BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
Heard at Halifax, Nova Scotia, on February 13, 2007.
Judgment delivered at Halifax, Nova Scotia, on February 15, 2007.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY:
CONCURRING REASONS BY:
DISSENTING REASONS BY:
Date: 200702xx
Docket: A-1-06
Citation: 2007 FCA 68
CORAM: RICHARD C.J.
SHARLOW J.A.
RYER J.A.
BETWEEN:
DONALD E. COMEAU
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
[1] The appellant Mr. Comeau is seeking a pension under subsection 21(2) of the Pension Act, R.S.C. 1985, c. P-6, on the basis that he suffers from a disability resulting from a medical condition, non-ischemic dilated cardiomyopathy, or an aggravation of that condition, that arose out of or was directly connected with his military service. His military service ceased on July 2, 1974.
[2] His claim was denied in 1995 by the Canadian Pension Commission on the basis that there was no evidence to link Mr. Comeau’s condition to his military service. That decision was confirmed on an Entitlement Review in 2001 and an Entitlement Appeal in 2002.
[3] Mr. Comeau applied to the Federal Court for judicial review of the Entitlement Appeal decision. In that application, a particular medical report played a prominent role. That report was written by Dr. David Douglas on July 2, 2000. The key portions of that report read as follows:
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Mr. Comeau is well known to me, having treated him for dilated cardiomyopathy for the last several years. He has asked me to review his medical file while in the services to see if there is anything which might indicate the onset of cardiomyopathy at this time. |
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Mr. Comeau's cardiomyopathy is not the result of stress, though stress could aggravate and worsen control of his congestive heart failure. |
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The only thing I find of significance in Mr. Comeau's medical file dates back to 12/10/71 when he was investigated for high blood pressure and liver function abnormalities with systemic fatigue. At that point in time his liver was described as being 1 or 2 cm. enlarged and questioned the tip of his spleen being palpable, and a positive mono test was found. A chest x-ray done at that point in time found a normal heart size, but an electrocardiogram was done 31/8/71 which was very abnormal with complete right bundle branch block and left anterior fascicular block. |
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Clearly his electrocardiogram was very abnormal back in 1971 in proximity to some hepatopathy, at a time when there was no ingestion of alcohol of significance. A mono test was positive. While this does not prove the onset of his cardiomyopathy was at this time, it is suggestive of this possibility in as much as he had marked electrocardiographic abnormalities with a normal chest x-ray and, in recent years, progressive cardiomegaly with similar ECG findings as years ago. While this shouldn't be mononucleosis, certainly sarcoidosis would be one possible etiology, among other things. |
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In short, there is evidence to suggest the possibility of the development of cardiac abnormalities during the period of his service. |
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[4] The report was supplemented by a further note dated September 21, 2000, which reads:
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If Mr. Comeau did develop the beginning of his problems during his service, aggravation of his condition due to service is likely, given his present state of health. |
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My review shows there is evidence to suggest the possibility it could have so developed, during his period of service. |
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[5] The application for judicial review was heard by O’Keefe J. He set aside the Entitlement Appeal decision for the following reason (2004 FC 1091, at paragraphs 60 to 63):
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[60] The Appeal Panel, in its decision, found that the applicant's condition arose during his service. [61] The Appeal Panel appears to have merely stated that it did not find any of the medical reports on file to be persuasive or credible enough to justify the award of a pension in this case. There is no doubt that the Appeal Panel can comment on credibility, but in my view, the Appeal Panel must explain why it finds a medical report to lack credibility. In the present case, there is the uncontroverted evidence of Dr. Douglas who is an expert in this field, that, "If Mr. Comeau did develop the beginning of his problems during his service, aggravation of his condition due to service is likely given his present state of health." The qualifying "if" in Dr. Douglas' report has been removed by the Appeal Panel finding that the applicant's condition arose during his service. The Appeal Panel has given no reason why this evidence of Dr. Douglas was found to be not credible, but just the bald statement that it was not credible. [62] In my view, it was patently unreasonable for the Appeal Panel to conclude that Dr. Douglas' reports were not credible without giving any reasons for the finding. I wish to point out that I do recognize that the Appeal Panel did state that the medical evidence provided by Dr. Douglas was speculative but this was in relation to his evidence regarding medical mismanagement. Furthermore, the Appeal Panel did not state why it considered this evidence to be speculative. [63] Because of my finding on this matter, I need not deal with the other issues raised by the applicant. |
[6] O’Keefe J. ordered Mr. Comeau’s appeal to be referred to a different appeal panel for rehearing.
[7] The rehearing was before the Veterans Review and Appeal Board (the Board), which again dismissed the appeal after a de novo hearing based on all of the evidence. The Board gave lengthy reasons for its decision, concluding as follows:
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Regretfully, in view of the facts of the case and the absence of reliable and credible medical evidence, the Board is unable to find that the Appellant’s condition could reasonably be ruled as caused by or aggravated by his service, as required for a pension. |
[8] Mr. Comeau applied to the Federal Court for judicial review of that decision. His application was heard by Dawson J. and dismissed on the basis that the Board did not err in law and did not make findings of fact in a perverse or capricious manner or without regard to the material before it (2005 FC 1648). Mr. Comeau now appeals the decision of Dawson J.
[9] I agree with Dawson J. that the standard of review is correctness for questions of law, and patent unreasonableness for the Board’s eligibility decision, which is a question of mixed fact and law. A decision is patently unreasonable if it is clearly irrational or evidently not in accordance with reason, or is so flawed that no amount of curial deference can justify letting it stand: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 52.
[10] Mr. Comeau’s principal argument is aimed at the Board’s factual conclusions. He argued that Dr. Douglas provided evidence, based on a thorough review of Mr. Comeau’s military medical records, that his condition was aggravated by his military service, and that the Board should have preferred his opinion to that of B. Gulati, whose report indicates that he is a medical advisor (although the Board referred to him as a doctor).
[11] Dawson J. conducted an extensive review of all of the evidence before the Board, as well as the Board’s analysis of that evidence. She concluded that the Board’s finding that Mr. Comeau is not eligible for a pension was reasonably open to them on that evidence, and was not patently unreasonable. I am unable to detect any basis for interfering with her conclusion.
[12] Mr. Comeau also argued that, as a matter of law, it was not open to the Board to find that his condition did not arise during his period of military service, because that point had been determined in his favour on the previous Entitlement Appeal. Mr. Comeau argues that the only question before the Board on the rehearing was whether his condition had been aggravated by his military service, a point on which he says the report of Dr. Douglas is conclusive. Dawson J. found, and I agree, that the Board was required to consider Mr. Comeau’s claim afresh, based on its own independent assessment of the entire body of evidence before it. It was not bound by any of the factual conclusions of the previous Board.
[13] Finally, Mr. Comeau argued that the Board was not entitled to refer to the opinion of the medical adviser because no notice had been given as required by subsection 38(2) of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18. In my view, this argument should not be entertained because it was not raised by Mr. Comeau before Dawson J. or in his memorandum of fact and law.
[14] For these reasons, I would dismiss this appeal with costs.
FEDERAL COURT OF APPEAL
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-1-06
STYLE OF CAUSE: DONALD E. COMEAU
- and -
THE ATTORNEY GENERAL OF CANADA
AN APPEAL OF THE FEDERAL COURT (DAWSON J.) DATED DECEMBER 6, 2005
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: FEBRUARY 13, 2007
REASONS FOR JUDGMENT: Sharlow J.A.
APPEARANCES:
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Donald E. Comeau
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Melissa R. Cameron
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada |