Date: 19990106
Docket: T-1136-98
BETWEEN:
WALTER P. METCALFE D.F.M.
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
EVANS J.:
A. INTRODUCTION
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act R.S.C. 1998, c. F-7 [as amended] in which Walter Metcalfe D.F.M. (hereinafter "the applicant") seeks to have set aside a decision of the Veterans Review and Appeal Board (hereinafter "the Board") dated January 27, 1998 upholding a decision of the Entitlement Review Panel of the Board dismissing the applicant"s claim for a disability pension.
B. FACTUAL BACKGROUND
[2] The applicant, who is now 74 years old, is a veteran of both the Second World War and the Korean War. In the former he served as an air gunner, and was awarded the Distinguished Flying Medal. During the Korean War he was in the artillery and while on active service was exposed to excessive noise. In particular, on one occasion while his battalion was under heavy enemy attack he was responsible for a 60 mm mortar and fired many rounds. He became completely deaf. Because the battalion was under strength he was not able to report this condition to the medical officer, and since his hearing returned within a matter of days he saw no reason to report the loss subsequently. He was later discharged as medically fit, although his examination did not include an audiogram.
[3] After his discharge the applicant returned to his position with the Toronto Police Force, but experienced hearing difficulties. As part of his police training he fired revolvers, although he stated that he always wore ear protection during these exercises.
[4] He first consulted an ear, nose and throat specialist, Dr. Baker, in 1976, after he had learned that his hearing loss might be pensionable. In his letter to the Canadian Pension Medical Examiner, Dr. Baker described the result of hearing tests that he had conducted on the applicant, and concluded that there was "a strong possibility that this injury was partially caused by the blast" that the applicant told the doctor had occurred while he was on active service in Korea.
[5] The applicant"s claim for a pension was dismissed on the ground that his loss of hearing was not sufficiently serious to be pensionable, and that there was insufficient evidence to attribute the hearing loss to military service.
[6] After 1976 the applicant"s hearing declined further. Following his retirement, when he lost his supplementary medical coverage which paid for his hearing aids, the applicant made another claim for a disability pension in 1997. The applicant consulted Dr. Werger, an ear, nose and throat surgeon, who reported that "the applicant has a profound loss in both ears requiring hearing aids", and gave his opinion that the applicant"s "previous noise exposure can definitely make his ears more susceptible to loss over the years and is likely to be the major cause of his hearing loss today."
[7] The applicant"s claim was again rejected. After reviewing the evidence outlined above the Board in its reasons for decision concluded as follows:
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This Board, in reviewing the medical opinion, clinical evidence and the testimony of Mr. Metcalfe, accepts that the Veteran was exposed to excessive noise trauma and also that his hearing loss has a noise induced causal factor. However, the Board does consider that the audiograms taken in 1976, 24 years after discharge, which do not show a disability in accordance with the Department"s guidelines, recorded that his hearing for all intents and purposes was normal. |
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The Board has concluded that without medical evidence of a disability for at least 24 years post-discharge, the current disability is not related to his Active Force service, and regretfully, will deny pension entitlement.
C. LEGISLATIVE FRAMEWORK
[8] The applicant"s claim was based on paragraph 21(1)(a ) of the Pension Act R.S.C. 1985, c. P-6 [as amended], which provides that:
In respect of military service rendered during World War I or World War II and subject to the exception contained in subsection (2),
(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;
En ce qui concerne le service militaire accompli pendant la Première Guerre mondiale ou pendant la Seconde Guerre mondiale, et sous réserve du paragraphe (2) :
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;
Service with the special forces in Korea is deemed to be included in the phrase "military service rendered during World War II": Veterans Benefit Act R.S.C. 1970, c. V-2 [as amended], subsection 5(1).
[9] The following provisions of the Veterans Review and Appeal Board Act S.C. 1995, c. C-18 are relevant to the case at bar. Section 3 provides that:
| 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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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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[10] Section 18 provides that:
| The Board has full and exclusive jurisdiction to hear, determine and deal with all applications for review that may be made to the Board under the Pension Act, and all matters related to those applications.
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Le Tribunal a compétence exclusive pour réviser toute décision rendue en vertu de la Loi sur les pensions et statuer sur toute question liée à la demande de révision.
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And section 31 contains a finality clause:
| A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.
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La décision de la majorité des membres du comité d'appel vaut décision du Tribunal; elle est définitive et exécutoire.
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[11] Section 39 contains the following provisions:
| 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.
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Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les rè-gles 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.
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D. THE ISSUES
[12] Although the applicant raised several issues in his written submissions, at the hearing it became clear that the application for judicial review turned on the following single question. Did the Board err in law by basing its decision on a patently unreasonable finding, namely that the applicant"s deafness is not attributable to his military service?
E. ANALYSIS
[13] Given the statutory provisions conferring exclusive jurisdiction on the Board and rendering its decisions final and binding, and given the fact that the issue in dispute involves the application of the statute to the facts found and is within the area of expertise of the Board, the standard of review to be applied is that of patent unreasonableness: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Canada (Director of Research & Investigation) v. Southam Inc., [1997] 1 S.C.R. 748.
