Docket: T-966-19
Citation: 2020 FC 474
Ottawa, Ontario, April 2, 2020
PRESENT: The Honourable Madam Justice Strickland
| BETWEEN:
|
| WILLIAM J. DAUPHINEE
|
| Applicant
|
| And
|
| THE ATTORNEY GENERAL OF CANADA
|
| Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a decision by the Entitlement Appeal Panel (“Appeal Panel”
) of the Veterans Review and Appeal Board of Canada (“VRAB”
), affirming the decision of the Entitlement Review Panel (“Review Panel”
) denying the disability award entitlement sought by the Applicant pursuant to s 45 of the Canadian Forces Members and Veterans Re-establishment and Compensation Act, SC 2005, c 21 (“Compensation Act”
).
[2]
For the reasons that follow, this application for judicial review is dismissed.
Background
[3]
The Applicant, William John Dauphinee, served in the Canadian Armed Forces, Reserve Force, from July 6, 1970 to June 15, 1974. Pursuant to s 45 of the Compensation Act, a disability award can be paid to a member of the Canadian Forces or a veteran who establishes that they are suffering from a disability resulting from a service-related injury or disease, or a non-service-related injury or disease that was aggravated by service.
[4]
On July 11, 2013, Veterans Affairs Canada (“VAC”
) denied the Applicant a disability award for claimed lumbar disc disease. The disability adjudicator for VAC concluded that there was not enough medical information to provide a diagnosis for the Applicant’s condition or to confirm the cause of his condition. As such, VAC concluded that the Applicant’s condition did not arise out of, or is not directly connected with his Reserves Force service.
[5]
The Applicant appealed the VAC’s decision to the Review Panel of the VRAB. The Review Panel held a hearing on February 20, 2015. The Review Panel noted that the Applicant claimed his back injury was caused by a jeep accident that occurred in 1973 while he was training at Camp Aldershot in Nova Scotia. However, the Review Panel found there was no diagnosis of lumbar disc disease, the claimed condition. Further, that the Applicant’s jeep accident would not have contributed to his claimed condition and that the first recorded complaint of lower back pain was not until 2011. The Review Panel affirmed the decision by VAC.
[6]
The Applicant appealed the Review Panel’s decision to the Appeal Panel of the VRAB. In a decision dated March 8, 2019, the Appeal Panel affirmed the Review Panel’s finding. The Applicant then sought judicial review of the Appeal Panel’s decision.
Decision under review
[7]
The Applicant elected to have his hearing by the Appeal Panel proceed by way of written submissions.
[8]
The Appeal Panel began its analysis by recognizing its obligations under s 39 of the Veterans Review and Appeal Board Act, SC 1995, c 18 (the “VRAB Act”
). Pursuant to s 39:
39 In all proceedings under this Act, the Board shall
(a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant;
(b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and
(c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.
[9]
It noted this meant, in weighing the evidence, that the Appeal Panel would look at the evidence in its best possible light and resolve doubt to the benefit of the Applicant. However, s 39 did not relieve the Applicant of the burden of proving the facts needed to link his claimed condition to service. Nor was the Appeal Panel required to accept all evidence presented if it is not credible, even if it is not contradicted.
[10]
The Appeal Panel acknowledged that the Applicant did not have any medical complaints or findings at the time of enrollment in the Reserve Force as evidenced by a Report of Physical Examination for Enrolment dated July 6, 1970. Further, that the Applicant believes his back condition is the result of the rigors of his four years in the Reserves, in particular, from being thrown from a jeep in 1973, fracturing his leg in three places, sustaining a severe concussion and bruising his left side. However, the Appeal Panel, like the Review Panel, was unable to locate any contemporaneous documentation of those injuries that would relate to the Applicant’s claimed condition.
[11]
The Appeal Panel noted that the first recorded indication of the Applicant’s claimed condition was contained in a diagnostic imaging report dated March 22, 2011, being 36 years post service.
[12]
The Appeal Panel quoted most of the letter from Dr. Parker, a chiropractor, and in its analysis noted that the Medical Questionnaire: Thoracolumbar Spine Conditions, dated April 26, 2017, referenced in and attached to Dr. Parker’s letter, recorded the injuries as communicated by the Applicant. However, Dr. Parker did not indicate the source of this information except to say that, “I have reviewed the notes, letters, and forms provided in your letter of September 28, 2017 having received the package approximately 10 days ago from Mr. Dauphinee.”
The Appeal Panel did not place significant weight on the report from Dr. Parker because it did not know what documents she reviewed and the VRAB itself could not locate documents contemporaneous to the time of service that captured the alleged jeep accident.
[13]
The Appeal Panel noted that at the Review Panel hearing the Applicant had testified to having a motor vehicle accident in 2007, but claimed to have only hurt his ribs, and to having another accident that year when he was working in his yard and fell down stairs, injuring his back. The Applicant acknowledged making a Workers’ Compensation Claim for his back injury, which was denied.
[14]
The Appeal Panel also addressed the medical report prepared by Dr. Robert Mahar, MD, FRCPC (Physical Medicine and Rehabilitation), dated September 5, 2012. The Appeal Panel extracted portions of Dr. Mahar’s report, including his finding that the issue of thoracolumbar scoliosis was moot; that the extent of degenerative change in the Applicant’s lumbar spine is completely normal and the magnitude of the change was similar to that seen in the general asymptomatic populations of his age; that the Applicant displayed other behavioral positive findings not associated with lumbar dysfunction; and, that based on Dr. Mahar’s examination and review, that the Applicant’s back injury in 1973 was of a soft tissue muscle tendon and ligament injury.
[15]
The Appeal Panel stated that it reviewed the statements of the witnesses and the Applicant, but had difficulty with the credibility of the Applicant and with accepting that some of the letters from the witnesses were authored by them. This was because it was clear from viewing them that the body of the witness statements and the signature on the statements were written by the same person, which was contrary to prior testimony of the Applicant.
[16]
In sum, the Appeal Panel concluded it had not been presented with any persuasive credible medical evidence identifying the cause and/or aggravation of the Applicant’s claimed condition, specific to his time in the Reserve Force. Nor was there persuasive analysis or a credible opinion causally linking service factors to the development and/or aggravation of his claimed condition.
Legislation
[17]
Canadian Forces Members and Veterans Re-establishment and Compensation Act, SC 2005, c 21:
43. In making a decision under this Part or under section 84, the Minister and any person designated under section 67 shall
(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;
(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
(c) resolve in favour of the applicant any doubt, in the weighing of the evidence, as to whether the applicant has established a case.
…
45(1) The Minister may, on application, pay a disability award to a member or a veteran who establishes that they are suffering from a disability resulting from
(a) a service-related injury or disease; or
(b) a non-service-related injury or disease that was aggravated by service.
Veterans Review and Appeal Board Act, SC 1995, c 18:
3 The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled.
…
39 In all proceedings under this Act, the Board shall
(a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant;
(b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and
(c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.
Issue and standard of review
[18]
There is one issue to be determined in this judicial review, being whether the Appeal Panel’s decision is reasonable.
[19]
There is a presumption that reasonableness is the applicable standard whenever a Court reviews an administrative decision (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”
)). That presumption will be rebutted where the legislature has prescribed by statute the applicable standard of review or where there is a statutory appeal mechanism from an administrative decision-maker to a court, thereby signaling the legislature’s intent that appellate standards should apply (Vavilov at para 33). However, in this matter, neither the VRAB Act nor the Compensation Act prescribe an applicable standard of review or contain an appeal mechanism to this Court from a decision of the Appeal Panel. The presumption may also be rebutted where the rule of law requires the application of the correctness standard. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies (Vavilov at paras 17, 53-72). None of those questions arise here.
[20]
Therefore, as the presumptive standard of reasonableness has not been rebutted, it is the applicable standard of review.
[21]
A review for reasonableness means that:
99 A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir, at paras. 47 and 74; Catalyst, at para. 13.
(Vavilov at para 99)
Preliminary matters
i.
Properly named respondent
[22]
The Respondent submits, and I agree, that pursuant to Rule 303 of the Federal Courts Rules, SOR/98-106, the named respondent in this matter should be the Attorney General of Canada. I will order the style of cause to be amended accordingly.
ii.
Admissibility of portions of the Applicant’s supporting affidavit
[23]
The Applicant filed an affidavit in support of his application for judicial review, sworn on July 7, 2017. Therein he states that attached as Exhibit “B”
to his affidavit are “documents which include medical documents which were missing from my file or lost by the respondent along with additional new information”
.
[24]
The Respondent filed an affidavit of Roderick Macleod Black, a Pre-hearing Case Coordinator in the Statement of Case Unit of VRAB, affirmed on July 30, 2019. Mr. Black states that he is able to confirm that the documents that he lists, which are found in Exhibit “B”
of the Applicant’s affidavit, were not before the Appeal Panel when it made its decision. Mr. Black also attaches those documents as Exhibit “A”
of his affidavit.
[25]
The jurisprudence is clear that, as a general rule, the evidentiary record before a Court on judicial review is restricted to the evidentiary record that was before the decision-maker. Evidence that was not before the decision-maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible. The recognized exceptions are when an affidavit: provides general background in circumstances where that information might assist the Court in understanding the issues relevant to the judicial review, but does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker; brings to the attention of the reviewing Court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker so that the Court can fulfill its role of reviewing for procedural unfairness; and, highlights the complete absence of evidence before the administrative decision-maker when it made a particular finding (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 at para 20; see also Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 19-25; Delios v Canada (Attorney General), 2015 FCA 117 at para 45). An applicant cannot adduce new evidence on judicial review in an attempt to impugn the underlying decision on the basis of that evidence (Mahouri v Canada (Citizenship and Immigration), 2013 FC 244 at paras 14-15).
[26]
Here, the Applicant is self represented and has made no submissions as to how his new evidence falls into a recognized exception or is otherwise admissible. However, in his affidavit, he implicitly recognizes that the evidence was not before the underlying decision-maker either because the evidence was “lost”
or is “new”
.
[27]
The Applicant’s written submissions state that there are letters from the veteran’s archives, “explaining lost or misplaced documents of my service records”
. However, upon review of the documents contained in Exhibit “B”
of his affidavit, what is actually provided is a letter from the Library and Archives Canada (“LAC”
), dated December 21, 2010. This is made in response to a Privacy Act request made by the Applicant on December 6, 2010. The letter states that it encloses all of the documents contained in the Applicant’s military personnel file (the referenced documents are not attached to the letter). It also notes that there is no copy of a discharge certificate reflecting the Applicant’s service in the Reserve Force. Therefore, a Statement of Service was provided which, the letter explains, is a document issued by that office to replace a discharge certificate that contains errors or is not contained within an individual’s service file.
[28]
This document does not support the Applicant’s submission that his affidavit provides lost or misplaced documents from his service record. Moreover, the response to his Privacy Act request was sent on December 21, 2010, and accordingly, the material provided in response was available to the Applicant to file in support of his claim for a disability award.
[29]
A March 8, 2011 letter from LAC states that it is made in response to a Record Correction Request Form submitted by the Applicant. The letter states that LAC is simply the repository for the military personnel files of former members of the Canadian military. It is able to make corrections only to details such as date of birth, age, name or other factual information that can be supported by documentation. LAC provided another avenue of inquiry for that issue as well as an issue raised by the Applicant concerning his assertion that National Defence still owed him money from the time of his discharge. When appearing before me, the Applicant focused on the following statement in the letter: “Finally, please note that the records of individuals who served with the Air Cadets were never placed in the custody of Library and Archives Canada, and it is our understanding that records for the period 1967-1970 are not longer in existence.”
