Date: 20060529
Docket: T-1746-05
Citation: 2006 FC 646
Ottawa, Ontario, May 29,
2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
NICOLAS
MATUSIAK
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In
2002, after a military career lasting some 25 years, Nicolas Matusiak was
discharged from the Canadian Forces for medical reasons. Mr. Matusiak had been
suffering from a major depression for several years prior to his discharge, and
was unable to work.
[1]
[2]
The
Veterans Review and Appeal Board initially refused Mr. Matusiak’s application
for a disability pension on the grounds that his disability did not arise out
of his military service. On judicial review, Justice Teitelbaum set aside that
decision, and referred the matter back to the VRAB for redetermination.
[3]
The
VRAB then determined that Mr. Matusiak was entitled to 2/5 of a full pension,
on the basis that other factors, not directly connected to his peacetime
service, played a role in the development of his depression. This is an
application for judicial review of that decision.
[4]
At
the conclusion of the hearing in this matter, I advised the parties that I
would be allowing this application. These are my reasons for doing so.
Mr. Matusiak’s Military Career
[5]
After
enlisting in the Canadian Forces in 1977, Mr. Matusiak enjoyed a successful
military career until he began to develop psychiatric problems in the
mid-1990's. In early 1996, Mr. Matusiak was diagnosed with dysthemia, or mild
depression. He was treated with anti-depressant medication, and continued to
work.
[6]
In
1997, Mr. Matusiak was assigned to a new position, in which he was required to
report to a Major Burke. Mr. Matusiak states that Major Burke told him in
their initial interview that he had heard from other officers that Mr. Matusiak
was a "troublemaker", and that he was "disloyal", and
"unprofessional". Things went downhill from there.
[7]
Mr.
Matusiak was still taking anti-depressants when he began reporting to Major
Burke, and he began seeing a doctor more frequently because of the stress that
he was feeling.
[8]
In
April of 1998, Mr. Matusiak was told that he would be receiving a promotion.
However, this promotion was subsequently cancelled.
[9]
Mr.
Matusiak had received a disciplinary sanction from Major Burke in the form of a
Recorded Warning. This Recorded Warning evidently played a role in the
withdrawal of Mr. Matusiak’s promotion, and was subsequently found by the
Canadian Forces Grievance Board to have been unjustified. While the Warning
was removed from Mr. Matusiak’s service file two weeks after it had been
issued, Mr. Matusiak says that the damage to his reputation and his career had
already been done.
[10]
On
June 19, 1998, Mr. Matusiak filed a grievance with respect to the Recorded
Warning. The grievance was dismissed on July 8, 1998. Although he was not yet
aware of the decision, that same day, Mr. Matusiak was diagnosed as suffering
from a major depression. When Mr. Matusiak was notified of the dismissal of
his grievance two days later, he says that he suffered a “nervous breakdown”.
[11]
Mr.
Matusiak went on sick leave at this point, and never returned to work. He
continued to receive medical attention, showing some signs of improvement until
December of 1998, when an application for the reconsideration of his grievance
was itself dismissed.
[12]
Mr.
Matusiak continued to pursue his grievance, and on March 26, 2002, the Canadian
Forces Grievance Board found that the Recorded Warning imposed by Major Burke
was inappropriate. The Board also found that Mr. Matusiak’s grievance had been
handled in an inappropriate manner by the military. Mr. Matusiak was pursuing
his pension claim at the time, and the Board recommended that he be compensated
through the provision of a disability pension.
Mr. Matusiak’s Pension
Application
[13]
Mr.
Matusiak applied for a disability pension on January 24, 2000. He received
some compensation for a knee injury, but his application was otherwise refused
by the Department of Veterans Affairs, based upon the finding that his major
depression was not connected to his military service.
[14]
Mr.
Matusiak appealed this decision to an Entitlement Review Panel of the VRAB ,
which heard his case on October 30, 2001. The Panel granted Mr. Matusiak some
additional compensation for carpal tunnel syndrome, but once again found that
his major depression was not connected to his military service.
[15]
Mr.
Matusiak then appealed this decision to the VRAB itself. In a decision dated
December 22, 2003, the VRAB found that while Mr. Matusiak suffered from
depression, it was not connected to his military service.
[16]
Mr.
Matusiak’s application for judicial review of this decision was allowed by
Justice Teitelbaum. As the scope of Justice Teitelbaum’s decision, and the
directions he provided to the VRAB are in issue in this proceeding, it is
necessary to examine this decision in some detail.
[17]
Both
parties agree that it is implicit in Justice Teitelbaum’s decision that he
found that Mr. Matusiak’s original dysthemia, or mild depression, did not arise
out of his service in the military. Rather, Justice Teitelbaum identified the
question for the VRAB as whether this pre-existing condition was subsequently
aggravated by events in Mr. Matusiak’s workplace.
[18]
In
addressing this question, Justice Teitelbaum reviewed the medical evidence that
was before the VRAB, as well as the evidence regarding what was going on in the
workplace as Mr. Matusiak’s condition worsened. In this regard, Justice
Teitelbaum noted the numerous references in the medical reports to the stress
that Mr. Matusiak was experiencing at work. Justice Teitelbaum also observed
the temporal relationship between the issuance of the Recorded Warning, the
loss of Mr. Matusiak’s promotion, and his complete psychological collapse.
[19]
Justice
Teitelbaum noted that the VRAB had placed great reliance on one medical report,
which could be read as suggesting that Mr. Matusiak had imagined the problems
that he was experiencing at work. In so doing, the VRAB did not explain why
the opinion expressed in this report outweighed numerous contrary opinions in
other reports in the record from different doctors.
[20]
Justice
Teitelbaum concluded that the VRAB had committed patently unreasonable errors
in ignoring clear, objective evidence before it, and in giving undue weight to
part of one doctor's report, without adequate explanation.
[21]
Justice
Teitelbaum also found that the VRAB did not take the proper approach to the
issue of causation, and thus erred in law. In this regard, he stated that:
[82] ... [T]he requirement of proximity
is not part of the "arising out of" standard applicable to the case
before the Court. Even if it were to be applied under the "directly
connected" half of the test, and even if the Board found the Applicant to
be a 'thin skulled' claimant owing to his existing depressive condition ...
this would not necessarily relieve the Canadian Forces of
responsibility...
[22]
Finally,
in remitting this matter to the VRAB, Justice Teitelbaum stated that the matter
was to be redetermined:
[85] ... in a manner that accords with
its governing statutes and these reasons. I would add that the actions of Major
Burke in his dealing with the Applicant have a great deal to be desired. I am
satisfied from reading the documents that Major Burke severely contributed to
the Applicant's major depression.
The VRAB’s Second
Decision
[23]
In
its second decision, the VRAB identified the issue to be determined as whether
Mr. Matusiak’s major depression was caused, in whole or in part, by
service-related stressors which arose out of his service with the Canadian
Forces. The VRAB found that the evidence did not support a finding that the
development of Mr. Matusiak’s major depression, and his breakdown in 1998, were
entirely related to his military service. Instead, the VRAB concluded that 3/5
of the pension should be withheld because of the existence of other factors
that allegedly contributed to the development of Mr. Matusiak’s psychiatric
disability.
[24]
In
coming to this conclusion, the VRAB found that the evidence indicated that
other psychiatric traits, including a paranoid personality, as well as possible
psychosis and delusions, were non-service factors which played a role in the
development of Mr. Matusiak’s major depression.
[25]
The
VRAB observed that the stressors to which Mr. Matusiak attributed his breakdown
and the development of his major depression in 1998 involved issues secondary
and incidental to his work. The Board stated that “while they may have arisen
in the workplace environment, the stressors did not arise out of the work
itself. Rather, the stressors were a product of these interactions with his
colleagues and arose directly out of conflicts and disputes with the
individuals with whom he worked”.
[26]
The
VRAB did not accept that Major Burke’s actions played a significant role in the
development of Mr. Matusiak’s major depression, noting that Mr. Matusiak had
difficulties with other co-workers, apart from Major Burke. Instead, the VRAB
found that the conflicts that eventually culminated in Mr. Matusiak’s disabling
breakdown were caused by his personality traits and his ever-increasing
paranoia.
[27]
In
this regard, the VRAB had this to say:
In the initial stages of the disputes
which eventually led to the Appellant’s grievance, he was, to a significant degree,
the author of his own unhappiness and stress.
[28]
The
Board also found that Mr. Matusiak’s other, non-psychiatric, health-related
issues caused him stress during the period of time in which his depression was
worsening. In addition, the Board found that the fact that his anti-depressant
medication had stopped working was another, non-service-related, factor
contributing to the deterioration in Mr. Matusiak’s condition.
[29]
The
VRAB did find that the manner in which the Canadian Forces dealt with Mr. Matusiak’s
grievance created stress for Mr. Matusiak, as the grievance had not been
handled properly. The Board found it reasonable to infer that the Forces’
handling of the grievance was the “straw which broke the camel’s back”, playing
a contributing role in the deterioration of Mr. Matusiak’s mental health.
[30]
Based
on all of the evidence and circumstances, the Board concluded that the most
significant factors in the development of Mr. Matusiak’s psychiatric disability
were not related to, nor did they arise out of, his military service. As a
consequence, the VRAB held that 2/5 of a pension represented fair compensation
for the role that stressors arising out of the mishandling of Mr. Matusiak’s
grievance may have played in the aggravation of his condition.
Statutory Framework
[31]
The
VRAB decision centres on the interpretation of subsections 21(2) and 21(2.1) of
the Pension Act, which defines entitlement to a military disability
pension in peacetime. It provides as follows:
|
21 (2) In respect of military service rendered in
the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,
( 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;
(2.1) Where a pension is awarded in respect of a
disability resulting from the aggravation of an injury or disease, only that
fraction of the total disability, measured in fifths, that represents the
extent to which the injury or disease was aggravated is pensionable.
|
21 (2) En
ce qui concerne le service militaire accompli dans la milice active non permanente ou dans l’armée de réserve pendant la Seconde Guerre
mondiale ou le service militaire en temps de paix :
a) des pensions sont, sur demande,
accordées aux membres des forces ou B leur égard, conformément
aux taux prévus B 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;
(2.1) En cas d’invalidité résultant de
l’aggravation d’une blessure ou maladie, seule la fraction — calculée en
cinquiPmes — du degré total d’invalidité qui représente l’aggravation
peut donner droit B une pension.
|
[32]
Also
relevant to this matter is section 39 of the Veterans Review and Appeal
Board Act, which provides that:
|
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.
|
39. Le
Tribunal applique, B l’égard du demandeur ou de l’appelant, les rPgles suivantes en matiPre de preuve :
a) il tire des circonstances et des éléments de preuve qui lui sont
présentés les conclusions les plus favorables possible B 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.
|
Standard of Review
[33]
The
parties are in agreement that the standard of review applicable to this case
was properly described by Justice Teitelbaum in his earlier decision in this
matter, where, after reviewing the jurisprudence, he stated that:
[35]
Having traced the standard of review analysis in cases such as these back to
its root, I find that the standard of review is reasonableness simpliciter
for the question of whether the Board failed to interpret the evidence as a
whole in the broad manner required by the statute. The standard of patent
unreasonableness is applicable solely to the Board's weighing of conflicting
medical evidence to determine whether the disability was caused or aggravated
by military service.
[34]
I
agree with Justice Teitelbaum’s conclusion in this regard, and adopt his
analysis as my own.
Analysis
[35]
The
decision under review largely turns on the VRAB’s finding that much of the
difficulty that Mr. Matusiak encountered in the workplace was attributable to
his paranoid personality traits. The VRAB also found that Mr. Matusiak had
possibly been delusional and psychotic as well.
[36]
It
is true that there was some evidence before the VRAB to suggest this could
possibly have been the case. In particular, there was the opinion of Dr.
Bourgon referred to in VRAB’s decision. There were, however, significant
frailties associated with this evidence. For example, Dr. Bourgon only saw Mr.
Matusiak on one occasion, approximately one year after his breakdown. Thus, he
was endeavouring to reconstruct what Mr. Matusiak’s condition might have been a
year before, based upon a single interview.
[37]
Moreover,
Dr. Bourgon’s evidence is at odds with the evidence of Mr. Matusiak’s own
treating psychiatrist, who stated that she had never observed any indications
of a thought disturbance or perceptual abnormality on the part of Mr. Matusiak
during her numerous sessions with him. A number of other physicians made the
same observation.
[38]
Counsel
for the respondent candidly acknowledged that it was patently unreasonable for
the VRAB to selectively accept the evidence of Dr. Bourgon, while ignoring the
considerable body of evidence running directly contrary to its conclusion,
without any explanation. Counsel also conceded that this error was
sufficiently serious as to require that Mr. Matusiak’s application for judicial
review be allowed.
[39]
I
agree that this error, by itself, was sufficiently grave as to warrant the
decision of the VRAB being set aside. The VRAB’s error is all the more
egregious having regard to the statutory requirement that any doubt in the
weighing of the evidence is to be resolved in favour of an applicant.
[40]
There
were, however, other errors in the VRAB’s handling of this matter. Because
this matter is being remitted to the VRAB, yet again, for redetermination, I am
of the view that these errors should be drawn to the Board’s attention, so as
to avoid the possible repetition of these errors in future proceedings.
[41]
First
of all, when one reads the decision as a whole, one is left with the
overwhelming impression that the VRAB was seeking to find a way to limit Mr.
Matusiak’s entitlement to a pension. Where more than one inference could be
drawn from the evidence, the VRAB chose the inference least favourable to Mr.
Matusiak, contrary to the statutory guidance provided by section 39 of the Veterans
Review and Appeal Board Act.
[42]
In
addition, the VRAB was of the view that many of Mr. Matusiak’s difficulties in
the workplace were attributable to his paranoid personality traits, and to the
delusions and psychoses that he may have been experiencing. In this regard,
the Board found that Mr. Matusiak was, to a significant degree, the author of
his own unhappiness and stress.
[43]
I
have already concluded that the VRAB’s finding regarding Mr. Matusiak’s alleged
paranoid personality traits, and his possible delusions and psychoses, was
fundamentally flawed. Nevertheless, the Board found that he did. To then go
on to suggest that someone suffering from these serious psychiatric conditions
was “the author of his own unhappiness and stress” is simply astonishing. In
my view, this comment by the VRAB shows a remarkable lack of understanding of,
and insensitivity to, the realities of mental illness.
[44]
Finally,
the VRAB simply disregarded the clear finding contained in Justice Teitelbaum’s
decision. In this regard, it bears repeating that, in remitting this matter to
the VRAB, Justice Teitelbaum stated that the matter was to be redetermined:
[85]
... in a manner that accords with its governing statutes and these reasons. I
would add that the actions of Major Burke in his dealing with the Applicant
have a great deal to be desired. I am satisfied from reading the documents
that Major Burke severely contributed to the Applicant's major depression.
[emphasis added]
[45]
Counsel
for the respondent submits that this comment was merely obiter, and was
not intended as a direction to the Board. I do not agree. When read in its
context, in the paragraph dealing with the remittal of the matter to the VRAB,
it was clear that Justice Teitelbaum intended that the redetermination of
Mr. Matusiak’s case be carried out based upon his finding regarding Major
Burke’s significant contribution to Mr. Matusiak’s illness.
[46]
Nevertheless,
the VRAB went on to find that Major Burke’s actions did not materially
contribute to the onset of Mr. Matusiak's major depression. With respect, such
a finding was simply not open to the VRAB, in light of Justice Teitelbaum’s
finding specifically on this point.
Conclusion
[47]
For
these reasons, this application for judicial review is allowed. The decision
of the VRAB is set aside, and the matter is remitted to the VRAB for
redetermination with the following directions:
1. The re-hearing of Mr.
Matusiak’s case is to be expedited; and
2. The
decision of the VRAB is to reflect Justice Teitelbaum’s finding that the
actions of Major Burke in his dealings with Mr. Matusiak severely contributed
to Mr. Matusiak's major depression.
Costs
[48]
Mr.
Matusiak asks for his costs on a solicitor and client basis, asserting that he
should not be out of pocket as a result of the failure of the VRAB to comply
with the direction of Justice Teitelbaum.
[49]
While
conceding that Mr. Matusiak should be entitled to an order of costs, counsel
for the Attorney General nevertheless submits that an order of solicitor and
client costs would not be appropriate, given that her client has done nothing
wrong in this matter, and that the errors that have been committed in this case
were those of the VRAB.
[50]
In King
v. Canada (Attorney General), [2000] F.C.J. No. 196, another case involving
the VRAB, Justice Pelletier was also confronted with a situation where the VRAB
had not complied with a direction of this Court. Justice Pelletier noted that:
With
the greatest respect for the Board this is not what they were called upon to
do. It is unfortunate that the Board did not seek directions if it was unclear
as to what MacKay J.'s order required it to do. In the end result, the review
of entitlement which MacKay J. ordered did not occur. [at ¶ 28]
[51]
In
awarding the successful applicant his solicitor and client costs, Justice
Pelletier stated:
[35] In view of the fact that Mr. King
might have been spared the expense of this application had MacKay J.'s order
been complied [with] according to its terms, Mr. King shall have his costs of
this application on a solicitor and client basis.
[52]
On
appeal, the Federal Court of Appeal affirmed Justice Pelletier’s award of
costs, ruling that:
[5]
In exercising his discretion under Rule 400 the Chambers Judge was entitled
to consider a number of the factors outlined in Rule 400 (3) including the
result of the proceeding before the Board. Clearly, Justice Pelletier was of
the view that the Board's handling of this case was cumbersome and unfair to
the respondent.
[6]
Overall, we are not persuaded that a legal error has been committed in the
exercise of discretion below. The appeal will be dismissed with costs to the
respondent. (King
v. Canada (Attorney General), [2000] F.C.J. No. 1558.)
[53]
Had
the VRAB accepted Justice Teitelbaum’s finding in this case, as it was bound to
do, this application for judicial review may not have been necessary. I am of
the view that, in all of the circumstances, and in the exercise of the
discretion conferred upon me by Rule 400 of the Federal Courts Rules,
Mr. Matusiak should be entitled to his costs, on a solicitor and client basis.
JUDGMENT
For the reasons set out above, this
Court orders and adjudges that:
1. The
decision of the Veterans Review and Appeal Board dated September 7, 2005 is set
aside;
2. The
matter is remitted to the Veterans Review and Appeal Board for re-determination
in accordance with these reasons and the directions of this Court;
3. The re-hearing of Mr.
Matusiak’s case is to be expedited;
4. The
decision of the VRAB is to reflect Justice Teitelbaum’s finding that the
actions of Major Burke in his dealings with Mr. Matusiak severely contributed
to Mr. Matusiak's major depression; and
5. Mr. Matusiak shall have
his costs of this application, on a solicitor and client basis.
“Anne
Mactavish”
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