Date: 20020128
Docket: T-867-00
Neutral citation: 2002 FCT 106
Toronto, Ontario, this 28th day of January, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
IN THE MATTER OF THE PENSION ACT, R.S.C. 1985, c. P-7
AND IN THE MATTER OF THE VETERANS REVIEW AND APPEAL BOARD ACT, R.S.C. 1985, c. V-1.2
AND IN THE MATTER OF THE ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION ACT, R.S.C., 1985, c. R-11, s.1
AND IN THE MATTER OF THE FEDERAL COURT ACT, R.S.C. 1985, c. F-7
AND IN THE MATTER OF A DECISION OF THE VETERANS REVIEW AND APPEAL BOARD OF CANADA LETTER DATED APRIL 6, 2000 AND IN THE WRITTEN CASE SUMMARY OF THAT DECISION DATED JUNE 9, 1999 AND STYLED AS VRAB FILE NO. 5189592, DECISION NO. 6598664
BETWEEN:
JOHN DOE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision of the Veteran's Review and Appeal Board (the "Board") dated June 9, 1999. In its decision, the Board denied the applicant's appeal of a decision that he was not entitled to a pension in relation to medical conditions.
[2] By Order of Prothonotary Hargrave dated July 11, 2000, the applicant's identity was ordered protected by substituting his name with "John Doe" in the style of cause, and by vetting names of persons, places, dates and duties that may identify him.
[3] The applicant seeks an order setting aside the above decision, that the Board rehear the matter, and an order for costs of this application on an indemnity basis.
Background Facts
[4] There is some history behind the present application for judicial review. The Board's decision dated June 9, 1999, the subject of the present judicial review, was the second such decision concerning the applicant's appeal. The first decision of the Board was set aside on judicial review in John Doe v. Canada (Attorney General), (February 5, 1999) T-59-98 (F.C.T.D.), and referred back to a differently constituted panel.
[5] The applicant was a member of the R.C.M.P. for 26 years and during this time, worked primarily in the Drug Enforcement Unit. Approximately eight years before leaving the R.C.M.P., the applicant took a nine-month temporary assignment with the Intelligence Unit (the "IU") which was a joint task force comprised of members of the R.C.M.P. and others.
[6] A serious misunderstanding arose with respect to the applicant's status while he was away working with the IU. When he returned to his R.C.M.P. duties, he was informed that he would not be given credit for the nine months that he had spent with the IU, despite believing that he would get due credit before he accepted the temporary assignment. As a result of this news, the applicant became upset because he thought his career to be in a hopeless state.
[7] After this incident, the applicant became engaged in differences with his senior officers and in a number of administrative conflicts. Also after this incident, the applicant began to suffer from various ailments. Shortly after returning to his R.C.M.P. duties, after a series of medical consultations and tests, the applicant was diagnosed with a disease. The applicant argues that the disease led to the consequential conditions of two other diseases.
[8] As a result of this Court's Order in Court File T-59-98, the applicant made submissions and submitted further evidence in support of his appeal to a newly constituted panel of the Board. His appeal was again based upon subsection 32(1) of the R.C.M.P. Superannuation Act, R.S.C. 1985, c.R-11 and subsections 21(2) and (5) of the Pension Act, R.S.C. 1985, c.P-6. For its part, the Board obtained an independent medical report from Dr. Copus, dated October 25, 1999.
[9] Issue
Does the Board's decision contain a reviewable error?
[10] Relevant Statutory Provisions
Section 2 and subsections 21(2) and (5) of the Pension Act, supra state:
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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 military service, and to their dependants, may be fulfilled. |
2. Les dispositions de la présente loi s'interprètent d'une façon libérale afin de donner effet à l'obligation reconnue du peuple canadien et du gouvernement du Canada d'indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge. |
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21.(2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time, (a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I; |
21.(2) En ce qui concerne le service militaire accompli dans la milice active non permanente ou dans l'armée de réserve pendant la Seconde Guerre mondiale ou le service militaire en temps de paix_: a) des pensions sont, sur demande, accordées aux membres des forces ou à leur égard, conformément aux taux prévus à l'annexe I pour les pensions de base ou supplémentaires, en cas d'invalidité causée par une blessure ou maladie -- ou son aggravation -- consécutive ou rattachée directement au service militaire; |
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21.(5) In addition to any pension awarded under subsection (1) or (2), a member of the forces who (a) is eligible for a pension under paragraph (1)(a) or (2)(a) or this subsection in respect of an injury or disease or an aggravation thereof, or has suffered an injury or disease or an aggravation thereof that would be pensionable under that provision 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. |
21.(5) En plus de toute pension accordée au titre des paragraphes (1) ou (2), une pension est accordée conformément aux taux indiqués à l'annexe I pour les pensions de base ou supplémentaires, sur demande, à un membre des forces, relativement au degré d'invalidité supplémentaire qui résulte de son état, dans le cas où_: a) d'une part, il est admissible à une pension au titre des alinéas (1)a) ou (2)a) ou du présent paragraphe, ou a subi une blessure ou une maladie -- ou une aggravation de celle-ci -- qui aurait donné droit à une pension à ce titre si elle avait entraîné une invalidité; b) d'autre part, il est frappé d'une invalidité supplémentaire résultant, en tout ou en partie, de la blessure, maladie ou aggravation qui donne ou aurait donné droit à la pension. |
[11] Sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 state:
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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. |
3. Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s'interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l'égard de ceux qui ont si bien servi leur pays et des personnes à leur charge. |
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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. |
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. |
[12] Paragraph 32(1)(b) of the R.C.M.P. Superannuation Act, R.S.C. 1985, c. R-11 states:
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32.(1) Subject to this Part, an award in accordance with the Pension Act shall be granted to or in respect of . . . (b) any person who served in the Force at any time after March 31, 1960 as a contributor under Part I of this Act and who has suffered a disability, either before or after that time, or has died, in any case where the injury or disease or aggravation thereof resulting in the disability or death in respect of which the application for the award is made arose out of, or was directly connected with, the person's service in the Force. |
32.(1) Sous réserve des autres dispositions de la présente partie, une compensation conforme à la Loi sur les pensions doit être accordée, chaque fois que la blessure ou la maladie -- ou son aggravation -- ayant causé l'invalidité ou le décès sur lequel porte la demande de compensation était consécutive ou se rattachait directement au service de l'intéressé dans la Gendarmerie, à toute personne, ou à l'égard de celle-ci_: . . . b) ayant servi dans la Gendarmerie à tout moment après le 31 mars 1960 comme contributeur selon la partie I de la présente loi, et qui a subi une invalidité avant ou après cette date, ou est décédée. |
Analysis and Decision
[13] As was noted by Campbell J. of this Court in John Doe v. Attorney General of Canada, supra, when he was reviewing the earlier Board decision:
[10] The following uncontradicted medical evidence was before the Board:
1. Letter from Dr. Aaron
This letter, dated August 29, 1995, reads, in part, as follows:
I have been asked by my patient, John Doe, to indicate the possible role of job related stress to the development of several life threatening and dehabilitating [sic] illnesses that he has developed since 1988.
. . .
. . . There is strong evidence, supported by the attached documents, that severe, psychologic stress may well contribute to the development of immunologically caused disease, of which [medical condition deleted] is one.
John Doe has reviewed his work history with me at length. After being acquainted with him for four years, I can attest to the fact that he is a hard working, dedicated individual for whom his police career must have been his life, at least before he became critically ill. After reading the documents relating to this appeal of assessment in March 88, it becomes clear that he reacted to his perceived loss of promotion with a [medical condition deleted]. Whether or not this is perceived by his superiors or not as appropriate is irrelevant. This was clearly John Doe's perception of this job-related event. In addition, it is stated on his performance evaluation for the immediately preceding months of intelligence work that "That was a stressful period due to time limitations". Please note that it was immediately following this period and the disputed assessment that he acutely developed the [medical conditions deleted].
In summary, I believe that stressful work conditions contributed to the development of John Doe's [medical conditions deleted] as well. No other explanation exists as to why this otherwise healthy young man should have developed this constellation of disease, unprecedented in my experience.
2. Letter from Dr. Dalby
This letter, dated November 29, 1996 reads, in part, as follows:
John Doe (then [rank deleted] Doe) was referred to me by RCMP health services in mid-May 1988 for [medical conditions deleted]. I conducted a full psychological assessment of him and continued to see him over the course of a year . . .
During the time I saw him [rank deleted] Doe's physical condition and appearance deteriorated dramatically fuelling further [medical conditions deleted]. I suggested at the time that his [medical condition deleted] was a main precipitant to his [medical condition deleted] but that it was also aggravated by his employment conditions. He appeared unable to sustain the long hours required by the drug section and at my request his reassignment of duties was undertaken. I recommended a position which would allow rest periods and a position with regular work hours as opposed to shift duties.
The question presented to me relates to the relationship between the [medical condition deleted] conditions such as [medical conditions deleted]. For over 15 years this relationship has been documented and the link between diseases such as cancer and stress have been repeatedly reported. In the most widely acknowledged psychological journal Psychological Bulletin (1992, 111, 475-489) it was reported that "depressed mood may increase susceptibility to disease by means of aberrations occurring within the immune system". Thus the development of John Doe's cascading physical conditions may have had a direct link to the stress he was under in his work environment as well as his reaction to his initial disease.
It is difficult to direct causality when two conditions are correlated. However, the close temporal proximity to Mr. Doe's psychological and medical conditions argues for this link.
[14] In addition to that evidence, the Board panel that made the decision under review in the present application also had the additional evidence contained in the report of Dr. Copus dated October 25, 1999. This report was requested of Dr. Copus by the Veterans Review and Appeal Board of Canada in September, 1999. The report of Dr. Copus states, in part, under the heading "1. Is it reasonable to conclude that the claimant suffered a [medical condition deleted] reaction?", the following:
My review of [Mr. Doe's] writings suggests to me that in May 1988 decisions regarding his performance evaluation were perhaps the "final straw" which convinced him that his future in the R.C.M.P. was going to be very different from his aspirations ten years earlier. It is my strong impression that he had great hopes based on his dedication, intelligence and physical attributes, and that he strove very hard to maximize his potential. The set-backs which he describes could be seen as slowly eroding these expectations, until by 1988 there was not much left.
It is my impression therefore that the process had been a gradual one culminating in events in 1988, and that it was not just a catastrophic reaction to an isolated event. The end-point, nevertheless, is that his expectations and hopes finally disappeared, and a [medical condition deleted] ensued.
Based on this reasoning, I would consider it reasonable to conclude that the claimant suffered a [medical condition deleted] reaction.
[15] Further, under the heading "If so, is it reasonable to conclude that the [medical condition deleted] reaction resulted from the claimant's R.C.M.P. service?":
. . . Prior to 1989, the only familial stress which had been prominent was the break-up of his marriage and the family unit seven years earlier, and the inevitable difficulties of maintaining relationships with the children. In contrast, [Mr. Doe] describes a series of set-backs between 1979 and 1988 which gradually eroded his aspirations for the future despite the vigorous efforts which he describes in making in order to keep his career on track. On balance therefore, I would conclude that it is reasonable to believe that the [medical condition deleted] resulted from [Mr. Doe's] R.C.M.P. service. Please note that I am assuming here that the word "service" applies to all aspects of his environment with the Force, which would include the nature of his interactions with his superiors.
And Dr. Copus concluded his report as follows:
In conclusion therefore, I am of the opinion that the [medical condition deleted] involved in [Mr. Doe's] R.C.M.P. service were a major element in his subsequent development of the four medical conditions referred to.
[16] The Board reasoned in part as follows:
In the Federal Court's judicial review of the previous Board decision, Mr. Justice Campbell dismissed as conjecture the previous panel's view that his inability to cope with some personnel issues at work was the result of his "constitutional nature" and found sufficient evidence that his claimed conditions arose out of or were directly connected with service. But the report by Dr. Copus, particularly his remarks about the claimant's personality type and his difficulty in accepting reverses in his expectations, including the overwhelming and abundant evidence of non-occupational life stresses, such as the break-up of his marriage and the death of his child, indicates that the previous panel's view was essentially correct. As to the role of service, this panel believes that the evidence indicates the claimant was happy and fulfilled in the performance of his duties at the relevant time. There is no objective evidence of unfair treatment and therefore the personnel issues did not play the required casual role in creating the apparently [medical conditions deleted] that the claimant felt.
[17] I am of the opinion that the Board made a patently unreasonable error by finding in light of the above evidence, that there was "overwhelming and abundant evidence of non-occupational life stresses, such as the break-up of his marriage and the death of his child. . . . indicates that the previous panel's view was essentially correct" as the record shows the marriage break-up occurred approximately seven years before the applicant's illness and the son did not pass away until two years after the applicant's diagnosis.
[18] Section 31 of the Veterans Review and Appeal Board Act, supra contains a form of privative clause which reads "a decision of the majority of members of an appeal panel is a decision of the Board and is final and binding". I need not decide whether this privative clause prevents review by me except in the circumstances of a patently unreasonable error, as I have found that the Board made a patently unreasonable error.
[19] I indicated to the parties that I would rule on the admissibility of medical reports that were not before the Board. I find that, in this case, these reports are not admissible.
[20] In conclusion, had the Board made the proper evidentiary findings, it may well have reached a different conclusion with respect to the applicant's right to a pension. This is particularly so in light of section 39 of the Veterans Review and Appeal Board Act, supra which requires that doubt be resolved in the applicant's favour.
[21] The applicant's medical history is deleted as a result of previous Orders of the Court.
[22] The application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
[23] The applicant shall have his allowable costs of this application.
ORDER
IT IS ORDERED that:
1. The application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
2. The applicant shall have his allowable costs of the application.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
January 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-867-00
STYLE OF CAUSE: JOHN DOE
- and -
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: THURSDAY, AUGUST 23, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
"John Doe" Representing Self
FOR APPLICANT
Tracy J. King
FOR RESPONDENT
SOLICITORS OF RECORD:
John Doe
Edmonton, Alberta
FOR APPLICANT
Department of Justice
Edmonton Regional Office
211 Bank of Montreal Building
10199-101 Street
Edmonton, Alberta
T5J 3Y4
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020128
Docket: T-867-00
BETWEEN:
JOHN DOE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER