Date: 20050307
Docket: T-1245-04
Citation: 2005 FC 330
Ottawa, Ontario, the 7th day of March 2005
Present: The Honourable Mr. Justice Sean Harrington
BETWEEN:
JOSEPH AURÈLE ROUSSELLE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Joseph Aurèle Rousselle, is a veteran who claims that his hearing was injured because of the noise and vibrations of gunnery during his military service, and that the noise and vibrations caused the hearing problems that he suffers from today.
[2] On three occasions in 1991 and 1992, Mr. Rousselle tried to persuade the Canadian Pension Commission (the Commission), the Pension Review Board, and then the Veterans Appeal Board (the Appeal Board) that his current disability had been caused by his military service. His applications were dismissed on each occasion.
[3] In 2004, he returned to argue his case before the Veterans Review and Appeal Board (the VRAB), which is the equivalent of the former Appeal Board, to have the Board reconsider the earlier decision of the Appeal Board. Mr. Rousselle said that he had new evidence, but the VRAB disagreed and his application was dismissed.
[4] This is an application for judicial review of this last negative decision by the VRAB.
THE BOARD'S DECISION
[5] Mr. Rousselle served in the Canadian military for several years between 1944 and 1968, including:
C Active forces from February 1944 to September 1945;
C Reserve forces from April 1950 to July 1952 and from September 1953 to April 1954; and,
C Regular forces from August 1957 to March 1968 with special duty area (Congo) from March 1963 to June 1964.
[6] In June 1990, Mr. Rousselle tried to claim that he was entitled to a pension for his deafness under subsections 21(1) (disease attributable to military service in a special duty area) and 21(2) (disease attributable to military service in peace time) of the Pension Act, R.S.C. 1985, c. P-6, as amended. In his record, there are two audiograms that he underwent in the 1960s, nearing the end of his military career. Both of these audiograms show only an average hearing loss in both ears. Based on this evidence, in February 1991 the Commission decided that the applicant's condition did not give rise to his entitlement to a pension since, according to the medical opinion given by the pensions medical advisory division, the slight loss of decibels present in the audiograms of the 1960s did not amount to a hearing loss.
[7] In November 1991, the Commission Entitlement Board heard the appeal from the decision of the Commission but dismissed it on the basis of insufficient medical explanation.
[8] In October 1992, the Appeal Board heard the applicant's appeal, but contended that the audiograms from the 1960s did not reveal any hearing disability and that accordingly, there was no basis for awarding pension entitlement.
[9] On January 6, 2004, the applicant once again applied to the VRAB to have it review the previous decision. That application was based on new medical evidence, i.e.:
C Two letters from Dr. Carl Boucher dated August 22, 2002, and April 24, 2003;
C Letter from Charles Duguay (Area Advocate at the Bureau of Pensions Advocates at Veterans Affairs Canada) dated April 3, 2003;
C Letter from applicant dated February 26, 2004;
C Letter from audiologist Elizabeth Arsenault dated January 25, 2001; and,
C Audiograms dated January 21, 1991, January 21, 1997, and January 25, 2001, establishing hypoacusis, or deafness.
[10] According to Mr. Rousselle, the probable cause of his deafness was the exposure to the noise and vibrations from the gunnery during his military service. In particular, he points out that he was part of the Artillery Reserve at Tracadie Camp (New Brunswick) from 1950 to 1957, where he often trained using guns. He was then in military service until 1968. During his service in the Congo from 1963 to 1964, his ears were allegedly injured because of his proximity to an explosion of gunfire. Further, he says that he suffered from malaria during his service in the Congo.
[11] Despite this evidence and despite his explanations, after examining the documents the VRAB dismissed Mr. Rousselle's application in a decision dated June 21, 2004. According to the VRAB, the documents filed by Mr. Rousselle did not meet the requirements for the admissibility of new evidence, inter alia because they could have been filed earlier and because, even if they were given credence, they would not have influenced the result.
[12] I agree that the issue to resolve is whether the VRAB correctly decided that this evidence recently filed by Mr. Rousselle was not "new evidence" and that accordingly, the VRAB properly exercised its jurisdiction to reconsider under section 111 of the Veterans Appeal and Review Board Act, S.C. 1995, c. 18, as amended.
THE STANDARD OF REVIEW
[13] The appropriate standard of review for examining decisions by the VRAB regarding the assessment of the medical evidence (including whether the evidence is "new" or not) is that of patent unreasonableness: McTague v. Canada (Attorney General), [2001] 1 F.C. 647 (F.C.T.D.) at paragraphs 46-47.
ANALYSIS
[14] The VRAB may exercise its jurisdiction to reconsider earlier decisions if there is new evidence. This is pursuant to section 111 of the VRAB Act, which states:
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The Veterans Review and Appeal Board may, on its own motion, reconsider any decision of the Veterans Appeal Board, the Pension Review Board, the War Veterans Allowance Board, or an Assessment Board or an Entitlement Board as defined in section 79 of the Pension Act, 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, in the case of any decision of the Veterans Appeal Board, the Pension Review Board or the War Veterans Allowance Board, do so on application if new evidence is presented to it.
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Le Tribunal des anciens combattants (révision et appel) est habilité à réexaminer toute décision du Tribunal d'appel des anciens combattants, du Conseil de révision des pensions, de la Commission des allocations aux anciens combattants ou d'un comité d'évaluation ou d'examen, au sens de l'article 79 de la Loi sur les pensions, et soit à la confirmer, soit à l'annuler ou à la modifier comme s'il avait lui-même rendu la décision en cause s'il constate que les conclusions sur les faits ou l'interprétation du droit étaient erronées; s'agissant d'une décision du Tribunal d'appel, du Conseil ou de la Commission, il peut aussi le faire sur demande si de nouveaux éléments de preuve lui sont présentés.
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[15] The criteria to take into consideration regarding the issue of new evidence were listed in MacKay v. Canada (Attorney General), [1997] F.C.J. No. 495 (F.C.T.D.)., where Teitelbaum J. refers to [1980] 1 S.C.R. 759">Palmer v. The Queen, [1980] 1 S.C.R. 759 at page 775 (hereinafter, the "Palmer criteria"):
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [[1964] S.C.R. 484">[1964] S.C.R. 484].
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[16] According to the applicant, the VRAB erred in assigning too much weight to the first criterion of [1980] 1 S.C.R. 759">Palmer; i.e., the issue of diligence. Further, the VRAB erred in failing to admit this evidence on the basis that he was not diligent and also in finding that the new evidence would not have changed the earlier decision.
[17] The respondent submits that it should be kept in mind that the [1980] 1 S.C.R. 759">Palmer criteria do not apply as strictly in criminal matters as in civil matters. Therefore, in light of the case law pertaining to judicial reviews of VRAB decisions on the issue of new evidence, the notion of diligence is more important than the applicant alleges: see MacKay, supra, Caswell v. Canada (Attorney General), [2004] F.C.J. No. 1655 (F.C.); Saumure v. Canada (Attorney General), [2002] F.C.J. No. 1319 (F.C.T.D.); Percy v. Canada (Attorney General), [2004] F.C.J. No. 888 (F.C.). The respondent points out that the applicant has not, to date, given any reason for not filing the 1991 audiogram during the previous proceedings, and therefore has not met his burden in that regard. As for the other evidence, the applicant did not provide any explanation for his failure to try to obtain such medical evidence earlier. All this despite the fact that the applicant has known since at least October 6, 1992, after the Appeal Board's negative decision, that the evidence adduced was not sufficient.
[18] In my view, the answer is quite clear: the 1991 audiogram cannot be described as new evidence pursuant to the [1980] 1 S.C.R. 759">Palmer criteria because this evidence existed before and should have been filed when the pension was claimed in 1991 and 1992. Neither the applicant nor the respondent have given me a reason why this evidence was not adduced before the Appeal Board. This violates the first [1980] 1 S.C.R. 759">Palmer criterion for admitting new evidence - i.e., availability. This evidence was available, but was never submitted to the Appeal Board, which demonstrates a lack of diligence by the applicant.
[19] It must also be pointed out that in 1991 and 1992, Mr. Rousselle's pension claim was denied each time on the basis of the audiograms from the 1960s which only established an average hearing loss in both ears. The evidence to the effect that these audiograms were not accurate regarding the deafness (or not) of the applicant should have been filed in 1991 and 1992. The 1991 audiogram could have provided this evidence to the contrary. I note that Mr. Rousselle always had access to the Bureau of Pensions Advocates at Veterans Affairs and that he had the services of counsel for his first claims in 1991 and 1992 (Mr. Duguay as well as Jean Saint-Pierre, at that time Director General of the Bureau of Pensions Advocates, Veterans Affairs Canada).
[20] For the same reasons, the letters from Dr. Carl Boucher and audiologist Elizabeth Arsenault cannot be admitted as new evidence. The applicant knew, or should have known, that his burden of establishing that he was suffering from deafness would not be not satisfied when he made his first claim, without filing the 1991 audiogram into evidence. Without that evidence, there was nothing to contradict the two audiograms from the 1960s. Mr. Rousselle, through his counsel, knew the burden that he had to satisfy and did not meet it. Further, those letters add nothing to the debate. There is nothing new in those letters; all the information in them was already known. The letter from Dr. Boucher, for example, states that the audiograms from the 1960s do not appear to be complete exams. In my opinion, that argument should have been heard in 1991 and 1992 at the time of the first pension claim, when Mr. Rousselle learned that the Commission and the Appeal Board were going to rely on those audiograms to deny his claim. Most importantly, Dr. Boucher only makes allegations; he does not explain to us why the audiograms from the 1960s are incomplete or whether or not they are typical of other audiograms carried out in the 1960s.
[21] In any case, the [1980] 1 S.C.R. 759">Palmer criteria are not cumulative: the evidence can be inadmissible because of the failure to meet one criterion. In Caswell, supra, Noël J. states at paragraph 22 that when an applicant does not adduce clear and convincing evidence when it is available, the burden is on the applicant to establish that there are important reasons to adduce this evidence later on:
I have reviewed the Panel's reasoning, as well as the [1980] 1 S.C.R. 759">Palmer test, and see no reason to interfere with the Panel's determination that these pieces of evidence were not new and therefore inadmissible. There is no clear and convincing evidence on the record adequately explaining why Mr. Caswell was unable to obtain the letter from Mr. Wesch at an earlier date. Mr. Caswell then professes to address this issue in his letter of September 16, 2003, which he submitted to the Board upon its review of the Panel's decision; however, I am again of the opinion that the Board did not err in refusing to admit this letter as new evidence. Not only could Mr. Caswell have introduced his letter at an earlier point in the proceedings (an obvious point would have been as an accompaniment to Mr. Wesch's letter), but he should have done so. What Mr. Caswell is doing is trying to get the proverbial "second kick at the can" by submitting evidence that purports to adequately explain why the letter from Mr. Wesch is admissible as new evidence. The time for this explanation was at the reconsideration hearing before the Panel in September 2002.
[Emphasis added.]
Like the decision in Caswell, it is my opinion that the applicant is out of time to request that his file be reopened, failing a convincing explanation regarding the fact that it took him more than ten years to ask for a review. The VRAB's determination to the effect that these documents do not amount to new evidence is therefore reasonable.
[22] Mr. Rousselle's counsel briefly addressed the fact that, regardless of the reasons for which the 1991 audiogram was not filed earlier, it was the Commission - not Mr. Rousselle - that had the obligation to ensure that there was no medical report or evidence on that date; i.e. in 1992, the Appeal Board should have asked if there were any medical reports or else should have itself obtained such a medical report. In Moar v. Canada (Attorney General) (1993), 103 F.T.R. 314, Heald J. states that the Appeal Board is empowered to obtain expert medical reports when it is necessary. The applicant appears to state that this establishes that the Appeal Board and the VRAB had an obligation to ensure that the applicant had a recent audiogram available at the time of his claim.
[23] However, this power of the VRAB does not establish that it has such an obligation (nor did the former Appeal Board). In Moar, the Appeal Board made a determination regarding the cause of the applicant's disability, disregarding the opinion of the physician who had examined the applicant. Heald J. suggests that the Appeal Board could have asked a second medical expert (which was not done), but that it was not an expert on medical issues and therefore could not disregard the physician's opinion if that opinion was uncontradicted (as was the case). When there is no lack of credibility or contradictory medical opinion, the Appeal Board has the obligation to follow the medical opinion. That was not the situation in this case, since there was a contradictory medical opinion (the audiograms from the 1960s).
[24] Finally, with respect to the applicant's theory that the malaria caused his deafness, I do not have evidence regarding such an illness, or regarding the alleged link between medication for malaria and deafness, so I cannot give any merit to that argument.
CONCLUSION
[25] The statutory provisions referred to by the applicant - to the effect that the VRAB must draw from all the circumstances of the case and all the evidence every reasonable inference in favour of the applicant (in accordance with sections 3, 39 of the VRAB Act) - do not state that the VRAB must accept all of the applicant's arguments. The burden still rests on the applicant who must establish that the new evidence is truly new, credible, relevant, reasonable and, if contradicted by other evidence, more convincing. In this case, Mr. Rousselle did not satisfy this burden. Further, even if this evidence had been admitted, it is contradicted by other evidence and therefore the VRAB was entitled to decide to dismiss it. I therefore determine that the decision by the VRAB was reasonable and that there are no grounds to intervene.
ORDER
The application for judicial review is dismissed, without costs.
"Sean Harrington"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1245-04
STYLE OF CAUSE: JOSEPH AURÈLE ROUSSELLE
AND
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: FREDERICTON (NEW BRUNSWICK)
DATE OF HEARING: FEBRUARY 7, 2005
REASONS FOR ORDER
AND ORDER: HARRINGTON J.
DATE OF REASONS: MARCH 7, 2005
APPEARANCES:
Jeannette Savoie FOR THE APPLICANT
Dominique Gallant FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jeannette Savoie FOR THE APPLICANT
Village St-Laurent, New Brunswick
John H. Sims, QC FOR THE RESPONDENT
Deputy Attorney General of Canada
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