Metcalfe v. Canada
T-1136-98
Evans J.
6/1/99
10 pp.
Judicial review of Veterans Review and Appeal Board decision upholding Entitlement Review Panel's dismissal of claim for disability pension-Applicant veteran of Second World War, Korean War-During Korean War, after firing many rounds from 60 mm mortar, became completely deaf for few days-Never reported loss of hearing-Discharged as medically fit, although examination not including audiogram-After discharge experienced hearing difficulties-In 1976 ear, nose, throat specialist concluding strong possibility injury partially caused by blast-After 1976, hearing declined further-In 1997 second specialist reporting profound loss in both ears requiring hearing aids; expressing opinion previous noise exposure likely major cause of hearing loss-Veterans Review and Appeal Board Act, s. 39 directing Board to draw every reasonable inference from evidence in favour of appellant; accept as true credible, trustworthy evidence produced by claimant; in weighing evidence, resolve any doubt in favour of appellant-S. 3 requiring liberal interpretation of Board's powers, duties, functions, in recognition of Canada's debt to war veterans-Board accepting principal primary facts on which applicant basing claim i.e. exposed to excessive noise while on active military service, and hearing now seriously impaired-But not satisfied causal link between facts because applicant not seeking medical attention until 1976, 24 years after incident to which attributing aural difficulties-That relatively minor hearing loss in 1976 more serious by 1997 suggested to Board applicant's disability attributable to post-discharge factors-Application allowed-Board could only have reached its conclusion by misdirecting itself on effect of s. 39-While not creating reverse onus by requiring respondent to establish veteran's medical condition not attributable to military service, going considerable distance in this direction by requiring benefit of any reasonable doubt be given to claimants-Applicant's explanation for failure to seek medical attention sooner plausible-Claim exposure to excessive noise from mortar significantly aggravating otherwise natural process to point now deaf appearing reasonable-Although no certainty as to causal link between noise to which applicant exposed while on military service and deafness, applicant producing sufficient credible evidence about cause of hearing loss that if Board complying with directions in s. 39, must in law have upheld claim-Board erred in law by basing refusal on patently unreasonable finding of fact in light of evidence, relevant statutory provisions-Veterans Review and Appeal Board Act, S.C. 1995, c. C-18, ss. 3, 39.