Kozak v. Canada (Attorney General), 2002 FCT 169

Date: 20020214

Docket: T-646-00

Neutral citation:2002 FCT 169

Ottawa, Ontario, the 14^th day of February 2002

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                                                              SYLVIA KOZAK

                                                                                                                                            Applicant

                                                                         - and -

                                           ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                          REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                 Sylvia Kozak brings this application for judicial review of a decision of the Veterans Review and Appeal Board of Canada ("Appeal Board") dated February 23, 2000 which affirmed a decision of the Entitlement Review Panel ("Review Panel") dated April 7, 1999. The Review Panel had awarded Ms. Kozak 2/5 of the pension entitlement for the condition of tenosynovitis of the right ankle. Ms. Kozak seeks an order that the Appeal Board grant a full 5/5 entitlement to her regarding her disability, or, in the alternative, an order quashing the Appeal Board's decision and returning the matter back for redetermination.

FACTS

[2]                 Sylvia Kozak was employed as a member of the Canadian Armed Forces from August 19, 1968 until her retirement on November 14, 1996. She says that in 1986 she suffered a right ankle injury while undergoing a morning physical training run under the command of an officer. That ankle injury has since developed into tenosynovitis which has continued to trouble her.

[3]                 Ms. Kozak made an application for a disability pension on January 23, 1998. A decision by the Minister dated September 28, 1998 found that she was not pensionable under subsection 21(2) of the Pension Act, R.S.C. 1985, c P-6. The Minister found that there was no evidence that service factors aggravated Ms. Kozak's inversion sprains of the right ankle because she did not have tendon complaints at the time of her discharge from the service, or for a year following her discharge.

[4]                 Ms. Kozak appealed that decision to the Review Panel which ruled as follows:

Award of two-fifths for the aggravation of the disability that arose out of or was directly connected with military service in peace time.

[5]                 The Review Panel wrote, in its somewhat terse reasons, that:

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.

The Board, in its review of the evidence and information before it pertaining to the claimed condition as well as fully considering the argument and testimony presented during the hearing, concludes to award two-fifths pension entitlement for the condition with effect from 23 January 1998. The Board will withhold three-fifths entitlement for that portion of the claimed condition which would be reasonably attributable to the Applicant's normal lifestyle activities.

[6]                 Ms. Kozak appealed the decision of the Review Panel to the Appeal Board. In its decision dated February 29, 2000, the Appeal Board upheld the Review Panel's findings that 2/5 of the disability arose out of or was directly connected to military service.

APPEAL BOARD'S REASONS

[7]                 In its reasons, the Appeal Board wrote:

The Board has carefully reviewed the documentation in relation to the Appellant's claim for increased entitlement within the provisions of subsection 21(2) of the Pension Act, and accepts as fact the documentation from the medical service records.

REASONS AND CONCLUSION

The Board acknowledges the correspondence from the Appellant (VRAB-1) but finds it of little assistance. There has been no additional evidence presented to this Board beyond that which the Entitlement Review Panel had before it when it rendered its decision of 7 April 1999. While the Entitlement Review Panel choose to accept a service relationship, there is an absence of any documentation to assist in relating the complaints with respect to the right ankle to service factors.

It is, therefore, the opinion of this Board that the Review Panel advanced any degree of entitlement that could be derived from the evidence and the testimony of the Appellant and in so doing extended every legislative benefit to the Appellant.

The Entitlement Review Panel decision of 7 April 1999 is affirmed.

ISSUES

[8]                 Ms. Kozak asserts that the Appeal Board erred in law, made its decision without regard for the evidence before it, or made its decision on an erroneous finding of fact.

LEGISLATIVE PROVISIONS

[9]                 The applicable legislative provisions are as follows:

Veteran's Review and Appeal Board Act, S.C. 1995, c.18 ("Act")

The Pension Act,R.S.C. 1985, c P-6

ANALYSIS

[10]            The question of whether Ms. Kozak's disability was caused or aggravated by military service is one of fact. Therefore, considerable deference should be afforded to the decision of the Appeal Board. The parties were in agreement that patent unreasonableness is the appropriate standard of review where the issue involves findings of primary fact and the drawing of inferences from the evidence. See, for example, Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (F.C.T.D.).

[11]            Accordingly, a reviewing Court may interfere only in the event that the impugned decision was based on an error of law, or on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it.

[12]            Section 3 of the Act mandates that the provisions of the Act are to be liberally construed and interpreted in favour of an applicant. Subsection 39(b) of the Act states that the Appeal Board shall accept any uncontradicted evidence presented to it by an applicant that it considers to be credible in the circumstances. Subsections 39(a) and (c) state that the Appeal Board must draw every reasonable inference in favour of an applicant, and resolve any doubt in favour of an applicant.

[13]            In Metcalfe v. Canada (Attorney General) (1999), 160 F.T.R. 281 (F.C.T.D.), Evans J., as he then was, wrote at paragraph 17:

While paragraphs (a), (b) and (c) of this section [39] may not create a reverse onus by requiring the respondent to establish that a veteran's injury or medical condition was not attributable to military service, they go a considerable way in this direction by requiring, in effect, that claimants be given the benefit of any reasonable doubt.

[14]            Notwithstanding, an applicant still bears the onus of providing credible, reasonable evidence to establish her claim. Therefore, Justice Reed in Hall v. Canada (Attorney General), [1998] F.C.J. No. 890 (F.C.T.D.) noted at paragraph 19:

While the applicant correctly asserts that uncontradicted evidence by him should be accepted unless a lack of credibility finding is made, and that every reasonable inference should be drawn, and any reasonable doubt resolved in his favour, he still has the obligation to demonstrate that the medical difficulty from which he now suffers arose out of or in connection with his military service; that is, the causal linkage must be established.

[15]            In the present case, there is no medical opinion which specifically relates the cause of Ms. Kozak's right ankle tenosynovitis to her military service. The evidence before the Appeal Board consisted of Ms. Kozak's medical service records, medical reports regarding her ankle condition since leaving the military, and Ms. Kozak's testimony before the Review Panel that her condition stemmed from an incident that occurred while enlisted.

[16]            Implicit in the decision of the Review Panel to award a pension is that Ms. Kozak satisfied it of a relationship between the ankle condition and her service. The Review Panel went on to withhold 3/5 of its award representing "that portion of the claimed condition which would be reasonably attributable to the Applicant's normal lifestyle activities".

[17]            The Appeal Board commented about the absence of any documentation to assist in relating the complaints with respect to the right ankle to service factors, and found that the Review Panel acted properly in that it had advanced any degree of entitlement that could be derived from the evidence and the testimony of Ms. Kozak, and that the Review Panel had extended every legislative benefit to Ms. Kozak.

[18]            Pursuant to section 29 of the Act, the Appeal Board had jurisdiction to affirm, vary or reverse the decision of the Review Panel, or to refer any matter back to the Review Panel for reconsideration. If the Appeal Board thought that the Review Panel had erred in finding that Ms. Kozak's tenosynovitis arose out of, or was directly connected with, her military service, it could have set aside the decision of the Review Panel or remitted the matter for re-hearing.

[19]            I have not, however, been persuaded that it was open to the Appeal Board to dismiss the appeal on the grounds that it did.

[20]            It was argued on behalf of the Attorney General of Canada that the Appeal Board concluded that Ms. Kozak had aggravated an injury. This was said to be reflected in the fact that the Appeal Board withheld 3/5 of the pension benefit. It was conceded in argument that it is not in any way clear from the reasons of the Appeal Board what constituted the aggravation of the injury.

[21]            Counsel for the Attorney General in her able argument pointed to entries in Ms. Kozak's medical service record which established a complaint in May of 1969 of swelling and pain in both ankles with persistent swelling of the ankles for several months, and a "traumatic adduction of the right ankle" in May of 1978. The service record was silent as to whether these events were service related. Counsel argued that on this evidence it could not be said that, having accepted the existence of the medical condition and that it was caused in 1986 while on duty, the decision to reduce the pension entitlement was patently unreasonable.

[22]            With respect, there are difficulties with that argument. Most notably, neither the Review Panel nor the Appeal Board referred to this evidence or appeared to rely upon it. The Review Panel justified its withholding of 3/5 of the pension benefit for that portion which would be reasonably attributable to "normal lifestyle activities". This does not support reliance on the prior two incidents referred to by counsel for the Attorney General.

[23]            The Appeal Board, in upholding the decision, purported to apply subsection 21(2) of the Pension Act. To the extent that paragraph 21(2)(a) refers to an aggravation of an injury or disease, that paragraph contemplates a pre-existing injury that was not service related that is aggravated through military service. This reflects that a pension compensating for a service related aggravation of an injury should only compensate for the portion of the end result which is related to military service.

[24]            Therefore, it was fairly conceded on the Attorney General's behalf that the decision of the Appeal Board could only be upheld if the Court infers that the Appeal Board determined that the 1986 injury aggravated a pre-1986 injury or condition which was not service related.

[25]            While there is evidence of prior injuries there is no evidence as to whether they were service related.

[26]            In the absence of evidence on the record to support a conclusion of aggravation of a non-service related injury or condition, any decision on this basis was not supported by the evidence. The decision was, therefore, patently unreasonable.

[27]            In the result, this matter should be remitted to a differently constituted panel, so far as that is practicable, of the Appeal Board to be decided on a basis not inconsistent with these reasons.

[28]            All of this is not to say that it may automatically follow that Ms. Kozak is entitled to a full pension. What she is entitled to is a decision based on a proper interpretation of the legislation.

[29]            To summarize, a member is entitled to a pension for a disability resulting from injury or disease arising out of, or directly connected with, military service, or for an aggravation of a non-service condition where the aggravation arises out of, or is directly connected with, military service. Section 21 of the Pension Act relied upon by the Appeal Board, speaks only of the aggravation as a result of military service of an existing non-service related injury or disease. For subsection 21(2.1) to be applicable the evidence must establish those elements.

COSTS

[30]            Ms. Kozak seeks her costs of this application on a solicitor-client basis.

[31]            There is no reason why costs should not follow the event. However, costs on a solicitor-client basis are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of a party. There is no basis for such an award in this case and no such improper conduct was alleged. I see no circumstances which would justify anything other than an award of costs in accord with the tariff.

[32]            Therefore, if not agreed, Ms. Kozak is entitled to the costs of this application to be assessed in accordance with Column III of the table to Tariff B of the Federal Court Rules, 1998.

ORDER

[33]            IT IS HEREBY ORDERED THAT:

1.          This application for judicial review is allowed and the decision of the Veteran's Review and Appeal Board of Canada dated February 23, 2000 is set aside.

2.          The matter is remitted to, as far as is practicable, a differently constituted panel of the Appeal Board.

3.          The applicant is entitled to her costs, if not agreed, to be assessed in accordance with Column III of the table to Tariff B of the Federal Court Rules, 1998.

"Eleanor R. Dawson"

                                                                                                                                                    Judge