Date: 20081121
Docket: T-1178-07
Citation: 2008 FC 1302
Ottawa, Ontario, November 21, 2008
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
JAMES
GRANT
Applicant
and
VETERANS REVIEW AND APPEAL
BOARD OF CANADA,
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
This is a motion by Mr. James Grant (the Applicant), for an order,
pursuant to rule 51 of the Federal Court Rules, to set aside the order of
Prothonotary Richard Morneau, dated October 14, 2008, denying his request to
have the underlying judicial review converted into an action, pursuant to
subsection 18.4(2) of the Federal Courts Act.
[2]
The Applicant also asks for costs of this motion and of the motion
before Prothonotary Morneau as well as any other relief this Court deems just.
II. Facts
[3]
The facts in this matter are accurately summarized by Madam Justice
Heneghan in a decision rendered on December 1, 2006, wherein she allowed the
Applicant’s application for judicial review of the July 14, 2005 decision of
the Veterans Review and Appeal Board (the VRAB) denying pension benefits to the
Applicant. I reproduce below the learned judge’s review of the facts upon which
she rendered her decision with my additions in square brackets:
The Applicant joined the Canadian
Armed Forces on September 27, 1954. He served as a member of the Regular Force
from that date until October 26, 1976. He served as a member of the Reserves
from January 31, 1990 until August 10, 1991 and again, from February 24, 1993
until September 26, 1993.
During his service as a member of
the military, the Applicant served as a radar plotter with the Royal Canadian
Navy and later, as a member of the air crew on the aircraft carrier
“Bonaventure”. In the course of his service, he was exposed to work
environments that were very loud and noisy as a result of the operation of
unpressurized aircraft engines on aircraft carriers, rocket launchers, and
other heavy artillery aboard naval vessels. He was also exposed to a large
amount of small arms fire.
The Applicant was first diagnosed
with hearing loss in an Aircrew Medical Re-Examination dated February 27,
1967.
...
On July 24, 1991, the Applicant
was examined by Dr. L. Terepasky. The report includes the following
information: “hearing loss 2nd to aircraft exposure”.
In 1994 and 1995, the Applicant
sought further medical advice concerning his hearing problems.
In 1997, the Applicant applied
for pension benefits for his hearing loss. In a decision dated June 6, 1997,
the [VRAB] dismissed his application because the evidence did not establish the
existence of an assessable disability, as defined in the Pension Act, at the
time the Applicant was released from the Regular Forces.
On June 17, 2003, the Applicant
underwent audiometric testing by Dr. Michael Fong who prepared a report, dated
October 31, 2003 [and diagnosed the Applicant with Tinnitus]. Dr. Fong
reviewed and summarized his history of prior audiograms and tendered the
opinion that the greatest contribution to his hearing loss was his service with
the Navy.
On January 15, 2004, the
Applicant underwent a further hearing assessment at Audiology Associates. Dr.
Dennis A. Herx prepared a Tinnitus Assessment and concluded that the
Applicant’s hearing loss was consistent with high noise exposure during his
military service.
The Applicant made a further
application for a disability pension based upon hearing loss and tinnitus on
March 9, 2004. On July 30, 2004, the Minister determined that his tinnitus was
not pensionable pursuant to subsection 21(2) of the Pension Act, Regular Force
Service.
The Applicant appealed the
decision of July 30, 2004 pursuant to the Veterans Review and Appeal Board
Act, S.C. 1995, c. 18 (the VRAB Act). On January 18, 2005, an Entitlement
Review Panel of the Appeal Board dismissed his appeal on the ground that his
tinnitus “did not arise out of nor was it directly connected with service in
peace time in the Regular Forces”.
Subsequently, the Applicant
obtained another medical opinion from Dr. Ian. C. MacMillan. [In his report
dated May 9, 2005, Dr. MacMillan concluded that the repeated noise exposure was
the likely cause of his hearing loss and tinnitus.]
...
On June 28, 2005, Dr. Herx wrote
a letter to Area Advocate Aiden Sheridan [expressing his opinion that his
service years most probably were the cause of his hearing loss and tinnitus.]
...
The Applicant appealed the
decision of the Entitlement Review Panel to the Appeal Board of the VRAB, in
accordance with section 25 of the VRAB Act, bringing the medical evidence of
Dr. Fong, Dr. Macmillan and Dr. Herx to the attention of the VRAB.
In its decision dated July 14,
2005, the VRAB dismissed the Applicant’s appeal. Its ruling provided that his
condition of tinnitus “did not arise out of nor was it directly connected with
service in peace time in the Regular Force”, [making reference to subsection
21(2) of the Pension Act.]
...
[4]
As stated above, the Applicant’s application for judicial review of the
July 14, 2005 decision of the VRAB was allowed by Madame Justice Heneghan. In
ordering the matter remitted for reconsideration to another panel, she found
that the Board “committed a reviewable error by rejecting the evidence
submitted by the Applicant without giving any explanation for doing so.”
[5]
On February 28, 2007, the newly constituted panel of the VRAB once again
refused the Applicant’s claim based upon the fact that there was no disability
at the time of the Applicant’s discharge. The board concluded that “the Board
cannot grant pension entitlement for the claimed condition of tinnitus, based
on the medical opinions provided by Dr. Macmillan, Dr. Fong, and Dr. Herx as
these opinions are not consistent with the factual findings during the
Appellant’s Regular Force service in reference to his hearing loss”.
[6]
On June 26, 2007, the Applicant brought an application for judicial
review of the VRAB’s February 28, 2007 decision.
[7]
On June 27, 2008, pursuant to subsection 85(1) of the Pension Act,
the Applicant wrote to the VRAB seeking permission to have the Minister
reconsider the Applicant’s application for hearing loss under the new hearing
loss policy adopted by Veterans Affairs Canada in November of 2007 (the new
Policy). Permission was granted on August 18, 2008.
[8]
On August 21, 2008, a Notice of Motion was filed on behalf of the
Applicant seeking an Order to convert his application for judicial review into
an Action pursuant to subsection 18.4(2) of the Federal Courts Act.
[9]
On September 26, 2008, further to the Applicant’s request for
reconsideration, the Minister, pursuant to paragraph 85(1)(b) of the Pension
Act, granted the Applicant a disability pension for hearing loss under
subsection 21(2) of the Pension Act, retroactive 3 years as per
subsection 39(1) of the Pension Act. This decision was not known to the
Prothonotary prior to the rendering of his decision.
[10]
On October 14, 2008, Prothonotary Richard Morneau issued an order
denying the Applicant’s motion for an order converting his application for
judicial review into an Action.
[11]
On October 24, 2008, the Applicant filed the within appeal of
Prothonotary Morneau’s order.
III. Decision Under Review
[12]
The Prothonotary’s order dismissing the motion reads as follows:
Upon reviewing the motion
material filed by the parties in relation to the motion at bar, this motion is
denied, the whole with costs in the cause. Said conclusion is based on the
reasons provided by the respondents in their written representations filed on
September 2, 2008, and more specifically by reason of paragraphs 13 and 14 of
said representations.
[13]
I reproduce below paragraphs 13 and 14 of the Respondents’ memorandum of
fact and law which is also found at page 13 of its motion record:
13. The Respondents submit that
the most expeditious and cost-effective means of having this matter resolved
would be for the Applicant to await the decision of the Veterans Review and
Appeal Board under the new policy. Should the matter proceed and be heard by
the Board, it will be heard within a matter of months, at no additional cost to
the Applicant. On the other hand, if this matter is converted into an action,
the reconsideration of the Veterans Review and Appeal Board will not proceed
and the action will result in significant and unnecessary expense to the
Applicant. The matter would be unnecessarily delayed by converting the
application for judicial review into an action.
14. The factors which have been
considered in the past in favour of converting an application into an action –
namely, the need for viva voce evidence, avoidance of a multiplicity of
proceedings, facilitating access to justice and avoiding unnecessary cost and
delay – cannot be found in the case at bar. As such, the Respondents
respectfully submit that the Applicant’s motion for conversion must be denied.
IV. Issues
[14]
Should the Court intervene and set aside the Order of the Pronthonotary?
V. Standard of Review
[15]
Justice Décary, in Merck & Co. v. Apotex Inc., 2003 FCA 488
at para 19, clarified the standard, as originally expressed in Canada v. Aqua-gem
Investments Ltd., [1993] 2 F.C. 425, as follows:
Discretionary orders of
prothonotaries ought not be disturbed on appeal to a judge unless:
a) the
questions raised in the motion are vital to the final issue of the case, or
b) the
orders are clearly wrong, in the sense that the exercise of discretion by the
prothonotary was based upon a wrong principle or upon a misapprehension of the
facts.
VI. Analysis
[16]
In my view, the questions raised in the motion before the Prothonotary
are not vital to the final issue of the case. The matter continues by way of
judicial review before the Federal Court. The order is in no way dispositive of
the issues raised in the underlying application and does not prevent the
applicant from bringing an action in damages if and when it is established that
the decision he appeals is invalid. At the hearing of this appeal, counsel for
the Applicant essentially conceded that the impugned order is not vital to the
final issue of the case.
[17]
I now turn to consider the second part of the test: Is the
Prothonotary’s order clearly wrong?
[18]
The jurisprudence of this Court teaches that the following factors may be
considered in deciding whether to convert a judicial review into an action
under subsection 18.4(2) of the Federal Courts Act:
(1) the undesirability of
multiple proceedings;
(2) the desirability of avoiding
unnecessary costs and delays;
(3) whether
the particular issues involved require an assessment of demeanour and
credibility of witnesses; and
(4) the need for the Court to
have a full grasp of all the evidence.
See: Canada (Attorney
General) v. Macinnis, [1994] 2 F.C. 464 at pg. 470; and Drapeau
v. Canada (Minister of National Defence) (1995), 179 N.R. 398;
Del Zotto v. Minister of Natural Resources, [1995] F.C.J. No. 1359
(Lexis).
[19]
The Applicant argues that the Prothonotary failed to provide adequate
reasons for his decision. It is argued that by simply adopting the arguments of
the Respondents, the Prothonotary, failed to examine or weigh any of the
evidence before the Court to determine whether a conversion of the Motion to an
Action was appropriate. Alternatively, the Applicant contends that the
Prothonotary was clearly wrong in finding that it would be more expeditious and
less costly to wait for the outcome of the Applicant’s appeal to the Minister
under the new Policy. Given the history of the numerous administrative
proceedings and time required to have these reviewed by the Court, it is the
Applicant’s position that it would be far more expeditious to have the Court
deal with the matter in the ambit of a trial. Finally, the Applicant argues
that new issues and evidence have arisen given the Minister’s decision on
reconsideration. These issues and evidence were not before the VRAB and are not
before this Court in the underlying application. As a consequence the Applicant
argues the VRAB is no longer in a position to address all of the concerns and
issues being raised by the Applicant, nor is there any evidence that the
Ministerial review would cover all matters at issue in the proposed action.
[20]
On this last point I note that council for the Respondents has, at the
hearing of the appeal, informed the Court that the Respondents were prepared,
in the interest of expediting matters, to consent to the Reconsideration decision
being filed and considered as evidence in the underlying proceeding. The
Applicant indicated his agreement with this approach, in the event the Court
dismissed his appeal.
[21]
For the reasons that follow, I am of the view that the Prothonotary’s order
is not clearly wrong, in the sense that the exercise of his discretion was
based upon a wrong principle or upon a misapprehension of the facts.
[22]
The Applicant has failed to establish that any of he above-noted
factors, are sufficiently compelling, either on their own or collectively, to
justify an order converting the underlying application for judicial review into
an action.
[23]
The Applicant has not demonstrated that the evidence in the application
could not adequately be dealt with by way of affidavit. The credibility of the
medical affiants is not at issue and the Applicant concedes that this evidence
can adequately be tested on cross-examination.
[24]
I am not persuaded by the Applicant’s argument that converting the
application to an action would essentially avoid multiple proceedings and would
avoid unnecessary costs and delays. All of the evidence required to decide the
issue is before the Court, and has been since March of 2008. All the necessary
steps in the application have been completed and the application is ready for a
hearing date to be set. Further, in the particular circumstances of this case,
the Respondents do not object to the record and decision on the reconsideration
being filed with the Court for consideration in the underlying application.
This can only serve to expedite a decision on the merits of all of the issues
that are outstanding between the parties. I am convinced that conversion to an
action in the circumstances would only serve to delay matters further.
Conversion at this stage of the proceeding, in the circumstances, would not
facilitate access to justice or avoid excessive costs and delay.
[25]
This is a case where the Applicant is essentially seeking a full hearing
on the merits by way of an action before this Court, outside the administrative
scheme provided for by Parliament. Such relief can only be granted in
exceptional circumstances where on consideration of the above cited factors,
such an order is warranted. This is not such a case.
[26]
I am satisfied that the Prothonotary turned his mind to the applicable
factors which required consideration. The exercise of his discretion was not based
upon a wrong principle or upon a misapprehension of the facts. In the
circumstances, I am satisfied the Pronthonotary was not clearly wrong in
disposing of the matter as he did.
VII. Conclusion
[27]
For the above reasons I will dismiss the appeal. I will also grant leave
to the Respondents to file and serve, within 20 days from the date of this
Order, an affidavit attaching the September 26, 2008 reconsideration decision
of the Minister, as well as supplementary submissions with respect to the reconsideration,
if any. The Applicant will be given 10 days thereafter to file and serve a
reply.
ORDER
THIS COURT ORDERS that:.
1. The appeal of the decision of Prothonotary Richard Morneau,
dated October 14, 2008, is dismissed.
2. Leave is granted to the Respondents to file and serve within
20 days from the date of this Order, an affidavit attaching the September 26,
2008 reconsideration decision of the Minister, as well as supplementary
submissions with respect to the reconsideration, if any.
3. The
Applicant shall have 10 days thereafter, to file and serve his reply, if any.
“Edmond P. Blanchard”
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