Benefit of Doubt

Section 39 of the Veterans Review and Appeal Board Act deals with the rules of evidence, and is often referred to as the “benefit of the doubt” clause. This is because section 39(c) requires that any doubt, in the weighing of evidence, as to whether the case has been established, be resolved in favour of the applicant. Together, the rules in section 39 ensure that the evidence in support of an application is considered in the best light possible. Board members are required to apply these rules to the facts and evidence of every case.

Plain language explanation

As part of its commitment to provide applicants with clear decisions in plain language, the Board requires Members to explain how they have applied section 39 to the facts and evidence in every case. The following is from our plain language explanation, which appears in every decision:

The Panel has reviewed all of the evidence and has also taken into consideration the Advocate's submissions. In doing so, the Panel has applied the requirements of section 39 of the Veterans Review and Appeal Board Act. […]

This means that in weighing the evidence before us, the Panel will look at it in the best light possible and resolve doubt so that it benefits the Applicant/Appellant. The Federal Court has confirmed, though, that this law does not relieve applicants/appellants of the burden of proving the facts needed in their cases to link the claimed condition to service. The Board does not have to accept all evidence presented by an Applicant/Appellant if the Board finds that it is not credible, even if it is not contradicted.<sup>1

1</sup> MacDonald v. Canada (Attorney General) 1999, 164 F.T.R. 42 at paragraphs 22 & 29; Canada (Attorney General) v. Wannamaker 2007 FCA 126 at paragraphs 5 & 6; Rioux v. Canada (Attorney General) 2008 FC 991 at paragraph 32.

Federal Court decisions

A number of rulings by the Federal Court have provided the Board direction regarding the benefit of doubt:

In the case of MacDonald v. Canada (Attorney General) 1999, the Court stated that “section 39 of the Veterans Review and Appeal Board Act […] does not mean that the Board must automatically accept whatever submission is made by a veteran; rather, the evidence must be accepted if it is credible and reasonable, and uncontradicted. […] The jurisprudence indicates that the Board must accept uncontradicted medical evidence that it considers credible in the circumstances; however, it may reject such evidence if it has before it contradictory evidence, or if it states reasons, which would bear on credibility and reasonableness.”

In the case of Canada (Attorney General) v. Wannamaker 2007, the Court stated that “Section 39 ensures that the evidence in support of a pension application is considered in the best light possible. However, section 39 does not relieve the pension applicant of the burden of proving on a balance of probabilities the facts required to establish entitlement to a pension […]. Nor does section 39 require the Board to accept all evidence presented by the applicant. The Board is not obliged to accept evidence presented by the applicant if the Board finds that evidence not to be credible, even if the evidence is not contradicted, although the Board may be obliged to explain why it finds evidence not to be credible […]. Evidence is credible if it is plausible, reliable and logically capable of proving the fact it is intended to prove.”

In the case of Rioux v. Canada (Attorney General) 2008, the Court stated that “Section 39 of the Act, which requires that the panel resolve any doubt in favour of an applicant, does not relieve the pension applicant of the burden of proving on a balance of probabilities the facts required to establish entitlement to a pension […].”

In the case of Schut v. Attorney General of Canada (2003), the Court stated that “The Applicant argues that all he needed to do in this case was to raise a doubt . . . If such a doubt can be raised, he contends, then s. 39 of the Veterans Review and Appeal Board Act dictates that a finding must be made in the Applicant's favour. But the jurisprudence suggests that s.s. 3 and 39 of the Veterans Review and Appeal Board Act do not relieve the Applicant of the burden of establishing, on a balance of possibilities and with the evidence considered in the best light possible, that the disability is service-related.”

In the case of Tonner v. Canada (1995), the Court stated that “My reading of section 3 and subsection 10(5) does not lead me to interpret the sections so as to read that whatever submission is made by a veteran, that submission must automatically be accepted by the members of the VRAB. The evidence must be credible and must be reasonable. . . .”

In the case of Irving v. The Minister of Pensions (1944), the Court stated that “The doubt must of course be a reasonable doubt and not a strained or fanciful acceptance of remote possibilities.”

In the case of King v. Attorney General of Canada (2001), the Court stated that “Section 39 provides that the VRAB must accept all uncontradicted evidence, but this does not mean it must accept all evidence. If the VRAB is of the opinion that the evidence is not credible, it can reject it.”

In the case of Elliot v. Canada (Attorney General) (2003), the Court stated that “If the direction to draw every reasonable inference is to have meaning, it must apply in cases where an inference would not be drawn on a balance of probabilities. A reasonable inference is therefore one that is not necessarily probable but must nonetheless be more than a mere possibility.”