Date: 20000211
Docket: T-1530-98
Ottawa, Ontario, this 11th day of February 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
ROBERT KING
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] When Robert King fell off a personnel carrier in 1968 and injured his back, he could not know that 30 years later he would still be fighting with the veteran"s pension administration over his disability pension. But it is now 19991, and Mr. King brings an application for judicial review of yet another appeal from yet another unsuccessful review his pension assessment. There was a time when Mr. King"s pension, though not necessarily to Mr. King"s satisfaction even then, was considerably more generous than it is now. But in 1991, the Director of the Pensions Medical Advisory Directorate (the "Director") who had not examined Mr. King, nor read his entire file, determined that Mr. King"s pension assessment had been badly overstated. The Director recommended drastic reductions in Mr. King"s pension assessment and, notwithstanding the prior rulings of its own Assessment Panels, the Pension Commission implemented the recommendations without prior notice to Mr. King. He has been fighting to have his pension reinstated to its former level ever since.
[2] This application is the latest skirmish in this struggle. It is an application dated July 24, 1998 for judicial review of the decision of the Veteran"s Review and Appeal Board ( the Board) dated May 8, 1998 affirming a decision of an Assessment panel dated December 11, 1997, which the Board declined to reconsider as evidenced in a letter dated July 2, 1998. The latter date is important since it is from this date that Mr. King reckons the 30 days within which he must begin his application for judicial review.2 The respondent argues that the application is out of time since it was communicated to Mr. King in May and s. 18.1(2) of the Federal Court Act makes the date of communication the trigger date, not the date of some later proceeding. While the respondent is generally correct in its position, in the circumstances of this case, I exercise my discretion to extend the time for the bringing of the application for judicial review up to and including July 24, 1998, the date of the Notice of Application. I do so because I believe that it is in the interests of all parties including the Court to have parties attempt to resolve their differences between them before resorting to judicial intervention. As a result, I am prepared to extend the deadline to allow for exploration of meaningful alternatives to court applications.
[3] Mr. King seeks to have the Board"s decision set aside on four grounds:
| - The Board did not draw all inferences favourable to Mr. King nor did it give him the benefit of the doubt with respect to the evidence, contrary to sections 39 and 3 of the Veteran"s Review and Appeal Board Act, R.S.C. 1985 c. V-1.6. |
| - The Board failed to give effect to uncontradicted medical evidence. |
| - The Board failed to give adequate reasons for its decision. |
| - The Board arrived at a decision which is not supported by any evidence. |
[4] The procedural history of this matter is extremely long and rather complex. For the purposes of this application, the following summary is sufficient. Prior to the intervention of the Director, Mr. King had established entitlement to pension benefits with respect to three conditions, namely:
-ligamentous strain lumbar spine - full entitlement
-chronic anxiety with tension headache - 3/5 entitlement
-coccyx fracture - full entitlement
[5] He had also been assessed by several assessment panels as to the degree of disability he suffered as a result of these conditions. Prior to the intervention of the Director, his assessment of disability for these conditions was as follows:
-ligamentous strain lumbar spine - 50%
-chronic anxiety with tension headache - 60%
-coccyx fracture - 0%
[6] As a result of the Director"s intervention, Mr. King"s assessment was reduced on November 12, 1991 to the following:
-ligamentous strain lumbar spine - 5%
-chronic anxiety with tension headache - 0%
-coccyx fracture - 0%
[7] There followed a string of applications, reviews and appeals by which Mr. King laid siege to the Board. But the thick oak doors of the Board"s keep have not yielded to the battering to which Mr. King has subjected them though they did open enough to let some small increases through. At the date of the assessment from which this application for judicial review is taken, May 1998, Mr. King"s efforts had resulted in the following assessments being in place:
-ligamentous strain lumbar spine - 10%
-chronic anxiety with tension headache - 9%
-coccyx fracture - 5%
[8] It is the failure of the Board to increase these assessments in the light of further medical evidence which is the basis of Mr. King"s application for judicial review.
[9] The medical evidence submitted to the Assessment Panel is a letter from Mr. King"s family physician, Dr. Li, dated December 4, 1997. The Board had before it another letter from Dr. Li dated March 10, 1998 in which the latter made certain supplementary comments. Those letters are reproduced below:
| 4 Dec 1997 |
| Mr. Scott F. Fowler |
| Fowler & Fowler |
| P.O. Box 721, 885 Main Street, Suite 11 |
| Moncton, N.B. |
| E1C 8M9 |
| Dear Mr. Fowler: |
| Re: Mr. Robert King |
| 44 Havenwood Court, Moncton, N.B. |
| Further to my report to the Dept. of Veterans Affairs dated on 22 May 1997, I found that Mr. King"s conditions had remained unchanged in the last 6 months. He continues to be greatly affected by his 3 major illnesses: |
| Ligamentous strain of the lumbar spine. This has been documented by numerous other physicians in the past. He continues to have intractable pain involving the lumbar area with radiation to the upper back, neck and to both legs. He stated that the pain is constant and would be exacerbated by simple movements. The pain has curtailed his activities of daily living and is unable to participate in any physical and leisure pursuits. The pain affects his sleep and sexual enjoyment. He is currently on Indocid and Tylenol #3, and he uses a T.E.N.S. machine. He needs to wear a back brace during most of his waking hours. He needs help with dressing and bathing. |
| When examined on 25 Nov 1997, there were marked tenderness along the lumbar spine and musculatures, and forward flexion was limited to hands to mid thigh by back pain. Straight leg raising was normal. The reflexes were normal. He walked with the help of a walker and was able to walk the full length of the 20' corridor slowly by himself. He reported that he often need a wheelchair to go for longer outings, which is far in between. An important physical findings is that he has morbid obesity, weighing in at 254 lbs, which no doubt further aggrevated his back pain. He had actually gained 30 lbs since 1992 as he claimed that he cannot exercise to lose weight; |
| Chronic anxiety with tension headaches. He has an anxiety neurosis that caused continuous moderate distress for him. He is particularly fixated at his pain syndrome and he seems to be obsessed with the pension appeal process, instead of focussing his energy toward developing better coping mechanism for his chronic pain condition. He claims that he is very edgy and could be quite temper mental at home, causing significant discord for his family. He and his wife had been separated at times due to his psychological maladaptation. He also complains of insomnia and chronic headaches. His concentration and memory is poor at times and he often has a depressed mood. He tends to overreact to different life stressors and had periods of severe psychological decompensation requiring hospitalization in the past. He had documented suicidal attempts, the last one being in May 1990. Currently he did not voice any suicidal ideation. |
| For his anxiety and depression, he is on Paxil 20 mg a day, Mellaril 50 mg twice a day and (illegible) 0.5 mg 3 times a day. I am providing him psychological and spiritual counselling, but he will require in-depth counselling to help him with his problems; |
| Coccyx fracture. He complains that he has difficulty sitting, and often requires a donut cushions. He is prone to constipation which would aggravate the coccygeal pain, hence he needs a regular stool softener. |
| In conclusion, I feel that Mr. King has a severe disability based on his ligamentous strain of the lumbar spine at 50%, chronic anxiety with tension headaches at 40%, and coccygeal pain at 10%. Please see the attached disability assessment table for further details. |
| Yours truly |
| John H.L. Li |
| 10 March 1998 |
| Mr. Scott Fowler |
| Fowler & Fowler |
| P.O. Box 721, 885 Main Street, Suite 11 |
| Moncton, N.B. |
| E1C 8M9 |
| Dear Mr. Fowler: |
| Re: Mr. Robert King |
| 44 Havenwood Court, Moncton, N.B. |
| I"m writing to you to clarify my report on Mr. King dated on 4 Dec 1997. |
| Regarding his chronic back pain, I am aware that he also suffers from degenerative arthritis of the lumbar spine and that he had past spinal fusion. I would like to draw your attention to a report by Dr. Andrew Clark dated on 1 September 1992 which was addressed to you. In paragraphs 5 of page 3 of this report, Dr. Clark stated that "His subsequent problems leading to the spinal fusion would appear to be a direct consequence of the original injury. In turn, his present complaints and radiological evidence of degenerative disc disease at the L3-4 level above the spinal fusion are also a known long-term consequence from a spinal fusion". |
| It is my opinion that Mr. King"s chronic back pain condition is solely caused, directly and indirectly by the initial accident dated in 1968 during which he received the ligamentous strain of the lumbar spine. Therefore, my report on 4 Dec 1997, I referred specifically to the ligamentous strain of the lumbar spine when I assessed his degree of disability related to the lumbar spine. |
| Chronic anxiety with tension headache. In my report dated 4 Dec 1997, I would like to clarify that the clinical findings and disability assessment in the psycho neurosis scale was solely based on the chronic anxiety with tension headache which led to a 30-40% disability. |
| Mr. King did suffer from periods of disability of up to 100% on the psychoneurosis scale, when he had exacerbation of depression and chronic pain syndrome. I included these information on my last report as I feel that the Veterans Review and Appeal Board should be cognizant of the fact that Mr. King is indeed suffering tremendously from his disability and which can at times render him totally disabled. |
| I would like to add that Mr. King has been placed on Ms Cantin 15 mg twice a day and MSIR 5 mg every 4 hrs when needed for his chronic back pain. |
| In my previous letter to you dated 5 June 1995, I erroneously dated the initial accident in 1969 instead of the correct year of 1968. |
| I sincerely hope that the above clarifications will help the Board to review Mr. King"s appeal in a more favourable light. I remain, |
| Yours sincerely |
| John H.L. Li |
[10] In its considerations of Mr. King"s appeal, the Board did not limit itself to a consideration of the evidence submitted by Mr. King, it also relied upon the "summary of evidence in the Assessment Panel Review documentation". In the Board"s view "That summary is believed to be accurate and complete and is accepted as the evidence for the purpose of this appeal".
[11] With respect to the ligamentous sprain lumbar spine, this is what the Board took from the evidence:
| ... In that letter the physician noted he had examined the Appellant on 25 November 1997 and found straight leg raising and reflexes were normal, forward flexion restricted to hands to mid-thigh. He said medication included Tylenol #3 and Indocid, and indicates the Appellant has intractable pain involving the upper lumbar area with radiation to the upper back, neck and to both legs. He wears a back brace. According to Dr. Li the Appellant uses a TENS machine and requires the use of a walker. He has sleep disturbances and the pain affects his sexual enjoyment. |
[12] The Board then concludes:
| This Board has reviewed the clinical findings with the Veterans Affairs Canada Table of Disabilities and finds the present 10% assessment very adequately reflects the degree of disability from the pensioned, ligamentous strain lumbar spine. |
[13] The Veterans Affairs Canada Table of Disabilities with respect to assessment of
lumbar spine provides the following descriptions of the various degrees of disability:
BACK DISABILITIES
TABLE 1 TO ARTICLE 19.04 .............................ASSESSMENT OF LUMBAR SPINE
| ASSESSMENT |
SYMPTOMS (SEE NOTE) |
POSTURE |
RANGE OF MOTION |
STRAIGT LEG RAISING |
REFLEXES AND/OR |
WASTING |
TOE 7 HEEL WALKING |
MEDICATION |
BACK BRACE |
| 0 TO 10% |
Occasional mild pain |
Little loss of lumbar lordosis |
Nearly full range of motion |
90 degrees essentially painless |
Normal |
None |
No impairment |
Essentially nil |
No |
| 10 to 20% |
Recurrent mild pain |
Slight flattening of lumbar lordosis |
Decreased by at least 20% |
60 to 90 degrees back and buttock discomfort |
Normal |
None |
No impairment |
Minimal not continuous |
No |
| 20 to 30% |
Recurrent moderate or mild continuous pain |
Loss of lumbar lordosis and/or scoliosis |
Decreased 30- to 50% alteration of rhythm |
Less than 75 degrees radiation beyond buttock |
Present may be diminished |
Wasting Minimal |
No impairment |
Mild regular medication |
May be worn |
| 30 to 40% |
Moderate relatively constant pain |
As for 20 to 30% |
Decreased 50% minimal lumbar movement |
As for 20 to 30% |
Reflex and\or sensory change probably present |
Wasting moderate Possible alteration Moderate regular medication |
May be won |
||
| Above 40% |
Unusual complications such as alteration of bodily function or intractable pain. |
(Note: Pain may be lumbar and/or referred due to nerve root pressure)
[14] In reviewing the Table, one is left to wonder how the Board concluded that the 10 to 20% range of disability was found to be appropriate. It is true that Dr. Li noted that reflexes were normal and straight leg raising was normal. These two elements taken by themselves would put Mr. King in the 10 to 20% range. But they are not by themselves. They are accompanied by intractable pain, use of a walker or wheelchair, use of a back brace, reduced flexion, all of which suggest a higher rating than 10%. None of this is addressed in the Board"s reasons. The reasons given by the Board are not responsive to the evidence and are inadequate.
[15] When dealing with Mr. King"s chronic anxiety with tension headache injury, the Board took the time to chide Dr. Li for presuming to usurp the Board"s function by making findings as to degree of disability. The Board pointed out that it is for the Board to apply the Table of Disabilities to the facts. "As a rule, the physician will provide a very detailed medical report in letter form, based on this the Board applies these findings to the appropriate section of the Table of Disabilities".
[16] One might contrast this with s. 35(2) of the Pension Act, R.S.C.1985 c. P-6 which is the legislative authority for the Table of Disabilities:
| (2) The assessment of the extent of a disability shall be based on the instructions and a table of disabilities to be made by the Minister for the guidance of physicians and surgeons making medical examinations for pension purposes. (Emphasis added) |
(2) L'estimation du degré d'invalidité est basée sur les instructions et sur une table des invalidités que prépare le ministre pour aider les médecins et les chirurgiens qui font des examens médicaux pour déterminer des pensions. (Je souligne) |
[17] It is true that s.18 of the Act gives the Board jurisdiction with respect to reviews of pension decisions and s. 26 gives the Board jurisdiction with respect to appeals. It is also true that the Board cannot have been intended to simply rubber stamp any medical opinion put before it. But s. 35(2) is clear that the Table of Disabilities is provided for the guidance of physicians and surgeons, no doubt to promote a uniform standard for assessment. If physicians and surgeons are limited to listing symptoms and signs which the Board will then classify according to the Table, it cannot be said that the Table is for their guidance. In such a case, the Table would be for the Board"s guidance.
[18] The french version of the section says that the Table is provided to help ("aider") physicians and surgeons who conduct medical examination "pour déterminer des pensions". Déterminer is defined in Le Nouveau Petit Robert , Dictionnaires Petit Robert, Paris, 1993 as follows: " Indiquer, délimiter avec précision, au terme d"une réflexion, d"une recherche" which I translate as "to define with precision following an inquiry". Harrap`s French English Dictionary", Harrap, Edinburgh, 1994 translates "déterminer" as "to determine (species, value, noun, area, etc)". This does not support the view that physicians and surgeons are mere cataloguers of indicia of disability for the Board. It is not necessary for me to decide the respective roles the Board and physicians and surgeons in the pension scheme for purposes of this application but I do not accept the Board"s narrow definition of the role of physicians and surgeons in the assessment process. It is sufficient for these purposes to say that having regard to the expertise of physicians and surgeons in assessing disability, and the legislative provisions which suggest that physicians have a role to play in assessing the degree of disability, the Board cannot reject a physician"s assessment of disability without providing meaningful reasons as to why it is doing so.
[19] The Board purported to apply the findings reported by Dr. Li to the Table of Disabilities which, in its view confirmed the finding of 15%. The Table of disabilities for psychoneurosis is reproduced below:
| CLINICAL FINDINGS |
PATTERN PAST 4-5 YEARS |
TREATMENT |
REACTION TO RECENT STRESSORS |
|
| 0 - 5% |
Mild, episodic, largely situational tension and anxiety-related complaints |
Generally stable. Nil to minimal minor upsets. General function within normal limits. |
Nil to minimal. |
Normal |
| 10 - 25 % |
Continuous mild or episodic distress usually with anxiety, depressive phobic or somatoform characteristics. Minor objective findings on exam. |
General functioning minimally restricted. Discrete episodes of worsening without precipitation cause. |
Intermittent. Moderate or minimal maintenance. Tranquilizer, sedative, or anti-depressant. Periodic physician visits as required. |
Transient overreactions to untoward events. |
| 30 - 40 % |
Continuous moderate or episodic severe distress with troublesome restrictions due to anxiety, depression, obsessions, compulsions, or phopias. Obvious objective findings on exam or to close associates. |
General functioning significantly restricted. Discrete episodes of severe restriction. May have suicidal ideation when acutely upset. |
Prescribed specific tranquilizers or anti-depressants. Regular medical care. Intermittent psychiatric intervention. |
Severe and protracted overreaction to untoward events. |
| 50 % OR MORE |
Usually markedly disabling and nearly continuous distress approaching the severity found in psychotic disorders. |
Unable to carry out general functioning unaided. Continuously disturbed. |
Continuing psychiatric care. |
Unable to cope with ordinary events. |
.
[20] Once again it is not apparent how the Board came to the conclusion it did as to the degree of disability. Dr. Li refers to "continuous moderate distress" "decompensation requiring hospitalization" past suicide attempts. The Board made no reference to those and simply stated its conclusion.
[21] Section 7 of the Veterans Review and Appeal Board Regulations requires the Board to give reasons for its decisions. Its failure to do so is an error of law which justifies the intervention of the Court.
[22] In Mehterian v. Canada, [1992] F.C.J. 545, the Federal Court of Appeal held that where reasons are required to be given, " the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary". In that case, as in this one, the reasons consisted of a statement of conclusions reached but did not show how that conclusion had been reached.
[23] The next issue is the question of remedies. Counsel for Mr. King argues that the Board is bound to accept the uncontradicted evidence of Mr. King"s family physician and that therefore the Board should assess Mr. King"s disability in accordance with Dr. Li"s assessment. In my view, this shows a misunderstanding of the nature of the Board"s review. As the Board noted at the beginning of its decision, it accepted as accurate the "summary of evidence in the Assessment Review Panel documentation." I know of no principle which would require the Board to disregard the evidence which has accumulated in a claimant"s file over a period of time. As a result, it would require a detailed analysis of all the evidence on Mr. King"s file to determine if Dr. Li"s evidence is uncontradicted. Had the Board given reasons, one could determine which evidence it relied upon in choosing not to give effect to Dr. Li"s evidence. All this to say, that this Court cannot simply direct the Board to give effect to Dr. Li"s evidence.
[24] The usual remedy in these circumstances would be to refer the matter back for rehearing by a differently constituted Assessment Appeal Panel. However, this is not a usual case. This application follows an earlier application by Mr. King to set aside the reduction of his assessment by the Commission which was heard by my colleague, Mackay J.
[25] Mackay J. held that the process which lead to the reduction of Mr. King"s pension was "extraordinary".
| It seems bizarre that a pension being paid at a rate established by earlier appeals to the VAB, and in relation to entitled conditions, can be reduced very significantly after consideration of reports of medical specialists, including a number to whom the Commission referred the applicant, where the examining doctors recommend increases in pension. If the doctors' reports were not related to matters of concern to the Commission surely that was a matter to be straightened out by the Commission, which arranged for their assessments, before the Commission ignored them. If, as counsel for the respondent suggested, the comments of doctors related to conditions other than those for which entitlement had been accorded but which those doctors clearly related to his original injury, then the appeal by the applicant in regard to reduction of his assessments ought not to have precluded the Commission from simultaneously commencing review of Mr. King's entitlement. Particularly is this so if, as counsel for the respondent suggested, there appeared no dispute that the applicant's overall condition, probably traceable to his original injury, warranted significant pension support based on entitlement related to conditions not yet considered. |
[26] Mackay J held that the Board erred in law in not taking into account and acting upon evidence which would have justified referring Mr. King"s file to the Commission for reconsideration of his entitlement. If, as the Commission appears to have concluded, there was a problem of "fit" between the assessments and the entitlements, the question of reviewing the entitlement ought to have arisen rather than simply slashing Mr. King"s assessments. His order that the Board refer the matter to the Commission for review of entitlement was intended to have that issue addressed.
[27] The panel of the Board to which the matter was remitted considered that it could not embark upon an entitlement review and did not refer the matter to the Commission as ordered. It"s conclusion was as follows:
| It is clear therefore that the Board is limited to the consideration of matters that are appealed to it, and the Act provides no mechanism pursuant to which the Board may consider matters that have not been brought before it on appeal. Furthermore, it is solely with an applicant that the onus to initiate an appeal resides and the Board may not undertake an appeal of any part of a Commission decision rendered pursuant to section 87 or 8 unless it is specifically requested to do so by an applicant. |
[28] With the greatest of respect for the Board, this is not what they were called upon to do. It is unfortunate that the Board did not seek directions if it was unclear as to what MacKay J."s order required it to do. In the end result, the review of entitlement which Mackay J. ordered did not occur.
[29] It is not my function in an application for judicial review of one decision to address non-compliance with an order made by another judge. The difficulty is that all assessment appeals since then have continued to run afoul of the limitations imposed by the original entitlement decision. The order which is before me suffers from the same defect. While it is admitted that Mr. King suffers from a multitude of misfortunes, all attempts to have his assessment increased run into the issue of his entitlement to pension for conditions which, according to some of the medical evidence at least, are the direct consequence of his original injury. Referring this matter back to another Assessment Appeal Board will not change the result because that Board is limited to dealing with assessment questions.
[30] The appeal which is the subject of this application was, it appears from the record, in response to a determination by the Minister on or about July 17, 1997 as to the assessment of Mr. King"s condition. Neither the application nor the decision is contained in the record before me so I do not know what was contained in the application. Pursuant to Section 85 of the Pension Act , the Minister is entitled to reconsider his decision if asked to do so by the Board.
| 85. (1) The Minister may not consider an application for an award that has already been the subject of a determination by the Veterans Review and Appeal Board or one of its predecessors (the Veterans Appeal Board, the Pension Review Board, an Assessment Board or an Entitlement Board) unless (a) the applicant has obtained the permission of the Veterans Review and Appeal Board; or (b) the Veterans Review and Appeal Board has referred the application to the Minister for reconsideration. |
85. (1) Le ministre ne peut étudier une demande de compensation déjà jugée par le Tribunal ou un de ses prédécesseurs " le Tribunal d'appel des anciens combattants, un comité d'évaluation, un comité d'examen ou le Conseil de révision des pensions " que si le demandeur a obtenu l'autorisation du Tribunal ou si celui-ci lui a renvoyé la demande pour réexamen. |
[31] Unless the application raises the issue of entitlement, reconsideration will not necessarily address that issue. But the Minister has an independent right to review decisions and to correct errors which he finds in those decisions.
| 82. (1) Subject to subsection (2), the Minister may, on the Minister's own motion, review a decision made by the Minister or the Commission and may either confirm the decision or amend or rescind the decision if the Minister determines that there was an error with respect to any finding of fact or the interpretation of any law, or may do so on application if new evidence is presented to the Minister. (2) Subsection (1) does not apply with respect to a decision made by an Assessment Board or Entitlement Board under the former Act. |
82. (1) Le ministre peut, de son propre chef, réexaminer sa décision ou une décision de la Commission et soit la confirmer, soit l'annuler ou la modifier, s'il constate que les conclusions sur les faits ou l'interprétation du droit étaient erronées; il peut aussi le faire sur demande si de nouveaux éléments de preuve lui sont présentés. (2) Le paragraphe (1) ne s'applique pas aux décisions rendues, en vertu de la loi antérieure, par un comité d'évaluation ou un comité d'examen. |
[32] The issue which arises is whether the application in question was made under the former Act.
| "former Act" means the Pension Act, as it read immediately before the day on which section 73 of An Act to establish the Veterans Review and Appeal Board, to amend the Pension Act, to make consequential amendments to other Acts and to repeal the Veterans Appeal Board Act comes into force. |
| "_loi antérieure_" La Loi sur les pensions, dans sa version antérieure à l'entrée en vigueur de l'article 73 de la Loi constituant le Tribunal des anciens combattants (révision et appel), modifiant la Loi sur les pensions et d'autres lois en conséquence et abrogeant la Loi sur le Tribunal d'appel des anciens combattants. |
Section 73 of the Veterans Review and Appeal Board Act came into force on June 15, 1995.
[33] I am unable to tell from the material before me whether the application which led to the decision of July 17, 1997 was made after June 15, 1995 but assuming it was, the Minister has a discretion to address all issues arising out of the application if he is moved to do so. That, of course, is a matter for the Minister. All this Court can say is that this appears to it to be a case in which the exercise of the Minister"s discretion to review the issue of Mr. King"s entitlement would be in the interests of justice.
[34] In the end result, there will be an order setting aside the Appeal Board decision dated May 8, 1998 and remitting the matter to the Veterans Review and Appeal Board. The Board will be ordered to refer the matter to the Minister for reconsideration pursuant to s. 85 of the Pension Act.
[35] In view of the fact that Mr. King might have been spared the expense of this application had MacKay J."s order been complied according to its terms, Mr. King shall have his costs of this application on a solicitor and client basis.
ORDER
For the reasons set out above, it is hereby ordered that:
| 1- the decision of the Veterans Review and Appeal Board dated May 8, 1988 is set aside. |
| 2- the matter is remitted to the Veterans Review and Appeal Board who shall refer the application which resulted in the Minister"s decision dated July 17, 1997 to the Minister for reconsideration pursuant to s. 85 of the Pension Act . |
| 3- the Applicant shall be awarded his costs of this application on a solicitor and client basis. |
"J.D. Denis Pelletier"
Judge
__________________
1 This refers to the date of the application, not the date of these reasons.
2 Federal Court Act R.S.C. c F-7 as amended s. 18.1 (2)
(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.