Date: 20030612
Docket:
T-549-02
Citation:
2003 FCT 731
Ottawa, Ontario, June 12, 2003
PRESENT: The Honourable Mr. Justice
Blanchard
BETWEEN:
CARL
FURLONG,
Applicant,
-
and -
ATTORNEY
GENERAL OF CANADA,
Respondent,
REASONS
FOR ORDER AND ORDER
Introduction
[1]
This is an application for judicial review of a decision dated
January 15, 2002, by an appeal panel of the Veterans Review and
Appeal Board (appeal panel) dismissing a second application to reconsider a
decision by the appeal panel dated May 31, 1999.
Facts
[2]
The applicant, Mr. Furlong, born in 1957, served in the Regular
Forces of the Canadian Army from May 8, 1975 to
November 6, 1979. During his service, the applicant was posted to
Egypt from October 11, 1978 to April 12, 1979, as part of a
peacekeeping mission.
[3]
During this period in Egypt, while he was at the barber’s, the applicant
claims that the barber threatened him by holding a razor against his throat and
that he was traumatized by this incident. However, it appears from the Board’s
decisions that he said nothing about this incident until 1997.
[4]
On April 21, 1986, the applicant applied for a disability pension based
on chronic anxiety, depression and alcoholism, all of which he attributed to
his service in Egypt. On September 11, 1986, the former Canadian
Pension Commission denied the pension claim. On May 27, 1987, a
review panel of the former Canadian Pension Commission allowed the pension
claim in part and awarded a 1/5 pension entitlement for chronic anxiety
and depression and 1/5 pension entitlement for the alcohol dependence
resulting from the chronic anxiety.
[5]
The applicant appealed the decision of the review panel to the Veterans
Review and Appeal Board (the Board). On June 14, 1988, the Board
modified the review panel’s decision and determined that he was entitled to a
2/5 pension for chronic anxiety and a full pension for alcohol dependence.
[6]
On April 1, 1997, the applicant filed a new application for a disability
pension for post‑traumatic stress syndrome, which he attributed to his
posting in a special duty area in Egypt, in particular, to the above-described
incident.
[7]
On October 10, 1997, the Department of Veterans Affairs concluded that
there was insufficient evidence to establish that the applicant suffered from
this condition.
[8]
Under section 84 of the Pension Act, R.S.C. 1985, c. P‑6,
the applicant filed an application for review before a review panel of the
Board. On November 24, 1998, the Board denied the review application
on the ground that the post-traumatic anxiety, as described in
Dr. Duguay’s medical report, was a type of chronic anxiety for which the
applicant was already receiving a pension.
[9]
Under section 25 of the Veterans Review and Appeal Board Act,
S.C. 1995, c. 18 (the VRAB Act), the applicant brought that decision
before an appeal panel of the Board, and on May 31, 1999, the appeal
panel upheld the decision of the review panel.
[10]
The applicant filed an application for judicial review of that decision,
then had the proceeding stayed _translation_ “until judgment is delivered and has become res judicata
in the Veterans Review and Appeal Board file - reconsideration section ....”
since he had, in the meantime, submitted a request to an appeal panel to
reconsider the May 31, 1999, decision.
[11]
On March 29, 2000, the appeal panel dismissed the application to
reconsider, and on October 6, 2000, the applicant withdrew his
application for judicial review.
[12]
On June 5, 2001, the applicant presented the same appeal panel with a
second application to reconsider its decision of May 31, 1999, and
submitted four pieces of evidence to support his application. Last, on
January 15, 2002, the appeal panel again dismissed his application to
reconsider on the ground that the supplementary evidence added nothing new to the
file. That decision is the subject of this application for judicial review.
Issues
[13]
The respondent submits that the applicant cannot attack the decisions of
May 31, 1999, and March 29, 2000, on this application. In
order to fully understand this application, it is preferable to deal with the
following question first:
1. Which decision(s) is or are the subject of this application
for judicial review ?
The Court will then be able to
consider the following questions:
2. Did the appeal panel make a patently unreasonable error in
fact or in law warranting the intervention of this Court
(a) in determining that the applicant was not severely traumatized
psychologically in Egypt;
(b) in assessing the “fresh evidence” in the case.
3. Is there an apprehension of bias when the members sit on an
appeal and reconsideration of their own decision?
Standard of review
[14]
This Court must show considerable deference to decisions rendered by an
appeal panel that refuses to reconsider one of its own decisions.
[15]
The jurisprudence of this Court has established that the Court can only
intervene to the extent that the impugned decision is patently unreasonable,
based on an erroneous finding of fact, made in a perverse or capricious manner
or without regard to the material that was before the Appeal Board [MacDonald
v. Canada (Attorney General), [1999] F.C.J. 346 (F.C.); Tousignant
v. Canada (Minister of Veterans Affairs), [2001] F.C.J. No. 1083
(F.C.); Hull v. Canada (Attorney General), [1998]
F.C.J. No. 890 (F.C.) affirmed by [1999] F.C.J. 1800 (F.C.A.)].