[14] It is important to note that in this case the reasonableness or otherwise of the Board"s conclusion is to be determined in light of both the evidence before it and the relevant statutory provisions. In particular, while claimants have the burden of proving their entitlement to a pension, they are considerably assisted by the provisions of section 39 of the Veterans Review and Appeal Board Act which direct the Board on the manner in which it must approach the evidence. Thus, it is to draw every reasonable inference from the evidence in favour of the appellant; accept as true credible and trustworthy evidence produced by the claimant; and in weighing the evidence, resolve any doubt in favour of the appellant. In addition, section 3 requires that the powers, duties and functions of the Board be interpreted in a liberal manner in recognition of Canada"s debt to its war veterans.
[15] It would appear from the Board"s brief reasons for decision that it accepted the principal primary facts on which the applicant bases his claim, namely that he was exposed to excessive noise while on active military service and that his hearing is now seriously impaired. However, the Board was not satisfied that the applicant had established a causal link between these two facts, largely because the applicant did not report, or seek medical attention for, his hearing problem until 1976, twenty four years after the incident to which he attributes his aural difficulties. Moreover, the fact that what was a relatively minor hearing loss in 1976 had become much more serious by 1997 suggested to the Board that the applicant"s disability was attributable to post-discharge factors.
[16] In light of both the evidence submitted by the applicant, including that of the medical specialists, and the statutory directions to be Board, was it reasonably open for the Board to conclude that the applicant had not established that his deafness is attributable to his military service?
[17] In my opinion, the Board could only have reached its conclusion by misdirecting itself on the effect of section 39 of the Veterans Review and Appeal Board Act. While paragraphs (a), (b) and (c) of this section 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. The applicant"s explanation for his failure to seek medical attention earlier seems quite plausible, and the Board did not dispute it.
[18] In its reasons, the Board comes very close to saying that no one is entitled to a pension who fails to report an injury until a substantial period of time has elapsed after it occurred. I say "very close" because there was some evidence of a possible source of post-discharge noise trauma, namely, the revolver-shooting in which the applicant had engaged as a police officer. However, his evidence on this point, which was not challenged, was that he always wore ear protection, and that this activity could not therefore have been the cause of his hearing loss.
[19] Nor I am persuaded by the Board"s observation that the evidence established that, because the applicant"s hearing loss only became significant after 1976, it cannot be attributed to military service. While hearing loss commonly occurs as part of the aging process, the applicant"s claim that his exposure to excessive noise from the mortar has significantly aggravated an otherwise natural process to the point that he is now deaf seems quite reasonable to me.
[20] Counsel for the respondent brought to my attention Hall v. Canada (Attorney General) (F.C.T.D.; T-2267-97; June 22, 1998), in which Reed J., on facts somewhat similar to those in the case at bar, upheld the Board"s refusal to award the applicant a disability pension. The applicant in that case had not reported the accident that he alleged had caused the injury for some time after it occurred: the first documented medical report was made thirteen years after the event. However, in upholding the Board"s decision Reed J. also relied upon the fact that at the time of his discharge the applicant had signed a medical statement stating that he had not suffered an injury.
[21] The presence of this latter piece of evidence supporting the Board"s decision seems to have been an important reason for Reed J."s conclusion. No similar evidence exists in the case at bar to cast doubt on the applicant"s claim: there has been no suggestion that Mr. Metcalfe was not exposed to excessive noise while on active service in Korea in the circumstances that he described. The Board relied virtually exclusively on the length of time that had elapsed between the applicant"s exposure to excessive noise in Korea and the date that he reported a hearing problem, and on the fact that his hearing did not deteriorate to a qualifying level until after 1976.
[22] Obviously, no one can be certain whether a causal link exists between the noise to which the applicant was exposed while on military service and his present deafness. Although couched in terms of possibility and probability, the medical opinions of Drs. Baker and Werger can realistically go no further than saying that the applicant"s hearing loss is consistent with exposure to the level of noise described to them by the applicant. Nonetheless, in my opinion the applicant produced sufficient credible evidence about the cause of his hearing loss that, if the Board had complied with the directions contained in section 39, it must in law have upheld his claim.
[23] For these reasons, I have concluded that the Board erred in law by basing its refusal of the applicant"s claim on a finding of fact that, in light of the evidence before it and the relevant statutory provisions, was patently unreasonable. The application for judicial review is accordingly granted, and the matter remitted to the Veterans Review and Appeal Board, differently constituted in so far as that is practicable.
[24] Finally, I wish to congratulate Mr. Metcalfe on the skill and good sense with which he represented himself, and Ms. Campbell for so ably performing the role that counsel representing the Government of Canada should play in litigation with an unrepresented party.
OTTAWA, ONTARIO
January 6, 1999. J.F.C.C.
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