Docket: T-1082-14
Citation:
2015 FC 556
Montréal, Quebec, April 29, 2015
PRESENT: The
Honourable Madam Justice St-Louis
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BETWEEN:
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ROBERT SANDERS
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the April 2, 2014 Veterans Review and Appeal Board Canada decision [Review
Board] denying Mr. Sanders’ application for reconsideration of the April 27,
1994 Veterans Appeal Board Canada decision [the 1994 Appeal Board decision] having
upheld the decision to deny him a pension under subsection 21(2) of the Pension
Act, RSC 1985, c P-6 [Pension Act].
I.
Background
[2]
Mr. Robert Sanders joined the Canadian Forces in
May 1981. He was posted in Cold Lake, Alberta, from March 1989 to mid-June 1990
and worked there as an Airframe Technician. He was assigned in the component
shop from August to December 1989.
[3]
In October 1989, Mr. Sanders sought medical
attention with complaints of a sore neck and was admitted to the hospital a few
days later. On examination, some right-sided weakness was observed and he was
diagnosed with cervicalgia. Mr. Sanders sought medical attention again a few
months later, and his condition was investigated over several years.
[4]
After consulting a number of experts, the
diagnosis of dementia was suggested in 1990 and Mr. Sanders was diagnosed with “early dementia with anxiety overlay” in January 1992.
[5]
In September 1991, Mr. Sanders applied for a
pension before the Canadian Pension Commission [the Commission], alleging that
his dementia was related to his overexposure to chemicals during his military
service.
[6]
On November 23, 1992, the Commission denied him
a pension, concluding that his dementia was not pensionable as neither the
condition, nor any aggravation thereof, arose out of, or was directly connected
with his military service in peacetime, pursuant to subsection 21(2) of the Pension
Act, a copy of which is attached in Annex. The Commission could not find
evidence that Mr. Sanders suffered an overexposure to chemicals during the
relevant period of time.
[7]
On August 11, 1993, the Entitlement Board confirmed
the Commission’s decision as it found that there was insufficient evidence “to relate [Mr. Sander’s] exposure to toxic chemicals during
his work as an Airframe Technician in 1989”.
[8]
Mr. Sanders brought the decision before the
Veterans Appeal Board Canada [Appeal Board] who, on April 27, 1994, confirmed
the decision denying the pension. The Appeal Board examined the evidence and
concluded namely that “insufficient” evidence
existed to support the claim that Mr. Sanders’ dementia was attributable to his
service in the regular force in peacetime.
[9]
The Appeal Board also found that “the medical evidence provided no basis whatsoever for a
positive conclusion”, that “a toxic chemical
cause of dementia is, in all probability, speculative at this time in history”,
that there was no “acceptable evidence of exposure”,
and that there was a lack of “convincing evidence”.
[10]
On January 17, 2014, the Review Board received Mr.
Sanders’ application for a reconsideration of the 1994 Appeal Board decision. Mr.
Sanders claimed that the Appeal Board committed an error in law, and he also
submitted new evidence alleged to be sufficiently persuasive as to require the
case to be reconsidered.
[11]
On April 2, 2014, the Review Board denied Mr.
Sanders’ application for reconsideration. It was unable to conclude that an
error of law had been made in this case, it agreed with the Appeal Board that a
lack of credible evidence had been submitted in the matter of exposure, and, as
it did not admit the new evidence, was unable to conclude that the matter
should be reopened for further determination on the merits. This decision is
under review in the present judicial review.
[12]
The Court is sensitive to Mr. Sanders’
situation; however, for the reasons below, this application for judicial review
will be dismissed.
II.
Preliminary issue
[13]
Mr. and Mrs. Sanders have each submitted an
affidavit in support of the present judicial review. In his affidavit, Mr.
Sanders refers to documents not contained in the Certified Tribunal Record
[CTR] and asks the Court to accept them on the basis that they were most
probably before the Review Board, but have not been included in the CTR for
reasons unknown.
[14]
The Court relies on the CTR as evidence of the
documents that were before the decision-maker (McAllister v Canada (Attorney
General), 2013 FC 689 at para 48) and cannot accept Mr. Sanders’
proposition that the CTR is incomplete in the absence of clear explanations and
demonstration. Therefore, Mr. Sanders’ exhibits that were not part of the CTR
and Mrs. Sanders’ affidavit will not be considered in the present judicial
review.
III.
Issue
[15]
As outlined by Mr. Sanders, the Court must
decide if the Review Board properly applied section 39 of the Veterans
Review and Appeal Board Act, SC 1995, c 18 [the Act].
IV.
Standard of review
[16]
The Court agrees with the parties that the issue
is one of mixed fact and law, and thus attracts the reasonableness standard (Quann
v Canada (Attorney General), 2013 FC 460 at para 21).
V.
Submission of the parties
A.
Mr. Robert Sanders
[17]
Mr. Sanders submits that the Review Board
unreasonably upheld the 1994 Appeal Board decision, and that, contrary to
section 39 of the Act, failed to draw the required inferences in Mr. Sanders’
favour, thus denying him the pension to which he is entitled.
[18]
In regards to the facts, Mr. Sanders submits
that he was fit at the time of his assignment in Cold Lake, Alberta, that the
evidence shows he was then exposed to chemicals, and that this exposure caused
his dementia.
[19]
Mr. Sanders submits that the evidence regarding
the causal linkage is uncontradicted as it showed that the origin of his
medical condition is either unknown or linked to exposure to chemicals.
[20]
Mr. Sanders submits that the evidence has been
considered credible, as none of the decision-makers determined otherwise, that
there is no mention of the evidence being “not
credible” and that the Review Board thus erred when it qualified it as
such.
[21]
In particular, Mr. Sanders contends that the
Appeal Board had made findings with regards to the sufficiency of the evidence
and to the weight to be given to the various pieces of evidence, but had not made
negative credibility findings with regards to the evidence. Mr. Sanders thus submits
that the Review Board confused the Appeal Board’s discussion of sufficiency
with a finding on credibility, when it stated that “it
agrees with the previous decision regarding the absence of same [credible
evidence] in this case”.
[22]
Therefore, having provided uncontradicted and
credible evidence establishing his dementia, and also establishing that his
dementia was caused by chemical exposure while he was employed as an Airframe Technician,
Mr. Sanders satisfied subsection 39(b) of the Act and engaged subsection 39(c),
thus requiring any doubt to be resolved in his favour.
[23]
As evidence of the chemical exposure, Mr.
Sanders in particular directs our attention to the following documents: the Exposure
profile report by Shawn Mulvenna dated February 20, 1992 [Mulvenna report]; the
Medical opinion by Dr. D.A. Salisbury dated August 31, 1992 [Salisbury medical
opinion]; the Canada Labour Code Part II Inspection report, dated June 1, 1993
[Labour Canada report]; the Medical opinion by Dr. Ted Haines set out in the letter
dated May 7, 1993 [Haines medical opinion]; the Medical opinion by Dr. John
Molot in the letter dated March 31, 1994 [Molot medical opinion]; the DND
Industrial Hygiene Report on an industrial Hygiene Walk‑through Survey –
BAMEO Operations – CFB Cold Lake [DND report]; an article
entitled : “Skin Absorption of Solvents” [Skin Absorption of Solvents
article]; and an extract from a Solvent Neurotoxicity textbook [Solvent
Neurotoxicity textbook]. I will examine these documents in the analysis section.
[24]
Finally, as for remedy, Mr. Sanders submits that
if his application is successful, the decision of the Court can only lead to
one result, a pension award, and that the Court should return the matter to the
Review Board with directions.
B.
The Respondent
[25]
The Respondent points out to Mr. Sanders’
personal medical history of headaches, concussions and head injury, and submit
that his health concerns started as far back as 1980.
[26]
The Respondent submits that the Review Board’s
decision is reasonable in that the Appeal Board made a negative credibility
finding regarding the evidence tendered to establish causation, and that the
evidence was in any event insufficient to prove, on a balance of probabilities,
that Mr. Sanders’ condition arose out of his military service. The Respondent
submits that the Appeal Board had therefore fulfilled its obligation under
subsection 39(c) of the Act.
