Date:
20070402
Docket: A-194-06
Citation: 2007 FCA 126
CORAM: SHARLOW
J.A.
MALONE
J.A.
RYER
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
DONALD G. WANNAMAKER
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
The
respondent Donald G. Wannamaker, who is now almost 75 years of age, has been
trying since 1989 to be granted a veterans pension. Over the past sixteen years,
his application has been considered in numerous hearings, appeals and
reconsiderations. In 2005, the Veterans Review and Appeal Board rejected his
application. Mr. Wannamaker successfully applied to the Federal Court for
judicial review of that decision. The Federal Court referred his pension application
to a differently constituted panel for further reconsideration: Wannamaker
v. Canada (Attorney General), 2006 FC 400. The Crown
believes the Federal Court was wrong to require a further reconsideration and
appealed the Federal Court decision. For the following reasons, I have
concluded that the Crown is entitled to succeed on this appeal.
Statutory provisions
[2]
Mr.
Wannamaker’s pension application is based on section 21 of the Pension Act,
R.S.C. 1985, c. P-6, which reads in relevant part as follows (my emphasis):
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21. (1) In
respect of service rendered during World War I, service rendered during World
War II other than in the non-permanent active militia or the reserve army,
service in the Korean War, service as a member of the special force, and
special duty service,
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21. (1) Pour le service
accompli pendant la Première Guerre mondiale ou la Seconde Guerre mondiale,
sauf dans la milice active non permanente ou dans l’armée de réserve, le
service accompli pendant la guerre de Corée, le service accompli à titre de
membre du contingent spécial et le service spécial :
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(a) where a member of the forces suffers disability
resulting from an injury or disease or an aggravation thereof that was
attributable to or was incurred during such military service, a pension
shall, on application, be awarded to or in respect of the member in
accordance with the rates for basic and additional pension set out in
Schedule I;
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a) des
pensions sont, sur demande, accordées aux membres des forces ou à leur égard,
conformément aux taux prévus à l’annexe I pour les pensions de base ou
supplémentaires, en cas d’invalidité causée par une blessure ou maladie —
ou son aggravation — survenue au cours du service militaire ou attribuable à
celui-ci;
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[…]
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[…]
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(2) In
respect of military service rendered in the non-permanent active militia or in the reserve army during
World War II and in respect of military service in peace
time,
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(2) En ce qui concerne le service militaire accompli dans
la milice active non permanente ou dans l’armée de réserve pendant la Seconde
Guerre mondiale ou le service militaire en temps de paix :
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(a) where a member of the forces suffers
disability resulting from an injury or disease or an aggravation thereof that
arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect
of the member in accordance with the rates for basic and additional pension
set out in Schedule I;
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a) des pensions sont, sur demande, accordées aux membres
des forces ou à leur égard, conformément aux taux prévus à l’annexe I pour
les pensions de base ou supplémentaires, en cas d’invalidité causée par
une blessure ou maladie — ou son aggravation — consécutive ou rattachée
directement au service militaire;
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[3]
The
Veterans Review and Appeal Board (the Board) is established by the Veterans
Review and Appeal Board Act, S.C. 1995, c. 18. Section 3 of that statute
reads as follows:
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3. The
provisions of this Act and of any other Act of Parliament or of any
regulations made under this or any other Act of Parliament conferring or
imposing jurisdiction, powers, duties or functions on the Board shall be
liberally construed and interpreted to the end that the recognized obligation
of the people and Government of Canada to those who have served their country
so well and to their dependants may be fulfilled.
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3. Les
dispositions de la présente loi et de toute autre loi fédérale, ainsi que de
leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent
des pouvoirs et fonctions doivent s’interpréter de façon large, compte tenu
des obligations que le peuple et le gouvernement du Canada reconnaissent
avoir à l’égard de ceux qui ont si bien servi leur pays et des personnes à
leur charge.
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[4]
The Board’s
role as finder of fact is guided by section 39 of the Veterans Review and
Appeal Board Act, which reads 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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[5]
Section 39 ensures
that the evidence in support of a pension application is considered in the best
light possible. However, section 39 does not relieve the pension applicant of
the burden of proving on a balance of probabilities the facts required to
establish entitlement to a pension: Wood v. Canada (Attorney General)
(2001), 199 F.T.R. 133 (F.C.T.D.), Cundell v. Canada (Attorney General) (2000), 180 F.T.R. 193 (F.C.T.D).
[6]
Nor does section 39 require the Board
to accept all evidence presented by the applicant. The Board is not obliged to
accept evidence presented by the applicant if the Board finds that evidence not
to be credible, even if the evidence is not contradicted, although the Board
may be obliged to explain why it finds evidence not to be credible: MacDonald
v. Canada (Attorney General) (1999), 164 F.T.R. 42 at paragraphs 22 and 29.
Evidence is credible if it is plausible, reliable and logically capable of
proving the fact it is intended to prove.
Mr. Wannamaker’s claim
[7]
Mr.
Wannamaker was a member of the Canadian Military from September 27, 1952 to
June 28, 1970. He served as an aircraft maintenance mechanic in the Royal
Canadian Navy and a clerk in log control in the Royal Canadian Air Force. He
believes that he has lumbar disc disease because of two back injuries he
sustained during his military service. It is undisputed that Mr. Wannamaker is now
disabled by lumbar disc disease.
[8]
Mr.
Wannamaker says that the first injury occurred in 1959, when he fell on ice just as he was
arriving at work at RCAF Downsview. The applicable provision in relation to
that event is paragraph 21(2)(a) of the Pension Act. Mr.
Wannamaker says that the second injury occurred in the Congo in 1961, when he hurt his back trying to move a 400 pound
cabinet. At that time he was engaged in special duty service, which means the
applicable provision in relation to that event is paragraph 21(1)(a) of
the Pension Act.
[9]
It is not disputed
that Mr. Wannamaker fell in 1959, but there is an issue as to whether he
injured his back in that fall. There is also an issue as to whether Mr.
Wannamaker suffered a back injury in 1961 in the Congo.
[10]
If one or both of the
back injuries occurred as Mr. Wannamaker claims they did, there is an issue as
to whether one or both of those injuries caused or contributed to the lumbar
disc disease from which he is now suffering. In addition, there is an issue as
to whether the 1959 fall arose out of or was directly connected to his military
service, as required by paragraph 21(2)(a).
Standard
of review
[11]
In an appeal of a
judgment on judicial review, this Court must determine
whether the judge correctly determined and applied the appropriate standard of
review: Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans),
2006 FCA 31 at paragraph 14.
[12]
It is now established, as the judge in this case
concluded, that the Board’s determination as to whether a particular injury
arose out of military service, a question of mixed fact and law, is to be reviewed
on the standard of reasonableness. It is also established, as the judge in this
case concluded, that a more deferential standard of review, patent
unreasonableness, applies to the Board’s determination as to whether the
required causal connection exists between a particular injury and an
applicant’s disability: Frye v. Canada (Attorney General), 2005 FCA 264 at
paragraph 12, McTague v. Canada (Attorney General), [2000] 1 F.C. 647
(T.D.) at paragraph 48, Matusiuk v. Canada (Attorney General), 2005 FC
198 at paragraph 35.
[13]
This appeal also raises a question as to whether the
Board assessed the evidence in the manner required by section 39 of the Veterans
Review and Appeal Board Act. The judge in this case recognized that issue,
but did not address separately the question of the applicable standard of
review. The proper application of section 39 results in a decision on a question
of mixed fact and law. In most situations involving the Board, a question of
mixed fact and law is reviewed on the standard of reasonableness. I see no
reason to adopt a different standard of review where a question arises as to
whether the Board has properly assessed the credibility of evidence, or whether
the Board has properly given effect to section 39. I conclude that such
decisions should be reviewed on the standard of reasonableness.
[14]
In this case, the judge seems to have reviewed the
Board’s assessment of the evidence on the standard of correctness. This is
implicit in a number of his statements, perhaps most clear in the following
passage at paragraph 25 of his reasons (my emphasis):
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I
agree with the Board’s decision that there exists contradictory evidence
surrounding the cause of the applicant’s injury. However, I disagree with
the Board’s findings of fact regarding the ability of the evidence to
illustrate a causal link between the applicant’s fall on the ice and the
alleged back injury sustained. In my opinion there exists sufficient
evidence to demonstrate that the applicant did have back trouble while in
military service and that this back trouble was documented in such a way as
to illustrate, based on a balance of probabilities, that it was the result of
the applicant’s fall in 1959.
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[15]
I am compelled to conclude that the judge erred in
applying too high a standard of review. For that reason, his decision cannot
stand.
[16]
This Court could return the case to the Federal Court
for reconsideration, or review the Board’s decision de novo. In my view,
given the length of time this process has already taken, it is appropriate to
conduct a de novo review.
[17]
The most important factual determination made by the
Board in this case is that Mr. Wannamaker did not suffer the back injuries he
claims to have suffered in 1959 and 1961. Mr. Wannamaker cannot establish his
entitlement to a pension unless there is a basis on which this Court may
properly intervene on that point. Such an intervention is permissible only if,
in light of section 39, it was unreasonable for the Board to conclude that the
back injuries did not occur.
The evidence
before the Board
[18]
Mr.
Wannamaker’s own evidence before the Board is that on March 20, 1959, he fell
on the ice at Downsview and hurt his ankle and his back. He says he was taken
to the hospital, where the medical personnel were more concerned about his ankle
than his back. They gave him crutches and pain killers, and two days excused
duty. He says that he has suffered back pain since that time for which he was
given pain killers. He did not always seek medical attention for his back pain.
Often he simply treated himself with aspirin.
[19]
There is a
written statement from Mr. Calver, who saw Mr. Wannamaker fall in 1959. Mr. Calver
says that Mr. Wannamaker was taken to the hospital after the fall, and returned
to work several days later on crutches. Mr. Calver does not say that Mr.
Wannamaker injured his back in that fall. Mr. Green, a neighbour of Mr.
Wannamaker during the relevant period, says in a written statement that he
believes Mr. Wannamaker injured his back and leg at Downsview at some time
between 1957 and 1959, and that he recalls Mr. Wannamaker limping.
[20]
According
to a summary of the military medical records, Mr. Wannamaker reported no back
problems during routine medical examinations between 1952 and 1956. In 1957,
Mr. Wannamaker complained of fever and general aching, with low back pain.
Routine examinations in 1958 disclosed no back complaints.
[21]
The record
relating to Mr. Wannamaker’s fall on March 20, 1959 refers only to the ankle
injury. A subsequent medical examination in 1959 says nothing about his back.
[22]
There is a
report of low back strain on September 18, 1959, continuing to September 21 and
improving by September 23, and a September 29, 1959 record relating to a back
x-ray says “no history of trauma”. The x-ray report notes scoliosis in the
lumbar spine and spina bifida of the first sacral segment, with no other
abnormalities noted. There is no evidence of any connection between Mr.
Wannamaker’s medical service and the existence of scoliosis and spina bifida.
[23]
There is a
further report of back pain in April of 1960, again with a notation “no
injury”. In August of 1961, there is a report of pain and stiffness in the neck
and between the shoulder blades. Again, nothing is said about a back injury.
[24]
Mr.
Wannamaker says that in 1961, while serving in the Congo, he hurt his back while moving a log
control kit, a cabinet weighing approximately 400 pounds. Mr. Piuni, who was
stationed with Mr. Wannamaker in the Congo,
submitted a written statement. He confirms that he noticed that Mr. Wannamaker
appeared to be pain and had a hard time moving. He reports that Mr. Wannamaker
told him at that time that he had injured his back moving the cabinet. Another
report, submitted by Mr. Bannister who was also stationed in the Congo at the relevant time, confirms that that
the cabinet was heavy and that Mr. Wannamaker would have been required to move
it himself.
[25]
There are
no medical records relating to the period when Mr. Wannamaker was in the Congo in 1961. Mr. Wannamaker says that there
were no medical facilities there at the time.
[26]
The next
medical records relate to 1966. An x-ray report notes the presence of spina
bifida. Mr. Wannamaker reported low back pain in June of 1966 after a
cholecystectomy which was diagnosed as acute fibromyositis (subsequent evidence
suggests that might have been a misdiagnosis). He reported back pain again in
September of 1967. A medical examination in June of 1970 mentioned the history
of fibromyositis, but says nothing else about back pain. Mr. Wannamaker’s
discharge medical indicates that he had no complaints at that time.
[27]
Mr.
Wannamaker submitted many medical reports in which various qualified medical specialists
expressed the opinion, with varying degrees of certainty, that Mr. Wannamaker’s
lumbar disc disease was caused by the injuries he sustained in 1959 when he
fell, and in 1961 when he moved the heavy cabinet. However, those medical
specialists were not in a position to know whether the injuries occurred or
not, and were essentially taking Mr. Wannamaker at his word.
Discussion
[28]
The Board
considered Mr. Wannamaker’s evidence and the current medical opinions against
the more contemporaneous medical evidence, all of which was analysed in some
detail. The Board concluded that the medical records disclose no back injury
resulting from the 1959 fall, and no back injury suffered in the Congo. The Board found it implausible that Mr.
Wannamaker could have suffered the injuries he claims to have suffered in 1959
and 1961 without the medical records at or around the same time containing some
indication of a back injury.
[29]
It is argued
that the Board failed to apply section 39 of the Veterans Review and Appeal
Board Act. I do not accept that argument. The Board was faced with
contradictory evidence about whether Mr. Wannamaker suffered back injuries in
1959 and 1961 as he claimed. The only direct evidence came from Mr. Wannamaker
himself. The Board noted that Mr. Wannamaker first asserted his claim some 30
years after the injuries were alleged to have occurred. That is a factor that
weakens the reliability of his evidence and therefore its credibility. Mr.
Wannamaker’s evidence is also contradicted by the contemporaneous medical
records. Thus, this is not a situation that engages paragraph 39(b), which
requires the Board to “accept any uncontradicted evidence” presented by the
applicant that the Board considers “credible in the circumstances.” In my view,
it was not unreasonable for the Board to reject Mr. Wannamaker’s evidence.
[30]
The evidence
of Mr. Wannamaker was supported by current medical opinions. However, the Board
found that evidence to be incapable of proving that the injuries occurred,
because they are the opinions of persons who were not in a position to know
whether or not Mr. Wannamaker’s account of his injuries was correct. In my
view, the Board’s reasoning on this point is not unreasonable.
[31]
Nor do I
see this as a case in which the Board was required to give Mr. Wannamaker the
benefit of the doubt, as mandated by paragraph 39(c). The 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.
Conclusion
[32]
For these
reasons I would allow this appeal, set aside the decision of the Federal Court,
and dismiss Mr. Wannamaker’s application for judicial review of the Board’s
third reconsideration decision.
[33]
In the
Crown’s notice of appeal, and in its memorandum of fact and law, the Crown
asked for costs, rather than costs in this Court and the Federal Court.
Normally costs follow the event, but costs will not be awarded unless
requested. Therefore, the Crown is granted its costs of the appeal only.
“K.
Sharlow”
“I
agree
B.
Malone J.A.”
“I
agree
C. Michael Ryer J.A.”
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