Date: 20050504
Docket: T-1447-04
Citation: 2005 FC 620
Ottawa, Ontario, Wednesday the 4th day of May 2005
Present: The Honourable Madam Justice Dawson
WILLIAM DAVID GERARD JONES
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
DAWSON J.
[1] William Jones is a retired Chief Petty Officer 1st Class who served as a Marine Engineer in the Canadian Armed Forces (Sea element) for almost 30 years. He was medically released from the Forces on April 5, 1998 on account of depression.
[2] On August 24, 1998, Mr. Jones made a claim for a disability pension in connection with various conditions, including major depression. The claim was refused by the Department of Veterans Affairs ("DVA") on February 4, 1999. Mr. Jones' appeal of this decision was unsuccessful, and on April 14, 1999 an Entitlement Review panel upheld the earlier decision in relation to depression on the ground that there was insufficient objective expert medical opinion that would link Mr. Jones' condition to the stressors of his service with the Regular Forces. Mr. Jones appealed that decision to the Veterans Review and Appeal Board ("Board").
[3] With respect to Mr. Jones' claim of major depression, the Board, by its decision dated May 12, 2004, awarded Mr. Jones "two-fifths for that part of the disability or aggravation thereof that arose out of or was directly connected with service in peace time in the Regular Force". Such entitlement was, pursuant to subsection 39(1) of the Pension Act, R.S.C. 1985, c. P-6, made effective as May 12, 2001, being a date three years prior to the day on which the pension was awarded.
[4] Mr. Jones brings this application for judicial review of that decision.
THE BOARD'S DECISION
[5] The Board's reasons for its decision are not lengthy. They were as follows:
In arriving at this decision, this Board has carefully reviewed all the evidence, medical records and the submissions presented by the Representative, and has complied fully with the statutory obligation to resolve any doubt in the weighing of evidence in favour of the Applicant or Appellant as contained in sections 3 and 39 of the Veterans Review and Appeal Board Act.
While the Panel notes that Dr. Fraser, Psychiatrist, is now of the opinion that the claimed condition might be fully related to the Appellant's military service, he appears to ignore the fact that the Appellant was also having domestic difficulties prior to the treatment for depression in the mid 1990's. This was at a time when there appeared to be no request from the Appellant himself to have more shore-related time. The Panel, therefore, does not consider that the condition would be fully related to military service, and from a review of The Merck Manual, Seventeenth Edition, it would note that the condition is, in many instances, of unknown origin, even though it can be exacerbated by continuing stressful conditions. The Panel further notes that other documentation on file does not indicate a full consequential relationship, but rather an aggravation award.
Mindful of its duties and responsibilities pursuant to Section 39 of the Veterans Review and Appeal Board Act to resolve all doubt in favour of an Applicant or Appellant, this Panel is of the opinion that a two-fifths aggravation award for that portion of the disability arising out of military service in peace time appears appropriate. Specifically, there appears [sic] to be problems related to the Appellant's personal life which are not service-related and which appear to have preceded the problem which occurred in the mid-1990s. The Panel is also of the understanding that the causes of major depression are normally unknown, although there can be a genetic predisposition to it.
Finally, the Panel is of the opinion that non-service factors would have been responsible for a major portion of the condition, even though the Appellant's period of service at sea during the earlier portion of his career for extended periods of time would have contributed to the condition to a minor degree.
In the circumstances, a two-fifths aggravation award appears appropriate, effective three years prior to the date of the hearing, namely, 12 May 2001, pursuant to Section 39 of the Pension Act.
THE RELEVANT LEGISLATION
[6] Provisions of both the Pension Act (subsections 21(2), 21(2.1) and sections 2 and 39) and the Veterans Review and Appeal Board Act, S.C. 1995, c.18 ("Act") (sections 3 and 39) are relevant to this application. They are contained in the Appendix to these reasons.
THE STANDARD OF REVIEW
[7] At issue in this application is the Board's conclusion that the medical evidence did not establish that Mr. Jones' depression 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 the 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.
[8] As Mr. Justice Evans, then of this Court, wrote in McTague:
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.) [page667]; 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.
[9] I take this to be the applicable standard of review to be applied to the decision now before the Court. The Board's decision turned on the weight and interpretation it gave to Dr. Fraser's medical report.
PRELIMINARY EVIDENTIARY ISSUE
[10] By order dated December 8, 2004, Prothonotary Hargrave gave leave to Mr. Jones to file an affidavit putting before the Court a medical report from a Dr. Hoffer dated April 20, 2000. Prothonotary Hargrave noted in his reasons for the order that he was satisfied that this report was before the Board at the time it made its decision, but was not contained in the Tribunal Record.
[11] No appeal was taken from that order. Rather, the Attorney General subsequently filed the affidavit of the individual responsible for submitting the Tribunal Record to the Court. That person swore that the April 20, 2000 Hoffer report was not before the Board when it reached its decision. Counsel for the Attorney General now argues that no weight should be given to the April 20, 2000 report because it was not in evidence before the Board when it made its now impugned decision.
[12] In oral argument, I raised with counsel for the Attorney General whether this position was an impermissible collateral attack on the order of the Prothonotary. Counsel argued that it was not, because the Prothonotary's order was made pursuant to what is now Rule 312 of the Federal Courts Rules, and not in the course of determining the content of the Tribunal Record pursuant to Rule 318. To have appealed the Prothonotary's order, it was argued, would have been to appeal the reasons and not the order.
[13] I remain concerned that this is a collateral attack on the Prothonotary's order. However, because I am satisfied that Mr. Jones' application for judicial review should be allowed, even without consideration of the April 20, 2000 report, it is unnecessary for me to determine this issue. Out of an abundance of caution, I will proceed without regard to the April 20, 2000 report.
ANALYSIS
[14] It is agreed that in evidence before the Board was the report of February 24, 2003 submitted by Dr. Fraser, who is a psychiatrist and the medical director of the Ottawa Anxiety & Trauma Clinic. In his report, Dr. Fraser concluded that:
My opinion, as a former military psychiatrist, is that Mr. Jones was subjected to excessive sea duty postings which ignored recommendation of 20 month shore leave periods (which were never granted even once during his 23½ years sea time). This led to increasing stress and an eventual breakup of his marriage. The stress most certainly led to a major depression. There is no family history documentation of a genetic based history of depression. There appears to be a lack of appreciation by those in charge of his career of the effects of the increasing stress until it was too late i.e. major depression had developed. His marriage ended. The Base Psychiatrist's recommendation for MPHL status was overruled. While being forced against medical advice to work elsewhere while suffering from depression and still on medication, some difficulties with a senior officer developed and he was surreptitiously released medically via strange circumstances which strongly point to senior non-medical sources, without regard to his right to continuing medical treatment and continuing service in his trade.
I strongly feel that DVA has not been provided with the actual facts of this case. I feel there is little doubt that Mr. Jones' psychiatric condition is directly and fully related to his military service pressures.
I am recommending to him, based on my detailed study of the records, that he resubmit his case to DVA which now can have a clearer picture to determine eligibility for pension on the basis of a major depression caused in its entirety by his regular service and duties in the CF and being deprived of clear CF directives. [underlining added]
[15] Section 39 of the Act requires the Board to accept any uncontradicted evidence presented to it that the Board considers to be credible in the circumstances. Dr. Fraser's opinion was not contradicted. Thus, for the Board to reject Dr. Fraser's opinion, the Board must give cogent reasons explaining why it found the uncontradicted medical opinion not to be credible.
[16] Counsel for the Attorney General pointed to two portions of the Board's reasons where, he argued, the Board gave reasons for rejecting Dr. Fraser's opinion. The first was that portion of the Board's reasons where it wrote that Dr. Fraser "appears to ignore the fact that the Appellant was also having domestic difficulties prior to the treatment for depression in the mid 1990's." The second reason given for rejecting Dr. Fraser's opinion was the Board's statement that "other documentation on file does not indicate a full consequential relationship, but rather an aggravation award".
[17] Reading Dr. Fraser's report as a whole, it is clear that he did not "ignore the fact that [Mr. Jones] was also having domestic difficulties prior to the treatment for depression in the mid 1990's" as the Board stated. Dr. Fraser's report noted that:
i) "In order for DVA to understand the progression of his mental disability, it will be imperative to review, as I did, CPCSA OPM Part III, non-commissioned Member Roster for Sea Service AL/89. This clearly states that "Marine Engineering MOCs (Sgt and above will be the only sea MOC with a guaranteed period ashore which is due to the high incidence of sea duty experienced by this trade and a posting ashore shall not be less than 20 mos. (or 24 mos. posting CFFS)." Looking at CPO Jones' sea duty roster from a period from 29 March 75 to 7 March 95 reveals he was granted only one 12 month shore posting (2 July 84 - 5 July 85) in this entire 20 year period. This contravenes the intent of this policy (basically a 50/50 sea/shore ratio) and must be considered to be a factor in both his marital breakdown and subsequent emotional stress (documented in 1986) and eventual depression. Even when ships are dockside, duty rosters are maintained 24 hours daily. Dockside is not a shore posting." [underlining omitted]
ii) "Depression was recorded in 1986, and did not begin in 1994 as DVA was led to believe."
iii) "His increase in stress and eventual depression and marital break up appear to be directly related to being deprived the CF directive for guaranteed period ashore".
iv) "At this stage it is apparent that a sequence of events beginning with extended sea duty, the neglect of shore time as per military policy, the progression of stress, led to major depression as well as marital breakdown. There also appears to be an unfortunate lack of medical care and documentation until the 1994 period."
v) "Going back to the decision which was rendered by DVA in the 4 February 1999 evaluation, there obviously had not been the awareness of the extent of his longstanding emotional difficulties which led to his eventual release. Comments from DVA state that he was "deteriorating rapidly after January 1994, when you were experiencing some family problems." This is not so. The family problems were developing years earlier, related to the stress leading to the depression."
[18] The Board may not have liked or agreed with Dr. Fraser's opinion. However, section 39 of the Act requires more cogent reasons from the Board for rejecting an uncontradicted medical opinion. In light of the excerpts from Dr. Fraser's report, set out above, his report cannot be dismissed on the basis that Dr. Fraser ignored the fact that Mr. Jones had domestic difficulties prior to the treatment for depression in the mid 1990's.
[19] As for the Board's reference to the fact that "other documentation on file" did not indicate a full consequential relationship, it is conceded that there was no medical evidence to contradict Dr. Fraser's opinion. That opinion was categoric that Mr. Jones' psychiatric condition was directly and fully related to his military service. The Board's vague reference to other unidentified documents is not a proper basis for rejecting the cogency of Dr. Fraser's opinion.
[20] In the result, by failing to address properly and adequately why the Board rejected the opinion of Dr. Fraser, the Board breached its obligations under section 39 of the Act and rendered a decision which is patently unreasonable. The decision will therefore be set aside, and Mr. Jones' appeal will be remitted to a differently constituted panel of the Board for redetermination in accordance with these reasons.
[21] Prior to such hearing, Mr. Jones or his pension advocate should insure that all relevant medical evidence is placed before the Board. This, presumably, would include the April 12, 2000 report of Dr. Hoffer and the other medical reports not admitted in evidence in this application for judicial review. At that further hearing, consideration should be given to whether it is appropriate to request that the Board exercise its discretion under subsection 39(2) of the Pension Act with respect to the date of pension entitlement.
COSTS
[22] There is no reasons why costs should not follow the event.
[23] Mr. Jones is self-represented and so is not entitled to an award of a counsel fee. He produced a list of his out-of-pocket expenses in the total amount of $1,533.13. Two items contained therein are not, in my view, appropriate. The first is the claim of $194.63 for ribbon and toner (when typing and copying fees are also claimed). The second is a sum of $300.00 paid for a medical report Mr. Jones was not allowed to put in evidence in this proceeding. The disbursements are therefore reduced by those two amounts.
ORDER
[24] THEREFORE, THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Board dated May 12, 2004 is hereby set aside. The matter is remitted for redetermination in accordance with these reasons by a differently constituted panel of the Board.
2. The Attorney General shall pay costs to Mr. Jones, fixed in the amount of $1,038.50.
"Eleanor R. Dawson"
______________________________
Judge
APPENDIX
The Pension Act: section 2, subsections 21(2) and 21(2.1), section 39 and the Veterans Review and Appeal Board Act, sections 3 and 39:
| 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.
[...]
21(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; (b) where a member of the forces dies as a result of an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II; (c) where a member of the forces is in receipt of an additional pension under paragraph (a), subsection (5) or section 36 in respect of a spouse or common-law partner who is living with the member and the spouse or common-law partner dies, except where an award is payable under subsection 34(8), the additional pension in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if an additional pension in respect of another spouse or common-law partner is awarded to the member commencing during that period, until the date that it so commences; and (d) where, in respect of a survivor who was living with the member of the forces at the time of that member's death, (i) the pension payable under paragraph (b) is less than (ii) the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member under paragraph (a), subsection (5) or section 36 at the time of the member's death, a pension equal to the amount described in subparagraph (ii) shall be paid to the survivor in lieu of the pension payable under paragraph (b) for a period of one year commencing on the effective date of award as provided in section 56 (except that the words "from the day following the date of death" in subparagraph 56(1)(a)(I) shall be read as "from the first day of the month following the month of the member's death"), and thereafter a pension shall be paid to the survivor in accordance with the rates set out in Schedule II.
21(2.1) Where a pension is awarded in respect of a disability resulting from the aggravation of an injury or disease, only that fraction of the total disability, measured in fifths, that represents the extent to which the injury or disease was aggravated is pensionable.
[...]
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, and (b) a day three years prior to the day on which the pension was awarded to the pensioner.
39(2) Notwithstanding subsection (1), where a pension is awarded for a disability and the Minister or, in the case of a review or an appeal under the Veterans Review and Appeal Board Act, the Veterans Review and Appeal Board is of the opinion that the pension should be awarded from a day earlier than the day prescribed by subsection (1) by reason of delays in securing service or other records or other administrative difficulties beyond the control of the applicant, the Minister or Veterans Review and Appeal Board may make an additional award to the pensioner in an amount not exceeding an amount equal to two years pension.
[...]
Veterans Review and Appeal Board Act
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.
[...]
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.
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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.
[...]
21(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; b) des pensions sont accordées à l'égard des membres des forces, conformément aux taux prévus à l'annexe II, en cas de décès causé par une blessure ou maladie - ou son aggravation - consécutive ou rattachée directement au service militaire; c) sauf si une compensation est payable aux termes du paragraphe 34(8), la pension supplémentaire que reçoit un membre des forces en application de l'alinéa a), du paragraphe (5) ou de l'article 36 continue d'être versée pendant l'année qui suit la fin du mois du décès de l'époux ou du conjoint de fait avec qui il cohabitait alors ou, le cas échéant, jusqu'au versement de la pension supplémentaire accordée pendant cette année à l'égard d'un autre époux ou conjoint de fait; d) d'une part, une pension égale à la somme visée au sous-alinéa (ii) est payée au survivant qui vivait avec le membre des forces au moment du décès au lieu de la pension visée à l'alinéa b) pendant une période d'un an à compter de la date depuis laquelle une pension est payable aux termes de l'article 56 - sauf que pour l'application du présent alinéa, la mention « _si elle est postérieure, la date du lendemain du décès_ » à l'alinéa 56(1)a) doit s'interpréter comme signifiant « _s'il est postérieur, le premier jour du mois suivant celui au cours duquel est survenu le décès_ » - d'autre part, après cette année, la pension payée au survivant l'est conformément aux taux prévus à l'annexe II, lorsque, à l'égard de celui-ci, le premier des montants suivants est inférieur au second_: (i) la pension payable en application de l'alinéa b), (ii) la somme de la pension de base et de la pension supplémentaire pour un époux ou conjoint de fait qui, à son décès, est payable au membre en application de l'alinéa a), du paragraphe (5) ou de l'article 36.
21(2.1) En cas d'invalidité résultant de l'aggravation d'une blessure ou maladie, seule la fraction - calculée en cinquièmes - du degré total d'invalidité qui représente l'aggravation peut donner droit à une pension.
[...]
39(1) Le paiement d'une pension accordée pour invalidité prend effet à partir de celle des dates suivantes qui est postérieure à l'autre_: a) la date à laquelle une demande à cette fin a été présentée en premier lieu; b) une date précédant de trois ans la date à laquelle la pension a été accordée au pensionné. 39(2) Malgré le paragraphe (1), lorsqu'il est d'avis que, en raison soit de retards dans l'obtention des dossiers militaires ou autres, soit d'autres difficultés administratives indépendantes de la volonté du demandeur, la pension devrait être accordée à partir d'une date antérieure, le ministre ou le Tribunal, dans le cadre d'une demande de révision ou d'un appel prévus par la Loi sur le Tribunal des anciens combattants (révision et appel), peut accorder au pensionné une compensation supplémentaire dont le montant ne dépasse pas celui de deux années de pension.
[...]
Tribunal des anciens combattants (révision et appel)
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.
[...]
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. |
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1447-04
STYLE OF CAUSE: William David Gerard Jones v. Attorney General of Canada
PLACE OF HEARING: Victoria, British Columbia
DATE OF HEARING: April 7, 2005
APPEARANCES:
Mr. William Gerard Jones FOR THE APPLICANT
Self-represented
Mr. Ward Bansley FOR THE RESPONDENT
Vancouver, British Columbia
SOLICITORS OF RECORD:
Self-represented FOR THE APPLICANT
Victoria, British Columbia
Mr. John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada