Docket: T-235-15
Citation:
2016 FC 186
Halifax, Nova Scotia, February 11, 2016
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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JAMES ALAN
MACDONALD
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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
I.
INTRODUCTION
[1]
Mr. James Alan MacDonald (the “Applicant”) seeks
judicial review pursuant to section 18.1 of the Federal Courts Act (“the
Act”) of a decision made by the Veterans Review and Appeal Board (the “Board”),
dated January 20, 2015. In that decision, the Board dismissed the Applicant’s
motion to remove certain documents from the Statement of Case and determined
that the Applicant had not shown an entitlement to an additional two years of
pension benefits, on the basis of administrative difficulties, pursuant to
subsection 39(2) of the Pension Act, R.S.C., 1985, c. P-6 (the “Pension
Act”).
[2]
The Applicant is a former member of the Royal
Canadian Mounted Police (the “RCMP”). Pursuant to section 32 of the Royal
Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11 (the
“Royal Canadian Mounted Police Superannuation Act”), as a former member of the
RCMP, the Applicant is entitled to seek a disability pension if the injury or
disease, or the aggravation of the injury or disease, resulting in the
disability arose out of, or was directly connected with, his service in the
RCMP.
[3]
Pursuant to subsection 303(2) of the Federal
Courts Rules, SOR/98-106 (the “Rules”), the Respondent to this application
is the Attorney General of Canada (the “Respondent”).
II.
BACKGROUND
[4]
The following facts are taken from the Certified
Tribunal Record.
[5]
The Applicant joined the RCMP in 1973. He was
initially stationed on Prince Edward Island where he performed general policing
duties.
[6]
From March 1980 on until December 1982, the
Applicant was posted to the RCMP Musical Ride in Ottawa. The Musical Ride is an
equestrian show team that performs for the public.
[7]
While posted with the Musical Ride, the
Applicant sustained several incidents, including back spasms while
cleaning stalls; a travel injury leading to hospitalization and use of a neck
brace; injury to his left knee resulting from kick from a horse; and general
spinal compression resulting from constant horseback riding. He was also thrown
from horses.
[8]
From December 1982 to December 1983 the
Applicant held an administrative position at the RCMP Federal Policing Branch.
[9]
The Applicant continued to experience back and
knee related issues after he completed the posting to the Musical Ride. His
next posting, in 1983, was to the Commercial Crime Section in Toronto when his
health issues included vertigo and chest pains radiating to his left arm.
[10]
In 1993, the Applicant relocated to Nova Scotia
with his family. In 1995, he met with Dr. Wanda MacPhee, a chiropractor, who
advised him that a problem with his spine was causing the chest and arm pain,
and a nerve group in his neck may cause vertigo symptoms.
[11]
The Applicant submitted his application for
benefits to the Department of Veterans Affairs on May 23, 2003. His
application was divided in two by the Department of Veterans Affairs as the
internal computer system, the “CNDS”, would not allow five disabilities to be
claimed on one file.
[12]
On December 18, 2003, a pension officer at
Veterans Affairs Canada wrote to the Applicant advising of receipt of
his application and noting that it had not received any supporting
documentation. It requested current medical information within 60 days of the
date of the letter, advising further that if such information was not received,
his application will be discontinued on February 16, 2004. The pension officer
also advised that if there was no reasonable explanation for delay in
submitting the documentation, the original date of contact may not be
recognized as the date of the application.
[13]
The Applicant submitted a report, dated March
29, 2004, from Dr. Clarke. His Physician’s statement from Dr. McAulay was
received on December 5, 2004. One of the Applicant’s files was withdrawn on
August 24, 2004 and reopened in February 2005.
[14]
The Applicant claimed a disability pension for
Osteoarthritis Cervical Spine, Chronic Biomechanical Cervical Spine
Dysfunction, Biomechanical Thoracic Spine Dysfunction, Biomechanical Lumbar
Spine, Sciatica and Vertiginous Disorder.
[15]
By a decision dated April 18, 2005, the
Department of Veterans Affairs found that none of the Applicant’s
claimed injuries were pensionable under the Royal Canadian Mounted Police
Superannuation Act and the Pension Act.
[16]
The Applicant applied to the Board for an
Entitlement Review in July 2005.
[17]
The Entitlement Review Panel issued the
Entitlement Review decision on January 15, 2009, granting the Applicant
benefits in the full amount for his Chronic Biomechanical Cervical Spine
Dysfunction, Biomechanical Thoracic Spine Dysfunction, and Biomechanical Lumbar
Spine Dysfunction. No entitlements were granted for the Sciatica and
Osteoarthritic Cervical Spine claims.
[18]
The entitlements granted were effective January
15, 2006, three years before the date of the award, pursuant to subsection 39(1)
of the Pension Act.
[19]
By letter dated February 13, 2012, the Applicant
initiated a restricted appeal of the Board’s decision concerning the effective
date of retroactivity granted by the entitlement review panel. The appeal was
taken pursuant to section 25 of the Veterans Review and Appeal Board Act,
S.C. 1995, c. 18 (the “VRAB Act”) and subsection 39(2) of the Pension
Act, which provides for an additional two year retroactivity. In circumstances
where there have been delays or administrative difficulties beyond the control
of the Applicant. In this case, that period is for January 15, 2004 to January
15, 2006.
[20]
In its decision dated June 2, 2014, the Board
found that there was no evidence upon which to grant an additional award.
[21]
The Applicant sought judicial review of that
decision. That proceeding was resolved between the parties and the consent
order, dated September 16, 2014, set aside the decision of June 2, 2014 and
remitted the matter back to the Board for redetermination by a differently
constituted panel.
[22]
The hearing before the new panel took place on
December 4, 2014. The Applicant was represented by counsel. Prior to the hearing,
on November 23, 2014, the Applicant made a motion to exclude 9 documents
from the record. He presented written submissions in support of his motion. At
the hearing, he was advised that the Board would rule on the motion in its
written decision, and not at the time of the hearing.
[23]
In its decision dated January 20, 2015, the
Board dismissed the Applicant’s motion to exclude certain documents and found
that there was no evidence upon which to pay an additional award under
subsection 39(2) of the Pension Act.
[24]
In considering the motion to exclude documents,
the Board noted that the non-adversarial nature of the Board means that the rules
of evidence are relaxed. It commented that it rarely excludes evidence, and
that procedural fairness requires that applicants have the opportunity to
consider and make submissions on any document. The Board found that the Applicant
had all the documents he sought to exclude as of June 2, 2014, and as such, had
sufficient time to know and make arguments on the case against him. It found
that the requirements of procedural fairness had been met.
[25]
In considering the merits of the claim, the
Board observed that the Applicant alleged two delays in the processing of his
claim. The first delay is for the period between May 2003, when the application
was submitted, and April 2005, when the claim was decided. The second delay was
for the period between April 2005 and the Entitlement Review Decision in 2009.
[26]
The Board found that subsection 39(2) of the
Pension Act does not allow for retroactivity for administrative delays; rather,
additional retroactivity is available if there is a delay in securing service
records or other administrative difficulties beyond the control of an
applicant. In respect of the first delay, it observed that the forwarding of an
application requires a completed application, service medical records and a
completed physician’s statement establishing a diagnosis of the condition. The
physician’s statement for the Applicant was not provided until December 2004.
The burden lay with the Applicant to contact his physician to obtain the
necessary supporting evidence and he was aware of this burden. Any difficulty
that arose was not beyond his control.
[27]
In respect of the second delay, the Applicant
had argued that the Bureau Pensions Advocate (the “BPA”) failed to bring his
case forward in a timely manner. He submitted that the slow progression of his
case was due to underfunding of the BPA by the Minister of Veterans Affairs (the
“Minister”).
[28]
The Board found that the Applicant chose to be
represented by the BPA which has limited resources, rather than engaging
private counsel. The Board also noted that the Applicant was engaged in gathering
evidence until just two weeks before the Entitlement Review hearing, and in
these circumstances, there was no merit to his argument that there was
administrative difficulty that delayed the progression of his file.
[29]
The Board found that:
To the extent that
the Appellant is alleging his gathering of evidence was unduly delayed by
advice from BPA, the Panel finds this is a matter beyond its consideration.
Such an allegation is close to one of professional negligence. The Panel has
not been provided with evidence which would support such a conclusion. …
[30]
In the result, the Board upheld the Entitlement
Review Panel decision of January 15, 2009.
[31]
This application for judicial review raises the
following issues:
1.
What is the applicable standard of review?
2.
Did the Board breach procedural fairness by not
ruling on the motion at the hearing?
3.
Did the Board err in its interpretation of
subsection 39(2) of the Pension Act?
4.
Is the Board’s decision unreasonable because it
failed to consider evidence or failed to resolve doubt in favour of the
Applicant?
III.
SUBMISSIONS
A.
The Applicant’s Submissions
[32]
The Applicant argues that his motion before the
Board, to exclude certain documents in the Statement of Case, was made on the
basis that the challenged documents were irrelevant to his appeal on the issue
of retroactive pension eligibility and were prejudicial to him.
[33]
He submits that the refusal of the Board to rule
on the motion at the beginning of the hearing resulted in a breach of his right
to procedural fairness because he did not know whether he needed to make
arguments about the relevance, weight and reliability of those documents.
[34]
The Applicant also argues that the Board erred
in referring to the first Board decision, since that decision had been set
aside by the Federal Court. He submits that the 2014 Statement of Case should
have contained only a copy of the Entitlement Review decision and the
documentary evidence that was before that panel.
[35]
The Applicant challenges the Board’s
interpretation of subsection 39(2) of the Pension Act. He argues that there is
no evidence about service standards at the time his appeal was being processed
and says that the Board apparently assumed that three years is a normal
processing period.
[36]
He submits that the Board erred when it
concluded that eligibility for retroactivity is calculated from the date of an
application has been completed, as opposed to the date when it was first made.
[37]
Finally, the Applicant argues that the Board’s
decision is unreasonable because the Board failed to consider evidence or
resolve doubt in his favour, pursuant to section 39 of the VRAB Act.
[38]
The Applicant submits that the Board failed to
consider evidence about his inability to present medical evidence. He argues that
he exercised due diligence in retrieving information and submitting it.
[39]
The Applicant alleges error by the Board in
failing to draw a reasonable inference in his favour. He claims that his
chronology provided evidence of a failure to process his application in a
timely manner, and of the failure of the Board to advise in that part of his
claim had been withdrawn.
[40]
As well, the Applicant submits that the Board erred
in failing to consider the presumption of administrative difficulties
associated with the handling of his appeal by the BPA. He argues that the Board
failed to consider submissions that the BPA is not operationally independent of
the Board, as independent counsel would be. In this regard, he points to a
seven month delay with the registration of his complaint after it had
been assigned to the BPA.
[41]
Finally, the Applicant argues that the Board erred
in failing to consider that nothing in the application form that he completed
in May/ June 2003 indicated what was required by way of medical evidence, to
substantiate his claim.
B.
Respondent’s Submissions
[42]
The Respondent submits that there was no breach
of procedural fairness resulting from the Board’s decision denying the motion
to exclude documents from the Statement of Case and in reserving its decision
on the motion until it issued its decision.
[43]
Relying on the decision in Baker v. Canada
(Citizenship and Immigration), [1999] 2 S.C.R. 817, the Respondent argues
that the content of the duty of fairness is to be assessed against all the
relevant circumstances. The Applicant was given the opportunity to present the
motion orally and in writing. The Board gave written reasons in denying the
motion, in accordance with section 7 of the Veterans Review and Appeal Board
Regulations, SOR/96-67.
[44]
Further, the Respondent submits that the
Applicant was represented by counsel in his hearing before the Board and
counsel could have made alternate arguments, pending disposition of the motion.
[45]
The Respondent argues that the Board made no
error in its interpretation of subsection 39(2) of the Pension Act. She submits
that the delay contemplated by this provision relates to administrative
difficulties between the date of application and the date a pension is awarded.
It does not contemplate delays that occurred prior completion of an
application, and there must be evidence of a delay in the processing of an
application; see the decision in Cur v. Canada (Minister of Veterans
Affairs) (2003), 236 F.T.R. 188.
[46]
The Respondent submits that the Board reasonably
found that there was no evidence to show that the BPA’s actions contributed to
a delay. The Board said it did not have jurisdiction to consider allegations of
professional negligence.
[47]
In any event, the Respondent argues that
subsection 39(2) is permissive, not mandatory. Even if the Board found that
there was a delay or administrative difficulties, it was not required to make
an additional award.
[48]
In response to the Applicant’s arguments about
Board’s application of section 39 of the VRAB Act, the Respondent submits that
this argument challenges the manner in which the Board weighed the evidence. She
argues that Board weighed the evidence and concluded that the Applicant had
not shown that delays in securing service or other records, or other
administrative difficulties were beyond the control of the Applicant.
[49]
The Respondent further submits that the effect
of section 39 of the VRAB Act is to direct the Board to resolve doubts in favour
of an applicant; however, that does not relieve the Applicant of his onus to
establish his case. The Respondent argues that the Board’s treatment of the
evidence is reasonable and that its decision is within the range of possible
acceptable outcomes.
IV.
DISCUSSION AND DISPOSITION
[50]
The first matter to be addressed in this
application is the applicable standard of review.
[51]
The parties correctly identified the standard of
review.
[52]
Questions of procedural fairness are reviewable
on the standard of correctness; see the decision in Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339 at paragraph 43. The merits of
the decision are reviewable on the standard of reasonableness; see the decision
in Phelan v. Canada (Attorney General) (2014), 446 F.T.R. 91.
[53]
I see no breach of procedural fairness resulting
from the decision of the Board to dismiss the Applicant’s motion for exclusion
of documents from the Statement of Case. The rationale of the duty of fairness
is to allow a party to know the case he or she must meet, and to put forward
evidence and arguments in support. This rationale was discussed by the Supreme
Court of Canada in Baker, supra, at paragraph 22 as follows:
Although the duty
of fairness is flexible and variable, and depends on an appreciation of the
context of the particular statute and the rights affected, it is helpful to
review the criteria that should be used in determining what procedural rights
the duty of fairness requires in a given set of circumstances. I emphasize that
underlying all these factors is the notion that the purpose of the
participatory rights contained within the duty of procedural fairness is to
ensure that administrative decisions are made using a fair and open procedure,
appropriate to the decision being made and its statutory, institutional, and
social context, with an opportunity for those affected by the decision to put
forward their views and evidence fully and have them considered by the
decision-maker.
[54]
In the present case, the Applicant knew the case
he had to meet. The documents that he seeks to exclude were part of his initial
appeal to the Board, they relate to the disabilities for which he seeks
retroactive benefits, and there is no apparent reason for which an exclusion
can be justified.
[55]
I note that among the documents that the Applicant
sought to exclude was the Order of Justice Harrington made on September 16,
2014, in cause number T-1511-14, setting aside the original decision of the
Board dated June 2, 2014 and ordering that the matter be re-determined before a
differently constituted panel.
[56]
The Applicant has not provided a reasonable
basis upon which this Order should be excluded. An Order made in proceedings
instituted in this Court is part of the file and presumptively, part of a
public record, in light of the principle of open courts in Canada.
[57]
The Board committed no breach of procedural
fairness by reserving its decision on the motion on till it delivered its
decision on the merits of the Applicant’s appeal. I agree with the submissions
of the Respondent that the Applicant had the option of presenting alternate
arguments in the hearing before the Board, in anticipation that his motion to
exclude would not succeed. The Applicant had no right to an early determination
of his motion to exclude documents.
[58]
In light of the informal and expeditious nature
of proceedings before the Board, it was entitled to refuse to exclude the
materials. As well, the hearing before the VRAB was a de novo hearing,
and the Board stated in its decision it would not be relying upon the previous
VRAB decision which the Applicant sought to exclude.
[59]
Considering the motion and the arguments made
before the Board, as well as the submissions made by both parties in this
application for judicial review, I am satisfied that there was no breach of
procedural fairness arising from the Board’s disposition of the Applicant’s
motion.
[60]
Did the Board err in its interpretation and
application of subsection 39(2) of the Pension Act?
[61]
Section 39(2) of the Pension Act provides as
follows:
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(2)
Notwithstanding subsection (1), where a pension is awarded for a disability
and the Minister or, in the case of a review or an appeal under the Veterans
Review and Appeal Board Act, the Veterans Review and Appeal Board is of the
opinion that the pension should be awarded from a day earlier than the day
prescribed by subsection (1) by reason of delays in securing service or other
records or other administrative difficulties beyond the control of the
applicant, the Minister or Veterans Review and Appeal Board may make an
additional award to the pensioner in an amount not exceeding an amount equal
to two years pension.
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(2) Malgré le
paragraphe (1), lorsqu’il est d’avis que, en raison soit de retards dans
l’obtention des dossiers militaires ou autres, soit d’autres difficultés
administratives indépendantes de la volonté du demandeur, la pension devrait
être accordée à partir d’une date antérieure, le ministre ou le Tribunal,
dans le cadre d’une demande de révision ou d’un appel prévus par la Loi sur
le Tribunal des anciens combattants (révision et appel), peut accorder au
pensionné une compensation supplémentaire dont le montant ne dépasse pas
celui de deux années de pension.
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[62]
In my opinion, and considering the arguments
made by the parties, the Board did not err in its interpretation of subsection
39(2) of the Pension Act. It interpreted this provision as requiring proof
either of delays in securing records, or administrative difficulties. It found
that the provision requires evidence of something above and beyond the normal
processing of a file.
[63]
The decision in Rivard v. Canada (Attorney
General), 2003 FC 1490, aff’d 2004 FCA 306 at paragraph 16 acknowledges the
discretionary nature of the Board’s decision-making authority. The Board “may”
grant an additional award where it appears from the record that there were
delays or administrative difficulties that arose for circumstances beyond the
control of the applicant. The reference to the “record” can only be a reference
to the evidence that was before the Board.
[64]
The language of subsection 39(2) is permissive
and there is no requirement that an additional award be automatically granted.
The Board’s conclusion, to decline an additional award, it is reasonable, on
the basis of the evidence before it.
[65]
Finally, is the Board’s decision unreasonable
because it failed to consider evidence or failed to resolve doubt in favour of
the Applicant in this regard, the Applicant argues that the Board
misinterpreted section 39 of the VRAB Act.
[66]
Section 39 of the VRAB Act provides as follows:
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39. In all
proceedings under this Act, the Board shall
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39. Le Tribunal
applique, à l’égard du demandeur ou de l’appelant, les règles suivantes en
matière de preuve :
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(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;
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a) il tire des
circonstances et des éléments de preuve qui lui sont présentés les
conclusions les plus favorables possible à celui-ci;
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(b) accept any uncontradicted evidence presented to it by the
applicant or appellant that it considers to be credible in the circumstances;
and
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b) il accepte
tout élément de preuve non contredit que lui présente celui-ci et qui lui
semble vraisemblable en l’occurrence;
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(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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c) il tranche en
sa faveur toute incertitude quant au bien-fondé de la demande.
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[67]
The broad purpose of the VRAB Act is to provide
a means for review of a decision upon the application for a pension. The Board
may review an original decision made by the Minister or his delegate pursuant
to the Pension Act. That right of review is conferred by section 84 of the
Pension Act.
[68]
In Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190 at paragraph 47 the Supreme Court of Canada described the
standard of reasonableness as follows:
… In judicial
review, reasonableness 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.
[69]
In my opinion, having regard to the evidence
before the Board, its decision meets this standard. The Board weighed the
evidence and its assessment of the evidence is entitled to deference. It is not
the role of the Court to reweigh evidence upon an application for judicial
review; see the decision in Khosa, supra at paragraph 61.
[70]
The Applicant carried the burden of proving
there were delays in obtaining service or other records, for example medical
records, or that there were administrative difficulties that were beyond his
control, which would justify an additional award.
[71]
The Applicant did not submit the necessary
evidence for the adjudication of this claim until December 2004 and a decision
was made in April 2005. The Board reasonably concluded that there were no delays
beyond the Applicant’s control.
[72]
Upon consideration of the evidence that was
before the Board, I am not persuaded that there were gaps or “doubts” upon
which the Board could be invited to exercise the benefit conferred by section
39 of the VRAB Act.
[73]
There is no merit in the Applicant’s submissions
about inadequate or inefficient representation by the BPA. The Applicant had a
choice about counsel and could have changed counsel at any time. The fact that
counsel did not pursue the case on a schedule more preferable to the Applicant
does not constitute an administrative delay beyond his control.
[74]
In the result, the application for judicial
review is dismissed, no order as to costs, since the Respondent did not seek
costs in her memorandum.
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