Ottawa, Ontario, December 15th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Veterans Review and Appeal Board (the "Board") dated November 30, 2004 which found the applicant was not entitled to disability benefits under the Pension Act, R.S.C. 1985, c. P-6 in relation to recurrent inversion sprains of his right ankle consequential to his pensioned medical condition, pes planus of both feet.
Background Facts
[2] The applicant served in the Canadian Forces in excess of 20 years for most of the period between 1978 and 2000. The nature of his duties required rigorous physical activity on his feet, and he developed eight disabilities for which he receives disability pensions from the Canadian Forces, including pes planus of the right foot and pes planus of the left foot.
[3] On December 17, 2001 Mr. Youden applied to the Minister of Veterans Affairs (the "Minister") for pension in respect of recurrent inversion sprains of his right ankle, which he alleged was consequential to his pensioned condition of pes planus.
[4] By way of decision dated February 22, 2002 the Minister concluded that the inversion sprain was not pensionable as a consequence of either pes planus condition. Under subsection 21(5) of the Pension Act, a member of the Forces who sustains an additional injury resulting from a prior pensionable condition shall be awarded a further pension for additional injury that was consequential to, or aggravated by, the prior condition:
| 21. [...] Consequential disability
(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. [...] Pension pour invalidité supplémentaire
(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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The review panel of the Veterans Review and Appeal Board
[5] On July 10, 2002 an entitlement review panel of the Board ("review panel") affirmed the Minister's refusal to extend pension entitlement to the applicant's recurrent inversion sprain.
The appeal panel of the Veterans Review and Appeal Board
[6] On November 30, 2004 the appeal panel of the Board dismissed the applicant's appeal from the review panel's rejection. The Board held that the inversion sprain first arose in 1986, and that recurrent sprains reported from 1986 to 1997 preceded the pes planus diagnosis. The appeal panel concluded there was no credible evidence to establish the applicant's inversion sprain was consequential to his established pes planus conditions. By way of Notice of Application dated January 25, 2005 the applicant seeks judicial review of this decision.
ISSUES
[7] The issue is whether the Board erred by unreasonably deciding the applicant's claimed inversion sprain was not consequent to his existing pensioned conditions. This question turns on two issues:
1. did the Board disregard the medical evidence; and
2. did the Board fail to apply the statutory burden of proof under the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 to the applicant's circumstances.
STANDARD OF REVIEW
[8] In the case at bar, the Court is reviewing a decision of the Veterans Review and Appeal Board on a question of pension entitlement under subsection 21(5) of the Pension Act. In deciding a question of pension entitlement, the Board must make findings of fact and determine whether these fall within the meaning of paragraphs 21(5)(a) and (b) of the Pension Act to ground a consequential benefit claim. This inquiry includes both questions of fact and a question of mixed law and fact. The Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 held at paragraph 26 that the Court deciding the appropriate standard of review must apply a pragmatic and functional approach:
[...] In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors - the presence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question - law, fact, or mixed law and fact [...]
[9] The first factor the Court must consider is the presence or absence of a privative clause or statutory right of appeal. Section 26 of the Board Act confers exclusive appellate jurisdiction to the Board itself in respect of pension claims made under section 21 of the Pension Act. Section 31 of the Board Act operates as a privative clause insulating the Board's decision from review:
| APPEALS
Exclusive jurisdiction
26. The Board has full and exclusive jurisdiction to hear, determine and deal with all appeals that may be made to the Board under section 25 or under the War Veterans Allowance Act or any other Act of Parliament, and all matters related to those appeals.
[...]
Decision of majority
31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding. |
APPEL
Compétence exclusive
26. Le Tribunal a compétence exclusive pour statuer sur tout appel interjeté en vertu de l'article 25, ou sous le régime de la Loi sur les allocations aux anciens combattants ou de toute autre loi fédérale, ainsi que sur toute question connexe.
[...]
Décision
31. La décision de la majorité des membres du comité d'appel vaut décision du Tribunal; elle est définitive et exécutoire.
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Accordingly, this factor favours curial deference to the Board's decision.
[10] The second factor to consider is the expertise of the decision-maker relative to the Court. Section 18 of the Board Act describes the function of the Board to have exclusive jurisdiction to decide all claims made to it under the Pension Act and matters incidental thereto. While the Board does not have greater expertise than the Court on questions of legal interpretation of both Acts, the Board decides pension entitlement cases and has greater expertise than the Court in deciding the merits of those claims. Accordingly, this factor favours deference to the Board on questions squarely within its preserve, including the weighing of contradictory evidence and the determination of whether a claim is pensionable. Less deference is owed to the Board on legal questions, including the interpretation of the rules of evidence that apply to pension applicants under section 39 of the Board Act.
[11] The third factor is the purpose of the applicable legislation, namely that of the Board Act and Pension Act. The preamble of the Pension Act explains its purpose is to "provide pensions and other benefits to members of the forces". Section 3 of the Board Act explains that it is to be liberally construed in recognition of the Crown's obligation to members of the forces and their dependants. Section 39 of that Act mandate the Board to exercise its function in accordance with rules of evidence that favour applicants when drawing inferences, resolving doubt, and accepting uncontradicted evidence. The purpose of the legislation favours deference to the Board's decisions, providing it properly discharges its evidentiary obligations to applicants.
[12] The fourth factor is the nature of the question, whether it is one of law, fact, or mixed law and fact. The Court will accord greater deference to the Board's factual findings, and less deference on questions of legal principle or interpretation. Having regard to the above factors, the Court concludes the Board's decision will be reviewed on the standard of patent unreasonableness for questions of fact. Pure legal questions will be assessed on the correctness standard. Questions of mixed law and fact will be reviewed on the standard of reasonablenesssimpliciter.
[13] In the review at bar, there are two issues. The first is a question of fact and will be reviewed on a patently unreasonable standard, and the second is a mixed question of fact and law and will be reviewed on a reasonablenesssimpliciter standard.
ANALYSIS
Issue No. 1: Did the Board disregard the medical evidence?
[14] In concluding that the inversion sprain was not consequent to pensioned conditions, the Board referred at page 3 of its reasons to new evidence of Dr. Saunders tendered by the applicant at his hearing, but dismissed it as not credible:
The report of Dr. Saunders, dated 5 July 2004 (EA-Y1) makes no reference to the historical, professional relationship between the Appellant and the doctor, nor does it indicate whether or not the doctor physically examined the Appellant, prior to writing his 5 July 2004 opinion. ... Although the doctor states that the Appellant's pes planus is likely a major contributing factor to his ankle instability and disability, he gives absolutely no credible reason for arriving at that conclusion. Therefore, the Board assigns very little probative value to Dr. Saunders' opinion.
[Emphasis added]
[15] In its entirety, the medical opinion of Dr. Saunders dated July 5, 2004 states:
Mr. Youden notes recurrent ankle sprain, pain and weakness since his DND injury in 1986. He has pes planus which is often predisposed to foot and ankle pain or instability. His pes planus is likely a major contributing factor to his ankle instability and disability.
[Emphasis added]
[16] The applicant submits that the Board erred in finding the document not credible and of little weight because it ignored evidence before the Board on a prior relevant proceeding on June 27, 2003. At that time, a physician's statement from Dr. Saunders dated 24 December 2002 (AA-Y2) disclosed a doctor-patient relationship with Mr. Youden and an instance of physical examination. In the Board's decision dated June 27, 2003 with respect to the applicant's application for an increase in his pension for pes planus of both feet, the Board quoted the medical opinion of Dr. Saunders as follows:
Mr. Youden was seen December 23, 2002 regarding his feet. He does have bilateral pes planus and significant callous formation on both feet over the first metatarsal, lateral foot, and heels.
[17] In this case, the Court concludes that the Board was clearly wrong and patently unreasonable in concluding there was insufficient evidence to establish a doctor-patient relationship between the applicant and Dr. Saunders or that the applicant was not physically examined before the medical opinion was provided in aid of the pension application.
[18] The Board stated at page 2 of its reasons:
In preparation for this hearing, the Board has reviewed any previous decisions relevant to this case and has examined all evidence, which includes testimony and documented evidence, in addition to the following:
EA-Y1: Report from Dr. W. David Saunders, dated 5 July 2004; and
EA-Attach-Y1: Five page report, dated 14 January 2003, from Dr. Thomas D. Loane.
[Emphasis added]
If the Board had reviewed "any previous decisions relevant to this case and examined all evidence", as it states it did, it must have read its previous decision dated June 27, 2003 which was in relation to Mr. Youden's pes planus conditions. It must also have read Dr. Saunders' statement dated 24 December 2002 that he had in fact examined the applicant. All previous decisions rendered by the Board in respect of pension claims for pes planus are relevant to the decision under review, since the claim being decided was alleged to be dependent on the established pes planus condition. In this case, the Board's failure to refer to Dr. Saunders' evidence that he was the applicant's physician disregarded the evidence of their doctor-patient history and Dr. Saunders physical examination.
Issue No. 2: Did the Board fail to apply the statutory burden of proof under the Veterans Review and Appeal Board Act, S.C. 1995, c. 18?
[19] The rules of evidence binding the Board by operation of subsection 39 of the Veterans Review and Appeal Board Act are to accept uncontradicted evidence tendered by the applicant, and to draw all reasonable inferences and resolve doubt in favour of the applicant:
| Rules of evidence
39. In all proceedings under this Act, the evidence 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. |
Règles régissant la preuve
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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[20] There is a great deal of evidence regarding the nature of the applicant's inversion sprains of the right ankle. In the Board's decision, the Board refers to the evidence of Dr. Scott Taylor, an orthopaedic surgeon at the Canadian Forces Hospital in Halifax. Dr. Taylor's first report dated December 14, 1998 states:
... His (the applicant's) poor foot mechanics are going to predispose him to his ankle symptoms ...
The poor foot mechanics being referred to by Dr. Taylor are the high arch of the applicant's feet when not weight bearing, but the fairly low arch with hyperpronation of the hind foot when weight bearing. This condition is the applicant's pes planus. Dr. Taylor's second report dated December 13, 1999 states:
... Finally his right ankle pain, this gentleman had a previous inversion injury and has had chronic symptoms of functional instability since that time.
[21] The Board found no credible evidence that the applicant's ankle condition is consequential to his pension conditions of pes planus in the right foot and left foot. The Court finds the evidence from Dr. Taylor confusing. There is also other medical evidence which considers the applicant's ankle injury including the report dated October 18, 2001of Dr. Lang, who practices with Dr. Saunders at the St. Margaret's Bay Medical Centre. The Board must weigh this evidence to determine whether the applicant has established a case, and resolve in favour of the applicant any doubt. It is not clear from the decision whether the Board applied this statutory burden of proof, namely that any doubt was to be resolved in favour of the applicant.
CONCLUSION
[22] For these reasons, the Court has concluded that:
1. the Board made a patently unreasonable credibility finding with respect to the medical opinion of Dr. Saunders dated July 5, 2004 because the Board disregarded the clear reference in its previous decision that Dr. Saunders had a historical, professional relationship with the applicant and did physically examine the applicant; and
2. the Board erred by not making clear whether it applied the statutory burden of proof in section 39 of the Veterans Review and Appeal Act to the facts. On this basis, the decision does not stand up to a somewhat probing examination so that the decision is not reasonable.
[23] The Court will refer this matter back to another panel of the Board for redetermination to weigh the evidence and apply the statutory burden of proof. If the Board concludes that the applicant's recurrent inversion sprains of his right ankle are consequential to the applicant's pes planus, as contemplated by subsection 21(5) of the Pension Act, the Board must take into account that the applicant is already receiving a small pension (one fifth of ten percent) with respect to this same ankle injury.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the decision of the Veterans Review and Appeal Board dated November 30, 2004 is set aside, and the applicant's claim shall be referred to another panel of the Board for redetermination.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-139-05
STYLE OF CAUSE: FREDERICK RICHARD YOUDEN v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: DECEMBER 8, 2005
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
| Mr. David Bright, Q.C. Boyne Clarke
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| Mr. Dean Smith Department of Justice
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SOLICITORS OF RECORD:
| Mr. David J. Bright, Q.C. Boyne Clarke Barristers & Solicitors Dartmouth, N.S. |
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada |