ARMED FORCES |
Caswell v. Canada (Attorney General)
T-714-04
2004 FC 1364, Noël J.
5/10/04
13 pp.
Judicial review of Veterans Review and Appeal Board decision refusing to reconsider appeal panel's decision on basis no reviewable error, eyewitness letter not new evidence --Applicant member of Canadian Forces (CF) from 1984-1991--Claims shoulder problems (chronic subluxation), first diagnosed in 1993, result of injury sustained during physical training at CF Base Chatham in 1988--At that time, diagnosed with bursitis--Application for disability pension brought in 1993 denied at all levels--Applied for reconsidera-tion in 2002 based on new evidence, i.e. letter from eyewitness of 1988 injury, medical opinion (McAllister Reports) that reasonably likely applicant's shoulder problems caused by 1988 injury--Panel reviewed comments of Teitelbaum J. in MacKay v. Canada (Attorney General) (1997), 129 F.T.R. 286 (F.C.T.D.), applied test outlined in R. v. Palmer, [1980] 1 S.C.R. 759 to determine whether newly submitted evidence on appeal new, credible enough to warrant reconsideration-- Panel of view Palmer test not met--Application materials before Board included letter explaining why eyewitness letter not produced sooner--Board denied application for reconsideration, concluded no reviewable error by panel, found letter not new evidence--Teitelbaum J. in MacKay noting Court not to engage in "full-fledged judicial review" of earlier panel decision--Assessment in MacKay of reviewing court's jurisdiction not preventing Court from considering that earlier decision when determining whether potential errors of law, fact made at time of reconsideration by Board--Court must look at panel's decision to determine whether Board properly assessed panel's reasons, because Court has to be in same position as Board was when reviewed panel decision, cannot do so without looking at panel's reasons--No adequate explanation of delay in production of eyewitness letter before panel, first criteria of Palmer test (evidence generally not admissible if through due diligence could have been adduced at trial) breached--Letter explaining delay should have been produced at same time as eyewitness letter--As eyewitness letter inadmissible, panel not required to deal with substance of letter--No reason to interfere with panel decision--Earlier medical reports stating applicant suffering from chronic subluxation found insufficient by Entitlement Board to causally link 1988 injury, current condition--Court not convinced situation changed enough to permit admission of McAllister Reports--In absence of new medical evidence, not possible to reassess original evidence--No evidence indicating why McAllister Reports not adduced in due time, first Palmer criteria breached--Although powers, duties, functions of Board to be liberally construed, interpreted, Veterans Review and Appeal Board Act, s. 3 not imposing upon Board, Court, obligation to automatically accept submission made by applicant that injury arose out of military service--Applicant not meeting burden of showing new evidence could have affected initial result--Application dismissed--Veterans Review and Appeal Board Act, S.C. 1995, c. 18, s. 3.