Sangster v. Canada (Attorney General), 2002 FCT 97

                                                                                                                                             Date: 20020129

                                                                                                                                          Docket: T-828-01

                                                                                                                     Neutral Citation: 2002 FCT 97

Between:

                                                             JOHN H.T. SANGSTER

                                                                                                                                                       Applicant

                                                                              - and -

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

PINARD J.:

[1]         The applicant seeks judicial review of a decision under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, to review and set aside a decision of Mr. E. A. McNally, presiding member of the Appeal Panel of the Veterans Review and Appeal Board (the "VRAB") dated January 26, 2001, not altering the effective date of the applicant's pension award for disability and refusing to allocate an additional award pursuant to subsections 39(1) and (2) of the Pension Act, R.S.C. 1985, c. P-6 (the "Act").

[2]         The applicant served with the Canadian Armed Forces in Canada and Overseas from January 1, 1941 to November 13, 1945.

[3]         On September 9, 1994, as a result of a Chronic Obstructive Pulmonary Disease ("COPD") diagnosis, the applicant applied to the Canadian Pension Commission (the "CPC") for a disability pension under subsection 21(1) of the Act.

[4]         On February 1, 1995, the CPC determined that the COPD was not attributable to the applicant's service with the Armed Forces and therefore not pensionable under subsection 21(1) of the Act.

[5]         In 1999 the applicant appealed the 1995 decision of the CPC to the VRAB, but the VRAB denied this appeal.

[6]         On March 11, 1999, the applicant applied under subsection 21(1) of the Act for disability benefits arising from a diagnosis of Chronic Sinusitis ("CS").

[7]         In a decision dated June 25, 1999 the Department of Veterans Affairs awarded the applicant a disability pension for CS under subsection 21(1) of the Act, finding that the CS was attributable to his service in the Armed Forces. The pension entitlement was made effective March 11, 1999 in accordance with subsection 39(1) of the Act.

[8]         On November 29, 1999 the applicant applied for disability under subsection 21(5) of the Act suggesting that the COPD was consequential to the pensionable condition of CS.

[9]         In a decision dated April 27, 2000 the Department of Veterans Affairs awarded the applicant a disability for the COPD under subsection 21(5) of the Act, finding it was consequential upon the pensioned condition of CS. The pension entitlement was made effective November 29, 1999 in accordance with subsection 39(1) of the Act.

[10]       The applicant applied for an Entitlement Review Hearing to be held, to review the effective date of his subsection 21(5) COPD pension. The Entitlement Review Panel of the VRAB conducted a hearing on August 11, 2000.

[11]       The Entitlement Review Panel decided that there would be no change in the effective date of the subsection 21(5) COPD decision under subsection 39(1) of the Act, and that there was no evidence upon which to base an additional award under subsection 39(2) of the Act.

[12]       The applicant appealed the Entitlement Review Panel's August 11, 2000 decision to the VRAB.

[13]       On December 15, 2000 the VRAB upheld the decision of the Entitlement Review Panel. This decision is now the subject of this judicial review application.

[14]       In dismissing the applicant's application, E. A. McNally observed:

In arriving at this decision, the Board has thoroughly reviewed all of the documentation including the Attachments presented at this hearing. The Board has listened carefully to the presentation by the Advocate on the Appellant's behalf.

The Board has not been provided with any new information beyond that which was before the previous Panel. The Board finds the Entitlement Review Panel decision to be just based on the evidence and the legislation and supports its determination that the correct effective date is 29 November 1999, thus affirming the decision of 11 August 2000.

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

[15]       The main issue in this matter is whether the VRAB erred in upholding the decision of the Entitlement Review Panel in making the applicant's pension for COPD disability benefits effective November 29, 1999 in accordance with section 39 of the Act.

[16]       The applicant's disability pension for CS was awarded under paragraph 21(1)(a) of the Act:

21. (1) In respect of service rendered during World War I, service rendered during World War II other than in the non-permanent active militia or the reserve army, service as a member of the special force, service in the Korean war, and service in a special duty area as a member of the Canadian Forces,

(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;

21. (1) Pour le service accompli pendant la Première Guerre mondiale ou la Seconde Guerre mondiale, sauf dans la milice active non permanente ou dans l'armée de réserve, le service accompli pendant la guerre de Corée, le service accompli à titre de membre du contingent spécial et le service spécial :

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;

[17]       The applicant's disability pension for COPD consequential to CS was awarded under subsection 21(5) of the Act:

21. (5) In addition to any pension awarded under subsection (1) or (2), a member of the forces who

(a) is eligible for a pension under paragraph (1)(a) or (2)(a) or this subsection in respect of an injury or disease or an aggravation thereof, or has suffered an injury or disease or an aggravation thereof that would be pensionable under that provision if it had resulted in a disability, and

(b) is suffering an additional disability that is in whole or in part a consequence of the injury or disease or the aggravation referred to in paragraph (a)

shall, on application, be awarded a pension in accordance with the rates for basic and additional pensions set out in Schedule I in respect of that part of the additional disability that is a consequence of that injury or disease or aggravation thereof.

21. (5) En plus de toute pension accordée au titre des paragraphes (1) ou (2), une pension est accordée conformément aux taux indiqués à l'annexe I pour les pensions de base ou supplémentaires, sur demande, à un membre des forces, relativement au degré d'invalidité supplémentaire qui résulte de son état, dans le cas où :

a) d'une part, il est admissible à une pension au titre des alinéas (1)a) ou (2)a) ou du présent paragraphe, ou a subi une blessure ou une maladie - ou une aggravation de celle-ci - qui aurait donné droit à une pension à ce titre si elle avait entraîné une invalidité;

b) d'autre part, il est frappé d'une invalidité supplémentaire résultant, en tout ou en partie, de la blessure, maladie ou aggravation qui donne ou aurait donné droit à la pension.

[18]       The effective date of a pension award is determined by section 39 of the Act. Subsections 39(1) and 39(2) of the Act state:

39. (1) A pension awarded for disability shall be made payable from the later of

(a) the day on which application therefor was first made, and

(b) a day three years prior to the day on which the pension was awarded to the pensioner.

(2) Notwithstanding subsection (1), where a pension is awarded for a disability and the Minister or, in the case of a review or an appeal under the Veterans Review and Appeal Board Act, the Veterans Review and Appeal Board is of the opinion that the pension should be awarded from a day earlier than the day prescribed by subsection (1) by reason of delays in securing service or other records or other administrative difficulties beyond the control of the applicant, the Minister or Veterans Review and Appeal Board may make an additional award to the pensioner in an amount not exceeding an amount equal to two years pension.

39. (1) Le paiement d'une pension accordée pour invalidité prend effet à partir de celle des dates suivantes qui est postérieure à l'autre :

a) la date à laquelle une demande à cette fin a été présentée en premier lieu;

b) une date précédant de trois ans la date à laquelle la pension a été accordée au pensionné.

(2) Malgré le paragraphe (1), lorsqu'il est d'avis que, en raison soit de retards dans l'obtention des dossiers militaires ou autres, soit d'autres difficultés administratives indépendantes de la volonté du demandeur, la pension devrait être accordée à partir d'une date antérieure, le ministre ou le Tribunal, dans le cadre d'une demande de révision ou d'un appel prévus par la Loi sur le Tribunal des anciens combattants (révision et appel), peut accorder au pensionné une compensation supplémentaire dont le montant ne dépasse pas celui de deux années de pension.

                                                                     * * * * * * * * * *

[19]       The standard of review on an application such as this is a relatively high one, therefore this Court will not intervene lightly in the findings of the VRAB. My colleague Justice Hansen in Schott v. Canada (Attorney General), [2001] F.C.J. No. 126 (T.D.) (QL), considered the standard of review and stated at paragraph [11]:

The standard of review of a decision of the VRAB is patent unreasonableness as in Metcalfe v. Canada, [1999] F.C.J. No. 22. Therefore, a reviewing court may interfere only when 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 as in MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346; Hall v. Canada (Attorney General), [1998] F.C.J. No. 890.

[20]       The applicant's initial argument alleges that the Bureau of Pension Advocates (the "BPA") made numerous errors in regards to his September 9, 1994 application. As well, the applicant claims that the CPC also erred with respect to its decision of February 1, 1995.

[21]       In his application for judicial review dated May 16, 2001, the applicant clearly states that he requests the setting aside of Decision No. 6417456 pursuant to section 18.1 of the Federal Court Act. Based on this fact, I must conclude that any issue related to the September 1994 application as well as the February 1, 1995 decision are not relevant to or the subject of this judicial review proceeding.

[22]       The applicant further submits that the VRAB erred when denying him the retroactive benefits pursuant to subsections 39(1) and (2) of the Act. The applicant claims that the effective date of the pension award should in fact be September 9, 1994.

[23]       The issue central to the case at bar concerns the effect of section 39 of the Act. That section determines the point in time from which a pension must be paid once it is awarded. Justice Noël in Leclerc v. Canada (Attorney General), [1998] F.C.J. No. 153 (T.D.) (QL), confirms the interpretation that should be applied to section 39, which was then section 29 of the Act:

[translation] Section 12 of the Pension Act provides for pensions to be awarded for aggravation of existing injuries, the effect of which is to create fractional or partial pensions. Clearly the basis for awarding a fractional pension is not the same as the basis for awarding a pension for full disability, and accordingly the payments associated therewith will vary. A one-fifth partial pension is different from a two-fifths pension, and both of these types are different from a pension for full disability. Accordingly, when a pensioner is entitled to a one-fifth pension and then a two-fifths pension, and then is entitled to a pension for full disability, he has in fact been awarded three different types of pensions at different times.

The Board is of the view that section 29 was designed to be applied to each type of pension at the time it is awarded. That section therefore applies to a partial pension at the time it is awarded and to a pension for full disability at the time it is awarded. The expression "the pension" in section 29 therefore relates to the pension that is the subject of the decision at the time it is made, and not to another pension awarded subsequently. The Board believes that this interpretation clearly describes the spirit of section 29.

[24]       In the case at bar, I cannot agree that the VRAB erred when determining the effective date of the pension. As in Leclerc, supra, I am of the view that the pension requested on September 9, 1994, which was a request for a disability pension due to a COPD diagnosis pursuant to subsection 21(1) of the Act, is completely distinct from the November 29, 1999 request where the applicant in fact asked for a supplementary disability pension for COPD being consequential to the already pensioned condition of CS pursuant to subsection 21(5) of the Act.

[25]       In light of this distinction, I believe the VRAB's decision is reasonable considering that the pension award pertinent to this case was effective on the date on which the application was first made and for which alone was the subject of the decision.

[26]       Finally, the applicant claims that only after doing considerable personal research did he realize that COPD was a result of CS and that he would have to first establish entitlement for CS before he could claim the COPD as consequential.

[27]       It is stated in Leclerc, supra, the following:

[20]          The applicant points out that in this case, what led to his full pension being awarded was the correction of an error of law, and that he is in no way responsible for the fact that the years went by before his entitlement was recognized [footnote omitted]. The fact that the cause of the delay is not attributable to the applicant does not mean that subsection 39(1) may be disregarded, as it applies to any pension regardless of the circumstances in which it is awarded.

[28]       I therefore feel that the VRAB was correct in establishing the effective date as November 29, 1999 as section 39 applies regardless of the circumstances in which the pension was awarded.

[29]       As a result, in spite of all the sympathy the matter raises for the applicant, I must dismiss his application for judicial review.

       JUDGE

OTTAWA, ONTARIO

January 29, 2002