King v. Canada (Veterans Review), docket T-91-97

T-91-97

IN THE MATTER OF THE PENSION ACT, R.S.C. 1985, c. P-6

AND IN THE MATTER OF THE VETERANS REVIEW AND APPEAL BOARD ACT, S.C. 1994-95, c. 17, 18

AND IN THE MATTER OF THE FEDERAL COURT ACT, R.S.C. 1985, c. F-7

AND IN THE MATTER OF A DECISION OF THE VETERANS REVIEW AND APPEAL BOARD CANADA DATED OCTOBER 2, 1996 AND STYLED AS VRAB FILE NO. VE-14517

BETWEEN:

GARRY R. KING

Applicant

- and -

THE VETERANS REVIEW AND APPEAL BOARD CANADA

Respondent

REASONS FOR ORDER

CAMPBELL J.

     In each of four applications before review bodies concerned with veterans pensions, Mr. King has been unsuccessful in his contention that he is entitled to a pension because he contracted hepatitis, and as a result tuberculosis, while on duty in Sardinia in 1968. This application is a judicial review of the last of these decisions being that made by an Appeal Panel of the Veterans Review and Appeal Board of Canada¹. Mr. King contends that, because of serious errors, this last decision is patently unreasonable and, therefore, the resulting order should be quashed. For the reasons which follow, I completely agree.

A. Statutory scheme for obtaining veterans pension benefits

     The following provisions of s.21 of the Pension Act, R.S.C. 1985, c. P-6 are relevant to this application:

21(2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,

(a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with 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;

...

(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) in respect of an injury or disease or aggravation thereof, or has suffered an injury or disease or aggravation thereof that would be pensionable thereunder 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 pension 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. [Emphasis added]

     Thus, to put it in simple terms, if a veteran suffers a disability resulting from an injury or disease that arose "out of or was directly connected with" military service in peace time, a pension may be granted. Moreover, if the initial injury or disease suffered did not result in a disability, but in turn resulted in a condition which did result in a disability, a pension may still be granted.

     The clear intention of the legislation respecting veterans pensions is to facilitate the awarding of a pension wherever reasonably possible. In particular, this conclusion is based on the words of s.2 of the Pensions Act:

2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.

In addition, sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1994-95, c. 17, 182, which govern how applications for pension benefits are to be conducted, make the same point:

3. The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled.

...

39. In all proceedings under this Act, the Board shall

(a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant;

(b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and

(c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.

     Further, to assist applicants to succeed in making an application, s.21(3) of the Pension Act creates favourable presumptions, the most relevant in this case being as follows:

21(3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of

...

(e) service in an area in which the prevalence of the disease contracted by the member, or that aggravated an existing disease or injury of the member, constituted a health hazard to persons in that area;

(f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member;

...

B. Basic facts and pension application history

The applicant"s following rendition of the facts and history is not disputed:

The Applicant served in the Royal Canadian Air Force and, later, the Canadian Armed Forces from September 3, 1959 to June 19, 1991. At the time of his retirement from the Canadian Armed Forces, the Applicant held the rank of Brigadier General.

In the Spring of 1968, the Applicant was deployed to Sardinia on authorized temporary duty to participate in NATO training exercises. He was there infected with Type A Hepatitis, and suffered from a severe case of the disease.

The Applicant contends that the said Hepatitis infection resulted from his ingestion of tainted seafood while in Sardinia, and this contention appears to have been accepted at all stages of the review and appeal process.

Approximately one year following his bout with Hepatitis, the Applicant was diagnosed with Genitourinary Tuberculosis. The Applicant contends that his tubercular condition is consequent upon his earlier Hepatitis infection.

The Applicant has confirmed that he is not suffering from any disability as a direct result of the Hepatitis infection, aforesaid. The Applicant maintains, however, that he is entitled to receive a pension in respect of the continuing disabilities associated with his Genitourinary Tuberculosis insofar as that latter condition is, in whole or in part, a consequence of the earlier Hepatitis infection within the meaning of section 21(5) of the Pension Act.

The Applicant's initial claim for a pension in respect of his Genitourinary Tuberculosis was denied by the Canadian Pension Commission July 14, 1992.

The proceedings leading up to the within application were commenced by a Notice of Application dated June 14, 1993, and the Canadian Pension Commission denied the application by a Decision dated March 7, 1994 [the Record, page 83].

A review hearing of the March 7, 1994 decision of the Canadian Pension Commission was held before the Entitlement Board of the Canadian Pension Commission. By a Decision of the Entitlement Board dated May 25, 1995 [the Record, page 25], the denial of the Applicant's claim was affirmed.

A further appeal was taken to the Respondent Veterans Review and Appeal Board which, by a Decision dated October 2, 1996 [the Record, page 1], denied the Applicant's appeal. It is this Decision by the Veterans Review and Appeal Board which is the subject of the within application for Judicial Review.

In its Decision, the Respondent Board did not assess the medical merits of the case. The Board's Decision denying the Applicant's pension benefits was limited to a consideration of whether or not the Applicant's initial claim in respect of his Hepatitis would have, had it resulted in a disability, been pensionable.3

C. Issues

The issues before each decision maker were:

(a) Would the applicant"s hepatitis have been pensionable if it had resulted in disability, which as a condition precedent, requires a finding that the hepatitis "arose out of or was directly connected with" the applicant"s military service in peace time?

(b) If the answer to (a) is yes, is the applicant"s genitourinary tuberculosis a disability which is, in whole or in part, a consequence of the hepatitis?

D. The critical finding of fact

     With respect to issue (a), the critical finding of fact made by the Appeal Panel is that "Mr. King contracted hepatitis in an off duty activity".⁴

     As a preliminary statement to making this finding, the Appeal Panel said:

The Board has thoroughly and carefully reviewed all the available evidence submitted in support of this claim. In particular the Board has examined the summary of the evidence contained in the Entitlement Board documentation. That summary is believed to be accurate and complete and is accepted as the evidence for the purpose of this appeal.

Submitted as additional evidence for this appeal are the following Exhibits:

VRAB-1      a letter from General Robert G. Christie dated 6 December 1995; and

VRAB-2      a letter from Garry R. J. King dated 2 August 1996.

[Emphasis added]

With respect to the Entitlement Board decision, which was being reviewed by the Appeal Panel, the Appeal Panel also said:

The Board [the Appeal Panel] has paid particular attention to the legislation of subsection 21(2) and paragraph 21(3)(e) of the Pension Act. It [the Appeal Panel] also took particular note of the decision of the Entitlement Board dated 25 May 1995 which stated:

The fact remains, however, that the contaminated mussels were eaten off the Base while he was not on duty and, therefore, this Board has concluded that the condition did not arise under pensionable circumstances and the condition would not be pensionable even if it had resulted in a present day disability.

     With respect to the "summary of evidence" upon which the Entitlement Board acted and which the Appeal Panel apparently accepted and considered, in the decision of the Entitlement Board the following was stated:

According to the testimony of the applicant and the evidence referred to by the Advocate, it appears that the applicant contracted hepatitis as a result of eating mussels at a local restaurant in a small village in Sardinia, to which he had been sent for a two week air weapons course.

The evidence shows that the Military authorities had established a Base in Sardinia which was used for purposes of the training exercises and that as part of the Base activities there was a Mess establishment where meals could be taken. In other words, the Board finds that had he chosen to do so, the applicant could have taken all of his meals, 7 days a week, at the Military Mess and it was not necessary for him to go into the local town and eat at a restaurant.

He chose to take a meal in a local restaurant, and hepatitis was the result. He stated that following this and following other cases of hepatitis contracted by other members of the Regular Force, an official bulletin was issued by the Military authorities warning its personnel on Cyprus not to eat shell fish at local restaurants.

The fact remains, however, that the contaminated mussels were eaten off the Base while he was not on duty and, therefore, this Board has concluded that the condition did not arise under pensionable circumstances and the condition would not be pensionable even if it had resulted in a present day disability.

As there is no medical evidence that a disability exists as a result of the claimed condition, pension entitlement under s.21(2) would not be indicated. [Emphasis added]

     What is striking about the passage just quoted is that within the space of two paragraphs, the Entitlement Board leaped from acknowledging that "it appears that the applicant contracted hepatitis as a result of eating mussels at a local restaurant in a small village in Sardinia", to concluding that "the contaminated mussels were eaten off the Base". What is even more striking is that the Appeal Panel accepted this conclusion as fact upon which it acted.

     The Appeal Panel says that it "thoroughly and carefully reviewed all the available evidence submitted in support of this claim". If indeed it had done so, on my inspection of the record before it, it would not have found evidence sufficient to support the conclusion that the Entitlement Board reached upon which it relied. In fact, this is the essence of the applicant"s grounds on this judicial review.⁵

     1. What evidence is there to support the critical finding of fact?

     On my reading of the record, there are three pertinent places in the record before the Appeal Panel that address this issue.

First, in the March 7, 1994 decision of the Canadian Pension Commission, the following passage appears:

The pensions advocate, on behalf of the ex-serviceman is claiming Hepatitis occurred as a result of lack of proper hygiene while serving as a member of the Canadian Forces in Sardinia. The advocate refers to a Family Physician's Notation that Infectious Hepatitis Type A was encountered when the applicant was on a special assignment in Sardinia and that furthermore, this condition, along with the second claimed condition for Genitourinary Tuberculosis are exceptionally rare, other than in endemic areas. This is not true, as infectious hepatitis is a well known common world wide disease. Type A hepatitis virus is spread by oral, faecal contact and possibly by blood or secretions. Sporadic cases are usually due to person to person contact.

Type A Hepatitis usually resolves fairly quickly and chronic disease does not develop in this type of hepatitis. Most people can return to work when the jaundice disappears and the appetite usually returns in several days, in other words, it is a short term affliction.

The advocate refers to the hygiene standards in Sardinia in 1968 as not being comparable to those in Canada and constituting a health hazard to the persons in that area. No statistics

---

have been given regarding the incidence of hepatitis A in Sardinia as compared to other areas of the world, including Canada.

There is no evidence that suggests that this case was any different as there is no reference made following the medical entry of 13 March 1968 diagnosing infectious Hepatitis and the file is silent following this one entry indicating that he recuperated totally from this condition.

The claimed Acute Viral Hepatitis Type A was diagnosed during Regular Force service and there is no indication that there is any existing or chronic disability resulting from that infection nor is this condition to be considered due to Regular Force service factors.

Having accepted and reviewed the application for pension, the Commission is unable to conclude that the available medical evidence discloses the existence of a disability for which an award is requested. Since a disability cannot be satisfactorily identified, it is not possible to relate the claimed condition to the period of military service. 6

Thus, this decision went off on the basis that hepatitis is a short term affliction and, therefore, disability could not result from it. In addition, it discounted that the condition was the responsibility of the service even though the "family physician"s notation" which supported the applicant"s claim made the assertion that "a year prior to his diagnosis of TB, he [the applicant] had developed Type A hepatitis which was encountered when he was on special assignment with the CAF in Sardinia". There was no finding of fact as to the circumstances in which the disease was contracted.

Second, in the hearing before the Entitlement Board, included as part of new evidence that was presented, was a letter written by Mr. Norman MacSween which reads as follows:

I am writing at the request of Garry King to corroborate his claim that he was infected with hepatitis A while serving for the Canadian Forces in Sardinia in 1967.

I am employed by Canadian Airlines International Limited as a pilot and have been with this company since November 1969.

I served with the Canadian Forces in Zweibrucken, Germany, from August 1966 to October 1969. All Canadian Air Division pilots were required to deploy to Sardinia twice a year to re-qualify as combat ready at the special weapons range located on the island. It was while serving during one of these deployments that I ate some bad sea food and developed hepatitis. I was hospitalized and recovered at the Canadian military hospital in Zweibrucken.

Garry King, flying out of another Canadian airbase at Lahr, Germany, was in Sardinia at the same time that I was infected with hepatitis and he, too, became sick with hepatitis by eating tainted sea food while on deployment in Sardinia. He an I were in the Zweibrucken hospital at the same time. Garry had a much more severe bout of the disease than I did and spent a considerably longer period of time in rehabilitation.

Medical records will show that several Canadians who were required to serve in Sardinia during this period encountered the hepatitis virus. It is well documented that one of the causes of the disease was the result of eating bad sea food with mussels being the principal cause.

Garry King's case was well known among the pilots of the Canadian Forces in Europe because of his severe bout with the disease. Pilots on all the squadrons were advised to be careful on future deployments to Sardinia and to avoid sea food, especially mussels.

Of note and possible assistance in your deliberations: Garry King was diagnosed as having renal tuberculosis not long after he appeared to recover from hepatitis. He spent several months at the American Army hospital in Landstuhl, Germany in the specialist TB ward. Since this was a rare case, specially for a Starfighter pilot, his case was well known and discussed widely. The cause of the tuberculosis was attributed to the fact that Garry's immune system had been significantly weakened with the severity of his hepatitis infection.

     Third, in preparation for the Appeal Panel hearing, the applicant wrote a letter to his advocate dated August 2, 1996, which is part of the record the Appeal Panel considered, and which contains the following evidence:

To summarize, the documentation that is contained in my file is ample proof and support for my claim regarding genito-urinary tuberculosis. The facts are clear and substantiated:

1. While serving on authorized temporary duty in Sardinia I became infected with the hepatitis A virus. This was traced to bad sea food - namely mussels. (Although the testimony has only mentioned eating mussels in a Sardinian restaurant, I regularly ate mussels in the all-ranks mess at the RCAF Station in Deccimommanu, Sardinia.)

2. Several officers and airmen encountered the same virus while serving on temporary duty in Sardinia. (Mr. Norm McSween's [sic] letter refers).

3. Temporary duty authorizes the dining out on the economy with full legal authority and support from the federal government (General Christie's letter refers): in reality, the only matter that was left unresolved for the Board.

     It is clear from the applicant"s August 2, 1996 letter that the applicant contests the Entitlement Board"s conclusion that the mussels were eaten off base. A fair reading of his statement is that he doesn"t know whether he contracted hepatitis from eating mussels in a Sardinian restaurant or in the all-ranks mess on the base. This is important, because on the face of the record he is the only person that would know where and when he might have eaten contaminated sea food, and he states that it could have been either on or off base. In fact his is the only direct evidence on the record on this issue.

     While the Entitlement Board decision says that the applicant appeared before it, and the above quoted portion of the decision says that "according to the testimony of the applicant...", there is no transcript of what the applicant might have said, if anything. In view of the applicant"s letter of August 2, 1996, which was an important piece of new evidence before the Appeal Panel, and in view of the conflict which apparently exists between it and the conclusion reached by the Entitlement Board, in my opinion, the decision of the Entitlement Board should have been given no weight by the Appeal Panel.

     In the hearing before me, counsel for the applicant and respondent agreed that the Appeal Panel"s obligation was to conduct a trial de novo , which means that it had a duty to consider all the evidence anew, without simply accepting the opinions that previous decision makers had formed. Clearly the Appeal Panel failed to discharge this obligation, which I consider a serious error.

E. What is the effect of making the critical finding of fact?

     The effect of the Appeal Panel making the finding that Mr. King contracted hepatitis in an off duty activity is to allow the Appeal Panel to say that it is unable to find "any relationship between the claimed condition and service"⁷ and thus the finding that the hepatitis "did not arise out of nor was it directly connected with service in peace time".⁸

     1. Can this effect be supported on the evidence?

     An important piece of evidence on the record which speaks to this effect is the letter of Brigadier General Robert G. Christie dated December 6, 1995 to which the Appeal Panel referred in its decision as follows:

The Board has taken particular note of Exhibit VRAB #1, Brigadier General Robert Christie's letter dated 6 December 1995 where the General states: "The Base Commanders of One Air Division (Marville, Zweibrucken, Baden-Sollingen and later Lahr) were the responsible authorities for aircrews on temporary duty away from home base." General Christie further states "We were concerned about the welfare of our pilots and introduced orders and legislation as appropriate". On page two of General Christie's letter he states:

a.      Official temporary duty away from home base means that an individual is ON DUTY 24 hours a day from the time he leaves his base until the time he returns. This was particularly important in NATO Europe where TD was the norm and international incidents inevitable. As a Base Commander of the time I routinely administered and approved cases involving insurance and compensation regarding personnel on temporary duty.

b.      Pilots on temporary duty in Sardinia had FULL AUTHORIZATION to proceed into the local economy for meals and recreation. They did so under the full understanding and knowledge that they were protected by the rules and regulations of the RCAF.9

With respect to the quoted passages from the letter, the Appeal Panel said this:

As well, the Board could find no definition of "official temporary duty away from home base" in the legislation regulations or in Department of Veterans Affairs Pension Policy manual nor could it locate the geographical area of Sardinia in its Special Duty Areas/Theatre of Operations...

Brigadier General Christie clearly discusses in his letter of 6 December 1995, VRAB #1, orders and legislation as maybe appropriate from a Commander's point of view, and explains his understanding of official temporary duty away from home base, as well, as the rules and regulations of the RCAF. The Appellant in his letter VRAB #2 dated 2 August 1996, states that he had an understanding of authorized temporary duty and what that temporary duty authorized while serving in Sardinia. The Veterans Review and Appeal Board adjudication legislation makes no reference to temporary duty, as understood by the Appellant or, official temporary duty away from home base as understood by General Christie, nor is it reflected in the Legislation under which this Panel adjudicates. This Panel cannot apply Active Force for 21(1) rules to a 21(2) Regular Force case, therefore, the Board concludes that Mr. King contracted hepatitis in an off duty activity.10[Emphasis added]

     What I find troubling about these passages is that, rather than accept Brigadier General Christie"s evidence which is clear, unequivocal, and on the face of the record unassailable, the Appeal Panel decided to disregard it because it had formed a contrary opinion, not based on the evidence on the record. That is, the Appeal Panel conducted its own research into the basis for Brigadier General Christie"s statements of the obligations of the people in his command in Sardinia, and finding nothing to confirm or contradict it, nevertheless concluded that his understanding is wrong.

By s.39 of the Veterans Review and Appeal Board Act as quoted above, the Appeal Panel is obliged to "accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances". Particularly in view of the provisions requiring a liberal and favourable interpretation of the legislation to be given to the applicant, I find that the Appeal Panel was wrong in what it did to effectively find that Brigadier General Christie"s evidence lacked credibility. I also find that the effect found by the Appeal Panel cannot be supported on the evidence.

F. Is the decision of the Appeal Panel reviewable?

Section 31 of the Veterans Review and Appeal Board Act provides that:

31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.

With respect to this privative clause, I accept the applicant"s submission on the law as follows:

[t]he law as it relates to privative clauses is now sufficiently settled to recognize the following principles:

a. A privative clause is not effective to oust judicial review in the case of an error which goes to the jurisdiction of the tribunal. [Jones & de Villars, Principles of Administrative Law, Second Edition, pp. 380-82]; and

b. Where a decision on an otherwise intrajurisdictional matter is so patently unreasonable as to be incapable of being rationally supported by the governing legislation, that decision is made without jurisdiction and is, therefore, not protected by the presence of a privative clause. [Jones & de Villars, supra., pp. 380-82; Ballingall v. Canada (Minister of Veterans Affairs) (1994), 76 F.T.R. 44 at para. 14.].11

I have absolutely no hesitation in saying that in view of the serious errors made in this case by the Appeal Panel, its decision is patently unreasonable and thus the decision of the Appeal Panel is reviewable.

Therefore, for the reasons given, I quash the order of the Appeal Panel and refer this matter to a differently constituted panel for consideration and decision in accordance with these reasons.

Given the gravity of the errors made, the applicant should not be made to bear the cost of reaching the result obtained here. Accordingly, I find special reasons exist to award costs of this application to the applicant and I do so in Column III of Tariff B of the Federal Court Rules .

Judge

OTTAWA

November 7, 1997

__________________

     ¹Referred to below as "the Appeal Panel".

²
At the hearing, counsel for the applicant requested that the style of cause be amended to correct to the Pension Act and Veterans Review and Appeal Board Act references just quoted, and I so ordered.

³
Applicant"s Memorandum of Argument, Applicant"s Application Record, pp.25-26. The references to "the Record" are to what has been described in an affidavit of an official of the Veterans Review and Appeal Board as "true copies of the complete original record used by the Veterans Review and Appeal Board in reaching its decision dated October 2, 1996".

⁴
Decision of the Appeal Panel, Applicant"s Application Record, p.4.

⁵
The grounds as stated in the Originating Notice of Motion are as follows:1. In making the VRAB Decision, the Respondent exceeded its jurisdiction, erred in law or otherwise acted in a manner unfair to the Applicant by failing to give due, or any, weight to the uncontradicted evidence presented on behalf of the Applicant that:
     (a) at or about the relevant time, the Applicant regularly ate mussels in the all-ranks mess at the RCAF Station in Deccimommanu, Sardinia;
     (b) while on temporary duty away from his home base, a member of the RCAF was, at the relevant time, considered by the RCAF to be on duty 24 hours a day from the time he left his home base until the time he returned there;
     (c) at the relevant time, it was customary and was accepted as a matter of military administration and procedure that, in the course of operations and training exercises of the sort in which the Applicant was engaged, members of the RCAF would proceed into the local economy for meals and recreation; and
     (d) at the relevant time, the ingestion of shellfish, mussels in particular, in the vicinity of Sardinia constituted a health hazard to the extent that military officials posted warnings to military personnel to refrain from eating the same.
2. In making the VRAB Decision, the Respondent exceeded its jurisdiction, erred in law or otherwise acted in a manner unfair to the Applicant by failing to consider all of the evidence in support of the Applicant's appeal, opting instead to consider only a summary of such evidence as prepared by the Entitlement Board.
3. The Respondent exceeded its jurisdiction, erred in law or otherwise acted in a manner unfair to the Applicant by arriving at, in the face of the uncontradicted evidence before it, an unreasonable conclusion, namely, that the Respondent "was unable to find any relationship between the claimed condition [ie. Hepatitis A] and service. (Applicant"s Application Record, pp.4-5.)

⁶
These findings are simply a re-statement of the medical opinion of Dr. R. Lund of the Pensions Medical Advisory Directorate, dated February 10, 1994. (Applicant"s Application Record, pp.81-82.)

⁷
Decision of the Appeal Panel, Applicant"s Application Record, p.4.

⁸
Ibid., p.5.

⁹
Ibid., p.4.

¹⁰
Ibid.

¹¹
Applicant"s Application Record, p.27.