Docket: T-2092-16
Citation:
2017 FC 943
Ottawa, October 23, 2017
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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DARCY DWAYNE
LIEN
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Appeal Board of the Appeal Panel of the Veterans Review and Appeal Board [Appeal
Panel] which confirmed the decision of the Entitlement Review Panel [Review
Panel] to grant Kimberley Lien a two-fifths disability entitlement under the Canadian
Forces Members and Veterans Re-establishment and Compensation Act S.C.
2005, c. 21.
[2]
This application is brought by Ms. Lien’s
spouse, because Ms. Lien died by suicide on December 27, 2015.
[3]
The application is granted because the decision
fails to meet the test of “justification, transparency
and intelligibility within the decision-making process” as dictated by
the Supreme Court of Canada in Dunsmuir v New Brunswick, [2008] 1 SCR
190, 2008 SCC 9, at para 47.
[4]
Ms. Lien served in the Canadian Armed Forces
[CAF] from July 31, 2009 until November 17, 2013, when she was medically
discharged as a result of post-traumatic stress disorder, major depressive
disorder, and anxiety disorder [collectively, the Conditions].
[5]
At the time Ms. Lien was accepted into the CAF,
it was understood that she had suffered from “symptoms”
of “depression and anxiety” in the past, but
that these conditions were “not significant enough to
impact her acceptance in the military and her participation in basic training.”
[6]
While in the CAF, two events occurred that
either cause the Conditions, or aggravated her previous symptoms.
[7]
Ms. Lien’s former boyfriend, also a member of
the CAF, committed suicide by hanging in February 2010. After his death, Ms.
Lien provided information and text messages he had sent to her to the Military
Police. It was agreed that this information would be kept strictly
confidential. However, contrary to the agreement, it was not treated as it
ought to have been and Ms. Lien’s superiors and fellow CAF members quickly
became aware of the information she provided. Ms. Lien described that serious
impact on her ability to cope that this breached caused.
[8]
Ms. Lien requested that she be transferred to a
posting in Edmonton, where she had most recently resided and had a support
system, including the Applicant. The CAF, however, posted her to Prince Edward
Island to an area where she had lived as a child. While a child, she had
suffered from physical, mental and sexual abuse by family members, including
her mother and an older brother. As a consequence of living again in this
area, she described how the memories of her childhood abuse came back to her
causing severe mental anguish and post-traumatic stress.
[9]
Notwithstanding this history and the conduct of
the CAF, on April 3, 2014, Veterans Affairs Canada denied disability
entitlement to Ms. Lien based on its finding that the Conditions did not arise
out of CAF service.
[10]
Ms. Lien appealed to the Review Panel, a hearing
was held on September 4, 2015, and she was granted two-fifths disability entitlement
for service in the CAF.
[11]
The Review Panel’s decision was appealed to the
Appeal Panel. A hearing was held on October 5, 2016. Although Ms. Lien had
died in the interim, her evidence from the Review Panel hearing was available,
as was previously submitted medical evidence. The Appeal Panel affirmed the
Review Panel’s decision.
[12]
The Appeal Panel found that “the most significant contributions to the state of the
mental health of the then Applicant were personality disorders and life
circumstances.” It is submitted that this finding was not reasonable
based on the evidence that was before the Appeal Panel. To the contrary, it is
submitted that statements from medical professionals and Ms. Lien indicate that
the most significant contributions to the state of her mental health were not “personal disorder and life circumstances,” but rather
the result of her military service. The Applicant relies on the following
evidence from medical professionals and Ms. Lien, as found in the record.
[13]
On October 16, 2012, Dr. Tran noted that Ms.
Lien’s condition had worsened, and attributed part of this to her being back in
her hometown. On January 11, 2013, Dr. S. Tran noted that remaining in
Charlottetown, Prince Edward Island “severely negatively
impacted her mental health.”
[14]
On January 22, 2014, Dr. Ko noted the impact of Ms.
Lien’s former boyfriend’s death, which increased her pre-existing PTSD symptoms
and worsened her OCD symptoms, eventually resulting in her medical discharge
from the CAF.
[15]
On December 15, 2014, Dr. Miller reviewed Ms.
Lien’s Conditions. The doctor provided an opinion of her health prior to
enrollment. Dr. Miller found “her depression was in
remission and her OCD was not significant enough to impact her acceptance in
the military and her participation in basic training.”
[16]
It was further the doctor’s opinion that:
It is my opinion that her current
condition was both caused by her military service and also Ms. Lien’s military
service aggravated previous psychological difficulties. Receiving news while in basic training about her fellow military
partner’s suicide was clearly a life changing event. The subsequent treatment
by various military personnel certainly was intricately involved in making this
bad event so much worse. First, her desire and need for privacy regarding this
event were ignored (despite repeated promises to the contrary) as this
confidential information was deliberately relayed to her superiors and quickly
spread to all military members and members of the general public. As a result,
Ms. Lien was faced with an onslaught of personal questions about this event
immediately after its occurrence. This, along with the event itself, was too
much for Ms. Lien, and she could not continue on with basic training. [emphasis
added]
[17]
Dr. Miller also noted that posting Ms. Lien to Prince
Edward Island, the place of her childhood abuse, significantly worsened her
Conditions:
Second,
she was denied an attach posting to return home to Edmonton and instead she was
required to stay with her sister on Prince Edward Island. Not only was she not
allowed to return to her own “:safe” residence, but she was required to return
to a location that made her have to deal with unsupportive family members and
where she experienced previous childhood abuse. As a result of these events,
Ms. Lien’s past traumatic childhood memories that were “tucked away” were
activated and began haunting her once again. Her PTSD, depression, anxiety and
OCD all significantly worsened.
[18]
Relying on this and other evidence, counsel for
the Applicant made compelling submissions that the decision under review is
unreasonable because the Appeal Panel failed to comply with the rules of
evidence set out in section 39 of the Veterans Review and Appeal Board Act,
SC 1995, c 18 which requires that the Appeal Board draw “every reasonable inference in favour of the applicant or
appellant” and “accept uncontroverted evidence …
that it considers to be credible in the circumstances.”
[19]
Because of the view I take of the decision under
review, I need not address those concerns.
[20]
The entirety of the Appeal Board’s analysis and
finding is as follows:
The [Review] Panel fairly assessed the
opinions of Dr. S. Tran, psychiatrist and Dr. W. Miller, registered
psychologists.
The Board concurs. The opinions of Dr. Tran
(pp 14-19 and 102-103 SOC) and Dr. Miller (pp 178-179 SOC) are in agreement
with the views of Dr. B. Ko, psychiatrist (pp 24-34 SOC). It is clear from all
these qualified professionals that the most significant contributions to the
state of the mental health of the then Applicant were personality disorder and
life circumstances.
[21]
I concur with counsel for the applicant, that
this finding appears on its face to be at odds with some of the evidence in the
record, including the opinion from Dr. Miller. However, in my view, there is a
fundamental problem with the decision under review, namely that it lacks
justification.
[22]
The Appeal Panel described its job, as follows:
We must divide the relevant contributing
factors into those that are Military and those that are Personal, as per the [Cole
v Canada (Attorney General), 2015 FCA 126] decision. We must then assess
those factors as to whether they are significant, in which case they will be
considered further, or insignificant, in which case these factors will form no
part of the decision. In the final decision, only significant Military Factors
are compensated. Each case, of course, must be assessed and decided on its
own, unique factual circumstances.
[23]
The Appeal Panel provides no independent
analysis of the medical evidence, nor does it describe how it concludes from
that evidence that the major causes were “personality
disorder and life circumstances.” The members of the Appeal Panel,
after describing its job above, goes on to describe how the Review Panel is
entitled to deference, and the Appeal Panel states that we “have done our job.” They say they have done their job
because:
We have exercised our de novo
responsibilities through a thorough review of the file. We have paid heed to
the submissions and request of the Advocate. We have put our mind to the
first-hand assessment of the Review Panel. We appreciate the
sense-of-the-common and legal implications of the concept of deference. Dunsmuir’s
“reasonable range” was defined at its most favourable upper limit by the
request of the Advocate before the entitlement Review Panel for three-fifths
entitlement. The Entitlement Review Panel granted two-fifths. That certainly
is within the range and very close to the requested upper parameter.
[24]
The job of the Appeal Panel is not to
determine if the Review Panel’s decision was reasonable; it is to conduct a de
novo hearing. That requires that it examine and analyze the evidence and
form its own conclusion as to Ms. Lien’s entitlement. It did not do that.
[25]
In summary, the Appeal Panel completely failed
to engage independently with the evidence before it; rather, it reviewed the
record and the decision under appeal and held that the decision of the Review
Panel “certainly is within a reasonable range and very
close to the requested upper parameter.” That is not a de novo
review. The decision of this Appeal Panel cannot stand.
[26]
The parties are agreed that if the Applicant is
successful, he is to be awarded costs of $2,000.
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