Date: 20031121
Docket: T-863-02
Citation: 2003 FC 1374
Ottawa, Ontario, November 21, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
ANDRÉ LÉONELLI
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] By this application for judicial review based on section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, André Léonelli ("the applicant") is asking the Court to quash a decision of the Veterans Review and Appeal Board ("the Board") on April 3, 2002, that affirmed the Board's decision of June 19, 2001. The applicant asked the Court to order the Board to award him a full disability pension, or alternatively, to refer the matter back to the Board for a decision in accordance with whatever directions the Court saw fit to make.
FACTS
[2] The applicant was born on May 11, 1958. He was a member of the Canadian Armed Forces Regular Force from September 11, 1975 to July 11, 1993.
[3] In March 1994, the applicant applied for a disability pension pursuant to section 21(2) of the Pension Act, R.S.C 1985, c. P-6, on the grounds of ligamentary instability in the right and left ankles and chondromalacia in the right and left knees. The applicant argued that the problems he was having in his ankles and knees were directly connected to his duties in his military service.
[4] The applicant's medical examination when he enlisted in the Armed Forces, dated August 28, 1975, indicated that the applicant was in excellent health at the time and was not suffering from any disability, complaint, injury or illness having any connection with the pathology alleged in the pension application.
[5] During his military service the applicant served in the infantry from September 1975 to August 1982, where rigorous training required long marches with considerable weight on the back. The applicant also did several parachute jumps between November 1976 and November 1978, causing shocks that were absorbed by his knees on landing.
[6] In the course of his military duties the applicant suffered several traumas to the ankles and knees, in particular repeated strains and a fall on the ice on December 14, 1976, for which he consulted the medical services of the Army.
[7] From 1983 to 1994, the applicant worked for the Armed Forces as a safety systems technician for aircraft and helicopters. This work required a kneeling or crouching position for prolonged periods of time.
[8] Since 1987, the applicant has regularly complained of pain in his knees and sought medical advice in this connection.
EARLIER DECISIONS
April 15, 1996
[9] The Veterans Affairs Department refused to award the applicant a disability pension because there was nothing to show that the problems with ankles and knees complained of by the applicant had been caused, aggravated or were the result of or associated with military duties in the Regular Force. In the decision the Department acknowledged that medical attendance records from 1979 onwards showed an [TRANSLATION] "instability in both ankles secondary to repeated strains (parachuting)" and that in 1991, after problems had been found with his knees for seven or eight years, a diagnosis of chondromalacia of the left pantella was made.
November 19, 1996
[10] The Board's review board considered an application to review pursuant to sections 18 and 21 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 ("the VRABA"). The applicant submitted medical reports relating to his military service and a report on the applicant's occupational activities in the Forces from 1975 to 1984, and a medical report by Dr. Jacques Fortin, a physiatrist, who attributed the articulation problems he noted in the applicant, especially in the knees and ankles, to parachuting.
[11] The board reviewed the evidence and concluded that the ankle complaint was directly related to the requirements of the duties performed by the applicant in his service in the Regular Force, and that consequently the ankle complaint entitled him to a full pension.
[12] On the other hand, with regard to the chondromalacia in the knees, the review board considered that the service in the Forces was only an aggravating factor and that other factors were involved in the etiology of the problem, namely the applicant's increasing age and corpulence. Pursuant to subsection 21(2.1) of the Pension Act, the board awarded a proportion calculated in fifths of the aggravation due to service. In the case at bar, the board awarded two-fifths of the total pension for his knees.
June 17, 1997
[13] The review board heard new evidence, namely a new opinion by Dr. Jacques Fortin, which attributed the knee problems more directly to parachute jumps. At the same time, the applicant argued that there is no medical evidence that the problem is due to the applicant's age or weight.
[14] The Board found that in his testimony before the review board the applicant had made no reference to parachute jumps that might have caused or aggravated the knee complaint. It concluded that the entitlement to a pension of two-fifths of the full pension adequately represented the role of the incident of December 14, 1976 (fall on the ice) and the requirements of service in aggravating the chondromalacia of the knees. It therefore upheld the previous decision.
June 18, 1998
[15] The review board, required to rule on the adequacy of the earlier decisions, which did not fully explain how the Board arrived at the proportion of two-fifths/three-fifths in determining the pension to which the applicant was entitled, explained that the following factors affected this attribution: the fact that there was [TRANSLATION] "no medical evidence in the record of a significant trauma to the knees" and "the natural aging process". The Board accordingly once again affirmed the earlier decision.
August 19, 1999
[16] For this review application, the appeal board took into account the opinion of Dr. Denis Duranleau, who gave the applicant a magnetic resonance imaging test in 1999. The X-ray report showed there was a trauma in the left knee. Dr. Duranleau considered that repeated traumas (the patient's duties in the Armed Forces, such as parachute jumps) could be responsible for abnormalities in the left knee found by the magnetic resonance imaging. Dr. Duranleau added [TRANSLATION] "We do not feel that the present X-ray findings are solely the aging process in this patient, who is only 40 years old".
[17] In its decision the Board stated the following:
[TRANSLATION]
Although it accepts the report of Dr. Duranleau, who noted a connection between the complaint in the left knee and Mr. Léonelli's military service, the Board could find no objective evidence establishing that he had suffered a significant trauma during his period of service in the Regular Force. On the contrary, the evidence in the record indicated that he had never suffered any trauma to his knees in the parachute jumps he made during his service.
[18] The Board affirmed the earlier decision.
April 12, 2000
[19] The applicant's legal adviser submitted an application for review based on new evidence, namely the opinion of Dr. Pierre Legendre, surgical orthopedist, dated January 11, 2000. In his letter Dr. Legendre indicated that the applicant's symptoms were consistent with a diagnosis of patellary chondromalacia, a diagnosis which was in fact confirmed by the magnetic resonance imaging.
[20] According to Dr. Legendre, chondromalacia is not a degenerative illness: it can occur at any age. Further, medical literature indicates no connection between chondromalacia and obesity. Finally, it is not necessary for there to have been macro-traumas in order to make this diagnosis. In the applicant's case, his duties as a safety systems technician often required him to kneel or crouch, which involved exaggerated pressure on the cartilage between the articulation of the patella and the femur. Dr. Legendre wrote: [TRANSLATION "We feel this is sufficient to explain the patello-femoral chondromalacia problem suffered by [the applicant]".
[21] The review board chose to rely on the Department's medical guidelines in rejecting Dr. Legendre's evidence. The board cited the guidelines and then made its ruling. Citing the guidelines, after the latter indicated that there are three types of patellary chondromalacia: endogenous, caused by trauma or osteo-arthritis:
[TRANSLATION]
The second type is usually caused by a direct severe trauma or by a repeated minor trauma to the knee . . .
[22] The board drew the following conclusion: [TRANSLATION] "Once again the Board, after having fully reviewed [the applicant's ] file, could find no objective evidence to show that there had been any serious trauma during his period of service". The Board affirmed the earlier decision.
June 19, 2001
[23] On December 1, 2000, Prothonotary Morneau of the Federal Court made a decision that reversed the decision of the Board on April 12, 2000, and referred the matter back to the Board for reassessment of all evidence, with a new panel and in particular taking into account Dr. Pierre Legendre's expert report dated January 11, 2000.
[24] The review board accordingly made a decision taking the prothonotary's order into account. It went back over Dr. Duranleau's evidence, and in particular that of Dr. Legendre, and then quoted the Larousse médical for a definition of chondromalacia. The latter text was apparently also used to justify the Department's position, namely that obesity had an important part to play in the applicant's knee problem.
[25] The review board also recalled the Department's medical directives, according to which patellary chondromalacia is often a syndrome due to overuse, which is found for example in sports and physical training.
[26] The board considered that the connection Dr. Legendre made between the duties performed by the applicant during his service and chondromalacia is hypothetical. The Board noted that the applicant's articulations could have been overused in the course of his duties; however, the Board said, [TRANSLATION] "Chondromalacia is a painful syndrome the origin of which is endogenous". Additionally, the Board continued, [TRANSLATION] "obesity is a source of damage to the articulation of the lower members, as indicated by medical literature".
