Date: 20040326
Docket: T-2030-02
Citation: 2004 FC 451
Ottawa, Ontario, March 26, 2004
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
JOHN DOE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Veterans' Review and Appeal Board of Canada (Board), dated July 18, 2002, in the matter of an entitlement appeal by Mr. John Doe (applicant). In this decision, the Board awarded the applicant two fifths of a pension for only one of four conditions claimed by the applicant as arising out of or directly connected to his service in the Royal Canadian Mounted Police (R.C.M.P.).
Order of Confidentiality
[2] Pursuant to two orders of confidentiality, one by Madame Justice Tremblay-Lamer, dated April 7, 1999, and the other by Prothonotary Hargrave, dated July 11, 2000, the applicant's identity is protected, and no reference is made to the name of his medical conditions nor to any identifying date, place or person in his work history.
FACTS
[3] This is not the first time this Court has heard the matter concerning Mr. John Doe. As a matter of fact, this is the third judicial review pertaining to the same set of facts. Twice, this Court has set aside the decision of the Board and sent it back for another determination, based on a patently unreasonable error ([John Doe] v. Attorney General of Canada, F.C.T.D. April 7, 1999, Docket T-59-98 (Campbell J.) and John Doe v. Attorney General of Canada, [2002] F.C.J. No. 157 (F.C.T.D.) (O'Keefe J.)). In the first two cases, the Board had refused to award any pension to the applicant. In the instant case, the Board has awarded two fifths of a pension for one of the four medical conditions that the applicant submits are pensionable.
[4] The applicant was a member of the R.C.M.P. for 26 years. At one point, well into his career, he was seconded to another unit for a special assignment for nine months. On returning to his original unit, he found out that his past 9 months would not be included in his annual assessment. He was extremely upset, both because the special assignment had allowed him to show his skills and be appreciated by his colleagues, and because the assessment would be done by someone with whom he had already had conflicts.
[5] This, according to one of the medical experts consulted, was the "last straw" in a series of administrative conflicts with the Force, that convinced him that the progress and recognition he had hoped for would not materialize. He developed within a few months the first medical condition for which a pension is being claimed. This very serious condition of autoimmune origine was treated with immuno suppressives. A second condition developed, of viral origin, which lead to a third condition of malignancy. Finally, a fourth condition developed, a condition which according to medical literature can be seen as having a psychosomatic origin or being linked to stress.
[6] The Board at first refused to recognize the link between stress and the medical conditions. After the first judicial review, stressors were attributed to the applicant's personal life, notably his marital difficulties and concerns about his son. However, the experts all agreed that the stress factors in the applicant's work life were likely the major contributor to the applicant's medical conditions.
[7] In the first judicial review, Justice Campbell of this Court found (paragraph 9):
In light of uncontradicted medical evidence and testimony, and in light of s. 39 of the Veterans Review and Appeal Board Act which states that doubt is to be resolved in the applicant's favour, in my opinion, the decision of the Board is based on a patently unreasonable error on a question of law.
[8] Justice Campbell quotes at length from the evidence of Dr. Aaron and Dr. Dalby, and states that the patent unreasonableness stems from too narrow an interpretation of paragraph 21(2)(a) of the Pension Act, and that "there is certainly ample evidence to support a finding that the applicant's primary condition of . . . arose from service or is directly connected with service". (Mr. Justice Campbell decision, paragraph 13)
[9] In the second judicial review, after the Board had again refused to grant a pension to the applicant, Justice O'Keefe of this Court noted the uncontradicted medical evidence before the Board that had been mentioned by Justice Campbell in his decision, and noted too the additional evidence of Dr. Copus which had been requested by the Board itself following Justice Campbell's decision. In his expert opinion, Dr. Copus states: "I would conclude that it is reasonable to believe that the [medical condition deleted] resulted from [Mr. Doe's] R.C.M.P. service." (paragraph 15) Yet the Board concluded 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 son" that justified denying the pension.
[10] Justice O'Keefe found that the Board had made a patently unreasonable error by making such a finding in light of the evidence before it, and concluded thus:
¶ 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.
[11] In the instant case, the Board has awarded two fifths of a pension for the first medical condition for which a pension is claimed. The other three conditions (the Board combines the second and third to speak of only two other conditions) are not attributable to service according to the Board. The evidence before the Board is essentially what was present before; in addition, the Board had a letter from Dr. Aaron, who had earlier provided evidence, and a letter from Dr. Vallières, both letters dating from December 2000, as well as two statements by the applicant.
ISSUE
[12] Does the Board's decision contain a reviewable error?
ANALYSIS
[13] The applicant submitted that the Board had made an error in law by not finding the disabilities claimed to be related to service by virtue of the presumptions provided for in subsection 21(3) of the Pension Act, and more specifically paragraph 21(3)(f), which provides that a disability will be presumed to be connected to service if "incurred in the course of . . . any military operation, training or administration, either as a result of a specific order or established military custom or practice . . .". The applicant contended that the various decisions he was submitted to in terms of dictating where he would work and whether he would be promoted or not amounted to administration, as a result of an order or established practice. The Board simply found that the subsection 21(3) presumptions did not apply, without further explanation.
[14] I am not certain that this point needs to be decided for the purposes of determining whether Mr. Doe's disabilities are connected to his service in the R.C.M.P. Two decisions of this Court have already been rendered on judicial review of the Board's decision to deny a pension to Mr. Doe. Both decisions found that there was uncontradicted evidence of stress factors in the workplace, and uncontradicted expert evidence of the link between those stress factors and the applicant's medical conditions. As stated in Bradley v. Canada (Attorney General), [2001] F.C.J. No. 1152, at paragraph 21,
Subsection 21(3) merely sets out a series of presumptions to be assumed in the absence of evidence to the contrary, in circumstances described in each of paragraphs (a) to (f). While paragraph 21(3)(f) may not be applicable in this case, it is unnecessary to consider whether that or any other presumption in subsection 21(3) applies before considering the application of subsection 21(2) itself.
[15] Justice Campbell had clearly stated that the Board's interpretation of subsection 21(2) was too narrow. I believe this is still the case, although the Board has now partially recognized the link between the workplace stressors and the first condition by granting two fifths of a pension.
[16] This time, the decision impugned has granted Mr. Doe two fifths of his pension for the first medical condition, but refused to grant the pension for the other three conditions that ensued. (The second condition and third condition being considered as a single condition by the Board.)
[17] In its last decision, the Board:
...concludes that the level of concomitant stress led to co-morbid illnesses being depression/severe grief reaction which in turn affected the appellant's autoimmune system. Some of the opinions provided state that the autoimmune deficiency which followed could have been at the basis of the [first medical condition], "cascading into" the [second and third, viral and malignant conditions] and finally the [fourth medical condition].
[18] Actually, all of the medical opinions are to that effect, and there is no contradictory evidence.
[19] The Board then continues:
The medical evidence is on many occasions speculative, more precise and concise on other occasions, as to the causal link between the conditions afore-mentioned. All lack empirical data or formal scientific rationale.
[20] Tests were done, scientific articles are provided, the expert evidence is based on the best science available. All the experts appear to agree that the grief reaction depressed the immune system and led to an autoimmune response which took the form of the first condition. There is uncontradicted evidence that the second condition flowed from the treatment of the first, that the third was a consequence of the second, and that the fourth was related to the whole of the stress during this period of time.
[21] And, finally, the Board states:
The medical experts that intervened in this matter assumed that the Appellant's dissatisfaction with R.C.M.P. administrative decisions constitute a pensionable event under the Pension Act. [Board decision, July 18, 2002, pages 22-23]
[22] With respect, not only did the medical experts assume that fact, but two Justices of this Court have also ruled on it. In both decisions, it was clear that the expression "arose from . . ." was to be construed as including the administrative interactions Mr. Doe had with his superiors.
[23] Moreover, to say that the medical evidence lacks empirical data and formal scientific rationale flies in the face of the numerous serious studies included in the evidence before the Board. The link between stress and auto immune diseases, and between stress and cancer, has in fact been established in empirical studies, and scientists have suggested various pathways through the very complex human immune system. This is a field of study which is still growing and expanding. The precise mechanisms remain to a certain extent unknown. But it is dishonest to deny any scientific basis to a claim based on linking stress and disease, and a clear error in law to refuse to consider the expert evidence presented to the Board, where the Board has no other evidence to contradict the expert evidence. In this case, the Board did not address in its decision the very clear evidence provided by both Dr. Aaron and Dr. Vallières in their December 2000 letters.
[24] The Board in the impugned decision mentions that in 1992, according to the applicant's medical records, Dr. Aaron had suggested that the first medical condition might have developed because of an underlying cancer (the third condition). Dr. Vallières, at that time, stated that the history of the disease favoured the hypothesis that the applicant had a genetic pre-disposition to develop cancerous cells.
[25] Although the Board mentions the two letters from these experts dated from December 2000, the decision does not refer at all to their content. Yet, since the Board mentions what their opinion was in 1992, it would have been only fair to present what their considered opinion had become in 2000, with a further knowledge of the patient and the advances of medicine. Furthermore, this medical evidence before the Board remained uncontradicted.
[26] From Dr. Aaron's letter of December 5, 2000: (the letter is addressed to the applicant)
... let me begin by saying that in 1992 we were still unsure about the nature of your illness and at that time had not had the benefit of several references that have become available since that time. ... My early fears, shared by Dr. Vallières, that you were predisposed to malignancy or [first condition] were unfounded. ...You first suffered from a severe grief reaction to your perceived loss of promotion, followed rapidly by the development of [first medical condition]. ... [First condition] typically develops by an insult to the immune system in one of two ways, either suddenly or more subtly over time. In your case, there is ample evidence to show that your condition developed rather suddenly, in a pronounced fashion following your initial distress to your perceived loss of promotion. ...
My earlier review of your work records, ... , indicates that following your severe grief reaction and development of [first condition], you had a prolonged and continuing conflict with your superiors. ... This prolonged conflict very likely added further distress to your immune system, as you struggled to cope with the effects of a physically debilitating disease and appearance altering immunosuppressive therapy. On year later, ... you developed an infection in [...] and underwent [surgery to remove affected organ]. Pathological analysis ... revealed an unusual malignancy, secondary to [viral infection]. ... With your altered immune state and being treated with immune suppressive therapy for your [first condition], you were susceptible to viral infections such as [the virus responsible for the viral infection]. [The letter describes the course of operations, therapies, and the appearance of the fourth condition]. ...
You have been free of malignancies since then; however, your autoimmune inflammatory condition has became imprinted on your immune system. .. You will continue to be easily fatigued and it is unlikely that you will ever regain your original strength or state of health.
The issue is, what insult was serious enough to distress your immune system in [year] to cause the inflammatory autoimmune condition of [first condition] and set off a domino effect, resulting in the cascade of illnesses that followed.Clearly, none of what followed would have occurred without the initial autoimmune response manifested in the form of [first condition]. To that end, I have already rendered by [sic] opinion that you suffered a severe grief reaction in regard to your perceived loss of promotion in [year] and I stand by my opinion. As I have previously stated, no other explanation exists as to why someone as healthy as you were, with no generic [sic] disposition or other underlying factors such as HIV should have developed this constellation of disease, which is still unprecedented in my experience.
(Letter of Dr. Aaron dated December 5, 2000, pages 31-32, Certified Documents)
[emphasis added]
[27] From Dr. Vallières letter of December 18, 2000:
On March 9, 1992, I indicated in a letter that the evolution of his disease (cancer) would favor the possibility that [Mr. John Doe] had a genetic predisposition to develop such cancers in [site of malignancies]. ... In the months that followed, we did obtain genetic testing. ... The results did not show a genetic predisposition to cancer.
It should also be noted that it is not until later that year that the presence of [...] virus was discovered in [Mr. Doe]'s tumours. It is only then that we recognized the potential association of the presence of the virus with the occurrences of [Mr. Doe]'s malignancies.
(Letter of Dr. Vallières, dated December 18, 2000, Certified Documents, page 33)
[emphasis added]
[28] Yet in its decision the Board writes (at page 26):
As for the [second, viral infection, and fourth condition], whether under subsections 21(2) or 21(5), owing to the very precise nature of the pathologist's report contained on file, and the absence of medical opinions substantiating a causal link between the Appellant's grief reaction/depression and same, the Board did not grant any entitlement for those conditions.
[29] Mr. Justice Cullen, in MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346, explained why in that case judicial intervention was warranted; I quote from his judgement, because I believe its legal reasoning applies to the facts of the instant situation:
¶ 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.
. . .
¶ 25 While the Board acknowledged this new evidence and admitted it into the record, it cannot be said to have accepted it in accordance with the special rules contained in section 39 of the Veterans Review and Appeal Board Act. In its reasons, the Board characterizes the truck accident as an "alleged incident", thus indicating doubt of its actual occurrence. In so doing, however, the Board was silent as to whether this new evidence, which purports to corroborate the applicant's claim that he was injured in 1963, was credible or reasonable. If the Board found this evidence lacking in either capacity, it should have said so and given reasons. While the Board is certainly entitled to assign minimal weight to this evidence, it must articulate reasons for so doing. Failing to do so constitutes an error in law and warrants judicial intervention.
. . .
¶ 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.); Moar v. Canada (Attorney General) (1995), 103 F.T.R. 314 (T.D.).
[30] In this case, the Board is silent as to the evidence of the two letters. Yet these letters remain uncontradicted, and if the Board found them not to be credible, it had to indicate, as the case law clearly states, why they were found not to be credible.
[31] May I remind the Board of the wording of the Act which gives them authority: 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 (...tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci [l'appelant]); (...)
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.
[32] The French version is even stronger - draw the most favourable conclusions possible.
[33] The medical experts identify a cause for the first medical condition which Mr. Doe developed: the severe grief reaction to the perceived loss of promotion. The Board has somewhat grudgingly agreed that the grief reaction may have played a role in Mr. Doe's first medical condition, although, even then, the Board states that there is no clear link between the two. The issue is not whether or not Mr. Doe deserved the promotion, or whether or not the administrative decisions were justified. The fact is, he reacted to the negative interactions he had with his superiors. On the one hand, according to the evidence, Mr. Doe was a gifted officer, a brilliant analyst, with superior review assessments, who dedicated himself to his work, and expected to be rewarded for all his hard work. On the other hand, he might have come across as a single-minded, headstrong individual, who rubbed at least some of his superiors the wrong way. The evidence shows that some decision-makers blocked Mr. Doe's progress in the ranks, and that he never got the promotion he sought. Whether such a decision was justified or not is not at all our concern. The issue is whether the stress that Mr. Doe experienced at work, knowing his ambitions were thwarted, contributed to the development of severe, debilitating diseases that destroyed any further hope of progress.
[34] The role of the Board is to determine whether the diseases "arose out of" the working situation. It remains a concern of the Board, apparently, despite the decision of Justice Campbell, that Mr. Doe was reacting to "administrative" decisions as opposed to "operational" requirements. The Board makes this quite explicit in its decision:
The bulk of the evidence is to the effect that most of the stresses and/or severe grief reaction that the Appellant was diagnosed with have their origin in administrative difficulties. Should the Board recognize same as being a pensionable event that would be tantamount to replacing the grievance procedure provided for by the RCMP and the replacement or substitution of the management responsibilities of the RCMP. The evidence as to relevant operational events directly connected with the Appellant's work as a police officer remain limited. (Board decision, page 23)
Stress claims in disability compensation are frequent now. There is a great expansion of liability based on such claims. . . The cases in which the long term disability could reasonably be seen as arising from the employment or service as opposed to the individual perception of a claimant are the cases where there is some identifiable injustice on the part of the employer. . . If there is no discrimination, harassment or delictual behaviour and the relevant internal redress procedures have functioned fairly, then any disability subsequent to a personnel issue which caused a pathological degree of stress to the individual could reasonably be seen as the result of the claimant's perception of the matter rather than as a direct result of service. (Board decision, page 24)
[35] The Act does not state that there needs to be wrongdoing, only that the disease arises out of, or is directly connected to, the service. Two judicial reviews have already concluded that Mr. Doe's initial condition arose of and was directed related to his service in the R.C.M.P. Uncontradicted evidence shows that the subsequent conditions can be linked to the first, the second and third (viral and malignant) because of the use of immuno suppressives to treat the first, the fourth because of stress caused by both the working situation and the poor state of health.
[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.
[37] The Board awarded two fifths of the pension for the first medical condition "affording the Applicant the benefit of the doubt", the condition "being partially caused by stresses themselves caused or directly related to his R.C.M.P. service". (Board decision, page 26)
[38] The Board no longer attributes the appellant's grief reaction to his marital difficulties or the sickness and death of his son. The stresses are linked to work, but to "administrative difficulties". Yet already in Justice Campbell's decision the ruling was that the administrative dimension of Mr. Doe's claim was no obstacle to pension entitlement.
