Date: 20030704
Docket: A-590-02
Citation: 2003 FCA 298
CORAM: DÉCARY J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
DANIEL WILLIAM ELLIOT
Appellant
and
ATTORNEY GENERAL FOR CANADA
FOR
VETERANS REVIEW AND APPEAL BOARD
Respondent
Heard at Edmonton, Alberta, on May 26, 2003
Judgment delivered at Ottawa, Ontario, on July 4, 2003
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: DÉCARY J.A.
PELLETIER J.A.
Date: 20030704
Docket: A-590-02
Citation: 2003 FCA 298
CORAM: DÉCARY J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
DANIEL WILLIAM ELLIOT
Appellant
and
ATTORNEY GENERAL FOR CANADA
FOR
VETERANS REVIEW AND APPEAL BOARD
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] This is an appeal from a decision of Blanchard J., dated September 13, 2002, which dismissed the appellant's judicial review application of a decision of the Veterans Review and Appeal Board (the "Board"). In dismissing the judicial review application, the learned Judge held that the Board had made no reviewable error in denying the appellant a pension under the Pension Act, R.S.C. 1985, ch. P-6 (the "Act").
[2] The Board, in concluding as it did, found that the appellant's medical disability of irritable bowel syndrome ("IBS") did not arise out of, nor was it directly connected with his military service in peacetime, pursuant to subsection 21(2) of the Act.
FACTUAL BACKGROUND
[3] A brief summary of the facts is necessary to place this appeal in its proper context. The appellant was a member of the Canadian Armed Forces (the "CAF") from November 1987 to the end of 1993. From September 1989 to February 1990, he studied at the CAF School of Aerospace Technology and Engineering located at Canadian Forces Base Borden ("CFB Borden"). He therefore lived in military quarters provided by the CAF and regularly took his meals in the mess hall at CFB Borden.
[4] On November 28, 1989, the appellant had lunch in the mess hall and a few hours later, he reported to the medical inspection room, complaining of diarrhea. Early in the new year, the appellant again complained of bowel problems which he attributed to his November 28, 1989 lunch. Within two years, the applicant was diagnosed with IBS, which he claims results from the meal taken at CFB Borden on November 28, 1989.
[5] In August 1997, the appellant made a claim for military disability and pension entitlement for IBS and, on May 11, 1998, the Minister of Veterans Affairs denied his claim. In the Minister's view, the appellant's disability did not result from a disease or an aggravation thereof that arose out of or was directly connected with military service in peacetime.
[6] On November 4, 1998, an Entitlement Review Panel denied the appellant entitlement to a pension. The reasons and conclusion of the Review Panel appear at page 3 of their decision, and read as follows:
The Board accepts that the Applicant was diagnosed with the condition during his Military Service. However, in order for the Board to accept that the disease arose out of, or was aggravated by, the exigencies of Military service pursuant to paragraphs 21(3)(e) and (f) of the Pension Act, the Applicant would have to present evidence that there was a higher incidence level of the disease than in his case alone, in the confined area.
The Board therefore rules to affirm the Minister's Decision dated 11 May 1998.
In arriving at this decision, this Board has carefully reviewed all the evidence, medical records and the submissions presented by the Advocate, and has complied fully with the statutory obligation to resolve any doubt in favour of the Applicant or Appellant as contained in sections 3 and 39 of the Veterans Review and Appeal Board Act.
[7] The appellant appealed the Entitlement Review Panel's decision to an Appeal Panel of the Board which, on May 26, 1999, confirmed the decision on the ground that the appellant's disability did not arise out of, nor was it directly connected with military service in peace time.
[8] In January 2000, the appellant sought reconsideration of the Appeal Panel's decision and adduced new evidence. As part of his new evidence was a letter from Dr. Alan Thomson dated January 13, 2000. On April 25, 2000, the Appeal Panel refused to reconsider its decision on the ground that the new evidence did not constitute reasonably persuasive evidence that as a result of his November 28, 1989 lunch, the appellant suffered an infection caused by contaminated food, which then caused the onset of IBS.
[9] Before reaching its ultimate conclusion, the Appeal Panel carefully reviewed the evidence before it and opined that three issues had to be addressed in order to resolve the matter. I will briefly set out the three issues and the Appeal Panel's reasoning in regard thereto.
[10] The first issue, according to the Appeal Panel, was whether or not the appellant's IBS constituted a permanent disability. It reviewed the medical evidence, including Dr. Thomson's opinion, and concluded that this evidence failed to disclose the existence of a disability.
[11] The Appeal Panel then turned to the second issue, i.e. whether there was a relationship between the appellant's claimed condition of IBS and his military service. It indicated that the appellant had to submit medical evidence of a sufficient probative value so as to raise a doubt that his condition was caused by the meal taken at CFB Borden in November 1989, and that he also had to adduce evidence to show that his lunch "could reasonably be considered as being related to military service within the meaning of the provisions of subsection 21(2) of the Pension Act".
[12] The Appeal Panel carefully reviewed Dr. Thomson's opinion and concluded that his opinion was not sufficient to raise a doubt as to the existence of a causal link between the mess hall lunch and the onset of the appellant's IBS. In arriving at this conclusion, the Board emphasized the fact that tests performed following the mess hall lunch incident did not confirm the existence of an enteric[i] infection. The Appeal Panel also emphasized the fact that Dr. Thomson was of the view that the cause of IBS was unknown and that he could not say whether the mess hall lunch had caused the appellant's IBS.
[13] The Appeal Panel also carefully examined the medical report of Dr. Steven E. Bunn, dated October 11, 1998, in which he gives the opinion that the appellant's diarrhea of November 1989 could have precipitated or aggravated his IBS. In the Appeal Panel's opinion, Dr. Bunn's report could not be given much weight by reason of its general nature and its failure to provide any explanation to support the opinion.
[14] The Board then turned its attention to the third issue, i.e. whether there was a relationship between the mess hall lunch of 1989 and the appellant's military service, in light of subsection 21(2) of the Act which expressly requires that a disability arise out of or be directly connected with military service in order to be pensionable. At pages 5, 6 and 7 of its Reasons, the Appeal Panel disposes of this issue as follows:
It is well established that the compensation scheme contemplated under subsection 21(2) of the Pension Act is based on the Workers Compensation model which does not provide the 24 hour coverage that is found in subsection 21(1) of the Pension Act.
[...]
This Board has decided before that the provisions of subsection 21(3) do not have the effect of providing the protection offered by the insurance principle under subsection 21(1) of the Pension Act. The provisions of subsection 21(3) were intended to be an aide in determining service connection and not an exception to the principles set out in subsection 21(2) of the Pension Act.
The provisions of paragraph 21(3(f) are intended to apply to activities which are in furtherance of military duties or obligations. In order [sic] words, the member must demonstrate that he or she suffered a disability in the course of these activities. The activities are meant to be military activities carried out in the context of military undertakings.
While the Board has decided before that attendance at Mess dinner could fall within the purview of Paragraph 21(3)(f) of the Pension Act, there must be evidence that the attendance was part of "established military custom."
It was also held that it is necessary to differentiate between actions taken as a result of established military custom or practice, and those undertaken voluntarily in a service context.
In the absence of any information regarding the circumstances of the Mess lunch of 1989, or any evidence indicating an element of military compulsion or obligation at this occasion, this Board is unable to determine whether or not the Mess lunch falls under the provisions of subsection 21(2) or even paragraph 21(3)(f) of the Pension Act.
The Board is also of the view that the provisions of paragraph 21(3)(e) of the Pension Act cannot apply to the case at hand since there is no medical evidence that irritable bowel syndrome was a prevalent disease at the time and place the Appellant was serving. The Board also notes that this provisions has been usually invoked in support of claims for condition such as to [sic] poliomyelitis, tuberculosis or hepatitis, and never in support of claim for irritable bowel syndrome.
[15] As a result of the foregoing, the Appeal Panel noted the absence of new relevant evidence so as to allow it to reconsider its earlier decision. I hereby reproduce the Board's conclusion, found at pages 7 and 8 of its Reasons:
In conclusion, the Board finds that the letter of 18 January 2000 from the Gastroenterologist, Dr. A.B.R. Thomson, does not qualify as new evidence that would permit the Board to proceed to a reconsideration of the case. In considering whether or not the correspondence from Dr. Thomson qualifies as new evidence, the Board has once again carefully reviewed the entire file, including the background information provided by the claimant on irritable bowel syndrome and related conditions, the letter from Mr. Mann, and the Medical Records that pertain to the claimant's illness beginning in 1989 and continuing until he began his pension claim.
Upon reviewing all of the evidence and examining carefully Dr. Thomson's Report, always keeping in mind the rules of evidence set out in section 39 of the Veterans Review and Appeal Board Act, the Board is still left with the opinion that the Report fails to provide any additional information to establish any of the key facts that would enable the Board to grant pension entitlement. In fact the letter, if anything, reinforces the Board's view, expressed in its prior decision, that there is no reasonably persuasive evidence that the claimant suffered an infection which was caused by eating contaminated food at CFB Borden, which then caused the onset of the permanent disability from irritable bowel syndrome.
Given the cautious tone of Dr. Thomson's Report and viewing it within the context of the other documentary medical evidence, the Board believes that the letter, although it mentions the possibility of the claimed condition being related to the CFB Borden dining facilities, is speculative and does not contain any additional information or insights that would permit the Board to proceed to a re-hearing.
[16] In January 2001, the appellant again asked the Appeal Panel to reconsider and, on March 5, 2001, the Appeal Panel held that it would not reconsider its decision since it had not been shown that its prior decision was in error. The substance of the decision appears at pages 2 and 3, and reads as follows:
You contend the Queens Regulations and Orders provide an "expectation" that partaking of meals at the mess hall should be considered a service activity. In a thorough review fo the Queens Regulations and Orders, the Board can find no reference that the Appellant was required by military authority to eat at the mess hall. The Appellant was free to eat at whatever venue he chose; and, further he would not be disciplined for his choice. This, therefore, would not fulfill the requirements as set out in paragraph 21(3) which states as follows: For the purposes of subsection (2), an injury or disease, or the aggravation or an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of (f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or the injury or aggravation thereof would have resulted in disciplinary action against the member.
You also content the Board did not apply the provisions of subsections 39 and 3 of the Veterans Review and Appeal Board Act in dismissing the medical opinions provided, however, the Board stated it applied the appropriate sections of the Act at the Entitlement Appeal hearing dated 26 May 1999; the oral screening of 25 April 2000 and reiterates that it always keeps in mind the rules of evidence as set out in subsections 39 and 3 of the Veterans Review and Appeal Board Act. However, in this case, doubt has not been raised and it is only when such doubt is raised that it must be resolved in favour of the Appellant. Further, in finding the medical opinions speculative, the Board did in fact make a credibility finding as it did not find the medical opinions provided medical information of significant value and, therefore, could not by themselves be the basis for a pension award. In fact, the decision in this case, is for the tribunal to make based on its assessment of all the evidence taken as a whole and not merely on conjectural medical opinions.
[17] The appellant then sought judicial review of the Board's decision and, on September 13, 2002, Blanchard J. dismissed his application. Hence, the present appeal.
STATUTORY PROVISIONS
[18] The relevant statutory provisions are sections 2 and subsections 21(1), (2) and (3) of the Act, as well as sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c-18 (the "VRAB Act"). These provisions read as follows:
| 2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
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 as a member of the special force, service in the Korean War, and service in a special duty area as a member of the Canadian Forces,
(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;
(b) where a member of the forces dies as a result of an injury or disease or an aggravation thereof that was attributable to or was incurred during such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;
(c) no deduction shall be made from the degree of actual disability of a member of the forces who has rendered service in a theatre of actual war, service in the Korean War or service in a special duty area on account of a disability or disabling condition that existed in the member before the member's period of service in World War I or World War II, service in the Korean War or service in a special duty area, as the case may be, except
(i) to the extent that the member is receiving a pension for that disability or disabling condition, or
(ii) to the extent that that disability or disabling condition was obvious or was recorded on medical examination prior to enlistment;
(d) an applicant shall not be denied a pension in respect of disability resulting from injury or disease or aggravation thereof incurred during military service or in respect of the death of a member of the forces resulting from that injury or disease or the aggravation thereof solely on the grounds that no substantial disability or disabling condition is considered to have existed at the time of discharge of that member;
(e) where a member of the forces who has seen service during World War I or World War II is, on retirement or discharge from that service, passed directly to the Department for treatment, a pension shall be paid to or in respect of the member for disability or death incurred by the member during treatment;
(f) no pension shall be paid for disability or death incurred by a member of the forces,
(i) while on leave of absence without pay,
(ii) during a period of absence without leave for which the pay of the member was stopped, or
(iii) when the member of the forces has, during leave of absence with pay, undertaken an occupation that is unconnected with military service,
unless the disability or death was attributable to that military service;
(g) where
(i) a pension for disability has been awarded to a member of the forces in respect of service in a theatre of actual war, service in the Korean War or service in a special duty area, and
(ii) the member's degree of actual disability in respect of any of that service subsequently changes,
the pension shall, regardless of the cause of the change, be increased, decreased or discontinued, as the case requires, to reflect the new degree of actual disability in respect of that service, except that, if a member is receiving a pension in respect of more than one type of service referred to in subparagraph (i), the total pension payable by virtue of this subsection may not exceed the amount of pension for the total actual disability arising from all the service referred to in that subparagraph;
(h) where a member of the forces is in receipt of an additional pension under paragraph (a), subsection (5) or section 36 in respect of a spouse or common-law partner who is living with the member and the spouse or common-law partner dies, except where an award is payable under subsection 34(8), the additional pension in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if an additional pension in respect of another spouse or common-law partner is awarded to the member commencing during that period, until the date that it so commences; and
(i) where, in respect of a survivor who was living with the member of the forces at the time of the member's death,
(i) the pension payable under paragraph (b)
is less than
(ii) the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member under paragraph (a), subsection (5) or section 36 at the time of the member's death,
a pension equal to the amount described in subparagraph (ii) shall be paid to the survivor in lieu of the pension payable under paragraph (b) for a period of one year commencing on the effective date of award as provided in section 56 (except that the words "from the day following the date of death" in subparagraph 56(1)(a)(i) shall be read as "from the first day of the month following the month of the member's death"), and thereafter a pension shall be paid to the survivor in accordance with the rates set out in Schedule II.
(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,
(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;
(3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of
(a) any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority;
(b) any activity incidental to or directly connected with an activity described in paragraph (a), including the transportation of the member by any means between the place the member normally performed duties and the place of that activity;
(c) the transportation of the member, in the course of duties, in a military vessel, vehicle or aircraft or by any means of transportation authorized by a military authority, or any act done or action taken by the member or any other person that was incidental to or directly connected with that transportation;
(d) the transportation of the member while on authorized leave by any means authorized by a military authority, other than public transportation, between the place the member normally performed duties and the place at which the member was to take leave or a place at which public transportation was available;
(e) service in an area in which the prevalence of the disease contracted by the member, or that aggravated an existing disease or injury of the member, constituted a health hazard to persons in that area;
(f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; and
(g) the performance by the member of any duties that exposed the member to an environmental hazard that might reasonably have caused the disease or injury or the aggravation thereof.
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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.
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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2. Les dispositions de la présente loi s'interprètent d'une façon libérale afin de donner effet à l'obligation reconnue du peuple canadien et du gouvernement du Canada d'indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge.
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_:
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;
b) des pensions sont accordées à l'égard des membres des forces, conformément aux taux prévus à l'annexe II, en cas de décès causé par une blessure ou maladie - ou son aggravation - survenue au cours du service militaire ou attribuable à celui-ci;
c) l'invalidité ou l'affection entraînant incapacité dont était atteint le membre des forces qui a accompli du service sur un théâtre réel de guerre, du service spécial ou du service pendant la guerre de Corée et antérieur au service accompli pendant la Première ou la Seconde Guerre mondiale, au service accompli pendant la guerre de Corée ou au service spécial n'autorise aucune déduction sur le degré d'invalidité véritable, sauf dans la mesure où il reçoit une pension à cet égard ou si l'invalidité ou l'affection était évidente ou a été consignée lors d'un examen médical avant l'enrôlement;
d) un demandeur ne peut être privé d'une pension à l'égard d'une invalidité qui résulte d'une blessure ou maladie ou de son aggravation contractée au cours du service militaire, ou à l'égard du décès d'un membre des forces causé par cette blessure ou maladie ou son aggravation, uniquement du fait que nulle invalidité importante ou affection entraînant une importante incapacité n'est réputée avoir existé au moment de la libération de ce membre des forces;
e) lorsqu'un membre des forces qui a fait du service pendant la Première ou la Seconde Guerre mondiale est, lors de sa retraite ou de sa libération de ce service, transféré directement au ministère pour un traitement, il est payé à ce membre, ou à son égard, une pension pour invalidité contractée ou décès survenu au cours de ce traitement;
f) aucune pension n'est payée à l'égard de l'invalidité contractée ou du décès survenu d'un membre des forces_:
(i) soit lorsqu'il est en congé sans solde,
(ii) soit pendant une période d'absence sans permission pour laquelle sa solde a été suspendue,
(iii) soit lorsque ce membre des forces, durant un congé avec solde, a exercé un métier ou une profession qui n'a aucun rapport avec le service militaire,
à moins que son invalidité ou son décès ne soit attribuable à son service militaire;
g) la pension pour invalidité accordée au membre des forces au titre du service sur un théâtre réel de guerre, du service spécial ou du service effectué pendant la guerre de Corée est, en cas de changement du degré d'invalidité véritable lié à un de ces services, rajustée ou discontinuée en fonction du nouveau degré d'invalidité véritable sans qu'il soit tenu compte de la cause du changement; toutefois, si le membre des forces reçoit une pension pour plus d'un de ces services, le total de pension à payer en application du présent paragraphe ne peut être supérieur au montant de pension pour toute l'invalidité véritable découlant de l'ensemble de ces services;
h) sauf si une compensation est payable aux termes du paragraphe 34(8), la pension supplémentaire que reçoit un membre des forces en application de l'alinéa a), du paragraphe (5) ou de l'article 36 continue d'être versée pendant l'année qui suit la fin du mois du décès de l'époux ou du conjoint de fait avec qui il cohabitait alors ou, le cas échéant, jusqu'au versement de la pension supplémentaire accordée pendant cette année à l'égard d'un autre époux ou conjoint de fait;
i) lorsque, à l'égard d'un survivant qui vivait avec le membre des forces au moment du décès de ce dernier_:
(i) la pension payable en application de l'alinéa b)
est inférieure à _:
(ii) la somme de la pension de base et de la pension supplémentaire pour un époux ou conjoint de fait qui, à son décès, est payable au membre en application de l'alinéa a), du paragraphe (5) ou de l'article 36,
une pension égale à la somme visée au sous-alinéa (ii) est payée au survivant au lieu de la pension visée à l'alinéa b) pendant une période de un an à compter de la date depuis laquelle une pension est payable aux termes de l'article 56 (sauf que pour l'application du présent alinéa, la mention « _si elle est postérieure, la date du lendemain du décès_ » à l'alinéa 56(1)a) doit s'interpréter comme signifiant « _s'il est postérieur, le premier jour du mois suivant celui au cours duquel est survenu le décès_ » ) et, après cette année, la pension payée au survivant l'est conformément aux taux prévus à l'annexe II.
(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_:
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;
(3) Pour l'application du paragraphe (2), une blessure ou maladie - ou son aggravation - est réputée, sauf preuve contraire, être consécutive ou rattachée directement au service militaire visé par ce paragraphe si elle est survenue au cours_:
a) d'exercices d'éducation physique ou d'une activité sportive auxquels le membre des forces participait, lorsqu'ils étaient autorisés ou organisés par une autorité militaire, ou exécutés dans l'intérêt du service quoique non autorisés ni organisés par une autorité militaire;
b) d'une activité accessoire ou se rattachant directement à une activité visée à l'alinéa a), y compris le transport du membre des forces par quelque moyen que ce soit entre le lieu où il exerçait normalement ses fonctions et le lieu de cette activité;
c) soit du transport du membre des forces, à l'occasion de ses fonctions, dans un bâtiment, véhicule ou aéronef militaire ou par quelque autre moyen de transport autorisé par une autorité militaire, soit d'un acte fait ou d'une mesure prise par le membre des forces ou une autre personne lorsque cet acte ou cette mesure était accessoire ou se rattachait directement à ce transport;
d) du transport du membre des forces au cours d'une permission par quelque moyen autorisé par une autorité militaire, autre qu'un moyen de transport public, entre le lieu où il exerçait normalement ses fonctions et soit le lieu où il devait passer son congé, soit un lieu où un moyen de transport public était disponible;
e) du service dans une zone où la fréquence des cas de la maladie contractée par le membre des forces ou qui a aggravé une maladie ou blessure dont souffrait déjà le membre des forces, constituait un risque pour la santé des personnes se trouvant dans cette zone;
f) d'une opération, d'un entraînement ou d'une activité administrative militaires, soit par suite d'un ordre précis, soit par suite d'usages ou pratiques militaires établis, que l'omission d'accomplir l'acte qui a entraîné la maladie ou la blessure ou son aggravation eût entraîné ou non des mesures disciplinaires contre le membre des forces;
g) de l'exercice, par le membre des forces, de fonctions qui ont exposé celui-ci à des risques découlant de l'environnement qui auraient raisonnablement pu causer la maladie ou la blessure ou son aggravation.
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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.
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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THE JUDGMENT OF BLANCHARD J.
[19] After a careful review of the relevant facts and of the relevant legislation, Blanchard J. indicated that the relevant standard of review was that of patent unreasonableness. He then turned his attention to the new evidence adduced by the appellant and, more particularly, to the medical opinions of Dr. Thomson and Dr. Bunn. After quoting excerpts therefrom, he reproduced that part of the Appeal Panel's decision where it dealt with the opinions and which led it to conclude that there was no reasonably persuasive evidence that the meal taken in the mess hall in November 1989 had caused an infection which had then caused the onset of IBS.
[20] The learned Judge then opined that the Appeal Panel's conclusion was supported by Dr. Thomson's opinion and the negative test results for enteric infection which Dr. Thomson referred to in his opinion. At paragraphs 26 and 27 of his Reasons, Blanchard J. makes the following remarks:
[26] Given the evidence before the Board, I am of the view that the applicant failed to demonstrate that the Board's decision is patently unreasonable. The Board concluded that the applicant's condition, IBS, did not arise nor was it directly connected to the diarrhea condition which resulted from the applicant's meal in the Mess Hall. Without such a causal link being established, it is unnecessary to consider whether a presumption arises under paragraph 21(3)(f) of the Pension Act. I accept the respondent's submission that regardless of whether the applicant's meal at the Mess Hall fits within the meaning of "established military custom" the Board's finding that no causal link between the condition which arose from that meal and the IBS which was diagnosed some years later is supported by the evidence. Having reasonably determined that the causal linkage was not established, I am of the view that the Board did not err in concluding as it did. The Court's intervention in the Board's decision is therefore not warranted.
[27] I further conclude that it was reasonable and open to the Board to conclude that the evidence provided by the applicant was insufficient to "raise a doubt" in respect of causation. Accordingly, there was no benefit of the doubt to be resolved in the applicant's favour.
[21] The learned Judge concluded his Reasons by stating that in reaching its conclusion, the Appeal Panel had made no error of law, had not made any finding of fact which could be characterized as perverse or capricious, nor had it made any finding of fact without regard to the material before it. Thus, the learned Judge was of the view that he could not intervene and he therefore dismissed the appellant's judicial review application.
THE ISSUES
[22] The issues raised by the appellant on this appeal are:
1. whether Blanchard J. erred in finding that it was not patently unreasonable for the Board to conclude that there was no causal link between the mess hall meal and the appellant's IBS: and
2. whether Blanchard J. erred in failing to specifically address:
(i) paragraph 21(3)(f) of the Act and whether or not eating in the mess hall arose out of or was directly connected with military service; and
(ii) paragraph 21(2)(a) of the Act and whether IBS is a permanent disability.
ANALYSIS
[23] The appellant reproaches the Judge below of having failed to deal specifically with the issues arising under paragraphs 21(2)(a) and 21(3)(f) of the Act. I agree with the respondent that unless the appellant succeeds on the first issue, i.e. whether there is a causal link between the lunch at CFB Borden and his IBS, there is no reason to deal with the issues arising under paragraphs 21(2)(a) and 21(3)(f). I therefore turn to the first issue raised by the appeal.
[24] The respondent does not dispute that the appellant had lunch in the mess hall on November 27, 1989, that he suffered an intestinal insult or diarrhea following the meal, that he has had ongoing bowel problems since November 28, 1989, and that he was diagnosed with IBS in 1991.
[25] However, the respondent does not concede that the lunch at CFB Borden caused the appellant's IBS and, if it did, that the meal arose out of or was directly connected with the appellant's military service.
[26] The evidence relied upon by the appellant for causality consists primarily in the opinions of Dr. Thomson and Dr. Bunn. As I have already indicated, neither the Board nor Blanchard J. found that evidence supportive of a causal link between the lunch at CFB Borden and the appellant's IBS. I now turn to that evidence.
[27] Firstly, Dr. Bunn's opinion of October 11, 1998, reads as follows:
This is in response to your letter dated September 30, 1998, which requests further information regarding your medical problems of lactose intolerance and irritable bowel syndrome.
It is my opinion that a severe bout of diarrhea such as that which you experienced in November 1989 often results in temporary lactose intolerance. I am unable to comment as to the probability of this resulting in a long-standing lactose intolerance.
Similarly, I feel that a severe bout [sic] diarrhea or the related stress could precipitate or aggravate irritable bowel syndrome.
In your particular case, note is made of the temporal relationship between the onset of your symptoms for these conditions and the illness you sustained in November 1989.
I trust that this information is adequate for your needs at this time. Please do not hesitate to contact me at the office above if you should require further information or clarification.
[28] As to Dr. Thomson's opinion, it reads as follows:
It was my pleasure to meet with you on January 17, 2000 to discuss Mr. Elliot's appeal before the Veteran's [sic] Review and Appeal Board.
Within hours of Mr. Elliot ingesting a meal at the military Mess Hall at Camp Bordon [sic], Ontario, on the 27th of November, 1989, he presented [sic] to Dr. Malpinsonneault with complaints of diarrhea. In the subsequent 11 years he continued to have symptoms of milk intolerance, pain and frequent loose bowel motions. He has previously consulted three other gastroenterologists, Dr. E. Lam (Moose Jaw), Dr. JD McHattie (Regina) and Dr. L. Gramlich (Edmonton). All concurred that Mr. Elliot is suffering from the irritable bowel syndrome.
Because of Mr. Elliot reporting that his symptoms were worse when he ingested milk products, in 1996 he had a lactose breath test which was positive. Mr. Elliot's ancestry is European, and it is therefore unusual for him to develop lactose intolerance on a genetic basis, rather it may be related to some intestinal insult [sic] the past.
His lactulose [sic] breath test was negative for bacterial overgrowth, the stool weight was the upper limit of normal (750 gm/day), and the fecal bile acid was also slightly increased at 1.93 mmol/day. The recently reported small bowel x-ray was normal, so that Mr. Elliot does not have terminal ileal disease as a result of his bile salt wastage.
Bile salt wastage may be "idiopathic" (no known cause), but may also be associated with irritable bowel syndrome, as also may lactose intolerance.
There is an older medical literature which suggests that a small portion (about 25%) of patients with the irritable bowel syndrome will note the onset of their symptoms to an enteric infection which they suffered from in the past. Multiple stool cultures performed have been negative for an enteric infection, and the stool culture performed in Orillia in 1990 were also negative for salmonella, Shigella or Yersinia enterocolitica or Campylobacter. This does not disprove the possibility of course, that in November 1989 Mr. Elliot may have had an enteric infection.
It is uncommon for men to have the irritable bowel syndrome, but I believe that this diagnosis is firm. The cause of the irritable bowel syndrome is unknown, and I am unable to say that the events which occurred at Camp Bordon [sic] caused this man lactose intolerance and IBS. On the other hand, I cannot disprove this possibility because his IBS symptoms and lactose intolerance began immediately with the Mess Hall ingested meal, and because there is a known association between enteric infections (possible) and the onset of irritable bowel Syndrome.
[29] In its April 25, 2000 decision, the Appeal Panel dealt specifically with the above opinions. At page 5 of its Reasons, it deals with Dr. Bunn's opinion in the following terms:
The Board has also reviewed the entire evidence in this case and more particularly, the Medical Report from Dr. Steven E. Bunn, dated 11 October 1998, where he indicates that the severe bout of diarrhea experienced by the Appellant in 1989 and the related stress could have precipitated or aggravated the irritable bowel syndrome. Unfortunately, this Board is unable to give much weight to this Opinion because of its general nature, and failure to provide explanations to support the above statement.
[30] With respect to Dr. Thomson's opinion, the Appeal Panel deals with it as follows at pages 4 and 5 of its Reasons:
While Dr. Thomson states categorically that the diagnosis has been established, he is much more cautious regarding the role the 1989 diarrhea episode may have played in the onset of [sic] claimed condition. The Board notes that Dr. Thomson is unable to confirm whether or not the Appellant had an episode of enteric infection as a result of the Mess lunch in 1989, as the various tests did not result in such a finding. While Dr. Thomson indicates that he cannot disprove the possibility that his IBS symptoms and lactose intolerance could be related to the Mess Hall meal, this is not sufficient to raise a doubt in the mind of this Board that a relationship exists between this incident and the onset of the claimed condition, particularly in light of the fact that the exams performed at the time of the incident did not confirm the existence of an enteric infection. The Board finally notes that Dr. Thomson indicated in his Opinion that the cause of irritable bowel syndrome is unknown and that he is unable to say whether or not the 1989 event caused the claimed condition.
[31] Blanchard J, at paragraphs 24 and 25 of his Reasons, after reproducing the relevant parts of the opinions of Dr. Thomson and Dr. Bunn, and the above extracts of the Appeal Panel's decision concerning these opinions, concludes that Dr. Thomson's opinion and the negative test results for enteric infection entirely support the Board's conclusion:
[24] Upon review of this evidence, the Board concluded that there was no reasonably persuasive evidence that the applicant suffered an infection which was caused by eating contaminated food at CFB Borden which then caused the onset of the permanent disability from IBS.
[25] I am of the view that the Board's finding is supported by the medical opinion of Dr. Thomson and particularly the negative test results for enteric infection that he mentions in his medical opinion.
[32] In my view, Blanchard J. made no error in coming to this conclusion. A close examination of Dr. Thomson's opinion reveals the following. Although he was of the view that the cause of IBS was unknown, Dr. Thomson indicated that there was "older medical literature" which suggested that approximately 25% of patients with IBS had noted the onset of their symptoms after having suffered from an enteric infection. Dr. Thomson then stated that in the appellant's case, the evidence did not prove that an enteric infection had resulted from his meal at CFB Borden on November 28, 1989, but that such a possibility existed. Dr. Thomson stated he could not "disprove" the possibility that the appellant's IBS had been caused by the meal, because his IBS symptoms had appeared immediately after the ingested meal and because the older medical literature suggested an association between an enteric infection and IBS.
[33] It is important to note that Dr. Thomson's opinion is premised on two possibilities. The first one is that notwithstanding negative test results, the meal may nonetheless have caused an enteric infection. The second possibility is that although the cause of IBS is unknown, it may have been caused by the food he ingested at CFB Borden. For this proposition, Dr. Thomson relies on the suggestion made by the older medical literature.
[34] The appellant argues that the tests to which Dr. Thomson refers in his opinion were performed nine weeks after his November 28, 1989 lunch and, therefore, they are not relevant. Secondly, he argues that, in any event, the respondent has conceded that the meal caused an enteric infection.
[35] I cannot agree with the appellant that the respondent has conceded that he suffered an enteric infection. The respondent has conceded that he suffered an intestinal insult or diarrhea, but does not concede that there was an enteric infection. The appellant seems to be of the view that an intestinal insult or diarrhea is an enteric infection. In my view, he is mistaken in that belief, since that is not what Dr. Thomson states. It is clear from Dr. Thomson's opinion that diarrhea is not an enteric infection. Secondly, although the tests were performed nine weeks after the fact, Dr. Thomson does not consider them irrelevant, since he clearly relies on those tests to state that there was no evidence of an enteric infection.
[36] Even if one accepts what the older medical literature suggests, i.e. that an enteric infection may cause IBS, there must nevertheless be some evidence that the meal caused an enteric infection. It is clear that the evidence before the Appeal Panel does not support that proposition.
[37] Thus, for the Board to come to a conclusion favourable to the appellant, it would have had to give him the benefit of the doubt twice, i.e. in regard to the existence of an enteric infection, for which there is no evidence, and secondly, that notwithstanding that the cause of IBS is unknown, his IBS was, as suggested by the older medical literature, caused by an enteric infection which resulted from his November 28, 1989 meal.
[38] With respect to Dr. Bunn's opinion, the Appeal Panel gave it no weight, as I have already indicated, because of its general nature and its failure to provide any explanation. The Appeal Panel was of the view that Dr. Bunn's opinion was conjectural only, and could not support the appellant's claim for a pension. In my view, Dr. Bunn's opinion was clearly superceded by that of Dr. Thomson, who is quite specific regarding the possible link between the appellant's meal and his IBS. There can be no doubt that in concluding as it did, the Appeal Panel relied heavily on Dr. Thomson's opinion and so did the learned Judge when he stated at paragraph 25 of his Reasons that the Appeal Panel's finding was supported by Dr. Thomson's opinion and the negative test results for enteric infection.
[39] In making the argument that he is entitled to the benefit of the doubt, the appellant relies on sections 3 and 39 of the VRAB Act. Section 3 provides that the Board, in exercising its powers and duties under the VRAB Act, must liberally construe and interpret all relevant statutory provisions so as to fulfill the obligation of the people and government of Canada to those who have served their country. As to section 39, I again repeat it for ease of reference:
| 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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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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[40] In dealing with this contention, the Board, at page 3 of its March 5, 2000 decision, commented as follows:
[...] However, in this case, doubt has not been raised and it is only when such doubt is raised that it must be resolved in favour of the Appellant. Further, in finding the medical opinions speculative, the Board did in fact make a credibility finding as it did not find the medical opinions provided medical information of significant value and, therefore, could not by themselves be the basis for a pension award. In fact, the decision in this case, is for the tribunal to make based on its assessment of all the evidence taken as a whole and not merely on conjectural medical opinions.
Put another way, not only was the Board not in doubt, but it was satisfied that there was no proof whatsoever to support the appellant's argument that there was a link between his IBS and the meal taken at CFB Borden on November 28, 1989.
[41] Relying on the decision of Evans J. (as he then was) in Metcalfe v. Canada (1999), 160 F.T.R. 281, the appellant argues that the Appeal Panel and Blanchard J. made a reviewable error in regard to the application of section 39 of the VRAB Act. In my view, Metcalfe is of no help to the applicant. In that case, Mr. Metcalfe was claiming a pension on the basis that he had suffered a hearing loss caused by a blast that occurred while he was serving in Korea. Two medical opinions were adduced in evidence. The first one, by Dr. Baker, was to the effect that there was "a strong possibility that this injury was partially caused by the blast". The second opinion, given by Dr. Werger (an ear, nose and throat surgeon), was that Mr. Metcalfe's exposure to noise could have definitely made his ears more susceptible to loss over the years and was likely the major cause of his hearing loss. Notwithstanding these medical opinions, the Board had concluded that the medical evidence did not support a link between his service in Korea and his disability. At paragraphs 17, 22 and 23, Evans J. concluded that the Board had misdirected itself with regard to the effect of section 39 of the VRAB Act. The learned Judge made the following remarks:
[17] In my opinion, the Board could only have reached its conclusion by misdirecting itself on the effect of section 39 of the Veterans Review and Appeal Board Act. While paragraphs (a), (b) and (c) of this section may not create a reverse onus by requiring the respondent to establish that a veteran's injury or medical condition was not attributable to military service, they go a considerable way in this direction by requiring, in effect, that claimants be given the benefit of any reasonable doubt. The applicant's explanation for his failure to seek medical attention earlier seems quite plausible, and the Board did not dispute it.
[...]
[22] Obviously, no one can be certain whether a causal link exists between the noise to which the applicant was exposed while on military service and his present deafness. Although couched in terms of possibility and probability, the medical opinions of Drs. Baker and Werger can realistically go no further than saying that the applicant's hearing loss is consistent with exposure to the level of noise described to them by the applicant. Nonetheless, in my opinion the applicant produced sufficient credible evidence about the cause of his hearing loss that, if the Board had complied with the directions contained in section 39, it must in law have upheld his claim.
[23] For these reasons, I have concluded that the Board erred in law by basing its refusal of the applicant's claim on a finding of fact that, in light of the evidence before it and the relevant statutory provisions, was patently unreasonable. The application for judicial review is accordingly granted, and the matter remitted to the Veterans Review and Appeal Board, differently constituted in so far as that is practicable.
[42] In my view, the medical opinions of Drs. Thomson and Bunn, contrary to those given by Drs. Baker and Werger in Metcalfe, supra, were not sufficient to justify the application of paragraph 39(c) of the VRAB Act and, hence, giving the appellant the benefit of the doubt with respect to his burden of proof. It is worth repeating what Dr. Thomson actually said in his letter of opinion, i.e. that there was no evidence that the November 28, 1989 meal had caused an enteric infection, but that he could not disprove that possibility. This, in my respectful view, is a far cry from the strong medical opinions given in Metcalfe, supra.
[43] As I indicated earlier, the Board was in no doubt with respect to the issue of causality. In its view, the evidence could not support the appellant's contention on that issue. That conclusion, in my view, is unassailable.
[44] The appellant argues that the Board failed to give effect to the direction found in paragraph 39(a) of the VRAB Act that it draw from the evidence all reasonable inferences in his favour. According to the appellant, the evidence before the Board was that he suffered a violent diarrhea, that subsequent to that diarrhea he had manifested symptoms of IBS, that 25% of IBS patients note the onset of symptoms following an enteric infection. According to the appellant, it is reasonable to infer from the diarrhea, the proximity in time of the diarrhea and the onset of the IBS symptoms, and the diagnosis of IBS itself, that he suffered an enteric infection. That inference leads to the inference that it was the enteric infection which caused or triggered the IBS.
[45] The difficulty with such an argument is that it is an exercise in circular reasoning. One cannot use the presence of the diagnosis of IBS as a reason to infer the presence of an enteric infection, and then use the presence of an enteric infection to infer that it caused the appellant's IBS. When the IBS is removed from consideration, the evidence in support of an enteric infection is the presence of diarrhea and the proximity in time of the diarrhea and the onset of IBS symptoms. It is apparent that the Board did not consider it reasonable to infer from that evidence that the appellant had suffered an enteric infectrion, or that the diarrhea had by other means caused his IBS.
[46] If the direction to draw every reasonable inference is to have meaning, it must apply in cases where an inference would not be drawn on a balance of probabilities. A reasonable inference is therefore one that is not necessarily probable but must nonetheless be more than a mere possibility. In all the circumstances, I find that the evidence establishes no more than a possibility that the appellant's diarrhea caused his IBS so that the Board could not reasonably infer that it did.
[47] Consequently, in view of the conclusion which I have reached in regard to the first issue, I need not address the second issue raised in this appeal.
CONCLUSION
[48] In conclusion, I am entirely satisfied that Blanchard J. made no error in dismissing the appellant's application for judicial review. Not only did the learned Judge carefully review the relevant evidence and statutory provisions, he carefully reviewed the Appeal Panel's findings and the evidence cited in support of these findings. The Judge, applying the correct standard of review, i.e. that of patent unreasonableness, found no error in the findings made by the Appeal Panel.
[49] As I have not been persuaded that Blanchard J. made any error of fact or law, I would dismiss this appeal. However, I would make no order as to costs.
"Marc Nadon"
J.A.
"I agree.
Robert Décary J.A."
"I agree.
J.D. Denis Pelletier J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-590-02
STYLE OF CAUSE: DANIEL WILLIAM ELLIOT v. AGC et al
PLACE OF HEARING: EDMONTON, AB
DATE OF HEARING: May 26, 2003
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: DÉCARY J.A.
PELLETIER J.A.
DATED: July 4, 2003
APPEARANCES:
Daniel W. Elliot FOR THE APPELLANT
Tracy King FOR THE RESPONDENT
SOLICITORS OF RECORD:
Daniel W. Elliot FOR THE APPELLANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
[i]. The Shorter Oxford English Dictionary, 3rd ed. (Oxford, : Clarendon Press, 1990) defines "enteric" as: "Of or pertaining to the intestines".
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