Docket: T-1907-16
Citation:
2017 FC 521
Ottawa, Ontario, May 25, 2017
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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HAROLD NORTHRUP
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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]
Harold Northrup seeks judicial review of a
decision of the Entitlement Reconsideration Panel [Reconsideration Panel] of
the Veterans Review and Appeal Board [Board]. The Reconsideration Panel found
that Mr. Northrup is not entitled to a pension pursuant to s 21(2) of the Pension
Act, RSC 1985, c P-6.
[2]
For the reasons that follow, I have concluded
that the Reconsideration Panel misapprehended key evidence offered by Mr.
Northrup in support of his application for a pension. I am unable to say
whether the result would have been the same if the Reconsideration Panel had
properly understood this evidence. The application for judicial review is
therefore allowed.
II.
Background
[3]
Mr. Northrup is 86 years old. He served with the
Canadian Forces from 1949 to 1957, and again from 1961 to 1967. His service
included a period of time at Canadian Forces Base [CFB] Gagetown, New Brunswick
when the Canadian Forces conducted test sprays of a toxin commonly referred to
as Agent Orange. Agent Orange is a herbicide and defoliant chemical infamously
used by the United States army during the Vietnam War. While he was stationed
in New Brunswick, Mr. Northrup’s primary responsibility was transporting
soldiers between training areas.
[4]
In 1997, Mr. Northrup was diagnosed with
prostate cancer. He was diagnosed with leukemia in 2003, and in 2006 the Board
confirmed that he had chronic lymphatic leukemia. He also suffered hearing
loss.
[5]
In November 2005, Mr. Northrup applied to
Veterans Affairs Canada [VAC] for a disability pension based on his prostate
cancer, leukemia and hearing loss. He attributed the cancers to exposure to
Agent Orange while at CFB Gagetown. His pension was approved on November 28,
2005, but only for his hearing loss. He appealed to the Entitlement Review
Panel [Review Panel] of the Board. On November 17, 2009, the Review Panel
confirmed the refusal of his pension due to the absence of evidence that Mr.
Northrup in fact served at CFB Gagetown during the testing of Agent Orange.
[6]
Mr. Northrup appealed the Review Panel’s
decision to the Entitlement Appeal Panel, which dismissed the appeal because
there was no official record of Mr. Northrup’s service with the Canadian Forces
after February 1966. Mr. Northrup appealed this decision to the Reconsideration
Panel.
[7]
Through a process unrelated to his pension
application, in January 2006 Mr. Northrup received a tax-free ex gratia
payment of $20,000 based on his service at CFB Gagetown during the testing of
Agent Orange. It was not necessary for Mr. Northrup to demonstrate exposure to
Agent Orange in order to qualify for the ex gratia payment.
III.
Decision under Review
[8]
Mr. Northrup submitted new evidence to the
Reconsideration Panel. This consisted of a memorandum from VAC dated September
18, 2015 confirming his military service at CFB Gagetown during the relevant
times, and a letter dated September 16, 2015 in which he recounted his exposure
to Agent Orange. The Reconsideration Panel accepted that Mr. Northrup had
served at CFB Gagetown during the 1967 Agent Orange spray testing and
afterwards. It also accepted that Mr. Northrup had been diagnosed with prostate
cancer and chronic lymphocytic leukemia, and that these were permanent
disabilities associated with exposure to Agent Orange.
