Date: 20091210
Docket: T-1792-08
Citation: 2009 FC 1254
Ottawa, Ontario, December 10,
2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
GREGORY
ALLAN MACDONALD
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review in respect of a Reconsideration of
Entitlement Appeal decision (the decision) of the Veterans Review and Appeal
Board (the Board) dated September 18, 2008. In the decision, the Board upheld
its findings of November 21, 2007, to grant the Applicant a four-fifths pension
entitlement for his internal derangement of the right knee (the right knee
injury) and granted two additional years of pension under subsection 39(2) of
the Pension Act, R.S., 1985, c. P-6, for his varicose veins and right
knee injuries.
[2]
For
the reasons set out below the appeal is dismissed.
I. Background
[3]
The
Applicant was a member of the Canadian Forces until 1975. He injured his right
knee twice in 1968 during the course of his military duties, resulting in the
right knee and varicose veins injuries. In 1998, the Applicant made an
application for a disability pension related to, inter alia, these
injuries. In 1999, the Applicant’s knee “gave out” when he was jogging and
again when he was golfing.
[4]
This
is the third time the Applicant has been to Federal Court to judicially review
a Board decision related to these injuries (see MacDonald v. Canada (Attorney
General), 2003 FC 1263, 241 F.T.R. 308, per Justice François Lemieux and MacDonald
v. Canada (Attorney General), 2007 FC 809, 332 F.T.R. 169, per Justice
Elizabeth Heneghan). The Applicant was successful on both prior occasions and
the matters were sent back for re-consideration. In 2007, Justice Heneghan found
that the Board had erred by ignoring section 39 of the Veterans Review and
Appeal Board Act, S.C. 1995, c. 18, which provides that any doubt relating
to the credibility of the evidence is to be resolved in the Applicant’s favour.
Justice Heneghan also found that the Board had erred by rejecting the
Applicant’s pension claim with respect to his varicose veins condition.
[5]
On
November 21, 2007, after the matter was re-heard by a new Board as an
Entitlement Reconsideration Appeal, the Applicant was granted the
full-entitlement (five-fifths) for his varicose veins condition and four-fifths
entitlement for his right knee injury (the 2007 decision). The Board stated
that they withheld one-fifth pension entitlement for the part of the disability
attributable to post service activities such as jogging and golfing. Both
entitlements were made retroactive to November 21, 2004. This represented the
full period of possible retroactivity under subsection 39 (1) of the Pension
Act. Not satisfied, the Applicant requested a Reconsideration of this
Entitlement Appeal. It is this reconsideration decision that is currently under
review.
A. The
Board’s Decision of September 18, 2008
[6]
In
the Reconsideration of Entitlement Appeal decision, the Board upheld its 2007
findings to grant the Applicant a four-fifths pension entitlement for his right
knee injury. In addition, they granted two additional years of pension under subsection
39(2) of the Pension Act for the varicose veins and right knee injuries.
[7]
Subsection
32(1) of the Veterans Review and Appeal Board Act provides that an
appeal panel may reconsider a decision made by it under subsection 29(1) and
may either confirm, amend, or rescind the decision if it determines that an
error was made with respect to any finding of fact, the interpretation of any
law, or if new evidence is presented to the appeal panel. As is the case here,
if the Applicant requests the reconsideration, they have the onus of persuading
the panel that there are grounds to reconsider the case.
[8]
The
Applicant raised two grounds for reconsideration. On the first ground, the
right knee injury, the Applicant argued that in the 2007 decision the Board
erred in making a medical finding in deciding that his right knee condition was
aggravated by his activities after leaving the Military in 1975. The Board
determined that the Applicant had not established that reconsideration of the 2007
decision with respect to the amount of pension entitlement for the right knee
injury was warranted. The Board stated that in granting the four-fifths pension
entitlement in 2007, it had not discounted a report by the Applicant’s orthopaedic
surgeon, as suggested by the Applicant, but had accepted and weighed the
report.
[9]
In
the decision under review, the Board upheld the 2007 decision and stated at
page 4, paragraph 3:
In granting four-fifths pension
entitlement the Board did not discount the report of Dr. Wiltshire, as
suggested by the Appellant, but accepted the report and weighed it. Dr.
Wiltshire was not wholly conclusive on this issue of causation. There were
clearly acute symptoms that occurred while jogging in May 1999, and it is
logical to therefore conclude that some injury occurred at the time. As
referred to above, Dr. Wiltshire suggests that some of the meniscus damage
possibly occurred after the second surgery.
