De Quoy v. Canada (Attorney General), 2004 FC 654

Date: 20040504

Docket: T-1044-03

Citation: 2004 FC 654

OTTAWA, ONTARIO, THE 4th DAY OF MAY 2004

PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU

BETWEEN:

LUCIEN ANDRÉ DE QUOY

Applicant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]        The applicant Lucien André De Quoy was a member of the Canadian Armed Forces from July 18, 1949 to June 26, 1996, the date he retired. He is currently suffering from a disco-lumbar illness which he attributes to his 4,000 flying hours as a navigator during his military service.

[2]        Under the Pension Act, R.S.C. 1985, c. P-6 (Pension Act), pensions are awarded to members of the Forces on application in the event of disability. Subsection 21(1) of the Pension Act confers entitlement to a disability pension attributable to military service in a special service zone or during such service, while subsection 21(2) provides for a disability pension caused by an injury or disease - or aggravation thereof - that arose out of or was directly connected with military service in peacetime.

[3]        In the case at bar the applicant filed an application for a disability pension in 1996 pursuant both to subsection 21(1) and subsection 21(2) of the Pension Act. The applicant maintained that the disco-lumbar illness from which he is suffering was connected to his duties during his military service, both in Korea and subsequently.

[4]        On April 15, 1996, the applicant's pension application was rejected by the Veterans Affairs Department on both grounds, because it was not shown that his illness was caused, aggravated or arose out of or was directly connected with his military duties (the first decision).

[5]        The applicant then applied to the Veterans Board (the Board) for review of the first decision. Under section 84 of the Pension Act and section 18 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the Act), the Board has exclusive jurisdiction to review any decision made pursuant to the Pension Act and to decide any question relating to the review application. On February 24, 1997, the Board upheld the first decision.

[6]        The applicant was not satisfied, and then applied to the appeal panel of the Board for review of his case (sections 25 and 26 and subsection 28(1) of the Act). On October 22, 1997, the appeal board upheld the decision of February 24, 1997 (subsection 29(1) of the Act).

[7]        After obtaining two medical reports from Dr. Tremblay, dated June 20 and October 8, 2002 (the new medical evidence), the applicant filed an application for review with the appeal panel (subsection 32(1) of the Act). On May 2, 2003, the Board accepted the new medical evidence but nevertheless concluded that the applicant's disco-lumbar illness was not related to his military service: hence the application for judicial review at bar.

[8]        This Court has already held that the applicable standard of review in such cases is that of the patently unreasonable decision (Lepage v. Canada (Attorney General), [2004] F.C.J. No. 22, at para. 6 (F.C.) (QL); and McTague v. Canada (Attorney General), [1999] F.C.J. No. 1559 (F.C.T.D.) (QL), (1999) 177 F.T.R. 5). As the question of establishing a causal link is factual in nature, in view of the combined effect of sections 18 and 31 of the Act - that is, respectively, an exclusive jurisdiction review and appeal clause and a finality clause - this Court must exercise the greatest restraint. Consequently, this Court should only intervene if the appeal panel's findings of fact are patently unreasonable. Obviously, that will be the case when they are not based on any evidence in the record.

[9]        At the same time, the Court must also ensure that the appeal panel acts in accordance with the Act. In this connection, the appeal panel must take into account the general rules set out in section 39 of the Act. That provision states:

[10]      As can be seen, paragraph 39(a) of the Act provides that the Board shall draw every reasonable inference in favour of the applicant (the appellant), while under paragraph 39(c), the Board must resolve in the latter's favour any doubt as to whether he has established a case. Similarly, paragraph 39(b) provides that the Board shall accept any uncontradicted evidence presented to it by the applicant (the appellant) that it considers to be credible. Thus, the Board (the appeal panel) must be able to explain to the applicant (the appellant) why, for example, in the circumstances uncontradicted evidence does not appear to be credible. Having said that, section 39 of the Act does not exempt the applicant (the appellant) from the duty to establish on a balance of probabilities that his disco-lumbar illness arises out of or is directly connected with his military service.

[11]      In this Court, the applicant argued inter alia that the appeal panel had exceeded its jurisdiction by failing to accept all uncontradicted evidence, that is, by arbitrarily disregarding the new evidence, by not carrying out its duty to provide adequate reasons for its decision and by concluding that the applicant's condition was due to an accelerated degeneration on account of age, without any medical expert opinion on the basis of which it could draw such a conclusion.

[12]      The respondent argued, on the contrary, that the appeal panel's decision was not patently unreasonable. In the case at bar, the applicant had not shown the existence of a causal relationship between the incident reported, namely the flying time, and the disco-lumbar illness from which he is now suffering. The respondent submitted that the appeal panel had in fact weighed the new evidence and based its decision inter alia on the absence of medical evidence or of back pain complaints between 1954 and 1994, the absence of treatment following a report of back pain in 1954 and the non-existence of back problems in various medical reports prepared by the Canadian Forces.

[13]      After examining the appeal panel's decision in light of the evidence in the record and the submissions by the parties, I feel that the appeal panel's decision is patently unreasonable and that it should be reviewed for the following reasons.

[14]      To begin with, it is worth noting that Exhibits A-7 and A-8, electromyography reports of August 16, 2002 and X-ray reports of September 9, 2002, filed in support of the applicant's affidavit, were not brought to the appeal panel's attention. It has already been held by this Court that in an application for judicial review the validity of the impugned decision cannot be questioned on the basis of new evidence which the decision-maker did not have available when he made his decision (Shmyr v. Canada (Attorney General), [2000] F.C.J. No. 1673 (F.C.T.D.) (QL), (2000) 195 F.T.R. 84). Consequently, these exhibits have not been considered by the Court in connection with this application.

[15]      Having said that, the new medical evidence submitted to the appeal panel by the applicant unquestionably establishes a direct causal link between the applicant's illness and his military service. Thus, the report dated June 20, 2003, clearly indicates that the applicant's 4,000 flying hours significantly contributed to the development of lumbar osteoarthritis:

[TRANSLATION]

Consequently, we feel that the 4,000 hours he spent in aircraft which transmitted intense vibrations to the occupants significantly contributed to the development of lumbar osteoarthritis.

. . . . .

Consequently, we feel that Mr. De Quoy's current condition is largely the result of his service in the Armed Forces, especially because of his 4,000 flying hours on aircraft which transmitted exceptional vibrations.

[Emphasis added.]

[16]      Further, in his report dated October 8, 2002, Dr. Tremblay indicates that the applicant's degenerative osteoarthritis was [TRANSLATION] "accelerated, if not caused, by the flying time in aircraft which transmitted harmful vibrations to the skeleton".

[17]      However, contrary to what was suggested by Dr. Tremblay, the appeal panel nevertheless concluded there was no causal link between the incident in question, namely the flying time, and the degenerative osteoarthritis. Instead, the appeal panel considered that the degenerative osteoarthritis from which the applicant is suffering resulted from the normal aging process associated with the applicant's age:

... There is no mention of this problem in either the 1956 or 1978 medical examinations. It was not until 1994 that an X-ray revealed mild degenerative changes at L4-5 and L5-S1 and osteoarthritic change of the articular facets at L4-5 and L5-S1.

All the degenerative changes to the Applicant's back are consistent with the normal aging process. Damage due to trauma results in accelerated degeneration of the affected area, but there is no evidence of that in the Applicant's case.

[Emphasis added.]

[18]      Further, the Board noted that Dr. Tremblay's reports do not refer to a specific incident:

Dr. Tremblay's reports, although informative about occupational exposure to vibration and the associated increased risks, have no reference to a specific incident or injury during the Applicant's service nor do they address the issue of accelerated degeneration normally associated with trauma.

[Emphasis added.]

[19]      The appeal panel's reasoning seems patently unreasonable to the Court. When the appeal panel decides to accept new evidence (MacKay v. Canada (Attorney General), [1997] F.C.J. No. 495 (F.C.T.D.) (QL), (1997) 129 F.T.R. 286), it must assess such evidence with reference to all the evidence in the record. If it decides not to attach any weight to the new evidence, the appeal panel must indicate the reasons in its decision.

[20]      It is true that the medical examinations of 1958 or 1978 do not mention the particular condition diagnosed in 1994. Nonetheless, I do not think this is a sufficient basis for attaching no weight to the new medical evidence. The new medical evidence corroborated the applicant's statements that he suffered from back pain for years before his current illness was diagnosed. Further, it should be noted that Dr. Tremblay's reports do not conflict with the material evidence which was part of the appeal panel's record. The appeal panel accordingly acted contrary to section 39 of the Act when it arbitrarily disregarded Dr. Tremblay's two reports.

[21]      Additionally, the appeal panel stated that the osteoarthritis was an illness associated with the normal aging process. That may be so, but this finding of fact cannot be based on the evidence currently in the record. Where does the appeal board get this medical finding? Could the vibrations in the aircraft have caused micro-traumas regardless of the applicant's age?

[22]      At the hearing in this Court, the "Veterans Affairs Guidelines - Cumulative Joint Traumas" (the Guidelines) were cited by the respondent to justify the conclusion arrived at by the appeal panel. This raises a problem in the case at bar. On the one hand, if the appeal panel wished to rely on the content of the Guidelines as medical evidence, the latter should have been entered in the record and previously given to the applicant. On the other hand, considering that the applicant's new medical evidence is decisive, the appeal panel had to refer expressly in its decision to any contrary evidence that it preferred to accept in the circumstances.

[23]      In this connection, I would add here that it is far from being clear that the Guidelines support the appeal panel's conclusion. The following is stated in the Guidelines:

OA is a disease that begins in the articular cartilage but eventually involves the surrounding tissue, bone and synovium. When the cartilage is absent from the articular surface, the underlying bone is subjected to greater local stresses. Remodelling of the bone occurs at the joint margins through the formation of osteophytes, and can be considerable.

After the initial stages of cartilage degeneration (from many causes, including injury), there may be a delay of many years before a person feels joint pain or an x-ray shows osteoarthritic changes. Significant cartilage damage may have occurred before relevant signs and symptoms appear.

[Emphasis added.]

[24]      If, as the respondent maintained, the appeal panel did take the Guidelines into account, it should also have considered whether the vibrations in the aircraft could constitute micro-traumas: in that case, it was not impossible that several years could have elapsed before the applicant felt articular pain or the osteoarthritic changes showed up on the X-ray in 1994. The absence of adequate analysis of this essential aspect in the appeal panel's decision does not allow the Court to determine whether the appeal panel in fact took all relevant factors into account, and this makes its decision reviewable.

[25]      In view of the nature of the new medical evidence and the fact that Dr. Tremblay's status as an expert was not challenged, and in view of section 39 of the Act and the absence of any medical evidence in the appeal panel's record directly contradicting Dr. Tremblay's conclusions, I feel that the appeal panel acted perversely and arbitrarily in disregarding Dr. Tremblay's two reports, and this makes its decision patently unreasonable (Bernier v. Canada (Attorney General), [2003] F.C.J. No. 62 (F.C.T.D.) (QL), (2003) 230 F.T.R. 89). In the case at bar, the Court does not have to decide whether the applicant's pension application is valid. It only has to determine whether the Board made a reviewable error. That is the case here, and this justifies the applicant's case being reexamined by an appeal panel of different members, pursuant to the Act.

ORDER

THE COURT ORDERS that the applicant's application for judicial review be allowed and that the matter be referred back for reexamination by an appeal panel of different members, in accordance with the Act; with costs.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                                                                         T-1044-03

STYLE OF CAUSE:                                                         LUCIEN ANDRÉ DE QUOY v. THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                                   MONTRÉAL

DATE OF HEARING:                                                     APRIL 15, 2004

REASONS FOR ORDER

AND ORDER BY: THE HONOURABLE MR. JUSTICE MARTINEAU

DATED:                                                                            MAY 4, 2004

APPEARANCES:

JOSSELIN BRETON                                                         FOR THE APPLICANT

PATRICIA GRAVEL                                                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

JOSSELIN BRETON                                                         FOR THE APPLICANT

MONTRÉAL, QUEBEC

MORRIS ROSENBERG                                                    FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA

VETERANS REVIEW AND APPEAL BOARD                FOR THE BOARD

CHARLOTTETOWN, PRINCE EDWARD ISLAND