Docket: T-589-11
Citation: 2012 FC 93
Ottawa, Ontario, January 24, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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RICHARD CARNEGIE
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Richard Carnegie, is seeking judicial review of a decision of the
Veterans Review and Appeal Board (the Board) dated February 10, 2011. The
Board found that he was not entitled to a pension because his condition, alopecia
areata leading to alopecia universalis, was not attributable to or incurred
during service in a Special Duty Area (Cyprus) under
subsection 21(1) of the Pension Act, RSC 1985, c P-6.
[2]
For
the following reasons, this application is allowed.
I. Background
[3]
The
Applicant is a 58 year old veteran of the Canadian Armed Forces. He served
with the Canadian Airborne Regiment from November 16, 1971 until retiring with
the rank of Corporal on April 3, 2000.
[4]
The
Applicant was deployed to Nicosia, Cyprus (a Special
Duty Area) from July to December 11, 1974 as part of a relief back up force. He
served during the Turkish invasion in what he claims were difficult hygienic
conditions. In patrolling the “Greenline” separating both sides, he was
subjected to indirect fire from time to time. Servicemen deployed with the Applicant
also described being exposed to either “orange smoke” or a “strange smoke
substance.” Following this deployment, the Applicant was based at Canadian
Forces Base (CFB) Edmonton.
[5]
Prior
to joining the Armed Forces, the Applicant was in good health. In April 1976
after returning from Cyprus, however, he was diagnosed with alopecia
areata that later developed into alopecia universalis. This condition causes
complete hair loss on the scalp and other areas of the body. The
dermatologists that treated the Applicant believed the problem was “likely of
autoimmune origin” and there was no well-documented treatment to change its
course.
[6]
On
April 25, 1988, the Applicant first applied for a pension claiming that the
condition was attributable to poor hygienic conditions he experienced during
his military service in the Special Duty Area of Cyprus. The Canada Pension
Commission (the Commission) refused his application. Apart from the Applicant’s
statement, there was no other medical evidence to confirm that his condition
started during his service in Cyprus. Moreover, the cause of his condition was
unknown and likely to be autoimmune.
[7]
Despite
the presentation of additional evidence, the Commission’s decision was affirmed
by an Entitlement Review Panel of the Board on March 29, 2000. The Applicant
had not been diagnosed with the condition until after he returned from Cyprus and its
cause was unknown. There was no objective medical evidence to show that the
condition was the result of the Applicant’s military service.
[8]
On
July 13, 2000, an Entitlement Appeal Panel of the Board was also unable to
conclude that the Applicant’s medical condition began during his military
service. Despite the obligation to resolve doubts in favour of the Applicant,
the medical evidence on file indicated the cause of his condition was unknown.
[9]
On
December 31, 2010, the Applicant requested a Reconsideration of an Entitlement
Appeal and submitted new evidence in support of his position. Nevertheless,
the Board’s decision in reconsideration confirmed the findings of the
Entitlement Appeal Panel. This Court is now tasked with reviewing that
decision.
II. Decision
Under Review
[10]
The
Board considered the new evidence submitted by the Applicant. This consisted
of four statements from former members of the 1974 Airborne Regiment Contingent
in Cyprus who served
with the Applicant and a new medical extract from The Merck Manual,
Eighteenth Edition.
[11]
This
evidence was assessed against the criteria established in MacKay v Canada
(Attorney General), [1997] FCJ no 495 as to whether it was in the interests
of justice to reopen the case based on the new evidence (due diligence);
credibility; relevance; and the effect of the evidence on the case. The Board
found that the evidence met the first three criteria, but would not change the
result of the case.
[12]
While
there was no issue with the four witness statements, they did not provide proof
that the claimed condition had its onset while in Cyprus. The
Merck Manual, Eighteenth Edition, indicated that emotional distress was one
of the many causes which could cause the claimed condition; however, there was
no evidence in the file, nor any medical evidence whatsoever to show that the Applicant
did, in fact, suffer emotional distress which caused the claimed condition. Emotional
distress had not been mentioned until a more recent period.
[13]
There
was also no evidence to corroborate that the claimed condition had its onset
during service in Special Duty Area Cyprus between July, 1 1974
and December 1, 1974. Complaints of symptoms related to the claimed condition
were subsequent to the Applicant’s return from Cyprus not prior to
or during his deployment. The earliest record of treatment in the file
referred to March 1976. The evidence seemed to point to an onset of the
condition in 1975 and was insufficient to support the contention that this had
occurred during the five-month deployment.
[14]
The
Board summarized its position as follows:
In conclusion, the Board takes no issue
with the four statements of the Applicant’s colleagues nor any issue with The
Merck Manual, Eighteenth Edition, extract. However, the totality of the
evidence is insufficient to establish a causal linkage between the claimed condition
and service factors pursuant to subsection 21(1) of the Pension Act. The
evidence also does not support that the claimed condition had its onset or that
it was incurred as a result of service in a Special Duty Area (Cyprus). The medical evidence on
file relates it to an autoimmune disease and there are absolutely no references
to emotional distress as one of the causes. For these reasons, the Entitlement
Appeal decision dated 13 July 2000 is confirmed.
III. Relevant
Provisions
[15]
The
Applicant’s pension entitlement must be determined based on subsection 21(1)(a)
of the Pension Act, that provides:
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21. (1) In respect of service rendered
during World War I, service rendered during World War II other than in the
non-permanent active militia or the reserve army, service in the Korean War,
service as a member of the special force, and special duty service,
(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;
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21. (1) Pour le service accompli pendant
la Première Guerre mondiale ou la Seconde Guerre mondiale, sauf dans la
milice active non permanente ou dans l’armée de réserve, le service accompli
pendant la guerre de Corée, le service accompli à titre de membre du
contingent spécial et le service spécial :
a) des pensions sont, sur demande,
accordées aux membres des forces ou à leur égard, conformément aux taux
prévus à l’annexe I pour les pensions de base ou supplémentaires, en cas
d’invalidité causée par une blessure ou maladie — ou son aggravation —
survenue au cours du service militaire ou attribuable à celui-ci;
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[16]
Section
2 of the Pension Act ensures that this provision is given a liberal
interpretation to reflect the obligation of Canadians to compensate those
disabled during military service. It dictates:
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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.
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2. Les dispositions de la présente loi
s’interprètent d’une façon libérale afin de donner effet à l’obligation
reconnue du peuple canadien et du gouvernement du Canada d’indemniser les
membres des forces qui sont devenus invalides ou sont décédés par suite de
leur service militaire, ainsi que les personnes à leur charge.
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[17]
An
analogous provision reflecting these principles is contained in section 3 of
the Veterans Review and Appeal Board Act, SC 1995, c 18 (VRAB Act)
that states:
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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.
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3. 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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[18]
In
assessing pension entitlement, the Board must also follow distinct rules of
evidence contained in the VRAB Act under section 39:
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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.
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39. Le Tribunal applique, à l’égard du
demandeur ou de l’appelant, les règles 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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IV. Issue
[19]
This
application raises the following issue:
(a) Did the Board err in determining that
the Applicant was not entitled to a pension under subsection 21(1)(a)?
V. Standard
of Review
[20]
This
Court confirmed following the decision of Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 that the appropriate standard to be applied to
decisions of the Board is reasonableness as the assessment of pension
entitlement raises questions of mixed fact and law (see Bullock v
Canada (Attorney General), 2008 FC 1117, [2008] FCJ no 1529 at paras 11-13;
Boisvert v Canada (Attorney General), 2009 FC 735, [2009] FCJ no 1377 at
paras 33-36; Zeilke v Canada (Attorney General), 2009 FC 1183,
[2009] FCJ no 1481 at paras 38-40).
[21]
I
cannot accept the Applicant’s suggestion that the rejection of medical evidence
under section 39 of the VRAB Act amounts to a jurisdictional error
requiring the correctness standard based on the determination in Rivard v
Canada (Attorney General), 2001 FCT 704, [2001] FCJ no 1072 at
paras 42-44. This position is not supported by subsequent jurisprudence.
[22]
Wannamaker
v Canada (Attorney
General),
2007 FCA 126, [2007] FCJ no 466 at para 13 clarified that the “[t]he proper
application of section 39 results in a decision on a question of mixed fact and
law” requiring the reasonableness standard. In a more recent case, this Court
reiterated that “the interpretation of medical evidence and the assessment of
an applicant’s disability are determinations that fall within the Board’s
specialized jurisdiction and should be approached with deference” (Beauchene
v Canada (Attorney General), 2010 FC 980, [2010] FCJ no 1222 at para 21).
[23]
Applying
the reasonableness standard, this Court must determine whether the Board’s
decision accords with the principles of “justification, transparency and
intelligibility within the decision-making process.” Unless the decision falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law”, intervention is unwarranted (Dunsmuir,
above at para 47).
VI. Analysis
[24]
As
a preliminary matter, I must address submissions related to the standard of
proof required at the Board in light of sections 3 (the obligation of liberal
interpretation) and 39 (the distinct rules of evidence in the Applicant’s
favour) of the VRAB Act.
[25]
While
the Applicant relies on John Doe v Canada (Attorney General), 2004 FC
451, [2004] FCJ no 555 at para 36 in his written submissions to suggest
that a standard of proof lower than the balance of probabilities could be
applied, this is no longer the prevailing approach. In Wannamaker,
above at paras 5-6, the Federal Court of Appeal stated that while section 39
ensured evidence is “considered in the best light possible” it does not relieve
the applicant of the burden of “proving on a balance of probabilities the facts
required to establish entitlement to a pension.” Moreover, the Board is not
required to automatically accept all evidence presented by the applicant.
[26]
With
this in mind, I will consider the reasonableness of the Board’s decision
regarding the Applicant’s pension entitlement based on both components of the
legislation. This includes the conclusion that the Applicant’s condition was
not (i) incurred during his military service; or (ii) attributable to his
military service in Special Duty Area Cyprus.
(i) Incurred
During Military Service
[27]
The
Applicant disputes the Board’s conclusion that his condition was not incurred
during military service on the basis that there was insufficient evidence to
corroborate his claims. He insists the Board failed to apply the presumption
in subsection 39(a) to make this inference based on his own statements that he
first noticed bald spots during his deployment and the letters of four
servicemen attesting to significant hair loss immediately following the return
to Cyprus. Although
the Board found the servicemen’s evidence credible, it also failed to reach a
favourable conclusion in accordance with subsection 39(b) that this
uncontradicted evidence must be accepted.
[28]
The
Applicant further contends that the Board failed to resolve any doubts and
weigh the evidence regarding the timing of onset in the Applicant’s favour
despite the progression of the alopecia from 1974 to 1979. Various medical
reports dated the onset of the condition to sometime shortly after the Applicant’s
return from Cyprus and arrival
at CFB Edmonton. Subsection 21(1) does not imply as strict a timeline as to
preclude a difference of a couple of weeks from being weighed in the Applicant’s
favour.
[29]
The
Respondent maintains that the Applicant failed to establish his condition was
incurred during military service on a balance of probabilities (as emphasized
in Wannamaker, above at paras 5-6; Elliot v Canada (Attorney
General),
2003 FCA 298, [2003] FCJ no 1060 at para 46). The Board reasonably
concluded that the letters of servicemen and medical evidence point to the
onset of hair loss shortly after the Applicant’s return in 1975 and did not
provide proof of onset while in Cyprus. It is still required
to weigh the evidence and determine whether a reasonable inference can be drawn
in the Applicant’s favour. Despite the Applicant’s belief that the condition
began during his deployment, the Board weighed contradictory evidence and
concluded that this was not the case.
[30]
While
the Applicant is not relieved of the burden of establishing his case on a
balance of probabilities, I find the Board’s decision is unreasonable in so far
as it claimed there is insufficient evidence to support the Applicant’s
contention that his condition had its onset while in Cyprus. The Board
concluded that the evidence pointed “to an onset of the claimed condition in
1975” but this appears to be at odds with the timeline it recognized in the
medical reports suggesting a previous history of symptoms in the period from
1974 to 1976. The significance of this evidence to the timeline in question
and its proximity to the Applicant’s military service in Cyprus was not
adequately considered by the Board.
(ii) Attributable
to Military Service
[31]
The
Applicant also asserts the Board erred in finding that his alopecia was not
attributable to his military service in Cyprus based on the
evidence. His enlistment record disclosed no pre-existing health problems. There
were concerns raised regarding difficult hygienic conditions, his being
subjected to indirect fire and exposure to some form of smoke substance. The
medical evidence relied on by the Board dates from 1975 to 1979 when little was
known about the causes of alopecia. Recent medical advances, however, as
evidenced in The Merck Manual, Eighteenth Edition, cite “emotional stress”
as a cause. According to the Applicant, the Board should have resolved any
doubts in his favour based on subsection 39(c).
[32]
The
Respondent contends that the cause of the Applicant’s condition is unknown. The
Board could not reach the conclusion that events in his service likely
triggered the condition. Although The Merck Manual, Eighteenth Edition,
recognizes environmental triggers such as emotional stress as possible causes
of alopecia areata, the Board noted that the Applicant never submitted any evidence
to confirm that he experienced such triggers leading to the onset of his
condition. The Applicant’s personal belief is insufficient to establish on a
balance of probabilities that his condition is attributable to his military
service.
[33]
Given
my finding above that it was unreasonable for the Board to conclude that the Applicant’s
condition was not incurred during military service based on the evidence,
however, it is unnecessary for me to address the arguments presented regarding
the other component of the legislation governing pension entitlement and assess
whether the Board erred in determining that there was no causal connection to
the Applicant’s military service.
VII. Conclusion
[34]
In
light of the evidence, it was unreasonable for the Board to determine that the Applicant’s
condition was not incurred during his military service in the Special Duty Area
of Cyprus under subsection 21(1)(a) governing pension entitlement under the Pension
Act.
[35]
For
this reason alone, the application for judicial review is allowed and the
decision of the Board in Reconsideration of an Entitlement Appeal is set aside.
The matter is remitted back to the Board for a re-determination.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed and
the decision of the Board in Reconsideration of an Entitlement Appeal is set
aside. The matter is remitted back to the Board for a re-determination.
“ D.
G. Near ”
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