Docket: T-359-15
Citation:
2016 FC 675
Ottawa, Ontario, June 16, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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HUGH VINCENT
LUNN, CORPORAL RETIRED, CANADIAN ARMED FORCES
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
THE HONOURABLE
PETER MACKAY
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Hugh Vincent Lunn was a member of the Canadian
Armed Forces from 1976 to 1995. On January 21, 2014, the Minister of Veterans
Affairs [Minister] denied Mr. Lunn’s claim for a disability award for
post-traumatic stress disorder [PTSD] and paranoid schizophrenia. The Veterans
Review and Appeal Board [Board] upheld the Minister’s decision, and refused to
establish a panel to review Mr. Lunn’s eligibility for an award. Mr. Lunn, who
is self-represented, seeks judicial review of the Board’s decision.
[2]
For the following reasons, I have concluded that
Mr. Lunn has not yet exhausted the administrative remedies that are available
to him. He may seek reconsideration of his entitlement to an award for his
claimed condition of paranoid schizophrenia based on new evidence or on
compassionate grounds. The application for judicial review is therefore
dismissed on the ground that it is premature.
II.
Background
[3]
Mr. Lunn began his military career in the
Regular Forces in April 1976. Following a brief hiatus, he re-enlisted in
September 1977. Mr. Lunn was diagnosed with paranoid personality disorder in
1984. He was discharged in March 1994 on the ground that his disorder rendered
him unable to fully function as a member of the Canadian Armed Forces.
[1]
In December 1994, Mr. Lunn applied to the
Minister for a pension award under s 21(2) of the Pension Act, RSC,
1985, c P-6 [Pension Act]. Under this provision, members of the armed
forces who served during peace time are entitled to a pension if they suffer
from an injury or disease that “arose out of, or was
directly connected with” their military service.
[2]
On April 1, 1996, the Minister denied Mr. Lunn’s
application on the ground that there was no causal connection between his
condition and his military service. Mr. Lunn appealed the Minister’s decision
to the Board.
[3]
In a decision dated August 7, 1996, the
Entitlement Review Panel of the Board [Review Panel] upheld the Minister’s
denial of Mr. Lunn’s claim. The Review Panel held at page 6:
[E]ven assuming that the Applicant’s
condition has deteriorated during his service, the Panel can find no evidence
whatsoever that would indicate that the Canadian Forces in any fashion, no
matter how small, was responsible for any such aggravation of the claimed
condition which, as submitted by the Advocate at the commencement of the
hearing, does not appear to [have] had its origins in military service as such.
[4]
Mr. Lunn appealed the Panel’s decision to an
Entitlement Appeal Panel [Appeal Panel] of the Board. In a decision dated March
18, 1997, the Appeal Panel agreed that Mr. Lunn’s military service played no
role in the development or aggravation of his paranoid personality disorder.
[5]
In December 2012, Mr. Lunn made an application
to the Minister for a disability award under s 45(1) of the Canadian Forces
Members and Veterans Re-establishment and Compensation Act, SC 2005, c 21
[the Compensation Act], claiming that he suffered from PTSD. In
addition, in November 2013, Mr. Lunn applied for a disability award for
paranoid schizophrenia. His application included a letter from his physician,
Dr. Duncan A. Scott, who expressed the view that Mr. Lunn did not meet the
criteria for a diagnosis of PTSD, but did suffer from paranoid schizophrenia.
Dr. Scott concluded that Mr. Lunn had a genetic vulnerability to a major mental
illness, and offered the following observation:
It appears that the stress of being in the
Armed Forces precipitated the schizophrenia and this developed from sensitivity
issues to vigilant issues to hyper-vigilant issues and eventually into a full
blown psychotic state. He is now in the chronic debilitating phase of this
illness and requires daily monitoring […]
[6]
On January 21, 2014, the Minister rejected Mr.
Lunn’s claim for a disability award. The Minister concluded that the new
application based on paranoid schizophrenia was inseparable from the 1996
application based on paranoid personality disorder:
Pursuant to subsection 85(1) of the Pension
Act, the Minister may not consider an Application for an award that had
already been the subject of a determination by the Board. As the Veterans
Review and Appeal Board has already considered your psychiatric disability, and
has effectively determined that your psychiatric disability did not arise out
of or was not directly connected with your Regular Force service, the
Department does not have jurisdiction to rule on your current [application] for
Paranoid Schizophrenia.
[7]
Mr. Lunn appealed the Minister’s decision to the
Board.
III.
