Date: 20090909
Docket: T-1923-08
Citation: 2009 FC 884
Ottawa, Ontario, September 9, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
DAVID
MURRAY
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Veterans Review and
Appeal Board, dated October 22, 2008, denying the applicant’s disability pension
claim on the basis that the applicant’s toe injury did not arise out of,
nor was it directly connected to, his service in the Royal Canadian Mounted
Police (RCMP) within the meaning of subsection 21(2) of the Pension Act, R.S., 1985,
c. P-6.
FACTS
[2]
The
applicant served with the RCMP from April 12, 1972 to April 27, 2005.
[3]
On
September 19, 1972, the applicant sustained an injury to the first toe of his
right foot when he stubbed it on a bed frame in the RCMP dormitory. The
applicant states that he was accidentally struck in the face during a “ground
fighting” training exercise earlier in the day and suffered a nosebleed as a
result. His nose began bleeding again after “lights out” in the RCMP dormitory and
the applicant stubbed his toe while running to the restroom in the dark. The
applicant was a recruit in training at the RCMP Depot in Regina, Saskatchewan, at the time
of this injury.
[4]
The
applicant’s injury was examined on September 20, 1972. The x-ray did not show
any fracture or abnormality. The applicant completed an Injury Statement form
indicating that the accident had occurred off-duty and that he had fully
recovered from the injury. He completed another form on September 28, 1972,
that stated that his injury was of a trivial nature and was unlikely to cause
any permanent ill-effects.
[5]
Thirty-two
years later, on December 17, 2004, the applicant submitted a disability claim
to the Minister of Veterans Affairs for degenerative arthritis in the
metatarsal phalangeal joint of the first toe of his right foot.
[6]
On
May 16, 2005, the Minister denied the applicant’s pension claim, finding that
the applicant injured his toe while off duty and that full recovery had been
indicated. The applicant appealed to the Veterans Review and Appeal Board
Entitlement Review Panel (Review Panel). In a decision dated March 1,
2006, the Review Panel affirmed the Minister’s decision on the basis that the
applicant had been off duty at the time of the injury and that the medical
report stating that the applicant’s disability was a result of his toe injury
was based on the applicant’s recollection.
[7]
The
applicant then appealed to the Veterans Review and Appeal Board (Appeal Board).
The Appeal Board affirmed the decision of the Review Panel on October 22, 2008.
The applicant seeks judicial review of this decision.
Decision under review
[8]
The
Appeal Board reviewed the medical evidence and, in contrast to the Review Panel
and the Minister, found that the applicant’s condition was “most likely” a
result of the applicant’s injury on September 19, 1972.
[9]
In
considering whether the applicant’s injury arose out of, or was directly
connected with, his service in the RCMP, the Appeal Board considered the
following factors:
1.
the direct
cause of the injury;
2.
the
activity the applicant was engaged in at the time of the injury;
3.
the
applicant’s duty status at the time of the injury;
4.
whether
the RCMP was exercising control over the applicant at the time of the injury;
5.
where the
injury occurred;
6.
whether
the applicant was in uniform at the time of the injury; and
7.
whether
there were any other facts that would assist the Board in determining whether
the applicant’s injury arose out of, or directly in connection with, his RCMP
service.
[10]
The
Board concluded that the injury had not been sustained as a result of or in
connection with the applicant’s RCMP service. The Board stated at page 4 of the
decision (Application Record, p. 14):
The direct cause of the
Appellant’s injury was striking his foot on a bed while running. The activity
he was engaged in was rushing to the bathroom to attend to a nosebleed. The
Board finds the activity in which the Appellant was engaged and the actual
mechanism of injury were not connected to RCMP service. This sort of mishap
can happen to anyone, at any time, and in any place. Hitting one’s toe on the
leg of a bed has nothing to do with RCMP service. [Underlining added by the
Court.]
[11]
The
applicant had submitted evidence to the Appeal Board supporting his contention
that, as a recruit, he was effectively “on duty” at all times. The Board
stated:
Duty status is important, but is not necessarily
determinative of whether the accident arose out of RCMP service. It is one
factor to be considered. Even where an Appellant is clearly “on duty,” in that
he or she is at the worksite and their shift has commenced, it is not necessarily
the case that an accident therefore arose out of such service.
[12]
The
Board found that the RCMP was exercising substantial control over the applicant
at the time of the accident, as he was in the dormitory and was subject to
inspection and a call to duty at any time. However, the Appeal Board found that
this was an insufficient basis for finding that the accident arose out of
service. The Board noted that the applicant was not in uniform at the time of
the injury.
[13]
The
Appeal Board cited the decision of this Court in King v. Canada (Veterans
Review and Appeal Board) (2001), 205 F.T.R. 204, wherein Justice Nadon
stated at para. 67 that the phrase “directly connected” required that the Board
consider the “strength of the causal connection between the injury and the
applicant’s military service.” The Appeal Board concluded at page 6:
The Board finds the Appellant was not
performing service-related duties at the time of the injury. Even if one
accepts Mr. Lagasse’s position that recruits were always “on duty”, the Board
cannot find that the Appellant was discharging any aspect of his duty as a
peace officer (or recruit) at the time of the accident
….
The Board also notes that while the
location of the accident was clearly under RCMP control, there were no
factors that made the dormitory materially different from any other ordinary
place. The likelihood of the injury, in the Board’s view, was not
increased or lowered by this particular location.
Accordingly, the Board finds the
Appellant’s RCMP service was not the cause of the injury which led to the
claimed disability. [Underlining added by the Court.]
RELEVANT LEGISLATION
[14]
Section
21(2) of the Pension Act, R.S.C. 1983, c. P-6, sets out the
circumstances under which a disability resulting from an injury sustained
during military or peace time service is pensionable:
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(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;
[Underlining by the Court.]
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(2) En ce qui concerne le service militaire accompli dans la milice
active non permanente ou dans l’armée de réserve pendant la Seconde Guerre
mondiale ou le service militaire en temps de paix :
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 — consécutive ou rattachée directement au
service militaire;
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[15]
The Royal
Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11, provides
in section 32 that a pension shall be granted to an RCMP officer in
accordance with the Pension Act who has suffered a disability where the
injury or aggravation thereof “arose out of, or was directly connected with,
his service in the Force (the RCMP Police Force).”
[16]
The Veterans
Review and Appeal Board Act (S.C. 1995, c. 18) provides:
|
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.
|
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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[17]
Under
this section, the Appeal Board must “liberally construe and interpret” the
pension legislation so that RCMP members and members of the Canadian Department
of National Defence are properly awarded pensions for disability arising from
their service to Canada.
[18]
Section
39 of the Veterans Review and Appeal Board Act provides:
|
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.
|
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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[19]
Under
section 39, the Appeal Board must draw every reasonable inference in favour of
the pension applicant, accept the applicant’s uncontradicted but credible
evidence, and resolve in favour of the pension applicant any doubt, in the
weighing of the evidence, as to whether the applicant has established his case
for a pension.
ISSUES
[20]
There
is one issue before the Court:
1) Whether the Appeal Board
erred in concluding that the applicant’s injury did not arise from or was not
directly connected to his service.
STANDARD OF REVIEW
[21]
This
Court has determined that decisions of the Appeal Board relating to
disability pension claims are generally reviewed on a standard of
reasonableness: Goldsworthy v. Canada (A.G.), 2008 FC 380, 166 A.C.W.S.
(3d) 485, per Snider J. at paras. 10-14; Wannamaker v. Canada (A.G.) 2007
FCA 126, 361 N.R. 266, per Sharlow J.A. at paras. 12-13. In Wannamaker,
the Federal Court of Appeal found at para. 12 that the Board’s determination
as to whether an applicant’s injury arose out of service is a question of mixed
fact and law subject to a reasonableness standard of review. The Federal Court
of Appeal also found that whether the Board assessed the evidence in accordance
with the Veterans Review and Appeal Board Act is a question of mixed
fact and law and should be reviewed on a reasonableness standard.
[22]
In
determining whether the Officer’s findings were reasonable, the Court will
consider "the existence
of justification, transparency and intelligibility within the decision-making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.” (Dunsmuir v.
New
Brunswick, 2008 SCC 9,
372 N.R. 1
at para.47).
Issue: Whether the Appeal Board erred
in finding that the applicant’s injury did not arise out of, nor was it related
to, his RCMP service
[23]
The
Court has concluded that the Appeal Board decision must be set aside and sent
back to another panel of the Appeal Board for redetermination. The three
reasons for this conclusion are:
- The Board did
not provide a sufficient analysis of the lack of causal connection between
the injury to the toe and the applicant’s nosebleed, which did arise from
the applicant’s RCMP service;
- There were alleged
factors which made the RCMP dormitory materially different from the
ordinary place where the applicant would sleep and that the Appeal Board’s
decision did not discuss these factors; and
- The Appeal
Board’s decision may not have complied with its statutory obligation to
resolve in favour of the applicant any doubt in the weighing of the
evidence.
1. The Board
did not provide sufficient analysis of the lack of causal connection between
the injury to the toe and the applicant’s nosebleed, which did arise from the
applicant’s RCMP service
[24]
The Board
stated at page 4 of its decision that:
“the activity he was
engaged in was rushing to the bathroom to attend to a nosebleed”. The Board
implicitly accepted that this nosebleed was directly related to the injury
which the applicant suffered earlier in the day during the “ground fighting”
training exercise. The Board’s conclusion at page 4 that “the Board finds the
activity in which the applicant was engaged (i.e. rushing to the bathroom to
attend to a nosebleed)… was not connected to RCMP service” was not reasonably
open to the Board without an analysis of the causal connection, or lack
thereof, between the injury (to the toe) and the applicant’s RCMP service, i.e.
the nosebleed which arose from the applicant’s “ground fighting” training
exercise earlier in the day.
It was reasonably open to the Board to find that
the stubbing of the toe is too remote from the nosebleed, i.e. the nosebleed
did not cause the stubbing of the toe. The stubbing was caused by
Mr. Murray’s failure to take adequate care in
going to the washroom. However, the Board did not provide sufficient reasons to
explain why it did not consider there was a causal connection.
2. There
were alleged factors which made the RCMP dormitory materially different from
the ordinary place where the applicant would sleep and that the Appeal Board’s
decision did not discuss these factors
[25]
The
Court finds that the Board’s conclusion at page 6 in its decision that: “…
while the location of the accident was clearly under RCMP control, there
were no factors that made the dormitory materially different from any ordinary
place. The likelihood of the injury, in the Board’s view, was not increased or
lowered by this particular location.” This conclusion does not analyze a number
of alleged material facts in the evidence which the duty to provide sufficient
reasons require. The alleged factors are:
(a) There were
approximately 60 beds and 60 RCMP recruits in the dormitory at the time the
nosebleed re-occurred and the applicant had to rush to the bathroom to attend
to the nosebleed;
(b) In the dormitory,
the applicant was not allowed to turn on any lights. Accordingly, the applicant
was rushing to the bathroom in total darkness;
(c) The applicant
testified that he had to run between two rows of 60 bunk beds and had to move a
distance of about 60 feet to the bathroom in the dark; and
(d) The applicant was
in a constant state of anxiety and fear that he would soil, with the blood from
his nose, either his bedding or the floor in the dormitory. Part of the RCMP
recruit training was an insistence that the dormitory area be kept spotlessly
clean.
It was reasonably open to the Board to find that
the stubbing of the toe was not caused by the conditions in the dormitory. Once
again, the Board did not provide sufficient reasons to explain why the factors
raised by Mr. Murray did not substantially contribute to the injury.
3. The
Appeal Board’s decision may not have complied with its statutory obligation to
resolve in favour of the applicant any doubt in the weighing of the evidence.
[26]
In
the Board’s decision at page 6, the Board held:
...
The Board bears in mind that the governing legislation must be construed
broadly, and that any reasonable inference should be drawn from the
evidence in favour of claimants.
[27]
In
the case at bar, there is evidence which allegedly could be construed both
ways. The Board’s decision may not be reasonable in that it did not liberally
construe and interpret the legislation providing for compensation for injury
arising out of or directly connected to the applicant’s service in the RCMP,
and may not have drawn from the circumstances of the case and the evidence
every reasonable inference in favour of the applicant or resolve in favour of
the applicant any doubt in the weighing of the evidence as to whether the
applicant has established a case. These are statutory obligations of the Board
under sections 3 and 39 of the Veterans Review and Appeal Board Act.
[28]
If
the Board had provided sufficient reasons for the first two issues, then the
Court would not have any question as to whether Mr. Murray was accorded the
benefit of the doubt as required by the legislation. Without sufficient
reasons, the Court is left in doubt with respect to this issue.
CONCLUSION
[29]
After
a new hearing before a different panel of the Board, the Board is at liberty to
find that the stubbing of the toe did not arise or is not connected with Mr.
Murray’s service with the RCMP. It is also reasonably open to the Board to find
that the injury did. That is not a decision for the Court. The function of the
Court is to review the decision to ensure that it is in accordance with the
law. For the above reasons, the Court finds that this decision has failed with
respect to three issues and accordingly the decision must be set aside.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review of the decision of the Veterans Review and
Appeal Board dated October 22, 2008 is set aside and this matter is referred
back to another panel of the Veterans Review and Appeal Board for a new hearing
and redetermination.
“Michael
A. Kelen”
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