[27] The board then explained why the applicant was awarded a pension for knee problems in a two-fifths proportion:
[TRANSLATION]
In view of the applicant's military service (infantryman), the Board, noting the extent of the damage to the claimant's two knees, in particular the right knee, concludes that the lower levels in fact applied the benefit of the doubt by considering that the complaint from which the claimant is suffering was moderately aggravated by his service, and that a two-fifths percentage adequately represented the causal connection between the complaint from which the claimant is currently suffering and his military service, strictly regarding the complaint alleged. The claimant's knees were so affected that it is difficult to determine the extent of the causal connection between the work position and the development of the complaint.
Three-fifths were retained for the endogenous nature of the chondromalacia, the harmful effect of the obesity in the appearance or aggravation of the complaints under review and/or any other event which occurred, simply from reading the X-ray reports in the record.
April 3, 2002
[28] In a letter to counsel for the applicant on December 21, 2001, Dr. Legendre indicated that he did not agree with the Board regarding the [TRANSLATION] "endogenous" origin of the chondromalacia. Both in the Larousse médical cited by the Board and in the Department's own medical directives, chondromalacia is described as a consequence of either a severe or a repeated trauma, as in the case of playing sports.
[29] Dr. Legendre wrote that, based on current medical knowledge, the applicant's obesity is not a factor in the appearance or aggravation of the applicant's chondromalacia. In Dr. Legendre's opinion, there is no doubt that there is a direct connection between overuse of the knees and the applicant's patello-femoral chondromalacia.
[30] This new evidence was a basis for an application for review by an appeal board, the members of which were the same as the board whose opinion was criticized by Dr. Legendre.
[31] The review board, bearing in mind the generous rules of interpretation set forth in the Veterans Review and Appeal Board Act, mentioned these provisions, then made an exhaustive review of the decisions to this point. The review board cited a text by Yves Ouellette, Les tribunaux administratifs, in which the writer spoke of the difficulty facing an administrative tribunal which must make a decision between two contradictory medical opinions.
[32] The board made no mention of Dr. Legendre's letter of December 21, 2001. After reviewing the earlier decisions and quoting from Mr. Ouellette's text, the board concluded, mentioning Dr. Legendre's letter for the first time:
[TRANSLATION]
For these reasons the review application is denied, since there is no error of law or fact and the new evidence presented has no significant evidentiary value.
POINT AT ISSUE
[33] Did the Veterans Review and Appeal Board appeal board make an error of fact or law in its decision of April 3, 2002, that would justify the Federal Court's intervention?
LEGISLATION
[34] In section 18.1, the Federal Court Act gives the Court jurisdiction to intervene in a decision by a federal board, commission or other tribunal:
| (3) On an application for judicial review, the Trial Division may
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(3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut :
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| (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
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a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable;
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| (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
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b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
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| Grounds of review
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
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Motifs
(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas :
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a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
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| (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
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b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
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| (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
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| c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it . . .
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d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose . . .
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[35] The VRABA sets out the rules of evidence that should be applied when a pension application is made to the Veterans Affairs Department:
| 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.
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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.
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| 39. In all proceedings under this Act, the Board shall
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39. Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les règles suivantes en matière de preuve :
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| (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;
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a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci;
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| (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and
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b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l'occurrence;
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| (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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c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
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[36] The Pension Act contains a presumption that the disability of a soldier who becomes disabled in the Army is connected with his or her service in the Canadian Armed Forces:
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(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,
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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 :
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| (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.
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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.
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| (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
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(3) Pour l'application du paragraphe (2), une blessure ou maladie -- ou son aggravation -- est réputée, sauf preuve contraire, être consécutive ou rattachée directement au service militaire visé par ce paragraphe si elle est survenue au cours :
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| (a) any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority;
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a) d'exercices d'éducation physique ou d'une activité sportive auxquels le membre des forces participait, lorsqu'ils étaient autorisés ou organisés par une autorité militaire, ou exécutés dans l'intérêt du service quoique non autorisés ni organisés par une autorité militaire;
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| (f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; and
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| f) d'une opération, d'un entraînement ou d'une activité administrative militaires, soit par suite d'un ordre précis, soit par suite d'usages ou pratiques militaires établis, que l'omission d'accomplir l'acte qui a entraîné la maladie ou la blessure ou son aggravation eût entraîné ou non des mesures disciplinaires contre le membre des forces;(g) the performance by the member of any duties that exposed the member to an environmental hazard that might reasonably have caused the disease or injury or the aggravation thereof.