[9]
The Reconsideration Panel nevertheless dismissed
Mr. Northrup’s appeal:
Under section 39 of the Veterans Review
and Appeal Board Act, the Board must draw every favorable inference, which
appears reasonable, in the evidence and circumstances of the case. However, the
Applicant is also under an obligation to provide sufficient evidence to support
the favorable inference being sought. The Panel is not in a position to draw a
favorable inference unless it has some evidence presented on the case that
would reasonably support or raise the inference. The evidence in this case does
not provide any basis from which the Panel may reach the conclusion the
Applicant’s claimed conditions arose out of, or are directly connected with,
his Regular Force service or Militia service. These are the reasons:
• The lack of
objective credible evidence that shows the Applicant had direct contact with
Agent Orange at CFB Gagetown, including during the June 1967 Agent Orange spray
period;
• The lack of
evidence showing the Applicant was experiencing indirect exposure to Agent
Orange during his service in Gagetown in the 1960s, when he was transporting
troops. The areas sprayed were closed for exercises during the spraying and
remained closed for training purposes after the spraying was completed;
• The medical
research evidence found in the Task 3A-1, Tier 1 Final Report of July 2006
indicates individuals stationed at CFB Gagetown between 1952 and 2004 were not
at risk for long term health effects from the herbicides used at CFB Gagetown
as a part of the annual spraying program;
• The lack of a
credible medical opinion supporting the Applicant's contention that his claimed
conditions developed as a result of exposure to Agent Orange or other chemical
during his service at CFB Gagetown;
• The lack of
any credible scientific or medical evidence contradicting the scientific
findings in the Furlong Report;
• The lack of
evidence showing that the Applicant was in the Agent Orange spray area within
24 hours of the critical testing period in 1967; therefore, the Applicant does
not benefit from the presumptions available in paragraph 21(3)(g) of the Pension
Act;
• The facts of the McAllister
case are distinguishable from the facts of the Applicant's case.
IV.
Issues
[10]
This application for judicial review raises the
following issues:
A.
Was the Reconsideration Panel’s decision
reasonable?
B.
What is the appropriate remedy?
V.
Analysis
[11]
The Board’s decisions under the Pension Act involve
questions of mixed fact and law, and are subject to review by this Court
against the standard of reasonableness (McAllister v Canada (Attorney General),
2014 FC 991 at paras 38-40 [McAllister]). The Court will intervene only
if the decision falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
A.
Was the Reconsideration Panel’s decision
reasonable?
[12]
A hearing before the Reconsideration Panel is
not intended to be an adversarial process (Woo Estate v Canada (Attorney
General), 2002 FCT 1233 at para 71). Pursuant to s 39 of the Veterans
Review and Appeal Board Act, SC 1995, c 18 [VRABA], the Reconsideration
Panel is required to apply modified rules of evidence that favour the applicant
or appellant:
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Rules of
evidence
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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Règles
régissant la preuve
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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[13]
The Reconsideration Panel must accept any
uncontradicted evidence presented by the applicant that it considers to be credible.
It may reject this evidence only if there is evidence to the contrary, or if it
provides reasons (VRABA, s 39(b); Rivard v Canada (Attorney General),
2001 FCT 704 at para 22).
[14]
Mr. Northrup argues that the Reconsideration
Panel failed to comply with s 39(b) of the VRABA by refusing to draw every
favourable inference from the following uncontradicted evidence: (a) his work
at CFB Gagetown required him to transport soldiers to CFB Gagetown and within
the training area; (b) he was constantly exposed to the elements, as his
sleeping quarters during training exercises usually consisted of an open patch
of ground; (c) he supplemented his military rations by eating berries picked
from shrubs or drinking water found in brooks throughout the training area; (d)
he frequently observed airplanes and helicopters spraying overhead in the
vicinity of the training, and the soldiers’ clothes and equipment were often
covered by dust and chemicals sprayed from the planes; and (e) he was never
told to stay out of any specific areas.
[15]
Mr. Northrup also relies on an affidavit sworn
by his former commanding officer, Douglas Spinney, in which Mr. Spinney deposed
that “Harold Northrup was in contact with the spraying
of Agent Orange while he was transporting troops and waiting for their return
trip out of Camp Gagetown.”
[16]
Mr. Northrup challenges the Reconsideration
Panel’s use of the CFB Gagetown Herbicide Spray Programs 1952 – 2004:
Fact-Finders’ Report authored by Dr. Dennis Furlong in 2007 [Furlong
Report]. Mr. Northrup relies on the observations of Justice Yves de Montigny in
McAllister at paragraph 53:
[…] considering that these studies were
performed 40 years after the fact, the Board could not reasonably come to the
conclusion that the Furlong Report is the best evidence and that none of the
new evidence offered by the Applicant to the Board withstands the credibility
test. The Applicant provided statements from witnesses who were serving with
him in CFB Gagetown. These witnesses were found credible, yet the Board
questioned their knowledge about what was sprayed and where, as well as the
intensity of the exposure to Agent Orange. In light of the fact that there is
nothing in the Furlong Report or in the Fact-finding reports to suggest that
the military personnel training in CFB Gagetown in 1966-1967 were prohibited
from entering the sprayed area, and of the Applicant’s Platoon Commander’s
statement that they were never instructed to not enter the spraying areas, I
believe that the Applicant was entitled to the benefit of the doubt pursuant to
section 39 of the VRAB Act. […]
[17]
Mr. Northrup maintains that the Reconsideration
Panel committed a similar error in this case by preferring the general
conclusions of the Furlong Report to his personal statements and the sworn
testimony of his commanding officer.
[18]
The Attorney General argues that the rules of
evidence found in s 39 of the VRABA do not relieve Mr. Northrup of his burden
of proving his claim on a balance of probabilities: he must show that it is
more likely than not that his injury or disease “arose
out of or was directly connected with his military service” (citing the Pension
Act, s 21(2) and Lunn v Canada (Veterans Affairs), 2010 FC 1229 at
para 43).
[19]
The Attorney General defends the Reconsideration
Panel’s reliance on the Furlong Report. According to the Furlong Report, the
spraying of Agent Orange was conducted under controlled conditions in a remote
area of CFB Gagetown, comprising 83 acres or approximately 0.03% of the base’s
total area, and an individual’s presence on the base during the testing did not
constitute exposure that would place him at risk for any long term health
effects. The Attorney General notes that this Court in McAllister made
no adverse comments regarding the scientific conclusions or the validity of the
information contained in the report (at para 54). It was therefore incumbent on
Mr. Northrup to demonstrate that he was in the area sprayed with Agent Orange
during the relevant time-frame. The Attorney General says that the
Reconsideration Panel construed this liberally, and would have awarded Mr.
Northrup a pension if he could establish that he was within 800 metres of a
test site within 24 hours after a spraying.
[20]
The Attorney General also defends the
Reconsideration Panel’s rejection of the affidavit of Mr. Northrup’s former
commanding officer, Mr. Spinney. The Reconsideration Panel dealt with Mr.
Spinney’s affidavit as follows:
[…] when Mr. Douglas Spinney states the
Applicant came in contact with Agent Orange in Gagetown, the Panel asks
questions concerning how he knows the Applicant came in contact with Agent
Orange. The Panel is not aware of any physical characteristic of Agent Orange
that would allow a person to distinguish it from any other spray. The Panel has
also not been provided with any basis upon which the authors of the statements
would know whether Agent Orange was being sprayed upon them. Without this sort
of information, the Panel finds Mr. Spinney's statement is not credible.
Furthermore, in a previous statement dated
30 January 2009 (pg. 65 SOC), Mr. Spinney acknowledged he did not remember
Agent Orange testing in 1966 and 1967. The Panel therefore finds his March 2009
statement that the Applicant came in contact with Agent Orange in Gagetown not
credible for pension purposes.
[21]
The Reconsideration Panel rejected Mr. Spinney’s
affidavit on two distinct grounds. The first ground was that Mr. Spinney had
provided insufficient information to establish the basis for his knowledge that
Mr. Northrup was exposed to Agent Orange. While Mr. Spinney’s affidavit was not
contradicted by other evidence, the Reconsideration Panel nevertheless declined
to accept it because it was not considered to be “credible
in the circumstances” (VRABA, s 39(b)).
[22]
The second ground upon which the Reconsideration
Panel rejected Mr. Spinney’s affidavit was that he had previously acknowledged
he did not remember Agent Orange testing in 1966 and 1967. This is clearly an
error. The Reconsideration Panel appears to be referring to a letter dated
January 30, 2009 from Charles Spinney, Douglas Spinney’s son. In the letter,
which was submitted in support of Douglas Spinney’s application for the ex
gratia payment mentioned above, Charles Spinney wrote that his father had
been very ill, and he was acting on his father’s behalf. Charles Spinney’s
letter concluded as follows:
My father continues to battle various
cancers of the prostate, colon, skin and lungs that doctors have stated are
consistent with his exposure to Agent Orange. Although he cannot remember the
testing, he was there both in the summer of 1966 and 1967.
[23]
This error may have played a significant role in
the Reconsideration Panel’s decision. Citing McAllister, the
Reconsideration Panel acknowledged that the Furlong Report “should not be used to rebut claims of exposure when those
claims can be substantiated with credible witness statements.” However,
the Reconsideration Panel held that in Mr. Northrup’s case, “there is no credible witness statement showing the Applicant
was exposed to Agent Orange in June 1967 and it is therefore distinguishable
from the facts of the McAllister case.”
[24]
The Attorney General characterizes the
Reconsideration Panel’s misapprehension of Douglas Spinney’s evidence as
immaterial. I disagree. It is one thing for Mr. Northrup’s commanding officer
to contradict his own affidavit by stating that he does not remember the
spraying of Agent Orange at CFB Gagetown in 1966 and 1967. It is quite another
for Mr. Spinney’s son to report that his father is in poor health and does
not recall the spraying, despite asserting that his father is suffering from
the effects of exposure to Agent Orange.
[25]
I am therefore persuaded that the manner in
which the Reconsideration Panel rejected the affidavit of Douglas Spinney was
unreasonable. I am unable to determine the extent to which the Reconsideration
Panel’s erroneous finding that Mr. Spinney had contradicted himself may have
influenced its decision, and the matter must therefore be examined anew.
B.
What is the appropriate remedy?
[26]
Mr. Northrup asks this Court to find that he is
entitled to a full pension. He requests that the pension be granted
retroactively pursuant to s 39(1) of the Pension Act (citing Cundell
v Canada (Attorney General), [2000] FCJ No 38 at paras 61-63 (TD); Frye
v Canada (Attorney General), 2005 FCA 264 at paras 36-37). He notes that
his pension application has been ongoing since 2005, and an additional hearing
would prolong the process and add to the hardship he has suffered. In the
alternative, Mr. Northrup submits that the Reconsideration Panel’s decision
should be quashed and referred to a new panel with directions.
[27]
The Attorney General says that the only
appropriate remedy is to return the matter to the Reconsideration Panel for
redetermination. This is because the success or failure of Mr. Northrup’s claim
will turn on findings of fact. Directions should be issued only where a case is
straightforward, and the decision of the Court is dispositive of the matter
before the tribunal. This will rarely be the case where the issue in dispute is
factual in nature (citing Freeman v Canada (Citizenship and Immigration),
2013 FC 1065 at paras 79-80; McAllister at para 56).
[28]
I have found that Mr. Northrup’s pension
application must be reconsidered based upon a proper understanding of the
evidence of Douglas Spinney and Charles Spinney. This is a factual
determination, and I therefore decline to make a finding regarding Mr.
Northrup’s entitlement to a pension or to issue directions regarding the manner
in which his application should be reconsidered. However, given Mr. Northrup’s
advanced age and the time it has taken to process his application to date, I
will direct that the reconsideration be completed within three months of the
date of this Judgment and Reasons.
VI.
Costs
[29]
Mr. Northrup has been represented by counsel on a
pro bono basis. Costs may be awarded to pro bono counsel,
provided that this is contemplated in the retainer agreement with the client (Abdelrazik
v Canada (Foreign Affairs), 2009 FC 816 at paras 31-33).
[30]
Counsel have represented Mr. Northrup with
considerable skill, and in keeping with the best traditions of the bar. They
have submitted a copy of their retainer agreement, which provides that any
disbursements awarded by the Court shall be payable to Mr. Northrup, and any
legal fees awarded by the Court shall be payable to Borden Ladner Gervais LLP
[BLG].
[31]
BLG has prepared a draft bill of costs in
accordance with Column III of Tariff B. They have claimed disbursements in the
amount of $870.87 (including taxes), and legal fees in the amount of $4,620.00.
[32]
The Attorney General does not take serious issue
with the draft bill of costs submitted by BLG, questioning only the number of
units claimed for originating documents and other pleadings.
[33]
In the interests of simplicity and efficiency, I
award legal fees to BLG in the amount of $3,500.00, and disbursements to Mr.
Northrup in the amount of $870.87 (including taxes).
VII.
Conclusion
[34]
The application for judicial review is allowed.
The matter is remitted to a differently-constituted panel of the Board for
reconsideration, to be completed within three (3) months of the date of this
Judgment and Reasons. Legal fees are awarded to BLG in the amount of $3,500.00,
and disbursements are awarded to Mr. Northrup in the amount of $870.87
(including taxes).
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