Decision under Review
[8]
In a letter dated January 16, 2015, the Board
affirmed the Minister’s denial of Mr. Lunn’s claim for disability benefits. The
Board found that Mr. Lunn’s medical file did not disclose a diagnosis of PTSD,
and agreed that the condition of paranoid schizophrenia had been previously
adjudicated by the Board in 1997. The Board had the benefit of a medical
opinion obtained on behalf of the Minister which concluded: “[i]t would appear that the signs and symptoms of psychiatric
illness previously ruled on under Paranoid Personality Disorder would be
included under Paranoid Schizophrenia”. The Board concluded as follows:
Following a review of all of the evidence on
file, the Board concludes the paranoid personality disorder condition,
adjudicated in 1997, is substantially the same as the paranoid schizophrenia
condition being claimed. The factual basis of your claim for the schizophrenia
condition is substantially the same as the factual basis for the paranoid
personality disorder.
Therefore, the Board concludes that the
March 1997 Appeal Panel’s conclusions, that there was no evidence of a
relationship between your military activities and the rigours of your military
service and the development of your claimed psychological condition, still
apply [...]
You have the right to seek reconsideration
of the Entitlement Appeal Panel decision dated 18 March 1997, which denied
entitlement for your claimed condition of paranoid personality disorder.
[9]
The Board refused to establish a panel to review
Mr. Lunn’s claim. Relying on s 19(2) of the Veterans Review and Appeal Board
Act, SC 1995, c 18 [Appeal Board Act], the Board concluded that no
reasonable review panel could dispose of the appeal in a manner favourable to
Mr. Lunn.
[10]
Mr. Lunn applied for judicial review of the Board’s
decision on February 17, 2015.
IV.
Issues
[11]
The Attorney General of Canada [Attorney
General] has raised two preliminary issues:
A.
Should Veterans Affairs Canada be removed as a
Respondent?
B.
Is Mr. Lunn’s application for judicial review
premature?
V.
Analysis
A.
Should Veterans Affairs Canada be removed as a
respondent?
[12]
The Attorney General asks that the style of
cause be amended to remove Veterans Affairs Canada as a Respondent. Pursuant to
s 23(1) of the Crown Liability and Proceedings Act, RSC, 1985, c C-50,
proceedings against the Crown may be taken in the name of the Attorney General.
The style of cause is amended accordingly.
B.
Is Mr. Lunn’s application for judicial review
premature?
[13]
A court may decline to hear an application for
judicial review if it is premature. Absent exceptional circumstances, courts
should not interfere with ongoing administrative processes until available,
effective remedies have been exhausted (Halifax (Regional Municipality) v Nova Scotia
(Human Rights Commission), 2012 SCC 10 at para 31; Canada (Border Services Agency) v C.B.
Powell Ltd., 2010 FCA 61 [Powell]).
[14]
In the decision under review, the Board noted
that Mr. Lunn has “the right to seek reconsideration of
the Entitlement Appeal Panel decision dated 18 March 1997, which denied entitlement
for [the] claimed condition of paranoid personality disorder”.
[15]
Neither the Pension Act nor the Appeal
Board Act places any restriction or time limitation on filing an
application for review or reconsideration with the Board. The Board therefore
has jurisdiction to hear an application regardless of when the facts arose or
when the most recent decision was made (Boisvert v Canada (Attorney General),
2009 FC 735 at para 29).
[16]
Subsection 32(1) of the Appeal Board Act
provides that an appeal panel may reconsider a decision, either on its own
motion or on application, based on new evidence. This might include Dr. Scott’s
2013 diagnosis of paranoid schizophrenia, and his opinion that the stress of
being in the Armed Forces “precipitated” Mr.
Lunn’s schizophrenia. This might also include a second letter from Dr. Scott
that Mr. Lunn included in his application for judicial review, which is
addressed to the Bureau of Pension Advocates and dated February 24, 2014. It
does not appear that the second letter was before the Board when it rendered
the decision under review.
[17]
At the hearing of his application for judicial
review, Mr. Lunn presented the Court with a letter from Pierre Leichner, who
states that he practised psychiatry for 34 years prior to 2010. The letter, which
is not dated, addresses the evolution of the Diagnostic and Statistical Manual
of Mental Disorders published by the American Psychiatric Association. Mr.
Leichner offered the opinion that paranoid schizophrenia and paranoid
personality disorder are distinct and separate diagnoses. This could also be
considered by the Board as new evidence.
[18]
In addition, s 34(1) of the Appeal Board Act
provides that a person who has been refused an award under the Pension Act, or
a disability award under the Compensation Act, and who has exhausted all
procedures for review and appeal, may apply to the Board for a compassionate
award.
[19]
The Attorney General does not dispute that Mr.
Lunn may avail himself of ss 32(1) and 34(1) of the Appeal Board Act. I
agree with the Attorney General that an application to the Board for
reconsideration provides Mr. Lunn with a more promising avenue for obtaining
the remedies he seeks than the present application for judicial review.
VI.
Conclusion
[20]
Mr. Lunn’s application for judicial review is premature,
and there are no exceptional circumstances that would justify early recourse to
this Court (Powell at para 33). The application is therefore dismissed.
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