Date: 20040712
Docket: T-1351-03
Citation: 2004 FC 978
Between:
DONAT THÉRIAULT
Applicant
And:
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision by the Veterans Review and Appeal Board (hereinafter the Board), dated May 23, 2003, dismissing an application for review of a decision of the appeal panel dated May 30, 2001, on the ground that the evidence supplied by the applicant in support of his application for review added nothing new to the file, thereby denying the applicant entitlement to a pension.
[2] The applicant served in the regular forces of the Canadian Army from August 10, 1943 to September 4, 1946. On August 31, 1999, the applicant filed an application for a disability pension for arteritis of the lower extremities, allegedly attributable to his service in the Canadian forces between August 1943 and September 1946.
[3] In a decision dated April 28, 2000, the Department of Veterans Affairs rejected the pension application for the aforementioned complaint, pursuant to subsection 21(1) of the Pension Act, R.S.C. 1985, c. P-6.
[4] In a decision dated November 30, 2000, the review panel determined that the alleged complaint was not attributable to service during the Second World War nor had it occurred during that war.
[5] Dissatisfied with this decision, the applicant then appealed it to the appeal panel under section 25 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (hereinafter the Act). On May 30, 2001, the appeal panel affirmed the review panel's decision.
[6] The applicant then appealed the unfavourable decision of the appeal panel to the Board under section 32 of the Act, asking that it reconsider its decision of May 30, 2001.
[7] The record indicates that the appeal panel, in its decision of May 30, 2001, held that it lacked [translation] "the necessary medical evidence to link the complaint of arteritis of the lower extremities to the applicant's service".
[8] Consequently, the applicant submitted two new reports to the Board: the letters by Dr. Nagpal, a general and vascular surgeon, dated August 1, 2002 and January 29, 2003. This new evidence, the applicant argued, was addressed directly to the issue in dispute, that is, the link between the problems in the lower extremities and the applicant's military service.
[9] In its decision of May 23, 2003, the Board applied the four-part test developed by Mr. Justice Teitelbaum in MacKay v. Canada (Attorney General), [1997] F.C.J. No. 495, to weigh the new evidence adduced by the applicant, namely:
(1) Evidence that, by due diligence, could have been adduced on appeal or during review is not "new";
(2) The evidence must be capable of affecting the result.
(3) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue;
(4) The evidence must be credible in the sense that, when taken with other evidence, it is reasonably capable of belief.
[10] On the first criterion, the Board concluded that the appellant had displayed due diligence, and on the fourth criterion, the Board concluded that the new evidence was credible. However, the Board was of the opinion that the second and third criteria had not been fulfilled.
[11] More precisely, at page 4 of the decision, the Board drew the following conclusions concerning the medical evidence:
[translation]
In his letter of January 29, 2003, Dr. Nagpal states:
"The fact that his peripheral vascular disease is significantly worse now may be related to early problems in the military. This particular condition is called popliteal entrapment syndrome and certainly could be a possibility in this gentleman, if he had classic claudication at that age."
There is no reference to this syndrome in the medical evidence, nor to a "classic claudication" condition. The Board does not find, therefore, that the new evidence is capable of affecting the result, since the evidence does not link the complaint in question to the appellant's military service.
For the same reasons, the Board does not find that the new evidence is potentially decisive to the decision.
The Board finds the new evidence credible in so far as Dr. Nagpal's objectivity and sincerity are concerned.
Because the new evidence is not relevant and would not affect the result, the Board will not reconsider the decision of the appeal panel dated May 30, 2001.
[12] Accordingly, the Board stated that it had not found any error in the May 30, 2001 decision of the appeal panel and had not reconsidered it since, in its opinion, the new evidence provided by the applicant contributed nothing new to the case and was of no relevance to the merits of the applicant's submissions concerning the existence of a causal relationship between his disability and his military service.
[13] The applicant is of the opinion that the Board exceeded its jurisdiction in deciding that the expert medical evidence adduced by the applicant in support of his application for reconsideration was irrelevant and not capable of affecting the result, since the Board reached this conclusion without considering the application of sections 3 and 39 of the Act, which define the limits of its decision-making authority.
[14] It is the applicant's submission, in effect, that the Board erred in law by failing to adhere to its duty to construe the provisions of the Act liberally and to draw the conclusions that are most favourable to the applicant, thereby violating the principles set out in sections 3 and 39 of the Act.
[15] In other words, the applicant is arguing that the disregard of the principles in sections 3 and 39 of the Act influenced the Board's assessment of the applicant's expert medical evidence, making it patently unreasonable. The applicant submits, therefore, that in light of the evidence already on the record and in view of the new, uncontradicted evidence - Dr. Nagpal's expert medical opinion - the Board could not reasonably find that the new evidence was irrelevant and not capable of affecting the result, under the criteria set out in sections 3 and 39 of the Act.
[16] The applicant argues that the Board also erred in its assessment of the medical evidence by wrongly concluding that there was no reference to the "claudication" syndrome in the applicant's medical file before Dr. Nagpal submitted his final report.
[17] By proceeding in this way, the applicant submits, the Board limited the applicant's rights and in doing so breached its statutory duty to interpret and construe the Act and the regulations thereunder liberally in such a way as to maximize the rights of veterans, and this warrants the intervention of this Court.
[18] The respondent, for its part, alleges that the discretionary nature of the decision whether or not to reconsider a decision of the appeal panel, and the existence of a privative clause in section 31 of the Act, are factors tending to favour judicial deference, and that this should incline this Court not to intervene in this case.
[19] The respondent further argues that the Board rightly decided not to reconsider because the applicant had failed to submit any new evidence that would have warranted such a reconsideration. The additional evidence adduced by the applicant in support of the application for reconsideration, the respondent submits, adds nothing to the medical evidence the applicant had filed at the hearing before the appeal panel concerning the complaints from which he was suffering and which he argues are directly attributable to his military service.
[20] The respondent further notes that the applicant, in the current application, is attempting to attack the May 30, 2001 decision of the appeal panel, which he cannot do. Contrary to the applicant's submissions, the respondent says, the Board did comply with sections 3 and 39 of the Act and did take into account the documentation that was filed, while not giving it the weight the applicant would have liked, but this in itself is not unreasonable. The respondent emphasizes that it is up to the Board to assess the evidence and draw its own conclusions, and that in this case its conclusions do not amount to any error that would warrant intervention by this Court.
[21] The Board created by the Act is, since its establishment, the only review and appeal tribunal for veterans' pensions. Sections 3 and 39 of the Act set out the general rules of interpretation and evidence applying to pension applications:
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.
[22] It seems evident from reading section 39 of the Act that the Board must accept any evidence adduced by the applicant that is uncontradicted and that it considers plausible. It must also draw every reasonable inference in favour of the applicant.
[23] Thus, although it is the Board's duty to assess the evidence that is before it and give it the weight that it considers appropriate, this assessment of the evidence must always be done in light of sections 3 and 39 of the Act, which means that the Board is obliged to accept any evidence that is adduced unless it determines that it lacks plausibility or credibility or the evidence is contradicted by other evidence on the record.
[24] In this regard, Mr. Justice Cullen, in MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346, stated:
22. It is settled law that a tribunal does not have to make an explicit written finding on each element which leads to its ultimate conclusion; indeed, there is a presumption that the tribunal has dealt with all of the documents which were placed before it: Henderson v. Canada (Attorney General) (1998), 144 F.T.R. 71 (T.D.). However, this is tempered, or qualified, by section 39 of the Veterans Review and Appeal Board Act, which requires that when new and credible evidence is presented during a reconsideration proceeding, the Board has a duty to consider and weigh the evidence, drawing every reasonable inference in the applicant's favour. This does not mean that the Board must automatically accept whatever submission is made by a veteran; rather, the evidence must be accepted if it is credible and reasonable, and uncontradicted.
...
29. The jurisprudence indicates that the Board must accept uncontradicted medical evidence that it considers credible in the circumstances; however, it may reject such evidence if it has before it contradictory evidence, or if it states reasons, which would bear on credibility and reasonableness: Re Hornby (1993), 63 F.T.R. 188 (T.D.); King v. Canada (Veterans Review and Appeal Board) (1997), 138 F.T.R. 15 (T.D.); and Moar, supra.
[Emphasis added]
[25] In short, if the evidence is uncontradicted and the Board does not consider it improbable or not credible, it must, pursuant to section 39, accept it.
[26] In the case at bar, as was stated earlier, the Board did not at all question the credibility of the medical evidence adduced by the applicant; on the contrary, it concluded that the evidence was credible. Nor was there any contradictory medical evidence that was submitted to cast doubt on the merits of the applicant's medical evidence.
[27] Instead, the Board chose to ignore the uncontradicted evidence on the ground that it was not relevant. But the medical evidence in question was of undeniable relevance since it was addressed to the vascular problems in the lower extremities and established the potential link with military service.
[28] The applicant has consistently alleged in the course of his pension application that he suffers from problems with his legs. The new evidence simply reiterates this claim, and the applicant has attempted to corroborate the substance of his application by submitting additional evidence specifically addressed to these problems. How can it be claimed that this evidence is not relevant, without falling into absurdity?
[29] It is possible that the Board meant instead that this evidence was not conclusive and that it did not establish with certainty the causal relationship between the disability and the applicant's military service. This kind of reasoning cannot prevail, as it conflicts with the scheme of the Act by imposing an excessive burden on the applicant. As Mr. Justice Blais noted, in John Doe v. Canada (Attorney General), [2004] F.C.J. 555,
¶ 36 The standard of proof in establishing the entitlement to a pension is much lower than the balance of probabilities, from the wording of the Act itself.
[30] Although the new evidence did not unequivocally establish the existence of a causal relationship between the applicant's complaints and his military service, it may nevertheless serve as a reasonable basis to support the theory that his complaints are attributable to his military service. In fact, in his letter of January 29, 2003, Dr. Nagpal stated:
Mr. Thériault was in the military in the remote past and at that time he was complaining of pain in his legs when he walked. I stated in my previous letter that it is impossible to know exactly what the problem was at that time, but I can tell you that young men in the military can have problems with their vasculature of their lower legs, because of excess physical activity. The fact that his peripheral vascular disease is significantly worse now maybe related to early problems in the military. This particular condition is called popliteal entrapment syndrome and certainly could be a possibility in this gentleman, if he had classic claudication at that age...So in summary, the question you are asking me, could this vascular problem have been a prodrome of problems in the future[?] The answer is there is that possibility as he falls into the category of the high-risk group for popliteal entrapment, namely young man in military service.
[Emphasis added]
[31] In the absence of any contradiction in this evidence alone, which was considered credible, the Board had to orient its decision in accordance with the evidentiary rules in section 39 and the interpretative rule in section 3, that is, draw from the evidence every reasonable inference in favour of the applicant, accept any uncontradicted evidence presented to it by the applicant that it considers to be credible and resolve in the applicant's favour any doubt as to whether the applicant has established a case.
[32] To reach its conclusion, the Board commented on the expert medical evidence and made some inferences from it, although the Board itself does not have any particular expertise in such matters. Moreover, as the applicant points out, the Board erroneously concluded that there was no reference to the "claudication" syndrome in the applicant's medical file before Dr. Nagpal submitted his final report, since that medical file did contain a report by Dr. Jean-Marie Michel, who has been the applicant's treating physician since 1972, in which he states:
[translation] Since I have known Mr. Thériault, he has always suffered from vascular problems in the lower extremities, and as early as 1972 displayed some intermittent claudication....
[33] The Board's decision, as it is written, is unreasonable and cannot be immune to the intervention of this Court. In Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (T.D.), Mr. Justice MacKay stated, at paragraph 28:
... where there is no contradictory evidence and the Board does not accept the applicant's evidence without explanation of that, it commits an error that goes to jurisdiction... [and the decision] is unreasonable and warrants intervention by the Court. The standard of patent unreasonableness, in my opinion, is not apt if the error concerns the exercise of the Board's jurisdiction.
[34] In this case, the explanations provided by the Board to ignore the applicant's new evidence are so unsatisfactory as to be comparable, for the purposes of applying the Wood decision, to a lack of explanation.
[35] For all of these reasons, this application for judicial review is allowed, the decision of the Board, dated May 23, 2003, is set aside and the matter is returned for rehearing.
"P. Rouleau"
Judge
OTTAWA, Ontario
July 12, 2004
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1351-03
STYLE: Donat Thériault and
Attorney General of Canada
PLACE OF HEARING: Fredericton, N.B.
DATE OF HEARING: June 7, 2004
REASONS FOR ORDER: The Honourable Mr. Justice P. Rouleau
DATED: July 12, 2004
APPEARANCES:
Bertin Thériault FOR THE APPLICANT
Sandra Doucette FOR THE RESPONDENT
SOLICITORS OF RECORD:
Thériault, Larocque, Boudreau FOR THE APPLICANT
Shippagan, New Brunswick
Department of Justice Canada FOR THE RESPONDENT
Halifax, Nova Scotia