Date: 20010807
Docket: T-1043-99
Neutral Citation: 2001 FCT 857
BETWEEN:
WILLIAM SMITH
Applicant
-
and -
ATTORNEY GENERAL OF CANADA
Respondent.
REASONS FOR ORDER
MacKAY J.:
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act ,
R.S.C. 1985, c. F-7 as. amended, heard in St. John's, Newfoundland, on November 17, 2000, brought by the applicant against a decision of the Veteran's Review and Appeal Board (the "Board" or the "VRAB") dated May 11, 1999. By that decision the Board denied the applicant's appeal concerning his claim to pension benefits for disability from colitis which he alleges is the result of ingesting medication for osteoarthritis of the lumbar spine, a condition for which he received a pension.
[2] The applicant seeks an order quashing the decision of the Board and awarding,
retroactively, all benefits due the applicant as a consequence of his suffering from the claimed condition. In the alternative, the applicant seeks an order quashing the decision of the Board and referring the matter back to a differently constituted panel for redetermination.
Facts
[3] Mr. Smith, the applicant, was a member of the RCMP from July 4, 1973, to August
5, 1997. In both 1990 and 1992, he injured his back while on duty, and the injuries resulted in the permanent partial disability condition of osteoarthritis of the lumbar spine for which he received a pension since his retirement . The treatment for this condition involves the prolonged use of non-steroidal anti-inflammatory medication. It was after commencing use of these medications that the applicant began to experience bowel disorder symptoms. Medical reports indicate that the applicant's symptoms are indicative of inflammatory bowel disease ("IBD"), control of which requires continuing medication and medical care.
[4] As a result of this condition, the applicant applied for a further disability
pension on September 12, 1997, claiming his colitis resulted from drugs taken for his arthritic disability. The claim was denied by the Minister on December 5, 1997. The Minister 's decision letter referred to a comment by a medical officer of the Board, in October 1997, that "Drug induced colitis does not cause a problem unless he takes the drug again. Is this a disability?" At that stage, the Minister concluded there was no clear medical diagnosis and no disability established.
[5] That decision was appealed to the Entitlement Review Panel, and its subsequent
denial was appealed to the VRAB. It is from the Board's determination on May 11, 1999, denying the claim and upholding the decision of the Entitlement Review Panel, that this application for judicial review arises.
[6] In its decision dated October 1, 1998, the Entitlement Review Panel held: 1) there
was no confirmed diagnosis of the claimed condition; and, 2) there was no specialist medical opinion linking the pensioned condition and the suggestion, at that stage, of IBD. That decision was reached despite new evidence submitted by the applicant, including a report dated August 3, 1998, by Dr. R.O. Hart, the applicant's family physician. It stated that biopsies done by a specialist indicated the applicant suffered from an acute and chronic inflammation, suggestive of IBD, which, in the doctor@s opinion, would be considered to be a disability by anyone afflicted with the disorder. In Dr. Hart's opinion, the symptoms were caused by the prolonged use of non-steroidal medications for Mr. Smith's osteoarthritis.
[7] In appealing the decision to the VRAB, Mr. Smith relied upon a later report, by
gastroenterologist Dr. S.B. Reddy, dated November 26, 1998 ( i.e., after the decision of the Entitlement Review Panel), which stated in part: "Biopsies from his colon have suggested early inflammatory bowel disease." In relation to the symptoms suffered, an earlier Operation Report, dated May 22, 1997, prior to his retirement from the RCMP, indicated that Mr. Smith's symptoms were likely caused by the use of non-steroidal medications prescribed for, and taken by, the applicant for the control of pain resulting from his osteoarthritis.
[8] Throughout the lengthy appeal process the applicant has asserted, and still asserts,
that the correct interpretation of the available evidence is that he suffers from a disability as the result of colitis, a condition caused by the use of non-steroidal anti-inflammatory medication prescribed for the treatment of his pensioned condition of osteoarthritis of the lumbar spine.
[9] Despite the absence of any contradictory medical evidence, the Board determined
that there was neither a definitive medical diagnosis nor a medical opinion causally connecting the applicant's symptoms to the use of non-steroidal drugs. Thus, there was no link to Mr. Smith's pensioned disability. Therefore, the VRAB affirmed the decision of the Entitlement Review Panel.
[10] The respondent submits that the issues raised by this application concern the
appropriate standard of review, the sufficiency of evidence, and statutory compliance by the VRAB.
The Legislative Regime
[11] Members of the RCMP are eligible for pension benefits, in accord with the Pension
Act, R.S.C. 1985, c. P-6, pursuant to s.32 of the Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11, where injury, disease or aggravation thereof results in disability or death and arose out of, or was directly connected with, service in the force.
[12] The relevant statutory provisions include those of the Pension Act, which are:
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 ... service, and to their dependants, may be fulfilled.
5(3):
In making a decision under this Act, the Minister shall
(a) draw from all the circumstances of the case and all the evidence presented to the Minister every reasonable inference in favour of the applicant or pensioner;
(b) accept any uncontradicted evidence presented to the Minister by the applicant or pensioner that the Minister considers to be credible in the circumstances; and
(c) resolve in favour of the applicant or pensioner any doubt, in the weighing of evidence, as to whether the applicant or pensioner has established a case.
21.(1) and (2)
[These provide inter alia, for pensions for disability during wartime or peacetime service in prescribed circumstances]
21.(5): In addition to any pension awarded under subsection 21(1) or 21 (2), a member of the forces who
(a)
is eligible for pension under paragraph (1)(a) or (2)(a) in respect of an injury or disease or aggravation thereof, or has suffered an injury or disease or aggravation thereof that would be pensionable thereunder if it had resulted in a disability, and
(b) is suffering an additional disability that is in whole or in part a consequence of the injury or disease or the aggravation referred to in paragraph (a) shall, on application, be awarded a pension in accordance with the rates for basic and additional pension set out in Schedule I in respect of that part of the additional disability that is a consequence of that injury or disease or aggravation thereof.
[13] The Veteran's Review and Appeal Board Act, S.C. 1995, c.18 (the "VRAB Act")
creates statutory obligations for the VRAB, which deals with appeals on pension issues, as follows:
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 ... 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 weighing of evidence, as to whether the applicant or appellant has established a case.
[14] In supporting his position, the applicant relies on the decision in Ballingall v.
Canada (Minister of Veterans Affairs) (1994), 76 F.T.R. 44 at 49 (T.D.), where Mr. Justice Denault stated:
On a number of occasions the Federal Court of Appeal has indicated that a failure on the part of the [Board] to give effect to [sections 3 and 39 of the VRAB Act and section 2 of the Pension Act], or their precursors, in its decisions amounts to a reviewable error...
[15] Moreover, in relation to the interpretation of s-s. 39(1)(a), the forerunner os s.39(a) of the current Veteran's Appeal Act, Denault J. commented at page 50:
it would seem ... that a failure to interpret [the section] in a liberal manner or a failure to draw from the evidence every reasonable inference in favour of the applicant may be considered a reviewable error, despite the existence of the privative clause.
[16] In Ewing v. Veterans Review and Appeal Board (Can.) et al. (1997), 137 F.T.R. 298
(T.D.), Mr. Justice Gibson held that the failure of the Board to adopt the correct test in determining the applicant's entitlement to a pension is a jurisdictional error.
[17] The applicant asserts that the Board committed a jurisdictional error in neglecting to
give full force and effect to s-s. 5(3) of the Pension Act and s. 39 of the VRAB Act, and, in effect, refusing to acknowledge s. 2 of the Pension Act and s. 3 of the VRAB Act. Thus, it is submitted that the Board's decision is patently unreasonable and, therefore, reviewable.
[18] The respondent submits that s. 31 of the VRAB Act contains a privative clause which provides that the majority decision of the appeal panel forms a decision of the Board and is final and binding. It is asserted that this privative clause makes it difficult for the applicant to establish that a reviewable error was committed.
[19] The respondent notes that under s-s. 21(5), of the Pension Act, that Mr. Justice
Muldoon, in Hunt v. Canada (Minister of Veteran's Affairs) (1998), 145 F.T.R. 96 at 100 (T.D.), held that an applicant bears the onus of meeting the civil standard of a balance of probabilities for a successful application under this provision. It is the position of the respondent that the evidence presented to the Board by the applicant was insufficient to meet the necessary threshold.
[20] It is urged that although the applicant presented recent medical evidence
at each of the appeal levels, this merely suggested a link between the use of non-steroidal medications and the onset of IBD symptoms. It is contended that what was required was medical documentation providing a firm diagnosis and an opinion of its cause. It is urged that the medical evidence of the applicant provided only a qualified diagnosis of IBD. Each opinion offered a suggested diagnosis based on opinion with little or no analysis or assessment of a cause. It is, therefore, argued that the evidence advanced, even if uncontradicted, remains insufficient to establish a medical disability under s-s. 21(5) of the Pension Act.
[21] The respondent acknowledges that s. 2 of the Pension Act and s. 3 of the VRAB Act
share the common theme that the statutes should be liberally construed and interpreted. Moreover, s. 39 of the VRAB Act requires the Board to view the evidence before it in the best possible light when assessing whether the civil standard of proof has been met. In this case the VRAB did not expressly question the credibility of the medical evidence and it accepted the uncontradicted evidence in its entirety, but that evidence did not establish an additional disability that is wholly or partly a consequence of Mr. Smith@s existing pensionable disability.
[22] It is urged the Board may not infer a definitive diagnosis and causal relationship
where the medical evidence does not expressly so provide. While the medical documentation is suggestive of a diagnosis and a causal connection, it is urged that it stops short of drawing a decisive conclusion. For this reason, the Board submits that it is not reasonable for it to accept as a diagnosis a conclusion that is not sufficiently supported by the evidence. In distinguishing both Ballingall and Ewing, the respondent maintains there is no indication here that the Board failed to consider all of the evidence before it.
Analysis
[23] Mr. Justice Evans in McTague v. Canada (Attorney-General),
[2000] 177 F.T.R.5 (T.D.), discussed the appropriate standards of review for considering VRAB decisions. His comments were further elaborated by Mr. Justice Gibson in Trainor v. Canada (Attorney-General) (2000), 188 F.T.R. 77 at 80 (T.D.), as follows:
In McTague v. Canada (Attorney General) [supra], Mr. Justice Evans analysed the standard of review of decisions of the Board based upon a pragmatic or functional approach and concluded in the following terms at paragraph [48] of his reasons:
The weight of the factors considered above in the pragmatic or functional analysis suggests that Parliament should be regarded as prescribing a deferential standard of review in this case. However, they do not indicate that the most deferential standard should be applied. "Patent unreasonableness" seems increasingly to be reserved as the standard of review applied to the decisions of administrative agencies that are protected by strong preclusive clauses and have a wider range of regulatory responsibilities than the merely adjudicative functions performed by the Board. It is also the appropriate standard, as I have indicated above, where the issue in dispute involves findings of primary fact, including the drawing of inferences from the evidence.
Here, I am satisfied the issue in dispute does not involve findings of primary fact, including the drawing of inferences from the evidence, but rather a finding of mixed law and fact: whether the applicant, on the facts of this matter, ever was a member of His Majesty's Canadian Forces who was a Canadian veteran of World War II.
[24] I note that in McTague, Evans J. found on the facts that the decision there in question, whether a claimed injury arose from military service, was not a finding of primary fact, but a finding where the appropriate standard of review was reasonableness.
[25] In Cundell v. Canada (Attorney-General) (2000), 180 F.T.R. 193 at 204 (T.D.),
Teitelbaum J. found, with respect to circumstances similar to those before this Court:
I have carefully considered all of the evidence which was before the Board in arriving at its decision and I have concluded that the Board misapplied ss. 3 and 39 of the Act and misinterpreted the jurisprudence of this Court.
The Court went on to note at paragraphs 60 and 61:
If the benefit of the doubt must be resolved in the applicant's favour and the applicant must make proof "on a balance of probabilities", I am satisfied the decision of the Board is patently unreasonable.
I am also satisfied the Board erred in law by requiring a much greater standard of proof than the "balance of probabilities".
[26] In Schott v. Canada (Attorney-General) [2001] F.C.J. No. 126 at para. 26 (T.D.),
Hansen J. held:
In this case, I am similarly of the view that the VRAB could have reached its conclusion only by ignoring the evidence of Drs. Hurley and Jaeger, misconstruing their evidence, or misdirecting itself as to the effect of section 39 of the Act, in the face of credible and trustworthy evidence. Although eluded by certainty, as in Metcalfe [infra] the VRAB had sufficient evidence to uphold the applicant's claim, had it complied with the directions of section 39.
The Court found the findings of the VRAB to be perverse and set it aside.
[27] Finally, with respect to findings based on medical evidence and the statutory
obligations of the VRAB, the decision of Evans J. in Metcalfe v. Canada (Attorney-General) (1999), 160 F.T.R. 281 at 285 (T.D.) is instructive.
Given the statutory provisions conferring exclusive jurisdiction on the Board and rendering its decisions final and binding, and given the fact that the issue in dispute involves the application of the statute to the facts found and is within the area of expertise of the Board, the standard of review to be applied is that of patent unreasonableness ...
It is important to note that in this case the reasonableness or otherwise of the Board's conclusion is to be determined in light of both the evidence before it and the relevant statutory provisions. In particular, while claimants have the burden of proving their entitlement to a pension, they are considerably assisted by the provisions of is s.39 of the
Veterans Review and Appeal Board Act which direct the Board on the manner in which it must approach the evidence. Thus, it is to draw every reasonable inference from the evidence in favour of the appellant; accept as true credible and trustworthy evidence produced by the claimant; and in weighing the evidence, resolve any doubt in favour of the appellant. In addition, s.3 requires that the powers, duties and functions of the Board be interpreted in a liberal manner in recognition of Canada's debt to its war veterans.
After considering the facts in light of the standard of review as enunciated above, Evans J. found at p. 287
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.
[28] In this case, following consideration of the submissions, oral and written, presented by counsel for both the applicant and the respondent, and after a thorough review of the tribunal record, I am of the opinion that the decision of the Veteran's Review and Appeal Board is unreasonable.
[29] In stating its reasons for denial of the applicant's appeal by the Board held:
Notwithstanding the medical opinion stated by the specialist in [her] letter ..., the Board is not in receipt of a definitive medical opinion stating a diagnosis of drug induced colitis and therefore, regrettably, the Board finds that pension entitlement is not indicated ... (emphasis mine)
Moreover, the Board upheld the determination that no causal link could be found between the claimed condition and the pensioned condition of the applicant. In my view, requiring a "definitive medical opinion" raises the threshold of the burden of proof beyond that of a balance of probabilities, recognized as appropriate in Cundell, and, in this case, it failed to
consider all the evidence before the Board in the light most favourable to the applicant in accordance with the legislation.
[30] In presenting evidence before the Board, the applicant tendered medical exhibits
from both his family physician, Dr. Hart, and a physician specializing in gastroenterology, Dr. Reddy. In a letter to the Board, dated August 3, 1998, Dr. Hart stated:
The biopsies indicated acute and chronic inflammation suggestive of [IBD]. It was my opinion as well as that of the consultant that his symptoms were being caused by the use of non steroidals for his arthritis.
...
I don't think anyone can deny that these symptoms developed in response to long term usuage of the nonsteroidals ... I think anyone suffering from chronic inflammatory bowel disease would consider their affliction fraught with disability.
Dr. Reddy, in a letter dated November 26, 1998, affirmed that "biopsies from [the applicant's] colon have suggested early Inflammatory Bowel Disease." She further asserted that the medications used by the applicant to control his IBD symptoms will be required indefinitely.
[31] It was initially found, and supported by the Board, that the applicant's symptoms
were not a pensionable disability because, in the opinion of the Board's medical officer, the applicant would not continue to suffer from the bowel disease symptoms unless he continued to take the medications required to control the osteoarthritis pain. This is a reason cited throughout the appeal process for justifying why the IBD symptoms do not constitute a pensionable disability. This is unreasonable for, in requiring the applicant to decide whether or not to continue taking the prescribed non-steroidal medications, the Board is essentially requiring the applicant to choose which disability he would prefer to suffer from: the lumbar pain caused by the osteoarthritis if he stops taking the prescribed medications, or the progression of IBD symptoms if he seeks to control the back pain with prescribed non-steroidal medications. In inferring this cause-and-effect relationship, the Board's own medical officer has drawn a causal connection between the continued use of non-steroidal medications and the resulting IBD symptoms, contrary to one of the key findings of the Board.
[32] The burden of proof rests on the applicant to establish, on a balance of probabilities and with the Board viewing the evidence in the most favourable light, that the claimed condition is pensionable and results from a previously pensioned condition in accordance with paragraph 21(5)(b) of the Pension Act. In examining the evidence before it, the Board found that the medical evidence was inconclusive because the medical professionals did not provide "a definitive medical opinion" of a diagnosis of IBD. However, in my view the Board did not properly apply the statutory requirements to view the evidence in the light most favourable to the applicant, as required by both the Pension Act and the VRAB Act.
[33] The Board failed to recognize that the medical opinions provided on behalf of the applicant present only one possible diagnosis with only one plausible cause. The opinions of the physicians state that the diagnosis suggested by the symptoms and the biopsies is IBD. No other condition is suggested even for further investigation. They record their view that the most probable cause is the long term use of non-steroidal medications taken in relation to the applicant's osteoarthritis condition for which, on retirement, he was awarded a disability pension. As already noted, even the Board's own medical officer in October 1997 implicitly conceded that the cause of the bowel disease symptoms was the use of the medication prescribed for Mr. Smith's osteoarthritis..
[34] The VRAB has authority under its Act to seek additional medical opinion or advice (s-s.10(3)), It did not do so despite the only diagnosis reported by doctors in support of the applicant's claim. In the result there was no contradictory medical evidence before the Board.
[35] Mr. Justice Teitelbaum in Mackay v. Canada (Attorney-General) (1997), 129 F.T.R.
286 at 292, 293 (T.D.), referring to the Board's consideration of evidence in that case, commented:
... [the doctor's] evidence speak to "probabilities", not possibilities. The medical report therefore bears on a decisive issue that is relevant and could have had a determinative result if it had been accepted by the VRAB. ...
... the VRAB was ... silent on the credibility of [the medical] report; it merely characterized it as "speculative" ... [The doctor] is clear and unambiguous on the probable, not just the possible, connection ... When an expert speaks of probabilities and not possibilities, that is not speculation.
[emphasis in original]
[36] In the circumstances, had the Board correctly applied its statutory obligations, it would have been difficult to conclude other than that:
a. prior to using the non-steroidal medications the applicant had no history of bowel problems;
b. after using the non-steroidal medications for some time the applicant has suffered, on a chronic basis, from bowel problems;
c. in the opinions of both Dr. Hart and Dr. Reddy, the applicant is suffering from IBD, and no other diagnosis is suggested;
d. a known cause of IBD is the continued use of non-steroidal medications here prescribed and taken by the applicant to control pain from osteoarthritis of the spine, a pensioned disability condition; and;
e. no contradictory medical opinion to this causal relationship is suggested.
[37] In asking the applicant to provide "a definitive medical opinion" with respect to his
condition, the Board is holding him to the highest possible standard, rather than considering the evidence on a balance of probabilities and in the most positive light for the applicant's claim. In so concluding for the Board erred that decision was unreasonable.
Conclusion
[38] I recognize that the scope for judicial review is limited in light of the privative nature of s. 31 of the VRAB Act, providing that a decision of the Board and is final and binding". However, in my opinion, the Board here rendered an unreasonable decision. Moreover, in requiring the most stringent burden of proof for the applicant's claim, in that is, a definitive diagnosis, and opinion of the cause the Board failed to properly apply s. 39 of the VRAB Act and s-s. 5(3) of the Pension Act. In so doing it committed a reviewable error of law.
Order
[39] The application for judicial review is allowed. The decision of the Veteran's Review
and Appeal Board of May 11, 1999 is set aside and the applicant's claim is referred to the Board to be reconsidered by a differently constituted panel.
[40] The applicant requested costs and the Court's order now issued, provides for costs to go to him on the usual party and party basis.
________________
JUDGE
Halifax, Nova Scotia
August 07, 2001
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: William Smith
- and -
Attorney General of Canada
PLACE OF HEARING: St. John's, NF
DATE OF HEARING: November 17, 2000
REASONS FOR ORDER : MacKay, J.
APPEARANCES:
Mr. William G. Morrow, QC for Applicant
Ms. Leanne Wrathall for Respondent
SOLICITORS OF RECORD:
Mr. William G. Morrow, QC Ms. Leanne Wrathall
for Applicant for Respondent
PO Box 870 Department of Justice
Bay Roberts, NF Suite 1400, Duke Tower
A0A 1G0 5251 Duke Tower
TEL: (709) 786-9207 Halifax, NS
FAX: (709) 786-9507 B3J 1P3
TEL: (902) 426-2511
FAX: (902) 426-2329
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010807
Docket: T-1043-99
BETWEEN:
WILLIAM SMITH
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
Date: 20010807
Docket: T-1043-99
HALIFAX, NOVA SCOTIA, Tuesday, the 7th day of August, 2001.
PRESENT: THE HONOURABLE JUSTICE MACKAY
BETWEEN:
WILLIAM SMITH
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent.
ORDER
Upon application for judicial review of a decision of the Veterans Review and Appeal Board, dated May 11, 1999 denying the applicant's claim to entitlement for claimed disability pursuant to paragraph 21 (5) (b) of the Pension Act:
Upon hearing counsel for the applicant and for the Respondent at St. John's on November 17, 2000, when decision was reserved, and upon consideration of submissions then made,
IT IS ORDERED THAT
1. The application is allowed.
2. The applicant shall have costs on the usual party and party basis.
"W. Andrew MacKay"
JUDGE
Halifax, Nova Scotia
August 07, 2001