Federal Court Decisions

Date: 20051206

Docket: T-805-05

Citation: 2005 FC 1648

Ottawa, Ontario, December 6, 2005

PRESENT:      THE HONOURABLE MADAM JUSTICE DAWSON

BETWEEN:

DONALD E. COMEAU

Applicant

and

THE ATTORNEY GENERAL FOR CANADA

Respondent

REASONS FOR ORDER AND ORDER

DAWSONJ.

[1]         Mr. Comeau brings this application for judicial review of the April 6, 2005 decision of the Veterans Review and Appeal Board ("Board") that Mr. Comeau's medical condition of non- ischemic dilated cardiomyopathy was neither caused, nor aggravated, by his military service. Mr. Comeau's military service ceased on July 2, 1974.

THE ISSUES

[2]         Mr. Comeau enumerates 15 issues in his memorandum of fact and law. Essentially they are subsumed within the following three issues:

            1.          Did the Board properly apply sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 ("Act") and resolve any doubt in his favour?

            2.          Was the Board's finding that there was no causal link between Mr. Comeau's condition and his military service patently unreasonable?

            3.          Has there been a breach of natural justice?

THE MEDICAL EVIDENCE BEFORE THE BOARD

[3]         As, in my view, this application turns upon the reasonableness of the Board's assessment of the medical evidence, it is helpful to provide a brief summary of what I view to be the salient evidence.

[4]         Mr. Comeau's medical service records reflect that in August of 1971 he was admitted to a military hospital as a result of a diagnosis of hypertension. In the discharge summary prepared on September 17, 1971 it was noted that an ECG had shown a complete, right bundle branch block (later sometimes referred to in the medical records as a "RBBB").

[5]         In a report dated February 21, 1989, Dr. Poblete, a specialist in internal medicine and diseases of the heart, wrote that an EKG conducted on January 20, 1989 showed a bifascicular block-RBBB and "LAFB" which was reported to be present since 1983. A chest x-ray was reported to be normal. In his statement of clinical impression, Dr. Poblete noted that he suspected the existence of an underlying occult form of a still unidentified cardiomyopathy.

[6]         In a later report, dated November 14, 1989, Dr. Poblete noted that in the presence of atrial fibrillation with bifascicular block, an underlying infiltrative myocardial disease is suspected, although the exact nature remained to be documented. He observed that a recent chest x-ray showed an increased cardiac diameter.

[7]         Approximately one year later, Dr. Poblete reported that a "remarkable change" had occurred in the intervening year as shown on a recent echocardiogram. The echocardiogram showed that the left ventricle was markedly dilated with moderately severe left ventricular systolic dysfunction. This condition was said to be consistent with dilated cardiomyopathy.

[8]         Mr. Comeau was then diagnosed by Dr. Sample, a cardiologist who had overseen his hospitalization for a cardiac catheterization, with dilated cardiomyopathy. Dr. Sample stated that she was uncertain as to the etiology of Mr. Comeau's condition "but certainly the flu-like illness that he had back in the spring and early summer, may very well have contributed to the problem significantly" because the change noted on the echocardiogram followed that illness. She noted that while prior examination had revealed a conduction abnormality, the condition might have developed and been aggravated by the viral illness, although "[i]t is difficult to know for certain".

[9]         In a report dated April 11, 1991, Dr. Poblete repeated the diagnosis of non-ischemic dilated cardiomyopathy of unknown cause.

[10]       In April of 1992, Mr. Comeau was seen by Dr. Douglas, a cardiologist. Dr. Douglas confirmed the diagnosis of dilated cardiomyopathy and stated that the time of origin of the condition was not known "but would appear to be during the past seven or eight years" (i.e. post military service). Dr. Douglas indicated that he would review the prior echocardiograms because the "dramatic deterioration" between 1989 and 1990 should not have happened without an intervening illness. Dr. Douglas was of this view because Mr. Comeau's condition had not then further progressed.

[11]       Dr. Douglas arranged for Mr. Comeau's hospitalization and in a clinical report dated May 4, 1993 he reported that Mr. Comeau's condition "has progressed very rapidly over the last 4 years, suggesting that the initial diagnosis was probably a missed myocarditis since he has progressed rapidly since his onset of atrial fibrillation and normal heart size about 4 years ago".

[12]       In a August 13, 1993 consultation report Dr. Douglas reported again his view that Mr. Comeau's cardiomyopathy "is only a few years old. It seems to have been rapidly progressive leading me to suspect an inflammatory myocarditis as the initial problem".

[13]       On November 9, 1993, Dr. Douglas noted that he had requested that Mr. Comeau obtain his service medical records. Mr. Comeau's medical records were then released to him in February of 1994 as a result of an access request and in turn were provided to Dr. Douglas.

[14]       On May 29, 1995, a medical opinion was provided by Dr. Gulati, a medical adviser to the Board. It was his opinion that the non-ischemic dilated cardiomyopathy was of unknown cause and post-service discharge in origin. Such opinion was based on the doctor's views that:

This condition does not appear to have been present at Enrolment for Militia Service in December 1961, or at Enrolment to the Regular Force Service in October 1963, and he was not hypertensive in September 1968.

A record of medical examination, on 03 August 1971, reveals high blood pressure, but his heart was normal. He was investigated for his Essential Hypertension, then called Labile Benign. Heart size, on X-ray, was within normal limits. This means there was no [dilated] cardiomyopathy.

At Discharge, in April 1974, his blood pressure was within the normal range, and chest X-Ray was labelled "Approved Chest" - meaning, no dilated cardiomyopathy was present. The diagnosis was made in 1991 - over 15 years Post Discharge.

Cardiomyopathy is a term that expresses a pathology of the heart muscle. Various forms exist; one of which is "dilated", meaning that the man's pumping chambers (ventricles) are dilated, and it is, in the Applicant's case, also "non-ischemic", meaning that his coronary arteries are normal.

Alcohol abuse over a prolonged period, certain nutritional deficiencies, some genetic predisposition, hypertension, cardiac micro-vascular problems, previous acute viral infection of heart muscle (which always causes an acute illness lasting for days to weeks) can cause this condition, but in a number of patients, no cause can be found. Stress of a job, or financial stress, have never been proven to be a cause.

[15]       On July 4, 2000, Dr. Douglas provided an opinion to the Board that was then based on his review of the medical service file. In it Dr. Douglas wrote:

The only thing I find of significance in Mr. Comeau's medical file dates back to 12/10/71 when he was investigated for high blood pressure and liver function abnormalities with systemic fatigue. At that point in time his liver was described as being 1 or 2 cm. enlarged and questioned the tip of his spleen being palpable, and a positive mono test was found. A chest x-ray done at that point in time found a normal heart size, but an electrocardiogram was done 31/8/71 which was very abnormal with complete right bundle branch block and left anterior fascicular block.

Clearly his electrocardiogram was very abnormal back in 1971 in proximity to some hepatopathy, at a time when there was no ingestion of alcohol of significance. A mono test was positive. While this does not prove the onset of his cardiomyopathy was at this time, it is suggestive of this possibility in as much, as he had marked electrocardiograhic abnormalities with a normal chest x-ray and, in recent years, progressive cardiomegaly with similar ECG findings as years ago. While this shouldn't be mononucleosis, certainly sarcoidosis would be one possible etiology, among other things.

In short, there is evidence to suggest the possibility of the development of cardiac abnormalities during the period of his service.

[16]       In a further letter dated September 21, 2004, Dr. Douglas wrote:

He unequivocally had a dilated cardiomyopathy when I met him and the time or origin was not obvious. Later, Naval records had demonstrated a normal chest X-Ray [showing there was no cardiac enlargement prior to that time] but an EKG showing a Right Bundle Branch Block [never having been known previously] at a time when he had a systemic organic disease [with positive mono test and enlarged liver and possibly spleen]. Obviously the development of a cardiomyopathy at this time is possible. If it did develop during his naval service, then aggravation of the condition would be expected with the absence of rest and continued high work load expenditure.

THE DECISION OF THE BOARD

[17]       After reviewing in some detail the medical evidence before it, and reviewing relevant jurisprudence, the Board made the following findings:

            1.          The evidence provided by Dr. Douglas did not provide a credible basis for a pension award because:

                        -            while Dr. Douglas referred to the condition being due to an unknown cause, Dr. Sample had noted in 1991 that the flu-like illness Mr. Comeau suffered might very well have significantly contributed to his condition;

                        -            in 1990 Dr. Poblete had found a marked worsening of Mr. Comeau's problem;

                        -            in 1992 Dr. Douglas had observed the dramatic deterioration between 1989 and 1990 and stated "historically he should not have deteriorated significantly in that year without an intervening illness";

                        -            Dr. Douglas had discarded the role of alcohol indigestion in 1971, stating there was no ingestion of significance, but at the time a medical officer had recorded in a medical summary dated October 27, 1971 (completed after a second discharge from hospital) that Mr. Comeau "admitted on this admission that prior to his re-engagement medical which led to his 1st hospital admission that he was drinking very heavily".

                        -            Dr. Douglas had referred to a left anterior fascicular block in 1971, but the service medical records first recorded this diagnosis in 1983;

                        -            Dr. Douglas' opinion did no more than point out the possibility of the claimed condition being present during Mr. Comeau's service. Dr. Douglas did not offer an opinion supported by the facts that the condition was actually present.

            2.          During Mr. Comeau's medical service he was cared for and examined carefully and at that time the medical investigations showed no sign of the claimed condition, nor was it found to be present on discharge.

3.          Some findings on medical examinations conducted during Mr. Comeau's service suggested at the time the possibility, albeit not a strong one, that he could have a condition or conditions similar to the one diagnosed much later, after his service had ended. However, the findings were investigated and the claimed condition was not found to be present during Mr. Comeau's service.

            4.          The opinion of Dr. Gulati was found to be completely credible because it was "based on the information contained in the service medical records, the physician's understanding of the claimed condition and its normal course and progression as well as the information about the period following the service when the condition was actually diagnosed".

THE STANDARD OF REVIEW

[18]       What is fundamentally at issue in this application is the Board's conclusion that the medical evidence did not establish that Mr. Comeau's condition of non-ischemic dilated cardiomyopathy arose out of, or was directly connected with, his military service. The jurisprudence of this Court is to the effect that when the question in dispute is the Board's assessment of conflicting or inconclusive medical evidence, and determining from that, whether a claimant's disability was, in fact, caused or aggravated by military service, the Board's decision is reviewable on the standard of patent unreasonableness. See: Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (T.D.) at paragraph 18, aff'd (1999), 250 N.R. 93 (F.C.A.); McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (T.D.) at paragraphs 46 through 48; Cundell v. Canada (Attorney General) (2000), 180 F.T.R. 193 (T.D.) at paragraph 32; and, Comeau v. Canada (Attorney General), [2004] F.C.J. No. 1323 (F.C.) at paragraph 51; Matusiak v. Canada (Attorney General), [2005] F.C.J. No. 236 (F.C.) at paragraphs 32 through 35.

[19]       As Mr. Justice Evans, then of this Court, wrote in McTague, supra:

46          Finally, I should note that it is well established in this Court that the less demanding standard of patent 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: MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (T.D.) (QL); Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (F.C.T.D.); Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (F.C.T.D.); Henderson v. Canada (Attorney General) (1998), 144 F.T.R. 71 (F.C.T.D.).

47         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.

[20]       To the extent Mr. Comeau argues that the Board misinterpreted and failed to apply correctly section 39 of the Act, such an error of law is reviewable on the standard of correctness.

[21]       To the extent that issues of natural justice are raised, it is for the Court to consider whether the requirements of natural justice or procedural fairness are met. No pragmatic and functional analysis is required. See: C.U.P.E. v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100.

CONSIDERATION OF THE ISSUES

Did the Board properly apply sections 3 and 39 of the Act and resolve any doubt in favour of Mr. Comeau?

[22]       Section 3 of the Act requires the Board, when exercising its powers and duties under the Act, to construe and interpret all relevant statutory provisions liberally so as to fulfill the obligation of the people and government of Canada to those who served their country. Section 39 requires the Board to: accept uncontradicted and credible evidence that favours an applicant; resolve in the favour of an applicant any doubt in the weighing of the evidence; and draw every reasonable inference in favour of an applicant. Sections 3 and 39 of the Act are set out in the appendix to these reasons.

[23]       However, it is only where the evidence raises a doubt as to causation that such doubt must be resolved in favour of an applicant. In the present case, the Board found that Dr. Douglas' reports were not credible for the reasons set out above, and found that they simply constituted statements of a hypothesis favourable to Mr. Comeau. In the Board's words, Dr. Douglas' letters "do not draw any rational conclusion, but rather, point out that at one time and during the Appellant's service, the evidence suggested the possibility of the claimed condition being present. They do not offer an opinion supported by the facts that the condition actually was present".

[24]       The Board gave cogent reasons for disregarding Dr. Douglas' opinion and correctly noted that he did not opine that the condition was present during Mr. Comeau's service. As such, I conclude that the Board did not err in failing to apply section 39 of the Act because the medical opinion given by Dr. Douglas was not sufficient to justify the application of paragraph 39(c) of the Act. The situation is, in my view, comparable to that before the Federal Court of Appeal in Elliot v. Canada(Attorney General), [2003] F.C.J. No. 1060.

[25]       Put another way, the two reports of Dr. Douglas relied upon by Mr. Comeau were inconclusive as to the date of the onset of his cardiomyopathy. Dr. Douglas opined that the evidence did not prove the onset of cardiomyopathy in 1971, but rather was "suggestive of this possibility". As such, this evidence was not so strong as to raise a reasonable doubt about whether there was a causal connection between Mr. Comeau's medical condition and his military service. Had the evidence given rise to such a reasonable doubt, Mr. Comeau would have been entitled to the benefit of that doubt.

Was the Board's finding that there was no causal link between Mr. Comeau's medical condition and his military service patently unreasonable?

[26]       As to what constitutes patent unreasonableness, a patently unreasonable decision is one where the defect is apparent on the face of the tribunal's reasons. See: Canada(Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 57. A decision that is patently unreasonable is one that is so flawed that no amount of curial deference can justify letting it stand. See: Law Society of New Brunswickv. Ryan, 2003 SCC 20 at paragraph 52.

[27]       The Board has not been shown to have erred in law or to have misapprehended or ignored relevant evidence before it. Given the nature of the evidence that was before the Board, Mr. Comeau has failed to demonstrate that the decision of the Board is patently unreasonable.

Has there been a breach of natural justice?

[28]       Mr. Comeau did not address this issue in oral argument; however, he relied upon his written representations which raised this issue, so it is necessary to consider this issue.

[29]       Mr. Comeau asserts two breaches of the principles of natural justice. First, he argues that over the past twelve years he has been required to attend numerous hearings, appeal hearings and judicial review hearings. A twelve-year delay is said to represent an "incredible" delay which is unfair and contrary to natural justice. Second, he submits that the Board breached principles of natural justice when it found that it was not satisfied that Mr. Comeau's heart condition arose during his period of military service. Natural justice was breached because a differently constituted panel of the Board had previously reached the contrary conclusion, but its decision was set aside by the Court on a previous application for judicial review.

[30]       With respect to the effect of delay, Mr. Comeau has not adduced evidence of "prejudice of sufficient magnitude to impact on the fairness of the hearing" as required in Canadian Airlines International Ltd. v. Canada (Human Rights Commission), [1996] 1 F.C. 638 (C.A.). While one may have every sympathy with the frustration Mr. Comeau feels, he has not established such unreasonable delay as would constitute a denial of procedural fairness.

[31]       Similarly with respect to his second concern, Mr. Comeau has failed to establish that the Board was bound by the findings of fact made by another panel. Natural justice does not require that Mr. Comeau be given special notice that a different panel, operating with the benefit of additional evidence, might reach different findings of fact.

CONCLUSION

[32]       I have found that the Board, in reaching its decision, did not err in law and did not make findings of fact in a perverse or capricious manner or without regard to material before the Board. For the reasons set out above, the application for judicial review must be dismissed.

[33]       While the Attorney General sought costs in its written materials, this claim was not pursued at the oral hearing. Given that, and the lack of assistance provided by the written argument filed on behalf of the Attorney General (not counsel who appeared before the Court for the oral argument), I am satisfied that this is an appropriate case where costs should not follow the event.

ORDER

[34]       THIS COURT ORDERS THAT:

1.          The application for judicial review is dismissed, without costs to any party.

"Eleanor R. Dawson"

APPENDIX

            Sections 3 and 39 of the Act are set out below:

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-805-05

STYLE OF CAUSE:                           DONALD E. COMEAU

Applicant

                                                            and

                                                            THE ATTORNEY GENERAL OF CANADA

Respondent

PLACE OF HEARING:                     FREDERICTON, NEW BRUNSWICK

DATE OF HEARING:                       OCTOBER 3, 2005

REASONS FOR ORDER

   AND ORDER:                                  DAWSON, J.

DATED:                                              DECEMBER 6, 2005

APPEARANCES:

DONALD E. COMEAU                                                          FOR THE APPLICANT

SUSAN L. INGLIS                                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

DONALD E. COMEAU                                                          FOR THE APPLICANT

RIVERVIEW, NOVA SCOTIA

JOHN H. SIMS, Q.C.                                                              FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA