Docket: A-198-17
Citation:
2018 FCA 25
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CORAM:
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WEBB J.A.
BOIVIN J.A.
WOODS J.A.
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BETWEEN:
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LIEUTENANT-COMMANDER
HENRICK OUELLET
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
BOIVIN J.A.
[1]
The Appellant, Lieutenant-Commander Henrick
Ouellet, appeals from a judgment of Fothergill J. of the Federal Court
dated June 15, 2017 (2017 FC 586). Fothergill J. dismissed the
Appellant’s application for judicial review of a second decision of the
Entitlement Appeal Panel of the Veterans Review and Appeal Board of Canada
(Appeal Panel) dated September 14, 2016.
[2]
On November 16, 2015, ten months prior to
that decision, a first Appeal Panel had rendered a decision finding that the
Appellant was not entitled to a disability benefit pursuant to section 45
of the Canadian Forces Members and Veterans Re-establishment and
Compensation Act, S.C. 2005, c. 21 (the Compensation Act). That
first Appeal Panel decision affirmed the Entitlement Review Panel’s decision
dated October 21, 2011, which in turn had affirmed the Veterans Affairs
Official decision dated October 19, 2007.
[3]
All of these decisions were related to the
Appellant’s claim, filed August 16, 2007, for a disability benefit in
respect of sarcoidosis which he developed in 2002. He joined the Canadian Armed
Forces in 1989 with a clean bill of health, and claimed that his military
service caused or aggravated his sarcoidosis.
[4]
The Appellant sought judicial review of the first
Appeal Panel’s decision dated November 16, 2015 before Strickland J.
of the Federal Court. In granting the Appellant’s judicial review application
on May 31, 2016, Strickland J. found that the first Appeal Panel’s
decision was unreasonable in that it dismissed the Appellant’s appeal on the
basis that the cause of sarcoidosis was unknown, and failed to give effect to
the statutory presumptions in the Appellant’s favour, namely the presumptions
outlined in section 39 of the Veterans Review and Appeal Board Act,
S.C. 1995, c. 18. Therefore, she remitted the matter for
reconsideration to a differently constituted Appeal Panel taking into
consideration the reasons in her decision.
[5]
Following Strickland J.’s judgment, a
second Appeal Panel considered the matter de novo and rendered the
September 14, 2016 decision which is the subject of this proceeding before
our Court. In that decision, the second Appeal Panel also found that the
Appellant was not entitled to a disability benefit pursuant to section 45
of the Compensation Act.
[6]
The Appellant sought judicial review of the
second Appeal Panel decision on the sole basis that the second Appeal Panel did
not follow instructions provided by Strickland J. in her judgment of
May 31, 2016. Fothergill J. dismissed the Appellant’s application,
and the Appellant now makes this same argument before our Court.
[7]
This argument is without merit. This Court’s
decision in Canada (Citizenship and Immigration) v. Yansane, 2017 FCA
48, [2017] F.C.J. No. 264 (QL) [Yansane] clearly confirms that,
in applications for judicial review, only instructions explicitly stated in the
judgment bind the subsequent decision-maker (para. 19). The decision-maker is
advised to consider the comments and recommendations of the reviewing Court in
its reasons, but is not required to follow them (Ibid).
[8]
Although the Appellant requested a directed
verdict before Strickland J., she expressly declined to render one (Reasons,
para. 67). As such, Strickland J.’s judgment merely states that “[t]he decision of the [first] 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” (Judgment, para. 2).
[9]
Having reviewed the second Appeal Panel
decision, I find that the second Appeal Panel took Strickland J.’s reasons
into consideration in its analysis. It paid particular attention to the medical
evidence presented by the Appellant, namely various medical studies and opinion
evidence provided by his physician, Dr. Smith. Ultimately, the second
Appeal Panel concluded that the preponderance of evidence did not establish
that military service was a significant causal factor in the development of the
Appellant’s sarcoidosis (Second Appeal Panel decision, p. 19; Appeal Book,
Tab 4, p. 443). Accordingly, the second Appeal Panel also found that
the Appellant was not entitled to a disability benefit under section 45 of
the Compensation Act.
[10]
In dismissing the Appellant’s application for
judicial review in respect of the second Appeal Panel decision,
Fothergill J. did not err in finding that the decision was not contrary to
Strickland J.’s judgment and this Court’s teachings in Yansane.
[11]
It follows that the appeal should be dismissed.
As the Crown did not seek costs, none should be awarded.
“Richard Boivin”
“I agree
Wyman W. Webb
J.A.”
“I agree
J. Woods J.A.”
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