Vancouver, British Columbia, November 30, 2006
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
and
VETERANS REVIEW AND APPEAL BOARD CANADA
and ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1]
Mr. James
Grant (the “Applicant”) seeks judicial review of the decision of the Veterans
Review and Appeal Board (the “VRAB” or “Appeal Board”), dated July 14, 2005. In
its decision, the Appeal
Board
rejected the Applicant’s application for pension benefits pursuant to the Pension
Act, R.S.C. 1985, c. P-6, as amended (the “Pension Act”) with respect to
the medical condition of tinnitus. He attributed that condition to his years of
service in the Canadian Armed Forces.
II. Background
[2]
The
Applicant joined the Canadian Armed Forces on September 27, 1954. He served as
a member of the Regular Force from that date until October 26, 1976. He served
as a member of the Reserves from January 31, 1990 until August 10, 1991 and
again, from February 24, 1993 until September 26, 1993.
[3]
During his
service as a member of the military, the Applicant served as a radar plotter
with the Royal Canadian Navy and later, as a member of the air crew on the
aircraft carrier “Bonaventure”. In the course of his service, he was exposed
to work environments that were very loud and noisy as a result of the operation
of unpressurized aircraft engines on aircraft carriers, rocket launchers, and
other heavy artillery aboard naval vessels. He was also exposed to a large amount of
small arms fire.
[4] The Applicant was first diagnosed with hearing loss in an Aircrew Medical Re-Examination dated February 27, 1967. That examination recorded the following under the heading “Clinical Summary”:
1. Fit male
2. Bilateral hearing loss – mid higher frequency. Note slight impairment hearing, non-progressive.
[5] The Report also included the medical officer’s recommendation as follows:
1. …
2. Refer ENT re above hearing loss. (See DND 2008).
3. To be re-assessed in October/67 re hearing loss.
[6]
On July
24, 1991, the Applicant was examined by Dr. L. Terepasky. The report bears the
heading “Canadian Forces Report of Medical Examination (For Release), Force
Canadiennes Raport D’Examen Médical (Pour Libération)” and includes the
following information “Hearing loss 2nd to aircraft exposure”.
[7]
In 1994
and 1995, the Applicant sought further medical advice concerning his hearing
problems.
[8]
In 1997,
the Applicant applied for pension benefits for his hearing loss. In a decision
dated June 6, 1997, the Appeal Board dismissed his application because the
evidence did not establish the existence of an assessable disability, as
defined in the Pension Act, at the time the Applicant was released from the Regular
Forces.
[9]
On June
17, 2003, the Applicant underwent audiometric testing by Dr. Michael Fong who
prepared a report, dated October 31, 2003. Dr Fong reviewed and summarized his
history of prior audiograms and tendered the opinion that the greatest contribution
to his hearing loss was his service with the Navy.
[10]
On January
15, 2004, the Applicant underwent a further hearing assessment at Audiology Associates. Dr. Dennis A. Herx prepared a
Tinnitus Assessment and concluded that the Applicant’s hearing loss was
consistent with high noise exposure during his military service.
[11]
The
Applicant made a further application for a disability pension based upon
hearing loss and tinnitus on March 9, 2004. On July 30, 2004, the Minister
determined that his tinnitus was not pensionable pursuant to subsection 21(2)
of the Pension Act, Regular Force Service.
[12]
The
Applicant appealed the decision of July 30, 2004 pursuant to the Veterans
Review and Appeal Board Act, S.C. 1995, c. 18 (the “VRAB Act”). On January 18, 2005, an Entitlement
Review Panel of the Appeal Board
dismissed his appeal on the ground that his tinnitus “did not arise out of nor
was it directly connected with service in peace time in the Regular Forces”.
[13]
Subsequently,
the Applicant obtained another medical opinion from Dr. Ian C. MacMillan. In
his report dated May 9, 2005, Dr. MacMillan said the following:
This man had a hearing with the Veteran’s Appeal Board in reference to his symptoms of tinnitus and sensory neural hearing loss. He had a copy of the decision at that time. The decision dated July 30, 2004 stated there were no recorded complaints of acoustic trauma or blast injuries or any documented evidence of complaints in the applicant’s regular reserve force service. However in actual fact, it is quite evident that this man, because of the nature of his work with the Canadian Armed Forces, has had obvious repeated noise exposure throughout his service career, which would quite readily account for the greater portion of his sensory neural hearing loss and most likely for most of the complaintive tinnitus that has been bothering him over the years.
… The most common form of bilateral tinnitus is that associated with the bilateral sensory neural hearing loss, such as the patient has. Audiometrically identifiable hearing loss is present in most cases of tinnitus, even when the patient is not aware of subjective difficulty in his hearing. The tinnitus may be the first warning symptom of acoustic trauma or noise induced hearing loss as well as certain types of toxicity. It is well known that most ear diseases that produce either a conductive or sensory neural loss can be associated with tinnitus and that effective treatment of the conductive hearing loss can often result in a cure of the associated tinnitus.
There has however been no significant conductive component in this man’s tinnitus, except possibly some Eustachian tube malfunction from flying in on pressurized air craft and also doing a considerable amount of swimming in the fitness or gymnastic components of his service career.
Other causes of tinnitus, such as palatal myoclonus, excessively patent Eustachian tube or transmitted vascular sounds or bruits that arise from anemia, carotid artery and cerebral vascular disease, etc. have been eliminated clinically as far as my examination was concerned.
The patient is nor or has not been on medications that would have any bearing on his tinnitus or sensory neural hearing loss.
[14]
On June
28, 2005, Dr. Herx wrote a letter to Area Advocate Aiden Sheridan. He provided
the following opinion:
In my professional opinion, Mr. Grant does suffer from constant tinnitus and hearing loss. His noise exposure history while in the Canadian Forces, and the research I have provided, support his claim that his service years most probably were the cause of his hearing loss and tinnitus. The otolaryngology reports of Dr. Michael Fong and Dr. Ian MacMillian support these findings.
[15]
The
Applicant appealed the decision of the Entitlement Review Panel to the VRAB, in
accordance with section 25 of the VRAB Act. Written submissions were made on
his behalf and according to those submissions, attached as Exhibit M to the
Applicant’s affidavit filed in this proceeding, the medical evidence of Dr.
Fong, Dr. MacMillan and Dr. Herx was brought to the attention of the VRAB.
[16]
In its
decision dated July 14, 2005, the VRAB dismissed the Applicant’s appeal. Its
ruling provided that his condition of tinnitus “did not arise out of nor was it
directly connected with service in peace time in the Regular Force” and
reference was made to subsection 21(2) of the Pension Act. The Reasons of the
VRAB provided, in part, as follows:
. . . a reasonable inference cannot be drawn that the diagnostic testing in 2004, which revealed the tinnitus, could relate the condition to the [Applicant’s] service in the Regular Force or the Reserve Force, with an interval of 28 years with no complaints and no medical reports of problems of tinnitus.
III. Submissions
[17]
The
Applicant argues that the Appeal Board failed to consider the totality of
the evidence before it and erred in its interpretation of section 39 of the
VRAB Act. He submits that consequently, the Appeal Board failed to resolve
evidentiary doubt in his favour and failed to draw a reasonable inference from
the evidence. He argues that the Appeal Board erred in its interpretation of
section 39 and that its decision is reviewable on the standard of correctness.
Alternatively, he submits that its failure to consider the evidence is a breach
of procedural fairness.
[18]
The
Respondents submit that the Appeal Board’s decision is reviewable on the
standard of patent unreasonableness and that the Appeal Board committed no reviewable
error in rejecting the Applicant’s pension application.
IV. Discussion and Disposition
[19]
The
Applicant’s pension application is governed by both the Pension Act and the
VRAB Act. Paragraph 21(2)(a) of the Pension Act is relevant and provides as
follows:
|
(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; |
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; |
[20]
The first
step is to determine the appropriate standard of review pursuant to a pragmatic
and functional analysis. That requires consideration of four factors: the
presence or absence of a privative clause; the expertise of the tribunal; the
purpose of the legislation and of the specific statutory provision; and the
nature of the question.
[21]
Section
31 provides that
decisions of the Appeal Board
are final and binding. However, subsection 32(1) and section 111 allow the
Board to reconsider its decisions in certain circumstances. The combined effect
of these provisions suggests a high level of deference.
[22]
The
purpose of the VRAB Act is to establish the Appeal Board as an independent body
to review decisions by the Minister or his delegates regarding pension
applications made pursuant to the Pension Act. The right to appeal to the Appeal Board is conferred by section 25 of the VRAB Act. I conclude that
the factor of statutory purpose attracts deference.
[23]
The third
factor is the expertise of the tribunal. The Appeal Board is specifically mandated
to act as a review panel and is experienced in conducting reviews. This factor favors
a high degree of deference.
[24]
Finally,
the nature of the question must be considered. The Appeal Board must determine if an applicant
meets the criteria for receiving a pension or other benefits under the relevant
legislation. This is primarily a fact-seeking exercise. This factor tends
towards a more deferential standard.
[25]
On
balance, I conclude that the appropriate standard of review in this case is
that of patent unreasonableness.
[26]
The
Applicant’s application for pension benefits originated pursuant to the Pension
Act and it is appropriate that reference be made to that statute. Section 2 of
the Pension Act sets out the guiding principle for the interpretation and
application of that statute, as follows:
|
2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
|
2. Les dispositions de la présente loi s’interprètent d’une façon libérale afin de donner effet à l’obligation reconnue du peuple canadien et du gouvernement du Canada d’indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge. |
[27]
A similar
provision is found in section 3 of the VRAB Act, as follows:
|
3. The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled. |
3. Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s’interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l’égard de ceux qui ont si bien servi leur pays et des personnes à leur charge. |
[28]
According
to the decision in MacKay v. Canada (Attorney General) (1997), 129
F.T.R. 286, section 3 and section 39 of the VRAB Act together guide the Appeal Board in its assessment of the evidence
presented to it. Section 39 provides as follows:
|
39. In all proceedings under this Act, the Board shall (a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and (c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case. |
39. Le Tribunal applique, à l’égard du demandeur ou de l’appelant, les règles suivantes en matière de preuve : a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci; b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l’occurrence; c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande. |
[29] Sections 3 and 39 of the VRAB Act have been interpreted to mean that an applicant must submit sufficient credible evidence to show a causal link between his or her injury or disease and his
or her time of military service. In this regard, I refer to
the decisions in Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58, aff’d. (1999), 250 N.R. 93 (Fed. C.A.) and Tonner v. Canada (Minister of Veterans Affairs) (1995), 94 F.T.R. 146, aff’d. [1996] F.C.J. No. 825
(Fed. C.A.).
[30]
In its
decision, the Appeal Board stated that it had
reviewed the prior decision, as well as the new evidence, that is the reports
of Dr. Herx and Dr. MacMillan. It referred to the report of Dr. Fong dated
October 31, 2003. It observed that the Applicant had not complained during
his military service and that no tinnitus was noted when he left the regular service
in 1976. It proceeded to state the following conclusion:
A reasonable inference cannot be drawn
that the diagnostic testing in 2004, which revealed the tinnitus, could relate
the condition to the Applicant’s service in the Regular Force or the Reserve
Force, with an interval of 28 years with no complaints and no medical reports
of problems of tinnitus.
[31]
The Appeal Board’s conclusion is to be reviewed
against the standard of patent unreasonableness, having regard to the statutory
framework. Section 39 of the VRAB Act directs the Board to draw all favourable
inferences from uncontradicted evidence submitted by a person seeking a
pension.
[32] The problem in this case, however, is not with the identification of the relevant legal principles under the VRAB Act but in the manner in which the Board applied them. In my opinion,
the Board here committed a reviewable error by rejecting the
evidence submitted by the Applicant without giving any explanation for doing
so.
[33]
The Appeal Board commented on the lack of
evidence in the record about any complaints of tinnitus by the Applicant while
he was engaged in regular service. Likewise, it noted that there was no record
of tinnitus when he was discharged. However, the Board made no credibility
findings concerning the evidence that was before it, including the report of
Dr. Herx.
[34]
Attached to
this report is a paper that describes the symptoms and progression of tinnitus.
It is a disease that may manifest itself over a period of time. In light of the
evidence about the nature of the illness, in my view the Appeal Board was required to assess
the Applicant’s medical history and medical reports in light of that evidence.
It was then required to accept or reject the evidence and to explain why it did
so.
[35]
The
Board’s failure to do so is a reviewable error. Its conclusions, as stated
above, are patently unreasonable.
[36] Accordingly, this application for judicial review is granted. The matter is remitted to a differently constituted panel of the Appeal Board for redetermination in accordance with these reasons. The Applicant shall have his taxed costs.
ORDER
The application for judicial review is allowed. The matter is remitted to another panel of the Appeal Board for redetermination in accordance with these reasons. The Applicant shall have his taxed costs.
“E. Heneghan”
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1647-05
STYLE OF CAUSE: James Grant and Veterans Review and Appeal Board Canada and Attorney General of Canada
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: June 13, 2006
APPEARANCES:
|
Mr. James D. MacNeil
|
|
|
Ms. Korinda McLaine
|
SOLICITORS OF RECORD:
|
Boyne Clarke Halifax, Nova Scotia
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|