Date: 19990507
Docket: T-1875-98
BETWEEN:
DONALD MARVIN GAVIN,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
MCKEOWN J.
[1] The applicant seeks judicial review of the decision of the Veterans Review and Appeal Board Canada (the "Board"), dated July 30, 1998, wherein the Board dismissed the applicant's application for reconsideration of the Board's decision, dated March 25, 1998. The March 25, 1998 decision under review had affirmed a decision of the Entitlement Board of the Canadian Pension Commission, dated April 5, 1998, denying the applicant's pension claim based on hearing loss he attributed to his RCMP service.
[2] The issue is whether the Board fettered its jurisdiction by relying on the Canadian Pension Commission Guidelines [hereinafter "the Guidelines"] as opposed to relying on medical opinion.
Facts
[3] The applicant served in the RCMP from August 21, 1964 to August 21, 1975. During his service he was required to take firearms training and at the time he left the RCMP in 1975, there was no record of any problem with his hearing. The applicant and his wife stated that he had started having hearing problems in 1969, but this had not been communicated to the RCMP. On December 8, 1992, the applicant made his first application for pension entitlement due to hearing loss. The application was made on the basis that his hearing loss was caused by his exposure to excessive noise from firearms during his period of RCMP service. In pursuing his pension, he submitted an audiology report dated December 7, 1992. On February 10, 1994, the Canadian Pension Commission decided that the applicant's hearing loss was not pensionable as the condition did not arise out of or was directly connected with his RCMP service.
[4] The applicant appealed the Canadian Pension Commission decision to a Commission Entitlement Board. In a decision dated April 5, 1995, the appeal was denied as the applicant's medical evidence did not meet the minimal requirements for hearing loss disability as described in the table of disabilities established by the Canadian Pension Commission. The applicant appealed this decision to the Veterans Review and Appeal Board and in a decision dated March 25, 1996, the Board confirmed the decision of the Commission Entitlement Board. On January 27, 1998, the applicant filed an application for reconsideration of the March 25, 1996 decision and this appeal was denied after the Veterans Review and Appeal Board considered the new evidence and affirmed the earlier Board decision. The new evidence included a letter from Dr. Weir dated May 20, 1997 wherein he stated "... he has a noise induced hearing loss which is related to his time in the RCMP". In making this decision the Board did admit the new evidence and reviewed it before making two findings:
| a) there are no documents or records to demonstrate that the applicant had a hearing loss disability at the date of release from the RCMP in August 1975; and |
| b) the audiograms of 1989, 1992 and 1996 do not disclose the existence of a hearing loss disability as defined by the current Minister's hearing loss guidelines. |
Analysis
[5] A pension must be awarded when in respect of RCMP service where a member of the RCMP suffers disability resulting from an injury or disease, or aggravation thereof, that arose out of or was directly connected with such service.1
[6] The Pension Act creates a presumption, subject to the absence of evidence to the contrary, that an injury or disease arises from RCMP service if the injury or disease was incurred in the course of certain activities.2
[7] I must analyze the case in light of sections 3 and 39 of the Veteran's Review and Appeal Board Act,3 which read as follows:
| s. 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 recognised obligation of the people and Government of Canada to those who have served their Country so well and to their dependants may be fulfilled. |
| a. 39 In all proceedings under the Act, the Board shall: |
| (a) draw from all of the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or the appellant; |
| (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; |
| (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. |
[8] In determining whether the Board committed a jurisdictional error by relying on the Guidelines as opposed to relying on the medical opinion of Dr. Weir, I must bear in mind sub-sections 35(1) and (2) of the Pension Act which read as follows:
| 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. |
| (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 physicians and surgeons making medical examinations for pension purposes. |
Thus the Guidelines are specifically authorized by legislation. This distinguishes the case before me from Re Dale Corporation and Rent Review Commission et al.4, where the guidelines relied on by the decision-maker were not authorized. The Board, in following the Guidelines on when a pension becomes payable, did not fetter its discretion and did not commit a reviewable error.
[9] The Board in its reconsideration decision stated
| While the audiograms of 1989, 1992, and the most recent dated 14 November 1996 reveals the existence of some decibel losses, none of which record a hearing loss disability as per the Minister's current Hearing Loss Guidelines. |
The Board also addressed the new evidence of Dr. Weir as follows:
| Unfortunately the evidence tendered in support of this application does not constitute new and relevant evidence that would lead to a different decision than that dated 25 March 1996. While Dr. Weir states that Mr. Gavin has a noise-induced hearing loss related to his service in the RCMP, and more particularly, to his participation in the annual shoot and practices up until the 70's (without using any ear protection), this is not supported by the evidence on file. The applicant served in the RCMP until 1975 and at his last medical examination in 1973, his hearing was recorded as normal. The service records disclose no complaints nor injuries regarding hearing related problems. No hearing loss disability was demonstrated at the time of the applicant's release from RCMP in August 1975. |
[10] In my view this case is similar to the one before Justice Muldoon in Bleakney v. Canada (Minister of Veterans Affairs)5, where he stated at paragraph 7,
| [t]he Veterans Appeal Board's statement that it had "carefully weighed the evidence in light of the medical guidelines provided to assist in making a determination" is no indication of unlawfully or unduly fettering its discretion. Subsection 35(2) of the Pension Act specifically refers to "the instructions and a table of disabilities ... for the guidance of physicians and surgeons" as a basis for estimating the extent of a disability. That is a statutory direction which lawfully directs the boards how to go about their work. |
Even if the hearing loss in the applicant's case was caused by his service in the RCMP, it does not meet the level required to receive compensation.
[11] There is one sentence in the Board's decision which is ambiguous. It reads "unless an appellant is able to demonstrate that the facts before the Board are not the same as those upon which the guidelines were elaborated, the Board feels compelled to follow the guidelines.". The applicant submits that this means that the Board considered facts beyond the Guidelines; however there are apparently none in existence. Even taking into account sections 3 and 39 of the Veteran's Review and Appeal Board Act, in my view the Board is saying that the applicant produced no evidence to show he satisfies the Guidelines. The onus is on the applicant to show that his case meets the Guidelines and have a doctor address the concerns set out in Guidelines. Alternatively, he must have a doctor set out in a medical report the reasons why the Guidelines may not be applicable in this particular case. There is no breach of procedural fairness by the Board in the case before me.
[12] The application for judicial review is dismissed.
William P. McKeown
______________________
J.F.C.C.
Ottawa, Ontario
7 May 1999
__________________1 Pension Act, R.S.C. 1985, c. P-6, s. 21(2)(a).