Date: 19990127
Docket: T-157-98
BETWEEN:
BRIAN CHRISTOPHER BRADLEY
Applicant
- and -
THE ATTORNEY GENERAL FOR CANADA and
THE VETERANS REVIEW AND APPEAL BOARD CANADA
Respondents
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act from a decision of the Veterans Review and Appeal Board Canada (VRAB) of December 3, 1997 denying the applicant"s pension entitlement.
FACTS
[2] The applicant was born on August 4, 1949. He served in the Militia from March 5, 1966 until August 15, 1966. He further served in the Reserve Force from July 14, 1988 to December 9, 1988 and thereafter served in the Regular Force from December 14, 1988 to March 30, 1993.
[3] The applicant testified that, at the time of the incident, he was completing Phase 4 (last) of his Officer Training and was on a return Pacific tour aboard the H.M.C.S. Qu"Appelle. On the night in question, the ship tied up in Vancouver.
[4] The applicant stated that he went to the Mess and in the late P.M. (about an hour after dinner), he left the Mess to shower. He testified that he had three or four beers before leaving the Mess and this would have been over a couple of hours duration.
[5] He further stated that the incident occurred in the shower as he lifted his leg to wash that part of his body, he lost his balance falling against the bulkhead, hitting the back and neck areas and eventually falling on his hip. The applicant stated that he had received no other injuries to the neck area during service or in the post-discharged period.
[6] On March 22, 1996, the applicant made an application for a disability pension under the Pension Act, on the basis of disabilities resulting from the injuries incurred by him in an incident on H.M.C.S. Qu"Appelle on July 14, 1990 and alleging that those injuries arose out of or were directly connected with military service in these times.
[7] On February 4, 1997, the Department of Veterans Affairs made a decision that the pension entitlement could not be granted.
[8] On May 8, 1997, the Entitlement Review Panel made a decision denying pension entitlement on the basis that the claimed condition did not arise out of or was directly connected to military service.
[9] On December 3, 1997, the Veterans Review and Appeal Board made a decision denying pension entitlement on the basis that the claimed condition did not arise out of or was not directly connected to military service.
ISSUE
[10] The two parties at the hearing agreed on the facts and they also agreed that the only issue to be determined in this instance is whether or not the claimed condition arose out of or was directly connected to military service.
[11] Therefore, it will not be necessary to address any of the arguments raised by the applicant on the issue of the claimed condition arising out of the fall in the shower, in 1990.
[12] The Entitlement Review Panel made its decision based on two elements:
The Board based this conclusion on the fact that there is no mention of injury to the upper back in any of the medical reports, as well as the medical findings regarding upper back at discharge.
The Board also finds that the circumstances surrounding the incident do not support the Applicant"s contention that he was on duty at the time of the incident. The evidence indicates that he had just returned from the Mess and was preparing to go out which indicates off-duty status.
Based on these reasons, the Board affirms the Minister"s decision dated 4 February 1997.
ANALYSIS
[13] The Veterans Review and Appeal Board in making its decision has reviewed the medical records and made many comments on the medical situation of the applicant; nevertheless, the decision made by the Board was based on one particular element:
Previous decision found at VRAB-4 clearly identifies a duty status in as far as the Appellant"s unit had just returned from field exercises to their home base, and were given time to clean up after which they were ordered to present themselves for a foot inspection. The Appellant suffered a slipping accident while showering and injured his left foot.
The Board sees no reason to reverse the Entitlement Board decision as in this injury, the Appellant was clearly off duty and "on his own time". Therefore, pension entitlement is not indicated and the Entitlement Review decision dated 8 May 1997 is affirmed.
[14] The Board had to consider the Pension Act1 and the Veterans Review and Appeal Board Act2.
[15] In making its decision, the Board has adopted the wrong test to determine the applicant"s entitlement to a pension and it is a jurisdictional error.
[16] The Board simply refused to enter or neglected to enter upon an examination of the question as to whether or not the applicant"s disability "resulted from injuries that arose out of or were directly connected with military service in peace time".
[17] As Justice Gibson mentioned in Ewing v. Canada (Veterans Review and Appeal Board)3:
I find that the error of the Board in adopting the wrong test to determine the applicant"s entitlement to a pension is a jurisdictional error. The Board simply refused or neglected to enter upon an examination of the question as to whether or not the applicant"s disability resulted from injuries that arose out of or were directly connected with his military service in peace time, taking into account s. 21(3)(f) of the Pension Act . In so refusing, it failed to consider the evidence before it and the relevant provisions of law in accordance with the interpretive obligations imposed on it by s. 2 of the Pension Act and ss. 3 and 39 of the Veterans Review and Appeal Board Act.
[18] I have reviewed carefully the Ewing case which gives a good indication as to how the matter should be resolved.
[19] Mr. Ewing was with the military police and was involved with public relations activities in relation to the Canadian Air Force hockey team. On the evening of November 29, 1965, Mr. Ewing was invited by a West German neighbour of his to accompany the neighbour on a drive in the neighbour"s new car. Mr. Ewing agreed. They were involved in an automobile accident which resulted in the death of the neighbour and of others. Mr. Ewing was seriously injured. A Board of Inquiry was convened to determine whether the applicant"s injuries were sustained in the performance of his duties. The Board of Inquiry found that he was not on duty at the time of the accident. Mr. Ewing made a claim for a pension, under the Pension Act , on the basis of disabilities resulting from the injuries incurred by him in the car accident and alleging that those injuries arose out of or were directly connected with "military service in peace time". The Canadian Pension Commission rejected his application on February 9, 1994. It concluded:
There is no evidence which would tend to establish that the injury was incurred at a point in time when the applicant was actually engaged in the performance of a duty and therefore his injuries are not attributable to military service as such. To the contrary, the Board of Inquiry clearly establishes that the Applicant was not on duty at the time of the accident.
[20] The Federal Court through Justice Gibson rendered a decision in favour of the applicant in which he noted that:
...Whether or not he was on duty is simply not the test. The test is whether or not the applicant"s injuries leading to disability... arose out of or [were] directly connected with... military service [in peace time].4
[21] My review of the evidence, which was before the Board, is to the effect that the applicant was in fact in training when the incident occurred. The Entitlement Review Panel states at page 3:
Relating to the 1990 injury, he testified that at the time of the incident he was completing Phase 4 (last) of his Officer Training and was on a return Pacific tour aboard the H.M.C.S. Qu"Appelle. On the night in question the ship tied up in Vancouver.
[22] Further in the advocate"s submission before the Appeal Board, the advocate indicates that:
The appellant testified to the effect that the ship he was onboard was docked in a Northern Vancouver Island port. He was officer under training at the time... He was not granted any leave and presumably would be required to return his place of duty onboard the ship at a moments notice should the ship be required to sail.
CONCLUSION
[23] My assessment is to the effect that evidence that the applicant was on training was ignored by the Board, which is a consideration directly relevant to the determination of whether the claimed condition was connected to military service in accordance with section 21(3)(f) of the Pension Act.
[24] I would conclude in the same way Gibson J. did in the Ewing case:
I find that the error of the Board in adopting the wrong test to determine the applicant"s entitlement to a pension is a jurisdictional error. The Board simply refused or neglected to enter upon an examination of the question as to whether or not the applicant"s disability resulted from injuries that arose out of or were directly connected with his military service in peace time, taking into account paragraph 21(3)(f) of the Pension Act . In so refusing, it failed to consider the evidence before it and the relevant provisions of law in accordance with the interpretive obligations imposed on it by section 2 of the Pension Act and sections 3 and 39 of the Veterans Review and Appeal Board Act.
Based on the foregoing, I conclude that this application for judicial review should be allowed, that the decision of the Board should be set aside and that the applicant"s application for a pension should be referred back to the Board for rehearing and redetermination by a differently constituted panel.
[25] For these reasons, this application for judicial review is allowed, the decision of the Board is set aside and the applicant"s application for a pension is referred back to the Board for rehearing and redetermination by a differently constituted panel, without costs.
Pierre Blais
Judge
OTTAWA, ONTARIO
January 27, 1999
__________________3 (1998), 137 F.T.R. 298 (F.C.T.D.).
4 Ewing v. Canada (Veterans Review and Appeal Board) supra, at p. 303.