Date: 19980209
Docket: T-900-97
Ottawa, Ontario, this 9th day of February, 1998
Present: THE HONOURABLE MR. JUSTICE MARC NOËL
Between:
EPHREM LECLERC,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
ORDER
The application for judicial review is dismissed.
Marc Noël
Judge
Certified true translation
C. Delon, LL.L.
Date: 19980209
Docket: T-900-97
Between:
EPHREM LECLERC,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
NOËL J.:
[1] The applicant is seeking judicial review of a decision of the Veterans Appeal Board (the "Board") dated February 7, 1997, entitling him to his full pension as of February 7, 1994. According to the applicant, the Board should have awarded him his full pension as of May 15, 1984.
The Facts
[2] On May 15, 1987, the Pension Review Board concluded that the condition from which the applicant suffered existed prior to his enlistment in the army. The Review Board nonetheless awarded him a pension equivalent to one fifth of the full pension to take into account the portion of his disabling condition that was attributable to his military service.
[3] On July 11, 1991, pursuant to an application for reconsideration filed on April 23, 1991, the Board refused to amend that decision. This meant that the Board rejected the applicant's argument that the disabling condition from which he suffered did not exist at the time of his enlistment.
[4] That decision was the subject of an application to the Court of Appeal under section 28 of the Federal Court Act. In his reasons, Mr. Justice Pratte stated, on behalf of the Court:
| The first Board affirmed the decision of the second Board and held that the applicant was entitled only to one-fifth of the pension corresponding to the disability from which he suffers. In arriving at this conclusion the first Board relied on certain evidence (which was in fact contradicted by other evidence) that the applicant's disability existed at the time he became a member of the Armed Forces. As it was established that the condition giving rise to the applicant's disability "was not noted at a medical examination prior to enlistment" and was diagnosed over three months after that enlistment, this Court feels that the first Board could not decide as it did without ignoring the provisions of ss. 21(9) and 108 of the Pension Act (R.S.C. 1985, c. P-6).1 |
| 1 The wording of these provisions is as follows: |
| 21.(9) Subject to subsection (10), where a disability or disabling condition of a member of the forces in respect of which the member has applied for an award was not recorded on medical examination prior to enlistment, that member shall be presumed to have been in the medical condition found on his enlistment medical examination unless there is |
| ( a) recorded evidence that the disability or disabling condition was diagnosed within three months after the enlistment of the member; or |
| ( b) medical evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the enlistment of the member. |
| 108. The Commission and every Entitlement Board shall, in determining the entitlement of an applicant to an award and in assessing the extent of the disability of a member of the forces, |
| ( 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 member; |
| ( b) accept any uncontradicted evidence presented to it by the applicant or member that it considers to be credible in the circumstances; and |
| ( c) resolve in favour of the applicant or member any doubt, in the weighing of evidence, as to whether the applicant or member has established a case. |
[5] The order made by the Court of Appeal pursuant to that decision states that the case is returned to the first Board "for it to decide on the basis that the pension to which the applicant may be entitled pursuant to ss. 21(9) and 108 of the Pension Act cannot be reduced on the ground that the evidence does not clearly show that the cause of his disability is subsequent to his enlistment".
[6] The Board reconsidered the case on December 10, 1993. At that time, the Board identified the issue as [translation] "... whether the medical evidence establishes that the disabling condition ... arose prior to his enlistment". After examining the evidence, the Board concluded that the applicant's disabling condition existed at the time of his enlistment. Plainly, the Board had failed to understand the effect of the order of the Court of Appeal.
[7] The applicant again requested a reconsideration. In its decision dated December 16, 1994, the Board acknowledged that the earlier Board had failed to properly identify the issue and said that it accepted the decision of the Court of Appeal. However, the Board noted that this did not automatically entitle him to a full pension since even if the disabling condition were subsequent to his enlistment, the cause was not necessarily connected with or did not necessarily arise out of the military service. After considering the evidence, the Board concluded that [translation] "there is no evidence from which it may be concluded that the claimant's military duties contributed to the aggravation of the disabling condition to any greater extent than is recognized by the present one-fifth pension entitlement".
[8] The applicant sought judicial review of that decision under section 18 of the Federal Court Act. In a decision dated November 1, 1996, I myself concluded that having regard to the statutory presumptions that operated in favour of the applicant and to the evidence that was before the Board, it was not open to it to conclude that the applicant's disabling condition was not connected with or did not arise out of his military service. I therefore set aside the decision of the Board and ordered that the matter be referred back to it to be disposed of on the basis that the applicant's disabling condition arose out of his military service.
[9] Accordingly, on February 7, 1997, the Board confirmed the applicant's right to a full pension. The Board made the pension payable as of February 7, 1994, three years before the day on which it was awarded under paragraph 39(1)(b) of the Pension Act.1 In addition, the Board exercised its discretion in favour of the applicant by making an additional maximum award equivalent to two years pension under subsection 39(2) of the Pension Act.2 The Board thereby acknowledged that the applicant's right to his full pension had been delayed for reasons that were not attributable to him. It is that decision, dated February 7, 1997, that is the subject of the application for judicial review.
Argument in support of the application
[10] According to the applicant, when the Board made its decision on February 7, 1997 it in fact amended the decision made by the Review Board on May 15, 1987, and he is entitled to his full pension as of May 15, 1984, three years before that decision.
[11] The applicant, relying on section 111 of the Veterans Appeal Board Act,3 argues that the Board could only confirm, amend or rescind the decision which was the subject of the reconsideration. According to the applicant, it is the decision of May 15, 1987 that was subject to reconsideration, and not the decision of December 16, 1994. He says that by asserting that it was amending the decision of December 16, 1994, rather than the decision of May 15, 1989, the Board preserved the effect of the decision of May 15, 1987, until February 7, 1997, something that section 111 does not allow.
[12] In the alternative, the applicant contends that under paragraph 39(1)(b) of the Pension Act, "the day on which the pension was awarded" was May 15, 1987, and not February 7, 1997.
Analysis and decision
[13] On the question of section 111 of the Veterans Appeal Board Act, it seems plain to me that the decision that was the subject of the reconsideration was in fact the decision of December 16, 1994, and not the decision of May 15, 1987. Accordingly, it is the decision of December 16, 1994, that was amended by the decision of February 7, 1997, and not the decision of May 15, 1987.
[14] The only real issue here concerns the effect of subsection 39(1) of the Pension Act. That section determines the point in time from which a pension must be paid once it is awarded, and provides that this is as of the latest of the following two dates: the date of the application and the date three years prior to the date on which the pension was awarded.4
[15] According to the applicant, he was first awarded his pension on May 15, 1987, and accordingly he is entitled to his full pension as of May 15, 1984. In my view, he is not entitled to anything of the sort since the pension he was awarded in 1987 is not the same as the pension he was awarded in 1997.
[16] This is the interpretation that was applied by the Pension Review Board in the Hickey case (I-34), in which the Board said, in its ruling with respect to subsection 39(1) of the Act:5
| [translation] Section 12 of the Pension Act provides for pensions to be awarded for aggravation of existing injuries, the effect of which is to create fractional or partial pensions. Clearly the basis for awarding a fractional pension is not the same as the basis for awarding a pension for full disability, and accordingly the payments associated therewith will vary. A one-fifth partial pension is different from a two-fifths pension, and both of these types are different from a pension for full disability. Accordingly, when a pensioner is entitled to a one-fifth pension and then a two-fifths pension, and then is entitled to a pension for full disability, he has in fact been awarded three different types of pensions at different times. |
| The Board is of the view that section 29 was designed to be applied to each type of pension at the time it is awarded. That section therefore applies to a partial pension at the time it is awarded and to a pension for full disability at the time it is awarded. The expression "the pension" in section 29 therefore relates to the pension that is the subject of the decision at the time it is made, and not to another pension awarded subsequently. The Board believes that this interpretation clearly describes the spirit of section 29. |
[17] More precisely, what subsection 39(1) establishes [in the French version] is the date of "paiement" of a pension when it is awarded [in English, "a pension awarded"] and any "payment" of a pension, whether partial or full, is governed by subsection 39(1).
[18] Just as the provisions of the Act must be interpreted in such a way as to maximize payments for the benefit of pensioners, so subsection 39(1) is clear as to its effects in the context of this case. The purpose of that section is to limit the retroactive effect of any pension awarded to a maximum of three years. The only exception to this limitation is the one set out in subsection 39(2), which allows the Board to make an additional award in an amount not exceeding the cumulative annual value of two years pension.
[19] The limitation thus imposed on the retroactive payment of pensions is made necessary by the legislative scheme established for the benefit of pensioners. The effect of the scheme is that once a pension is awarded it is always reviewable, and in the course of such reviews the Board may have regard to any new evidence and amend its earlier findings of fact or of law in the event that it considers them to be erroneous.6 The reason why Parliament instituted a scheme that allows pensioners to present any new fact or legal argument, at any time, that could affect the amount of the pension paid to them, is to maximize the benefit derived from pensions and also to recognize the fact that disabling physical conditions may change over time.7 From the standpoint of the payer, however, this means that the financial burden associated with the pension scheme is never ascertained with finality, and it is in this context that Parliament deemed it advisable, through subsection 39(1), to put a time limit on the retroactive effect of awarding a pension.
[20] The applicant points out that in this case, what led to his full pension being awarded was the correction of an error of law, and that he is in no way responsible for the fact that the years went by before his entitlement was recognized.8 The fact that the cause of the delay is not attributable to the applicant does not mean that subsection 39(1) may be disregarded, as it applies to any pension regardless of the circumstances in which it is awarded.
[21] In fact, it is undoubtedly with a view to the unrestricted scope of subsection 39(1) that Parliament thought it advisable to allow the Board to mitigate its effects by awarding a pension outside the period stipulated where it considers that there was undue delay. This is what the Board decided to do in the instant case, thereby giving the applicant the benefit of a retroactive period of five years rather than three. In addition to being in accordance with the Act, that decision results in an equitable solution in the circumstances.
[22] For these reasons, the application for judicial review is dismissed.
Marc Noël
Judge
OTTAWA, ONTARIO
February 9, 1998
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-900-97
STYLE OF CAUSE: Ephrem Leclerc v. A.G.C.
PLACE OF HEARING: Fredericton, NB
DATE OF HEARING: January 6, 1998
REASONS FOR ORDER OF NOËL J.
DATED: February 9, 1998
APPEARANCES:
Jean-Paul Ouellette and FOR THE APPLICANT
Charles Gervais
Michael Donovan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Godbout, Ouellette FOR THE APPLICANT
NB
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 S.C. 1985, c. P-7. Subsection 39(1) reads as follows:
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 to the Commission, and ( b) a day three years prior to the day on which the pension was awarded to the pensioner.
2 Subsection 39(2) reads as follows:
Notwithstanding subsection (1), where a pension is awarded for a disability and through delays in securing service or other records or through other administrative difficulties beyond the control of the applicant the Commission, and Entitlement Board or the Veterans Appeal Board is of the opinion that the pension should be awarded from a day earlier than the day prescribed by subsection (1), the Commission, Entitlement Board or Veterans Appeal Board may make an additional award to the pensioner in an amount not exceeding an amount equal to two years pension.
3 S.C. 1995, c. 18. Section 111 reads as follows:
The Veterans Review and Appeal Board may, on its own motion, reconsider any decision of the Veterans Appeal Board, the Pension Review Board or the War Veterans Allowance Board and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law, or may do so on application if new evidence is presented to it.
4 The initial application was apparently filed in the early 1970s.
6 Subsection 12(1) of the Veterans Appeal Board Act reads as follows:
12.(1) Notwithstanding subsection 9(3), the Board may, on application or on its own motion, reconsider and confirm, rescind or amend a decision of the Board, including a decision under this section, or substitute a new decision therefor, if new evidence is presented to it or if the Board determines that it erred with respect to the finding of any fact or the interpretation of any law in reaching the decision.
See also section 111 of that Act, note 3, supra.
7 It is important to point out that the power to review allows for a previous decision to be amended at any time, not only having regard to new facts, but also when the legal interpretation on which a decision is based is found to be in error.
8 This is not entirely accurate, since the application for reconsideration of the decision of May 15, 1987, was filed only on April 23, 1994, four years after the initial decision was made. The applicant's assertion that he was deprived [translation] "... of his full pension for a period of over ten years, during which period (he) continuously filed appeals ..." (Paragraph 15B of the applicant's memorandum) must be read with that four-year period in mind.