[39] From Justice Campbell's decision, supra,
The patent unreasonableness of the Board's decision arises from its unduly narrow interpretation of the provisions of s.21(2)(a) of the Pension Act. It is very evident that the Board believes that for a disability to be pensionable, the test created by the words "arose out or was directly connected ... with service" requires that the condition suffered must be the result of a clearly identifiable on-duty action related incident. Clear proof of this interpretation comes from the use of the following words in the Board's reconsideration letter dated August 19, 1997: "existence of objective service related stressors as opposed to non-service related stressors or pre-existing personal attributes"; and "disabling conditions that result from the performance of ... duties". (paragraph 11)
In my opinion, the words are not found within the test to support any of these imported additional conditions to a positive finding. The test states two very simple criteria for finding a disability pensionable: it must (1) arise out of service, or be (2) directly connected with service. Nothing more is required. While I am not being called upon to make a decision on the merits of this case, there is certainly ample evidence to support a finding that the applicant's primary condition of [...] arose from service or is directly connected with service. (paragraph 13)
[40] The issue is not to make management decisions into pensionable events. What the Act provides for is paying a pension to someone whose disability or disease "arose out of or was directly connected with the person's service in the Force".
[41] The Board has granted two fifths of the pension for the first medical condition, withholding three fifths on the grounds of non-occupational stressors. This conclusion is not supported by the facts, but rather rests, according to the decision itself, on the Board's preoccupation that administrative decisions will become pensionable events. The Board's concerns about the expansion of liability due to stress claims are entirely irrelevant to the case of Mr. Doe. The Board is not a policy-maker, but only an adjudicative body, charged with reviewing individual cases. Not every person who suffers setbacks in his career will develop such severe symptoms as Mr. Doe; obviously, the degree of stress which he suffered was much more than a simple reaction to an administrative decision. The work history shows a series of conflicts over a great number of years. It is not a matter of laying blame, but rather, finding that Mr. Doe's medical woes arose out of his service. Again, as in the decision reviewed by Justice Campbell, it appears the Board has taken too narrow a view of subsection 21(2) of the Pension Act and not taken into account the dictates of section 39.
[42] It appears also that the Board has not properly applied subsection 21(5) to the evidence it had, since the subsequent conditions claimed could be seen as being "in whole or in part a consequence of" the first disease "or an aggravation thereof", according to the uncontradicted medical opinions provided. The Board does not state why it is rejecting the evidence contained in the two physicians' letters, other than to say it finds the evidence "speculative", with no further explanation. Given the clear language of Dr. Aaron's letter in particular, and the whole of the medical evidence provided, the Board would need to explain further why it cannot draw a reasonable inference in favour of the applicant, as mandated by section 39.
[43] It is clear from the uncontradicted expert evidence that appears in the file that Mr. Doe's initial condition was linked to the stress of the workplace, and especially the negative assessment of his performance in [year first condition diagnosed], after he had been seconded to another unit for nine months, where he performed remarkably well. It is clear that the other conditions are an additional disability that arose at least in part as a consequence of the first disease. It is clear that the Board has made a patently unreasonable error in not taking into account the evidence of the medical experts which was uncontradicted and an error in law in not applying the terms of the Act properly.
[44] Accordingly, the decision should be sent back to a differently constituted panel of the Board for reconsideration in light of the instant decision, namely, that uncontradicted evidence of stress factors in the workplace, and uncontradicted expert evidence of the link between those stress factors and the applicant's medical condition have been provided and clearly established. Also, as Justice Campbell and Justice O'Keefe have already ruled, the Board should take for granted that the expression "arose from" is to be construed as including the administrative interactions Mr. Doe had with his superiors. Finally, the Board shall read again carefully section 39 of the Veterans Review and Appeal Board Act and apply it.
[45] The applicant has also made submissions in regards to two additional factors: the dating of the award and costs. The Board in its decision granted the three year period afforded by paragraphs 39(1)(a)(b) of the Pension Act. It thus refused to exercise the discretionary power granted to it by paragraph 39(2). This decision is entitled to the highest degree of deference, being discretionary. However, in this case, it would appear unreasonable not to recognize that the delay in granting the pension occurred "by reason of . . . administrative difficulties beyond the control of the applicant" namely, the fact that it took two judicial reviews to get a partial award of the pension. Thus, in reviewing its decision, the Board should seriously consider the application of subsection 39(2) to the fact situation.
[46] As to the issue of costs, given the history of these proceedings, I believe the applicant is entitled to his costs.
ORDER
THIS COURT ORDERS that:
- This application for judicial review is allowed;
- The matter is sent back to a differently constituted panel, excluding also the members that rendered the decisions quashed by Justice Campbell and Justice O'Keefe;
- The new panel shall reconsider the matter in light of the instant decision, namely that uncontradicted evidence of stress factors in the workplace, and uncontradicted expert evidence that the link between those stress factors and the applicant's medical condition has been provided and clearly established. Also, as Justice Campbell and Justice O'Keefe have already ruled, the Board should take for granted that the expression "arose from" is to be construed as including the administrative interactions Mr. Doe had with his superiors. Finally, the Board shall read carefully section 39 of the Veterans Review and Appeal Board Act and apply it;
- The Board should consider the application of subsection 39(2) of the Pension Act to the fact situation;
- The applicant is entitled to his costs, including costs of experts if incurred.
"Pierre Blais"
Judge
ANNEX "A"
Relevant Legislation
| Royal Canadian Mounted Police Superannuation Act, R.S. 1985, c. R-11:
32. Subject to this Part, an award in accordance with the Pension Act shall be granted to or in respect of
(a) any person to whom Part VI of the former Act applied at any time before April 1, 1960 who, either before or after that time, has suffered a disability or has died, or
(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.
32.2 All claims for awards under this Part shall be dealt with and adjudicated on in like manner as claims under the Pension Act, and all provisions of that Act not inconsistent with this Part apply, with such modifications as the circumstances require, to any claim under this Part.
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32. 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 :
a) visée à la partie VI de l'ancienne loi à tout moment avant le 1er avril 1960, qui, avant ou après cette date, a subi une invalidité ou est décédée;
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.
32.2 Il est disposé des réclamations de compensation faites sous le régime de la présente partie de la même manière que celles faites sous celui de la Loi sur les pensions, les dispositions de cette loi non incompatibles avec la présente partie s'y appliquant avec les adaptations nécessaires. |
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| Pension Act, R.S. 1985, c. P-6 :
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; |
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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 (3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of . . .
(f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; |
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21 (3) Pour l'application du paragraphe (2), une blessure ou maladie -- ou son aggravation -- est réputée, sauf preuve contraire, être consécutive ou rattachée directement au service militaire visé par ce paragraphe si elle est survenue au cours : [...]
f) d'une opération, d'un entraînement ou d'une activité administrative militaires, soit par suite d'un ordre précis, soit par suite d'usages ou pratiques militaires établis, que l'omission d'accomplir l'acte qui a entraîné la maladie ou la blessure ou son aggravation eût entraîné ou non des mesures disciplinaires contre le membre des forces;
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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.
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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. |
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| 39. (1) A pension awarded for disability shall be made payable from the later of
(a) the day on which application therefor was first made, and
(b) a day three years prior to the day on which the pension was awarded to the pensioner.
(2) Notwithstanding subsection (1), where a pension is awarded for a disability and the Minister or, in the case of a review or an appeal under the Veterans Review and Appeal Board Act, the Veterans Review and Appeal Board is of the opinion that the pension should be awarded from a day earlier than the day prescribed by subsection (1) by reason of delays in securing service or other records or other administrative difficulties beyond the control of the applicant, the Minister or Veterans Review and Appeal Board may make an additional award to the pensioner in an amount not exceeding an amount equal to two years pension.
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39. (1) Le paiement d'une pension accordée pour invalidité prend effet à partir de celle des dates suivantes qui est postérieure à l'autre :
a) la date à laquelle une demande à cette fin a été présentée en premier lieu;
b) une date précédant de trois ans la date à laquelle la pension a été accordée au pensionné.
(2) Malgré le paragraphe (1), lorsqu'il est d'avis que, en raison soit de retards dans l'obtention des dossiers militaires ou autres, soit d'autres difficultés administratives indépendantes de la volonté du demandeur, la pension devrait être accordée à partir d'une date antérieure, le ministre ou le Tribunal, dans le cadre d'une demande de révision ou d'un appel prévus par la Loi sur le Tribunal des anciens combattants (révision et appel), peut accorder au pensionné une compensation supplémentaire don't le montant ne dépasse pas celui de deux années de pension.
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| Veterans Review and Appeal Board Act, S.C. 1995, c. 18
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. |
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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. |
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2030-02
STYLE OF CAUSE: John Doe v. The Attorney General of Canada
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: March 10, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Blais
APPEARANCES:
Mr. John Doe For Applicant
(Self-Represented)
Ms. Camille N. Audain For Respondent
SOLICITORS OF RECORD:
Mr. John Doe For Applicant
Edmonton, Alberta
Morris Rosenberg For Respondent
Deputy Attorney General of Canada