Date: 20040820
Docket: T-1856-02
Citation: 2004 FC 1159
BETWEEN:
DAVID F. J. YATES
Applicant
and
ATTORNEY GENERAL OF CANADA AND REGISTRAR,
VETERANS REVIEW AND APPEAL BOARD OF CANADA
Respondents
[1] The applicant seeks judicial review of decision Number 100000432738 made by the Veteran Review and Appeal Board of Canada (the "Board") and dated October 9, 2000 (the "Decision"). The Decision followed a rehearing which occurred as a result of a decision of my colleague Madam Justice Hansen in which she allowed the applicant's application for judicial review of an earlier Board decision in which it had awarded the applicant a nil assessment.
[2] The applicant (who is self-represented) suffers from moderate bi-lateral non-proliferative diabetic retinopathy. He is an insulin dependent diabetic and the insulin he takes causes haemorrhaging in the blood vessels of the retina in both his eyes. This condition has caused a loss of peripheral vision and depth perception.
[3] The Pension Act, R.S.C. 1985, c. P-6 provides in subsection 35(2) that "[t]he assessment of the extent of a disability shall be based on the instructions and a table of disabilities to be made by the Minister for the guidance of persons making those assessments."
[4] The Board relied on the Veterans Affairs Canada Table of Disabilities (the "Table"). It is written in three parts. Its table of contents indicates that Part I (chapters 1-7) deals with Policies and Administration. Part II is entitled Table of Disabilities and includes chapters 8 through 23. Each chapter in Part II deals with disabilities associated with different parts of the body. The relevant chapter is chapter 8 entitled Eyes and Vision ("Chapter 8"). Part III of the Table is entitled Medical Guidelines and the Table of Contents shows that it has a separate index. It was not part of the Board's record. The only portion of Part III which the Board considered was a six page document entitled Medical Guidelines - Prisoners of War of the Japanese (the "POW Report").
THE DECISION
[5] The Board referred to Chapter 8 and to the POW Report. Chapter 8 does not list diabetic retinopathy as a disability and, for that reason, the Board described Chapter 8 as being of "limited value". However, the Board concluded that the applicant's current symptoms would "not present a situation as serious as central scotomata" which has been assigned a suggested 15% assessment but "could possibly relate" to an upper quadrantic hemianopia with a suggested assessment of 5%.
[6] Unfortunately, the Board did not explain why central scotomata was more serious than the applicant's condition and why it concluded that an upper quadrantic hemianopia related to the applicant's disability.
[7] With regard to the POW Report, which described a variety of possibilities including peripheral field loss, the Board noted that a 5% assessment was suggested.
[8] The Board used this rather sparse analysis to determine the degree of disability and to justify the 5% assessment it allowed the applicant. However, the Board also said that it "...assumes that the appellant would be seen by an ophthalmologist on a regular basis and would welcome comments from such a specialist equating the pensioned condition with peripheral or relative scotomata as well as upper quadrantic hemianopia."
[9] As I read this passage, the Board has invited the applicant to request a reconsideration if he has expert evidence which indicates that their identification of comparable disabilities was flawed in some way. After the hearing, counsel for the Board confirmed that such reconsiderations are possible and supplied the Court and the applicant with an excerpt from the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the "Act") which provides in section 32 that an appeal panel may reconsider its decision on its own motion or on application.
THE ISSUES
[10] The applicant raised the following issues on this application for judicial review:
1. The Board erred when it relied on the POW Report because it was new evidence and its use contravened section 28 the Act. The Board also relied on the POW Report without notice to him and, in any event, the POW Report is irrelevant.
2. The Board erred in concluding that Chapter 8 was of any assistance.
3. The Board erred in failing to address the fact that his is a multiple organ disability in that it affects both his eyes.
4. Chapter 15 rather than Chapter 8 of the Table should have been used in the Board's assessment.
DISCUSSION
Issue 1
[11] In my view, there was no error in the Board's reliance on the POW Report. Although the applicant was surprised that it had been used, the POW Report was in Part III of the Table and the applicant knew that Part III existed because he had the Table of Contents. He could have obtained the material in Part III at any time but he didn't ask for it because it never occurred to him that it might be relevant. That is understandable, but the Board made no error in referring to it without giving the applicant prior notice of what parts of the Table it would use.
[12] Section 28 of the Act does not assist the applicant. It reads:
| Written and oral submissions 28. (1) Subject to subsection (2), an appellant may make a written submission to the appeal panel or may appear before it, in person or by representative and at their own expense, to present evidence and oral arguments.
Documented evidence (2) Only documented evidence may be submitted under subsection (1). |
|
Comparution 28. (1) Sous réserve du paragraphe (2), l'appelant peut soit adresser une déclaration écrite au comité d'appel, soit comparaître devant celui-ci, mais à ses frais, en personne ou par l'intermédiaire de son représentant, pour y présenter des éléments de preuve et ses arguments oraux. Éléments de preuve documentés (2) Seuls des éléments de preuve documentés peuvent être soumis en vertu du paragraphe (1). |
|
|
|
|
[13] The applicant thought that the section meant that neither he nor the Attorney General could use new evidence on the Appeal before the Board. He believed that the Board breached the section when it relied on the POW Report. However, what the section means, in my view, is simply that, although an appellant may make oral or written argument, no oral evidence will be permitted - it must be in documentary form such as affidavits or experts' reports.
[14] Finally, the applicant says the POW Report is irrelevant. As mentioned above, I cannot conclude on the record before me that reliance on the POW Report was patently unreasonable.
Issue 2
[15] I have also concluded that the Board's finding that the disabilities described in Chapter 8 were not very helpful and was not patently unreasonable.
Issue 3
[16] The applicant's medical reports, which he acknowledged accurately described his condition at the date of the Board's consideration of his appeal, clearly dealt with both his eyes and the Board's assessment dealt with both eyes. In my view, there is nothing about the facts of this case which makes it patently unreasonable for the Board to have failed to assess each eye separately as foreseen by Chapter 3 section 3.03 of the Table.
Issue 4
[17] Chapter 15 of the Table deals with the Endocrine System and the assessment for diabetics. The applicant says that Chapter 15 should be used to assess all diabetic related disabilities. However, it is clear to me that Chapter 15 is not intended to deal with visual disabilities.
CONCLUSION
[18] This application will be dismissed. I am not able to say that the Board's decision is patently unreasonable in its use of Chapter 8 and the POW Report to reach a 5% assessment. The applicant assured me that his post-Decision research and his doctors' opinions would satisfy me that the Board's Decision was based on outdated information about unrelated disabilities. This may be true, but new evidence of this kind is not acceptable on an application for judicial review and I suggested to the Applicant that he provide it to the Board and ask it to reconsider the Decision as it has offered to do.
"Sandra J. Simpson"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1856-02
STYLE OF CAUSE: DAVID F.J. YATES v. ATTORNEY GENERAL OF
CANADA AND REGISTRAR, VETERANS REVIEW
AND APPEAL BOARD OF CANADA
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: August 26, 2003
REASONS FOR ORDER: The Honourable Madam Justice Sandra J. Simpson
APPEARANCES:
Mr. David F.J. Yates FOR APPLICANT
Mr. Ron Nichwolodoff FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. David F.J. Yates APPLICANT ON HIS OWN
BEHALF
Morris Rosenberg, FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario