A World War II veteran who fell twice from a Bren gun carrier during active service (“Bremner”), succeeded on his application for judicial review of a decision of the Veterans Review and Appeal Board (the “Board”) which had determined that his degenerative disc disease and lower back pain was not attributable to his war service, and that he was not entitled to a pension in respect of that injury

28. March 2006 0

Administrative law – Decisions of administrative tribunals – Veterans Review and Appeal Board – Pensions – Eligibility – Judicial review – Jurisdiction – Evidence – Compliance with legislation – Standard of review – Reasonableness simpliciter

Bremner v. Canada (Attorney General), [2006] F.C.J. No 122, Federal Court, January 30, 2006, Strayer D.J.

When Bremner enlisted, he reported no medical conditions. There was some evidence that at his time of discharge from the Armed Forces, he had injured his back and that it did not require treatment at that time, but that it may require treatment in future. Bremner submitted that the Board failed to exercise, or exceeded, its jurisdiction, or erred in law, in not drawing evidentiary inferences favourable to him in accordance with the applicable legislation.

The Court applied the pragmatic and functional approach and considered that where the issue is whether the Board is correct in weighing or interpreting the facts, the standard was one of patent unreasonableness. However, in this instance there is an argument that the Board erred in law or jurisdiction in failing to give effect to section 3 and paragraph 39(c) of the Veterans Review and Appeal Board Act (the “Act”), and so the reasonableness simplicter standard was held to be appropriate in light of the weak privative clause, the absence of relative expertise on the issue, and the nature of the questions, even with the purpose of the legislation being to promote informal decision-making at minimum delay and expense for the applicant.

The Court held that the decision of the Board was unreasonable. Section 3 of the Act obliged the Board to construe the Act liberally “to the end that the recognized obligation of the people and the Government of Canada to those who have served their country so well and to their dependents may be fulfilled”. Bremner’s injury after falling or jumping from a Bren gun carrier while under fire in France was just the type of service to be recognized. Paragraph 39(b) of the Act required the Board to accept any uncontradicted evidence, and 39(c) obliged the Board to resolve in favour of the applicant “any doubt, in the weighing of evidence, as to whether the applicant or appellant has established his case.”

Bremner had no physical injury or defect upon enlisting. His evidence was that his low back continued to bother him from the time of the war injuries, and that evidence was supported by the medical examination at discharge from the Army which stated that he had fallen on his back and that no treatment was currently required, but that he may need treatment at a later date.

The Court found that the Board failed to properly apply paragraph 21(1)(d) of the Pension Act which says that an applicant shall not be denied a pension for an injury or aggravation thereof incurred during military service solely on the grounds that no substantial disability is considered to have existed at the time of discharge of the member. In addition, the Board was unreasonable in ignoring the legal directions of the Act with respect to weighing the evidence, even though the Board had acknowledged that it was “mindful” of those provisions. The decision of the Board was set aside and remitted for reconsideration.

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