Docket: T-602-04
Ottawa, Ontario, this 22nd day of September, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
James Nolan
Applicant
and
Attorney General of Canada
Respondent
REASONS FOR ORDER AND ORDER
Background
[1] The Applicant, James Nolan, seeks judicial review of a decision of the Veterans Review and Appeal Board (the "Board"), dated November 4, 2003 in which the Board denied his application for reconsideration of his claim for pension benefits.
[2] The Applicant was born on November 2, 1964. He enrolled in the Canadian Armed Forces on June 10, 1989. At the time of his application for a disability pension, the subject matter of which is under judicial review, he was still serving in the Forces.
[3] On March 2, 2000, during a tour of duty in Kosovo, the Applicant sustained injuries to his left ankle when he fell off a sanitation truck. The Applicant has received a pension for chronic left ankle sprain which has been assessed at 5%.
[4] After returning to Canada, the Applicant was injured while operating a lawnmower at his family residence. On August 12, 2000, the Applicant fell and three digits on his right foot were badly cut when his right foot slid under the lawnmower he was pushing. These toes have since been amputated and he has been receiving treatment for this injury.
[5] The Applicant sought a disability pension for this injury pursuant to subsection 21(5) of the Pension Act, R.S.C. 1985, c. P-6 (the "Pension Act"). The Applicant claimed that the injuries sustained to his right foot were consequential to his pensioned condition of a chronic left ankle sprain. On May 23, 2001, this application was denied. The Applicant subsequently applied to the Board for an entitlement review of the Minister's decision. However, on May 17, 2002, the Board denied his application.
[6] The Applicant then commenced an entitlement appeal of the Board's decision. No new documentary evidence was introduced at the hearing, and the Applicant relied on the evidence already filed for the entitlement review hearing. The appeal panel, in a decision dated September 12, 2002, also denied the appeal.
[7] An application for reconsideration of the entitlement appeal panel's decision was made on March 14, 2003.
[8] On November 4, 2003, the appeal panel denied the Applicant's request for reconsideration on the basis that the Applicant failed to meet the requirements for reconsideration required by section 32(1) of the Veterans Review and Appeal Board Act, S.C., 1995, c. 18 (the "VRAB Act" or "Act"). It is this decision of the Board for which the Applicant is seeking judicial review.
Issues
[9] This application raises two issues:
1. Did the Board err in applying the test prescribed by Mackay v. Canada (Attorney General), [1997] F.C.J. No. 495 to determine whether the reconsideration application should be granted on the ground of new evidence?
2. Even if Mackay, supra applies, did the Board make an unreasonable finding?
Standard of review
[10] It is well established that the standard of review for reconsideration by the Board is patent unreasonableness. As stated in Caswell v. Canada (Attorney General) [2004] F.C.J. No. 1655 by Noel, J. at paragraph 17:
Both parties to this action were in agreement that the standard of review to be applied by this Court to decisions of the Veteran Review and Appeal Board is that of patent unreasonableness. This is in accordance with previous decisions of this Court and of the Federal Court of Appeal; e.g., McTague v. Canada (Attorney General), [2000] 1 F.C. 647 at paras. 46-47 (T.D.):
[P]atent unreasonableness is applicable when the issue in dispute is the Board's weighing or interpretation of often conflicting or inconclusive medical evidence and determining from it whether the claimant's disability was in fact caused or aggravated by military service. [...]
Factual determinations of this nature are at the very heart of the specialized jurisdiction of the Board. Considerations of cost effectiveness and relative institutional competence call for maximum curial deference to findings of fact. [Cites omitted.]
Relevant Legislation
[11] The sections of the VRAB Act that are relevant to this application are sections 3, 29, 31, 32(1) and 39:
Section 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.
Section 29(1):
An appeal panel may
(a) affirm, vary or reverse the decision being appealed;
(b) refer any matter back to the person or review panel that made the decision being appealed for reconsideration, re-hearing or a further investigation; or
(c) refer any mater not dealt with in the decision back to that person or review panel for a decision.
Section 31:
A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.
Section 32(1):
Notwithstanding section 31, an appeal panel may, on its own motion, reconsider a decision made by it under subsection 29(1) or this section 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 the person making the application alleges that an error was made with respect to any finding of fact or the interpretation of any law if new evidence is presented to the appeal panel.
Section 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 weighing of evidence, as to whether the applicant or appellant has established a case.
Issue 1
[12] In this case, the Applicant's application for disability pension benefits has been denied at four stages of review:
a) Ministerial/Departmental Review on May 23, 2001;
b) The Board's Entitlement Review on May 17, 2002;
c) The Board's Entitlement Appeal on September 12, 2002; and
d) The Board's Reconsideration on November 4, 2003.
[13] Under the legislation, each review, except the reconsideration review, is conducted on a de novo basis. At the entitlement appeal stage, the Board had ruled that:
...there is no evidence in the documentation provided that would suggest that the Appellant had instability in the ankle at the time. There is no evidence to suggest that the Appellant did indeed suffer from a weak ankle. The Appellant's contentions in relation to his fall are not supported by the evidence presented to this Board. The Board does not dispute the fact that the Appellant's and his wife's testimony before the Entitlement Review Panel were credible and that the Appellant believes his pensioned ankle sprain, which is currently assessed at 5%, was the causative factor in the amputation of his second, third and fourth digits.
The Board has not been presented with any evidence to link or make that connection. The Board notes that a Medical Report from Dr. D. Vianzon Edora, dated 11 January 2002, states in part:
Cpl Nolan was my patient from 1999 to 2001. It was during this time period that he sustained traumatic amputation of his right foot's 2nd , 3rd, and 4th toes, of which the relationship to his chronic left ankle injury sustained previous to the amputation is in question.
I am unable to state definitively as to whether Cpl. Nolan's chronic ankle injury caused the amputation of his toes. However, the possibility that the previous ankle injury contributed to the conditions caused the accidental amputation cannot be denied.
The Board found that Dr. Edora does not give reasons as to why he would suggest that there is a possible connection. The doctor did not present the Board with any information which would lead it to believe that the Appellant did indeed have a weak ankle at the time of the fall or that the ankle was unstable causing the Appellant to stumble and fall. The Board has not been presented with evidence to link the claimed condition to the Appellant's pensioned condition of chronic left ankle sprain.
(Tribunal's Record at page 21)
[14] At the reconsideration hearing, the Applicant tried to introduce another letter from Dr. Edora, dated February 24, 2003, which in its key portions stated:
It is clear from the above physical findings that certain movements caused Mr. Nolan pain. He did not have an unstable left ankle. There was some weakness but only on plantarflexion, which is unlikely to be of significance to this case. What is not clear from the medical record is whether Mr. Nolan was continuing to experience these symptoms at the time of the accident. Certainly, if Mr. Nolan was having these problems, it is possible that he could have experienced pain in his left ankle causing him to stumble while mowing the lawn.
It is unlikely that we will ever have a definite answer to the question of what caused the amputation. I am presenting you with a possible, not a definitive connection between the ankle injury and amputation.
(Tribunal's Record at page 9)
[15] The Board found that Dr. Edora's letter did not qualify as new evidence under s. 32(1) of the VRAB Act and was not admissible on the basis of the test set out in Mackay, supra.
[16] The specific reference in Mackay, supra at paragraph 26 provides:
However, I am satisfied that Dr. Murdoch's report qualifies as "new evidence" for the purposes of Section 111. The applicant has cited a test for "new" evidence from Palmer and Palmer v. The Queen (1979), 106 D.L.R. (3d) 212 (S.C.C.) at 224 (hereinafter Palmer):
...The following principles have emerged:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1965] 1 C.C.C. 142, 46 D.L.R. (2d) 372, [1964] S.C.R. 484;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief, and
(4) it must be such that if believed it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result.
[17] The Applicant contends that given the liberal provisions of sections 3 and 39 of the VRAB Act, the word "new" in s. 32(1) should be given its ordinary and literal meaning. Applying a threshold test as set out in Mackay, supra runs counter to the expressed parliamentary intention as reflected in the VRAB Act of being generous towards Veterans.
[18] I cannot accept this argument. To adopt the approach suggested by the Applicant would seriously undermine the principle of finality. It is a fundamental legal tenet that a party is required to put his or her best foot forward at first instance. The approach advanced by the Applicant would, in substance, enable an applicant to require an appeal panel to reconsider its decision irrespective of whether the evidence proffered had been available, and could have been tendered, at the entitlement appeal hearing. This is in direct contravention of the express language of section 31 of the Act which prescribes that decisions of an appeal panel are final and binding.
[19] By the time an appellant has reached the stage of which he or she seeks a reconsideration, such an appellant has already had a determination of his or her claim by an adjudicator from the Department, and possibly a further reconsideration of the Department's decision. An applicant will also have had both a review hearing and appeal hearing before the Board. For hearings before the Board, there are no time limitations, and no grounds for appeal are necessary. At the review hearing, applicants are given an opportunity to provide their own testimony and the testimony of any witnesses they may wish to produce - it is a full de novo hearing. The appeal hearing process provides an applicant with a full opportunity to adduce new evidence and to make oral arguments on the case. In other words, it proceeds again as a de novo hearing. At each proceeding before the Board, the applicant is entitled to legal advice and representation free of charge from the Bureau of Pension Advocates. The Board's review hearings are at the very least the second or third level of review of pension benefit claims under the administrative scheme.
[20] When an applicant is ready to proceed with an appeal hearing, the issues on appeal should be reasonably clear. An applicant and his or her representative should be prepared to use the appeal hearing as their last opportunity to raise all potential arguments and avenues of appeal. It would be a rare case where, after reading the appeal decision, a dissatisfied applicant could not think of some additional information or evidence or slightly new variation of the argument in order to try to resurrect what has turned out to be an unsuccessful argument on appeal. Performing a reconsideration every time any form of evidence is offered subsequent to the release of a final and binding appeal decision does not respect the principle of finality of decisions, or promote the efficient use of a tribunal's resources.
[21] The Board's adoption of the test set out in Mackay, supra to deal with fresh evidence follows existing jurisprudence, is consistent with good agency management, avoids the unnecessary expense of scarce resources, and is a practical way of applying the principle of finality in an agency context. I fail to see how the Board committed a reversible error when so proceeding.
Issue 2
[22] The Applicant further contends that even if one applies the test in Mackay, supra, the Board erred by:
a) considering a new issue that had never before been raised at the entitlement appeal level; and
b) making a patently unreasonable finding by stating that Dr. Edora's evidence did not address the issue.
[23] The Board at the Entitlement Appeal level stated:
...there is no evidence in the documentation provided that would suggest that the Appellant had instability in the ankle at this time. There is no evidence to suggest that the Appellant did indeed suffer from a weak ankle.
(Tribunal's Record at page 21)
According to the Applicant, the issue of proximate cause had not been previously raised, and the Board breached its duty of procedural fairness by not advising the Applicant that this would be an issue, and not giving him time to address the issue.
[24] I cannot accede to this line of reasoning. The entire proceedings are about proximate cause. There is no dispute that the Applicant received an ankle injury while on duty and now receives a pension. The question is whether that injury contributed to his lawnmower accident. The entitlement appeal hearing, like the previous hearings, is a de novo hearing. The applicant can lead whatever evidence he finds pertinent. Here, it was clear from previous proceedings that the Applicant suffers ankle pain (for which he received a partial pension) but it was not established that his ankle buckled and caused the injury. The Applicant believed that to be the case, but it was not supported by the medical evidence. I fail to see how it can be said the issue of proximate cause was new. The Departmental review had stated:
There is no medical evidence to indicate your pensioned chronic left ankle strain caused your fall.
(Tribunal's Record at page 68).
Similiarly, at the Entitlement review, the panel stated in its decision on page 5:
However, it was the lawnmower and its operation and his decision to use the lawnmower that particular day that caused the claimed condition.
The panel concludes that "proximate cause" has not been established.
(Tribunal's Record at page 35)
Thus, the Board in no way breached its duty of procedural fairness by not advising the Applicant that this would be an issue.
[25] The Applicant further alleges that the Board was patently wrong when it stated :
In conclusion, the Board is unable to find that the new information provided in support of the claim is truly new. Dr. Edora does not provide any relevant evidence which speaks to the decisive issue and his letter does not reasonably appear to be capable of potentially changing the outcome of the previous decision of 12 September 2002 and the main issue, being whether or not the Appellant is entitled to pension with respect to the claimed condition under subsection 21(5) of the Pension Act.
(Tribunal's Record at page 6)
[26] In the Applicant's view, this amounts to saying Dr. Edora did not address the issue. However Dr. Edora did so when he stated in his January 11, 2002 letter:
Certainly, if Mr. Nolan was having these problems, it is possible that he could have experienced pain in his left ankle causing him to stumble while mowing the lawn.
(Tribunal's Record at page 9)
[27] This mere possibility (by the doctor's own admission) cannot not be considered relevant evidence speaking to the decisive issue of proximate cause. It is mere conjecture not amounting to probability. As such, there was nothing patently unreasonable in the Board's decision.
[28] Accordingly the Court has no choice but to dismiss this application.
ORDER
THIS COURT ORDERS that this appeal be dismissed. Given the circumstances of the case, there will be no order as to costs.
A Konrad W. von Finckenstein @
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-602-04
STYLE OF CAUSE: JAMES NOLAN
and
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 13, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Justice von Finckenstein
APPEARANCES:
Yehuda Levinson FOR THE APPLICANT
Roslyn Mounsey FOR THE RESPONDENT
SOLICITORS OF RECORD:
Yehuda Levinson FOR THE APPLICANT
Levinson & Associates
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario