PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Graham Dunn is a retired member of the Canadian Armed Forces.
He served for twenty years, retiring in 2000. For fifteen years, he was
employed as an aero-engine technician. He then transferred to National Defence
Headquarters, where he spent the remaining five years of his service.
[2] In 2005, Mr. Dunn applied for a disability pension on the grounds that he had incurred significant hearing loss as a result of his years fixing airplane engines. To support his claim, he presented expert evidence suggesting that he had “severe bilateral high tone sensorineural loss compatible with noise exposure”.
[3] The Minister of Veterans Affairs denied Mr. Dunn’s application. Mr. Dunn appealed, but the Entitlement Review Board affirmed the Minister’s decision. He appealed again to the Veterans Review and Appeal Board without success. The Board concluded that the evidence showed that Mr. Dunn’s hearing loss at the time he was discharged was lower than the established threshold for which a pension was payable. Mr. Dunn is seeking judicial review of that decision, arguing that the Board overlooked significant evidence in his favour.
[4]
I agree that the Board failed to consider important evidence. I
will grant this application for judicial review.
I. Issue
[5]
Did the Board fail to consider significant evidence in Mr. Dunn’s
favour?
II. Analysis
(a) The Legislative Scheme
[6] Under the Pension Act, R.S.C. 1985, c. P-6 (relevant enactments are set out in an Annex), persons who served in the military are entitled to a pension if they are disabled directly as result of their military service (s. 21(2)(a)). A disability is defined as “the loss or lessening of the power to will and to do any normal mental or physical act” (s. 3). The Act goes on to state that the amount of a pension must be determined according to the extent of the disability (s. 35(1)). That assessment must be carried out on the basis of guidelines established by the Minister (s. 35(2)).
[7] In keeping with the authority given to him under the Pension Act, the Minister has established a policy relating to hearing loss. Chapter 9 of the Table of Disabilities relates to “Ears and Hearing”. It sets out the thresholds of hearing loss that give rise to a disability pension, and provides a means of calculating the amount of the pension to which a person will be entitled based on the degree of hearing loss in each ear. Where the hearing loss is slight, the amount of the pension is zero. On the other hand, where the applicant has lost all hearing in both ears, the pension is at the top end of the scale. For areas in between, the applicant is entitled to be compensated according to the extent of his or her disability.
(b) The Board’s
decision
[8] The Board concluded that Mr. Dunn had not proved that his loss of hearing, as measured at the time of his discharge from the military in 2000, reached the threshold established in the Minister’s policy on compensable hearing loss. The Minister’s policy provides that a pension is payable when the reduction reaches an average of 25 decibels or more over the frequencies of 500, 1000, 2000 and 3000 hertz in either ear, or a reduction of 50 decibels or more at the 4000 hertz frequency in both ears.
[9] The Board concluded that the audio tests Mr. Dunn performed in 2000, when he was discharged from the military, did not meet those thresholds. Accordingly, the Board affirmed the Minister’s decision to deny Mr. Dunn a disability pension.
(c) Alleged
deficiencies in the Board’s decision
[10] Mr. Dunn argues that the Board should have disregarded the results of the hearing tests he underwent in 2000 when he was discharged from the military because they are clearly unreliable. He suggests that the Board failed in its duty to consider the evidence impugning those results, shirked its obligation to give him the benefit of any doubt, overlooked his contention that his current degree of hearing impairment has not changed since 2000, and ignored the other evidence before it showing both a compensable degree of hearing loss and a direct connection between that loss and his military service.
[11] Mr. Dunn notes that the Board has a duty to draw “every reasonable inference in favour of the applicant or appellant”, to “accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances, and to resolve in favour of the applicant or appellant any doubt, in the weighing of evidence” (Veterans Review and Appeal Board Act, S.C. 1995, c. 18, s. 39). He claims that he provided the Board uncontradicted evidence that the audiograms performed at the time of his discharge were unreliable, that subsequent audiograms conducted in 2005 were accurate and showed a compensable degree of hearing loss, that he had experienced no deterioration in his hearing between 2000 and 2005 (and, therefore, that one could safely assume that his hearing loss in 2000 fell within the Department’s policy), and that his hearing loss was a result of exposure to noise, which he clearly encountered in his previous work as an aero-engine technician.
[12] While the Board only referred to one audiogram conducted at the time of Mr. Dunn’s discharge, there were actually two. (The Board wrongly referred to a test performed on May 5, 2000, which was the date of Mr. Dunn’s retirement, not the date of any audiogram). An audiogram was taken on March 16, 2000 and another one was performed on March 21, 2000. Mr. Dunn gave several reasons why these tests should not be relied on. First, he noted that the March 21st test was incomplete. It provides no figures for his left ear at the 3000 or 4000 hertz frequencies, and no result for his right ear at 8000 hertz. Further, he submits that the March 16th test, while complete, contains figures that vary considerably from the data that were obtained just five days later with the same equipment. Such variation, Mr. Dunn suggests, indicates that the equipment or the examiner, or both, generated faulty results.
[13] Further, Mr. Dunn suggests that the 2000 audiograms did not conform to the Department’s own guidelines on Minimum Standards for Information on Audiograms, published in a 1999 memorandum. That memorandum stipulates that audiograms should measure hearing at frequencies from 500 to 8000 hertz in both ears. They should also be performed by a clinical or registered audiologist and include an assessment by the examiner as to the reliability of the tests. Neither of the March 2000 tests conform to these standards.
[14] In my view, the Board was entitled to consider the tests taken in 2000 and assign them whatever weight it felt they deserved. Indeed, the memorandum cited by Mr. Dunn provides that tests that do not meet the standards set out in it can still be considered (see also Re Philip Gallant, Entitlement Review Board, file number 4619540 (P.E.I.)).
[15] However, the Board also had a duty to consider the other evidence, especially Mr. Dunn’s more recent audiogram results and the expert opinions that his hearing loss is a result of exposure to noise. This is not to say that the Board must accept the inferences that Mr. Dunn urged on it - that his 2005 and 2006 tests reflect the extent of his hearing loss in 2000 and that his disability arises directly from his military service. But the Board had an obligation at least to consider the other evidence Mr. Dunn provided, particularly in light of its statutory duty under s. 39 of the Veterans Review and Appeal Board Act (see Macdonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (T.D.) (QL), at para. 22). Here, the Board referred only to one piece of evidence and, in a single sentence, dismissed Mr. Dunn’s claim. The bulk of the Board’s two-page decision is devoted to a legal issue that Mr. Dunn did not even raise. In my view, the Board’s decision simply does not respond to the evidence before it. I must, therefore, allow this application for judicial review, with costs, and order a new hearing before a different panel of the Board.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
1. The application for judicial review is allowed with costs;
2. A new hearing is ordered before a different panel of the Board.
Annex
|
Pension Act, R.S.C. 1985, c. P-6
3. (1) In this Act “disability” means the loss or lessening of the power to will and to do any normal mental or physical act;
Service in militia or reserve army and in peace time 21 (2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time, (a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I; Pension in accordance with extent of disability 35. (1) Subject to section 21, the amount of pensions for disabilities shall, except as provided in subsection (3), be determined in accordance with the assessment of the extent of the disability resulting from injury or disease or the aggravation thereof, as the case may be, of the applicant or pensioner.
How extent of disability assessed (2) The 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.
Veterans Review and Appeal Board Act, S.C. 1995, c. 18, s. 39 39. In all proceedings under this Act, the Board shall (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; (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and (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
|
Loi sur les pensions, L.R.C. 1985, ch. P-6
3. (1) Les définitions qui suivent s’appliquent à la
présente loi.
Milice active non permanente ou armée de réserve en temps de paix 21. (2) En ce qui concerne le service militaire accompli dans la milice active non permanente ou dans l’armée de réserve pendant la Seconde Guerre mondiale ou le service militaire en temps de paix : a) des pensions sont, sur demande, accordées aux membres des forces ou à leur égard, conformément aux taux prévus à l’annexe I pour les pensions de base ou supplémentaires, en cas d’invalidité causée par une blessure ou maladie — ou son aggravation — consécutive ou rattachée directement au service militaire; Montant conforme au degré d’invalidité
35. (1) Sous réserve de l’article 21, le montant des pensions pour invalidité est, sous réserve du paragraphe (3), calculé en fonction de l’estimation du degré d’invalidité résultant de la blessure ou de la maladie ou de leur aggravation, selon le cas, du demandeur ou du pensionné.
Estimation du degré d’invalidité (2) Les estimations du degré d’invalidité sont basées sur les instructions du ministre et sur une table des invalidités qu’il établit pour aider quiconque les effectue.
Loi sur le Tribunal des anciens combattants, L.R. 1995, ch. 18
39. Le Tribunal applique, à l’égard du demandeur ou de l’appelant, les règles suivantes en matière de preuve : a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci; b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l’occurrence; c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
|
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1358-06
STYLE OF CAUSE: GRAHAM DUNN v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: April 17, 2007
APPEARANCES:
|
Graham Dunn |
ON HIS OWN BEHALF |
|
Jeff Dodgson
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
GRAHAM DUNN Winnipeg, Manitoba |
ON HIS OWN BEHALF |
|
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Winnipeg, Manitoba
|