Matchee v. Canada (Attorney General), docket T-1489-97

Date: 19990105

Docket: T-1489-97

BETWEEN:

MARJORIE MATCHEE

Wife of Clayton D. Matchee

Applicant

- and -

ATTORNEY GENERAL FOR CANADA

Respondent

- and -

VETERANS REVIEW AND APPEAL BOARD

Intervenor

     REASONS FOR ORDER

WETSTON J.

Facts

[1]      This application does not concern conduct surrounding the tragic death of the Somali youth. Rather, it is concerned with the question of whether Mr. Matchee's disability, brain damage from an attempted suicide, resulted from improper conduct within the meaning of the Pension Act [the "Act"].

[2]      The applicant, Marjorie Matchee, wife of Clayton D. Matchee, seeks judicial review of a decision of the Veterans Review and Appeal Board ["VRAB"], dated 19 July 1996, denying Mr. Matchee's pension entitlement. Mrs. Matchee has been appointed Committee of the person and estate of Mr. Matchee.

[3]      On 18 March 1993, while Mr. Matchee was serving in Somalia as a member of the Canadian Armed Forces, Regular Force Service, he was taken into custody by the Military authorities in a Military bunker located at Camp Pegasus, HQCDO Lines, Belet Weyne, Somalia. Mr. Matchee was arrested in the murder investigation of a Somali youth. On 19 March 1993, between 1600 hours and 1655 hours, within 24 hours of being taken into custody, Mr. Matchee was found hanging by combat boot laces from the roof beam of the bunker in which he was confined. He was cut down by his guards who called for help and commenced First Aid. He likely would have died if the guards had not interrupted his suicide attempt. Mr. Matchee lived but suffered anoxic encephalopathy and brain damage.

[4]      On 10 February 1995, the Canadian Pension Commission denied Mrs. Matchee's application for an award of pension entitlement for Mr. Matchee's disability, made pursuant to subsection 21(1)(a) of the Act. It concluded:

In the light of the above evidence, the Commission must conclude that the claimed condition was incurred during the course of service in a Special Duty Area (Somalia) as a result of the Applicant's attempt to harm himself. The condition was not caused as a result of the administration of drugs, but could be considered as resulting from improper conduct. Further, this improper conduct was a continuum which included the actions which led to the Applicant being placed in detention.

[5]      On 21 December 1995, a Review Panel (entitlement) of the VRAB ruled to affirm the decision of the Canadian Pension Commission. The Panel concluded:

In summary, this Panel finds, based on a full and careful review of all of the evidence presented to it, that the applicant's actions in attempting to commit suicide were 'wilful,' that his injury was self-inflicted and, as such, that this constitutes the 'improper conduct' referred to in subsection 3(1) of the Pension Act.

[6]      On 19 July 1996, an Appeal Panel (entitlement) [the "Appeal Panel"] of the VRAB dismissed the appeal. A majority of the five-person Panel found that a pension could not be awarded to Mrs. Matchee. The majority stated:

Based on a review of all the evidence presented to it, the Board has concluded that the Appellant's suicide was 'wilful self-inflicted wounding' and thus constituted improper conduct as per subsection 22(1) of the Pension Act.

[7]      Two members of the Appeal Panel issued separate dissenting opinions. Dissenting member G.G. Tweedy disagreed with the conclusion of his colleagues and found that he would award full pension entitlement. He found no substantive evidence of wilful intent required to find improper conduct by Mr. Matchee as defined or intended by subsection 3(1) of the Act. He stated:

Although it is recognized that Subsection 22(1) of the Pension Act acts as a bar to entitlement where there is improper conduct, the attempted suicide resulting not in death but in Anoxic Encephalopathy cannot be stated to meet the definition of this term as defined in Subsection 3(1) of the Pension Act. There has been no wilful disobedience of order, wilful self-inflicted wounding, or vicious or criminal conduct.

[8]      Dissenting member P.L. Landers also stated:

After a careful and extensive review of all the available evidence, this Member concludes that, at the very least, a doubt has been created as to whether or not Mr. Matchee's act was 'wilful' or the impetuous act of a desperate man without the capability of forming the wilful intent to commit an act of improper conduct under the circumstances he was in.

[9]      The applicant, therefore, seeks judicial review of the decision of the Appeal Panel of the VRAB issued on 19 July 1996.

[10]      By order dated 14 November 1997, the Intervenor, the VRAB was granted leave to intervene on the question of whether the Board erred in constituting the Appeal Panel and in delaying the release of the decision until 5 June 1997.

Issues

[11]      The issues as outlined in the applicant's memorandum are:

1. Did the Appeal Panel fail to exercise or alternatively exceed its jurisdiction, powers and duties or functions, pursuant to the legislation, in that it failed to liberally construe and interpret the case of the applicant contrary to s. 3 of the Veterans Review and Appeal Board Act? ["VRAB Act"]

2. Did the Appeal Panel, pursuant to the provisions of s. 39(2) of the VRAB Act, in considering all the circumstances of the case and all the evidence presented to it, fail to draw every reasonable inference in favour of the applicant and fail to resolve in favour of the applicant any doubt in the weighing of the evidence?

3. Did the Appeal Panel fail, in all the circumstances of the case, to properly interpret the provisions of subsection 3(1) and subsection 22(1) of the Act?

4. Did the Appeal Panel, although not bound by VRAB's previous decisions, fail to treat the applicant and to interpret the law applicable to the applicant's appeal in a manner consistent with previous decisions of the Board, and thereby fail to provide the applicant with equal benefit of the law?

5. Did the VRAB, in reconstituting the original panel set to hear the appeal and in unreasonably delaying the promulgation of the decision for more than ten months without explanation, fail to follow the principles of natural justice and procedural fairness and create a reasonable apprehension of bias, given the outcome of the appeal?

[12]      In summary, the issue is whether the Appeal Panel considered that the disability suffered by Mr. Matchee resulted from "improper conduct" and is therefore not pensionable under subsection 21(1) of the Act.

The Applicant's Submissions

[13]      The applicant contends that the Appeal Panel erred in its interpretation of s. 3(1) of the Act by concluding that the appellant's attempted suicide was a wilful, self-inflicted wounding and thus constituted "improper conduct" pursuant to s. 22(1) of the Act. Subsection 3(1) provides:

"Improper conduct' includes wilful disobedience of orders, wilful self-inflicted wounding and vicious or criminal conduct..." (own emphasis)

[14]      Subsection 22(1) provides:

Subject to this section, a pension shall not be awarded when the disability of the member of the forces was due to improper conduct. (own emphasis)

[15]      The applicant contends that he was unable to form a wilful intent to injure himself. Indeed, a doubt was created by the psychiatric opinion of Major Jean Renée Trudel of the National Defence Medical Centre where he concluded that it was highly probable that Mr. Matchee was in a state of depression, overwhelmed, trapped and powerless to do anything about the situation. It is further submitted that in assessing the evidence before it, the Panel was highly selective, did not draw reasonable inferences, did not give sufficient weight to the opinion, did not make a specific credibility finding with respect to the opinion and finally substituted its own opinion for that of Dr. Trudel.

[16]      Is the applicant disentitled to a pension for disability due to improper conduct? The applicant relies on the Board's decision in Billard (VAB/VE-10966). In Billard, the Board concluded that the appellant could not form the intent to injure himself and stated that for the act to be wilful so as to satisfy s. 3(1) of the Act, one must find that the person wilfully injured himself, i.e., that he intended the result. In other words, the panel erred in law in concluding that the action itself falls within the definition of improper conduct. It submitted that what constitutes wilful self-inflicted wounding not only involves intention to injure but also intending the result which comes to pass. In essence, did Mr. Matchee achieve the intended result. Obviously it is contended that he did not, since he did not kill himself and there is no evidence to support an intention to wound or injure himself.

[17]      The applicant further submits that the Act was amended in 1980, in that "death" was removed from subsection 22(1) (then 13(1)) of the Act dealing with "improper conduct." It is submitted that Parliament intended to prohibit the payment of pensions for improper conduct to ensure that individuals did not benefit from intentional injuries to avoid military service and obtain financial benefits. The applicant submits that "death" was specifically excluded in the 1980 amendment because Parliament did not intend to penalize the dependants of an individual if he or she committed suicide or if, in intentionally wounding oneself, death was the result.

[18]      Furthermore, it is contended that the evidence of various witnesses did not in any way address or support any findings with respect to Mr. Matchee's state of mind and that it was improper for the Panel to dismiss the medical opinion on that basis.

[19]      The applicant contends that Mr. Matchee may have been taking Mefloquin to combat malaria and that it was unreasonable for the Panel to minimize this evidence even though there was no evidence regarding his use of the drug. It is suggested that the drug can have adverse psychological effects.

[20]      The applicant further submits that the Appeal Panel erred in failing to give proper consideration to the provisions of ss. 3 and 39(1) of the VRAB Act which require the Appeal Panel to provide the most liberal interpretation for the awarding of a pension, to draw all reasonable inferences in favour of the applicant and to resolve any doubt to the applicant's benefit. The applicant relies on Gary R. King v. The Veterans Review and Appeal Board of Canada, (1987), 138 F.T.R. 15 for the proposition that the clear intention of legislation with respect to veterans pensions is to facilitate the awarding of a pension when reasonably possible.

The Respondent's Submission

[21]      The respondent submits that the Appeal Panel properly applied ss. 3 and 39 of the VRAB Act and that it was open to the Panel to conclude that the pension entitlement of the applicant should be denied on the basis of improper conduct. The respondent submits that it was open to the Appeal Panel to conclude that Mr. Matchee was capable of forming the intent to "wilfully wound himself." The respondent further submits that it was open to the Appeal Panel to conclude that no reasonable inference could be drawn with respect to the effects of the drug Mefloquin on Mr. Matchee as there was no evidence before the Appeal Panel of his use of the drug or of Mr. Matchee experiencing any side effects having any adverse psychological effects. .

[22]      The respondent asserts that there is no question that the injury or wound was self-inflicted. Was it open to the Panel to find that the applicant intended to injure himself? It is not a question of depression or being in an anxious state but rather intention. Moreover, it is contended that the Panel acted reasonably in rejecting the submission that since his intent was to commit suicide not to wound himself, that is not improper conduct within the meaning of s. 22(1) of the Act. The respondent in a nutshell argues that the act of committing suicide is an act of self-injury and amounts to a wilful self-inflicted wounding.

[23]      Finally, the respondent argues that there is no merit to the applicant's argument that the 1980 amendment to s. 22(1) of the Act which removed "death" from the section (then 13(1)) dealing with improper conduct suggests that a self-inflicted injury caused in an attempted suicide is not improper conduct whereas a self-inflicted injury without a suicide attempt is improper conduct. The respondent submits that the only effect of the amendment was to exclude the consideration of "improper conduct" in pension claims involving the death of a Member of the Forces. The respondent submits that the amendment does not suggest that a distinction is to be drawn when assessing improper conduct between self-inflicted injuries incurred in a suicide attempt and self-inflicted injuries incurred in other situations.

Analysis

[24]      This is not a de novo appeal but rather an application by way of judicial review. As such, the Court must bear in mind that it is not trying the case ab initio but rather is reviewing the decision of a specialized tribunal having specific duties imposed by statute. Moreover, this application is not about the tragic death of the Somali youth. That is not the conduct at issue. It is whether the disability suffered by Mr. Matchee resulted from improper conduct, i.e., attempted suicide by hanging resulting in brain damage, and is therefore not pensionable under subsection 21(1) of the Act.

Intention

[25]      By way of introduction the Appeal Panel must pay particular attention to s. 39 of the VRAB Act. This section deals with the rules of evidence. It would appear that there is little doubt that the panel is both well-situated and equipped to make findings of fact but must "draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant". Moreover, the Panel must resolve any doubt, if any, in the weighing of evidence in favour of the applicant. The Panel commented upon its responsibilities regarding how it must examine and weigh the evidence on page 2 of its Reasons for Decision dated July 19, 1996.

[26]      In Tonner v. Canada (1995), 94 F.T.R. 146, Teitelbaum, J. stated at page 160:

It is not for me, on a judicial review to substitute my decision for that of the Board but only to review the evidence to see if the Board applied the proper test, that is interpreted and evaluated all of the evidence and to conclude, if a doubt exists, in favour of the veteran, the applicant in this case.

I can see no reviewable error. I am satisfied the Board applied the provisions of the Act after reviewing the evidence.

I will add that if other Boards, either VAB, or Entitlement Boards or Commissions allowed other ALS claims, this fact in no way binds any other Board or Commission.

...

I do agree with the VAB decision with regard to the medical evidence. I am satisfied, as was the Board, that it would be and is pure speculation to conclude that Mr. Tonner's ALS disease was the result of his Active Force Service.

[27]      In a later decision, MacKay v. A.G. of Canada, (1997), 129 F.T.R. 286, Teitelbaum J. had another occasion to consider a judicial review of a VRAB decision. In that case the Board considered a medical opinion as to whether the applicant's present condition was due to a previous motor vehicle accident. However, The Board considered it too speculative and it was contended that the Board erred in not accepting the opinion since it was uncontradicted and credible. At page 19 the Court stated as follows:

The decision of the VRAB dated June 21, 1996 is set aside. The proceeding is remitted to the VRAB to be decided on a basis not inconsistent with these reasons for judgment. Specifically, the VRAB should accept Dr. Murdoch's evidence and give the applicant the benefit of every reasonable inference on the basis of this evidence if it finds the evidence to be credible. However, if the VRAB is not prepared to accept the evidence as credible, it should provide reasons for its refusal and conclusion of non-credibility, and still always bear in mind the dictates of Section 3 and Section 39 of the Veterans Review and Appeal Board Act. Furthermore, the applicant should be given an opportunity to request an oral hearing and make oral submissions, if he so desires.

[28]      In the case at bar the Advocate requested a psychiatric opinion from Dr. Jean-René Trudel which was dated December 15, 1995. The Advocate posed a number of questions by letter to which Dr. Trudel later replied. The questions were:

1.      Mr. Matchee's state of mind as a result of his being charged with a very serious offence (torture and, murder). Could this cause an individual to become acutely depressed?

2.      Would it have been warranted to have Mr. Matchee undergo a medical examination so as to determine his fitness for detention and especially whether close observation might be warranted {hindsight tells us that within 24 hours this individual who had savagely tortured a 16 year old youth to death would try to hang himself}?

3.      Mr. Matchee, during the course of his incarceration, requested to see his Sgt. Major. In accordance with the instructions given to the custodians this was refused. From a psychiatric prospective might this have been a plea by someone who could have been concerned about his depressed state of mind where instinctively he could see no way out of his predicament other than suicide.

[29]      It is agreed that the suicide attempt took place within 24 hours of being taken into custody after the death of the Somali youth. Dr. Trudel stated as follows:

Pursuant to your letter of December 11, 1995, I am glad to provide you with the following answers to your three questions.

The first question was: "Mr. Matchee's state of mind as a result of his being charged with a very serious offence (torture and murder). Could this cause an individual to be acutely depressed?" Ideally, Mr. Matchee would have been examined by a military physician prior to being sent to cell, and comments on his mental state would have been made on that examination. Also, we could infer his mental state if a lay observer commented on his thoughts and behaviour at the time that these events occured (sic). To answer your question though, it is conceivable that someone could become acutely depressed following a drinking binge and being told that they were jailed because they were being accused of having tortured and killed somebody. This would be particularly true, I believe, if the person had a blackout for what had happened and thus did not even remember doing these acts. Other emotions going through someone' mind at such a time could be that of anxiety and fear as to what would happen to them, their career, and, in extrapolation, to their family. Once could feel very much in an isolated and hostile territory.

In answer to your second question: "Would it have been warranted to have Mr. Matchee undergo a medical examination so as to determine his fitness for detention and especially whether close observation might be warranted (Hindsight tells us that within 24 hours this individual who had savagely tortured a 16 year old youth to death would try to hand himself)?" It is my understanding that, at least in Canada, someone that is sent to cell should get a fitness for cells examination. If this exam had occurred and Mr. Matchee had cooperated honestly with it, an idea of his mental state, his thoughts and feelings at the time could have been ascertained. More precisely, one could have assessed his potential for suicidal behaviour and thus take appropriate measures to protect him if he was determined to be acutely suicidal.

As for your third and final question: "Mr. Matchee, during the course of his incarceration, requested to see his Sergeant-Major. In accordance with the instructions given to the custodians this was refused. From a psychiatric perspective might this have been a plea by someone who could have been concerned about his depressed state of mind where instinctively he could see no way out of his predicament other than suicide?" It is quite difficult to say why Mr. Matchee wanted to see his Sergeant-Major at this time. Some of the custodians may have an idea of this. It is likely that he had specific questions and concerns to address to this man. The fact that he was refused such a meeting could have conceivably increased his anxiety, sense of isolation and fear. Furthermore, it would likely increase someone's sense of frustration and anger; also foster a sense of being trapped and powerless to do anything about his situation. Most human beings know at some level or another than suicide is an option. Some of us choose to take it; others don't; but in a trapped state and with other emotions running high, it becomes very attractive for some. Events indicate that Mr. Matchee did try to take this way out.

I would like to say in closing that my answers are based on probabilities rather than clinical observation since I have never interviewed Mr. Matchee either prior to or after these events. Again, the best way of ascertaining his mental state at the time would be to talk to someone, even non medical people, who have observed him around that time. More specifically, they could describe his thoughts and behaviours which would help us immensely in ascertaining his state of mind at the time of these events.

[30]      The Panel did not specifically determine whether the opinion was credible. However, the Panel obviously did consider and weigh the opinion.

---

[31]      It is instructive to examine the actual findings of the Board:

The Appeal Panel has noted that Maj Jean-René Trudel concludes his remarks by acknowledging that his answers are based on probabilities and that the best way of ascertaining the Appellant's state of mind at the time of his attempted suicide would be to talk to people, even non medical people, who observed the Appellant around that time. Maj Trudel states:

I would like to say in closing that my answers are based on probabilities rather than clinical observation since I have never interviewed Mr Matchee either prior to or after these events. Again, the best way of ascertaining his mental state at the time would be to talk to someone, even non medical people, who have observed him around that time. More specifically, they could describe his thoughts and behaviours which would help us immensely in ascertaining his state of mind at the time of these events.

This Appeal Panel has noted in reviewing the evidence on file and more particularly the Exhibit ER-M3, which is the Military Police Investigation Report related to the circumstances surrounding the Appellant's attempted suicide, that a lot of time and effort has been spent interviewing and recording the testimonies of persons who knew the Appellant and of persons who had observed the Appellant in the hours following his arrest until his attempted suicide. The Appeal Panel also notes, as the Entitlement Review Panel did, that it appears that these testimonies were not provided by the Appellant's representative to the psychiatrist when he was forming the opinion referred to above.

[32]      The Appeal Panel noted that Major Trudel's opinion was formed without the benefit of an interview of Mr. Matchee or the testimonies of the people who knew Mr. Matchee or observed him prior to his attempted suicide. Major Trudel acknowledged that his opinion was based on probabilities and that since he had never interviewed Mr. Matchee, the best way to ascertain his mental state would be to talk to those people who knew Mr. Matchee or had observed Mr. Matchee prior to his suicide attempt. The Appeal Panel then examined the statements and interviews of such people and concluded that "...there is no evidence the appellant was incapable of forming the necessary intent to injure himself or even that he was incapable of rational thinking as suggested by the Advocate."

[33]      It is apparent that given the basis upon which this opinion was provided by Dr. Trudel, the Panel did not give appreciable weight to the opinion. It is not a matter of credibility in and of itself, it is a question of whether the opinion was provided as a result of his professional investigation. In other words, what is the basis of the opinion? The best that can be said is that the questions and answers are in the nature of hypothetical questions. Dr. Trudel relied on a very brief statement of the facts and what would appear to be public knowledge of the events associated with the death of the Somali youth. It would also appear that little else was provided to Dr. Trudel and it is clear that no medical examination took place by himself or other personnel.

[34]      There was also no direct medical evidence as to the state of Mr. Matchee's mental health, prior to the incident. This is even more imperative in this case because a critical issue is whether or not Mr. Matchee's actions were "wilful". In this regard the Panel must resolve in favour of the applicant any doubt in weighing the evidence as to whether a case has been established (s.39). This would include a relevant and credible expert opinion as to Mr. Matchee's state of mind or his behaviour. I should add that observations and findings as to human nature are not the exclusive domain of expert psychiatric opinion. However, in my opinion, what is clear is that the essence of the expert opinion was weakened given the foundation upon which it was provided.

[35]      Indeed, Dr. Trudel was keenly aware of that when he recommended that the best way of ascertaining his (Mr. Matchee's) mental state at the time would be to talk to people, even non-medical people, who have observed him around that time. In this circumstance the Panel turned to such evidence. Obviously the expert's opinion touches on a relevant issue before the Panel. However, while the facts in this case are somewhat unique, the Panel's decision was not made in a vacuum. It was made after considering the expert opinion as well as the evidence of persons who knew Mr. Matchee and who observed him at the relevant time. The Panel concluded that there was "no evidence" that the applicant was incapable of forming the intent to injure himself or even that he was incapable of rational thinking. In my opinion, I can find no reviewable error with respect to the Panel's finding that the attempted suicide was wilful and self-inflicted. The panel is entitled to accept the evidence that it considers most cogent and reliable. It is likely that Mr. Matchee's actions were both desperate and impetuous but this does not mean that his behaviour was not wilful.

Intending the Result

[36]      I shall now turn to the question of his intention to wound. The applicant relied on Billard, supra, p. 3 for the following:

"... one must find that the person wilfully injured himself, therefore, one would have to find that the Appellant injured himself intentionally, that he intended the result, and that cutting his arm was not an accident. What this Board must deal with is whether the Appellant, while in a state of intoxication, was capable of forming the necessary intent to injury (sic) himself". [own emphasis].

[37]      It is contended that wilful self-inflicted wounding not only involves intention to do the act but also intending the result. It is submitted that Mr. Matchee did not obtain the result he intended. The Court is asked to consider whether there is a difference between intending to kill yourself and intending to wound yourself within the meaning of s.3 of the Act. Since Mr. Matchee did not intend to wound but to kill himself, his actions cannot amount to improper conduct. It is suggested that death by suicide is not self-inflicted wounding because the veteran has not survived to collect his pension. Stated somewhat differently, should Mr. Matchee's family be penalized, in the applicant's submission, for the attempted suicide since there is no evidence that he injured himself to avoid military service and to obtain a financial benefit?

[38]      In Billard, supra, it is clear that the applicant was intoxicated. The Board concluded that the applicant smashed the window not to injure himself but to smash the window. In other words, the actual injury was accidental. In this case, the respondent contends that there is no evidence to suggest that Mr. Matchee did not intend to "injure" or "wound himself." It was not accidental. With great respect to respondent's counsel, I cannot accept his argument on this point. Literally, the act of attempted suicide by hanging necessarily involves self-inflicting injury which may or may not result in death. His actions were clearly directed at self-injury sufficient to result in death. It is likely death would have occurred except for the interruption of the guards. But is this improper conduct within the meaning of subsection 3(1) of the Act?

[39]      In my opinion, there are at least three reasons why the facts of this case do not support a finding of improper conduct. First, what is the appropriate approach to legislative interpretation in this case? I am guided by the following approach to interpretation; E.A. Dreidger, Construction of Statutes (2nd Ed. 1983) at p. 87.

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, objects of the Act, and the intention of Parliament.

[40]      If there is neither any doubt as to the meaning of the legislation nor any ambiguity in its application to the facts, then the statutory provision must be applied regardless of its object or purpose; R. v. Alberta Treasury Branches, et al [1996] 1 S.C.R. 963 at pp. 975-976. While this decision applied to a tax law, I see no reason why it is not applicable herein. In that case, Cory, J. stated at p. 977 that:

Even if the ambiguity were not apparent, it is significant that in order to determine the clear and plain meaning of the statute it is always appropriate to consider the scheme of the Act, the object of the Act, and the intention of Parliament.

[41]      The question then becomes as follows:

Does attempted suicide by hanging, interrupted by guards, resulting in brain damage, where there is no evidence to suggest that he did not wish to kill himself and there is no evidence of falseness or artifice, amount to "improper conduct" within the meaning of subsection 3(1) of the Act?

[42]      In my opinion, adopting a literal approach to the meaning of "improper conduct", and applying this interpretation to the facts of this case, would be incorrect and not the proper approach to interpretation.

[43]      In reviewing the reasons and the record I note the following:

     - I have little doubt that Mr. Matchee only intended to kill himself. On the evidence before the Appeal Panel this is the only reasonable inference.

     - Equally, I have no doubt that Mr. Matchee did not intend to injure himself to obtain a pension spuriously. On the evidence before the Appeal Panel there can be other reasonable inference.

     - It would appear that if Mr. Matchee's suicide attempt would not have been interrupted he would have died. On the evidence before the Appeal Panel this would appear to be the only reasonable inference.

     - Using the most literal interpretation, Mr. Matchee did intend to injure himself. However, on the evidence before the Appeal Panel the only reasonable inference is that Mr. Matchee intended to kill himself not to injure or wound himself.

[44]      With respect to the plain meaning of the statute, I must consider the scheme of the Act. While not determinative, it is clear that s. 2 of the Act requires a liberal

construction and interpretation to provide compensation to disabled veterans and their families. In this regard, it is important for the Court to recall that this case is not about Mr. Matchee's crime in Somalia, but rather whether improper conduct within subsection 22(1) precludes pensionability.

[45]      This leads me to the argument that the 1980 amendments to subsection 22(1) of the Act, which removed death from the section dealing with improper conduct, suggest that a self-inflicted injury caused in an attempted suicide is not improper conduct whereas a wounding without a suicide attempt may be improper conduct. Prior to 1980 death was included in the section dealing with "improper conduct".

13.1      Subject to this section, a pension shall not be awarded when the death or disability of the member of the forces was due to the improper conduct as herein defined. [our emphasis]

[46]      The definition at that time (s.2) was the same; i.e. improper conduct could have been death by wilful self-inflicted wounding. This, of course could include death by suicide. The respondent argues that the amendment only excludes consideration of improper conduct in claims involving death. There was nothing before the Court by way of legislative history or jurisprudence to support this submission. On the other hand, the applicant argues that Parliament did not intend to penalize the dependants of those who committed suicide or intentionally wounded themselves resulting in death. The applicant likewise did not provide the Court with any legislative history or jurisprudence to support this argument.

[47]      I am inclined to accept the position of the applicant. Death or disability do not have the same meaning. While death did not result herein, I am not satisfied that the attempted suicide resulting in brain damage, in this case, where there is no evidence of falseness or artifice, amounts to improper conduct. In amending the legislation it must be assumed that Parliament sought carefully to achieve its objective to avoid any extraordinary and unreasonable results.

[48]      Finally, what is the legislative intent with respect to subsection 22(1). Once again both parties devoted little argument to this issue. There can be little doubt as to the significance of the provision. The Act favours granting pensions to disabled veterans whenever reasonably possible; (King v. VRAB, supra). However, with resect to wilful self-inflicted wounding, subsection 22(1) is designed, in part, to discourage spurious disability claims. As such, is there ambiguity regarding the application of subsection 3(1) to these facts? In my opinion, it cannot be otherwise. There is no evidence to suggest that the purpose of the attempted suicide was to fake a suicide attempt in order to obtain a pension for himself or his family.

[49]      Both parties paid little attention during argument to the question of whether a uniform procedure was in place in Somalia particularly with respect to no medical certificate having been completed prior to Mr. Matchee being placed in detention. I find no error in the manner in which the Panel considered this matter. Their finding was in no way perverse or capricious.

[50]      Finally, the applicant argued that Mr. Matchee could not form the intent because due to his use of Mefloquin in the prevention and treatment of malaria. The Panel stated as follows, at page 7 of the Decision of Appeal Panel,July 11, 1996:

The Board has found no medical evidence to indicate that the drug Mefloquin caused any emotional problems for the Appellant which would effect (sic) his decision-making capabilities. There is no evidence regarding his use of the drug, side effects, etc.. Therefore, the Board will not speculate on this being a factor in the Appellant's behaviour leading to his attempted suicide.

[51]      I cannot accept the applicant's argument on this final point. To draw the inferences as suggested by counsel for the applicant would, in my opinion, be entirely unreasonable since the conclusion drawn from the facts clearly permits the Appeal Panel's findings.

[52]      Accordingly, while the Appeal Panel's findings of fact are not patently unreasonable, the Panel has, in my opinion, erred in law by misapprehending the meaning of the statute and thus misapprehending the application of the law to the facts herein.

Reasonable Apprehension of Bias:

The Applicant's Submissions

[53]      The applicant submits that the Chairperson of the Board created in the applicant a reasonable apprehension of bias when he removed Mr. V.J. Murphy from the Appeal Panel and replaced him with Mr. Jacques Boisvert, and when, less than 24 hours before the date of the hearing, he added two new members to the panel. The applicant submits that a reasonable apprehension of bias results because the three members appointed to the Appeal Panel after the original panel had been constituted were the same three members who formed the majority decision denying pension benefits. They were chosen by the Chair and this had not done previously, although he has the authority to do so. The applicant submits that once the Chairperson has exercised his authority and has designated a panel, his actions in changing the composition of that panel are reviewable by the court; MacKeigan v. Hickman (1989), 2 S.C.R. 796. The applicant notes that the Review Panel did not have additional members for this case, while the Appeal Panel did. The applicant submits that additional members have not often been added for other cases. The applicant submits that this case was singled out for different treatment because of its social context, its notoriety, which the applicant argues constitutes a reasonable apprehension of bias.

[54]      The applicant further submits that a reasonable apprehension of bias exists because the decision took over 320 days to promulgate while the average time to render a decision following a hearing during the time frame in question was between 30 and 90 days.

[55]      It is contended that the issue in this case is essentially one of statutory interpretation and, while this was directly pointed out to the Chairman, lawyers were not selected to augment the panel. Furthermore, it is contended that s. 30 should have been used instead of proceeding directly to a hearing in the usual manner by the Appeal panel.

[56]      Accordingly, and on a cumulative basis, it is submitted that on the authority of Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623. There exists a reasonable apprehension of bias because a reasonably informed bystander would perceive bias on the part of the adjudicator.

The Respondent's and Intervenor's Submissions

[57]      First, the intervenor and the respondent submit that the applicant made no objection to the constitution of the Appeal Panel before or at the time of the hearing. The respondent argues that it is not now open to the applicant to raise the issue before the court.

[58]      The intervenor and the respondent both submit that the VRAB Act provide the Chairperson the authority and discretion to select panels of the Appeal Panel. The applicant does not disagree. Thus the intervenor submits that the decision to appoint a larger panel due to the importance or complexity of a case and to assign particular members to a panel is within the responsibility of the Chair and the Board. However, the intervenor submits that absent any evidence that shows that a member or members should be disqualified because a reasonable apprehension of bias exists, a party cannot challenge the composition of the panel that hears an appeal.

[59]      The respondent notes that the Chairperson responded to panel member Tweedy's recommendations that additional members be appointed due to the subject matter of the appeal and the possibility of media interest. The respondent submits that there is no suggestion of bias created by such a request nor by the Chairperson's decision to appoint additional members. In any event, the intervenor contends that the rule of confidentiality with respect to deliberations extends to decisions by the Chair with respect to the assignment of panel members: MacKeigan, supra.

[60]      The intervenor submits further that the fact that the composition of the panel changed a few days before the hearing of the appeal cannot in itself be evidence of a reasonable apprehension of bias. The intervenor argues that there were changes in scheduling due to the large number of cases scheduled by the Board during the month of July and before that particular panel on the day that the Matchee case was heard. The intervenor submits that there is no duty on the tribunal to advise counsel of the reasons for a change in the composition of the panel.

[61]      The intervenor and the respondent submit that the final decision of each respective member, whether in majority or dissent, does not create a reasonable apprehension of bias. No evidence has been adduced of any form of previous involvement in or association with this case by any of the panel members which would support an allegation that there was a reasonable apprehension of bias on the part of a panel member. The intervenor submits that the enlargement of the Appeal Panel from three to five members was made at the suggestion of the previously-designated three person panel.

[62]      With respect to the matter of delay, the respondent submits that this does not suggest that a reasonable apprehension of bias is created. The respondent argues that "the average time for a hearing" referred to by the applicant is not based on evidence properly before the court. The intervenor contends that the fact that the tribunal was split makes it understandable that there was a significant delay in the issuance of the decision. The most reasonable inference arising from a circumstance of delay is that the decision was a difficult one for the tribunal to make.

Analysis

[63]      An adjudicative tribunal such as the Appeal Panel enjoys confidentiality with respect to its deliberative process: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. The members of the Appeal Panel clearly exercise an adjudicative function and have security of tenure. The Board is specifically declared by Parliament to be an "independent tribunal" and its members have immunity for acts done in the performance of statutory duties: VRAB Act, ss. 4, 41.

[64]      While the applicant makes a number of interesting arguments, I cannot accept that any reasonable apprehension of bias has been demonstrated. The classic test is set out by the Supreme court of Canada in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369 at 394-395:

...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly".

...The grounds for this apprehension must, however, be substantial...

[65]      First, I should say that I do not believe that Newfoundland Utilities Commission, supra, is of any assistance to the applicant. In this case, there is no evidence of a predisposition of any kind whatsoever. Moreover, notoriety or social context in and of itself is insufficient to ground an allegation of an apprehension of bias.

[66]      The appointment of a larger panel cannot give rise to a reasonable apprehension of bias simply because a larger panel was not common, lawyers were not appointed or the two additional members formed part of the majority. There is no evidence of attitudinal bias or pre-determination of the issues in this matter. Indeed, it was one of the dissenting members, Mr. Tweedy, a lawyer, who wrote to the Chairperson requesting a larger panel.

[67]      The applicant contended that one of the factors in considering a reasonable apprehension of bias is that the Appeal Panel could have had an interpretation hearing under s.30 of the Act and Regulation No. 6 of the Appeal Board Regulations. I see no merit to this argument as it relates to a reasonable apprehension of bias. While no interpretation hearing was held, the applicant did have every opportunity to present argument on the question of statutory interpretation prior to the Appeal panel rendering its decision. In any event, in my opinion, the applicant must apply to the VRAB for it to consider whether to order an interpretation hearing.

[68]      With respect to the matter of delay in reaching and promulgating the decision, I do not agree that, individually or cumulatively, this constitutes evidence of a reasonable apprehension of bias. There were two dissents. I agree with Mr. Crane that delay is more consistent with indecision than interference with the process or a biased appraisal of the issues. Also, there was evidence that a significant number of cases took longer than six months for decision. On the whole, I cannot accept anything improper in the delay.

[69]      In conclusion, I do not agree that Mr. Matchee was treated so differently, in the words of applicant's counsel, that a reasonably well informed person, viewing the matter practically and realistically would think that a reasonable apprehension of bias existed.

[70]      Finally, while not argued during the hearing but referred to in the memoranda, the applicant argues that consistency in decision-making is mandatory so that there is equal treatment under the law. The applicant contends that the Appeal panel erred in failing to follow the decisions in Billard, supra, and Savoie. Billard has been discussed previously in these reasons. Indeed, Billard was followed, at least in part, by the majority of the Appeal Panel in this case. Savoie was a death by suicide case in which the Board found that the condition was pensionable as it arose out of or was directly connected with R.C.M.P. service. However, the Panel did not appear to consider the issue of improper conduct.

[71]      I agree that consistency is clearly desirable as it enhances equality before the law and reduces arbitrariness. However, a tribunal must remain flexible and not overly rigid so that it can make a decision on legal principles that it believes are pertinent to the case before it.

[72]      Accordingly, for the reasons discussed earlier in these reasons, the application for judicial review will be allowed and the decision will be set aside. The matter will be returned to a differently constituted Entitlement "Appeal Panel" of the VRAB for rehearing and reconsideration in accordance with these reasons.

                                 Howard I. Wetston

                            

                                     Judge

OTTAWA, ONTARIO

January 5, 1999