Leclerc v. Canada ( Attorney General )
T-1068-95
Noël J.
1/11/96
15 pp.
Application for judicial review of Veterans Appeal Board decision maintaining level of applicant's pension at one-fifth amount to which claiming entitled-Applicant submitting entitled to full pension under Pension Act, arguing otitis, which forced him to leave Royal Canadian Air Force in 1956, related to military service-First Pension Review Board, then Veterans Appeal Board concluding applicant afflicted by his condition prior to enlistment, deciding applicant's condition 20 percent attributable to military activities, granting pension calculated accordingly-Despite Federal Court of Appeal decision to contrary, Board rehearing matter concluding applicant's condition existed prior to enlistment-During further review of decision on ground did not comply with terms of Court of Appeal judgment, Board, in decision subject of this application, nevertheless upholding previous decision, confirming applicant's military service not cause of his disability-Application allowed-According to evidence, must be concluded his condition incurred during military service-Three presumptions in applicant's favour: (1) deemed in good health at time enlisted (s. 21(9)); (2) presumption disability or aggravation thereof directly connected with or arose out of military service if individual, in course of duties, exposed to environmental hazard that might reasonably have caused disease, injury, aggravation thereof (s. 21(3)); (3) Pension Act, s. 108, Veterans Appeal Board Act, s. 10(5) providing in matters involving awarding of military pension, every reasonable inference to be drawn, any doubt resolved in applicant's favour-Evidence before Board indicating only one cause for applicant's condition: inclement winter weather to which exposed during training-Appeal Board could not reasonably find cause of applicant's otitis media, as opposed to its aggravation, not arising out of or not directly connected with military service-Court adding desirable Board exercise discretion in applicant's favour and grant him additional compensation-Pension Act, R.S.C., 1985, c. P-6, ss. 21(3), (9), 108-Veterans Appeal Board Act, R.S.C., 1985 (3rd Supp.), c. 20, s. 10(5).