Bradley v. Canada (Attorney General), 2001 FCT 793

           Date: 20010713

Docket: T-2137-99

Neutral Citation: 2001 FCT 793

BETWEEN:

                                          BRIAN C. BRADLEY

Applicant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER

MacKAY J.

[1]              This is an application for judicial review pursuant to section 18.1 of the Federal

Court Act, following a decision of the Veterans Review and Appeal Board (the "VRAB") by letter dated November 25, 1999. By that decision the Board determined not to reconsider a decision it had rendered on May 18, 1999, when it disallowed the applicant's appeal of a decision that he was not entitled to a pension in relation to an injury he claimed had resulted from an incident while he was serving in the armed forces. The applicant seeks an order that the decision of the Board be quashed, and that his appeal concerning his pension entitlement be referred for reconsideration by a differently constituted panel of the Board.

[2]                No issue was raised at the hearing about limiting argument to the later decision.

Rather, the parties discussed the issues as though the decisions of November 25 and of May 18 were one since the substantive decision of the board was that of May 18 which it determined on November 25 would not be reviewed, despite the applicant's request to do so on the basis of new evidence. These reasons treat the interrelated decisions as one as did the parties when the matter was heard.

The Facts

[3]                The applicant was born on August 4, 1949. He served in the militia from March

5, 1966, until August 15, 1966, and in the Reserve Force from July 14, 1988, to December 9, 1988. He then served in the Regular Force from December 14, 1988, to March 30, 1993.

[4]                On July 14, 1990, the applicant was a junior officer in training. While onboard

HMCS Qu'Appelle, which had just returned from exercises in the Pacific and tied up in Vancouver, British Columbia, he was showering when he lost his balance in the shower and fell against the bulkhead, hitting his back and wrenching his arm. The medical assistant who later attended to him noted that the applicant was found rolling in his bunk, experiencing severe spasms in his lower back. He was in such pain that he had difficulty talking and could not move without pain. The applicant remained bedridden until the ship returned to her home port of Esquimalt, B.C., a few days later.

[5]                Upon returning to Esquimalt, the applicant was transferred to a military hospital

on July 19, 1990. The hospital medical records note that the applicant denied falling or hitting his back. During his stay in the hospital, he complained of muscle spasms in his back, and pain in his right mid-lumbar region, with spinal tenderness.

[6]                When the applicant was released from the Navy in 1993, he underwent a physical

examination, the notes of which refer to chronic thoracic T4 - T5 back pain. The medical report states that most of the pain was originally in lower back, "but now gets pain in T4-5 area...Present ever since slipped in shower no LBP discomfort." The report includes the following additional notes: "Full cervical ROM nontender C spine", and "Today's clinical exam identified no spinal abnormality with full ROM...". No reference is made in the report to pain in the cervical spine area, i.e. the neck, at that time.

[7]              On March 28, 1996, the applicant applied for a disability pension under the

Pension Act claiming that he suffers from cervical 5-6 Radiculopathy, because of the accident in the shower aboard ship in Vancouver in July, 1990. On February 4, 1997, the Department of Veterans Affairs rejected the application. An appeal to the Entitlement Review Panel was similarly rejected on May 8, 1997, as was an appeal to the VRAB on December 3, 1997.    The applicant then sought judicial review of the decision of the Board, and on January 27, 1999, my colleague Mr. Justice Blais set aside the Board's decision and referred the application back for rehearing and redetermination by a differently constituted panel.

[8]                A new panel of the Board reconsidered and rejected the applicant's claim by letter

dated May 18, 1999. Thereafter, the applicant submitted a further medical report, and a few decisions in other cases, with a request that the Board reconsider its decision. The Board, by letter dated November 25, 1999, refused to do so. That decision precipitated this application for judicial review, initiated in December, 1999, and heard in Halifax on November 16, 2000. I regret my decision has been long delayed.

Issues

[9]                The Applicant, who represented himself in this proceeding, set out grounds

which, in his view, raised issues of error on the part of the Board. In my view those grounds can be considered within three general issues in this application for judicial review:

a.        Was the Board's finding that the applicant's accident did not arise out of his military service unreasonable?

b.         Was the Board's finding patently unreasonable that the medical evidence before it did not demonstrate that the accident caused the injury for which a pension was sought?

c.        Did the Board discharge its statutory obligation under section 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18, (the "VRAB Act"), which requires special consideration of the evidence favourably supporting the applicant's claim.

[10]            Before dealing with those issues I turn to the legislative framework for pension

awards for armed services personnel and to the appropriate standard of review in considering decisions of the VRAB.

The Legislative Regime

[11]          Section 2 of the Pension Act, R.S.C. 1985, c. P-6 and section 3 of the Veterans

Review and Appeal Board Act, S.C. 1995, c.18 (the "VRAB Act") create liberal and purposive guidelines for considering claims for veterans' pensions in light of the nation's great moral debt to those who have served this country. [see Mackay v. Canada (Attorney General) (1997), 129 F.T.R. 286 (T.D.)]. These provisions are:

[12]            Section 39 of the VRAB Act provides that the Board has a duty to consider and

weigh the credible evidence in the best interests of the applicant [see Brychka v. Canada (Attorney General) (1998), 141 F.T.R. 258 (T.D.); Metcalfe v. Canada (Attorney General) (1999), 160 F.T.R. 281(T.D.)]. The Federal Court of Appeal's decision in Chenier v. Canada (Minister of Veteran Affairs) (1991), 136 N.R. 377, discussing section 108 of the Pension Act, as it was then, when it was similar in every material respect to section 39 of the VRAB Act, is authority for the proposition that the Board fails in the exercise its jurisdiction when it summarily arrives at the conclusion that the member was not engaged in an activity giving rise to a pension without "expressly dealing with the evidence from which an inference favourable to the Applicant might have been drawn.".

[13]            Section 39 of the VRAB Act states:

[14]            Sections 3 and 39 of the VRAB Act do not, however, relieve the applicant of the

burden of proving that the injury arose out of or in connection with military service. [see Cundell v. Canada (Attorney General) (2000), 180 F.T.R. 193 (T.D.)]. The applicant must establish on a balance of probabilities, with the evidence considered in the best light possible, that his disability is service-related as set out in the relevant entitling provision, in this case paragraph 21(2)(a), of the Pension Act, which provides:

[15]            An applicant may be aided by one or more of the presumptions specified in

subsection 21(3), in this case paragraph 21(3)(f) of the Pension Act, was suggested by the VRAB decision as most relevant. It provides:

Standard of Review

[16]            Mr. Justice Evans held in McTague v. Canada (Attorney General), [2000] 1 F.C. 647

(T.D.) at 666-7 that the appropriate standard of review for decisions of the Veterans Appeal and Review Board is reasonableness simpliciter except where the decision concerns a finding or inference from conflicting evidence whether the claimant's disability was in fact caused or aggravated by military service. In the latter case, the standard of review is patent unreasonableness.

[17]            However, Evans J. also stated that where the questioned decision concerns a

determination whether or not there is a causal connection between the injury claimed and military service, the standard of review is reasonableness.

[18]            The first of the issues here concerns a finding of mixed fact and law. So far as that

issue depends only on interpretation of the law the standard of review is correctness, but in the application of the law, correctly interpreted, e.g. whether the applicant, on the facts before the Board, suffered an injury that was service related, the standard of review is unreasonableness. I note that Mr. Justice Gibson in Trainor v. Canada (Attorney General), [2000] F.C.J. No. 503 (T.D.) (QL), who, in review of a finding of mixed fact and law, stated:

                               Based on Mr. Justice Evans conclusion with which I concur, I conclude that, on a spectrum bounded by "patent unreasonableness" at one end and "correctness" at the other, with "reasonableness simpliciter" in the mid-range of the spectrum, the appropriate standard of review on the matter before me is somewhere between "reasonableness simpliciter" and "patent unreasonableness", in a portion of the spectrum that might be described as "unreasonableness" or "unreasonableness simpliciter".

[19]            I am satisfied that the standard of review regarding conclusions based on the medical

evidence, the second issue here raised, is patent unreasonableness, as set out by Evans J. in McTague, supra. This Court should not interfere unless the impugned decision was based on an error of law, or on an erroneous finding of fact made in a perverse and capricious manner, or without regard to the material before it. [See also MacDonald v. Canada (Attorney General) (1999) 164 F.T.R. 42 (T.D.); Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (T.D.)].

Link to Military Service

[20]            The Board held that the accident was not related to the applicant's military service at

pages 12-14 of its decision:

The Board is of the view that a liberal interpretation of the expression "in the course of" would apply to an off-duty injury aboard a ship on which a claimant is living. The difficulty for the Board in this case is that for the purposes of the Pension Act paragraph 21(3)(f) requires that the injury not only have been incurred in the course of a military operation, administration or training but also that it must have been incurred "either as a result of a specific order or established military custom or practice".

In applying the legislation to the facts of the present case, the Board can find no evidence before it that the Appellant's activities at the relevant time were as a result of a specific order or any established military custom or practice...

Having determined that the presumption in paragraph 21(3)(f) does not apply, the Board must also examine the facts in light of subsection 21(2) and determine if nevertheless the claimed injury arose out of or was directly connected with military service.

...

It would not be particularly useful in the determination of this case to examine the many tests and formulas proposed over the years by the courts and administrative tribunals as explanations for the meaning of "arising out of" or "arose out of". More pertinent for the present case is the current Department of Veterans Affairs Pension Policy Manual under which the Department makes the Pension Act decisions that are reviewed by the Veterans Review and Appeal Board. The Manual states concerning subsection 21(2):

B. POLICY

1. Compensation Principle:

Subsection 21(2) provides coverage under the Compensation Principle, i.e., pension benefits may be awarded if a disability, disabling condition, the aggravation of a disability, or death, arose out of or was directly connected with the demands of military service in peacetime. Since former members covered under this subsection are not considered to be on duty twenty-four hours a day, claimed disabilities must be directly related to a service event or factor. When a particular service event cannot be pinpointed as the cause of a death, disability, or the aggravation of a disability, it must then be shown that the risks associated with military service are more likely to be causal factors than the risks associated with the normal activities of daily living.

The Board agrees that the policy is a reasonable interpretation of subsection 21(2) and believes that it has been properly adopted and published. It has therefore decided to apply the policy in the present case.

REASONS AND CONCLUSIONS - Statutory Interpretation

In examining the facts of the case the Board can find no indication that the accident arose out of or was directly connected with any service event nor were the risks associated with military service likely to have been causal factors. In fact, the Board believes that the Appellant was engaged in a normal activity of daily living when the accident occurred. He was engaged in a personal activity - taking a shower - that followed another personal, leisure or recreational activity - relaxing in the Mess following the completion of his work.

In fulfilling its duty to interpret the Pension Act liberally the Board has also looked for other factors which might permit it to find that the claimed disability arose out of or was directly connected with service but has found none. In particular, there is no evidence that the shower facilities were in any way especially dangerous nor that the Appellant was engaged in an activity that could be described as incidental to his work, nor that he was acting in any way under the compulsion of his superiors or of the requirements of his service. Therefore the Board cannot find that the Appellant's injury arose out of or was directly connected with his military service.

The Board is aware that the Pension Act, given the breadth and general wording of its most important provisions, is open to different interpretations.

The Board's interpretation in this case is based on its view of the intention of Parliament as expressed in the Pension Act. Should the Federal Court or other court decide that the Board's interpretation is wrong and that a claimant's presence on board a military ship in peacetime at the time of an accident is by itself sufficient to bring a resulting injury within subsection 21(2) of the Pension Act, the Board will review the case in accordance with the Court's direction.

[21]            In considering whether it was reasonable for the Board to hold that showering

onboard HMCS Qu'Appelle was not a service-related activity, I have difficulty accepting the Board's interpretation of paragraph 21(3)(f) as important in this case considering subsection 21(2). Subsection 21(3) merely sets out a series of presumptions to be assumed in the absence of evidence to the contrary, in circumstances described in each of paragraphs (a) to (f). While paragraph 21(3)(f) may not be applicable in this case, it is unnecessary to consider whether that or any other presumption in subsection 21(3) applies before considering the application of subsection 21(2) itself. I have difficulty also with the Board's acceptance of a department policy statement as definitive in the application of subsection 21(2), for that statement is not legally significant in the sense that it is not a statement of law.

[22]            In R.E.C. v. Canada (Attorney General), [1998] F.C.J. No. 1420 (T.D.) (QL), the

Board denied an application for a pension to an applicant who was a member of the Canadian Armed Forces. The applicant lived in Victoria, B.C., but was sent on a temporary assignment to Canadian Forces Base Halifax to participate in the International Military Tattoo. The applicant was assigned to live with another female military member in military accommodations. One night, while they were both asleep, they were attacked by a male member of the military and they both suffered a disability. The Board refused the application for a pension, holding that the sexual assault of the applicant, while asleep in military barracks provided by military authorities, did not constitute an activity conducted in the course of military training under paragraph 21(3)(f) of the Pension Act.

[23]            Mr. Justice Hugessen reversed the Board's decision, stating:

[5] In my view, the Board has erred in law in its construction of the Statute and it has in particular erred in law in the application of section 3 of the Veteran's Appeal and Review Board Act to section 21 of the Pensions Act. The error of the Board is also in its concentration upon the "activity" of the appellant at the time of the attack upon her. It is not the activity that is important but rather whether the injury which she suffered arose in the course of or was directly connected to her military service.

[6] In this case, as the Board itself found, she was required, as a part of her military duty, to, sleep in the quarters at CFB Halifax. The situation is, I think, precisely similar to what would have happened if she had been on sea duty where she would have been assigned sleeping quarters in a ship and the attack which took place upon her had taken place while she was sleeping in accordance with the orders she had received.

[7] If she had not been where she was, when she was, she would have been in breach of her orders and very possibly subject to discipline. Equally, of course, if she had not been where she was, when she was, she would not have been the victim of this vicious attack.

[8] In my view, it is this circumstance, the duty imposed upon the applicant by her military superiors, to sleep in the quarters at CFB Halifax, which distinguishes this case from the cases which have been cited. In particular, the Merineau case, and the O'Connor case, which followed it, had to do with members of the Forces receiving medical treatment to which they were entitled, but to which they were by no means obliged to submit, at the hands of military doctors. Medical treatment which subsequently turned out to be negligently administered. That is an entirely different situation from this one. Likewise, the cases of Leach and Scaglione, which have been mentioned, dealt with activities which were clearly entirely voluntary on the part of the serving members concerned. Here, we are dealing with an activity, if one must concentrate as the Board did on the activity, which is a normal human activity required by all of us, namely sleeping, which was required of the applicant to be carried out in a particular place. It is that circumstance which gave rise to the injury which was directly connected to her military service.

[24]          Mr. Justice Muldoon supported these comments in Schut v. Canada(Attorney

General), [2000] F.C.J. No. 424 (T.D.) (QL), and concluded that "one must not look at an activity in isolation but must appreciate whether that activity was performed within the context of military service".

[25]            In this case, the Board states that the applicant was engaged in a personal activity of

daily living when the accident occurred, and because this is an normal activity which can occur anywhere, the injury did not arise out of, nor was it directly connected with, his military service. However, it is not the activity of showering considered in isolation from Mr. Bradley's military service which is important. The activity might take place anywhere, but in this case the applicant was assigned to duty on a ship and showering could only take place onboard the ship which was away from its home port. Although he was not ordered to take a shower, Mr. Bradley showered onboard HMCS Qu'Appelle because there was no other choice. Assuming for the moment that his claimed disability arose from that activity, whether it arose out of military service is the question the Board ought to have determined. I note that in his decision in the first application for judicial review, my colleague Mr. Justice Blais specifically found that the applicant was on training at the time of the incident alleged on board the Qu'Appelle.

[26]            In my opinion, the Board's decision, which isolated the activity in which the applicant

was engaged at the time of his injury from the circumstances of his military service, was unreasonable. The VRAB erred in law, as the Board was found to have done in R.E.C v. Canada, supra, by Hugesseon, J.

Medical Evidence

[27]            The second issue before the Court is whether the Board's conclusion regarding the

medical evidence was patently unreasonable. The Board discussed the medical evidence at length starting at page 15 of its decision, dated May 19, 1999. Its conclusion, at pages 20-21, is as follows:

In arriving at this decision, the Board has carefully reviewed all the evidence, medical records and the submissions presented by the Advocate, and has complied fully with the statutory obligation to resolve any doubt in favour of the Applicant or Appellant as contained in sections 3 and 39 of the Veteran's Review and Appeal Board Act.

The Board has taken the Appellant's statements into consideration that he was injured in service in an incident on board HMCS Qu'Appelle in July 1990 while training. In order to understand the circumstances and the results of the accident, the Board has reviewed all available medical records. It found that the Appellant did suffer from a significant trauma in 1969 when he was involved in car accident in which he was, according to his statement, thrown from a vehicle and suffered a significant skull injury and subsequent seizures.

X-ray results at the time of the 1990 injury showed that the Appellant had a slight wedge compression at dorsal spine 12 apparently related to previous trauma.

The Appellant throughout his hospitalization and afterwards never mentioned that he was bothered by neck pain. He first mentioned that he wrenched his back and more importantly denied hitting his back. However in the Appellant's later testimony, he said that he hit his back and neck against the bulkhead and fell onto his right hip.

In dealing with the diagnosis of the claimed condition, Dr. Coady, states that a "possible C5-6 Radiculopathy" on the right side had been diagnosed by the Dr. Gross in 1996. The file does contain a physician's statement dated 4 April 1996 which gives a diagnosis of C5/6 Radiculopathy based on the Appellant's complaint of pain in the right arm, however, there is no explanation of the symptoms or reasons for the diagnosis. Furthermore, Dr. Coady during her examination of the Appellant in October 1997, could find no evidence of significant C5-6 Radiculopathy. This leads the Board to question the diagnosis in this case.

The Board could find no evidence on file that there was an injury caused by the fall in the shower in 1990 which lead [sic] to the claimed condition. The Board acknowledges that there is no evidence that the 1969 motor vehicle accident caused or aggravated the Appellant's claimed condition. Similarly, the Board was not presented with medical evidence that the accident which the Appellant experienced in Regular Force service caused or aggravated the claimed condition of Cervical 5-6 Radiculopathy.

Dr. Coady's opinion is based on the history given to her by the Appellant and her clinical findings. She admits that she assumes that the claimed condition is a result of the 1990 accident but does not address previous trauma and the Board has no evidence of the extent of the medical reports or information available to her. In summary, Dr. Coady's final opinion that "these injuries occurred as a consequence of his fall " is not supported by the evidence on file.

Therefore, based on the evidence, the Board does not find the claimed condition was caused or aggravated by Regular Force service under subsection 21(2) of the Pension Act. The Board rules to affirm the Entitlement Review Board decision of 8 May 1997.

[28]            The decision's reference to an opinion by Dr. Coady, an orthopaedic

surgeon who examined the applicant in 1997, is to a letter in which she stated in part:

...There is nothing in his clinical history or accompanying medical reports to suggest that these symptoms were preexisting before the fall or that they developed some time after his fall. Based on the history available to me and clinical findings, I can only assume that these injuries occurred as a consequence of his fall ....

[29]            Following the Board's decision in May 1999, new medical evidence was submitted

on behalf of Mr. Bradley with a request for a hearing to reconsider the Board's initial decision. That evidence was a further letter from Dr. Coady, who wrote on August 18, 1999,

Subsequent to reviewing the medical records of Mr. Brian C. Bradley to date, including those relating to his motor vehicle accident of August 3, 1969, I see no other reason for his current condition, specifically with reference to his current neck and shoulder problems, other than the injury which he incurred while training as a Naval Officer on the HMCS Qu'Appelle July 13/90.

[30]            In regard to this new evidence, by its letter of November 25, 1999, advising that it

would not reconsider its decision, the VRAB stated:

As to the new medical evidence, the Board finds that Dr. Coady's opinion lacks an explanation that would permit the Board to relate the current claimed condition to the incident onboard ship in 1990. Even though Dr. Coady's letter states that her opinion takes into consideration the earlier injuries of 1969, it does not provide any new information or opinion which would alter the outcome of this case.

[31]            Thus, in effect, the Board rejected Dr. Coady's opinion, which was based on the

history given to her by Mr. Bradley, and her failure to find in his medical records any other cause of "his current neck and shoulder problems." The Board's conclusion was based upon the lack of any supporting medical evidence of injury claimed to the cervical spine at the time of the 1990 incident onboard HMCS Qu'Appelle, or thereafter on his record, until his claim for a pension in 1996.

[32]            On the basis of the evidence before the Board, which reviewed his entire medical

record while in service, in my view the Board's decision cannot be said to be patently unreasonable, apart from to determination of the implications of section 39 of the VRAB Act by the Board in this case.

The Application of Section 39 of the VRAB Act

[33]            Subsection 39(b) of the VRAB Act directs that the Board "accept any uncontradicted

evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances". In Moar v. Canada (Attorney General) (1995), 193 F.T.R. 314, MacDonald v. Canada(Attorney General) (1999), 164 F.T.R. 42, and in Brychka v. Canada (Attorney General) (1998), 141 F.T.R. 258, judicial review of the Board decisions was allowed where the Court found that failure to accept uncontradicted medical evidence or opinion, which the Board had not found was not credible, warranted intervention by the Court. The Board in those circumstances did not properly apply section 39, i.e. it did not accept uncontradicted evidence, presented by the applicant, that the Board considered credible.

[34]            In this case the Board did not expressly find Dr. Coady's evidence not credible, but in

discussing the evidence the Board

1.        concluded, in May 1999, that there was "no evidence on file that there was an injury caused by the fall in the shower in 1990 which lead [sic] to the claimed condition..." and that Dr. Coady herself reported that in October 1997 in her examination of Mr. Bradley she could find no evidence of significant C5-6 Radiculopathy, which led the Board to question the diagnosis; and it

2.        found, in its November decision not to reopen the matter for reconsideration, that the August 18, 1999, letter from Dr. Coady lacked "an explanation that would permit this Board to relate the current claimed condition to the incident on board ship in 1990."

[35]            In short, the Board found on the evidence before it that the applicant had not met the

onus of establishing that the condition he claimed, C5-6 Radiculopathy, arose in the course of his service, and, indeed, the evidence was not persuasive that he suffered the disability claimed. Perhaps implicitly the VRAB did not find Dr. Coady's evidence credible, but it did not expressly so state. Thus, the Board, without dealing expressly with the credibility of the evidence of Dr. Coady, relied upon the lack of evidence corroborating the injury at the time of its alleged occurrence and thereafter to reject her evidence and that of the applicant. The Board might have sought additional medical evidence but it did not do so. In the result, the only medical evidence before the Board, concerning the applicant's claimed disabling injury was that of Dr. Coady, supported by the 1996 diagnosis suggested by Dr. Gross in 1996.

[36]            In the circumstances, in my opinion, the Board failed to apply section 39

properly, despite its statement that it had sought to do so. Thus it erred in law in failing to, "draw...every reasonable inference in favour of the applicant" and "to accept uncontradicted evidence...that it considered to be creditable in the circumstances," as required by s.39.

Conclusion

[37]            For the reasons set out, this application for judicial review is allowed, and an Order

goes setting aside the decisions of the VRAB here in question and referring the matter for reconsideration by a differently constituted panel of the Board.

[38]            When this matter was heard, Mr. Bradley asked for costs relating to expenses he

incurred in this application, and in his earlier application in Court file T-157-98, dealt with by Mr. Justice Blais in January 1999. This Court has jurisdiction to consider costs only in relation to this proceeding, not for the earlier proceeding.

[39]            Costs are awarded to the applicant for reasonable disbursements incurred in the

amount of $136.46, the total of the applicant's expenses from December 1999 to March 22, 2000, in a statement submitted by him at the hearing of this application.

       "W. Andrew MacKay"      

JUDGE                    

HALIFAX, Nova Scotia

July 13, 2001

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:        T-2137-99       

STYLE OF CAUSE:     Brian C. Bradley

V.

The Attorney General For Canada

PLACE OF HEARING:            Halifax, N.S.

DATE OF HEARING: November 16, 2000     

REASONS FOR ORDER BY:             MacKay, J.

DATED:            July 13, 2001

APPEARANCES:        

Brian C. Bradley                                                                                                    for the Applicant

Leanne Wrathall                                                                                                  for the Respondent

SOLICITORS OF RECORD

Brian C. Bradley

Lower Sackville                                                                                                     for the Applicant

Department of Justice

Halifax, NS                                                                                                         for the Respondent