Date: 19991018
Docket: A-236-98
CORAM: DESJARDINS, J.A.
McDONALD J.A.
SEXTON, J.A.
BETWEEN:
DAVID R. HUNT
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, on Monday, October 18, 1999
Judgment Delivered Orally from the Bench at Toronto, Ontario on Monday, October 18, 1999
REASONS FOR JUDGMENT BY: McDONALD J.A.
Date: 19991018
Docket: A-236-98
CORAM: DESJARDINS, J.A.
MCDONALD, J.A.
SEXTON, J.A.
BETWEEN:
DAVID R. HUNT
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered Orally from the Bench at
Toronto, Ontario on Monday, October 18, 1999)
McDONALD J.A.
[1] This is an appeal from the Trial Division in which the Trial Judge refused an application for judicial review of a decision of the Veteran"s Review and Appeal Board (the "board"). The board denied the appellant a disability pension based on his chronic hepatitis C because his illness was not attributable to service in a Special Duty Area.
[2] The Appellant"s application for judicial review is brought under s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7. The proper standard of review in this application is whether the board based its decision on an "erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.".
[3] The Trial Judge stated that the Court must ensure that the board did not go "off the rails." While this terminology is colloquial and imprecise, the Trial Judge concluded that the board"s decision was unreasonable. In light of that conclusion, we are satisfied that the Trial Judge applied the proper standard of review.
[4] The Appellant claimed that he contracted hepatitis C while serving in Egypt between January 19, 1977 and July 20, 1977. He was treated for another illness in a hospital in which needles were reused without first being sanitized. He sought the opinion of Dr. Buchholz, who wrote that hepatitis C was endemic in Egypt while the Appellant was serving there. The Respondent claims that the Appellant contracted hepatitis C when he contracted hepatitis B at age 15.
[5] Even accepting the board"s statutory duty under s. 39 the Veterans Review and Appeal Board Act S.C. 1995, c. 18 to interpret the evidence in the most favourable light to the Appellant and resolve all doubt in his favour, we cannot conclude that the board"s decision was patently unreasonable. Section 39 of the Act requires the board to "accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances." The only evidence the Appellant provided was that he was in a hospital that used unsanitary needles in an area where hepatitis C was endemic. From this, he concludes that he contracted hepatitis C in Egypt. This conclusion was soundly contradicted by Dr. Hughes" medical report, which states:
| The positive test now reported is definitely due to the pre-enlistment bout of hepatitis he experienced at age 15. Although the condition was confirmed by tests performed during RF service, the condition was not incurred during service [in Egypt.] |
| [6] The Appellant"s own medical expert, Dr. Buchholz, put the Appellant"s claim into further doubt by stating in his medical report: |
| At this time I am unable to comment whether or not his hepatitis C had been acquired in Egypt or with his hepatitis B. |
| [7] On these facts, it is not patently unreasonable to conclude that the Appellant did not demonstrate that he contracted hepatitis C in Egypt. |
| [8] In our view, the Appellant"s credibility was never an issue and this Court makes no finding about it. |
| [9] The appeal will be dismissed with costs. |
| "F.J. McDonald" |
| J.A. |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKETS: A-236-98
| STYLE OF CAUSE: DAVID R. HUNT |
Appellant
| - and - |
| THE ATTORNEY GENERAL OF CANADA |
Respondent
DATE OF HEARING: MONDAY, OCTOBER 18, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: McDONALD J. |
Delivered at Toronto, Ontario
on Monday, October 18, 1999
APPEARANCES: Mr. James T. Hunt
| For the Appellant |
Mr. Robert H. Jaworski
| For the Respondent |
| SOLICITORS OF RECORD: Haffey, Sherwood, Hunt |
| Barristers & Solicitors |
| 120 Adelaide Street West, Suite 2330 |
| Toronto, Ontario |
| M5H 1T1 |
| For the Appellant |
Morris Rosenberg
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF APPEAL
Date: 19991018
Docket: A-236-98
BETWEEN:
| DAVID R. HUNT |
Appellant
| - and - |
| THE ATTORNEY GENERAL OF CANADA |
Respondent
| REASONS FOR JUDGMENT |