BETWEEN:
THE ATTORNEY GENERAL OF CANADA
and
Heard at Ottawa, Ontario, on February 7, 2007.
Judgment delivered at Ottawa, Ontario, on April 2, 2007.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: MALONE J.A.
RYER J.A.
Docket: A-194-06
Citation: 2007 FCA 126
CORAM: SHARLOW J.A.
MALONE J.A.
RYER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
DONALD G. WANNAMAKER
Respondent
REASONS FOR JUDGMENT
[1] The respondent Donald G. Wannamaker, who is now almost 75 years of age, has been trying since 1989 to be granted a veterans pension. Over the past sixteen years, his application has been considered in numerous hearings, appeals and reconsiderations. In 2005, the Veterans Review and Appeal Board rejected his application. Mr. Wannamaker successfully applied to the Federal Court for judicial review of that decision. The Federal Court referred his pension application to a differently constituted panel for further reconsideration: Wannamaker v. Canada (Attorney General), 2006 FC 400. The Crown believes the Federal Court was wrong to require a further reconsideration and appealed the Federal Court decision. For the following reasons, I have concluded that the Crown is entitled to succeed on this appeal.
Statutory provisions
[2] Mr. Wannamaker’s pension application is based on section 21 of the Pension Act, R.S.C. 1985, c. P-6, which reads in relevant part as follows (my emphasis):
[3] The Veterans Review and Appeal Board (the Board) is established by the Veterans Review and Appeal Board Act, S.C. 1995, c. 18. Section 3 of that statute reads as follows:
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3. The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled. |
3. Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s’interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l’égard de ceux qui ont si bien servi leur pays et des personnes à leur charge. |
[4] The Board’s role as finder of fact is guided by section 39 of the Veterans Review and Appeal Board Act, which reads as follows:
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39. In all proceedings under this Act, the Board shall |
39. Le Tribunal applique, à l’égard du demandeur ou de l’appelant, les règles suivantes en matière de preuve : |
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(a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; |
a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci; |
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(b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and |
b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l’occurrence; |
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(c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case. |
c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
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[5] Section 39 ensures that the evidence in support of a pension application is considered in the best light possible. However, section 39 does not relieve the pension applicant of the burden of proving on a balance of probabilities the facts required to establish entitlement to a pension: Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133 (F.C.T.D.), Cundell v. Canada (Attorney General) (2000), 180 F.T.R. 193 (F.C.T.D).
[6] Nor does section 39 require the Board to accept all evidence presented by the applicant. The Board is not obliged to accept evidence presented by the applicant if the Board finds that evidence not to be credible, even if the evidence is not contradicted, although the Board may be obliged to explain why it finds evidence not to be credible: MacDonald v. Canada (Attorney General) (1999), 164 F.T.R. 42 at paragraphs 22 and 29. Evidence is credible if it is plausible, reliable and logically capable of proving the fact it is intended to prove.
Mr. Wannamaker’s claim
[7] Mr. Wannamaker was a member of the Canadian Military from September 27, 1952 to June 28, 1970. He served as an aircraft maintenance mechanic in the Royal Canadian Navy and a clerk in log control in the Royal Canadian Air Force. He believes that he has lumbar disc disease because of two back injuries he sustained during his military service. It is undisputed that Mr. Wannamaker is now disabled by lumbar disc disease.
[8] Mr. Wannamaker says that the first injury occurred in 1959, when he fell on ice just as he was arriving at work at RCAF Downsview. The applicable provision in relation to that event is paragraph 21(2)(a) of the Pension Act. Mr. Wannamaker says that the second injury occurred in the Congo in 1961, when he hurt his back trying to move a 400 pound cabinet. At that time he was engaged in special duty service, which means the applicable provision in relation to that event is paragraph 21(1)(a) of the Pension Act.
[9] It is not disputed that Mr. Wannamaker fell in 1959, but there is an issue as to whether he injured his back in that fall. There is also an issue as to whether Mr. Wannamaker suffered a back injury in 1961 in the Congo.
[10] If one or both of the back injuries occurred as Mr. Wannamaker claims they did, there is an issue as to whether one or both of those injuries caused or contributed to the lumbar disc disease from which he is now suffering. In addition, there is an issue as to whether the 1959 fall arose out of or was directly connected to his military service, as required by paragraph 21(2)(a).
Standard of review
[11] In an appeal of a judgment on judicial review, this Court must determine whether the judge correctly determined and applied the appropriate standard of review: Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31 at paragraph 14.
[12] It is now established, as the judge in this case concluded, that the Board’s determination as to whether a particular injury arose out of military service, a question of mixed fact and law, is to be reviewed on the standard of reasonableness. It is also established, as the judge in this case concluded, that a more deferential standard of review, patent unreasonableness, applies to the Board’s determination as to whether the required causal connection exists between a particular injury and an applicant’s disability: Frye v. Canada (Attorney General), 2005 FCA 264 at paragraph 12, McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (T.D.) at paragraph 48, Matusiuk v. Canada (Attorney General), 2005 FC 198 at paragraph 35.
[13] This appeal also raises a question as to whether the Board assessed the evidence in the manner required by section 39 of the Veterans Review and Appeal Board Act. The judge in this case recognized that issue, but did not address separately the question of the applicable standard of review. The proper application of section 39 results in a decision on a question of mixed fact and law. In most situations involving the Board, a question of mixed fact and law is reviewed on the standard of reasonableness. I see no reason to adopt a different standard of review where a question arises as to whether the Board has properly assessed the credibility of evidence, or whether the Board has properly given effect to section 39. I conclude that such decisions should be reviewed on the standard of reasonableness.
[14] In this case, the judge seems to have reviewed the Board’s assessment of the evidence on the standard of correctness. This is implicit in a number of his statements, perhaps most clear in the following passage at paragraph 25 of his reasons (my emphasis):
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I agree with the Board’s decision that there exists contradictory evidence surrounding the cause of the applicant’s injury. However, I disagree with the Board’s findings of fact regarding the ability of the evidence to illustrate a causal link between the applicant’s fall on the ice and the alleged back injury sustained. In my opinion there exists sufficient evidence to demonstrate that the applicant did have back trouble while in military service and that this back trouble was documented in such a way as to illustrate, based on a balance of probabilities, that it was the result of the applicant’s fall in 1959.
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[15] I am compelled to conclude that the judge erred in applying too high a standard of review. For that reason, his decision cannot stand.
[16] This Court could return the case to the Federal Court for reconsideration, or review the Board’s decision de novo. In my view, given the length of time this process has already taken, it is appropriate to conduct a de novo review.
[17] The most important factual determination made by the Board in this case is that Mr. Wannamaker did not suffer the back injuries he claims to have suffered in 1959 and 1961. Mr. Wannamaker cannot establish his entitlement to a pension unless there is a basis on which this Court may properly intervene on that point. Such an intervention is permissible only if, in light of section 39, it was unreasonable for the Board to conclude that the back injuries did not occur.
The evidence before the Board
[18] Mr. Wannamaker’s own evidence before the Board is that on March 20, 1959, he fell on the ice at Downsview and hurt his ankle and his back. He says he was taken to the hospital, where the medical personnel were more concerned about his ankle than his back. They gave him crutches and pain killers, and two days excused duty. He says that he has suffered back pain since that time for which he was given pain killers. He did not always seek medical attention for his back pain. Often he simply treated himself with aspirin.
[19] There is a written statement from Mr. Calver, who saw Mr. Wannamaker fall in 1959. Mr. Calver says that Mr. Wannamaker was taken to the hospital after the fall, and returned to work several days later on crutches. Mr. Calver does not say that Mr. Wannamaker injured his back in that fall. Mr. Green, a neighbour of Mr. Wannamaker during the relevant period, says in a written statement that he believes Mr. Wannamaker injured his back and leg at Downsview at some time between 1957 and 1959, and that he recalls Mr. Wannamaker limping.
[20] According to a summary of the military medical records, Mr. Wannamaker reported no back problems during routine medical examinations between 1952 and 1956. In 1957, Mr. Wannamaker complained of fever and general aching, with low back pain. Routine examinations in 1958 disclosed no back complaints.
[21] The record relating to Mr. Wannamaker’s fall on March 20, 1959 refers only to the ankle injury. A subsequent medical examination in 1959 says nothing about his back.
[22] There is a report of low back strain on September 18, 1959, continuing to September 21 and improving by September 23, and a September 29, 1959 record relating to a back x-ray says “no history of trauma”. The x-ray report notes scoliosis in the lumbar spine and spina bifida of the first sacral segment, with no other abnormalities noted. There is no evidence of any connection between Mr. Wannamaker’s medical service and the existence of scoliosis and spina bifida.
[23] There is a further report of back pain in April of 1960, again with a notation “no injury”. In August of 1961, there is a report of pain and stiffness in the neck and between the shoulder blades. Again, nothing is said about a back injury.
[24] Mr. Wannamaker says that in 1961, while serving in the Congo, he hurt his back while moving a log control kit, a cabinet weighing approximately 400 pounds. Mr. Piuni, who was stationed with Mr. Wannamaker in the Congo, submitted a written statement. He confirms that he noticed that Mr. Wannamaker appeared to be pain and had a hard time moving. He reports that Mr. Wannamaker told him at that time that he had injured his back moving the cabinet. Another report, submitted by Mr. Bannister who was also stationed in the Congo at the relevant time, confirms that that the cabinet was heavy and that Mr. Wannamaker would have been required to move it himself.
[25] There are no medical records relating to the period when Mr. Wannamaker was in the Congo in 1961. Mr. Wannamaker says that there were no medical facilities there at the time.
[26] The next medical records relate to 1966. An x-ray report notes the presence of spina bifida. Mr. Wannamaker reported low back pain in June of 1966 after a cholecystectomy which was diagnosed as acute fibromyositis (subsequent evidence suggests that might have been a misdiagnosis). He reported back pain again in September of 1967. A medical examination in June of 1970 mentioned the history of fibromyositis, but says nothing else about back pain. Mr. Wannamaker’s discharge medical indicates that he had no complaints at that time.
[27] Mr. Wannamaker submitted many medical reports in which various qualified medical specialists expressed the opinion, with varying degrees of certainty, that Mr. Wannamaker’s lumbar disc disease was caused by the injuries he sustained in 1959 when he fell, and in 1961 when he moved the heavy cabinet. However, those medical specialists were not in a position to know whether the injuries occurred or not, and were essentially taking Mr. Wannamaker at his word.
Discussion
[28] The Board considered Mr. Wannamaker’s evidence and the current medical opinions against the more contemporaneous medical evidence, all of which was analysed in some detail. The Board concluded that the medical records disclose no back injury resulting from the 1959 fall, and no back injury suffered in the Congo. The Board found it implausible that Mr. Wannamaker could have suffered the injuries he claims to have suffered in 1959 and 1961 without the medical records at or around the same time containing some indication of a back injury.
[29] It is argued that the Board failed to apply section 39 of the Veterans Review and Appeal Board Act. I do not accept that argument. The Board was faced with contradictory evidence about whether Mr. Wannamaker suffered back injuries in 1959 and 1961 as he claimed. The only direct evidence came from Mr. Wannamaker himself. The Board noted that Mr. Wannamaker first asserted his claim some 30 years after the injuries were alleged to have occurred. That is a factor that weakens the reliability of his evidence and therefore its credibility. Mr. Wannamaker’s evidence is also contradicted by the contemporaneous medical records. Thus, this is not a situation that engages paragraph 39(b), which requires the Board to “accept any uncontradicted evidence” presented by the applicant that the Board considers “credible in the circumstances.” In my view, it was not unreasonable for the Board to reject Mr. Wannamaker’s evidence.
[30] The evidence of Mr. Wannamaker was supported by current medical opinions. However, the Board found that evidence to be incapable of proving that the injuries occurred, because they are the opinions of persons who were not in a position to know whether or not Mr. Wannamaker’s account of his injuries was correct. In my view, the Board’s reasoning on this point is not unreasonable.
[31] Nor do I see this as a case in which the Board was required to give Mr. Wannamaker the benefit of the doubt, as mandated by paragraph 39(c). The only evidence of injury came from Mr. Wannamaker himself, either directly or indirectly through the medical opinions, and the Board found his evidence not to be reliable, for the reasons stated above.
Conclusion
[32] For these reasons I would allow this appeal, set aside the decision of the Federal Court, and dismiss Mr. Wannamaker’s application for judicial review of the Board’s third reconsideration decision.
[33] In the Crown’s notice of appeal, and in its memorandum of fact and law, the Crown asked for costs, rather than costs in this Court and the Federal Court. Normally costs follow the event, but costs will not be awarded unless requested. Therefore, the Crown is granted its costs of the appeal only.
“I agree
B. Malone J.A.”
“I agree
C. Michael Ryer J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-194-06
APPEAL FROM THE ORDER OF THE FEDERAL COURT DATED MARCH 30, 2006, DOCKET NO. T-545-05
STYLE OF CAUSE: Attorney General of Canada v. Donald G. Wannamaker
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 7, 2007
REASONS FOR JUDGMENT BY: Sharlow J.A.
Ryer J.A.
APPEARANCES:
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FOR THE APPELLANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada Ottawa, Ontario
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FOR THE APPELLANT
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Ottawa, Ontario |
FOR THE RESPONDENT
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