Date: 20060908

Docket: T-2285-05

Citation: 2006 FC 1070

Ottawa, Ontario, the 8th day of September 2006

Present: The Honourable Mr. Justice Shore 

 

BETWEEN:

DONAT THÉRIAULT

Applicant

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

INTRODUCTION

[1]               Donat Thériault, who served in the Regular Forces of the Canadian Army during the Second World War and then for an additional year, from 1943 until his discharge in 1946, filed a disability pension application that was rejected. The Board’s review panel affirmed the rejection. Mr. Thériault appealed before the Board’s appeal panel, which affirmed the decision of the review panel, and even a review of the appeal panel’s decision was denied. Further, the Board stated that new evidence submitted by Mr. Thériault added nothing new to the record, and Mr. Thériault accordingly filed in the Federal Court a first application for judicial review which was allowed but which was not followed up according to the intent of the Federal Court judgment.

 

In his judgment of July 12, 2004 Mr. Justice Paul Rouleau allowed the application for judicial review and quashed the decision by the Board dated May 23, 2003. The matter was referred back for redetermination. In his reasons for judgment Mr. Justice Rouleau wrote the following:

 

In the case at bar, as was stated earlier, the Board did not at all question the credibility of the medical evidence adduced by the applicant; on the contrary, it concluded that the evidence was credible. Nor was there any contradictory medical evidence that was submitted to cast doubt on the merits of the applicant’s medical evidence.

 

Instead, the Board chose to ignore the uncontradicted evidence on the ground that it was not relevant. But the medical evidence in question was of undeniable relevance since it was addressed to the vascular problems in the lower extremities and established the potential link with military service.

 

The applicant has consistently alleged in the course of his pension application that he suffers from problems with his legs. The new evidence simply reiterates this claim, and the applicant has attempted to corroborate the substance of his application by submitting additional evidence specifically addressed to these problems. How can it be claimed that this evidence is not relevant, without falling into absurdity?

 

It is possible that the Board meant instead that this evidence was not conclusive and that it did not establish with certainty the causal relationship between the disability and the applicant’s military service. This kind of reasoning cannot prevail, as it conflicts with the scheme of the Act by imposing an excessive burden on the applicant . . .

 

Although the new evidence did not unequivocally establish the existence of a causal relationship between the applicant’s complaints and his military service, it may nevertheless serve as a reasonable basis to support the theory that his complaints are attributable to his military service. In fact, in his letter of January 29, 2003, Dr. Nagpal stated:

 

Mr. Thériault was in the military in the remote past and at that time he was complaining of pain in his legs when he walked. I stated in my previous letter that it is impossible to know exactly what the problem was at that time, but I can tell you that young men in the military can have problems with their vasculature of their lower legs, because of excess physical activity. The fact that his peripheral vascular disease is significantly worse now maybe related to early problems in the military. This particular condition is called popliteal entrapment syndrome and certainly could be a possibility in this gentleman, if he had classic claudication at that age...So in summary, the question you are asking me, could this vascular problem have been a prodrome of problems in the future[?] The answer is there is that possibility as he falls into the category of the high-risk group for popliteal entrapment, namely young man in military service.

 

In the absence of any contradiction in this evidence alone, which was considered credible, the Board had to orient its decision in accordance with the evidentiary rules in section 39 and the interpretative rule in section 3, that is, draw from the evidence every reasonable inference in favour of the applicant, accept any uncontradicted evidence presented to it by the applicant that it considers to be credible and resolve in the applicant’s favour any doubt as to whether the applicant has established a case.

 

To reach its conclusion, the Board commented on the expert medical evidence and made some inferences from it, although the Board itself does not have any particular expertise in such matters. Moreover, as the applicant points out, the Board erroneously concluded that there was no reference to the “claudication” syndrome in the applicant’s medical file before Dr. Nagpal submitted his final report, since that medical file did contain a report by Dr. Jean-Marie Michel, who has been the applicant’s treating physician since 1972, in which he states:

 

[TRANSLATION] Since I have known Mr. Thériault, he has always suffered from vascular problems in the lower extremities, and as early as 1972 displayed some intermittent claudication . . .

 

(Thériault v. Canada (Attorney General), 2004 FC 978, [2004] F.C.J. No. 1198 (QL), at paragraphs 26-32.)

 

The Board, whose decision gave rise to this second judicial aaplication, ignored the first judgment of Mr. Justice Rouleau of this Court.

 

This Court’s first judgment was given effect in a superficial and cosmetic way without regard to its interpretation of, and its remarks on, the Act and applicable case law.

 

There is not only judicial authority for the principle that, as benefits-conferring legislation, the Act should be liberally construed, but also strong statutory language mandating this approach. Section 2 of the Act reads as follows:

 

 

(Frye v. Canada (Attorney General), 2005 FCA 264, [2005] F.C.J. No. 1316 (QL), at paragraph18.)

 

            Following this second judgment, it will be necessary for the same Board to thoroughly review it to make sure that, this time, it will be implemented concretely and not in a cosmetic or superficial way. (See also paragraph 37 of Frye, supra.)

 

            In view of the applicant’s age, the lengthy delays that have plagued his case are quite substantial. The applicant should reasonably expect a decision during his lifetime. A judgment concluding judicial review proceedings should not be an exercise in futility. It will then be up to the Board concerned to act following this second judgment by this Court in the same case.

 

NATURE OF JUDICIAL PROCEEDING

 

[2]               This is an application for judicial review made pursuant to section 18.l of the Federal Courts Act, R.S.C. 1985, c. F-7, from a decision on March 23, 2005 by the Veterans Review and Appeal Board (the Board). In that decision the Board dismissed an application to review a decision by an appeal panel on the ground that the evidence put forward by the applicant in support of his review application added nothing new to the record, and accordingly denied the applicant the right to a disability pension.

 

FACTS

 

[3]               The applicant Donat Thériault served in the Regular Forces of the Canadian Army from August 10, 1943 until his discharge on September 4, 1946. He served overseas from January 14, 1945 to July 9, 1946.

 

[4]               On August 31, 1999 Mr. Thériault filed a disability pension application for arteritis in the lower members which was allegedly due to his service in the armed forces.

 

[5]               On April 28, 2000 the Veterans Affairs Department (the Department) ruled that the arteritis affecting his lower members did not entitle the applicant to a pension as the ailment arose after his discharge and was not due to, and did not arise during his service in the active forces.

 

[6]               On November 30, 2000 the Board’s review panel affirmed the Department’s decision.

 

[7]               Mr. Thériault was not satisfied with this decision and on May 15, 2001 appealed before the Board’s appeal panel, on the ground that, according to the evidence, there was a link between the arteritis in his lower members and his service in the armed forces.

 

[8]               On May 30, 2001 the Board’s appeal panel affirmed the decision of the review panel dated November 30, 2000.

 

[9]               On March 25, 2003 Mr. Thériault wrote to the Board’s special advisor asking him to review his decision of May 30, 2001, alleging that there was an error in the assessment of the facts which led to the finding and that new medical evidence was being offered to the Board.

 

[10]           On May 23, 2003 the Board refused to review the decision by the appeal panel dated May 30, 2001, on the grounds that there was no error of fact or law in the appeal panel’s decision. The Board further stated that the new evidence adduced by Mr. Thériault added nothing new to the record as it was not relevant and would have no effect on the outcome of the case.

 

[11]           On July 31, 2003 Mr. Thériault filed in the Federal Court an application for judicial review from the Board’s decision of May 23, 2003. On July 12, 2004 the Federal Court allowed the application for judicial review and quashed the Board’s decision. The case was accordingly referred back for redetermination.

 

[12]           On March 23, 2005 the Board reviewed the appeal panel’s decision as directed by the Federal Court. At that time the Board affirmed the prior decisions rendered in Mr. Thériault’s matter and upheld the denial of entitlement to a disability pension. It is this latter decision which is being challenged in this application for judicial review.

 

[13]           On December 23, 2005 Mr. Thériault filed a notice of application for judicial review in the Federal Court from the latter decision of the Board.

 

IMPUGNED DECISION

 

[14]           Despite its duty to apply the provisions of section 39 of the Veterans Review and Appeal Board Act, R.S.C. 1985, c. 18 (the VRABA), the Board stated that it could not accept the evidence of Dr. Nagpal that raised the possibility that the ailment officially diagnosed over 50 years after Mr. Thériault’s military service ended had originated during his military service, even though Mr. Thériault’s military record contradicted that evidence.

 

[15]           The Board accepted that Mr. Thériault might have suffered from pain in his legs during the 1940s, as he had testified. At the same time, the Board found that it could not find that there was any likelihood of a credible medical link between his pain in the legs and arteritis in the lower members, a condition which was treated for the first time at the earliest 25 years after his military service had ended.

 

[16]           The Board accordingly upheld the preceding decisions in the case and affirmed the denial of entitlement to the pension pursuant to subsection 21(1) of the Pension Act, R.S.C. 1985, c. P-6.

 

ISSUES

 

[17]           The only issue in this case is whether the Veterans Review and Appeal Board made a reviewable error when it refused to award Mr. Thériault entitlement to a pension under subsection 21(1) of the Pension Act.

 

ANALYSIS

 

            Legislative background

 

[18]           According to section 3 of the VRABA, the provisions of the Act and of any other Act referring to the Board are to be liberally construed; the object of the provision is to recognize the great obligations of the people and Government of Canada to the members of the armed forces and their families:

 

 

[19]           Similarly, section 39 of the VRABA sets out broad rules of evidence, designed to benefit applicants:

 

 

 

[20]           Subsection 32(1) of the VRABA provides as follows:

 

 

[21]           Section 21 of the Pension Act governs entitlement to a pension; that provision sets out the circumstances in which a pension will be awarded or denied:

 

 

Standard of review

 

[22]           In his submissions, Mr. Thériault argued that since the issue is one of statutory interpretation, the appropriate standard of review should be that of correctness. However, this Court is of the view that, in this case, the issue is actually one of mixed law and fact since the Board must consider and weigh the relevant facts, in compliance with sections 3 and 39 of the VRABA.

 

[23]           This Court has held, with respect to the decisions of the Board, that the applicable standard of review in applying in the Act to the facts is that of reasonableness simpliciter (McTague v. Canada (Attorney General), [2000] 1 F.C. 647, [1999] F.C.J. No. 1559 (QL), at paragraphs 22-48).

 

[24]           This Court must exercise judicial restraint when the Board is acting within the parameters of its jurisdiction and when the Board has made no error that makes its decision unreasonable.

 

Did Veterans Review and Appeal Board make a reviewable error by denying Mr. Thériault entitlement to a pension under subsection 21(1) of the Pension Act?

 

 

[25]           The evidence was that on May 25, 2003, in accordance with the requirements of section 32 of the VRABA, Mr. Thériault filed an application for review with the Board, alleging there had been an error in the assessment of the facts that led to the finding and that new evidence was offered to the Board.

 

[26]           The evidence further established that, in its decision of May 30, 2001, the appeal panel ruled that it did not have the medical evidence required to link the ailment of arteritis in the lower members of Mr. Thériault with his military service.

 

[27]           Therefore, Mr. Thériault submitted two new reports, ie. the letters from Dr. Nagpal dated August 1, 2002 and January 29, 2003. According to Mr. Thériault this new evidence addressed the issue directly, namely the link between his medical condition and his military service.

 

[28]           The Board applied the test for determining whether it would accept this new evidence, as stated in MacKay v. Attorney General, [1997] F.C.J. No. 495 (QL), at paragraph 26, following Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759. The four criteria are the following:

1. Evidence which could have been adduced on appeal or on the review if due diligence had been exercised is not “new”;
2. The evidence must bear upon the issue of the proceeding;
3. The evidence must be relevant, that is, it has or may have a decisive effect on the decision;
4. The evidence should be credible, that is, it can reasonably be relied on when taken in conjunction with all the other evidence.

 

[29]           On the first criterion, the Board found that Mr. Thériault had exercised due diligence and that the two medical reports were new evidence.

 

[30]           On the fourth criterion, the Board found that the new evidence was credible.

 

[31]           Mr. Thériault alleged that, as to the other two criteria, the Board made an error of law. The Board had to examine this new evidence in accordance with the rules of evidence set out in section 39 of the VRABA and in the light of the rule of liberal construction provided for in section 3 of that Act.

 

[32]           Mr. Thériault submitted that the new evidence certainly could have an effect on the outcome of the case and that it could be determinative.

 

[33]           In a decision of May 23, 2003 the Board reviewed the appeal panel’s decision dated May 30, 2001 and rejected the new evidence on the ground that it could have no effect on the outcome of the case and was not relevant. For these reasons, the review application was denied.

 

[34]           Mr. Thériault filed an application for judicial review of this decision in this Court. Mr. Justice Rouleau, in a judgment on July 12, 2004, allowed the application for judicial review and quashed the Board’s decision of May 23, 2003. The matter was referred back for redetermination. In his reasons for decision, Mr. Justice Rouleau wrote the following:

 

In the case at bar, as was stated earlier, the Board did not at all question the credibility of the medical evidence adduced by the applicant; on the contrary, it concluded that the evidence was credible. Nor was there any contradictory medical evidence that was submitted to cast doubt on the merits of the applicant’s medical evidence.

 

Instead, the Board chose to ignore the uncontradicted evidence on the ground that it was not relevant. But the medical evidence in question was of undeniable relevance since it was addressed to the vascular problems in the lower extremities and established the potential link with military service.

 

The applicant has consistently alleged in the course of his pension application that he suffers from problems with his legs. The new evidence simply reiterates this claim, and the applicant has attempted to corroborate the substance of his application by submitting additional evidence specifically addressed to these problems. How can it be claimed that this evidence is not relevant, without falling into absurdity?

 

It is possible that the Board meant instead that this evidence was not conclusive and that it did not establish with certainty the causal relationship between the disability and the applicant’s military service. This kind of reasoning cannot prevail, as it conflicts with the scheme of the Act by imposing an excessive burden on the applicant . . .

 

Although the new evidence did not unequivocally establish the existence of a causal relationship between the applicant’s complaints and his military service, it may nevertheless serve as a reasonable basis to support the theory that his complaints are attributable to his military service. In fact, in his letter of January 29, 2003, Dr. Nagpal stated:

 

 

Mr. Thériault was in the military in the remote past and at that time he was complaining of pain in his legs when he walked. I stated in my previous letter that it is impossible to know exactly what the problem was at that time, but I can tell you that young men in the military can have problems with their vasculature of their lower legs, because of excess physical activity. The fact that his peripheral vascular disease is significantly worse now maybe related to early problems in the military. This particular condition is called popliteal entrapment syndrome and certainly could be a possibility in this gentleman, if he had classic claudication at that age...So in summary, the question you are asking me, could this vascular problem have been a prodrome of problems in the future[?] The answer is there is that possibility as he falls into the category of the high-risk group for popliteal entrapment, namely young man in military service.

 

In the absence of any contradiction in this evidence alone, which was considered credible, the Board had to orient its decision in accordance with the evidentiary rules in section 39 and the interpretative rule in section 3, that is, draw from the evidence every reasonable inference in favour of the applicant, accept any uncontradicted evidence presented to it by the applicant that it considers to be credible and resolve in the applicant’s favour any doubt as to whether the applicant has established a case.

 

To reach its conclusion, the Board commented on the expert medical evidence and made some inferences from it, although the Board itself does not have any particular expertise in such matters. Moreover, as the applicant points out, the Board erroneously concluded that there was no reference to the “claudication” syndrome in the applicant’s medical file before Dr. Nagpal submitted his final report, since that medical file did contain a report by Dr. Jean-Marie Michel, who has been the applicant’s treating physician since 1972, in which he states:

 

[TRANSLATION] Since I have known Mr. Thériault, he has always suffered from vascular problems in the lower extremities, and as early as 1972 displayed some intermittent claudication . . .

 

(Thériault, supra, at paragraphs 26-32.)

 

 

[35]           As directed, the Board reviewed the appeal of the pension entitlement by Mr. Thériault. The hearing took place on March 23, 2005. In the latter decision, the Board upheld the pension entitlement denial.

 

[36]           Mr. Thériault submitted that the Board made incorrectly interpreted sections 3 and 39 of the VRABA, and hence rendered an unreasonable decision. In particular, the Board ought to have recognized the following points in the evidence.

 

[37]           In his first pension application, Mr. Thériault testified that he began feeling pain in his legs during his military service and that he thus had to ask to be excused from parades several times.

 

[38]           He further testified before the review panel on November 30, 2000 that he did his active service in aviation and that the reason he did not complain of leg pains during his military service was that he feared he would not be sent overseas with his comrades. Further, he added that he was young and that people did not complain about that kind of problem at that time.

 

[39]           Mr. Thériault’s wife testified before the review panel that before their marriage in 1957, he had difficulty walking and dancing because of pain in his legs. Mr. Thériault’s cousin filed a letter saying that they had done their service in aviation together and that Mr. Thériault often told him he had pain in his legs when he was running or taking part in parades.

 

 

[40]           Dr. Michel, Mr. Thériault’s attending physician, stated that in 1972, when he began treating Mr. Thériault, the latter was already suffering from intermittent limping and vascular problems. Dr. Michel considered that this ailment began during Mr. Thériault’s military service.

 

[41]           According to the evidence, Mr. Thériault underwent an operation for vascular problems in his legs in the early 1980s.

 

[42]           Dr. Nagpal, a general and vascular surgeon, who was consulted by Mr. Thériault in 2002 and 2003, did not want to give a final opinion on the cause and the outbreak of Mr. Thériault’s ailment. On the other hand, in his two reports he explained that Mr. Thériault had been suffering pains in his legs since his military service and it was possible that Mr. Thériault’s ailment was caused by his military service.

 

[43]           The Board placed much emphasis on the fact that Mr. Thériault’s military record contained no information to support the fact that he was suffering from leg pains or that he had any medical condition whatever during his military service. The Board appeared to consider that in the absence of documented medical information during military service it was impossible to establish that a medical condition could have arisen during Mr. Thériault’s time of service. That is not a test required by the legislation.

 

[44]           Further, in its decision the Board appeared to ignore Mr. Thériault’s explanations as to the reasons why his military record contained no information on his medical condition and the testimony by his wife and cousin which supported the fact that he began suffering pain during his military service.

 

[45]           It is also important to note that the Board never found that Mr. Thériault’s testimony was not credible. It also recognized that Mr. Thériault could have been suffering from leg pain during the 1940s.

 

[46]           The Board dwelt at length on the lack of medical evidence as to the period going from 1946 to 1972. At the same time, the Board appears to have ignored Mr. Thériault’s testimony that he had leg pains while he was working at the veterans’ hospital in the 1950s and that of his wife that he had difficulty walking before their marriage in 1957.

 

[47]           The Board described Dr. Michel’s comments as groundless and of little evidentiary value. In arriving at this conclusion, the Board noted that Dr. Michel had begun treating Mr. Thériault in 1972 and that for that reason he could not say that his problems had begun during military service. It is true that Dr. Michel could not say with certainty that Mr. Thériault’s problems had developed during his military service since he was not his physician at that time. At the same time, he could give his medical opinion as to the cause of the medical condition. This conclusion by Dr. Michel was of course based on Mr. Thériault’s statements, but also on his specific condition, his history and the severity of his condition in 1972 when he began treating him.

 

[48]           The Board drew an inference which was not based on the evidence in the review record when it found that Mr. Thériault had worked as a fisheries officer for 28 years, a position that required him to be standing for long periods. This inference, which was in no way supported by the evidence before the Board, constitutes speculation.

 

[49]           The Board accepted Dr. Nagpal’s medical opinions. He confirmed that Mr. Thériault was suffering from peripheral vascular illness in both legs. In its decision of March 23, 2005 the Board considered this evidence credible and relevant.

 

[50]           The Board regarded Dr. Nagpal’s opinion as to the link between Mr. Thériault’s ailment and his military service as a mere possibility, primarily because the Board had no knowledge of a higher rate of vascular illness or “popliteal entrapment” among young members of the military than in the general population. The Board also added that the record should have contained studies or statistics to establish such a rate.

 

[51]           The Board erred in applying the rule of evidence in section 39 of the VRABA. The Board appeared to require a much higher standard of proof than that of the balance of probabilities.

 

[52]           In order to be entitled to a pension, Mr. Thériault must meet the following conditions, as summarized by Marc Nadon J. in MacNeill v. Canada, [1998] F.C.J. No. 1115 (QL), at paragraph 23:

 

On the basis of the paragraphs noted above, two conditions must be met before the applicant can be said to be entitled to a pension. First, the applicant’s condition must be pensionable. In that regard, it must be a condition which can be classified as a “disability” resulting from an injury or disease. In my opinion the word “disability” requires that the condition be one from which the applicant continues to suffer. Second, the original condition must arise directly from the applicant’s military service. After carefully reading the provision I have concluded that the applicant’s military service must be the primary cause for the disability. However, the Act also provides that a pension may be awarded if the disability is aggravated by the applicant’s military service. In either case, causation must be established and, in the absence of evidence to the contrary, causation is presumed if the injury was incurred during the course [of] the applicant’s service.

 

 

[53]           In Hunt v. Canada (Minister of Veterans Affiars), [1998] F.C.J. No. 377 (QL), at paragraph 9, affirmed by [1999] F.C.J. No. 1601 (QL), this Court held that an applicant must prove, on the balance of probabilities, that the condition from which he is suffering arose during his military service. The Court added that when an applicant is trying to offer such evidence, the Board must accept any uncontradicted and credible evidence:

Although section 39 of the Veterans Review and Appeal Board Act requires that the Board accept uncontradicted evidence, this evidence must be credible. The applicant must prove the civil standard that on a balance of probabilities, with the bonus of having this evidence put in the best light possible, his disease was contracted while in the service of his country.

 

[54]           The Board invoked its expertise and specialized knowledge of the various ailments pleaded before it every year. The Board stated that it had no knowledge of any study indicating that there was a higher rate of this ailment among members of the military. Nonetheless, the Board has no medical expertise and cannot disregard medical evidence by stating that it has special medical knowledge.

 

[55]           Section 38 of the VRABA authorizes it to obtain the opinions of a qualified physician on any inconclusive medical question.

 

[56]           In Rivard v. Canada (Attorney General), 2001 FCTD 704, [2001] F.C.J. No. 1072 (QL), at paragraphs 39- 43, Mr. Justice Nadon stated that under section 38 of the VRABA the Board may obtain medical advice on uncertain questions. He concluded that, on the basis of this provision, it could be inferred that that the Board had no particular medical expertise:

 

If required, the Board is entitled to obtain medical evidence, other than evidence adduced by the applicant. Subsection 38(1) of the VRAA allows it to obtain medical advice regarding any matter before it. Under subsection 38(2), the Board is required to give notice that it will in fact obtain expert evidence to allow applicants to produce evidence in reply.

In my view, the fact that section 38 of the VRAA allows the Board to seek medical advice on any medical matter suggests that the Board has no particular medical expertise. That was acknowledged by jurisprudence, beginning with Moar v. Canada (Attorney General) (1995), 103 F.T.R. 314 (T.D.). Mr. Justice Heald’s conclusion in Moar, supra, was cited in several cases, in particular in Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (T.D.). MacKay J.’s comments at paragraphs 14 and 15 read:

       Under section 38 of the Act, the Board may seek independent medical opinions regarding any matter before the Board. Mr. Justice Heald, in Moar v. Canada (Attorney General), (1995), 103 F.T.R. 314, at p. 316 commenting on a similar provision, s.10(3) of the former, and now repealed Veterans Appeal Board Act, and its significance for the deference to be accorded by the Court to the Board’s decision, had this to say:

The issue in this case clearly involves medical matters. Section 10(3) of the Veterans Appeal Board Act empowers the Board to obtain independent medical opinions relating to any matter before the Board. On this basis I conclude that the Board is not to be afforded the deference usually given to tribunals of a specialized nature because of their particular expertise.

       That decision must be read in light of Tonner v. Canada (June 12, 1996), Court File No. A-263-95, [1996] F.C.J. No. 825 (F.C.A.), a decision of the Federal Court of Appeal, which held that the privative clause found  in the former Veterans Appeal Board Act entitled that Board to deference. A similar clause is now found in s. 31 of the present Act. I conclude that the Court is to defer to a decision of the VRAB, other than one concerning jurisdiction of the Board, unless it is patently unreasonable.

In Moar, supra, Heald J. concluded that the very existence of a provision similar to section 38 of the VRAA suggested that the Board did not have any particular medical expertise and therefore could not be afforded deference from the courts. The Federal Court of Appeal later determined that the privative clause contained in the VRAA required deference from the court reviewing the Board’s decision since that was the legislator’s intent. That decision to give deference resulted solely from the existence of the privative clause and not from a reassessment of Heald J.’s reasons in Moar, supra, concerning the Board’s medical expertise. In my view, the substance of Justice Heald’s analysis concerning the Board’s medical expertise still applies; the existence still today of section 38 of the VRAA confirms that the Board does not have any specific medical expertise.

 

In my opinion, the very existence of section 38 suggests that the Board does not have an inherent jurisdiction over medical matters. It does not have any particular medical expertise that would enable it to state without supporting evidence that Dr. Sestier’s opinion and the article he adduced in this case were not part of the medical consensus. Therefore, I believe that the Board could not present medical facts that had not been adduced as evidence for the purpose of rebutting the applicant’s evidence. If the Board required evidence other than that adduced by the applicant or evidence representing the medical context, it had only to invoke section 38 and seek medical advice.

 

Therefore, I am of the view that sections 38 and 39 of the VRAA and the case law, when read together, require that contradictory evidence be adduced in the file before rejecting medical evidence adduced by the applicant. Unless the Board believed that the evidence was not credible, which was not the case here, it could not reject Dr. Sestier’s opinion without having contradictory evidence before it.

 

[57]           In this case, the Board did not receive additional medical evidence: rather, it appears instead to have conducted a cursory research into Mr. Thériault’s ailment by referring to a medical dictionary (the Merck Manual) found on the Internet. Without having obtained medical opinions to the contrary, the Board could not substitute its opinion for that of Dr. Nagpal or question his opinion. Thus, the Board did not comply with sections 3 and 39 of the VRABA.

 

[58]           In MacDonald v. Canada (Attorney General), 2003 FC 1263, [2003] F.C.J. No. 1645 (QL), a similar case in which this Court allowed an application for judicial review because it found that the Board had ignored the medical evidence and substituted its own opinion, Mr. Justice François Lemieux stated at paragraphs 18-19 and 24:

 

My review of the tribunal’s decision leads me to conclude it did not find the evidence provided by either Dr. Wiltshire or Dr. St. Arnaud to be not credible. Rather, it considered that evidence to be credible so far as it went.

 

As I noted before, the tribunal’s decision rests on causation and, in order to conclude insufficiency of evidence to establish causation, the tribunal discounted the only medical evidence on the record by drawing inferences on medical matters when it did not have on the record other medical evidence on the point which it could properly have weighed but rather relied, in order to fill the gap, on its own knowledge and the research it conducted.

 

. . . . .

 

In short, the tribunal embarked upon forbidden territory making medical findings to discount uncontradicted credible evidence when it had no inherent medical expertise and had the ability to obtain and share independent medical evidence on points which troubled it.

 

[59]           Similarly, in Rivard, supra, at paragraphs 22-25, Mr. Justice Nadon discussed the duties imposed on the Board by section 39 of the Veterans Review and Appeal Board Act:

 

In accordance with section 39 of the VRAA, the Board must accept any uncontradicted evidence presented by the applicant that it considers to be credible in the circumstances. It must also draw conclusions that are the most favourable to the applicant. In MacDonald, supra, Cullen J. stated the following on the issue at paragraph 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.); and Moar, supra.

 

Therefore, if the evidence is uncontradicted and is considered credible, the Board must accept it, as stipulated by section 39. In Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (T.D.), MacKay J. stated the following at paragraph 28:

 

The Board may reject the applicant’s evidence when it has before it contradictory medical evidence. However, while there may be an absence of evidence in the form of definitive medical documentation about the injury claimed, where there is no contradictory evidence and the Board does not accept the applicant’s evidence without explanation of that, it commits an error that goes to jurisdiction . . . A decision of the Board that errs in the exercise of its jurisdiction, is unreasonable and warrants intervention by the Court. The standard of patent unreasonableness, in my opinion, is not apt if the error concerns the exercise of the Board’s jurisdiction . . .

 

            Moreover, in Brychka v. Canada (Attorney General) (1998), 141 F.T.R. 258 (T.D.), MacKay J. summarized the Board’s choices at paragraphs 20 and 25:

 

I agree with the respondent that the Board may reject medical evidence when it has before it contradictory medical evidence . . .

 

As in Moar, the Board was obliged, in my view, to make an explicit finding that this medical evidence in support of the applicant’s claim was not credible, or to solicit its own medical evidence dealing with the issue of a stress etiology, or to accept the uncontradicted evidence of the applicant in rendering its decision bearing in mind ss. 3 and 39 of the VRABA . . .

 

There is no doubt that it is the Board’s duty to assess the evidence before it and to give it the appropriate weight. However, the evidence must always be assessed in accordance with sections 3 and 39 of the VRAA, which means that the Board must accept any uncontradicted evidence adduced that it considers credible. According to case law, in particular to Wood, supra, and Brychka, supra, cited above, the contradictory medical evidence must have been adduced in the file.

 

 

[60]           The Board acted in violation of the provisions of sections 3 and 39 of the VRABA. It selectively approved the conclusions least favourable to Mr. Thériault, it questioned uncontradicted evidence and refused to recognize the medical opinions establishing that it was likely Mr. Thériault’s ailment arose during his military service. Further, the Board did not obtain an independent medical opinion and relied on its self-proclaimed medical expertise.

 

CONCLUSION

 

[61]           According to MacDonald, supra, the Board has no medical expertise. In the absence of any contradiction in the evidence, the Board was required to decide the case in accordance with the rules of evidence provided for in section 39 and the rule of interpretation provided for in section 3 of the VRABA.

 

[62]           The Board stated that it was aware of its duty under sections 3 and 39 of the VRABA; however, it did not act in accordance with the requirements of its enabling legislation and this constitutes a reviewable error.

 

[63]           This application for judicial review is accordingly allowed. The decision in this case, on these particular facts, is referred back to the Board for redetermination by a differently constituted panel.

 

 

 

JUDGMENT

 

            THE COURT ORDERS that the application for judicial review be allowed with costs and the decision referred back to the Board for for redetermination by a differently constituted panel.

 

 

“Michel M.J. Shore”

 

 

Certified true translation

François Brunet, LL.B., B.C.L.

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                              T-2285-05

 

STYLE OF CAUSE:                              DONAT THÉRIAULT v. ATTORNEY GENERAL OF CANADA

 

DATE OF HEARING:                          Fredericton, New Brunswick

 

DATE OF HEARING:                          September 6, 2006

 

REASONS FOR JUDGMENT BY:     The Honourable Mr. Justice Shore

 

DATED:                                                 September 8, 2006

 

 

 

APPEARANCES:

 

Bertin Thériault	FOR THE APPLICANT
Sandra Doucette	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

THÉRIAULT, LAROCQUE, BOUDREAU Shippagan, N.B.	FOR THE APPLICANT
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT