […] We must never lose sight of the
fact that such directions or instructions depart from the logic of a judicial
review, and that their perverse or unjustified use would go against
Parliament’s desire to give specialized administrative organizations the
responsibility for ruling on questions that often require expertise that common
law panels are lacking. This is especially the case for eligibility and weighing
of evidence, which are central to the mandate of administrative
decision-makers.
[19] According to that logic, I believe it
is essential to interpret the possibility of issuing directions or instructions
restrictively, such that only those explicitly stated in the judgment may bind
the administrative decision-maker responsible for re-examining a case. This
must be the case not only so that Parliament’s decision not to allow appeals is
respected, but also so that the law is predictable and appropriately guides
those who must re-examine a question when the first decision was set aside.
Consequently, I am of the opinion that only instructions explicitly stated in
the judgment bind the subsequent decision-maker; otherwise, the comments and
recommendations made by the Court in its reasons would have to be considered
mere obiters, and the decision-maker would be advised to consider them
but not required to follow them.
[27]
As Justice Mary Gleason held in Burton v
Canada (Citizenship and Immigration), 2014 FC 910 at paragraph 30, the
effect of a successful application for judicial review is generally to
extinguish the decision of the administrative tribunal and set it aside for all
purposes:
[30] This Court has often commented on the
impact of judgments setting aside administrative decisions and has confirmed
that the effect of such judgments is to extinguish the decision being set aside
for all purposes. For example, in Hernandez Rodriguez v Canada (Minister of
Citizenship and Immigration), 2012 FC 1331, my colleague, Justice Luc
Martineau, indicated at para 4 that a quashed decision cannot give rise to stare
decisis or res judicata as it is quashed for all purposes.
Similarly, in Zacarias v Canada (Minister of Citizenship and Immigration),
2012 FC 1155, [2012] FCJ No 1252, I noted at para 3 that, in the context of a
redetermination of a refugee claim, it was open to the RPD to reach a different
conclusion from the first member on the issue of credibility as the first
decision was quashed for all purposes when it was set aside by order of this
Court. (See also to similar effect Miah v Canada (Minister of Citizenship
and Immigration), 2007 FC 2005, [2007] FCJ No 1439 at para 8 and Lee v
Canada (Minister of Citizenship and Immigration, 2003 FCT 743, [2003] FCJ
No 977 at para 11).
[28]
In this case, Justice Strickland’s judgment in Ouellet
stated only that the matter was to be reconsidered by the Appeal Panel in
accordance with her reasons. Her judgment did not include any explicit
instructions or directions. The impact of her judgment was therefore to
extinguish the previous decision of the Appeal Panel and set it aside for all
purposes. The subsequent Appeal Panel was free to reach its own conclusions
based on a fresh consideration of the evidence and arguments presented.
[29]
Cdr. Ouellet does not challenge the second
decision of the Appeal Panel on any ground other than its alleged
non-compliance with Justice Strickland’s judgment in Ouellet. For the
foregoing reasons, the application for judicial review must therefore be
dismissed.
VI.
Conclusion
[30]
The application for judicial review is
dismissed. The Attorney General has not requested costs, and none are awarded.
JUDGMENT
THIS COURT’S JUDGMENT is that the application for judicial review is dismissed without costs to
any party.
“Simon
Fothergill”
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