Date: 20081006
Docket: T-1977-07
Citation:
2008 FC 1117
Ottawa, Ontario, October 6, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
BRUCE
BULLOCK
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Bullock is a World War II veteran. He seeks judicial review of a decision of
the Veterans Review and Appeal Board (VRAB) dated September 19, 2007, which
denied his application made under subsection 32(1) of the Veterans Review
and Appeal Board Act, S.C. 1995, c. 18 (the VRAB Act) for reconsideration
of the VRAB Appeal Panel’s decision of January, 2005, denying his claim for a
disability pension.
[2]
Mr.
Bullock was not represented by counsel in these proceedings. At the hearing on
September 15th, 2008 he was accompanied by a friend, Mr. Carl
Reynolds, who holds a Power of Attorney executed by Mr. Bullock to deal with
his personal affairs. Mr. Reynolds is not a lawyer.
[3]
At
the outset of the hearing, I inquired into whether efforts had been made to
engage counsel to ensure that Mr. Bullock was exercising an informed choice to
represent himself. As he is hard of hearing, it was necessary to rely upon Mr.
Reynolds to convey the Court’s questions to Mr. Bullock and to receive his
responses. I determined that efforts had been made to retain counsel without
success and that Mr. Bullock wished to proceed with the hearing. Relying upon
my inherent discretion to grant an exception to Rule 119 of the Federal
Courts Rules, S.O.R./9-106, I allowed a statement to be read by Mr.
Reynolds as to the merits of Mr. Bullock’s application.
Background
[4]
The
applicant enlisted in the Canadian army in August of 1940 and served in Canada from the
date of his enlistment until October of 1942 when he was sent abroad. He served
in the United
Kingdom,
Italy, Holland and Germany
until his return to Canada in September, 1945. He was discharged from the
army on October 24, 1945, and worked as a firefighter until his retirement in
1977.
[5]
Mr.
Bullock alleges that he sustained an injury during his service abroad during
the war causing him to suffer from osteoarthritis of the left knee. In 1979 he submitted
a claim for a disability pension to the Canadian Pension Commission (CPC) under
subsection 12(1) of the Pension Act, R.S.C. 1970, c. P-7. His claim was
denied. Some 25 years later, Mr. Bullock appealed the CPC’s decision to the VRAB
Entitlement Review Panel pursuant to section 18 of the VRAB Act. In a decision
dated July 14, 2004, the VRAB Review Panel upheld the CPC’s initial decision.
[6]
The
applicant sought a further review the following year with the VRAB’s
Entitlement Appeal Panel, which affirmed the Review Panel’s decision in
accordance with paragraph 29(1)(a) of the VRAB Act. Both the VRAB Review Panel
and the VRAB Appeal Panel found there to be a lack of supporting evidence and
concluded that Mr. Bullock’s condition (osteoarthritis of the left knee) is not
attributable to his service in World War II.
[7]
By
letter dated May 28, 2007, Mr. Bullock requested the VRAB to reconsider its
previous decision rendered in 2005, arguing that it had been made on an error
of law. More specifically, the applicant submitted that the VRAB had
contravened section 32 of the Crown Liability and Proceedings Act,
R.S.C. 1985, c. C-50 (CLPA) when it rendered its decisions in 2004 and
subsequently in 2005. He petitioned the VRAB to rescind its earlier decisions
on that basis and to consider his application for a disability pension de
novo. The VRAB denied Mr. Bullock’s request by letter dated September 19,
2007. It is that decision which is the subject of this application for review.
Decision under Review
[8]
In
the September 19, 2007 letter the VRAB acknowledged the applicant’s letter of
May 28, 2007, as “new documentation” within the meaning of section 32 of the VRAB
Act. The VRAB concluded that it had not erred in law because section 32 of the
CLPA does not supersede section 18 of the VRAB Act. As the applicant had not
provided any new and relevant evidence that would affect the outcome of the
VRAB Appeal Panel’s 2005 decision, a review of that decision was not carried
out and Mr. Bullock’s request for reconsideration was denied.
Issues
[9]
The
central issue of this application is whether the VRAB made a reviewable error
when it refused to reconsider its Entitlement Appeal decision dated January 18,
2005. This can be separated into two sub-issues: 1) whether the VRAB erred in
law in finding that section 32 of the CLPA does not supersede section 18 of the
VRAB Act; and 2) whether the VRAB erred by refusing to reconsider Mr. Bullock’s
application based on the evidence before it.
Relevant Legislation
[10]
Subsection
32(1) of the VRAB Act authorizes the VRAB to reconsider a previous decision if
the statutory grounds for reconsideration prescribed thereunder are established.
The provision reads as follows:
Reconsideration of decisions
32. (1) Notwithstanding section 31, an appeal panel
may, on its own motion, reconsider a decision made by it under subsection
29(1) or this section and may either confirm the decision or amend or rescind
the decision if it determines that an error was made with respect to any
finding of fact or the interpretation of any law, or may do so on application
if the person making the application alleges that an error was made with
respect to any finding of fact or the interpretation of any law or if new
evidence is presented to the appeal panel.
|
Nouvel
examen
32. (1) Par
dérogation à l’article 31, le comité d’appel peut, de son propre chef,
réexaminer une décision rendue en vertu du paragraphe 29(1) ou du présent
article et soit la confirmer, soit l’annuler ou la modifier s’il constate que
les conclusions sur les faits ou l’interprétation du droit étaient erronées;
il peut aussi le faire sur demande si l’auteur de la demande allègue que les
conclusions sur les faits ou l’interprétation du droit étaient erronées ou si
de nouveaux éléments de preuve lui sont présentés.
|
Board may exercise powers
(2) The Board may exercise the powers of an appeal panel under
subsection (1) if the members of the appeal panel have ceased to hold office
as members.
|
Cessation
de fonctions
(2) Le Tribunal, dans les cas où les membres du comité
ont cessé d’exercer leur charge, peut exercer les fonctions du comité visées
au paragraphe (1).
|
Other sections applicable
(3) Sections
28 and 31 apply, with such modifications as the circumstances require, with
respect to an application made under subsection (1).
|
Application
d’articles
(3) Les articles 28 et 31 régissent,
avec les adaptations de circonstance, les demandes adressées au Tribunal dans
le cadre du paragraphe (1).
|
Standard of Review
[11]
In
accordance with the recent Supreme Court of Canada decision in Dunsmuir
v. New Brunswick, 2008 SCC 9 (Dunsmuir), where jurisprudence
has already determined in a satisfactory manner the degree of deference to be
accorded to a particular category of question, there is no need to engage in
what is now referred to as a “standard of review analysis”: Macdonald v.
Canada (Attorney General), 2008 FC 796.
[12]
Generally,
decisions of the VRAB Appeal Panel have been reviewed on a standard of patent
unreasonableness or reasonableness, depending on the nature of the question at
issue. In light of Dunsmuir, the standard of patent unreasonableness has
been collapsed and now falls under the broader reasonableness standard: Rioux
v. Canada (Attorney
General),
2008 FC 991.
[13]
My
colleagues Madam Justice Heneghan in Lenzen v. Canada (Attorney General),
2008 FC 520, Mr. Justice Blanchard in Pierre Dugré v. Canada (Attorney
General), 2008 FC 682, and Madam Justice Layden-Stevenson in Rioux v.
Canada (Attorney General), 2008 FC 991, have determined that the applicable
standard of review with respect to the VRAB’s reconsideration decision is that
of reasonableness. Based on that jurisprudence, I am satisfied that there is no
need to conduct a further standard of review analysis.
[14]
As
established in Dunsmuir, reasonableness is a deferential standard
concerned with the existence of justification, transparency and intelligibility
within the decision-making process. The Court’s concern is whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[15]
The
first issue, however, is a question of law that requires an analysis of section
32 of the CLPA and its application on the VRAB. This is an exercise of
statutory interpretation that is not within the VRAB’s particular area of
expertise and therefore should attract a standard of correctness: Trotter
and Reid v. Canada, 2005 FC 434; Canada (Chief
Pensions Advocate) v. Canada (Attorney General), 2006 FC
1317.
Parties’ Positions and
Analysis
Did the VRAB err in law
in finding that section 32 of the CLPA does not supersede section 18 of the
VRAB Act?
[16]
The
applicant submits that the VRAB contravened section 32 of the CLPA, which
provides for a provincial limitation period or a default federal limitation
period of six years, when it entertained his review application in 2004 and
subsequently in 2005. The applicant asserts that the only decision that was
available for the VRAB to make was that he “was out of time” seeing that his
request for review and subsequent appeal were both filed and heard more than
six years after the initial decision of the CPC in 1979.
[17]
The
applicant relies on the Supreme Court of Canada’s decision in Markevich v.
Canada, 2003 SCC 9 (Markevich) in support of his contention
that the VRAB Act is silent with regard to a prescription or a limitation
period, and thus, by default, s. 32 of the CLPA should apply on a residual
basis. Mr. Bullock asserts that the VRAB did not follow the principles
established in Markevich when it rendered its decisions in 2004 and
2005, and thereby committed a reviewable error.
[18]
The
respondent submits that if the Court were to accept the applicant’s argument,
all that would remain on the record is the CPC’s initial decision of 1979 which
denied Mr. Bullock’s claim for a disability pension. Based on his own argument,
the applicant would be barred from seeking any relief because of the time
limitation imposed by section 32 of the CLPA. Essentially, if this application
were successful, the relief granted by the Court would provide no practical
remedy as the applicant would still be without a disability pension and would
be unable to seek further relief because he, too, would be “out of time”.
[19]
The
respondent argues that Mr. Bullock’s matter does not fall within the scope or
purpose of section 32 of the CLPA and his reasons are twofold. First, the
respondent submits that it was the applicant who availed himself of his right
to seek an entitlement to a disability pension and subsequently took advantage
of the absence of any time limitation period to ask for a review and appeal
some 25 years after the initial decision was made. In seeking and obtaining an
entitlement review and appeal, the applicant benefited from the advantages the
scheme provided in the Pension Act and the VRAB Act because there were
no limitation periods for which he had to be mindful.
[20]
The
respondent’s second argument is that the procedural steps taken by the
applicant before the VRAB in seeking a review and subsequent appeal have little
or no connection to a “cause of action”, therefore they do not fall within the
scope or purpose of section 32 of the CLPA which necessarily applies to
“proceedings in respect of a cause of action”.
[21]
Section
18 of the VRAB Act confers on the VRAB full and exclusive jurisdiction to hear,
assess and determine applications for review that may be made to it under the Pension
Act. There is no statutory limitation period for submitting such
applications either under the VRAB Act or under the Pension Act. It is
my view that the absence of a prescribed limitation period is indicative of the
VRAB’s authority to entertain applications at its discretion. To impose a
statutory limitation period on its reviewing power would unduly restrict and
undermine the VRAB’s role and general purpose as an administrative reviewing
body.
[22]
Furthermore,
section 32 of the CLPA has no application to the case at bar since the
procedural steps taken by the applicant with respect to the review and appeal
before the VRAB are administrative in nature and do not amount to a “cause of
action” within the meaning of section 32 of the CLPA. The facts of this case
are clearly distinguishable from those in Markevich. That case dealt
with the issue of whether the federal and/or provincial limitation periods
under section 32 of the CLPA apply to the Crown’s ability to exercise its
statutory powers to collect tax debts.
[23]
I share the respondent’s view that the applicant’s argument is untenable
because it precludes him from obtaining the relief he ultimately seeks: a
disability pension. If the Court were to accept that section 32 of the CLPA supersedes
the VRAB, then Mr. Bullock would have no other means of seeking a further review
of the CPC’s initial decision of 1979 and/or of seeking any other remedy with
respect to his pension disability claim. Although I have respectfully
considered Mr. Bullock’s submissions, I cannot conclude that this argument has
any merit.
Did the VRAB err by
refusing to reconsider the application based on the evidence before it?
[24]
The
applicant has asked the Court to set aside, rescind or quash the VRAB’s
decision of 2005 and to allow him to re-apply for a disability pension using
the same evidence that was tendered to the VRAB in support of his prior
applications.
[25]
The
respondent argues that the applicant’s request to set aside the VRAB’s decision
rendered in 2005 and to consider his application de novo equates to a
collateral attack on a decision that is not under review.
[26]
By
virtue of section 32 of the VRAB Act, the VRAB has the discretionary authority
to reconsider a previous decision if it is satisfied that an error was made
with respect to any finding of fact or to the interpretation of any law, or if
new evidence is presented.
[27]
In
its decision not to re-consider, the VRAB made reference to the applicant’s
letter dated May 28, 2007, as the only piece of new documentation provided in
support of his application. In this letter, the applicant sought the VRAB’s
re-consideration of its prior decisions on the basis of an alleged error of
law, namely the violation of section 32 of the CLPA. As discussed above,
section 32 of the CLPA has no application here. No other evidence was tendered.
[28]
The
applicant has not alleged that an error was made with respect to any finding of
fact and there was no other “new evidence” provided in support of his
application for reconsideration. Accordingly, the applicant failed to meet the
requirements of the first step in the reconsideration application process
provided for under section 32 of the VRAB Act. Having considered the
documentation in the records and the submissions of the applicant and counsel
for the respondent, I find the VRAB’s decision to be reasonable.
[29]
The
applicant has requested the Court to consider his claim for a disability pension
de novo. However, that is not the Court’s role. In a judicial review
application, the Court must determine whether the decision-maker, the VRAB in
this instance, committed a reviewable error. This is not an appeal and the
Court is not entitled to render the decision that ought to have been rendered
in the first place: Figurado v. Canada (Solicitor
General),
2005 FC 346, 138 A.C.W.S. (3d) 146.
[30]
The
respondent did not request costs and none are awarded.
JUDGMENT
IT IS THE JUDGMENT OF THIS
COURT that
the application is dismissed. There is no award as
to costs.
“Richard
G. Mosley”