VETERANS |
Thériault v. Canada (Attorney General)
T-1351-03
2004 FC 978, Rouleau J.
12/7/04
14 pp.
Judicial review of decision by Veterans Review and Appeal Board (Board) dismissing application for review of appeal panel decision, thereby denying applicant entitlement to pension--Appeal panel held that it lacked "necessary medical evidence to link complaint of arteritis of lower extremities to applicant's service"--Board applied four-part test developed by Teitelbaum J, in MacKay v. Canada (Attorney General) (1997), 129 F.T.R. 286 (F.C.T.D.) to weigh new evidence adduced by applicant--Board created by Veterans Review and Appeal Board Act, since establishment, only review and appeal tribunal for veterans' pensions--Under Act, s. 39, Board must accept evidence adduced by applicant that is uncontradicted, seems plausible--It must also draw every reasonable inference in favour of applicant--Assessment of evidence must always be done in light of Act, ss. 3, 39, which means that Board must accept any evidence adduced unless determines lacks plausibility, credibility, evidence contradicted by other evidence on record--Board concluded medical evidence credible--No contradictory medical evidence submitted--Board instead chose to ignore uncontra-dicted evidence on ground not relevant--But medical evidence in question of undeniable relevance as addressed to vascular problems in lower extremities, established potential link with military service--Evidence could serve as reasonable basis to support theory applicant's afflictions attributable to military service--Under evidentiary rules in Act, s. 39 and interpretative rule in Act, s. 3, Board had to draw from evidence every reasonable inference in favour of applicant, accept any uncontradicted evidence presented to it by applicant that it considers and resolve in applicant's favour any doubt as to whether applicant has established case-- Board's decision, as written, unreasonable, could not be immune to intervention of Court--Application for judicial review allowed--Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ss. 3, 39.