[27]
The experts’ opinions identifying the origin of
Mr. Sanders’ dementia were not neutral and the Appeal Board’s finding that the
opinions expressed lacked a factual foundation on causation constituted, in
fact, a negative credibility finding.
[28]
The Respondent submits that even if subsection
39(c) of the Act provides that any benefit of the doubt in weighing of the
evidence must be resolved in favour of an applicant, Mr. Sanders still had to
establish a causal link between his claimed condition and military service.
[29]
The Respondent further submits that the Review Board
properly found that the new material tendered by Mr. Sanders was not acceptable
as “new evidence”.
[30]
Finally, the Respondent submits that this Court
does not have jurisdiction to direct the Review Board to grant Mr. Sanders a
pension.
VI.
Analysis
A.
General principles
[31]
In order to be entitled to a pension, Mr.
Sanders had to establish that the requirements set out in paragraph 21(2)(a) of
the Pension Act were met, the text of
which is attached in Annex.
[32]
As per these requirements, Mr. Sanders had to present
evidence to establish on a balance of probabilities, that his condition arose
out of or was directly connected with his military service; he had to establish
causal linkage (Boisvert v Canada (Attorney General), 2009 FC 735 at
para 24; Lunn v Canada (Veterans
Affairs), 2010 FC 1229 at para 67).
[33]
In turn, sections 3 and 39 of the Act, reproduced
in Annex, provide directions on how the evidence must be considered. Under the
terms of these sections, every inference should be drawn and any reasonable
doubt resolved in an applicant’s favour where uncontradicted and credible
evidence is presented, unless a lack of credibility finding is made. However,
these sections do not obviate the requirement for an applicant to demonstrate
the causal linkage between his or her condition and military service.
B.
Causal linkage
[34]
The Review Board confirmed the Appeal’s Board
finding that there was no evidence of exposure, and thus no causal linkage
between Mr. Sanders’ military service and his condition. After a review of the
evidence, I find this conclusion to be reasonable.
[35]
In his memorandum, Mr. Sanders pointed out to some
medical evidence in support to his submission that causation has been
established. It is worthy to outline the relevant excerpts of the medical
reports he relies on to establish causation :
1. Mulvenna report
Mr. Sanders worked with a number of chemical products. Of these,
varsol was the most frequently used. Often, if Mr. Sanders was not using the
varsol directly, he was exposed to the vapours from a neighbouring source. This
was the case during aircraft degreasing in the service bays and quite possibly
during all times while in the component shop due to the varsol degreasing tank.
The exposure profile indicates that the two primary routes of entry
into the body in Mr. Sanders case [sic] are inhalation and skin
absorption. Skin absorption may have been particularly significant in for jet
fuel and hydraulic fluid.
2. Salisbury medical opinion
It is plausible that the symptoms experienced by Cpl Sanders could
be caused by such an exposure. The difficulty now exists of establishing
whether they were caused by such an exposure or not.
The symptoms fit
what we know of solvent exposure. So the diagnosis is biologically plausible.
In fact one would have to postulate that Cpl Sanders is unusually
susceptible to these chemicals if one were to accept them as the cause of his
problems.
On balance, while it is possible that Cpl Sanders problems were
caused by a toxic exposure, it is not probable. [Emphasis added]
3. Labour Canada report
Appropriate gloving
for the various types of chemicals, particularly solvents has not been supplied.
The employee education program is not adequate in MSDS/HMDS are not
being used or are not understood sufficiently for employees to protect their
health from chemical exposure.
4. Haines medical opinion
The lack of
significant confounding factors, his very high premorbid function, the lack of
alternative specific diagnoses, and the levelling off of his neuropsychological
status following withdrawal from exposure, all support the work-relatedness of
his condition.
The one area where
the opinions of Dr. Salisbury and myself appear to diverge has to do with
exposure. He states that « the dosage received is minimal […]». My information
differs and it is clear by the accounts I have received that skin and
airborne exposure to solvents was substantial.
In view of the above, I consider that Mr. Sanders’ neurocognitive
deficits are plausibly related to his solvent exposure at work as an
airframe technician.” [Emphasis added]
5. Molot medical opinion
It is my impression, evaluating the history and the information provided
in Mr. Sander’s medical file that Mr. Sanders has indeed suffered
significant central nervous system damage secondary to the chronic and repeated
exposure to volatile organic compounds via the respiratory system as well as
the skin. [Emphasis added]
6. DND report
Cpl Sanders was exposed to a number of chemical products while
employed in Cold Lake. Varsol was the only chemical agent to which there was
potentially a significant exposure, because of the absence of local exhaust
ventilation at the worksites and the inappropriate protective gloves in use. [Emphasis
added]
7. Skin Absorption of Solvents article
The potential for skin absorption is high where hands are immersed
in solvent, where clothes or cloth gloves become soaked or where mist wets the
skin.
8. Solvent Neurotoxicity textbook
Following occupational exposure to solvent mixtures as well as
during abuse, acute neuropsychiatric symptoms are experienced.
Mild impairment of a number of psychological functions indicates
diffuse chronic toxic encephalopathy, which may be stationary if exposure is
stopped at least for a 2- to 3-year period. Cerebral atrophy has been
demonstrated in some of the patients with chronic complaints.
[36]
The assertion contained in the Mulvenna report
that Mr. Sanders was exposed to chemical products is based on telephone
interviews with Mr. Sanders, on a document prepared by Mr. Sanders outlining
his work history while at Cold Lake, on a hand drawn sketch of the component
shop by Mr. Sanders and on material safety data sheets provided by the military.
Mr. Mulvenna specified that his report is based on the information provided by
Mr. Sanders, that the analysis does not include much empirical data and that
the components of varsol, jet fuel and hydraulic fluid are not known. Since
there was a lack of information with regards to the composition of those
chemicals, Mr. Mulvenna expressly stated that more research would be necessary,
and that some conclusions reached were based on assumptions.
[37]
I find the Salisbury medical opinion not to be
in favour of Mr. Sanders as it concluded that it is “not
probable” that his problems were caused by chemical exposure. As for the
Haines medical opinion, Dr. Haines wrote a letter dated March 31, 1992, which
indicated that his opinion was based on the Mulvenna report, itself based
solely on Mr. Sanders’ information. Dr. Haines also pointed out in his May 7,
1993 medical opinion, that his opinion differs from Dr. Salisbury on the level
of exposure to chemical products Mr. Sanders suffered from, and that his opinion
on this point was based on the accounts he received. The Molot medical evidence
also relies on the Mulvenna report with regard to the evidence of exposure.
[38]
The only reports that are fact based are the
Labour Canada report, indicating that appropriate gloving for the various types
of chemicals, particularly solvents had not been supplied and the DND report
concluding that Mr. Sanders had been potentially exposed to varsol. As for the
two articles, while they are helpful in providing information on the damages
that chemical exposure may cause, they cannot establish that there has been in
fact an exposure and that it caused Mr. Sanders’ condition.
[39]
A factual foundation for opinion evidence is
necessary for an expert opinion to have “any weight”
(R v Abbey, [1982] 2 S.C.R. 24 at para 52). In the present case, the
opinion evidence is, for the most part, based on Mr. Sanders’ testimony,
without any other properly admissible evidence to establish its basis. The
situation is similar to the one the Federal Court of Appeal faced when it
stated in Wannamaker v Canada (Attorney General), 2007 CAF 126 [Wannamaker]
at para 31:
[t]he only evidence of injury came from Mr.
Wannamaker himself, either directly or indirectly through the medical opinions
and the Board found his evidence not to be reliable, for the reasons stated
above.
Moreover, even where the evidence was not
only based on Mr. Sanders’ testimony, it remained non conclusive. For instance,
the DND report only referred to a “potentially […]
significant exposure”.
C.
Credibility finding
[40]
The Federal Court of Appeal in Wannamaker
at para 6 gave some instruction as to the definition of credible evidence: “[e]vidence is credible if it is plausible, reliable and
logically capable of proving the fact it is intended to prove”.
[41]
In its analysis of the alleged error of law, the
Review Board cited an excerpt from the 1994 Appeal Board decision, where the Appeal
Board indicated that it “still found no acceptable
evidence which could establish the doubt of a connection between any such
possible exposure and the development of the Appellant’s dementia disease”.
This excerpt illustrates that “not only was the Board
not in doubt, but it was satisfied that there was no proof to support the
appellant's argument that there was a link” between Mr. Sanders’
condition and his military service. The evidence tendered was not sufficient to
raise doubts (Elliot v Canada (Attorney General), 2003 FCA 298 at
paras 40-43 [Elliot]).
[42]
Mr. Sanders argues that the Review Board failed
to give him the benefit of the doubt, and erroneously stated that the evidence
was not credible as the Appeal Board had not arrived at such a finding. Mr.
Sanders takes issue with the following statement of the Review Board :
While the Panel appreciates the comments
regarding burden of proof, it must point out that that doesn’t obviate the need
for credible evidence and, in this case, the Panel agrees with the
previous decision regarding the absence of same in this case. [Emphasis
added]
[43]
The Appeal Board concluded, inter alia,
that “[w]hile this Board is required to resolve any
doubt in the appellant’s favour, pursuant to subsection 10(5) of the Veterans
Appeal Board Act, this Board is not required to yield to the proposition
that speculative opinions constitute evidence sufficient to raise doubt.”
I find that the words used by the Appeal Board when it qualified the evidence
as “speculative” and not “convincing”, as well as the Appeal Board statement
that there was no “acceptable evidence of exposure to
chemical agents” and that the medical evidence provided “no basis whatsoever for a positive conclusion”,
amount to a determination that there was no credible evidence (See Elliott at
para 40).
[44]
Mr. Sanders asserts that “[a]ccepting that the evidence before the Review Board was
credible and that it accepted the evidence as it was required to under
subsection 39(b), an inference as to causation in favour of Mr. Sanders was
reasonable and required under subsection 39(a)”.
[45]
I already found that the Appeal Board’s
qualification of the evidence amounts to a determination that it was not credible.
I would add that sections 3 and 39 of the Act do not result in an automatic
pension award on the basis of injury submissions (Weare v Canada (Attorney
General) (1998), 153 FTR 75 at para 19). As stated in Hall v Canada (Attorney General) (1998), 152 FTR 58 at para 19 :
While the applicant correctly asserts that
uncontradicted evidence by him should be accepted unless a lack of credibility
finding is made, and that every reasonable inference should be drawn and any
reasonable doubt resolved in his favour, he still has the obligation to
demonstrate that the medical difficulty from which he now suffers arose out of
or in connection with his military service; that is, the causal linkage must be
established.
[46]
Even if section 39 requests that the evidence
presented by the veteran be assessed under the “best
light possible”, the Board may still find that the veteran is not
entitled to a pension when he has not proven, on a balance of probabilities,
the facts required to establish entitlement (Wannamaker, at para 5).
[47]
In Bremner v Canada (Attorney General),
2006 FC 96 at para 23, this Court concluded that speculative evidence does not
trigger the application of subsection 39(b) of the Act :
First, paragraph (b) requires the Board to
"accept any uncontradicted evidence" presented by the applicant
"that it considers to be credible in the circumstances". In my view
evidence is not "contradicted" unless there is inconsistent physical
evidence or a conflicting opinion which is properly assessed in accordance with
the requirements of the Act to be clearly more credible. In the present case
there was no such evidence. What the Board had before it was inconsistent
opinions, all of them speculative. [Emphasis added]
[48]
Hence, I find that the Review Board made no
reviewable error. The evidence tendered could not raise a doubt as to causation
and the Review Board decision must be upheld.
VII.
Conclusion
[49]
This application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The application for judicial review is dismissed.
2. Costs are awarded to the Respondent.
“Martine St-Louis”
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