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g) de l'exercice, par le membre des forces, de fonctions qui ont exposé celui-ci à des risques découlant de l'environnement qui auraient raisonnablement pu causer la maladie ou la blessure ou son aggravation.
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[37] Additionally, also in section 21, mere aggravation is compensated for by the following system:
| (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.
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(2.1) En cas d'invalidité résultant de l'aggravation d'une blessure ou maladie, seule la fraction -- calculée en cinquièmes -- du degré total d'invalidité qui représente l'aggravation peut donner droit à une pension.
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[38] Aggravation would occur if the disability already existed at the time the person enlisted; otherwise, his state of health is presumed not to involve disability, unless there is evidence to the contrary.
| (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 or she 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 or her enlistment medical examination unless there is
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| (9) Sous réserve du paragraphe (10), lorsqu'une invalidité ou une affection entraînant incapacité d'un membre des forces pour laquelle il a demandé l'attribution d'une compensation n'était pas évidente au moment où il est devenu membre des forces et n'a pas été consignée lors d'un examen médical avant l'enrôlement, l'état de santé de ce membre est présumé avoir été celui qui a été constaté lors de l'examen médical, sauf dans les cas suivants :(a) recorded evidence that the disability or disabling condition was diagnosed within three months after the enlistment of the member; or
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a) il a été consigné une preuve que l'invalidité ou l'affection entraînant incapacité a été diagnostiquée dans les trois mois qui ont suivi son enrôlement;
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| (b) medical evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the enlistment of the member.
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b) il est établi par une preuve médicale, hors de tout doute raisonnable, que l'invalidité ou l'affection entraînant incapacité existait avant son enrôlement.
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ANALYSIS
Standard of review
[39] This is not the first time that the Court has had before it an application for judicial review of a decision by the Board. The standard of review is well settled, and I feel it will suffice here to quote the observations of Teitelbaum J. in Cundell v. Canada (Attorney General), [2000] F.C.J. No. 38 (F.C.T.D.), at paragraphs 32 and 33, to indicate this:
[32] The applicable standard of review was recently affirmed by this Court in the 1999 decision of Mr. Justice Cullen in MacDonald v. Canada (Attorney General) [1999] F.C.J. No. 346 where he stated at paragraph 21 of his reasons:
On application for judicial review the Court may not substitute its decision for that made by the board or tribunal which is under review. In light of the legislative framework which confers exclusive jurisdiction on the Veterans Review and Appeal Board, as well as the privative clause which renders its decisions final and binding, the applicable standard of review is that of patent unreasonableness.
[33] The applicant bears the burden of demonstrating that the Board made an error of law or an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before the Board: Hall v. Canada (Attorney General) [1998] F.C.J. No. 890.
Assessment of evidence by Board
[40] The courts have consistently held that the Board must take into account the interpretation provisions set out in sections 3 and 39 of the VRABA, as well as the provisions of the disability presumption associated with military service contained in section 21 of the Pension Act.
[41] In Moar v. Canada (Attorney General), [1995] F.C.J. No. 1555, Heald J. examined subsection 10(5) of the Veterans Review and Appeal Board Act, R.S.C. 1985 (3d Supp.), c. 20, since replaced by section 39 of the VRABA. At paragraph 14 of his reasons, Heald J. wrote:
The Board was silent as to the credibility of Dr. McKenna's findings. If it found his evidence lacking in credibility, it should have said so and given its reasons for so finding. In the absence of adverse credibility findings, subparagraph 10(5)(b) suggests that the Board should have accepted Dr. McKenna's evidence.
In other words, unless the expert's evidence is contradicted, the Board can only accept the expert's finding which is favourable to the applicant.
[42] In the case at bar, the Board never ruled on the credibility of Dr. Legendre's opinion. The Board acknowledged that the factors of overuse of knees inherent in the applicant's duties could have aggravated his condition. Dr. Legendre saw those duties as a causal factor; the Board regarded them as an aggravating factor, quantifiable at two-fifths pursuant to section 21(2.1) of the VRABA.
[43] The Board gave no reasons either in the decision at issue or in the prior decisions for attributing the chondromalacia of the knees partly to endogenous factors and partly to factors relating to service. Nevertheless, the expert witness said clearly: there is no reason to think that endogenous factors are involved or any reason to believe that the applicant's weight had anything to do with the condition of his knees.
[44] As a result of section 39, the Board cannot simply dismiss evidence put before it and substitute its own opinion. That is a clear excess of jurisdiction, and hence an error of law which permits the Court to intervene. In the decision at issue the Board simply rejected Dr. Legendre's evidence, indicating that it [TRANSLATION] "has no significant evidentiary value", but said no more. The Board cannot dismiss favourable evidence in this way without giving its reasons. That amounts to depriving the applicant of the benefit which Parliament clearly intended to confer on him by section 39.
[45] Though the VRABA gives the Board exclusive jurisdiction over entitlement to pensions, and adds to that jurisdiction a privative clause indicating that the Board's decision is final and binding, it does not in so doing attribute any medical competence to members of the Board.
[46] Members of the Board are not physicians, they cannot by themselves reject what experts say nor can they substitute their own opinions which are not based either on the evidence or on the very documents to which they refer. According to the Department's medical directives, the endogenous nature of chondromalacia only appears as one of the forms of this ailment in children and young adults. There was nothing in the evidence showing that this was Mr. Léonelli's situation. On the contrary, the uncontradicted expert evidence attributed the present condition of his knees to the demands of service: parachuting, a fall on ice and overuse in the positions required for his work as a technician. The Larousse médical and medical directives speak of overuse as being responsible for the syndrome; sometimes, a significant trauma may contribute. These statements do not contradict what Dr. Legendre said: quite the contrary.
[47] As Moar, supra, noted, the Board can refer to an independent medical expert (now pursuant to subsection 38(1)). What is more, also according to Moar, it has a duty to do so if it intends to contradict evidence before it which has so far not been contradicted. If it does not do so, and that evidence is favourable to the applicant, under section 39 it is bound to accept it. Once again, not acting in this way constitutes an error of law.
[48] In my opinion, this suffices to dispose of the instant application for judicial review. The application is allowed. However, I feel I should mention certain points because they are relevant to the directions which I will add to the reference back to the Board.
[49] The presumption under subsections 21(3) and (9) of the Pension Act was not considered by the Board. Nevertheless, it is part of the Act, and must be taken into account when the Board is evaluating a pension application. Under those provisions, the Act presumes that a disability that was incurred in the course of normal or sports activities by the soldier arose out of or was directly connected with those activities. Further, a finding that there was no disability in the medical examination at the time of enlistment suffices to establish that the person was not suffering from a disability at the outset, unless there is evidence that the disability was diagnosed within three months after the enlistment or evidence can be presented beyond a reasonable doubt that the disability existed prior to enlistment.
[50] In Hall v. Canada (Attorney General), [1998] F.C.J. No. 890, Reed J. spoke of the importance of a causal link in establishing a disability which creates entitlement to a pension. In that case, the applicant had been a member of the Reserve Force for a year (1983-1984). During that year, while engaged in an exercise on skis, he fell into a crevice. Over 10 years later, he claimed a pension for the sequelae of that accident. Nothing was recorded during Mr. Hall's military service and he signed a document on his release in which he stated that he had suffered no injury that could lead to disability.
[51] Mr. Léonelli's situation is quite different. His service lasted for 18 years. The parachute jumps, a fall on the ice in 1976 and his work as a safety systems technician are documented. He already had knee problems when he was released. The nature of the evidence is simply not comparable to the factual situation found in Hall.
[52] With respect, I do not think the applicant here had a duty to present evidence of a causal link. The critical clause in subsection 21(3) ("shall be presumed, in the absence of evidence to the contrary") suffices to reverse the burden of proof. It is for anyone objecting to the application to establish that the injury or illness was not directly connected to service.
[53] From the outset the Board has regarded the condition of the applicant's knees as an aggravation of his condition, an aggravation for which the Board only awarded a fraction, in fifths, of the pension pursuant to subsection 21(2.1). There is no evidence that the chondromalacia from which Mr. Léonelli was suffering existed prior to his enlistment, or that it would have happened without the conditions in which Mr. Léonelli was during his service. In view of the presumption in subsections 21(3) and (9), and in view of the expert testimony contained in the record, the Board was required to conclude, in the absence of evidence to the contrary, that the chondromalacia occurred during service and that it arose out of or was directly connected thereto.
[54] The respondent argued that the Court cannot intervene in the earlier decisions, and in support of this argument cited the judgment in MacKay. There is no question of going back over the earlier decisions. The fact is that the appeal board repeated its findings of fact in the decision of April 3, 2002: in my opinion, therefore, the Court can rule on the basis for those findings.
[55] In its decision of April 3, 2002, the Board first reviewed the various applicable sections of the Act and then went over the decisions rendered in the case at bar from 1996 up to June 19, 2001. The Board then referred to the weighty task of an administrative tribunal that must decide between often contradictory expert opinions. That is not the case here. No credible evidence was presented to contradict Dr. Legendre's opinion.
[56] It is worth noting, although it cited several decisions without comment, that the Board deliberately or inadvertently forgot the decision rendered by Prothonotary Morneau on December 1, 2000, which quashed the Board's decision of April 12, 2000, referred the matter back to the Board for reconsideration and in particular noted the duty to consider the expert report by Dr. Pierre Legendre.
[57] It seems inconceivable, or at the very least strange, that the Board should make several references to decisions prior to the decision of the prothonotary and neglect the fact that Prothonotary Morneau's decision seriously weakened the findings prior to December 2000. The order obtained by consent of both parties gave a direction to the Board that Dr. Legendre's report should be taken into account in any new analysis by the Board.
[58] The fact that, first, the Board did not mention the decision rendered by Prothonotary Morneau in the review of its decision on June 19, 2001, and second, referred to prior decisions which were reversed by Prothonotary Morneau's decision, tends to establish that the Board took absolutely no account of Prothonotary Morneau's decision and the importance which the latter attached to Dr. Legendre's report. The fact that the Board did not take the trouble to offer the slightest reason in support of the dismissal of Dr. Legendre's report on January 11, 2000, and his complementary expert opinion on December 21, 2000, and the absence of any expert opinion contradicting this report, speak for themselves, and lead the Court to the unavoidable conclusion that despite section 32 of the VRABA it is in the interests of justice and in the interests of all parties that the case be heard by a different panel of the Board.
ORDER
THE COURT ORDERS THAT:
[1] The decision of April 3, 2002, is quashed and the matter is referred back to the Board for reconsideration, with the following directions:
(1) the Board is required either to accept Dr. Legendre's conclusions on the causality of the chondromalacia in the applicant's knees or to obtain an expert opinion pursuant to section 38 of the VRABA;
(2) the legal presumptions set out in sections 3 and 39 of the VRABA and subsections 21(3) and (9) of the Pension Act are to be strictly applied;
(3) a different panel will hear the appeal from the decision of April 3, 2002.
[2] The whole with costs to the applicant, including the cost of medical expert opinions.
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"Pierre Blais"
J.F.C.
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-863-02
STYLE OF CAUSE: André Léonelli v. The AGC
PLACE OF HEARING: Montréal
DATE OF HEARING: October 15, 2003
REASONS FOR ORDER AND ORDER: Blais J.
DATE OF REASONS: November 21, 2003
APPEARANCES:
Alain Trudel FOR THE APPLICANT
Mariève Sirois-Vaillancourt FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lajoie, Beaudoin, Héon FOR THE APPLICANT
225, des Forges Street
P.O. Box 606, Suite 207
Trois-Rivières, (Qc)
G9A 5J4
(819) 374-4617
Fax (819) 376-6690
Department of Justice FOR THE RESPONDENT
Complexe Guy-Favreau
200, René-Lévesque Blvd. West
East Tower, 5th floor
Montréal, (Qc)
H2Z 1X4
(514) 496-9234
Fax (514) 283-3856
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