Date: 19980113
Docket: T-29-97
BETWEEN:
ROBERT C. HENDERSON
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
DUBÉ, J.
[1] The applicant seeks a judicial review of a decision of the Veterans Review and Appeal Board Canada (the "Board") dated September 30, 1996, in which the Board refused to reconsider its decision dated July 7, 1995.
[2] The applicant, representing himself, served with the Royal Canadian Mounted Police from August 21, 1964 to July 24, 1978. In the course of his training in Regina in 1964 he injured his right knee. On January 24, 1991 he first applied for a disability pension to the Canadian Pension Commission under subsection 32(1) of the RCMP Superannuation Act, R.S.C. 1985 Ch. R-11, on the basis of a claim for patellar tendonitis in the right knee. He relied upon a medical opinion of Dr. Robert G. Grey, an orthopaedic specialist, who diagnosed the applicant with the condition of patellar tendonitis.
[3] The medical opinion of the pension's medical advisory division of the Department of Veterans Affairs, dated August 1, 1991, was to the effect that "... the claimed condition, first diagnosed in the late post discharge period, has no relation to the transient knee pain during the man's early service period.". On August 29, 1991, the Commission rendered its decision in which it noted that the applicant's claimed condition was not diagnosed until more than twelve years after his discharge from the R.C.M.P. (and some twenty six years after the accident) and ruled the condition not to be pensionable.
[4] Thereafter, the applicant took his claim before the Entitlement Board of the Canadian Pension Commission which ruled the condition not to be pensionable on November 16, 1992. After having obtained further medical evidence from Dr. Grey, the applicant appealed that decision to the Veterans Appeal Board (now the Veterans Review and Appeal Board) which affirmed the decision of the Entitlement Board on December 2, 1993.
[5] The applicant then obtained a medical opinion from Dr. Peter King, a general practitioner with a diploma in Sports Medicine, on February 17, 1994. In that letter, Dr. King concluded that the applicant ".. may be suffering the consequences of his original injury in 1964.". Armed with that medical opinion, the applicant re-applied on May 30, 1994 to the Veterans Appeal Board to reconsider its previous decision. That Board, on December 16, 1994, confirmed its previous decision.
[6] On March 20, 1995, Dr. King wrote a second medical report in which he highlighted the importance of recognizing that the patellar tendon is part of the patellofemoral apparatus. In that letter, Dr. King wrote that "I remain convinced that Mr. Henderson does have patellofemoral syndrome and that it is a result of his original injury.". On the basis of that second report, the applicant applied for a third time to the Veterans Appeal Board for reconsideration, requesting the Board to change the applicant's diagnosis from "patellar tendonitis" to "patellofemoral syndrome". The Veterans Appeal Board held, on July 7, 1995, that Dr. King's new evidence did not change the fact that the applicant's knee pain was not related to his service in the R.C.M.P.
[7] Finally, on August 15, 1995, the applicant made his fourth application to the Board, by then the Veterans Review and Appeal Board, and on September 30, 1996 the Board affirmed its previous decision of July 7, 1995. This is the decision under attack.
[8] This judicial review is launched under paragraph 18.1(4)(d) of the Federal Court Act to the effect that the Board based its decision or order on a erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. The main ground of the attack by the applicant is more specifically that the Board had no regard for the two opinions of Dr. King.
[9] In its 15 paragraph decision the Board related all the claims and appeals filed by the applicant and stated that it "... does not see the necessity to recapitulate the factual basis of the claim in view of the number of occasions in which this matter has been considered.". It then referred in some detail to the diagnosis and opinion of the Pensions Medical Advisor as contained in his report of August 1, 1991. The only comment by the Board relating to Dr. Peter King is contained in the following paragraph:
| "The Area Advocate drew the Board's attention to the Entitlement Board's observation that there was an absence of medical evidence to support a relationship between the incident of 1964 and the ongoing disability. The Area Advocate supplied the Board with a Report of Dr. Peter King of 20 March 1995 (found at page 17 of the Statement of Case), and drew the Board's attention to the fact that this Report was supported by Dr. Grey's Report of 8 September 1993 (found at page 38 of the Statement of Case)." (my emphasis) |
The Board then concluded with this final paragraph:
| "In any event, this Board carefully reviewed and evaluated the previous decisions. It is satisfied that the Board considered the matter before it in a most conscientious manner, and in accordance with the relevant legislation pursuant to the Act. No doubt, some of the wording used and conclusion reached could have been stated differently. However, such does not constitute an error in fact. What is evident is that the Board treated the matter before it in a very conscientious manner, and this Board finds no error of fact, pursuant to the Act, which would require that the decision be overturned. Accordingly, the decision of the Veterans Appeal Board of 7 July 1995 is hereby affirmed." |
[10] It is to be noted that the Board refers specifically to the second report of Dr. Peter King, dated March 20, 1995 but makes no reference to the first report dated February 17, 1994. Thus the core issue to be resolved is whether that failure vitiates the decision of the Board.
[11] Unfortunately, for the applicant, it does not. It is a well established law that a tribunal is not required to make an explicit written finding on each constituent element leading to its final conclusion. See Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association of Nipawin et al., [1974] 1 W.W.R. 653 (S.C.C.) and Maclean Hunter Limited v. Deputy Minister of National Revenue for Customs and Excise, [1988] 1 C.T.C. 174 (F.C.A.). A tribunal does not have to list all of the documents which it has perused nor all the facts it has considered. There is a presumption that the tribunal has dealt with all the documents which were placed before it and, in this instance, the record shows that both reports of Dr. King were included in the documentation submitted to the Board. Moreover, in the last paragraph of its decision, as reported above, the Board states that it has "carefully review and evaluated the previous decisions.". The Board's previous decisions specifically refer to both of Dr. King's opinions.
[12] In a judicial review of a tribunal's decision, it is not for the Court to substitute its own decision to that of the lower tribunal, unless that decision was unreasonable, and in the case of a specialized tribunal, as the Board is, unless its decision was patently unreasonable. The Court cannot intervene in the present circumstances, as it was clearly open for the Board to decide as it did. After all, the Board was not bound to accept Dr. King's opinion over the other opinions and decisions already on record. Thus, despite all the sympathy I feel for the applicant, who courageously represented himself, I cannot find that the decision of the Board was other than a reasonable one under the circumstances.
[13] Consequently, this application for judicial review cannot be allowed.
(Sgd.) "J.E. Dubé"
Judge
January 13, 1998
Vancouver, British Columbia
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: January 9, 1998
COURT NO.: T-29-97
STYLE OF CAUSE: ROBERT C. HENDERSON
v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF DUBÉ, J.
dated January 13, 1998
APPEARANCES:
Mr. Robert Henderson for Applicant
Ms. Stacey Silber for Respondent
SOLICITORS OF RECORD:
Donald W. Skogstad for Applicant
Nelson, BC
Farris, Vaughan, Wills
& Murphy for Respondent
Vancouver, BC