Schut v. Canada (Attorney General)

Schut v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2003-11-10
Neutral citation
2003 FC 1323
File numbers
T-2083-01
Decision Content
Date: 20031110
Docket: T-2083-01
Citation: 2003 FC 1323
OTTAWA, ONTARIO, this 10th day of November, 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
DANNY GARY SCHUT
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
I. NATURE OF APPLICATION
[1] This is an application for judicial review of Decision No. 6156-33-47-559 ("Decision") rendered by the Veterans Review and Appeal Board Canada ("Appeal Board") at Charlottetown, Prince Edward Island communicated to the Applicant on October 30, 2001.
[2] The Decision denied the Applicant a pension because:
A. The Appeal Board was not satisfied that the Applicant's condition of Acute Stress Disorder had arisen out of, or was directly connected to, military service in peacetime, pursuant to s. 21(2) of the Pension Act, R.S.C. 1985, c. P-6; and
B. The following conditions were not pensionable because the requirements of paragraph 21(5)(a) of the Pension Act were not met:
a. Head injury with multiple fractures of skull resulting in encephalocele (operated);
b. Loss of vision due to optic nerve damage and optic chiasm injury;
c. Fractured mandible resulting in osteomyelitis of jaw;
d. Diabetes insipidus;
e. Meningitis;
f. C-6 nerve root injury;
g. Loss of teeth; and
h. Hearing loss.
[3] The Applicant seeks the following relief:
A. An order quashing the Decision of the Appeal Board; and
B. An order referring the matter back to the Board, differently constituted, to reconsider and decide the matter pursuant to directions to be given by the Court; and
C. Such further and other relief that this Honourable Court may deem just.
II. BACKGROUND
[4] The Applicant began his career as a search and rescue technician in January, 1977. He was stationed at CFB Comox as a member of 442 Transport and Rescue Squadron. While on Christmas leave in 1979, he learned that the Panamanian vessel, Lee Wang Zin, had capsized off the coast in 12 metre waves with some of her crew still inside the hull. The Applicant twice telephoned Warrant Officer Copeland, his leader, on December 26, 1979, and volunteered his services. The warrant officer accepted his offer and the Applicant returned to the base on December 27, 1979.
[5] The purpose of the Applicant's trip to the base was to ensure that his personal operations gear was in order, fully functional and ready for the following morning's mission. On his way home, after inspecting and preparing his gear, the Applicant spent approximately three and one half hours at the Westerley Hotel discussing the upcoming mission with a colleague. He states that he consumed two beers during this time period. Both men left the hotel in the Applicant's car at approximately 11:30 p.m. on December 27, 1979.
[6] Constable Lapp of the RCMP began to follow the Applicant, eventually turning on his flashing lights because the Applicant was speeding down the centre of a city street at speeds which reached 130 km/h, as estimated by Const. Lapp. The Applicant states that he does not remember anything after the flashing lights were turned on. He eventually lost control of his car and hit a tree and a power pole before coming to a stop. The Applicant suffered serious injuries and was charged with three counts of dangerous driving. The Applicant's only passenger on that occasion, Private Neil Fredheim, who had been with him at the Westerley Hotel, also suffered serious injuries.
[7] Due in part to his disabilities, the Applicant was discharged from the regular forces in February, 1981, and subsequently applied for pension benefits from Veterans Affairs Canada. He initially based his application to the Canada Pension Commission on the claims that he was on duty at the time of the accident and that the crash was caused, not by his attempt to flee the police, but because he was terribly anxious about the rescue mission due to take place the following day. There was no evidence put before the Commission, however, to support this last contention.
[8] The Applicant's application was turned down on April 6, 1992. He appealed this decision to a review panel of the Veterans Review and Appeal Board pursuant to s.s. 19(1) of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18.
[9] In his appeal, the Applicant argued that the accident was related to duty or, in the alternative, arose out of or was directly connected with his military service. At the beginning of the hearing, on September 23, 1997, counsel for the Applicant also began to introduce evidence that the cause of the accident was the Applicant's acute stress disorder ("ASD"). The panel suggested to counsel, however, that evidence of anxiety would be better dealt with through another application to Veterans Affairs Canada and, after some consultation with the Applicant, counsel discontinued the ASD submissions.
[10] Based solely on the duty and military service issues, the Applicant's appeal was rejected in an undated decision. The Applicant appealed this decision to an appeal panel of the Veterans Review and Appeal Board ("Appeal Board"). In the meantime, a second application to the Canada Pension Commission, based on evidence of ASD suggested by Dr. Fraser and Dr. Nozick, was rejected after a hearing on February 27, 1998. The Applicant's appeal of this second decision was heard in 1998 and 1999.
[11] In respect of his appeal to the Appeal Board on the first application, a hearing was held in Charlottetown and in Ottawa with the help of videoconferencing equipment on February 11, 1999. In an undated decision, which both parties agree was made on March 15, 1999, the Appeal Panel rejected the appeal of the first decision.
[12] The Applicant describes the administrative process thus far as follows:
5. The Applicant did not, as the decision under review states, have two (2) separate claims or applications (Decision, Statement of case pp. 5-6). The Applicant filed one application in December 1990, containing claims that (a) the pensionable condition were (sic) the physical injuries caused in the car accident on 27 December 1979 and (b) that the accident occurred when the Applicant "had broken under stress, that being anxiety or acute stress disorder" on 27 December 1979. At the hearing before the Review Panel on 23 September 1997, the Panel interpreted the claim before it not to include the claim for acute anxiety or acute stress disorder and that the Panel had no intention hearing that claim. For the acute anxiety or acute disorder claim, the Panel believes that a separate claim be filed (sic). Accordingly, only the physical injury claim was heard and the Panel decided that the physical injuries did not arise or were not connected to military service. This decision and the Appeal Panel decision dated February 11, 1999 confirming the decision was the subject matter of a judicial review before Mr. Justice Muldoon, Court File No. T-672-99.
6. As a result of the Review Panel's decision to carve out the claim for anxiety or acute stress disorder on 23 September 1997, the Applicant filed the ASD application with the Department on October 3, 1997. (This is the application involved in this judicial review application.) Following denial of the application by the Department on 15 January 1998, the Board's Review Panel heard the matter on three (3) separate sittings: 27 January 1998 (before Mr. J. Galipeau and Mr. R. Robichaud), 18 June 1998 (before Mr. J. Galipeau and Mr. R. Robichaud) and 8 February 1999 (before Mr. R. Robichaud). The Review Panel, consisting only of Mr. Robichaud, released its decision on March 9, 2000, denying pension benefits on the ground that the claimed disability of acute stress disorder was not established by the evidence.
7. The Review Panel decision was appealed to the Appeal Panel. Pending hearing before the Appeal Panel, Mr. Justice Muldoon's judgement in the judicial review application of the first claim was rendered. The judgement of Mr. Justice Muldoon was before the Appeal Panel when it heard the appeal and rendered its decision in the issue.
[13] As a result of a hearing held February 28, 2001, the Appeal Board confirmed the decision to deny the Applicant disability benefits and concluded as follows:
The evidence does not establish a credible basis on which the Panel could conclude that the Appellant suffered from the disease of Acute Stress Disorder and Dissociation at the time of his accident on 27 December 1979 and as a result of his military service pursuant to subsection 21(2) of the Pension Act.
The Panel is unable to find a consequential relationship between the Appellant's military service as a SAR Tech, and his car accident and disabilities which resulted from the accident ... .
[14] On November 23, 2001, the Applicant commenced the present application for judicial review of the Decision of the Appeal Board regarding his second application for pension benefits.
III. ISSUES
[15] The Applicant raises various issues that can be summarized as follows:
Did the Appeal Board fail to observe a principle of natural justice by imposing an inappropriate burden of proof on the Applicant?
Did the Appeal Board make erroneous findings of fact in a perverse manner or without regard to the material before it relating to:
a. the events and facts on the basis of which an inference may be drawn that the Applicant was suffering from ASD at the time of the accident on the evening of December 27, 1979;
b. the credibility of the Applicant and Dr. Fraser; and
c. the inference, on the basis of the relevant and admissible medical opinion, that the Applicant was not suffering from ASD at the time of the accident?
Did the Appeal Board err in law by making findings of fact contrary to sections 3 and 39 of the Veterans Review and Appeal Board Act, sections 2 and 5 of the Pension Act and Article 5(3) of the Department's Interpretation Policy:
a. when it failed to give preference to testimonial or written evidence given under oath compared to the various unsworn statements secured by the Department in this case;
b. when it made determinations concerning the credibility of witnesses even though it had no opportunity to observe the witnesses when they gave evidence;
c. in refusing to take into account the finding of the Criminal Court and the Federal Court that the accident on December 27, 1979, occurred without the fault of the Applicant?
IV. RELEVANT LEGISLATION
[16] The relevant statutory provisions of the Pension Act, R.S.C. 1985, c. P-6 are as follows:
Construction
2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
...
Powers of the Minister
5. (1) Subject to this Act and any other Act of Parliament and to the regulations made under this or any other Act of Parliament, the Minister has full power to decide on all matters and questions relating to the award, increase, decrease, suspension or cancellation of any pension or other payment under this Act and to the recovery of any overpayment that may have been made.
Additional duties
(2) The Governor in Council may, by order, confer on the Minister duties like those under subsection (1) in respect of pensions or other payments authorized by any other Act of Parliament or by the Governor in Council.
5(3) Benefit of doubt
(3) In making a decision under this Act, the Minister shall
(a) draw from all the circumstances of the case and all the evidence presented to the Minister every reasonable inference in favour of the applicant or pensioner;
(b) accept any uncontradicted evidence presented to the Minister by the applicant or pensioner that the Minister considers to be credible in the circumstances; and
(c) resolve in favour of the applicant or pensioner any doubt, in the weighing of evidence, as to whether the applicant or pensioner has established a case.
21. (1) In respect of service rendered during World War I, service rendered during World War II other than in the non-permanent active militia or the reserve army, service as a member of the special force, service in the Korean War, and service in a special duty area as a member of the Canadian Forces,
(a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that was attributable to or was incurred during 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;
...
(d) an applicant shall not be denied a pension in respect of disability resulting from injury or disease or aggravation thereof incurred during military service or in respect of the death of a member of the forces resulting from that injury or disease or the aggravation thereof solely on the grounds that no substantial disability or disabling condition is considered to have existed at the time of discharge of that member;
...
(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;
Presumption
(3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of
(a) any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority;
(b) any activity incidental to or directly connected with an activity described in paragraph (a), including the transportation of the member by any means between the place the member normally performed duties and the place of that activity;
(c) the transportation of the member, in the course of duties, in a military vessel, vehicle or aircraft or by any means of transportation authorized by a military authority, or any act done or action taken by the member or any other person that was incidental to or directly connected with that transportation;
(d) the transportation of the member while on authorized leave by any means authorized by a military authority, other than public transportation, between the place the member normally performed duties and the place at which the member was to take leave or a place at which public transportation was available;
(e) service in an area in which the prevalence of the disease contracted by the member, or that aggravated an existing disease or injury of the member, constituted a health hazard to persons in that area;
(f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; and
(g) the performance by the member of any duties that exposed the member to an environmental hazard that might reasonably have caused the disease or injury or the aggravation thereof.
...
Règle d'interprétation
2. Les dispositions de la présente loi s'interprètent d'une façon libérale afin de donner effet à l'obligation reconnue du peuple canadien et du gouvernement du Canada d'indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge.
...
Ministre
5. (1) Sous réserve des autres dispositions de la présente loi ou de toute autre loi fédérale ou de leurs règlements, le ministre a tout pouvoir de décision en ce qui touche l'attribution, l'augmentation, la diminution, la suspension ou l'annulation de toute pension ou autre paiement prévu par la présente loi ainsi que le recouvrement de tout versement excédentaire.
Pouvoir équivalent
(2) Le gouverneur en conseil peut, par décret, conférer au ministre un pouvoir équivalent au sujet des pensions ou autres paiements autorisés au titre de toute autre loi ou par lui-même.
5(3) Décisions
(3) Lorsqu'il prend une décision, le ministre_:
a) tire des circonstances portées à sa connaissance et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible au demandeur ou au pensionné;
b) accepte tout élément de preuve non contredit que celui-ci lui présente et qui lui semble vraisemblable en l'occurrence;
c) tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
21. (1) Pour le service accompli pendant la Première Guerre mondiale ou la Seconde Guerre mondiale, sauf dans la milice active non permanente ou dans l'armée de réserve, le service accompli pendant la guerre de Corée, le service accompli à titre de membre du contingent spécial et le service spécial_:
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 - survenue au cours du service militaire ou attribuable à celui-ci;
...
d) un demandeur ne peut être privé d'une pension à l'égard d'une invalidité qui résulte d'une blessure ou maladie ou de son aggravation contractée au cours du service militaire, ou à l'égard du décès d'un membre des forces causé par cette blessure ou maladie ou son aggravation, uniquement du fait que nulle invalidité importante ou affection entraînant une importante incapacité n'est réputée avoir existé au moment de la libération de ce membre des forces;
...
(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;
Présomption
(3) Pour l'application du paragraphe (2), une blessure ou maladie - ou son aggravation - est réputée, sauf preuve contraire, être consécutive ou rattachée directement au service militaire visé par ce paragraphe si elle est survenue au cours_:
a) d'exercices d'éducation physique ou d'une activité sportive auxquels le membre des forces participait, lorsqu'ils étaient autorisés ou organisés par une autorité militaire, ou exécutés dans l'intérêt du service quoique non autorisés ni organisés par une autorité militaire;
b) d'une activité accessoire ou se rattachant directement à une activité visée à l'alinéa a), y compris le transport du membre des forces par quelque moyen que ce soit entre le lieu où il exerçait normalement ses fonctions et le lieu de cette activité;
c) soit du transport du membre des forces, à l'occasion de ses fonctions, dans un bâtiment, véhicule ou aéronef militaire ou par quelque autre moyen de transport autorisé par une autorité militaire, soit d'un acte fait ou d'une mesure prise par le membre des forces ou une autre personne lorsque cet acte ou cette mesure était accessoire ou se rattachait directement à ce transport;
d) du transport du membre des forces au cours d'une permission par quelque moyen autorisé par une autorité militaire, autre qu'un moyen de transport public, entre le lieu où il exerçait normalement ses fonctions et soit le lieu où il devait passer son congé, soit un lieu où un moyen de transport public était disponible;
e) du service dans une zone où la fréquence des cas de la maladie contractée par le membre des forces ou qui a aggravé une maladie ou blessure don't souffrait déjà le membre des forces, constituait un risque pour la santé des personnes se trouvant dans cette zone;
f) d'une opération, d'un entraînement ou d'une activité administrative militaires, soit par suite d'un ordre précis, soit par suite d'usages ou pratiques militaires établis, que l'omission d'accomplir l'acte qui a entraîné la maladie ou la blessure ou son aggravation eût entraîné ou non des mesures disciplinaires contre le membre des forces;
g) de l'exercice, par le membre des forces, de fonctions qui ont exposé celui-ci à des risques découlant de l'environnement qui auraient raisonnablement pu causer la maladie ou la blessure ou son aggravation.
...
[17] The relevant statutory provisions of the Veterans Review and Appeal Board Act, 1995, c. 18 are as follows:
Definitions
2. In this Act,
"Board" « _Tribunal_ » "Board" means the Veterans Review and Appeal Board established by section 4;
"Bureau" means the Bureau of Pensions Advocates continued by section 6.1 of the Department of Veterans Affairs Act;
"member" Version anglaise seulement
"member" means a permanent or temporary member of the Board;
"Minister" « _ministre_ »
"Minister" means the Minister of Veterans Affairs or such other member of the Queen's Privy Council for Canada as may be designated by the Governor in Council as the Minister for the purposes of this Act;
"prescribed" Version anglaise seulement
"prescribed" means prescribed by the regulations.
1995, c. 18, s. 2; 2000, c. 34, ss. 94(F), 95(F).
Construction
3. The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled.
...
Appeal
25. An applicant who is dissatisfied with a decision made under section 21 or 23 may appeal the decision to the Board.
APPEALS
Exclusive jurisdiction
26. The Board has full and exclusive jurisdiction to hear, determine and deal with all appeals that may be made to the Board under section 25 or under the War Veterans Allowance Act or any other Act of Parliament, and all matters related to those appeals.
...
Disposition of appeals
29. (1) An appeal panel may
(a) affirm, vary or reverse the decision being appealed;
(b) refer any matter back to the person or review panel that made the decision being appealed for reconsideration, re-hearing or further investigation; or
(c) refer any matter not dealt with in the decision back to that person or review panel for a decision.
...
Rules of evidence
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.
Définitions
2. Les définitions qui suivent s'appliquent à la présente loi.
« _Bureau_ » "Bureau"
« _Bureau_ » Le Bureau de services juridiques des pensions prorogé par l'article 6.1 de la Loi sur le ministère des Anciens Combattants.
« _ministre_ » "Minister"
« _ministre_ » Le ministre des Anciens Combattants ou le membre du Conseil privé de la Reine pour le Canada chargé par le gouverneur en conseil de l'application de la présente loi.
« _Tribunal_ » "Board"
« _Tribunal_ » Le Tribunal des anciens combattants (révision et appel) constitué par l'article 4.
1995, ch. 18, art. 2; 2000, ch. 34, art. 94(F) et 95(F).
Principe général
3. Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s'interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l'égard de ceux qui ont si bien servi leur pays et des personnes à leur charge.
...
Appel
25. Le demandeur qui n'est pas satisfait de la décision rendue en vertu des articles 21 ou 23 peut en appeler au Tribunal.
APPEL
Compétence exclusive
26. Le Tribunal a compétence exclusive pour statuer sur tout appel interjeté en vertu de l'article 25, ou sous le régime de la Loi sur les allocations aux anciens combattants ou de toute autre loi fédérale, ainsi que sur toute question connexe.
...
Pouvoirs
29. (1) Le comité d'appel peut soit confirmer, modifier ou infirmer la décision portée en appel, soit la renvoyer pour réexamen, complément d'enquête ou nouvelle audition à la personne ou au comité de révision qui l'a rendue, soit encore déférer à cette personne ou à ce comité toute question non examinée par eux.
...
Règles régissant la preuve
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.
[18] The relevant provisions of the Veterans Review and Appeal Board, Interpretation Policy are as follows:
A. LEGISLATION
Subsection 5(3) of the Pension Act reads as follows:
5(3) In making a decision under this Act, the Minister shall
(a) draw from all the circumstances of the case and all the evidence presented to the Minister every reasonable inference in favour of the applicant or pensioner;
(b) accept any uncontradicted evidence presented to the Minister by the applicant or pensioner that the Minister considers to be credible in the circumstances; and
(c) resolve in favour of the applicant or pensioner any doubt, in the weighing of evidence, as to whether the applicant or pensioner has established a case.
B. POLICY
The function of the adjudicator is to perform an active inquiry into the basis of a claim for an award. This involves gathering relevant information, weighing evidence and making decisions on claims. In performing this duty the adjudicator must adhere to the principles set out under subsection 5(3). These principles, as with all other provisions of the Act, must be afforded a liberal interpretation.
This policy attempts to interpret paragraphs (b), (a) and (c) separately and in that order. For a given case, the adjudicator will be faced with the tasks of, first, deciding what information to accept as evidence; second, drawing inferences in favour of the applicant or pensioner from that evidence and from all the circumstances of the case; and third, resolving any doubt as to whether the applicant or pensioner has established a case.
It must be remembered, however, that in practice it may be difficult to adhere to a strict orderly application of these provisions. Adjudicators must keep in mind and incorporate into decisions the underlying purpose behind including this provision in the Pension Act namely, the notion of giving the applicant or pensioner the benefit of the doubt with respect to all matters of a case.
This policy is not to be used as a substitute for evidence. It is to be applied when the facts of a case are so evenly balanced that a clear decision is impossible (cannot decide, 50/50). An applicant does not have to prove a claim but must provide enough evidence to give rise to a reasonable doubt that it is true.
The evidence will not be equal in weight if the adjudicator, after hearing the evidence for and against the applicant, is left with a concrete opinion that one answer is more probable than the other. In such a case, the adjudicator must accept the more probable answer as fact.
In most decisions it is incumbent upon the adjudicator to not only apply subsection 5(3) but also to state in the decision the fact that s/he is applying subsection 5(3).
1. 5(3)(b) - Accepting credible, uncontradicted evidence from the applicant
Paragraph (b) compels the adjudicator to accept evidence that, in addition to being relevant, is both credible and uncontradicted. This paragraph is aimed at alleviating technical concerns with evidence.
Credible
The word "credible" literally means "believable". Evidence is not believable where other already proven facts do not support the accuracy of the evidence or where a reasonable person using common sense would conclude that the information provided by that evidence is impossible or untrue.
The question of the credibility of a piece of evidence usually arises with respect to information provided by an applicant or pensioner that requires the personal knowledge of the circumstances surrounding the claim of the applicant or pensioner but not the expertise of a specialist. For example, an applicant may assert that she broke her leg while on duty in Somalia. If other documented evidence were to show that she was never actually in Somalia, the applicant's assertion would normally not be accepted as credible.
It is the evidence that must be credible. The credibility of the person submitting the evidence is not a factor with respect to this provision. Even a generally non-credible person can produce or submit evidence that is credible just as a generally credible person can submit evidence that is not credible.
Uncontradicted
When an applicant has uncontradicted evidence, there is no other evidence refuting it. For example, there will be claims presented where the only evidence presented is the applicant's statement. The fact that there is no other evidence found on the service documents and nothing reported post discharge does not contradict the applicant's statement. This lack of evidence can, however, bring into question the credibility of the claim.
On the other hand, evidence that may otherwise be deemed credible may nonetheless be rejected as evidence if contradictory opinion reaches the consensus level. For example, opinion, by definition, will often not point toward an absolute conclusion in relation to a medical matter. Hence, a medical opinion is not generally accepted if it is contrary to the medical consensus of the recognized specialists of that field. Although such evidence may be credible, (not proven to be untrue) it could not be said to be uncontradicted. This statement would not apply to all cases especially in those areas of medicine where a sizeable minority does not concur with the consensus or where the medical knowledge is not definitive.
On the other hand, medical opinion, expressed by a recognised specialist in a field, who has treated or examined the applicant, should be accepted unless it is obviously or admittedly based solely on the history obtained from the applicant (not based on personal examination of the applicant), or is entirely speculative.
A personal examination of an applicant is not relevant where a case turns on a purely medical issue (could X cause Y). The personal examination becomes relevant when the medical question becomes more subjective in nature (could X have caused Y in the veteran) or, on the state of the veteran (how disabled is the veteran, or could X have caused the veteran's condition).
2. 5(3)(a) - Drawing inferences in favour of the applicant
This paragraph is about proving a fact. The applicant is not quite able to prove a fact but has brought evidence from which that fact may be inferred.
The adjudicator must draw inferences in favour of the applicant from the materials that have been accepted into evidence and from the overall circumstances of the case. To draw an inference means to come to a conclusion based on premises or materials that have been placed before you.
With respect to pension adjudications, drawing a favourable inference in most cases will mean that if there is an effect, and a factual circumstance that could be a cause of that effect and nothing that would lead to another conclusion, then it is incumbent upon the adjudicator to conclude or infer that the factual circumstance was the cause of that effect. For example, if a veteran is claiming osteoarthritis of the knee and records show that the veteran fell off a truck and injured a knee in 1945, a medical opinion is provided which supports the claim and there are no other facts in existence that prove otherwise, then an inference should be drawn in favour of the veteran that the veteran's present condition was at least partially caused by the fall in 1945.
The drawing of favourable inferences is often necessary where it is established that documentation has been lost or destroyed, or was not created due to wartime conditions such as the absence of documentation covering the period of incarceration of prisoners of war.
V. STANDARD OF REVIEW
[19] The Applicant argues that the Appeal Board made erroneous findings of fact relating to whether the Applicant suffered from ASD at the time of the accident on the evening of December 27, 1979, the credibility of the Applicant and Dr. Fraser, and in drawing the inference on the basis of relevant and admissible medical opinion that the Applicant was not suffering from ASD at the time of the accident. The Applicant also argues that the Appeal Board erred in law by making findings of fact contrary to the deferential provisions of the Pension Act and the Veterans Review and Appeal Board Act.
[20] The following summary by Evans J. in McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (Fed. T.D.) is worth quoting at length because of the range of issues to be considered in the case at bar:
16. Counsel for the applicant argued that, since there were no primary facts in dispute in this case, the dispute centred on questions of law. By virtue of paragraph 18.1(4)c) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7, the Court has jurisdiction to set aside a decision of a federal tribunal, such as the Board, if it erred in law in making its decision. Consequently, it was for the Court to determine for itself whether the applicant's injury "arose from" or was "directly connected with" military service, and if it found that it was, it should set aside the Board's decision as erroneous in law.
17. Counsel for the Attorney General, on the other hand, submitted that the Board was entitled to a degree of deference from the Court in its interpretation and application of the Pension Act, especially in view of the statutory provision that the Board's decisions are "final and binding" (Veterans Review and Appeal Board Act, section 31), and that the Board had full and exclusive jurisdiction to determine all matters relating to appeals (section 26). Accordingly, he submitted, the Board's decision was only erroneous in law if patently unreasonable: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557.
18. Counsel for the applicant appeared to argue that the Court's jurisdiction to set aside a decision of a federal administrative tribunal for error of law mandates the Court to review any question of law decided by the tribunal under review by asking whether it was [page 660] correct. This, with respect, is not the law. Indeed, it is quite contrary to the elaboration by the Supreme Court of Canada since the mid-1980s of a pragmatic or functional analysis for determining the standard of review that legislatures should be regarded as implicitly prescribing when a specialist tribunal's interpretation or application of its constitutive statute is challenged in judicial review proceedings.
19. The search for legislative intent in this context is at bottom about determining a rational allocation of decision-making responsibility between specialist tribunal and reviewing court. An important element of this quest is an assessment of whether the tribunal or the reviewing court is better equipped to decide the issues in dispute: Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756.
...
44. In my opinion, the questions in dispute in this case are at the "application" end of the spectrum. The applicant's complaint in essence is that the Board did not give sufficient weight to the fact that, in the course of a long day at work, MWO McTague was compelled to go out for dinner by the absence of eating facilities on the base, something that the army recognized when it agreed to reimburse him the cost of his dinner. Allocating an appropriate weight to the relevant facts is an exercise of judgment for which the Board is at least as well equipped as a reviewing court. A deferential standard of review is thus indicated by the nature of the issues in dispute in this case.
45. The applicant's allegation that the Board erred in law by failing to give him the benefit of the doubt and to interpret the legislation in a broad and liberal fashion should be taken into consideration at the stage of deciding if the Board's decision falls short of the standard of reasonableness.
46. Finally, I should note that it is well established in this Court that the less demanding standard of patent unreasonableness is applicable when the issue in dispute is the Board's weighing or interpretation of often conflicting or inconclusive medical evidence and determining from it whether the claimant's disability was in fact caused or aggravated by military service: MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (T.D.) (QL); Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (F.C.T.D.) [page667]; Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (F.C.T.D.); Henderson v. Canada (Attorney General) (1998), 144 F.T.R. 71 (F.C.T.D.).
47. Factual determinations of this nature are at the very heart of the specialized jurisdiction of the Board. Considerations of cost effectiveness and relative institutional competence call for maximum curial deference to findings of fact.
48. The weight of the factors considered above in the pragmatic or functional analysis suggests that Parliament should be regarded as prescribing a deferential standard of review in this case. However, they do not indicate that the most deferential standard should be applied. "Patent unreasonableness" seems increasingly to be reserved as the standard of review applied to the decisions of administrative agencies that are protected by strong preclusive clauses and have a wider range of regulatory responsibilities than the merely adjudicative functions performed by the Board. It is also the appropriate standard, as I have indicated above, where the issue in dispute involves findings of primary fact, including the drawing of inferences from the evidence.
I accept this analysis by Evans J. as a guide to the standards of review that should be applied to the various issues raised in the case at bar.
VI. ANALYSIS
Did the Appeal Board fail to observe a principle of natural justice by imposing an inappropriate burden of proof on the Applicant?
[21] The Applicant argues that the burden of proof on the Applicant to establish a claim be