However, the Applicant does not suggest that he served with the Air Cadets. Further, his Reserve Force service was from July 6, 1970 to June 15, 1974 and he claims that the back injury he suffered while in the Reserves occurred in 1973. Accordingly, it is not clear how any records from 1970 that may no longer be available are relevant to his claim.
[30]
Many of the other documents found in Exhibit “B”
concern various other claims for benefits or other disability claims (for example, hearing loss and vertigo) made by the Applicant, which are not relevant to the Appeal Panel decision under review in this matter. And, while some documents do relate to lower back pain, they predate the Appeal Panel decision and there is no explanation as to why they were not submitted in support of the Applicant’s claim. This perhaps tracks the Applicant’s written submissions, which largely speak to benefits that he claims were previously approved but were cut off, his claim of hearing loss and, his claims of hardship.
[31]
In my view, the Applicant has not established that the documents contained in Exhibit “B”
of his affidavit fall within any exception to the rule that documents not before the administrative decision-maker are inadmissible.
[32]
And, although when appearing before me the Applicant submitted that he had proof that the documents in his Exhibit “B”
were sent to the VRAB, when asked to point out this evidence he referred to a largely illegible photocopied page, found in Exhibit “A”
of his affidavit, which appears to be blank registered mail forms. This does not establish whether anything was sent, to whom it was sent, or when it was sent.
iii.
Claimed condition
[33]
When appearing before me, the Applicant submitted that he had not claimed that he suffers from the condition of lumbar disc disease and that the Appeal Panel therefore erred in assessing his injury as such. In that regard, I note that nothing in the record explains how the Applicant’s complaint of back problems became categorized as lumbar disc disease (the record does show that he also made a separate claim pertaining to scoliosis lumbar spine which was denied by a review panel). However, the claim was adjudicated as one of lumbar disc disease by both the VAC and the Review Panel. At the Review Panel hearing the Applicant was represented by an Advocate. An Advocate also made written submissions on behalf of the Applicant to the Appeal Panel. There is no evidence in the record suggesting that the Applicant contested the categorization of his claimed condition before either the VAC, the Review Panel or the Appeal Panel. This assertion also does not appear in the Applicant’s Notice of Application or his written submissions made in support of this judicial review.
[34]
Given that the Applicant has not established that his assertion of a mischaracterization of the claimed condition was made when his claim was assessed by the VAC, the Review Panel or the Appeal Panel, it is not open to the Applicant to raise this as a new issue on the merits in this judicial review.
Was the Appeal Panel’s decision reasonable?
Credibility
[35]
The Applicant submitted handwritten letters of support, which are purportedly written by people who witnessed the jeep accident in 1973. The letters are purportedly from Corporal David Gibson, dated June 5, 2012, Sergeant William Solsmon, dated July 2, 2012, and Paul Arthur Dauphinee, dated July 30, 2012. There is also a letter from the Applicant’s father, William Dauphinee, dated July 30, 2012. The witness letters describe the jeep accident as well as immediate and subsequent medical treatment up to the time of the Applicant’s discharge.
[36]
The Appeal Panel stated that it had difficulty accepting the authorship of the witness letters. This was because it was clear from viewing some of the witness statements that the body of the document and the signature were written by the same person. The Appeal Panel acknowledged that the Applicant disputed this at the Review Panel hearing and there testified that some of the statements had been written by himself or his spouse, but signed by the witness, or alternatively were written by his sister-in-law and then signed by his brother. The subject review panel decision is found in the record. It is dated December 5, 2012, and concerns a claim for entitlement made by the Applicant on the basis of scoliosis lumbar spine where the same witness statements were submitted as evidence. That decision states that the Applicant testified that the Gibson statement was written and signed by Mr. Gibson. Further, that the Solsman statement was written by the Applicant but signed by Mr. Solsman, and that the Paul Arthur Dauphinee statement (the Applicant’s brother) was written by the Applicant’s sister-in-law but signed by Paul Arthur Dauphinee. The review panel found that it was plainly obvious that the body of the Paul Arthur Dauphinee statement had the same handwriting as the signature – despite the opposite contention by the Applicant. Further, that the Solsman statement contains a signature which is clearly the same type of handwriting that appears in the body of the letter, again despite the opposite contention by the Applicant.
[37]
Having reviewed the witness statements, and given the Applicant’s prior testimony before another the review panel as to the preparation and signature of those statements, I find that it was reasonable for the Appeal Panel to find the credibility of this evidence, and of the Applicant, to be “difficult”
.
[38]
And, while it certainly would have been preferable for the Appeal Panel to have used more precise language in making its credibility findings (Dumas v Canada (Attorney General), 2006 FC 1533 at para 24 (“Dumas”
)), the Appeal Panel’s finding was clear, as was the justification for it. The choice of wording does not amount to a reviewable error.
[39]
Finally, although the Applicant provided notarised copies of the witness letters as Exhibit “A”
of his affidavit, the notarization simply certifies that the copy of the letter is a true copy of the original. This does not address or cure the prior concern with the authorship of two of the statements and the resultant credibility concerns of the Appeal Panel.
Medical evidence
[40]
Dr. Mahar’s report was comprehensive. It set out the Applicant’s report of the history of his occupational injury, the 1973 jeep accident, to the date of the report including his current symptoms and a functional report; the Applicant’s past medical, family, social history and review of organ systems; a physical examination; and, a medical record review including the records of the Applicant’s family physician, other physicians and x-ray and CT reports. Dr. Mahar then provided a discussion of diagnosis and related issues. He noted that the Applicant had been involved in an occupational back injury 62.5 months prior to the examination but there was no evidence of fracture or dislocation and imaging studies revealed no significant abnormality. The clinical presentation indicated an absence of red flag pathology (eg. bone infection or tumor). The Applicant presented with left side low back pain, which could be consistent with lumbar facet (paired posterior joints) mediated pain. Further, that his presentation was confounded by a number of behavioural positive findings that were not associated with organic lumbar dysfunction, including widespread tenderness to minute pressure, all of which made it more difficult to determine the exact cause of the Applicant’s exact lumbar pain generator.
[41]
Dr. Mahar then responded to series of questions including, based on his examination and review, what he thought the diagnosis was following the Applicant’s back injury in 1973. Dr. Mahar responded that he believed the diagnosis was soft tissue muscle tendon and ligament injury to lower thoracic and lumbar spines as a result of the direct blow, which diagnosis had not changed significantly from 1973 to the time of the report. When asked if “the Worker’s”
back injury and related impairment up to the present time was wholly or partially related to his back injury in 1973, Dr. Mahar responded that his understanding was that the back injury and related impairment at the present time was directly related to the 1973 back injury. He stated there was no indication that further clinical investigation was required and that, “[t]his would be viewed as axial musculoskeletal pain which is benign and is unassociated with loss of tissue integrity”
.
[42]
And that:
The issue of thoracolumbar scoliosis is moot it is not associated with the generation of symptoms and is of such a mild extent that there would be no reason to believe that it is associated with any component of his clinical presentation.
The extent of degenerative change in his lumbar spine is completely normal and consistent with normal human experience ie, it is not associated with the generation of symptoms. The magnitude of this change is similar to that seen in the general asymptomatic population of his age.
[emphasis added]
[43]
The Appeal Panel summarized and quoted portions of Dr. Mahar’s report that were not supportive of the Applicant’s claim. It made no direct finding about the report, but the Appeal Panel ultimately concluded that it had not been presented with any persuasive credible medical evidence identifying the cause and/or aggravation of the Applicant’s claimed conditions, specific to his time in the Reserve Force. Further, that there was neither persuasive analysis nor credible opinion causally linking service factors to the development and/or aggravation of the claimed condition.
[44]
In my view, the Appeal Panel’s conclusion, in the context of Dr. Maher’s report, was reasonable. The Applicant’s claimed condition was lumbar disc disease. Amongst other things, Dr. Mahar found that the Applicant had suffered a soft tissue injury in 1973, and most significantly, that the degeneration of the Applicant’s lumbar spine was normal and not associated with the generation of symptoms. Accordingly, even if the Applicant has had back problems since 1973, it was open to the Appeal Panel to find that the medical evidence did not support a causal connection between his claimed condition and the Reserve Force service. The Applicant had the onus of adducing a causal link between his claimed condition and his service, and this link was not established by Dr. Mahar’s report (Dumas at para 26; Wood v Canada (Attorney General), 199 FTR 133, [2001] FCJ No 52 at para 24 (QL/Lexis) (FCTD)).
[45]
Before leaving the discussion of Dr. Mahar’s report, I note that the Respondent points out that there are two copies of this report contained in the record. However, that they differ and it appears that the report has been altered. The Respondent points to multiple examples of the differences in two versions of Dr. Mahar’s report. All that I can say about this is to confirm that the Respondent’s observations are accurate and that the apparent alterations to the report are unexplained.
[46]
As to the Appeal Panel’s treatment of the letter from the chiropractor, Dr. Parker, that is, affording it little weight, in my view this was also reasonable. Dr. Parker’s November 24, 2017 letter is brief. It states:
I have reviewed the notes, letters, and forms provided in your letter of September 28, 2017 having received the package approximately 10 days ago from Mr. Dauphinee.
The history of the mechanism of injury and subsequent pain and disabilities patterns concur with that provided in [the Applicant’s] statements to me at the time of his initial assessment and are inkeeping [sic] with one another. The 2 Medial Questionnaire Forms completed by this office earlier this year are supportive of the findings when he was in attendance in this office. Mr. Dauphinee was last seen at this office May 01, 2017.
[47]
The Appeal Panel observed that it did not know what documents Dr. Parker reviewed and that the VRAB itself had been unable to locate documents contemporaneous to the Applicant’s time of service that captured the allegation of a jeep accident.
[48]
In my view, Dr. Parker’s letter is both brief and vague. Unlike Dr. Mahar, she did not list the reports of physicians, any x-rays or other reports that she considered. The documents said to have been provided with the Applicant’s referenced letter of September 28, 2017 are not attached to Dr. Parker’s letter and are not identifiable from the record. Accordingly, as the Appeal Panel found, it is not possible to discern what documents she reviewed. Nor does the “Medical Questionnaire: Thoracolumbar Spine Conditions”
provide a diagnosis. Indeed, Dr. Parker’s letter seems only to say that a package of unidentified notes, letters and forms sent by the Applicant concur with what the Applicant had previously told Dr. Parker when he was assessed. And, that the two medical questionnaires completed by her office “are supportive of the findings when he was in attendance at this office”
. However, Dr. Parker does not state what her findings were. Given this, the Appeal Panel was justified in affording Dr. Parker’s letter little weight.
[49]
In conclusion, given Appeal Panel’s adverse credibility findings, the absence of contemporaneous medical evidence of the Applicant’s jeep accident, the vagueness of Dr. Parker’s letter and the fact that Dr. Mahar found that the degeneration of the Applicant’s lumbar spine was normal and not associated with the generation of symptoms – that is, he did not diagnose lumbar disc disease or attribute it to the Applicant’s Reserve Force service – the Appeal Panel’s finding that the evidence did not causally link service factors to the development and/or aggravation of the claimed condition was justified and reasonable.
[50]
The Respondent does not seek costs and therefore none shall be ordered.
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