Date: 20001006
Docket: T-405-98
IN THE MATTER OF DECISION BY VETERANS AFFAIR
CANADA APPEAL PANEL CONVENED PURSUANT TO
VETERANS REVIEW AND APPEAL BOARD ACT
BETWEEN:
MERVYN H. SHMYR
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicant seeks judicial review of the decision, dated December 17, 1997, made by the Veterans Review and Appeal Board (VRAB), which confirmed a decision of the Entitlement Review Board. That decision, dated June 25, 1997, dismissed the applicant's application for a disability pension with the Department of Veterans Affairs.
Background
[2] The applicant, Mervyn H. Shmyr, was born in 1943. He was a member of the RCMP from February 7, 1964 to September 23, 1969, when he was discharged. After his discharge, the applicant applied to the Canadian Pension Commission for a disability pension, claiming a developmental anomaly of the lumbar spine and chronic low back strain. The Canadian Pension Commission determined on September 29, 1970 that the applicant's alleged injury was not pensionable.
[3] The applicant subsequently applied for a disability pension with the Department of Veterans Affairs, alleging lumbar disc disease and cervical disc disease. The applicant attributes his lumbar disc disease to gym exercises and horse training, which were part of his RCMP training, as well as an April 1968 motor vehicle accident which occurred while he was on duty. The applicant attributes his cervical disc disease to the same 1968 motor vehicle accident.
[4] The applicant applied for a disability pension with the Department of Veterans Affairs with respect to his condition. The application was denied, and the applicant sought a review of this decision with the Entitlement Review Board; the review was dismissed on June 25, 1997. The applicant subsequently appealed this decision to the VRAB, and that body's negative decision is now the subject of this application for judicial review.
VRAB's Decision
[5] With regard to the applicant's claim for disability pension for cervical disc disease, the VRAB noted that the applicant based this claim on the April 1968 accident. The panel noted a witness statement, in the form of a letter, from the applicant's colleague, Dennis M. Roughley, which described the incident as follows:
| The Plymouth struck the driver's side front door of the Police Car. The extent of that damage, I cannot recall. I do remember that we got back in the P.C. and gave chase to apprehend the driver for several infractions of the law. |
| We pursued the vehicle for several miles on a gravelled grid road, until the Plymouth entered a summer fallow field. You, Cst. Shmyr, followed the vehicle into the ditch. I also recall we suddenly came to an abrupt stop, after crashing head-on into a ditch. The Plymouth also stopped, after striking the ditch and crossing a road dividing two fields. I cannot remember all of the details of the accident, but remember it was several hours later, and after many aerial photos taken, that we were able to complete the investigation of this incident. There were injuries, although I don't recall to what extent.1 |
[6] The panel noted that there is nothing in the applicant's service or medical records relating to this incident, and that the applicant did not complain of any injuries at that time, nor upon his discharge. The applicant first complained of a back problem in 1970, but did not relate it to the 1968 accident.
[7] The panel noted a medical opinion submitted by Dr. Salem M. Esmail, who is an orthopaedic specialist. The doctor stated that he could not relate the compressions in the applicant's spine directly to the motor vehicle accident. Furthermore, the 1970 x-rays did not reveal any evidence of compression fractures, which do not develop over time, but rather would develop soon after an accident.
[8] The panel also noted that Dr. Esmail considered whether the 1968 accident exacerbated the natural degenerative arthritis process of the cervical spine, but appeared to give Dr. Esmail's opinion little or no weight as it was based on history reported by the applicant. The panel treated a medical opinion by a Dr. Tworek similarly as it was also based on history provided by the applicant.
[9] Rejecting the applicant's claim in relation to cervical disc disease, the panel concluded:
| If the Appellant had suffered significant injuries to his neck and lower back, he would have had the obligation of complaining about these injuries. There is a complete absence of record or complaint or evidence of treatment in his file and even at the time of his release the Appellant didn't mention the injury. Moreover, the Board noted that when he sought his pension entitlement for a back condition, the Appellant didn't even mention the 1968 injury then. The basis of this claim lacks of credibility and the Board considers that the alleged incident of 1968 doesn't contribute in any way to the onset or acceleration of the onset or aggravation of the claimed condition.2 |
[10] With regard to the applicant's claim based on lumbar disc disease, the panel noted that the applicant links his condition to gym training and horse riding during his RCMP service. The applicant also pointed to the 1968 accident as a possible factor.
[11] The panel did not accept Dr. Esmail's opinion that the 1968 accident could have aggravated a low back condition, again because the opinion is based on history as reported by the applicant.
[12] The panel concluded that in the absence of any significant back injury incurred while on duty, which could be corroborated by recorded complaints or treatments, the claimed condition could not be related to the applicant's RCMP service, and denied the applicant's claim.
Preliminary Matters
[13] The applicant brings a motion, to be heard before the actual application for judicial review, to have certain documents admitted as part of the record in the application for judicial review. The applicant seeks to introduce this new evidence by way of his affidavit sworn and filed November 17, 1999.
[14] The documents in question are a letter dated July 14, 1998 and a five page RCMP document which includes form A-159. This latter document, form A-159, was signed by the applicant upon his discharge from the RCMP. In it, the applicant was asked to provide the name and date of injuries or diseases resulting in disability for which a pension is claimed. The applicant answered that he received a back injury during recruit training in 1964, and he attributed it to "equitation training."
[15] The respondent contends that the applicant is improperly trying to rely on three affidavits, dated March 3, 1998, June 23, 1998 and November 17, 1999. The Federal Court Rules in effect at the time when the applicant filed his originating notice of motion in March 1998, provide that an applicant shall file one or more affidavits at the time of filing the notice of motion and that further affidavits may only be filed with leave of the Court.3
[16] The applicant did not seek leave of the Court to file the June 23, 1998 and November 17, 1999 affidavits.
[17] In Weare v. Canada (Attorney General), Mr. Justice MacKay held:
| With respect to Mr. Weare, it is settled law that upon application for judicial review, the only evidence the court may take into account, in considering whether the administrative decision-maker erred, is that evidence that was before the decision-maker. On an application for judicial review, the merits of that decision may not be reargued upon new evidence not before the decision-maker. For this reason, I am unable to take into account, in rendering this decision, any of the evidence relied upon by the applicant dated after the Board's decision, including various letters between medical specialists said to support the applicant's case. I note only, on this point, that pursuant to s. 32(1) of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the "Act"), the Board retains jurisdiction to reconsider its decision on the basis of new evidence adduced by the applicant. This subsection reads: |
| "32(1) Notwithstanding section 31, an appeal panel may, on its own motion, reconsider a decision made by it under subsection 29(1) or this section 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 do so on application if the person making the application alleges that an error was made with respect to any finding of fact or the interpretation of any law or if new evidence is presented to the appeal panel."4 |
[18] On another preliminary matter, the respondent takes issue with the respondent as named in the style of cause, Minister of Veterans Affairs Canada. The proper respondent is the Attorney General of Canada, and the respondent requests an order amending the style of cause accordingly.
[19] I refused to allow the applicant's application to file evidence that was not before the VRAB. To have allowed the application would cause a serious prejudice to the respondent. Furthermore, in a judicial review application such as the present one, I must decide if the decision is patently unreasonable. I could not do so if I considered evidence that was not before the decision-maker.
[20] I allowed an application to amend the name of the respondent to read the Attorney General of Canada.
Applicant's Position
[21] The applicant contends that the VRAB erred by failing to apply the statutory presumptions which operate in favour of an applicant in relation to the assessment of evidence.5
[22] The applicant argues that there was no evidence before the panel that he suffered from any pre-existing neck or back injury at the time of his enlistment with the RCMP in 1964. There was no evidence contradicting his contention that he had to undergo gym and equitation training. The applicant contends that the absence of a report of any injuries does not amount to contradictory evidence, and therefore the presumption found in subsection 21(3) of the Pension Act and section 39 of the Veterans Review and Appeal Board Act should apply.
[23] The applicant urges that the panel failed to give due weight to the evidence of Dennis M. Roughley6 and R. B Irving,7 and improperly rejected Dr. Esmail's medical opinion. The applicant also submits that the panel erred by failing to discuss or even mention two reports written by Dr. Percy Boyko, the applicant's chiropractor.8
Respondent's Position
[24] The respondent argues that the statutory presumptions in favour of the applicant do not mean that any and all evidence tendered by an applicant must be accepted by the VRAB. Rather, the evidence must be both credible and reasonable.
[25] The respondent submits that although Dr. Tworek's medical opinion is uncontradicted, the panel is not obliged to accept it if it states why it finds the evidence lacking in credibility. The respondent submits that the panel did not err in rejecting Dr. Esmail's report as it was based on history provided by the applicant.
[26] With regard to the letters of Dennis Roughley and R.B. Irving, the respondent agrees that they confirm that the 1968 motor vehicle accident occurred. However, the letters provide no details regarding injuries or treatment, and cannot be considered objective evidence.
Legislative Framework
[27] The Royal Canadian Mounted Police Superannuation Act provides, in section 32, that a member of the RCMP shall be granted an award in accordance with the Pension Act if the member has suffered a disability in any case where the injury or disease or aggravation thereof resulting in the disability or death in respect of which the application for pension is made arose out of, of was directly connected with, his service in the Force.
[28] Section 2 of the Pension Act provides as follows:
2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
2. Les dispositions de la présente loi s'interprètent d'une façon libérale afin de donner effet à l'obligation reconnue du peuple canadien et du gouvernement du Canada d'indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge.
[29] Section 21(3) of the Pension Act creates a favourable presumption for applicants:
21. (3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of
(f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member;
21.(3) Pour l'application du paragraphe (2), une blessure ou maladie -- ou son aggravation -- est réputée, sauf preuve contraire, être consécutive ou rattachée directement au service militaire visé par ce paragraphe si elle est survenue au cours_:
f) d'une opération, d'un entraînement ou d'une activité administrative militaires, soit par suite d'un ordre précis, soit par suite d'usages ou pratiques militaires établis, que l'omission d'accomplir l'acte qui a entraîné la maladie ou la blessure ou son aggravation eût entraîné ou non des mesures disciplinaires contre le membre des forces;
[30] Sections 3 and 39 of the VRAB Act provide 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.
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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 leur pays et des personnes à leur charge.
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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.
[31] The VRAB Act contains a privative clause in section 31, as well as the aforementioned provision in section 32 allowing for reconsideration of an application already heard. Section 31 reads as follows:
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.
Discussion
[32] The main issue to be decided in this application for judicial review is whether the VRAB's weighing of the evidence was patently unreasonable, bearing in mind the statutory presumptions and obligations.
[33] In Weare, MacKay J. considered the effect of the privative clause contained in section 31 of the VRAB Act. Mr. Justice MacKay concluded that a reviewing court is to accord deference to a VRAB decision, other than one concerning the Board's jurisdiction, unless it is patently unreasonable.9
[34] With regard to the medical evidence tendered by the applicant, the panel can properly reject such evidence when it has before it contradictory medical evidence. Sections 3 and 39 of the VRAB Act do not mean that any submission made by an applicant must automatically be accepted by the panel. The evidence must also be both credible and reasonable. If the panel rejects evidence based on a finding of a lack of credibility or reasonableness, the panel must state so and provide reasons.
[35] Finally, it must also be noted that the applicant must present evidence suggesting a causal link between his RCMP service and the condition for which he now seeks a disability pension. Every reasonable inference must be drawn by the panel, every reasonable doubt resolved in the applicant's favour. Yet, he still must demonstrate a causal link.
[36] In the instant application, the panel does not dispute the applicant's present condition or ailment. Nor does the panel appear to explicitly dispute the occurrence of the April 1968 accident, although it does use the term "alleged" when referring to the accident.
[37] What the panel does dispute is the evidence which the applicant adduced in order to establish the necessary causality. The medical evidence is contained in reports written by Dr. Esmail, Dr. Tworek, and Dr. Boyko.
[38] In its reasons, the panel expressly states that it cannot accept Dr. Esmail's opinion as credible because it is based on a history as reported by the applicant. In his report, Dr. Esmail states at the outset,
| [The applicant] informs me that in a high speed chase that occurred on April 27, 1968, he sustained significant injuries to his neck and to his lower back. The patient can describe the chase very well and he has some photographs to prove his point. In essence, this happened in a field whereby he was jolted from side to side, up and down and finally the police vehicle he was driving hit a ditch. He sustained significant injuries to his neck and to his lower back.10 |
[39] The panel noted the absence of any mention of the accident and injuries in the applicant's medical and service records. In rejecting the medical opinions of Drs. Esmail and Tworek, the panel states:
| If the Appellant had suffered significant injuries to his neck and to his lower back, he would have had the obligation of complaining about these injuries. There is a complete absence of record or complaint or evidence of treatment in his file and even at the time of his release the Appellant didn't mention the injury.11 |
[40] In my opinion, the panel did not err in rejecting the medical opinions. It stated that it found them lacking in credibility and gave reasons, as required.
[41] The applicant also takes issue with the failure of the panel to mention or expressly reject the medical report provided by the applicant's chiropractor, Dr. Boyko. Dr. Boyko's letter, dated June 18, 1997, provides details of the applicant's chiropractic treatment--frequency, duration, and treatment regime. The letter also states that the applicant's problems have been ongoing for some twenty years and are consistent with trauma suffered in a motor vehicle accident, as well as injuries that occurred during his tenure with the RCMP.
[42] It is well established in the jurisprudence that a decision-maker does not have to list each and every piece of evidence in a decision. It is presumed that the decision-maker had regard to all of the evidence tendered. In my opinion, the VRAB's failure to mention Dr. Boyko's letter is not fatal. This letter cannot be considered a diagnostic medical opinion such as Dr. Esmail's; rather, it is a report detailing the applicant's current treatment regime.
[43] The applicant also takes issue with the manner in which the panel dealt with the non-medical evidence of Dennis Roughley and R.B. Irving.
[44] Sergeant Roughley's evidence is in the form of a letter, dated December 11, 1996. In the letter, Sergeant Roughley provides details of the April 1968 police chase and accident, as he was on duty that evening. While the letter provides some details of the events leading up to the accident, it does not give any information of injuries beyond the statement, "There were injuries, although I don't recall to what extent." Ultimately, this letter is of very little assistance in establishing the necessary link between the applicant's present condition and the 1968 accident. Quite simply, the letter is devoid of details of the nature of the injuries.
[45] R.B. Irving's letter, dated June 19, 1997, is also of questionable value. In his letter, Irving states that although he was part of the Highway Patrol Unit with the applicant, he was not on duty at the time of the accident. Irving states:
| I remember that the police car was totalled and there were various injuries to the members. I believe that as well as suffering an injury to his leg, Merv also got a good bump to the head. I do not recall the exact date of this incident but have been informed that the incident occurred on the 27 of April 1968.12 |
[46] Again, this evidence does not do much beyond establishing that an accident occurred and some injuries were suffered. It provides no information or detail as to the nature and extent of the injuries.
[47] The panel's treatment of this non-medical evidence was to assign it little or no weight. Given the lack of detail in the letters' content, the panel does not appear to have fallen into error. It is the province of the panel as the decision-maker to assess the evidence and assign weight accordingly.
[48] In my opinion, and based on the foregoing, there is no basis to warrant judicial intervention. Accordingly, this application for judicial review is dismissed.
"Max M. Teitelbaum"
J.F.C.C.
Calgary, Alberta
October 6, 2000
__________________
1Applicant's Application Record, p. 46.
2Applicant's Application Record, p. 14.
3Former rule 1603. Currently, rule 306 of the Federal Court Rules, 1998 provides that an applicant's affidavit must be filed within 30 days of the issuance of a notice of application. According to rule 313, additional affidavits may only be filed with leave of the Court.
4(1998), 153 F.T.R. 75 (T.D.) at pp. 77-78.
5Sections 2, 21(2) and (3) of the Pension Act , R.S. 1985, c. P-6, and sections 3 and 39 of the Veterans Review and Appeal Board Act ("VRAB Act"), S.C. 1995, c. 18. These sections will be elaborated on in the "Legislative Framework" portion of this brief.
6Applicant's Application Record, p. 46.
7Applicant's Application Record, p. 50.
8Applicant's Application Record, p. 49. There appears to be only one report written by Dr. Boyko in the record. That report, dated June 18, 1997, does refer to another one, dated August 17, 1995.
9Supra, note 4 at p. 79.
10Applicant's Application Record, p. 24.
11Applicant's Application Record, p. 14.
12Applicant's Application Record, p. 50.
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