[10]
On
the second issue, retroactivity, the Board determined that this was a case
where the delays in the matter, the difficulty beyond the Applicant’s control
in obtaining documentation, and the two Federal Court hearings, resulted in
significant delays that were not wholly within the Applicant’s control. Therefore,
they applied subsection 39(2) of the Pension Act, thereby granting the
additional two years pension available under this subsection for the right knee
and varicose veins injuries.
B. The
Medical Evidence
[11]
Justice
Heneghan outlined the facts and litigation history of the Applicant’s pension
application for these injuries in paragraphs 3-42 of her decision and I refer
and incorporate this discussion into these reasons.
[12]
Of
particular relevance to the case at bar is the evidence of Dr. Wiltshire, the
Applicant’s orthopaedic surgeon. Dr. Wiltshire provided three reports related
to the right knee injury, the most recent and extensive being the opinion dated
May 31, 2005. Justice Heneghan set out this opinion at paragraph 33 of her
decision. In the May 2005 report, Dr. Wiltshire stated that while his
arthroscopic findings in 1999 did not disclose any evidence of meniscal damage,
it was possible that he had missed the tear of the meniscus. Dr. Wiltshire also
wrote that he agreed with another doctor who provided evidence for the Board,
Dr. Stanish, that medial right-sided knee discomfort and pathology is very
common in males over 40.
[13]
At
some point, a portion of the Applicant's medical records from 1968 went
missing. The Respondent has not directly addressed this issue. Justice Heneghan
discussed the missing records at paragraphs 72-75 of her reasons. However, the
matter of the missing records, and any argument related to their loss, is not
relevant to the decision currently under review. The missing records were an
important element for the determination of causation of the initial injury
sustained in 1968. This initial injury has been established. The decision
currently under review is with regard to the extent, if any, to which stress
and injury to the right knee over the intervening 30 years has contributed
and/or worsened the injury caused in 1968 to disentitle the Applicant to a full
disability pension.
C. Section
39 of the Pension Act
[14]
Section
39 of the Pension Act provides the effective date from which a disability
pension is payable. Section 39 is set out thus:
|
Date
from which disability pension payable:
39.
(1) A pension awarded for disability shall be made payable from the later of
(a) the day on which application
therefore was first made, and
(b) a day three years prior to the day
on which the pension was awarded to the pensioner.
Additional
award:
(2)
Notwithstanding subsection (1), where a pension is awarded for a disability
and the Minister or, in the case of a review or an appeal under the Veterans
Review and Appeal Board Act, the Veterans Review and Appeal Board is of the
opinion that the pension should be awarded from a day earlier than the day
prescribed by subsection (1) by reason of delays in securing service or other
records or other administrative difficulties beyond the control of the
applicant, the Minister or Veterans Review and Appeal Board may make an
additional award to the pensioner in an amount not exceeding an amount equal
to two years pension.
|
Date
à partir de laquelle est payable une pension d’invalidité:
39.
(1) Le paiement d’une pension accordée pour invalidité prend effet à partir
de celle des dates suivantes qui est postérieure à l’autre:
a) la date à laquelle une demande à
cette fin a été présentée en premier lieu;
b) une date précédant de trois ans la
date à laquelle la pension a été accordée au pensionné.
Compensation
supplémentaire:
(2)
Malgré le paragraphe (1), lorsqu’il est d’avis que, en raison soit de retards
dans l’obtention des dossiers militaires ou autres, soit d’autres difficultés
administratives indépendantes de la volonté du demandeur, la pension devrait
être accordée à partir d’une date antérieure, le ministre ou le Tribunal,
dans le cadre d’une demande de révision ou d’un appel prévus par la Loi sur
le Tribunal des anciens combattants (révision et appel), peut accorder au
pensionné une compensation supplémentaire dont le montant ne dépasse pas
celui de deux années de pension.
|
[15]
Therefore,
the Board gave the Applicant the full, allowable retroactive payment period
allowed under section 39.
D. The
Constitutional Challenge
[16]
The
Applicant questions the constitutional validity, application and effect of
section 39 of the Pension Act (the Constitutional question). He has
filed a Notice of Constitutional Question and complied with section 57 of the Federal
Courts Act, R.S.C. 1985, c. F-7 and section 69 of the Federal Court
Rules, SOR/98-106.
[17]
Essentially,
the Applicant argues that section 39 has prevented him from receiving approximately
four years of pension. He originally applied to the Department of Veterans
Affairs for a pension for the right knee and varicose veins injuries on
November 24, 1998. The request was initially denied on December 24, 1999, and
finally allowed in 2007. However, by operation of subsection 39(1), his
entitlement can only be retroactive to November 21, 2004. The Board did grant
him an extra two years under subsection 39(2), but this still leaves approximately
four years not covered.
[18]
The
Applicant argues that he was forced to have the decisions reviewed by the
Federal Court twice to achieve the pension he deserved in 1998 and that the
missing medical records caused much of the delay. Therefore, he should be in
the same position as those who were granted their pensions when they initially applied
for them.
[19]
At
the hearing before the Board, the Applicant conceded that the law as set out in
section 39 is clear that the Board is limited to granting retroactively of
three years from the date of the hearing and an additional two years where
unusual circumstances beyond the control of the Applicant warrant it.
II. Standard
of Review
[20]
The
applicable standard of review for reconsideration decisions by the Board is
reasonableness (Rioux v. Canada (Attorney General), 2008 FC
991, [2008] F.C.J. No. 1231 at paragraph 17; Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
III. Issues
[21]
There
are three issues to be considered in this matter:
(a) Can
the Federal Court make a finding on the Applicant's argument that section 39 of
the Pension Act violates the section 15 right to equality under the Charter
of Rights and Freedoms when the Board, whose decision is under judicial
review, did not determine this issue?
(b) If
the answer to issue one is positive, does section 39 of the Pension Act
violate subsection 15(1) of the Charter and is not a reasonable
limitation?
(c) Was
the Board reasonable in upholding its findings of November 21, 2007, to grant
the Applicant a four-fifths pension for the right knee injury?
[22]
I
will now consider these issues.
A. Can the
Federal Court Make a Finding on the Applicant's Argument that Section 39 of the
Pension Act Violates the Section 15 Right to Equality Under the Charter When
the Board, Whose Decision is Under Judicial Review, Did Not Determine this
Issue?
[23]
It
is clear that the Constitutional question raised by the Applicant was discussed
with the Board (see page 2, paragraph 4 of the decision). However, as reported
in the decision, the Applicant did not file a formal complaint or challenge
with the required notification of the Charter question prior to the
hearing before the Board. The Board also noted at page 3, paragraph 2 that the
Applicant stated he did not expect the Board to rule on whether his rights
under the Charter had been violated. The Board did not so rule.
[24]
Prior
to the hearing, I invited the parties to submit additional argument on the
issue of the Federal Court’s ability to make a finding that section 39 of the Pension
Act violates section 15 of the Charter of Rights and Freedoms if the
Board did not determine the issue. The Applicant provided further written
material and both parties made oral submissions at the hearing.
[25]
The
Applicant argued that he did raise the Constitutional question with the Board,
that the Board’s silence on the issue must be seen as a denial of the
Applicant’s position that subsection 39(1) contravenes the Charter,
and that it would be wrong, in his opinion, for federal boards to make rulings
on constitutional questions that are outside of their acknowledged areas of
expertise.
[26]
The
Applicant states that the Constitutional question was raised with the Board. However,
he did not file the appropriate forms and dropped this issue at the hearing
before the Board. I cannot accept the Applicant’s position that by not directly
deciding an issue, in his words “staying silent”, then the Board is making a
decision.
[27]
It
is also clear that administrative tribunals do have the jurisdiction to apply the
Charter. This jurisdiction was discussed in Nova Scotia (Workers’
Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, where
Justice Gonthier set out a four part test to be used when assessing the
jurisdiction of administrative tribunals to subject legislative provisions to Charter
scrutiny (see paragraph 48). The test can be summarized as follows:
1. Determine
whether the administrative tribunal has jurisdiction, explicit or implied, to
decide questions of law arising under the challenged provision;
2. Explicit
or implied jurisdiction must be found in the terms of the statutory grant of
authority;
3. If
the tribunal is found to have jurisdiction to decide questions of law arising
under a legislative provision, this power will be presumed to include
jurisdiction to determine the constitutional validity of that provision under
the Charter; and
4. The
party alleging that the tribunal lacks jurisdiction to apply the Charter
may rebut the presumption.
[28]
In
this case, the impugned provision is section 39 of the Pension Act. Sections
16 and 18 of the Veterans Review and Appeal Board Act set out the powers
of the Board with regard to the Pension Act. In these sections, the
Board has been granted the explicit and exclusive jurisdiction to decide
questions of law arising under the Pension Act. Therefore, the Board has
jurisdiction to decide questions of law arising under a legislative provision
and the Board’s power is presumed to include the jurisdiction to determine the
constitutional validity of section 39 under the Charter. It is up to the
Applicant, as the party that would allege that the Board lacks jurisdiction, to
rebut this presumption. I do not find that this presumption has been rebutted.
[29]
Having
found that the Board had jurisdiction to hear the Constitutional question, I
now find that I am unable to address the Applicant’s Constitutional question at
this time. Judicial review proceedings are limited in scope and not trial de
novo proceedings. As set out by Justice Rothstein in Gitxsan Treaty Society
v. Hospital Employees’ Union, [2000] 1 F.C. 135, 1999 F.C.J. No. 1192
(F.C.A.) at paragraph 15, the purpose of a judicial review is the review of
decisions. Therefore, barring exceptional circumstances such as bias or
jurisdiction (none of which are raised in this case), the reviewing Court is
bound by and limited to “the record that was before the judge or Board.” (see
Bekker v. Canada, 2004 F.C.A. 186, 323 N.R. 195 at paragraph 11, where the
Court considered if it should hear a Charter challenge raised only at
the Court of Appeal).
[30]
Recently
Justice Layden-Stevenson addressed the issue of whether to hear a Charter
argument not heard by the previous decision maker. In Somodi v. Canada
(Minister of Citizenship and Immigration), 2009 FCA 268, [2009] F.C.J. No.
1152, Justice Layden-Stevenson, for the Court, did not entertain a
constitutional challenge to the Immigration and Refugee Protection Act,
R.S.C. 2001, c. 27 that was not raised before the Federal Court. Justice
Layden-Stevenson based on the fact that to do so would deprive the Court of
Appeal from the benefit of the application judge’s reasons and analysis on the
arguments. While this decision is with regard to the Federal Court, its rationale
is applicable in this case.
[31]
As
the Board did not decide the Constitutional question raised by the Applicant in
this matter, I cannot consider it under this judicial review application.
[32]
Based
on my conclusion in issue (a) there is no need to consider issue (b).
C. Was the
Board Reasonable in Upholding its Findings of November 21, 2007 to Grant the Applicant
a Four-Fifths Pension for the Right Knee Injury?
[33]
The
Applicant argues that the decision not to grant him full pension entitlement
for his right knee injury is arbitrary and not based on the evidence. He argues
that in concluding that some of the injury was caused by his post-military
activity, the Board came to a medical opinion that is outside their area of
expertise.
[34]
The
Respondent argues that the Board relied on the medical findings of Dr. Wiltshire,
the Applicant’s doctor. According to the Respondent, the Board weighed the
evidence of Dr. Wiltshire and determined that it was not conclusive of the
causation of the right knee injury for three reasons: the acute symptoms
occurred in 1999 while the Applicant was jogging, that Dr. Wiltshire opined
that a meniscal tear could have happened after the second arthroscopy, and that
Dr. Wiltshire stated it is only possible that the tear in the meniscus occurred
in 1968.
[35]
Decisions
of the Appeal Panel are final and binding (see section 31 of the Veterans
Review and Appeal Board Act). However, subsection 32(1) of the Veterans
Review and Appeal Board Act authorizes the Board to reconsider a previous
decision if it determines that an error was made with respect to any finding of
fact, the interpretation of any law, or if new evidence is presented to the
appeal panel.
[36]
It
is clear that the Board is not to make medical findings on its own as it has no
inherent medical expertise (see MacDonald, above, per Justice Lemieux). In
determining whether to re-hear the matter, the Board reviewed the Applicant’s
submissions, all previous decisions, and the evidence. The Board paid
particular attention to the medical opinion of Dr. Wiltshire. As set out by the
Respondent, the Board relied on this medical opinion to support the conclusion
that some of the injury to the right knee was attributable to events of the
intervening 30 years.
[37]
Dunsmuir, above,
teaches us that reasonableness is a deferential standard concerned with the
existence of justification, transparency and intelligibility within the
decision-making process and that “reasonable” decisions will fall within a
range of possible acceptable outcomes which are defensible in respect of the
facts and law.
[38]
For
these reasons, the Board’s decision was reasonable.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. this
application for judicial review is dismissed; and
2. there is no Order as to costs.
“ D.
G. Near ”
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