PENSIONS |
De Quoy v. Canada (Attorney General)
T-1044-03
2004 FC 654, Martineau J.
4/5/04
10 pp.
Applicant member of Canadian Armed Forces from 1949 to 1996, date he retired--Currently suffering from disco-lumbar illness which he attributes to 4,000 flying hours as navigator during military service--Under Pension Act, pensions awarded to members of Forces on application in event of disability--In 1996 applicant filed application for disability pension pursuant to Act, s. 21(1), (2)--Application rejected (first decision)--Applicant applied to Veterans Board for review, Board upheld first decision--Decision appealed to appeal panel, which upheld first decision--After obtaining two medical reports, applicant filed application for review with appeal panel--Board accepted new medical evidence, but concluded applicant's disco-lumbar illness not related to military service, hence application for judicial review at bar-- Applicable standard of review in such cases that of patently unreasonable decision--Appeal panel's decision patently unreasonable, should be reviewed--In application for judicial review, validity of impugned decision cannot be questioned on basis of new evidence which decision maker did not have available when decision made--New medical evidence submitted to appeal panel by applicant establishing direct causal link between applicant's illness, military service--If appeal panel decides not to attach any weight to new evidence, must indicate reasons in decision--Appeal panel acted contrary to Act, s. 39 when arbitrarily disregarded two medical reports--Considering applicant's new medical evidence decisive, appeal panel had to refer expressly in decision to any contrary evidence it preferred to accept in circumstances-- Further, panel should have considered whether vibrations in aircraft could constitute micro-traumas, in which case not impossible several years could have elapsed before applicant felt articular pain, osteoarthritic changes showed up on X-ray in 1994--Appeal panel acted perversely, arbitrarily in disregarding two medical reports, which makes decision patently unreasonable--Application allowed--Pension Act, R.S.C., 1985, c. P-6, ss. 21 (as am. by S.C. 1990, c. 43, s. 8; 2000, c. 12, s. 236; c. 34, s. 21; 2003, c. 12, s. 2), 39 (as am. by S.C. 1995, c. 18, s. 57).