Date: 20060517
Docket: T-1294-05
Citation: 2006 FC 610
Ottawa, Ontario, May 17, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
THOMAS MOAR
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Moar, who served in Canada's armed forces from 1961 to 1988, suffers from asthma. He claims that his condition was caused or aggravated by two specific events that occurred during his military service:
- In March 1965, Mr. Moar was accidentally sprayed with JP4 jet fuel, which fuel came into contact with his upper body, including his eyes, ears, nostrils, and mouth.
- In 1972, Mr. Moar spent one month fuelling Mark 46 Torpedoes with Otto Fuel II (Otto fuel), which is a toxic liquid and produces toxic fumes.
[2] His application of September 15, 2003 for a disability pension was denied by the Minister responsible for Veterans' Affairs on March 8, 2004. That decision was affirmed by an Entitlement Review Panel (the Entitlement Panel) on June 25, 2004 and again on an entitlement appeal heard by the Veterans Review and Appeal Board (the Appeal Board or VRAB) on June 2, 2005. The Appeal Board, in denying Mr. Moar's appeal, concluded that "the medical evidence, while entertaining a certain plausibility or possibility, is not supported by the medical history of the Appellant."
Issues
[3] The key issue in this application is whether, in dismissing the appeal, the Appeal Board erred in finding the opinions of two medical experts to be not credible. The Respondent concedes that, if the Appeal Board's finding on this question is not sustainable upon this Court's review, the application should be allowed. Mr. Moar also raises the issue of whether, even without the medical opinions, the Board erred in rejecting his claim.
Legislative Framework
[4] The key statutory provision governing Mr. Moar's claim is s. 21(2)(a) of the Pension Act, R.S.C., 1985, c. P-6 which sets out the conditions for the grant of a disability pension for military service in peace time and reads as follows:
| (a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I; [emphasis added]
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(a) des pensions sont, sur demande, accordées aux membres des forces ou à leur égard, conformément aux taux prévus à l'annexe I pour les pensions de base ou supplémentaires, en cas d'invalidité causée par une blessure ou maladie -- ou son aggravation -- consécutive ou rattachée directement au service militaire; [je souligne]
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[5] Mr. Moar's appeal, the subject of this application for judicial review, was brought under s. 25 of the Veterans Review and Appeal Board Act, S.C., 1995, c. 18 (VRAB Act). Also of particular significance to these proceedings are s. 3, which requires a liberal construction and interpretation of the statute (s. 2 of the Pension Act is to the same effect), and s. 39, which provides direction to the Board as to how it is to consider and weigh the evidence and arrive at a decision:
| 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.
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3. Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s'interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l'égard de ceux qui ont si bien servi leur pays et des personnes à leur charge.
39. Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les règles suivantes en matière de preuve :
(a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci;
(b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l'occurrence;
(c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
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Analysis
- Approach to Assessing Appeal Board's Decision
[6] In determining whether a disability resulted from "an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service" and is, thus, pensionable, the Appeal Board must, in effect, address three questions (Elliot v. Canada (Attorney General) (2003), 307 N.R. 344, 2003 FCA 298):
(a) Is there a disability?
(b) Can the cause of that disability be identified?
(c) Did the disability arise out of the military service?
[7] There is no question about the first question; the Appeal Board accepted that Mr. Moar has asthma - a disability. On the facts of Mr. Moar's case, there is overlap between the second and third questions. That is, if Mr. Moar's disability was caused by the exposures to the fuels, it would follow that the disability arose from his military service. In response to the second question, the Appeal Board addressed the medical evidence presented by Mr. Moar and concluded that this evidence was not credible. In other words, the Appeal Board was not satisfied that the exposures to jet fuel and torpedo fuel were the cause of the disability.
- Standard of Review
[8] The question of what caused Mr. Moar's disability is a question of fact in respect of which the appropriate standard of review has consistently been held to be patent unreasonableness (McTague v. Canada (Attorney General), [2000] 1 F.C. 647, [1999] F.C.J. No. 1559 (QL) at para. 46 (T.D.); Comeau v. Canada (Attorney General), 2004 FC 1091, [2004] F.C.J. No. 1323 (QL) at para. 51; Bradley v. Canada (Attorney General), 2004 FC 996, [2004] F.C.J. No. 1211 (QL) at paras. 16 & 19; and Nisbet v. Canada (Attorney General), 2004 FC 1106, [2004] F.C.J. No. 1340 (QL) at paras. 8-13). Stated in other terms, the Appeal Board errs only if it based its decision on an erroneous finding of fact, made in a perverse or capricious manner or without regard to the evidence (Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58, [1998] F.C.J. No. 890 (QL) at para. 18 (T.D.), aff'd [1999] F.C.J. No. 1800 (F.C.A.)).
[9] The Supreme Court of Canada has described a patently unreasonable decision as one that is "clearly irrational" or "evidently not in accordance with reason" (Law Society of New Brunswick v. 2003 SCC 20">Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 52).
- Burden of Proof
[10] As noted above, Parliament, in enacting s. 3 and s. 39 of the VRAB Act, has expressed the intention that the Appeal Board accept and consider evidence in a way that might not meet the exigencies of a trial. The Appeal Board is obligated, in accordance with the liberal and purposive guidelines found in s. 21(3) of the Pension Act and ss. 3 and 39 of the VRAB Act, to analyze Mr. Moar's claim and evidence in the best possible light, with a mind to whether he has proven his claim on a balance of probabilities (Hunt v. Canada (Minister of Veterans Affairs) (1998), 145 F.T.R. 96, [1998] F.C.J. No. 377 (QL) at para. 9 (T.D.); Schut v. Canada (Attorney General), 2003 FC 1323, [2003] F.C.J. No. 1672 (QL) at paras. 23 & 26; Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133, [2001] F.C.J. No. 52 (QL) at para. 22 (T.D.)) However, this does not negate the burden on Mr. Moar to prove his case on a balance of probabilities; rather, it may be easier for him to meet that threshold.
- Medical Opinions
[11] The key pieces of evidence upon which Mr. Moar relied were the medical opinions of Dr. Peyton, a family physician, who provided one opinion, and Dr. Sproule, a specialist in the field, who provided three opinions. The Appeal Board reviewed each of the opinions.
4.1 Dr. Peyton's Opinion
[12] Dr. Peyton, after reviewing Mr. Moar's history of respiratory symptoms, concluded that:
It remains my opinion therefore that Mr. Thomas Moar was placed in a situation when working with "Otto fuel" with potential for deleterious effects on his lung function both immediately and on a longer term basis and I expect his current claim to be given serious consideration as a result.
[13] The Appeal Board rejected Dr. Peyton's opinion, stating as follows:
In [his] report, Dr. Peyton refers to the Appellant's history of respiratory symptoms dating back to approximately 1972. However, the evidence does confirm that the Appellant had problems in the 1960s with bronchitis. While Dr. Peyton does refer to the exposure to Otto fuel in 1972 and states that the Appellant's respiratory symptoms originally related to that exposure, there is no documented medical evidence to relate that exposure to an aggravation of the Appellant's condition. While the Board takes into consideration the possible effects of Otto fuel, there is no documented medical evidence that one month of exposure caused or aggravated the Appellant's claimed condition as there is no credible evidence of chronic exposure. Overall the Board does not find Dr. Peyton's opinion to be credible since it is not based on the facts in this case.
[14] Mr. Moar submits that this conclusion is "irrational" and, thus, patently unreasonable. In particular, Mr. Moar points to the Technical Manual entitled "Otto Fuel II Safety, Storage and Handling Instructions", dated December 15, 1980. In section 3-14, the Manual states that toxic effects may occur from the inhalation of Otto fuel vapours. In section 3-15, the Manual states that "chronic effects of long-term exposure to Otto Fuel II . . . are unknown." Mr. Moar submits that, in the face of this evidence, the Appeal Board erred by stating that there was no documented medical evidence relating the exposure to torpedo fuel to Mr. Moar's condition as a reason for finding Dr. Peyton's opinion not credible. Mr. Moar contends that Dr. Peyton's opinion was the very documented medical evidence that establishes that link.
[15] I am not persuaded that the Appeal Board erred in rejecting Dr. Peyton's opinion. The evidentiary record contains no medical literature establishing that exposure to JP4 jet fuel or Otto fuel could cause asthma. At best, the Manual relating to the Otto fuel indicated some acute effects relating to respiration from contact with, or inhalation of, the fuel, and mentioned that chronic effects of "long-term exposure" were unknown. This falls far short of supporting a conclusion that Otto fuel could either cause or aggravate Mr. Moar's condition.
[16] Further, the Board took note of the lack of documented evidence showing long-term exposure by Mr. Moar to Otto fuel. The Appeal Board isolated this factor as important because the Manual suggests that deleterious effects may result from inhalation to long-term exposure (in fact, the manual is equivocal on this point, stating that the long-term effects from chronic exposure are "unknown"). Mr. Moar's evidence was that he was exposed to the Otto fuel fumes for one month. Accordingly, the Appeal Board did not err by stating that there was no evidence of chronic exposure to the fuel, and Dr. Peyton's knowledge of the facts does not conflict with this finding. In fact, Dr. Peyton never discusses whether the exposure could be described as "chronic".
[17] Finally, the Appeal Board correctly pointed out that Dr. Peyton's opinion was "not based on the facts in this case." Specifically, Dr. Peyton did not refer to a number of relevant facts, such as:
- respiratory symptoms or bronchitis before 1972;
- the Applicant being splashed with jet fuel in 1965 or 1966;
- any medical record of respiratory problems in 1972-1974;
- positive allergy tests during the Applicant's service; and
- the thirteen to fifteen year time span between the Applicant's retirement from the service and his diagnosis of asthma.
[18] In sum on this medical opinion, the Appeal Board's determination that Dr. Peyton's opinion was not "credible" is amply supported by the evidence.
4.2 Dr. Sproule's Opinions
[19] Dr. Sproule provided Mr. Moar with three opinions. In an Addendum to the first opinion, dated October 27, 2004, Dr. Sproule concluded that:
[I]n my opinion, the relationship of his present state of, by history, mild airway hyper-reactivity cannot be convincingly related to his past exposure to fumes from aircraft fuel in the distant past.
[20] In his second opinion, dated December 13, 2004, Dr. Sproule stated that:
[I]t is possible for exposure to a variety of inhalants and fumes from various types of aircraft fuel to contribute to the development of a state of airway hyper-activity.
However, in this opinion, Dr. Sproule drew no connection between this possibility and the "mild airway hyper-activity" experienced by Mr. Moar.
[21] The final opinion was dated March 8, 2005. Dr. Sproule stated as follows:
I did give, as an opinion, that this state was unlikely to have resulted from his past exposure to fumes from aircraft fuel.
However, as I review the situation and evaluate the possibilities and probabilities, it is, I think plausible that his exposure to fumes from aircraft fuel in the distant past could have been, in part, responsible for triggering the reaction of continued airway hyper-reactivity which he has continued to suffer from. It is impossible to quantitate, in my view, how much of a factor that was but, it is, indeed, a possible contributing factor.
[22] The Appeal Board considered all three opinions and concluded that:
Overall, the Board finds that Dr. Sproule is not convinced of a relationship between exposure to aircraft fuel or Otto fuel and asthma, and his opinion is not convincing given the number of times he presented his opinion. Furthermore, he did not take into consideration all the factors which would play a role in the development of the disease.
[23] The Appeal Board is under an obligation to provide cogent reasons for rejecting a medical opinion (Jones v. Canada(Attorney General), 2005 FC 620, [2005] F.C.J. No. 767 (QL) at para. 18) and, in Mr. Moar's submission, failed to do so in this case. Mr. Moar first argues that the Appeal Board erred by not identifying the factors not taken into account by Dr. Sproule. I do not agree. In assessing whether the Appeal Board supplied cogent reasons for the rejection of Dr. Sproule's opinion, one must read the decision in its entirety and not just the one paragraph relied on by Mr. Moar in making this argument. In many sections of its decision, the Appeal Board has carefully set out the factors that could have impacted on Mr. Moar's condition. It would be evident to a reader of Dr. Sproule's opinions and the entire decision what factors were not taken into account by this specialist. The Appeal Board's omission of the factors from this particular paragraph is not a reviewable error.
[24] Mr. Moar also submits that the Appeal Board misapprehended Dr. Sproule's opinion by stating that he was "not convinced of a relationship between exposure to aircraft fuel or Otto fuel and asthma." In Mr. Moar's view, Dr. Sproule clearly stated that he thought a relationship between the two existed.
[25] The Appeal Board, in my view, did not misapprehend the opinions of Dr. Sproule. The words used by Dr. Sproule, in the final paragraph of his final opinion, are extremely vague. In this regard, the opinion of Dr. Sproule differs substantially from that considered by the Court in Jones, above, where the opinion "was categoric that Mr. Jones' psychiatric condition was directly and fully related to his military service." Further, Dr. Sproule restates his opinion that Mr. Moar's condition "was unlikely to have resulted from his past exposure to fumes from aircraft fuel". I do not read the final paragraph of Dr. Sproule's opinion as changing this conclusion; rather it merely states a possibility of a connection between Mr. Moar's asthmatic condition and his exposure to Otto fuel. The opinion was not conclusive and was open to an interpretation by the Appeal Board that differs from that held by Mr. Moar. The Court owes very high deference to the Appeal Board's expertise in weighing inconclusive medical information (Powell v. Canada(Attorney General), 2005 FC 433, [2005] F.C.J. No. 537 (QL) at para. 15).
[26] Given the contents of Dr. Sproule's opinions, the fact that there were three opinions and that Dr. Sproule did not appear to have taken all of the relevant factors into account, the Appeal Board's rejection of the opinions was not unreasonable.
- Other evidence
[27] In the absence of credible medical opinions, which (as discussed above) were rejected by the Appeal Board, the only evidence in Mr. Moar's favour was the mere fact of exposure to the jet fuel and Otto fuel, and the hazard warnings contained in the 1980 Technical Manual relating to the Otto fuel. Those hazard warnings were as follows:
3-13 HEALTH. The ingredient of medical concern in Otto Fuel II is the nitrated ester propylene glycol dinitrate (PGDN). Nitrated esters are known for their acute effects on the human body. These include nasal congestion, headache, dizziness, nausea, dilation of blood vessels, decrease in blood pressure, and labored breathing.
3-14 Toxic Effects. Toxic effects may occur from the inhalation of Otto Fuel II vapors, inhalations of combustion by-products... absorption from direct skin contact, or ingestion.
3-15 Chronic Effects. Chronic effects of long-term exposure to Otto Fuel II or to PGDN are unknown. The severity of the toxic effects varies with the concentration, length of exposure, and temperature of the propellant.
[28] The manual warns against acute effects, including nasal congestion and laboured breathing, and chronic effects from long-term exposure, which are unknown. Therefore any "chronic exposure" (i.e. long-term exposure) to the fuel was a relevant consideration. Mr. Moar's evidence established that he had worked with the fuel for one month. In the Appeal Board's opinion, this was not evidence of "chronic exposure"; this is not a patently unreasonable finding.
Conclusion
[29] I acknowledge that the evidentiary burden Mr. Moar must meet is less demanding than in some judicial matters and that the Appeal Board must analyze the claim and evidence in the best possible light. Nevertheless, it was still incumbent on Mr. Moar to present evidence that would enable the Appeal Board to draw a reasonable inference that Mr. Moar's asthma was caused or aggravated by his exposure to Otto fuel or JP4 fuel. As stated by Justice Nadon in Elliot, above, at para. 46: "A reasonable inference is therefore one that is not necessarily probable but must nonetheless be more than a mere possibility." Having reviewed the decision of the Appeal Board and the evidence before it, I am satisfied that the Appeal Board did not err and that the evidence before the Appeal Board established no more than a mere possibility that Mr. Moar's condition was caused or aggravated during his membership in Canada's armed forces.
[30] For these reasons, the application will be dismissed, with costs to the Respondent.
ORDER
This Court orders that:
- The application is dismissed with costs to the Respondent.
Judith A. Snider
_____________________________
Judge
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