Date: 20070504
Docket: T-1358-06
Citation: 2007 FC 492
Ottawa, Ontario, May 4, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
GRAHAM
DUNN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Graham Dunn is a retired member of the Canadian Armed Forces.
He served for twenty years, retiring in 2000. For fifteen years, he was
employed as an aero-engine technician. He then transferred to National Defence
Headquarters, where he spent the remaining five years of his service.
[2]
In 2005, Mr. Dunn applied for a disability pension on the grounds that
he had incurred significant hearing loss as a result of his years fixing
airplane engines. To support his claim, he presented expert evidence suggesting
that he had “severe bilateral high tone sensorineural loss compatible with
noise exposure”.
[3]
The Minister of Veterans Affairs denied Mr. Dunn’s application. Mr. Dunn
appealed, but the Entitlement Review Board affirmed the Minister’s decision. He
appealed again to the Veterans Review and Appeal Board without success. The
Board concluded that the evidence showed that Mr. Dunn’s hearing loss at the
time he was discharged was lower than the established threshold for which a
pension was payable. Mr. Dunn is seeking judicial review of that decision, arguing
that the Board overlooked significant evidence in his favour.
[4]
I agree that the Board failed to consider important evidence. I
will grant this application for judicial review.
I. Issue
[5]
Did the Board fail to consider significant evidence in Mr. Dunn’s
favour?
II. Analysis
(a) The
Legislative Scheme
[6]
Under the Pension Act, R.S.C. 1985, c. P-6 (relevant enactments
are set out in an Annex), persons who served in the military are entitled to a
pension if they are disabled directly as result of their military service (s.
21(2)(a)). A disability is defined as “the loss or lessening of the
power to will and to do any normal mental or physical act” (s. 3). The Act goes
on to state that the amount of a pension must be determined according to the
extent of the disability (s. 35(1)). That assessment must be carried out on the
basis of guidelines established by the Minister (s. 35(2)).
[7]
In keeping with the authority given to him under the Pension Act,
the Minister has established a policy relating to hearing loss. Chapter 9 of
the Table of Disabilities relates to “Ears and Hearing”. It sets out the
thresholds of hearing loss that give rise to a disability pension, and provides
a means of calculating the amount of the pension to which a person will be
entitled based on the degree of hearing loss in each ear. Where the hearing
loss is slight, the amount of the pension is zero. On the other hand, where the
applicant has lost all hearing in both ears, the pension is at the top end of
the scale. For areas in between, the applicant is entitled to be compensated
according to the extent of his or her disability.
(b) The Board’s
decision
[8]
The Board concluded that Mr. Dunn had not proved that his loss of
hearing, as measured at the time of his discharge from the military in 2000,
reached the threshold established in the Minister’s policy on compensable
hearing loss. The Minister’s policy provides that a pension is payable when the
reduction reaches an average of 25 decibels or more over the frequencies of 500,
1000, 2000 and 3000 hertz in either ear, or a reduction of 50 decibels or more
at the 4000 hertz frequency in both ears.
[9]
The Board concluded that the audio tests Mr. Dunn performed in 2000,
when he was discharged from the military, did not meet those thresholds.
Accordingly, the Board affirmed the Minister’s decision to deny Mr. Dunn a
disability pension.
(c) Alleged
deficiencies in the Board’s decision
[10]
Mr. Dunn argues that the Board should have disregarded the results of
the hearing tests he underwent in 2000 when he was discharged from the military
because they are clearly unreliable. He suggests that the Board failed in its
duty to consider the evidence impugning those results, shirked its obligation
to give him the benefit of any doubt, overlooked his contention that his
current degree of hearing impairment has not changed since 2000, and ignored
the other evidence before it showing both a compensable degree of hearing loss
and a direct connection between that loss and his military service.
[11]
Mr. Dunn notes that the Board has a duty to draw “every
reasonable inference in favour of the applicant or appellant”, to “accept any
uncontradicted evidence presented to it by the applicant or appellant that it
considers to be credible in the circumstances, and to resolve in favour of the
applicant or appellant any doubt, in the weighing of evidence” (Veterans
Review and Appeal Board Act, S.C. 1995, c. 18, s. 39). He claims that he
provided the Board uncontradicted evidence that the audiograms performed at the
time of his discharge were unreliable, that subsequent audiograms conducted in
2005 were accurate and showed a compensable degree of hearing loss, that he had
experienced no deterioration in his hearing between 2000 and 2005 (and,
therefore, that one could safely assume that his hearing loss in 2000 fell
within the Department’s policy), and that his hearing loss was a result of
exposure to noise, which he clearly encountered in his previous work as an
aero-engine technician.
[12]
While the Board only referred to one audiogram conducted at the time of
Mr. Dunn’s discharge, there were actually two. (The Board wrongly referred to a
test performed on May 5, 2000, which was the date of Mr. Dunn’s retirement, not
the date of any audiogram). An audiogram was taken on March 16, 2000 and
another one was performed on March 21, 2000. Mr. Dunn gave several reasons why
these tests should not be relied on. First, he noted that the March 21st
test was incomplete. It provides no figures for his left ear at the 3000 or
4000 hertz frequencies, and no result for his right ear at 8000 hertz. Further,
he submits that the March 16th test, while complete, contains
figures that vary considerably from the data that were obtained just five days
later with the same equipment. Such variation, Mr. Dunn suggests, indicates
that the equipment or the examiner, or both, generated faulty results.
[13]
Further, Mr. Dunn suggests that the 2000 audiograms did not conform to
the Department’s own guidelines on Minimum Standards for Information on
Audiograms, published in a 1999 memorandum. That memorandum stipulates that
audiograms should measure hearing at frequencies from 500 to 8000 hertz in both
ears. They should also be performed by a clinical or registered audiologist and
include an assessment by the examiner as to the reliability of the tests. Neither
of the March 2000 tests conform to these standards.
[14]
In my view, the Board was entitled to consider the tests taken in 2000
and assign them whatever weight it felt they deserved. Indeed, the memorandum
cited by Mr. Dunn provides that tests that do not meet the standards set out in
it can still be considered (see also Re Philip Gallant, Entitlement
Review Board, file number 4619540 (P.E.I.)).
[15]
However, the Board also had a duty to consider the other evidence, especially
Mr. Dunn’s more recent audiogram results and the expert opinions that his
hearing loss is a result of exposure to noise. This is not to say that the
Board must accept the inferences that Mr. Dunn urged on it - that his 2005 and
2006 tests reflect the extent of his hearing loss in 2000 and that his disability
arises directly from his military service. But the Board had an obligation at
least to consider the other evidence Mr. Dunn provided, particularly in light
of its statutory duty under s. 39 of the Veterans Review and Appeal
Board Act (see Macdonald v. Canada (Attorney General), [1999]
F.C.J. No. 346 (T.D.) (QL), at para. 22). Here, the Board referred only to one
piece of evidence and, in a single sentence, dismissed Mr. Dunn’s claim. The
bulk of the Board’s two-page decision is devoted to a legal issue that Mr. Dunn
did not even raise. In my view, the Board’s decision simply does not respond to
the evidence before it. I must, therefore, allow this application for judicial
review, with costs, and order a new hearing before a different panel of the
Board.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1.
The
application for judicial review is allowed with costs;
2.
A
new hearing is ordered before a different panel of the Board.
“James
W. O’Reilly”
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