Date: 20010703
Docket: T-983-00
Ottawa, Ontario, the 3rd day of July, 2001
Present: The Honourable Mr. Justice Pinard
Between:
MARCEL TOUSIGNANT
Applicant
- and -
THE MINISTER OF VETERANS AFFAIRS
Respondent
ORDER
The application for judicial review of the decision of the Veterans Review and Appeal Board, rendered April 12, 2000, is dismissed.
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20010703
Docket: T-983-00
Neutral Citation: 2001 FCT 730
Between:
MARCEL TOUSIGNANT
Applicant
- and -
THE MINISTER OF VETERANS AFFAIRS
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review by which the applicant is asking that a decision of the Veterans Review and Appeal Board (the "Board"), dated April 12, 2000, be rescinded. The Board, in the context of a reconsideration under subsection 32(1) of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the "Act"), upheld the decision of the appeal panel of November 25, 1997 denying the applicant a disability pension for hiatus hernia under the Pension Act, R.S.C. 1985, c. P-6.
[2] An articling student, Ms. Sirois-Vaillancourt, was allowed to argue on behalf of the respondent in this Court under the supervision of counsel Nadine Perron, pursuant to the combined effect of Rules 2 (definition of the term "solicitor") and 119 of the Federal Court Rules, 1998 and section 45 of the Regulation respecting professional training of advocates of the École du Barreau du Québec.
[3] The applicant, who is 80 years old, served in the Active Forces of the Canadian Army from April 4, 1940 to October 7, 1944, and thus has more than four years of service within the armed forces.
[4] Following the landing at Dieppe on August 19, 1942, during the Second World War, the applicant began to suffer gastric problems. He was released on October 7, 1944 on the ground that he could not achieve the necessary military physical aptitudes. On December 28, 1994, the applicant filed a pension application for hiatus hernia, haemorrhoids and chronic constipation which he alleges result from his service in the army.
[5] In a decision dated June 16, 1997, the review panel refused the applicant a disability pension for a hiatus hernia but recognized his entitlement to a partial disability pension for chronic constipation.
[6] This decision was upheld on appeal by the Board's appeal panel on November 25, 1997. The appeal panel held that the hiatus hernia the applicant suffered from was unrelated to his service during the Second World War and noted that although the applicant had complained of nervous tension and chest pains since the landing at Dieppe, the medical examination performed for purpose of his release from the armed forces had proved normal.
[7] The applicant then filed an application to the appeal panel on November 30, 1999 for a reconsideration of the decision, pursuant to sections 18 to 24 of the Act. The decision was again upheld by the Board on April 12, 2000, which held that the new medical evidence submitted was speculative in nature and unsupported by the evidence on file.
[8] The Board ultimately held that the hiatus hernia is "[Translation] not attributable to service during the Second World War nor did it occur during that war". It is this decision that is the subject of the present application for judicial review.
[9] It is necessary to reproduce at this point the following relevant statutory provisions:
Pension Act, R.S.C. 1985, c. P-6:
| 21. (1) In respect of military service rendered during World War I or World War II and subject to the exception contained in subsection (2),
(a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that was attributable to or was incurred during 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;
[. . .]
(d) an applicant shall not be denied a pension in respect of disability resulting from injury or disease or aggravation thereof incurred during military service or in respect of the death of a member of the forces resulting from that injury or disease or the aggravation thereof solely on the grounds that no substantial disability or disabling condition is considered to have existed at the time of discharge of that member;
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21. (1) En ce qui concerne le service militaire accompli pendant la Première Guerre mondiale ou pendant la Seconde Guerre mondiale, et sous réserve du paragraphe (2) :
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 - survenue au cours du service militaire ou attribuable à celui-ci;
[. . .]
d) un requérant ne peut être privé d'une pension à l'égard d'une invalidité qui résulte d'une blessure ou maladie ou de son aggravation contractée au cours du service militaire, ou à l'égard du décès d'un membre des forces causé par cette blessure ou maladie ou son aggravation, uniquement du fait que nulle invalidité importante ou affection entraînant une importante incapacité n'est réputée avoir existé au moment de la libération de ce membre des forces;
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Veterans Review and Appeal Board Act, S.C. 1995, c. 18:
| 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.
39. In all proceedings under this Act, the Board shall
(a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant;
(b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and
(c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.
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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 leurs pays et des personnes à leur charge.
39. Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les règles suivantes en matière de preuve :
a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci;
b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l'occurrence;
c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
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[10] Essentially, the applicant criticizes the Board for its application of the above statutory provisions in light of the uncontradicted evidence before it. However, having reviewed the record, I do not consider the Board's findings of fact and of law to be patently unreasonable; on the contrary, they seem completely reasonable to me.
[11] In MacDonald v. Canada (Attorney General), [1999] F.C.J. no. 346 (QL), at paragraph 21, Cullen J. noted the standard of review that is applicable in this case, that of patent unreasonableness:
On an 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....
[12] In the case at bar the Board, after clearly stating that it was aware of its obligation, under section 3 reproduced above, to liberally construe all the legislation, and under section 39, reproduced above, to resolve in favour of the applicant any doubt as to whether he has established a case, stated:
[Translation]
During its detailed review of all the documentation in relation to this claim, the Board took into account Mr. Pinel's reference to Mr. Tousignant's chest pain, in 1944, and the ongoing problems up to 1946.
The Board notes that it was recorded for the first time following Mr. Tousignant's dismissal during his stays in the Hôtel-Dieu hospital in Montréal, from October 29 to November 12, 1973. Mr. Pinel submits that this medical report of November 12, 1973 "is further confirmation that the symptoms were present twenty years before the discovery of the diagnosis in 1993". He also refers to the medical opinions of Dr. Arakelian, dated October 16, 1995, and especially the opinion of April 3, 1998, when the doctor noted: "in terms of complaints... relatively few symptoms".
The Board took note of the medical opinion of a medical adviser, dated July 9, 1996, in which it is demonstrated that the hiatus hernia complaint was diagnosed in 1993 and that the symptoms which Mr. Tousignant was suffering during his service tended to be related to his state of anxiety.
Since "burning gastric pains" were recorded in 1973 (Appendix 9), it is quite probable that some symptoms of the claimed complaint existed before the hiatus hernia complaint was diagnosed in 1993. But it was not until 1993 that a precise diagnosis was recorded on file.
The Board further notes that there is no radiological data during the service, or even any problems noted at the commencement of Mr. Tousignant's dismissal period in 1944. Also to be noted is the medical opinion of a medical adviser who links Mr. Tousignant's complaints during his service to his state of anxiety.
The board must therefore conclude that Dr. Jean Arakelian's reports are speculative in nature and unsupported by the evidence on file. Consequently, the previous decision of an appeal panel, dated November 25, 1997, is therefore upheld.
[13] The Board then concluded, as indicated earlier, that the applicant's hiatus hernia was "[Translation] not attributable to service during the Second World War nor did it occur during that war".
[14] Thus, it appears that the Board held that a portion of the evidence before it demonstrated that the symptoms as to the applicant's state of health during his service in the Second World War were related to his state of anxiety and that the other portion of the evidence was speculative in nature. The Board's decision does not indicate any uncertainty. There is nothing that would suggest that the Board refused or ignored any uncontradicted evidence that might have appeared to it to be probable in this case. In the circumstances, any relevant legal provisions being construed liberally, I do not see how the Board could have drawn from the evidence conclusions that were more favourable to the applicant. As my colleague Mr. Justice Muldoon said so well, in Hunt v. Canada (Minister of Veterans Affairs), [1998] F.C.J. no. 377 (QL), at paragraph 9 of his decision of March 20, 1998:
Although section 39 of the Veteran's Appeal and Review Tribunal Act requires that the board accept uncontradicted evidence, this evidence must be credible. The applicant must prove the civil standard that on a balance of probabilities, with the bonus of having this evidence put in the best light possible, his disease was contracted while in the service of his country. This civil standard must be read in concert with the entitling provision of section 21 of the Pension Act, R.S.C. 1985, Chap. P-6.
[15] Since I am of the opinion that the Board, on the basis of the evidence before it, considered in light of the principles set out in the statutory provisions reproduced above, could reasonably conclude that the applicant's disability was not caused by a hiatus hernia "attributable to or ... incurred during such military service", I must, regretfully, dismiss the judicial review application.
J.
OTTAWA, ONTARIO
July 3, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-983-00
STYLE: Marcel Tousignant v. Minister of Veterans Affairs
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 27, 2001
REASONS FOR ORDER OF PINARD J.
DATED: July 3, 2001
APPEARANCES:
Normand Pinel FOR THE APPLICANT
Nadine Perron FOR THE RESPONDENT
SOLICITORS OF RECORD:
Normand Pinel
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Attorney General of Canada [sic]
Montréal, Quebec FOR THE RESPONDENT
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