Analysis
1. Which
decision is the subject of this application for judicial review?
[16]
The appeal panel rendered two decisions prior to its decision of
January 15, 2002. First, on May 31, 1999, it ruled on the
appeal of the review panel’s decision; then, on March 29, 2000, it
refused to reconsider its decision of May 31, 1999. The applicant
submits that the appeal panel erred in fact and in law in the two earlier
decisions and that this Court must consider those errors on the judicial
review. The respondent submits that the applicant cannot attack the decisions
of May 31, 1999, and March 29, 2000, on this application
because they are not the subject of this judicial review.
[17]
The line of demarcation between the January 15, 2002, decision and the
earlier decisions is unclear because a reconsideration, by its very nature,
requires some hearkening back to the substance of the earlier decision. In
Mackay v. Canada (Attorney General) (1996), 129 F.T.R. 186,
Mr. Justice Teitelbaum explained how a decision based on a
reconsideration of earlier decisions must to some extent look backwards to
those decisions:
Because
of the VRAB’s jurisdictional and procedural errors already discussed above, I
need not determine for the purposes of the current proceeding what the VRAB
should have determined if it had properly applied the relevant considerations
in Section 111 to Mr. Mackay’s case. Suffice it to say that for the
VRAB, to properly exercise its statutory mandate under Section 111, _sic_ must look to potential errors of fact or law in the
earlier decision under reconsideration and examine its merits. Effectively in
a reconsideration, the VRAB is required to look backwards to the substance of
the earlier decision. In a similar vein, in a judicial review application
concerning the VRAB’s failure to reconsider an earlier decision, the Court must
equally look backwards to the earlier decision. Thus, the Court in the case
at bar cannot decide in a vacuum if the VRAB on June 21, 1996
properly exercised its discretion. The Court must also pay some attention to
the earlier decision of the VAB dated January 19, 1994 because it was
at issue in the VRAB reconsideration proceeding.
However,
I wish to emphasize that it is not for the Court in the current proceeding to
conduct a full-fledged judicial review of the January 19, 1994 decision of the
VAB. The validity of the earlier decision of January 19, 1994 cannot properly
be challenged in a judicial review of the VRAB’s June 21, 1996 reconsideration
decision. The Court does not have jurisdiction to overturn the earlier
decision. By its very nature, a reconsideration under the auspices of the
Veterans Review and Appeal Board Act is backward-looking but there cannot be a
point of infinite regression. The applicant can only argue that the VRAB in
its June 21, 1996 decision did not properly exercise its discretion under
Section 111 because it did not reconsider on its own motion the earlier
decision of the VAB despite the existence of errors of fact and law in the VAB
decision.
[My emphasis.]
[18]
I accept Mr. Justice Teitelbaum’s analysis. Accordingly, the Court
cannot disregard the decisions made prior to the appeal panel’s last decision
of January 15, 2002. Although the Court does not have jurisdiction to
set aside those earlier decisions because they are not the subject of this
judicial review, the Court must nonetheless consider them retrospectively to
better understand the basis of the decision that is under judicial review.
Decision of January 15, 2002
[19]
It was under subsection 32(1) of the VRAB Act that the appeal panel
rendered its decision on the applicant’s application to reconsider dated June
5, 2001. Subsection 32(1) reads as follows:
|
32. (1) Notwithstanding
section 31, an appeal panel may, on its own motion, reconsider a decision
made by it under subsection 29(1) or this section and may either confirm the
decision or amend or rescind the decision if it determines that an error was
made with respect to any finding of fact or the interpretation of any law, or
may do so on application if the person making the application alleges that
an error was made with respect to any finding of fact or the interpretation
of any law or if new evidence is presented to the appeal panel. [My emphasis]
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32. (1) Par
dérogation à l’article 31, le comité d’appel peut, de son propre chef,
réexaminer une décision rendue en vertu du paragraphe 29(1) ou du présent
article et soit la confirmer, soit l’annuler ou la modifier s’il constate que
les conclusions sur les faits ou l’interprétation du droit étaient erronées; il
peut aussi le faire sur demande si l’auteur de la demande allègue que les
conclusions sur les faits ou l’interprétation du droit étaient erronées ou si
de nouveaux éléments de preuve lui sont présentés. [Je souligne]
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The main
thrust of the decision is as follows:
_translation_
. . .
On
June 5, 2001, the representative filed an application to reconsider supported
by new evidence, including an expert report by Dr. Jacques Voyer
dated March 13, 2000, as well as supplementary affidavits and an excerpt
from Veterans Affairs Canada’s guidelines on post-traumatic stress.
In
her application to reconsider, the representative concluded:
We
contend that the enclosed new evidence as well as a review under the Pensions
Act and supplementary evidence submitted on November 12, 1999, should lead the
Board to find that the post-traumatic stress suffered by Mr. Furlong
entitles him to a pension under subsection 21(1) of the Pension Act.
After
reviewing the various pieces of evidence that were submitted, in particular,
Dr. Voyer’s expert report, the panel determined that the problem of
legally identifying the post-traumatic stress was made more difficult by the
comorbidity of the applicant’s conditions, as described by the doctor. This
expert report did not establish that a trauma, in fact, existed.
Furthermore,
the said expert report does not state at all to what extent the traumatizing
event “may or may not have contributed to the post-traumatic condition.”
Although it is meticulous, this expert report has no significant probative
value for purposes of section 39 of the Pension Act.
.
. . There is still no prima facie evidence that the applicant experienced a
real trauma.
For
these reasons, the panel concludes that the application to reconsider is not
accepted since the panel did not err in fact or in law. For all practical
purposes, the new evidence adds nothing new to the applicant’s case . . .
2. Did
the appeal panel make a patently unreasonable error in fact or in law
warranting the intervention of this Court
(a) in
determining that the applicant was not severely traumatized psychologically in
Egypt;
(b) in
assessing the “fresh evidence” in the case.
[20]
The applicant submits that the appeal panel erred in its three decisions
by not recognizing the event or the trauma that he experienced and that
triggered his post-traumatic stress symptoms. He claims that in the review
panel’s decision dated November 24, 1988, the members had recognized the
facts recounted by the applicant and had dismissed the claim for a
supplementary pension because his entitlement to the pension he was receiving
for chronic anxiety included the post-traumatic stress condition.
[21]
The applicant maintains that the appeal panel did not have to address the
factual question as to whether the incident in Egypt took place because, the
applicant says, this incident had already been accepted by the Board in an
earlier decision.
[22]
The applicant contends that the incident and the resulting
post-traumatic stress had been recognized by the review panel following the
hearing on November 24, 1998. According to the applicant, the following
excerpt from the transcript of the November 24, 1998, hearing, supports
his position:
_translation_
YVES
CARON, PRESIDING MEMBER
That
is not it, that is not it. We are not denying the facts. We believe the facts
as he has related them. That’s it. All I’m saying is that chronic anxiety, the
name, as a name, includes . . .
Accordingly, the applicant submits
that the appeal panel erred in fact and in law in its May 31, 1999,
decision by reconsidering the issue of the incident _translation_ “at a hearing de novo” in the
absence of the applicant and without hearing new testimony.
[23]
In its decision of May 31, 1999, the appeal panel had indicated the
following:
_translation_
.
. . the appellant’s military service record does not contain an investigative
report or any other report confirming that the incident in question occurred
when he was serving in a special duty area in Egypt, . . . or again, that the
appellant experienced a severely traumatizing psychological event beyond common
human experience . . .
On this point, the applicant
presented an application to reconsider where he made the same argument. In its
decision of March 29, 2000, the appeal panel wrote:
_translation_
As
appears from [the] decision [of May 31, 1999], the review panel did not comment
on the event or the appellant’s affidavit in support of his claim. . . .
Section
26 and following of the Veterans Review and Appeal Board Act sets out the
powers of an appeal panel. The Board notes that the appellant who exercises his
or her right of appeal is not required to rely on any grounds whatsoever to
bring the claim from the review level to the appeal level.
Parliament
did not set out any grounds, and therefore the case can be throughly reviewed,
and the appellant can put forward new grounds for a claim . . .
The
Board believes that its appeal jurisdiction is de novo, and that
therefore it can revisit any question of fact or law raised by the Minister’s
decision, any question that is, for all practical purposes, the source of the
“dispute.”
[24]
The appeal panel's comments in its January 15, 2002, decision are
indicated above, but the substance of them is:
_translation_
.
. . There is still no prima facie evidence that the applicant
experienced a real trauma.
Other than the passage from the
transcript of the hearing before the Board held November 24, 1998,
cited above in paragraph [22], there is no finding regarding the incident in
Egypt in the review panel's decision of November 24, 1998. After reviewing
all the evidence, I am of the view that the appeal panel did not err in its
decision of May 31, 1999, by determining that the applicant was not
severely traumatized psychologically in Egypt.
[25]
In its decision of March 29, 2000, the appeal panel also
reconsidered in detail all the medical evidence in the file as well as the
fresh evidence filed in support of the application to reconsider, including the
affidavits of Stan Chambers, Alfred Brideau and Denis Soucy. The
appeal panel found that _translation_“ although there may have been an altercation between the
appellant and a barber during his stay in Egypt in 1978, there is simply no
evidence in the file attesting to the history of the trauma.”
[26]
In my view, based on the evidence in the record, it was reasonable for
the appeal panel to make this finding.
[27]
In support of his second application to reconsider, i.e., the one that
is the subject of this judicial review, the applicant adduced four new pieces
of evidence: a psychiatric consultation report by Dr. Voyer; a
supplementary affidavit of Mr. Soucy; a supplementary affidavit of
Mr. Chambers; and a brochure entitled “Post Traumatic Stress Disorder
and War-Related Stress, Information for Veterans and their Families.”
[28]
In its decision of January 15, 2002, the appeal panel maintained that it
had reviewed all this evidence and explained, inter alia, that
Dr. Voyer’s expert report did not establish that there had, in fact, been
a trauma and did not state to what extent the traumatic event _translation_ “may or may not have contributed to the
post-traumatic stress condition.” The review panel gave no significant
probative value to this expert report.
[29]
The appeal panel stated several times that the applicant’s service
record did not contain an investigate report or any other report confirming
that the incident in question had occurred during his service in a special duty
area in Egypt from October 11, 1978 to April 12, 1979, or that the applicant
had been severely psychologically traumatized by an incident that was beyond
common human experience during the same period of service. Moreover, the appeal
panel noted that, following his service in Egypt, there was no report of him
sustaining an injury or contracting an illness while he was in the special duty
area; nor was there a medical report indicating that there had been a problem
in Egypt during that time.
[30]
Essentially, the appeal panel relied on the fact that the applicant had
never reported the traumatic incident in Egypt prior to his new pension claim
for his post-traumatic stress symptoms in 1997, and that there was no evidence
in the record about this incident other than the testimony of the applicant and
two other witnesses, testimony that the appeal panel considered of no probative
value.
[31]
The fundamental problem of credibility regarding whether the triggering
event occurred prevented the appeal panel from responding favourably to the
applicant’s pension application. Nonetheless, the appeal panel assessed the
supplementary evidence that was submitted at each application for review,
appeal and reconsideration. Even if the medical reports were not contradictory,
as the applicant argues, the appeal panel could reasonably determine that they
had no significant probative value since they were based essentially on the
applicant’s testimony as to the event that took place in Egypt, an event that
he did not report for more than eight years.
[32]
Considering all the evidence in the record, I am satisfied that this
determination by the appeal panel, i.e., that Dr. Voyer’s report did not
constitute fresh evidence, was not a patently unreasonable finding. As for the
supplementary affidavits, the appeal panel noted that a non‑expert
witness, such as Mr. Soucy, is not authorized to give an opinion and that
these deponents recounted facts that could have been stated in their first
affidavits that were before the appeal panel on the first reconsideration. In
my view, the appeal panel did not err in giving little weight to these
statements.
[33]
After reviewing all the evidence that was before the Board and
considering the parties’ written representations and oral arguments, I am of
the view that the appeal panel did not err in determining that _translation_ “for all practical purposes, the new
evidence adds nothing new to the applicant’s case.” The appeal panel was
entitled to make the findings it did and to deny the application to reconsider.
3. Is
there an apprehension of bias when the members are sitting on an appeal and
reconsideration of their own decision?
[34]
The applicant also alleges bias on the part of the members of the appeal
panel who reconsidered their own decision. Since I agree with the respondent, I
adopt most of his arguments. First, the applicant should have raised this
argument at the earliest opportunity, i.e., at the hearing of the first
application to reconsider (March 29, 2000) or at the hearing of the second
application (January 15, 2002). He cannot rely on it for the first time in
his application for judicial review. Not raising it is tantamount to waiving
this argument [Hudon v. Canada (Attorney General), [2001]
F.C.J. No. 1836 (F.C.)].
[35]
Moreover, subsection 32(1) of the VRAB Act expressly provides that the
appeal panel may reconsider its own decisions unless the members of the appeal
panel have ceased to hold office as members.
Conclusion
[36]
For all these reasons, this application for judicial review should be
dismissed.
ORDER
THE COURT
ORDERS:
1. The application for judicial review of the decision dated
January 15, 2002, by the Veterans Review and Appeal Board is dismissed.
“Edmond P. Blanchard”
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
SOLICITORS
OF RECORD
DOCKET: T-549-02
STYLE OF CAUSE: Furlong
v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April
22, 2003
REASONS [for order or judgment]:
Mr. Justice Blanchard
DATED: June
12, 2003
APPEARANCES:
Louis Nadeau FOR
THE APPLICANT
Marie-Ève Sirois-Vaillancourt FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Pouliot & Rondeau FOR
THE APPLICANT
719 Manseau
Joliette, Quebec J6E 3E8
Morris Rosenberg FOR
THE RESPONDENT
Attorney General of Canada
Quebec Regional Office
200 René-Lévesque Blvd. W.
Montréal, Quebec H2Z 1X4
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