Hunt v. Canada (Minister of Veterans Affairs), docket T-217-97

Date: 19980320

Docket: T-217-97

BETWEEN:

     DAVID R. HUNT,

     Applicant,

     - and -

     THE MINISTER OF VETERANS AFFAIRS,

     Respondent.

     REASONS FOR ORDER

MULDOON, J.

[1]      This is an application for judicial review of a decision of the Veteran's Review and Appeal Board (the board), dated November 19, 1996 (VE-15215), which decided that the applicant's condition of chronic hepatitis C is "not attributable to service in a Special Duty Area (Egypt)." The board's decision effectively denied the applicant a disability pension based on the above mentioned condition but allowed a partial disability entitlement based on another condition.

[2]      The facts, taken from the board's decision, with some clarification, are as follows: The applicant was born on October 24, 1954. He served in the regular forces from June 7, 1972 to August 23, 1978. He re-enrolled in the regular forces and has been serving continuously since March 9, 1979. His current rank is Captain. Upon enlisting in the regular forces the applicant's medical examination revealed that he was infected with the hepatitis B virus. This condition was traced back to an incident that occurred when the applicant was fifteen. From January 19, 1977 to July 20, 1977, the applicant served in a special duty area (Egypt). During this tour of duty the applicant worked with, and was exposed to, people infected with tuberculosis. Consequently the applicant's right elbow became infected with tuberculosis and he was hospitalized for that condition. According to his affidavit the applicant was treated in a bombed-out building which was set up as a make-shift Canadian field hospital. He further states that he was given medication through intravenous needles which were not only re-used but also clogged and unsterilized. He states that at that time this was common practice in Egypt. The applicant has also submitted a report from his physician which states that during the late 1970s hepatitis C was endemic in the region where the applicant was posted. The applicant was diagnosed with hepatitis C on January 29, 1991. The board had before it only the evidence presented. Truly it would probably have been impossible for the applicant to secure from hospital personnel an admission of what he alleges.

[3]      The applicant's initial application for disability pension went to the Canada Pension Commission in 1992. In his claim for disability pension the applicant cited a plethora of afflictions, including: tuberculosis lymphadenitis, right elbow; chronic hepatitis C; moderate fatty hepatitis with early liver fibrosis; plantar warts; antral type B gastritis; diverticulitis; duodenitis; irritable bowel syndrome; and reflux esophagitis. A useful brochure on hepatitis C from the Canadian Liver Foundation was filed by agreement of counsel at the hearing, as exhibit 1. The Commission denied all of the applicant's claims for disability pension except for the portion of his claim relating to tuberculosis in his right elbow. The applicant appealed the Commission's decision to the Canada Pension Entitlement Board and the Entitlement Board rendered its decision on April 24, 1995, upholding the findings of the Commission. The applicant then appealed the Entitlement Board decision to the Veteran's Review and Appeal Board which, on November 19, 1996, upheld the Commission's and the Entitlement Board's findings with respect to the applicant's condition of hepatitis C, but more importantly for the applicant overturned the previous findings respecting the applicant's condition of moderate fatty hepatitis with early liver fibrosis and awarded him a full disability pension entitlement with respect to that condition.

[4]      The applicant now seeks judicial review of the Veteran's Review and Appeal Board decision based on its analysis of his alleged hepatitis C disability pension entitlement. The grounds for the applicant's application are as follows (originating notice of motion, p. 2):

1.      The Board based its decision pertaining to hepatitis C on erroneous findings on [sic] fact that were made in a perverse and capricious manner without regard to the material before it.

2.      The Board made a patent error with respect to the hepatitis C in its decision and reasons for decisions which it could not have reasonably reached given the information before it.

3.      The Board in its decision as it relates to the entitlement to [sic] provision for hepatitis C did not take all relevant factors into account and focussed only on limited excerpts taken out of context from medical reports rather than considering the medical report evidence as a whole along with the uncontradicted evidence of the Applicant.

4.      The Board ultimately reached a decision with respect to hepatitis C that is so unreasonable that no reasonable authority could ever come to it.

[5]      The applicant submits that the board in hearing evidence should not place the onus of proof on the applicant and should, in light of uncontradicted evidence, draw every possible reasonable inference in favour of the applicant. The applicant further submits that the board is statutorily required to accept all uncontradicted evidence which it finds credible. The applicant cites section 10 of the old Veteran's Appeal Board Act which was repealed in 1995 to support both of his submissions. Section 39 of the Veteran's Review and Appeal Board Act replaces the cited section. Section 39 of the Veteran's Review and Appeal Board Act, S.C. 1995, Chap. 18, reads as follows:

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.

[6]      The applicant also cites a number of cases in support of his above mentioned submissions. The cases cited are as follows: Carol Chenier v. Veteran's Appeal Board (Canada) (1991), 136 N.R. 377 (F.C./A.), Moar v. A.G. (Canada) (1995), 103 F.T.R. 314 (F.C.T.D.), Nathan Silver v. A.G. (Canada) (1996), 112 F.T.R. 292 (F.C.T.D.), Fillmore v. Veteran's Appeal Board (Canada) (1990), 111 N.R. 354 (F.C./A.). It should be noted that the applicant gave wrong citations for every case used in support of his application, but did however, to his credit, attach a copy of these mis-cited cases to his memorandum of argument.

[7]      Chief among these cases is Moar v. A.G. (Canada), supra, in which Heald D.J. states that the board lost its jurisdiction when it did not accept uncontradicted evidence. It is trite law that an administrative tribunal which acts within its jurisdiction loses jurisdiction only if it acts in a patently unreasonable manner. Where, however, the issue is a breach of a legislative provision limiting a board's power, "a mere error will cause it to lose jurisdiction". (Canada (A.G.) v. P.S.A.C. [1993] 1 S.C.R. 941 (S.C.C.), see also Pezim v. British Columbia (Securities Commission) [1994] 2 S.C.R. 557 (S.C.C.) for sliding scale of review). In this instant matter the board did not state that it disbelieved the only independent evidence submitted by the applicant, that of Dr. Buchholz, but clearly inferred from Dr. Buchholz's medical report that there was no medical evidence that the applicant's condition was directly attributable to the applicant's service in the Special Duty Area. Dr. Buchholz stated in his report:

* * * I am unable to comment whether or not his hepatitis C had been acquired in Egypt or with his hepatitis B. Clearly, he has had potential risk while in Egypt and certainly it has been well documented to be a endemic region for hepatitis C. Clearly, he also acquired tuberculosis and, subsequently, required Rifampin.

The board received the medical report from Dr. Buchholz and considered it thoroughly, but in light of the contradictory medical report of Dr. Hughes which gave a clear medical evaluation of the applicant, the board could not find the neutral opinion of Dr. Buchholz determinative.

[8]      The only other evidence which supports the applicant's application is his own affidavit evidence. Unfortunately for the applicant, not only is his affidavit self-serving but it is more an affidavit on information and belief than it is an affidavit of personal knowledge. Although the applicant's affidavit is uncontradicted as to the events upon which he bases his contraction of hepatitis C, it is solely based on his own belief and is wholly supported by any contemporaneous independent evidence. The board in its decision, while not directly or clearly questioning the credibility of the applicant's version of the events does use language which attacks the credibility of the applicant's story. The board stated with regard to the contraction of the disease:

As to the condition of chronic hepatitis C, Mr. Hunt believes that he contracted the hepatitis C virus while serving in Egypt, when a supposedly reused needle was utilized for intravenous purposes. * * *

It is clear that in using this language the board did not accept this evidence as being wholly credible. In these circumstances, where no independent evidence supports the applicant's submissions, the board's findings are reasonable, unfortunately for the applicant. This judge might well have been more accepting of the applicant's case had this judge been adjudicating the case. That might make a difference, if Parliament had provided a real appeal to this Court, but it provides only for judicial review. The Court's duty is to ensure that the board did not "go off the rails". That is if there be a case before the board upon which it could reasonably come to the decision to which it did come, this Court is obliged not to intervene, even if the judge might - as adjudicator - have come to a different decision. The applicant bears the burden of demonstrating that board's decision was positively wrong and unreasonable. This is the essence of judicial review.

[9]      Although section 39 of the Veteran's Appeal and Review Tribunal Act requires that the board accept uncontradicted evidence, this evidence must be credible. The applicant must prove the civil standard that on a balance of probabilities, with the bonus of having this evidence put in the best light possible, his disease was contracted while in the service of his country. This civil standard must be read in concert with the entitling provision of section 21 of the Pension Act, R.S.C. 1985, Chap. P-7. This section reads in part:

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.

(3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of

* * *

(e) service in an area in which the prevalence of the disease contracted by the member, or that aggravated an existing disease or injury of the member, constituted a health hazard to persons in that area:

* * *

(9) Subject to subsection (10), where a disability or disabling condition of a member of the forces in respect of which the member has applied for an award was not obvious at the time he became a member and was not recorded on medical examination prior to enlistment, that member shall be presumed to have been in the medical condition found on his enlistment medical examination unless there is

(a) recorded evidence that the disability or disabling condition was diagnosed within three months after the enlistment of the member; or

(b) medical evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the enlistment of the member.

* * *

(12) For the purposes of this section,

"obvious", when used with reference to a disability or disabling condition of a member of the forces at the time he became a member, means that the disability or disabling condition was apparent at that time or would have been apparent to an unskilled observer on examination of the member at that time;

"recorded on medical examination prior to enlistment" "consigné lors d'un examen médical avant l'enrôlement"

"recorded on medical examination prior to enlistment", when used with reference to a disability or disabling condition of a member of the forces, means a written record, X-ray film or photograph of the disability or disabling condition that was made in

(a) any medical documentation made on enlistment of that member,

(b) any official documentation covering any former period of service of that member,

(c) the files of the Department relating to that member,

(d) the records of any compensation board or insurance company relating to that member, or

(e) the records of a medical practitioner or a clinic, hospital or other medical institution relating to that member.

The applicant's evidence before the board and his flimsy affidavit submitted to this Court do little to support his application. It was reasonably difficult for the tribunal to draw positive inferences from evidence which is composed of such circumspect substance. The board did not make a reviewable error.

[10]      For these reasons the application for judicial review will regrettably be dismissed.

                                

                                 Judge

Ottawa, Ontario

March 20, 1998