Ottawa, Ontario, February 2, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] At all material times Mr. Cormier, the applicant, was a member of the Canadian Armed Forces. He suffers from the knee condition known as a bilateral chondromalacia with patello-femoral syndrome ("condition"). As a result, Mr. Cormier applied for a disability pension on the ground that the condition was related to the exigencies of his Regular Force service activities, in particular compulsory physical training, climbing on and off equipment and vehicles, and various military sports including broomball, hockey and baseball.
[2] On May 21, 2003 an entitlement review panel of the Veterans Review and Appeal Board awarded Mr. Cormier a 3/5 pension entitlement for that part of the disability, or aggravation thereof, that arose out of or was directly connected with service in peacetime in the Regular Force. The Bureau of Pension Advocates registered a formal appeal with respect to the finding of a 3/5 entitlement. On or about June 23, 2005 an entitlement appeal panel of the Veterans Review and Appeal Board ("Board") affirmed the 3/5 entitlement award.
[3] Mr. Cormier brings this application for judicial review of that decision. For the reasons that follow I have determined that the application should be allowed because the Board erred in law with respect to the application of subsection 21(9) of the Pension Act, R.S. 1985, c. P-6 ("Act"), sometimes referred to as the presumption of fitness.
THE RELEVANT LEGISLATION
[4] Subsection 21(9) and the related provision contained in subsection 21(10) of the Act provide that:
| 21(9) Subject to subsection (10), where a disability or disabling condition of a member of the forces in respect of which the member has applied for an award was not obvious at the time he or she became a member and was not recorded on medical examination prior to enlistment, that member shall be presumed to have been in the medical condition found on his or her enlistment medical examination unless there is (a) recorded evidence that the disability or disabling condition was diagnosed within three months after the enlistment of the member; or
(b) medical evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the enlistment of the member. 21(10) Information given by a member of the forces at the time of the enlistment of the member with respect to a disability or disabling condition is not evidence that the disability or disabling condition existed prior to the enlistment of the member unless there is corroborating evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the time the member became a member of the forces. |
21(9) Sous réserve du paragraphe (10), lorsqu'une invalidité ou une affection entraînant incapacité d'un membre des forces pour laquelle il a demandé l'attribution d'une compensation n'était pas évidente au moment où il est devenu membre des forces et n'a pas été consignée lors d'un examen médical avant l'enrôlement, l'état de santé de ce membre est présumé avoir été celui qui a été constaté lors de l'examen médical, sauf dans les cas suivants : a) il a été consigné une preuve que l'invalidité ou l'affection entraînant incapacité a été diagnostiquée dans les trois mois qui ont suivi son enrôlement; b) il est établi par une preuve médicale, hors de tout doute raisonnable, que l'invalidité ou l'affection entraînant incapacité existait avant son enrôlement. 21(10) Les renseignements fournis par un membre des forces au moment de son enrôlement en ce qui concerne une invalidité ou une affection entraînant incapacité ne constituent pas une preuve que l'invalidité ou l'affection entraînant l'incapacité existait avant son enrôlement sauf si ces renseignements sont corroborés par une preuve qui établit, hors de tout doute raisonnable, que l'invalidité ou l'affection entraînant incapacité existait avant son enrôlement. |
THE DECISION OF THE BOARD
[5] The Board noted that two forms of the condition are recognized. The first type, known as primary or idiopathic (cause unknown) develops insidiously, and without obvious cause. The second type develops from trauma to the patella. The Board also noted that the original decision of the Minister, which had completely rejected Mr. Cormier's claim, concluded that the condition was of the primary type and was not related to Mr. Cormier's Regular Force service.
[6] While not express, it appears that the Board then concluded that the condition was of the second type, that is that it developed from repeated trauma to the knees. The Board then considered the medical opinion provided by Dr. Crouzat. He had opined that:
In summary, this is a gentleman who has had progressive bilateral knee pain since the early 1980's. The working diagnosis at this point in time is chondromalacia patellae with patella femoral syndrome. He has been refractive to all treatment, including significant activity modification. His medical condition with [sic] likely lead to a 3B Medical Release. In terms of its link to military service, I think that despite the lack of any overt injury, 5 years of increased activity while in the military including sporting activities, will likely have a great impact on his knee condition. Due to the complete lack of evidence of any injuries from ski jumping or knee complaints prior to joining the military, I feel that this is not an argument for withholding 2/5 of the pension. Therefore, I would recommend in view of the progressive nature of this condition, the member should be reassessed in terms of percentage, as well as, level of military involvement with his knee condition. [As transcribed]
[7] The Board then stated its conclusion rejecting Dr. Crouzat's opinion in the following terms:
The Board finds that it is not reasonable to accept the summation from Dr. Crouzat in light of the fact that he, in his report, considers and comments on the role that microtrauma during the Appellant's military service might have played in the development of the claimed condition. However, the Board found no reference describing what role microtrauma might have played in the development of the claimed condition for the five-year period when the Appellant was actively involved in ski jumping and other sporting activities. In addition, the Board found no documented evidence as to the number and variety of sporting activities, frequency participation, or whether they were in fact related to the Appellant's Regular Force Service. The Board simply has insufficient information regarding the Appellant's sporting activities. [underlining added]
CONSIDERATION OF THE BOARD'S DECISION
[8] Counsel for the Attorney General candidly agreed during oral argument that on the basis of the evidence before it, the Board was obliged to consider the applicability of subsection 21(9) of the Act and that it would be an error of law for the Board to fail to do so. I believe that to be a fair admission because the uncontradicted evidence before the Board established that:
(i) the condition was not obvious when Mr. Cormier became a member of the Canadian Forces;
(ii) the condition was not recorded on Mr. Cormier's medical exam prior to enlistment; and
(iii) the condition was not diagnosed within three months of Mr. Cormier's enlistment.
[9] Counsel for the Attorney General also acknowledged that it is not clear how the Board dealt with the presumption of fitness. From a reading of the Board's decision that is undoubtedly so. Notwithstanding that subsection 21(9) of the Act was specifically relied upon by Mr. Cormier in argument before the Board, and notwithstanding that the Board in its reasons noted that it had been asked to accept the presumption of fitness, the Board did not in its reasons consider the applicability of the presumption or otherwise deal with the presumption.
[10] Counsel for the Attorney General argued that it should be inferred from its reasons that the Board applied its mind to subsection 21(9) of the Act and determined that the condition arose after Mr. Cormier enlisted in the Forces, but that he failed to meet the onus upon him to show that the condition arose from activities that were authorized or organized by military authority. However, the evidence before the Board was that the five-year period (referred to by the Board in the portion of its reasons highlighted above) when Mr. Cormier was actively involved in ski jumping was prior to his enlistment in the Forces. There was no evidence that Mr. Cormier ski jumped while he was a member of the Forces. It follows, in my view, that because the Board considered the role of microtrauma prior to enlistment due to ski jumping that it cannot reasonably be inferred that the Board applied the presumption of fitness.
[11] The conclusion that the Board failed to consider properly the potential application of subsection 21(9) of the Act is also supported by the fact that when, in its reasons, the Board listed the applicable sections of the Act, it referenced only sections 2 and 39 and subsection 2(2) of the Act, but not subsection 21(9).
[12] I conclude, therefore, that the Board failed to consider whether, on the facts before it, the presumption of fitness applied. This was a material and reviewable error of law, reviewable on the standard of correctness, that warrants setting aside the decision of the Board. The materiality of the error is reflected by the fact that the Board relied upon the role microtrauma might have played in the development of the condition for the five-year period Mr. Cormier was actively involved in ski jumping in order to discredit the otherwise uncontradicted opinion of Dr. Crouzat.
[13] Mr. Cormier seeks an order setting aside the decision of the Board and remitting the matter back to the Board with a direction that a determination be made that he is entitled to full compensation for his condition.
[14] It is correct that subsection 18.1(3) of the Federal Courts Act, R.S.C. 1985, c. F-7, allows the Court on an application for judicial review to set aside a decision and to refer the matter back for determination in accordance with such directions as the Court considers appropriate. The jurisprudence shows that on occasion the Court has remitted applications back to decision-makers with specific directions that, in effect, direct a specific decision. However, the jurisprudence cautions that this remedy should only be granted in extraordinary circumstances. Madam Justice Reed, in Ali v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 73, at paragraphs 17 and 18, found the following factors to be relevant to the consideration of whether specific directions respecting a decision should be issued:
(i) whether the evidence on the record is so conclusive that there is only one possible conclusion;
(ii) whether the sole issue to be decided is a pure question of law which will be dispositive of the case;
(iii) whether such question of law is based on uncontroverted evidence and accepted facts; and
(iv) whether there is a factual issue which involves conflicting evidence which is central to the claim.
[15] In the present case, the issue to be determined is not a pure question of law and I am not satisfied that the evidence is so conclusive that there is only one possible result. In this regard, there may be some ambiguity in the evidence with respect to the extent that Mr. Cormier's sporting activities were related to his Regular Force service. I therefore order that the matter be remitted to the Board for redetermination by a different decision-maker in accordance with these reasons, but with no further direction.
[16] While costs normally follow the event, Mr. Cormier did not seek costs in his notice of application, written submissions or oral submissions. In the result, no costs are awarded.
ORDER
[17] FOR THESE REASONS, THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Veterans Review and Appeal Board dated May 26, 2005 is hereby set aside.
2. The matter is remitted for redetermination by a differently constituted panel of the Veterans Review and Appeal Board in accordance with these reasons.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1223-05
STYLE OF CAUSE: WAYNE CORMIER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 23, 2006
APPEARANCES:
YEHUDA LEVINSON FOR THE APPLICANT
MELANIE TOOLSIE FOR THE RESPONDENT
SOLICITORS OF RECORD:
YEHUDA LEVINSON FOR THE APPLICANT
LEVINSON & ASSOCIATES
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA