Toronto, Ontario, November 28, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] Roger Ladouceur seeks judicial review of a decision of the Veterans Review and Appeal Board denying his request for an increase in his pension entitlement for the post-traumatic arthritis that he has in his left ankle.
[2] I am of the view that this application must be allowed, as the Board failed to give meaningful reasons for dismissing Mr. Ladouceur’s appeal.
Background
[3] Mr. Ladouceur served in the Canadian Armed Forces in Cyprus in the early 1980’s, during which time he suffered several strain injuries to his ankle. He has since developed arthritis in the ankle, and there is now no dispute about the fact that his current ankle problems are directly related to his military service.
[4] On April 30, 1998, Mr. Ladouceur applied for a pension as a result of the ongoing problems that he was experiencing with his ankle. This application was denied, based upon the lack of evidence that his ankle condition was related to his military service, and Mr. Ladouceur’s appeal to the Board was denied.
[5] Mr. Ladouceur subsequently underwent an MRI, which resulted in the formal diagnosis of post-traumatic arthritis in the left ankle, following which, Mr. Ladouceur submitted a new application for a disability pension.
[6] In light of the new diagnosis, the Department of Veterans Affairs accepted that Mr. Ladouceur’s ankle condition was likely caused, at least in part, by his military service in Cyprus. A pension adjudicator then awarded Mr. Ladouceur a disability pension valued at three percent of a full pension, effective October 6, 2003.
[7] Mr. Ladouceur requested an assessment review, and was successful having the effective date of entitlement changed to January 30, 2001. He also succeeded in having the assessment of his pension entitlement raised to five percent of a full pension.
[8] Mr. Ladouceur then appealed this assessment to the Board, requesting that his pension be increased from five percent to 15 percent of the value of a full pension. The Board dismissed Mr. Ladouceur’s appeal, and it is this decision that is under review in this application.
The Board’s Decision
[9] The Board’s decision is some four pages long. Much of the decision consists of a recitation of the medical evidence regarding Mr. Ladouceur’s ankle condition. The actual reasons of the Board consist of a single paragraph, which states that:
The Panel, in reviewing the objective evidence available, notes that there is no effusion, crepitus, instability, or range of motion. Therefore, as it has not been provided with up-to-date objective medical evidence and/or an opinion which would indicate a deterioration of symptoms and support an increase in assessment, it agrees that the present 5% assessment for the condition of post traumatic arthritis [in the] left ankle fairly and adequately assesses the degree of disability the Appellant is experiencing.
Standard of Review
[10] Mr. Ladouceur’s application is based, in part, upon the alleged failure of the Board to provide sufficient reasons. A question as to the sufficiency of reasons raises an issue of procedural fairness, which should be reviewed against the standard of correctness: see Canada (Attorney General) v. Fetherston, 2005 FCA 111.
Analysis
[11] The Board’s assessment of the entitlement of an individual to a pension is to be guided by the Table of Disabilities established by the Minister under the authority of subsection 35(2) of the Pension Act, R.S.C. 1985, c. P-6.
[12] The only ankle injury or condition referred to in the Table of Disabilities is a “bony fusion of ankle, optimal position”. The Table assesses such an injury at 20% of the value of a full pension. There is no specific guidance offered by the Table for an injury such as that suffered by Mr. Ladouceur.
[13] While Mr. Ladouceur was only seeking to have his assessment increased from 5% to 15%, it is worth noting that the 20% assessment indicated by the Table does not necessarily represent an upper limit on awards for ankle injuries.
[14] According to Dr. Barry Clark, a Medical Advisor with Veterans Affairs, while an ankle injury would generally not be assessed at more than 20%, there are several exceptions to this rule. As an example, Dr. Clark cites the case of an ankle that was fused in an abnormal position, which, he says, would warrant a higher assessment.
[15] Dr. Clark further indicated that a joint that was unstable, had very little movement, and was painful, could warrant a higher assessment than would a fused joint, which would not normally be painful.
[16] In this case, the medical evidence disclosed that Mr. Ladouceur frequently complained of ongoing instability in his ankle, although there were no clinical signs of instability in the joint. Moreover, the report of Mr. Ladouceur’s family doctor, Dr. Coutts, indicated that Mr. Ladouceur’s ankle caused him “significant pain”, and that it was “incredibly stiff”. The MRI confirmed the presence of degenerative changes in the joint.
[17] While this evidence is included in the Board’s recitation of the facts, there is no reference to it in its very cursory analysis of the claim, and it does not appear that the Board ever turned its mind to the implications of this evidence for the assessment of Mr. Ladouceur’s claim.
[18] This is particularly troubling in light of the evidence from Dr. Clark that a very stiff, painful, unstable joint could potentially warrant an even higher assessment than the 20% recommended for an ankle fused in the optimal position.
[19] While there was conflicting evidence before the Board with respect to the stability of Mr. Ladouceur’s ankle, no effort was made by the Board to resolve this conflict. Rather the Board simply made the finding that there was no instability in the joint, without any explanation as to how it was that it came to this conclusion.
[20] Moreover, the Board’s statement that “there is no effusion, crepitus, instability, or range of motion” is puzzling, in that it has juxtaposed three aggravating conditions or symptoms with a functional capacity that would potentially reduce an individual’s pension entitlement.
[21] That is, the fact that there was no effusion, crepitus or instability in a joint would presumably tend to militate against an increase in pension entitlement, whereas stiffness – or the absence of a range of motion in a joint - could potentially increase the claimant’s entitlement. It is not clear from the sentence cited above that the Board understood the difference.
[22] The need for adjudicative bodies to provide “reasoned reasons” has been recognized by the Supreme Court of Canada in cases such as Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26. While the decision under review in this case is not of the same significance to Mr. Ladouceur that a criminal or immigration decision would have been, it was nonetheless important to him, and he should not be left in any doubt as to how the Board arrived at its conclusion.
[23] Moreover, section 7 of the Veterans Review and Appeal Board Regulations, SOR/87-601 specifically imposes a duty on the Board to give reasons for its decisions.
[24] While counsel for the respondent concedes that the reasons given by the Board in this case are not as detailed as one would like, she relies on the decision of this Court in McTague v. Canada (Attorney General), [2000] 1 F.C. 647, to say that they are sufficient.
[25] A review of Justice Evans’ comments in McTague discloses that what he actually said was that where the Board was making an assessment based upon the specific facts of a particular case, it was unrealistic to expect it to analyse factually similar cases. That is not what we are dealing with here.
[26] What we have here in the decision under review is essentially a recitation of the medical evidence, followed by the statement of a conclusion. Giving the Board the benefit of the doubt, and assuming that it turned its mind to the issue, we can deduce that the Board did not accept that the severe joint pain and stiffness experienced by Mr. Ladouceur entitled him to more than a five percent pension. What we do not know from the Board’s reasons is why that was.
[27] In these circumstances, the Board’s reasons were insufficient, and resulted in a denial of procedural fairness to Mr. Ladouceur.
Conclusion
[28] For these reasons, the application for judicial review is allowed, with costs. The matter is remitted to a different panel of the Board for re-determination.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application for judicial review is allowed, with costs. The matter is remitted to a different panel of the Board for re-determination.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2127-05
STYLE OF CAUSE: ROGER LADOUCEUR v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 27, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: Mactavish J.
DATED: November 28, 2006
APPEARANCES:
Mr. Yehuda Levinson FOR THE APPLICANT
Ms. Rina Li FOR THE RESPONDENT
SOLICITORS OF RECORD:
Levinson & Associates
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT