Digests

King v. Canada (Veterans Review and Appeal Board)

T-680-00

2001 FCT 535, Nadon J.

29/5/01

37 pp.

Judicial review of denial of pension claim by Veterans Review and Appeal Board (VRAB)--In 1968, while on authorized temporary duty in Sardinia to participate in NATO training exercises, as result of eating contaminated mussels, either on or off base, applicant contracted type A hepatitis--In 1970 diagnosed with genitourinary tuberculosis--In 1993 applied to Canadian Pension Commission for pension on basis of hepatitis pursuant to Pension Act, s. 21(2), and genitourinary tuberculosis, pursuant to s. 21(5)--S. 21(2)(a) providing in respect of military service in peace time, where member of forces suffers disability resulting from disease that arose out of or was directly connected with military service, pension will be awarded--S. 21(5) providing for additional pension in respect of disability that is consequence of injury, disease--Canadian Pension Commission denied both claims--Entitlement Board affirmed denial of claims--On appeal to VRAB, applicant provided written submissions as well as letter from retired Brigadier General Christie expressing opinion findings applicant ate mussels while off duty untrue; stating "official temporary duty" meaning on duty 24 hours per day from time leaves base until time returns--VRAB dismissed appeal, ruling hepatitis not arising out of, not directly connected with service in peace time; genitourinary tuberculosis not consequential under s. 21(5)--Campbell J. allowed application for judicial review on ground VRAB decision patently unreasonable--VRAB subsequently writing to Office of Judge Advocate General (OJAG) seeking opinion regarding notion of "official temporary duty" given by retired Brigadier General Christie--Rehearing adjourned pending receipt of response from OJAG--Eventually VRAB conducting hearings into: (1) applicability of s. 21(3)(e) (presumption injury, disease arising out of, directly connected with military service if incurred in course of service in area in which prevalence of disease constituted health hazard); (2) whether VRAB had authority to gather additional evidence, question of official temporary duty status, and whether s. 21(3)(f) (presumption injury, disease arising out of, directly connected with military service if incurred in course of military operation, training, administration) applied--VRAB concluding hepatitis not arising out of, not directly connected with service in peace time as required by s. 21(2)(a); could not conclude Sardinia hazardous area as defined by s. 21(3)(e) in absence of statistics regarding incidence of hepatitis "A" in Sardinia as compared to other areas of world--Held acted within its jurisdiction when requested opinion from OJAG regarding meaning of "official temporary duty"--Regarding claim for genitourinary tuberculosis, VRAB ruled hepatitis not contracted during service as required by s. 21(5), denied claim--Application allowed--Standard of review patent unreasonableness: MacDonald v. Canada (Attorney General) (1999), 164 F.T.R. 42 (F.C.T.D.)--VRAB must accept evidence submitted unless makes determination with respect to lack of credibility of evidence or unless evidence contradicted--In order to answer whether hepatitis arose out of or directly connected with military service as required by s. 21(2)(a), VRAB considered whether applicant on duty when ate contaminated mussels--Pension Act not requiring injury or disease be result of incident occurring while member of Armed Forces on duty--S. 21(2)(a) providing two criteria for determining whether pension can be attributed: disease must either (1) arise out of service, or be (2) directly connected with service--Nothing else required--Although s. 21(3)(f) creating presumption injury or disease incurred during military operation, training or administration arising out of or directly connected with military service, s. 21(2)(a) not so limiting occurrence of injury or disease--Whether applicant on duty 24 hours per day neither test nor issue--That injury, disease occurred while on duty relevant only to enable VRAB to understand context in which arose--But when injury, disease occurred not answering whether injury, disease arose out of military service or directly connected with that service--MacNeill v. Canada (1998), 151 F.T.R. 121 (F.C.T.D.), referring to s. 21, holding two conditions before condition pensionable: condition must be classifiable as disability resulting from injury, disease in sense applicant continuing to suffer from condition, and, original condition must arise directly from applicant's military service--Not Court's role to answer whether hepatitis arising out of, directly connected with military service--Although Brigadier General Christie's evidence clear, unequivocal, not determinative--That applicant may have been on duty 24 hours per day not leading to conclusion disease arising out of or directly connected with military service--Test not whether applicant on duty when ate mussels--As VRAB not applying proper test, decision cannot stand--Furthermore VRAB erred in seeking, considering OJAG's opinion--Veterans Review and Appeal Board Act, s. 14 not allowing Board to search for evidence, seek opinions with regard to evidence, issues before it in given case--To so allow would nullify s. 39, requiring VRAB to draw from evidence presented to it every reasonable inference in favour of applicant and accept any uncontradicted evidence presented to it by applicant that it considers to be credible--Would also render meaningless s. 38, authorizing Board to obtain independent medical advice, as would have to be considered as example only of broad powers given to Board by s. 14--Letter to OJAG seeking answers to questions clearly seeking assistance of OJAG in respect of issues before VRAB and which it had to decide--Clear from Board's decision OJAG's views determinative of first issue--VRAB had to decide issues on basis of record before it--Record not including views of OJAG--As VRAB not authorized by enabling legislation to seek out opinions, decision to seek out OJAG's views, consideration thereof reviewable error--Court noting s. 21(2)(a) narrower in scope than s. 21(1)(a), pursuant to which any injury, disease incurred during military service pensionable--Pursuant to s. 21(2)(a) military service must be primary cause of injury, disability and causation must be established: McNeill--Must be causal connection between injury or disease and military service: McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (T.D.)--Determination must be made on basis of evidence before Board--Pension Act, R.S.C., 1985, c. P-6, s. 21(1) (as am. by S.C. 1990, c. 43, s. 8), (3) (as am. idem), (5) (as am. idem)--Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ss. 3, 14, 38, 39.