Date: 20130109
Docket: T-537-12
Citation: 2013 FC 15
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, January 9, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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RENÉ BELLEAU
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision of an appeal panel of the Veterans Review and Appeal Board [the appeal
panel] dated November 9, 2011, pursuant to section 32 of the Veteran’s
Review and Appeal Board Act, SC 1995, c 18 [the Act]. In this decision, the
appeal panel refused for a second time to reconsider its decision dated October
16, 2007, in which the applicant, Mr. Belleau, was awarded a full pension
for service during the Second World War, retroactive to January 25, 2006,
the date of his application for the condition of chronic dysthymia. Mr. Belleau
submitted that the effective date should have been March 17, 1989, the
date on which he applied for a pension for a nervous condition (also known as
anxiety neurosis), on the grounds that this condition was equivalent to chronic
dysthymia.
[2]
After carefully considering the record, Mr. Belleau’s
submissions (he was self-represented) and those of counsel for the Attorney General,
I find that this Court’s intervention is unwarranted and that the application
for judicial review should be dismissed.
I. Facts
[3]
The applicant served under the National
Resources Mobilization Act, SC 1940, c 13, from January 9 to
February 12, 1945. He then enrolled in the Canadian Active Service Force
in Montréal on February 13, 1945, and served until April 9, 1946, in
Canada.
[4]
On March 17, 1989, the applicant applied to
the Canadian Pension Commission for a disability pension for the condition of
anxiety neurosis. The application was denied on August 24, 1989, on the
grounds that his anxiety neurosis was unrelated to his military service. This
decision was upheld by an Entitlement Board of the Canadian Pension Commission
on December 5, 1989. On November 22, 1990, the appeal panel found
that the condition of anxiety neurosis did not entitle him to a pension because
no complaint had been filed and anxiety neurosis had not been diagnosed during
the applicant’s Active Force service, and was not diagnosed until the late 1980’s.
[5]
On August 10, 2005, the applicant filed an
application for reconsideration of the appeal panel’s decision dated
November 22, 1990. The applicant filed new evidence establishing chronic
dysthymia related to his military service. On November 1, 2005, the appeal
panel refused to reconsider its decision on the grounds that the new evidence
was irrelevant, since it dealt with dysthymia and not with the condition on
which his original application was based, namely, anxiety neurosis. Citing DSM-IV,
the Diagnostic and Statistical Manual of Mental Disorders, the appeal
panel found that the two conditions were distinct.
[6]
On January 25, 2006, the applicant applied
for a disability pension for the condition of chronic dysthymia. This
application was denied by the Minister on April 26, 2006, principally
because the evidence was insufficient to connect the condition to his military
service. Then, on October 3, 2006, the Veterans Review and Appeal Board
denied the application for a pension related to the diagnosis of chronic
dysthymia on the grounds that the evidence was incomplete and of little
probative value.
[7]
On July 10, 2007, the applicant appealed
the latter decision to the appeal panel. On October 16, 2007, the appeal
panel found in the applicant’s favour and awarded him a full pension on the
basis of the diagnosis of chronic dysthymia, pursuant to subsection 21(1)
of the Pension Act, RSC 1985, c P-6. The entitlement to this
pension was retroactive to January 25, 2006, the date on which he had filed
his application for a pension for chronic dysthymia, in accordance with
section 39 of the Pension Act. On March 22, 2010, the
applicant applied to the appeal panel for reconsideration. He submitted that
his entitlement to a pension had arisen on March 17, 1989, the date of his
initial application on the basis of anxiety neurosis. On August 4, 2010,
the appeal panel rendered a decision in which it refused to reconsider its
decision of October 16, 2007. According to the appeal panel, reconsideration
was unwarranted because the applicant’s new evidence was irrelevant. In order
for the applicant to be entitled to a pension retroactive to the date of his
initial application in 1989, he would have had to establish that the conditions
of dysthymia and anxiety neurosis were the same. According to the appeal panel,
the medical reports did not support such a finding.
[8]
On June 28, 2011, the applicant filed a
second application to the appeal panel for reconsideration. This time, the
applicant filed as new evidence the report of Dr. Gil, a psychiatrist,
dated May 16, 2011; the letter from his counsel to Dr. Gil, dated
March 24, 2011; and his own statement, dated July 15, 2011. Based on
his initial evaluation performed on February 27, 2008, Dr. Gil had diagnosed
mild chronic dysthymia. Based on a second evaluation performed on
November 20, 2009, Dr. Gil had recorded a diagnosis of chronic dysthymia
with progressive generalized anxiety disorder and adjustment disorder, as well
as obsessive-compulsive personality disorder. In his report dated May 16,
2011, Dr. Gil addressed the question of whether there was a difference between
the conditions of anxiety neurosis and dysthymia as follows:
[translation]
With respect to the
nosology, it seems to me that the original 1988 diagnosis, that of anxiety
neurosis, falls, according to the current classification scheme, under
generalized anxiety disorders. It has also been determined that he suffers from
chronic dysthymia, a pathology that is frequently associated with chronic anxiety,
but marked by a slower rate of progression and less severe depression.
To complete my
opinion, and in the absence of further clinical information, I am of the view
that the patient is dealing with comorbid conditions, namely, a generalized
anxiety disorder and a dysthymia, but also a premorbid and constitutional case
of obsessive personality disorder causing him to be particularly rigid and to
lack adaptive flexibility, characteristics that aggravate his symptoms of
dysthymia and anxiety in his personal development.
Applicant’s file,
page 52.
[9]
In a decision dated November 9, 2012, the appeal
panel found that it had erred neither in fact nor in law in its decision of
October 16, 2007. The appeal panel also held that the new evidence filed
by the applicant was irrelevant, since it did not support a finding that the
conditions of chronic dysthymia and anxiety neurosis were the same.
II. Issues
[10]
This application for judicial review essentially
raises two issues:
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Which standard of review applies to decisions of
an appeal panel denying applications for reconsideration?
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Was it open to the appeal panel to conclude that
the applicant had not filed any new evidence that could give rise to
reconsideration?
III. Analysis
A. Applicable
legislation
[11]
Veterans’ disability pensions are paid under the
Pension Act. They are awarded in cases of disability caused by a
service-related injury or disease or an aggravation thereof in respect of
service rendered during World War I, service rendered during World War II,
service in the Korean War, service as a member of the special force and special
duty service. A veteran may also obtain a disability pension in the case of a
disability caused by an injury or disease or the aggravation thereof that arose
out of or is directly connected with military service in respect of service
rendered in the non-permanent active militia or the reserve army during World
War II and in respect of military service in peace time (Pension Act,
subsections 21(1) and (2)).
[12]
An application for an award must be made to the
Minister of Veterans Affairs, who may grant an award or refuse to grant an
award (section 81). An applicant who is dissatisfied with the initial decision
may submit a request for departmental review (section 82) or apply to the
Veterans Review and Appeal Board (section 84), constituted by the Act, for
review.
[13]
The Veterans Review and Appeal Board’s review
mechanism has two steps. The first is a full hearing before a review panel,
normally consisting of two members (section 19 of the Act). An applicant may
make a written submission to the review panel or may appear before it, in
person or by a representative, to present evidence and arguments (section 20).
[14]
An applicant who is dissatisfied with the review
panel’s decision may appeal it to the Appeal Board (section 25). The Board
has full and exclusive jurisdiction to hear, determine and deal with all
appeals of decisions of the review panel. An appeal panel consists of not fewer
than three members and holds hearings so that the applicant may present
evidence and oral arguments. Only documented evidence may be submitted in the
case of an appeal (section 28). An appeal panel may affirm, vary or
reverse the decision being appealed or refer it back for reconsideration,
re-hearing or further investigation (section 29). Decisions of an appeal
panel are final and binding (section 31).
[15]
Pursuant to subsection 32(1) of the Act, an
appeal panel may reconsider an application made by it if new evidence is
presented to it or if the decision contains errors of fact or law:
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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.
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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.
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[16]
In the assessment of whether documents
constitute “new evidence”, a document must meet certain criteria established by
case law and adopted by this Court in MacKay v Canada (Attorney General),
129 FTR 286 at para 26, ACWS (3d) 270:
i.
the evidence should generally not be admitted
if, by due diligence, it could have been adduced at trial provided that this
general principle will not be applied as strictly in a criminal case as in
civil cases: see McMartin v. The Queen, [1965] 1 C.C.C. 142, 46 D.L.R.
(2d) 372, [1964] S.C.R. 484;
ii.
the evidence must be relevant in the sense that
it bears upon a decisive or potentially decisive issue in the trial;
iii.
the evidence must be credible in the sense that
it is reasonably capable of belief, and
iv.
it must be such that if believed it could
reasonably, when taken with the other evidence adduced at trial, be expected to
have affected the result.
[17]
It should be noted that the decision maker must
liberally interpret the Act and the provisions of any other Act of Parliament
in favour of members who have become disabled as a result of their military
service (section 3). Section 2 of the Pension Act is to the
same effect. In section 39 of the Act , this rule of interpretation is
applied to evidence as follows:
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Rules of evidence
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.
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Règles régissant la preuve
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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B. Standard of review
[18]
It is unnecessary to conduct a standard of
review analysis, as the standard has already been determined by case law. This
Court has already established that decisions of an appeal panel denying
applications for reconsideration are subject to the standard of reasonableness.
In a decision rendered last year, my colleague Justice Scott reviewed the
relevant decisions of this Court and summarized them as follows:
11. The applicable
standard of review for decisions by an appeal panel of the Veterans Review and
Appeal Board is reasonableness, as specified by Justice Mosley in Bullock v.
Canada (Attorney General), 2008 FC 1117, at paragraphs 11 to 13:
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.
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.
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.
12. Armstrong v.
Canada (Attorney General), 2010 FC 91, at paragraph 33, restated Justice
Mosley’s standard of review analysis and confirmed the application of
reasonableness to an appeal panel’s refusal to reconsider a decision. More
specifically, this decision involved a refusal to admit new evidence, namely,
letters by a medical expert, as is the case here.
Cossette v Canada
(Attorney General), 2011 FC 416, 388 FTR 181
[19]
Reasonableness, according to the Supreme Court
in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, “is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (paragraph 47).
C. Reasonableness
of the appeal panel’s decision
[20]
As mentioned above, the appeal panel refused to
review its decision of October 16, 2007, on the grounds that the decision
contained no errors of fact or law. The appeal panel held that the new evidence
filed by the applicant was irrelevant, since it did not support a finding that
the conditions of chronic dysthymia and anxiety neurosis were the same.
[21]
The applicant submitted that the appeal panel
had erred by asking itself the wrong question. According to Mr. Belleau,
the issue was not whether the conditions of dysthymia and anxiety neurosis were
identical, but rather whether the appeal panel should have agreed to make the
pension that had been awarded to him in 2007 retroactive to the time of his
initial application in 1989, since Dr. Gil’s diagnosis of
November 20, 2009, included not only chronic dysthymia, but also
generalized anxiety, a condition that, according to current classifications, is
associated with the anxiety neurosis referred to in 1989, as indicated by
Dr. Gil in his report dated May 16, 2011.
[22]
Unfortunately, I cannot accept this argument,
for several reasons. First, the appeal panel cannot be criticized for framing
the issue as it did, given that it was precisely the question that counsel for
the applicant had asked Dr. Gil in his letter dated March 24, 2011. In
that letter, Mr. Duguay wrote:
[translation]
The question we must
ask ourselves is whether, from a medical standpoint, the conditions of anxiety
neurosis and dysthymia are in fact the same conditions or whether they
constitute two distinct conditions?
Board Record, page
149.
[23]
From this perspective, the appeal panel’s
finding that Dr. Gil’s report of May 16, 2011, did not constitute new
evidence because it was not relevant was well founded. A close reading of his
report (the salient points of which are reproduced at paragraph 9 of these
reasons) does not support a finding that the diagnosis of anxiety neurosis and
the diagnosis of chronic dysthymia are equivalent. Even by applying the rules
set out in section 39 of the Act and in drawing the most favourable conclusions
possible for the applicant, I do not see how the appeal panel’s decision could
be characterized as unreasonable. On the contrary, Dr. Gil wrote in his
report of May 16, 2011, that dysthymia and generalized anxiety (or anxiety
neurosis) are frequently associated pathologies, and he clearly distinguishes
them by specifying that Mr. Belleau was [translation] “also”
recognized to be suffering from chronic dysthymia and that he was [translation] “dealing with comorbid
conditions, namely, a generalized anxiety disorder and a dysthymia”. Such
wording clearly suggests that these are distinct pathologies and that,
accordingly, this report cannot be considered relevant for the purpose of
establishing that the two conditions must be assimilated.
[24]
It therefore appears that the two reports by
Dr. Gil, dated November 20, 2009, and May 16, 2011, establish
that Mr. Belleau suffers from two psychological conditions, namely, chronic
dysthymia and a generalized anxiety disorder. The appeal panel clearly could
not rely on what Mr. Belleau called the [translation]
“broad diagnosis” to find that his entitlement to a pension had to be retroactive
to the filing of his initial application in 1989, for two reasons. First, it is
not open to the appeal board to review the decision of October 16, 2007,
and change the effective date of a pension awarded for chronic dysthymia by
relying on the diagnosis of another condition that was not the basis for the
pension awarded in that decision. Moreover, the appeal panel twice (on
November 22, 1990, and November 1, 2005) refused to award
Mr. Belleau a pension for a generalized anxiety disorder (or anxiety neurosis)
and could therefore not revisit these decisions indirectly in the context of an
application for review relating to the effective date of a pension awarded for
another condition.
[25]
For all these reasons, the application for
judicial review brought by Mr. Belleau must be dismissed. Despite the Court’s
sympathy for the difficulties encountered by Mr. Belleau in the aftermath
of the events he experienced in 1945-46, and despite the aplomb with which he
represented himself, he has failed to demonstrate that the appeal panel’s
decision was unreasonable and did not fall within a range of possible,
acceptable outcomes in respect of the facts and law.
JUDGMENT
THIS COURT’S JUDGMENT IS that the
application for judicial review is dismissed with costs.
“Yves de Montigny”
Certified true
translation
Francie Gow, BCL,
LLB
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