Date: 20000418
Docket: T-1759-99
BETWEEN:
HUGH P. TRAINOR
Applicant
AND:
ATTORNEY GENERAL FOR CANADA
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Veterans Review and Appeal Board (the "Board") dated the 14th of June, 1999 wherein the Board concluded that the applicant had presented no new evidence or arguments that would justify the Board differing from earlier decisions wherein it was determined that the applicant was not entitled to a War Veterans Allowance.
[2] The applicant seeks an order setting aside or quashing the decision of the Board and referring his application for War Veterans Allowance back to the Board for rehearing and redetermination by a differently constituted panel of the Board.
BACKGROUND
[3] The decision under review is the seventh decision of various authorities with regard to the applicant"s application for War Veterans Allowance. The applicant"s original application was dated the 9th of August, 1993. Over the time that has elapsed since the application was filed, the factual background underlying the application has been clarified to the point where it is not now in dispute. The background may be summarized as follows.
[4] The applicant enrolled, enlisted or reported for service in the Canadian Military in November of 1944 at Charlottetown, Prince Edward Island. He underwent a preliminary medical at Charlottetown. In the early days of March, 1945, the applicant travelled to Halifax, via Northumberland Strait, in the company of other recruits. During the voyage he was identified in "Daily Orders Part II" as an "Other Ranks Attachment" who was in receipt of pre-enlistment pay, rations and quarters. At the time of the applicant"s voyage, Northumberland Strait was a "theatre of actual war" within the meaning of that phrase in subsection 37(3) of the War Veterans Allowance Act1. On arrival in Halifax, the applicant underwent a further medical which he did not pass. In the result, the applicant never signed an Attestation and Enrollment Form. In effect, his career in the Canadian Forces, other than in the militia, if it had ever commenced, came to an abrupt end.
THE ISSUE
[5] The very narrow issue for decision on this application for judicial review is whether or not the Board erred in a reviewable manner in affirming earlier decisions to the effect that the applicant was not a former member of His Majesty"s Canadian Forces who was a Canadian veteran of World War II within the meaning of subsection 37(3) of the War Veterans Allowance Act .
RELEVANT STATUTORY PROVISIONS
[6] The relevant statutory provisions for the purposes of this judicial review are sections 3, 31 and 39 of the Veterans Review and Appeal Board Act2 and sections 1.01 and 35 and paragraph 37(3)(a) of the War Veterans Allowance Act. Subsections 3, 31 and 39 of the Veterans Review and Appeal Board Act and the opening words of subsection 37(3) and the relevant portion of paragraph (a) thereof of the War Veterans Allowance Act read as follows:
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.
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.
...
31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.
...
31. La décision de la majorité des membres du comité d'appel vaut décision du Tribunal; elle est définitive et exécutoire.
...
...
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.
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.
...
...
37.(3) A Canadian veteran of World War I or World War II is any former member of His Majesty's Canadian forces
(a) who served during World War I or World War II and
(i) served in a theatre of actual war,
...
37.(3) Sont d'anciens combattants canadiens de la Première ou de la Seconde Guerre mondiale les anciens membres des forces canadiennes de Sa Majesté qui ont servi_:
a) soit au cours de la Première ou de la Seconde Guerre mondiale, et qui, selon le cas_:
(i) ont servi sur un théâtre réel de guerre,
...
[7] Sections 1.01 and 35 of the War Veterans Allowance Act are to the same effect as sections 3 and 39 of the Veterans Review and Appeal Board Act.
ANALYSIS
Standard of Review
[8] In McTague v. Canada (Attorney General)3, Mr. Justice Evans analysed the standard of review of decisions of the Board based upon a pragmatic or functional approach and concluded in the following terms at paragraph [48] of his reasons:
| The weight of the factors considered above in the pragmatic or functional analysis suggests that Parliament should be regarded as prescribing a deferential standard of review in this case. However, they do not indicate that the most deferential standard should be applied. "Patent unreasonableness" seems increasingly to be reserved as the standard of review applied to the decisions of administrative agencies that are protected by strong preclusive clauses and have a wider range of regulatory responsibilities than the merely adjudicative functions performed by the Board. It is also the appropriate standard, as I have indicated above, where the issue in dispute involves findings of primary fact, including the drawing of inferences from the evidence. |
Here, I am satisfied the issue in dispute does not involve findings of primary fact, including the drawing of inferences from the evidence, but rather a finding of mixed law and fact: whether the applicant, on the facts of this matter, ever was a member of His Majesty"s Canadian Forces who was a Canadian veteran of World War II.
[9] Based upon 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 that 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".4
Was the Board"s Decision "unreasonable"?
[10] The conclusion of the Board in the decision that is here under review is in the following terms:
| The Board, having reviewed all of the evidence before it, has concluded that the claimant does not come within the provisions of the War Veterans Allowance Act. The Board believes that the previous decisions, with regard to this case, are essentially correct and nothing new has been presented to the Board in this most recent reconsideration that might cause the Board to rule in the claimant"s favour. |
[11] The rationale that the Board effectively adopts in the decision under review is reflected in the following paragraphs of the last preceding Board decision in respect of the applicant which is dated the 5th of May, 1998:
| This Board has carefully considered the Advocates" presentation, but finds that it disagrees with his argument. The Board finds that there is a difference between this case and the MacLaren case in that Mr. MacLaren did become a "member of the Canadian Forces" upon completion of his medical in Halifax. In Mr. Trainor"s case, upon completion of his medical exam in Halifax, he was declared medically unfit for service due to a sinus condition. |
| It is the Board"s opinion that the MacLaren case was not intended to apply to a recruit who never became a member of the Forces. By specifically referring to the period of "6 October 1944 to 9 October 1944 (the date on which Mr. MacLaren signed the Attestation and Enrollment Form)", this Board interprets the War Veteran Allowance Board decision as intending to limit the scope of its decision to a situation where a recruit subsequently became a member of the Forces. |
| The situation may have been different in the opinion of the Board, if the previous Board"s decision had stated that Mr. MacLaren should be deemed to have been a member of the Forces from 6 October 1944. This could have suggested an intent to extend the status of a "member" of the Forces even to individuals who never subsequently enlisted. By not doing so, however, it suggests that the previous Board wanted to ensure that the status of a member of the Forces be extended only to individuals who eventually became a member of the Forces. |
| The decision of the Federal Court of Appeal [in MacLaren] appears to be supportive of the above view. At the end of the decision on page 7, paragraph 7, the Federal Court of Appeal supported the Board"s broad interpretation of the word "member" to include a recruit "in the respondents"s [sic] circumstances". Later in paragraph 8, the Court referred to the Board"s decision "to include a person in the situation of the respondent at the material time". This Board suggests that this careful choice of wording reflects an intent on the part of the Court to not go further than the Board"s decision.4 [emphasis added] |
[12] It was not in dispute before me that, except for the fact that Mr. MacLaren successfully completed his medical in Halifax, signed his Attestation and Enrollment Form and thereafter served with the Canadian Forces, the facts in that matter regarding recruitment in Charlottetown and transit to Halifax were essentially identical to those here at issue.
[13] In fact, the War Veterans Allowance Board did use the word "deemed" in its decision in respect of Mr. MacLaren. It wrote:
| The majority of the Board has concluded that since Mr. MacLaren was "under pay" from the time of reporting to the Charlottetown Recruiting Centre, there is little doubt Mr. MacLaren would have been deemed a member of the Military, during his voyage between Charlottetown, PEI and Halifax, Nova Scotia. Mr. MacLaren was subject to the Code of Service Discipline and he had been provided with travel warrants, lodgings and meals. He travelled under escort of Military personnel from Charlottetown, PEI to Halifax, Nova Scotia. It is reasonable to assume that Mr. MacLaren and the Military Authorities at that time would have considered Mr. MacLaren a member of the Military during his voyage between Charlottetown, PEI and Halifax, Nova Scotia. |
| The argument has been made that until such time as Mr. MacLaren had signed the Attestation and Enrollment Form in Halifax, Nova Scotia, that he was free to do whatever he wished to do without having the obligation to continue in the service. Whilst that statement may be true, it does not alter the fact that under the Regulations then in force, the majority of the Board finds that Mr. MacLaren was a member of the Armed Forces of Canada during the period 6 October 1944 to 9 October 1944 (the date on which he signed the Attestation and Enrollment Form) and during that time served in a theatre of actual war as defined in subsection 31(9) of the Act. [emphasis added] |
[14] While the War Veterans Allowance Board did not itself deem Mr. MacLaren to be a member during the period of transit, it simply "found" him to be a member, it did express the view that there would be "little doubt" Mr. MacLaren would have been deemed a member during the period of transit.
[15] As noted earlier, the decision of the War Veterans Allowance Board was reviewed by the Federal Court of Appeal. Chief Justice Thurlow, for the Court, wrote at page 42:
| The issue in this review application is whether the War Veterans Allowance Board erred in law in finding that the respondent, Douglas MacLaren, was a "veteran" within the meaning of the War Veterans Allowance Act , ... and thus in that respect eligible to receive an allowance under that Act. [citation omitted] |
The terminology of the War Veterans Allowance Act, as it was before the Federal Court of Appeal, was identical to the terminology here under consideration.
[16] Chief Justice Thurlow continued at page 43:
| The word "member" as used in the War Veterans Allowance Act has a broad meaning. It is broad enough to include soldiers, sailors and airmen and the officers of all three branches of the forces. But in my view, it is not necessarily confined to those categories. Nor is its meaning necessarily governed by rules that determined the moment when a person became a soldier, sailor, airman or officer. ... |
[17] Chief Justice Thurlow concluded at page 45:
| The word "member" is not defined by the statute. At first blush it appears to mean and to refer to soldiers, sailors, airmen and officers. One might be tempted to think it could only apply to them. But it seems to me that in its context in the statute it can also bear a broader meaning, a meaning broad enough to include a person in the situation of the respondent at the material time. The board appears to have adopted that broad interpretation of the word in the statute and in consequence has found the respondent to have been a "member" of the Canadian forces at the material time. In the circumstances I do not think it can be said that the board"s interpretation or its application of the statute was unreasonable or unsupportable or that the board erred in law in reaching its decision. In my view, it would be wrong for us to interfere with that decision by adopting a restrictive interpretation of the statute. |
I am satisfied that Chief Justice Thurlow"s references to the "material time" are to the days that Mr. MacLaren, like the applicant herein, spent transiting through a theatre of actual war from Charlottetown to Halifax.
[18] Under section 1.01 of the War Veterans Allowance Act and section 3 of the Veterans Review and Appeal Board Act, the Board is required to liberally construe and interpret the provisions of the War Veterans Allowance Act to the end that the recognized obligation of the people and Government of Canada to those who have "served" their country as "members" of the Canadian Forces in times of war may be fulfilled. Under section 35 of the War Veterans Allowance Act and section 39 of the Veterans Review and Appeal Board Act, the Board is required to draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of an applicant or appellant and to resolve in favour of an applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established his or her case.
[19] Given the obligations of the Board under the relevant statutory provisions and the words adopted by the War Veterans Allowance Board and the Federal Court of Appeal in the MacLaren case as quoted above, which presumably reflect such interpretative obligations and, I conclude, clearly extend to the facts underlying this matter and do not rely to any significant extent on the fact that Mr. MacLaren passed his medical in Halifax and signed an Attestation and Enrollment Form, I conclude that affording all of the deference to which the Board is entitled, the Board, in the decision here under review, erred in a reviewable manner in essentially simply adopting and confirming its earlier decision of the 5th of May, 1998 as quoted above. I conclude that, on the facts of this matter, the Board failed to meet the interpretive obligations imposed on it by sections 1.01 and 35 of the War Veterans Allowance Act and sections 3 and 39 of the Veterans Review and Appeal Board Act.
CONCLUSION
[20] Based on the foregoing analysis, this application for judicial review will be allowed, the decision of the Veterans Review and Appeal Board that is under review will be set aside and the matter will be referred back to that Board for rehearing and redetermination by a differently constituted panel, in a manner not inconsistent with these reasons.
[21] There will be no order as to costs.
____________________________
J.F.C.C.
OTTAWA, Ontario
April 18, 2000
__________________
1 R.S.C. 1985, c. W-3.
2 S.C. 1995, c. 18.
3 [2000] 1 F. C. 647 at 651 (F.C.T.D.).
In Hao v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 296 (Q.L.)(F.C.T.D.) Madame Justice Reed appears to adopt the view that there is no spectrum or range beyond reasonableness simpliciter toward patent unreasonableness but rather just "unreasonabless simpliciter". At paragraph 9 of her reasons she writes:
I am prepared to adopt the standard of unreasonableness simpliciter as applicable to the visa officer"s decision. I note that I have never been convinced that "patently unreasonable" differs in a significant way from "unreasonable". The word "patently" means clearly or obviously. If the unreasonableness of a decision is not clear or obvious, I do not see how that decision can be said to be unreasonable.
4 References to the "MacLaren decision" are to War Veterans Appeal Board decision No. 0046 dated the 30th of May, 1986, in respect of Douglas MacLaren and to the decision of the Federal Court of Appeal in the same matter, Canada (Attorney General) v. Douglas MacLaren, (1987), 41 D.L.R. (4th) 41.
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