Administrative Law – Decisions of administrative tribunals – Veterans Review and Appeal Board – Disability – Pensions – Eligibility – Judicial review – Evidence – Fresh evidence – admissibility – Standard of review – Reasonableness simpliciter
Armstrong v. Canada (Attorney General),  F.C.J. No. 104, 2010 FC 91, Federal Court, January 27, 2010, Harrington J.
The Applicant was a member of the RCMP, who had been on medical leave for the previous five years, after having been diagnosed with left thoracic outlet syndrome, which rendered her unfit for duty. The Applicant’s position was that her disability stemmed from a service-related injury sustained in 1991.
The Applicant first applied for a disability pension to the Department of Veterans Affairs. The Pension Adjudicator was of the view that her injury was not service-related either in cause or by way of aggravation, and so dismissed her application. The Applicant next sought an “Entitlement Review” to the Veterans Review and Appeal Board. The Board was of the view that the origin of her condition was not work-related, but that it was aggravated to some extent and so a 20% pension entitlement for aggravation was granted.
That decision was subject to an “Entitlement Appeal”, at which the Applicant was allowed to, and did, present new evidence. The Board found that there was no record or mention of left shoulder or neck complaints following the incident, and that the Applicant herself was of the view that her fall on the job in 1991 had aggravated a shoulder injury that she suffered in the 1970’s while playing hockey and before she joined the Force. The Board upheld the earlier decision.
Finally, in a fourth decision which was the subject of this judicial review, the Board, in reconsideration, decided not to reopen the appeal decision. The Applicant had purported to lead new evidence contesting the finding that the root cause of her disability was an old hockey injury, and in any event submitted that errors were made, both in fact and in law. The Board was of the view that the “new evidence” clarified information on file but that it was not really “new” as it could have been adduced earlier. It was also of the view that the evidence simply clarified evidence already on file, and would provide no prospect of changing the result of the appeal decision. The Board then went on to conclude that it could not find any basis upon which to conclude that there had been any errors of fact or law.
The Court, on judicial review, noted that the reasonableness standard of review applied in this context, and was not in doubt.
The Court found that there were no facts before the Entitlement Appeal Panel to allow it to connect the Applicant’s disability to her hockey injury in the 1970’s, and therefore nothing in the record which justified the subsequent panel’s decision, on review, that there were no errors in that decision. The finding in the “Entitlement Appeal” connecting her disability to her hockey injury was outright speculation, and could be given no weight whatsoever. There was no conflicting medical evidence in the case, and no facts in the record to allow the board to infer a causal connection between her hockey injury and her disability. Judicial review could be granted on that basis alone.
With a causal disconnect between the Applicant’s disability and her hockey injury, this was a classic “thin skull” case, based on a medical opinion that the Applicant was susceptible from birth. The “thin skull” rule that one must take one’s victim as one finds her is well known in both criminal and civil law. The principle has also been applied in pension cases. The Court concluded that the Review Panel had erred in law by not analyzing the 20% disability pension in the light of the “thin skull” rule as the Applicant was fully functional in her duties as a RCMP officer before her work-sustained injury in 1991.
The Court went on to hold that the finding that there was no “new evidence” was unreasonable. Given the presumption that the medical evidence was credible, the Applicant could not have anticipated the Board’s finding in the “Entitlement Appeal”, and therefore there was no lack of due diligence on her part. She could not have offered medical opinion that the Board’s finding was unfounded until that finding was issued.
As a result, the Court granted the application for judicial review, overturned the Board’s decision to refuse to reconsider the appeal decision and reopen the appeal, and remitted the matter for reconsideration by a differently constituted panel of the Veterans Review and Appeal Board, in light of its reasons.
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