Date: 19980403
Docket: T-2863-96
BETWEEN:
GARRY B. MacLEOD
Applicant
- AND -
VETERANS REVIEW AND APPEAL BOARD CANADA,
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
McKEOWN, J.
[1] The applicant seeks a judicial review of the decision of the Veterans Review and Appeal Board Canada (the Board) dated July 30, 1996 with respect to the applicant's appeal of an Entitlement Board's decision dated February 2, 1995 granting the applicant a Grade V exceptional incapacity award effective February 2, 1995 and amending the effective date of the applicant's entitlement to November 19, 1993. The applicant seeks to quash and set aside this decision and have the matter returned to the Board. The application raises three issues:
| (1) did the Board fail to exercise its jurisdiction when it said it could not correct an error of the Canada Pension Commission in not initiating an exceptional incapacity allowance investigation in 1987 after the applicant became a Class 1 pensioner? |
| (2) did the Board err in failing to make a finding of credibility with respect to the applicant's testimony? |
| (3) did the Board make its decision without regard to the evidence before it in that it ignored evidence supporting the applicant's receiving a Grade IV exceptional incapacity allowance as opposed to the Grade V allowance awarded and also whether the retroactive date of the applicant's exceptional incapacity allowance should not have been April 12, 1985 or March 21, 1982 instead of November 19, 1993? |
[2] In respect of the first issue, the applicant submits that the Board had determined that the Canadian Pension Commission (the CPC) had made an error in not conducting an investigation immediately after the applicant became a Class 1 pensioner on January 7, 1987 but the Board refused to exercise its jurisdiction in not making the exceptional incapacity allowance retroactive to April 12, 1985 or March 21, 1982. In order to determine this issue it is necessary to review the relevant facts. The applicant is a former Captain in the Armed Forces who was injured in August 1973 while performing acrobatic manoeuvres in a jet aircraft while on military duty. The applicant was honourably discharged from the Armed Forces on December 30, 1976 and applied for a disability pension on June 16, 1978 for a condition of psychoneurosis and on August 15, 1979 for a condition of lumbar disc disease.
[3] In 1979, the CPC issued its decision stating that the applicant's condition was not pensionable with respect to his psychoneurosis and on October 12, 1979 the CPC found that the applicant's condition was not pensionable as the lumbar disc disease condition was not directly connected with military service in peace time. The applicant appealed this decision and started receiving a pension at a rate of one-fifth for the condition of lumbar disc disease which was directly connected with service in the regular Forces in peace time.
[4] Over the years, psychoneurosis was agreed to be a cause of the disability and on January 7, 1987 the Pension Review Board awarded the applicant a full pension entitlement (five-fifths) for psychoneurosis effective March 21, 1982 as it arose out of military service in peace time; however, the applicant's disability resulting from psychoneurosis was not assessed at 100% until April 12, 1985. On that date, the applicant became a Class 1 pensioner and so met one of the requirements for eligibility for the exceptional incapacity allowance as contained in Part IV of the Pension Act. Since the disability from psychoneurosis was not assessed at 100% until April 12, 1985, the applicant could not become a Class 1 pensioner before that and so meet one of the requirements for eligibility for the exceptional incapacity allowance.
[5] It is important to note the difference between entitlement and assessment under section 21 of the Pension Act. The matter that is being considered is what percentage of the applicant's condition is related to military service and this is usually expressed in terms of fifths; however, there is a second component which is the assessment that measures the degree of this disability. Accordingly, the applicant's submission that retroactivity should be considered for the exceptional incapacity allowance back to March 1982 cannot succeed. The Board correctly stated in its decision at page 3:
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The panel agrees with contention of the Appellant that the former Canadian Pension Commission made an error not initiating any investigation to discover if the Appellant was entitled to an Exceptional Incapacity Allowance when he became a Class 1 pensioner. |
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The panel noted that the pension policy manual stated that: |
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...the effective date of the award would be the date he met the qualifications set out in the Pension Act, that is, the latest of (1) the date he became a Class 1 pensioner; (2) the date from which he was considered to be eligible for the exceptional incapacity allowance; or (3) 30 March 1971, whichever is applicable. |
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But after having reviewed all the evidence, this panel noted that Exceptional Incapacity Allowance Grade V was awarded on the basis of a Psychiatrist's Report dated 25 January 1995. The psychiatrist met the Appellant for the first time on 29 June 1994. All those dates are after the panel made the pension entitlement effective, i.e. 14 February 1994. |
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This panel cannot correct the error of omission of the Canadian Pension Commission's not initiating an investigation in 1987 when Mr. MacLeod became a Class 1 pensioner. Because that was not done, there is insufficient information available to determine whether or not the pensioner was eligible for an additional Allowance until he made application on November 19, 1993. |
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[6] As stated earlier, the applicant submits that the Board refused to exercise its jurisdiction in not going back to 1985 when Mr. MacLeod became a Class 1 pensioner; however, as the Board states, the error was an error of omission by the CPC in not initiating an investigation in 1987 as soon as the Commission learned that he became a Class 1 pensioner. Furthermore, it is not automatic that a person who becomes a Class 1 pensioner is eligible for the exceptional incapacity allowance. Section 72 of the Pension Act provides that a member of the Armed Forces who is in receipt of a pension in the amount set out in Class 1 of Schedule I and is suffering an exceptional incapacity that is a consequence of or caused, in whole or in part, by the disability shall be awarded an exceptional incapacity allowance. As the Department of Veterans Affairs Pension Policy Manual notes at Article 72(1), subparagraph 3(b), the criteria are not the same as for an exceptional incapacity allowance. Paragraph 7.08 of the CPC's Table of Disabilities states:
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Where an exceptional incapacity allowance is awarded, the effective date will be the date that it is medically shown that the pensioner became exceptionally incapacitated. In the absence of such evidence, the effective date will be the date that the action was first taken to obtain the award.This paragraph should be read in conjunction with Article 72(1), paragraph 3 of the CPC Policy Manual. [Emphasis in original] |
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[7] The Board looked at the medical evidence that was in front of it back to the 1970's and decided that there was insufficient evidence to determine that the applicant was entitled to the additional allowance until the CPC initiated the application on November 19, 1993. The Board inadvertently stated that the applicant made the application on November 19, 1993 whereas this was the date the CPC initiated the application. The applicant, although not compelled to make an application, did apply on February 14, 1994. He applied for both the exceptional incapacity allowance and/or the attendance allowance. The attendance allowance is not in issue before me.
[8] The Board looked at all the evidence produced by the applicant and the CPC and decided that there was insufficient evidence to determine that he was eligible for an additional allowance until November 19, 1993. This is not a refusal to exercise jurisdiction.
[9] It is most unfortunate that the applicant may have suffered a loss of this additional allowance from 1987 to 1993 because of the failure of the CPC to initiate an investigation in 1987 when he became a Class 1 pensioner. However, this is not an error of the Board. I might note that even if I had found jurisdictional error here and that if I sent the matter back for rehearing, it is unlikely that better information would be available in 1998 than was available in December 1993. Any additional medical investigations, if required, should have been done in 1987 after the applicant became a Class 1 pensioner. This is not an error of the Board.
[10] In reviewing this application for judicial review, the standard I must follow is whether the Board's decision was patently unreasonable except with respect to errors of jurisdiction where the standard is correctness. See National Corn Growers Association v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324-1369 and Moar v. Canada (Attorney General), [1995] 103 F.T.R. 314 (F.C.T.D.).
[11] As stated above, there is no error of jurisdiction. In my view, the Board's decision with respect to the insufficient information available to it was not patently unreasonable.
[12] The applicant has submitted that the Board erred in failing to make findings of credibility with respect to the applicant in connection with the second issue. Pursuant to sections 3 and 39 of the Act, the Board must draw every reasonable inference in favour of the applicant, resolve any doubt in favour of him and construe provisions of the relevant Acts in a liberal manner. All this was done. The Board thoroughly and carefully reviewed all the evidence submitted by the applicant. Since the Board made no specific finding of credibility, it is accepted that the Board would have found the applicant credible; however, the Board was considering, primarily, medical evidence with respect to this exceptional incapacity allowance. The Board, on at least two occasions, stated that it had reviewed all the evidence. It is for the Board to choose the evidence it prefers. There is nothing patently unreasonable with the Board preferring medical evidence over credible evidence of the applicant with respect to a medical claim.
[13] The applicant also submitted that the Board made its findings without regard to the material before it. As I stated above, the Board did consider all the evidence. The applicant was permitted to submit whatever evidence he wished and there was no suggestion that the applicant was denied the right to do that. As I stated earlier, the Board erred in stating that the applicant made application on November 19, 1993 but it is clear that is the date when the investigation was initiated by the CPC. The Board actually extended the retroactive period of time from February 14, 1994 to November 19, 1993, the date when the applicant made the application, and this is the date from which the Board said that the allowance was effective. Again, the Board was not patently unreasonable in not selecting the date of April 12, 1985. There was material before the Board which enabled the Board to make its decision.
[14] The application for judicial review is dismissed.
"William P. McKeown"
______________________________
Judge
TORONTO, ONTARIO
APRIL 3, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2863-96
| STYLE OF CAUSE: GARRY B. MacLEOD |
- and -
| VETERANS REVIEW AND APPEAL BOARD CANADA, ATTORNEY GENERAL OF CANADA |
DATE OF HEARING: MARCH 18, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN
DATED: APRIL 3, 1998
APPEARANCES:
Ms. Carmine Tiano
For the Applicant
Ms. Sadian Campbell
For the Respondents
SOLICITORS OF RECORD:
Juan F. Carranza
Barristers & Solicitors
301-1315 Finch Avenue West
Toronto, Ontario
M3J 2G6
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980403
Docket: T-2863-96
Between:
GARRY B. MACLEOD
Applicant
- and -
| VETERANS REVIEW AND APPEAL BOARD CANADA |
Defendant
REASONS FOR ORDER
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