Annotated Veterans Review and Appeal Board Act

Reading and understanding the Annotated VRAB Act

The Annotated VRAB Act brings together excerpts and summaries from decisions made by the Federal Courts, the Board and its predecessors that address certain sections of the legislation. These annotations make the Act easier to understand by highlighting issues that may arise during hearings as well as the nature and extent of the evidence required by the Board. They also identify trends in the case law. The Annotated VRAB Act only contains sections of the Act for which there are annotations. To view the full-text VRAB Act, click here.

Disclaimer: These documents are not the official versions.

Section 3 (Construction)

Stoyek v. Canada (Attorney General), 2017 FC 47 affirmed by Stoyek v. Canada (Attorney General), 2017 FCA 223

Section 3 and Section 39 of the Veterans Review and Appeal Board Act stand for the proposition that the Board should avoid an overly technical approach in reaching these decisions.

Thomson v. Canada (Attorney General), 2015 FC 985 affirmed by Thomson v. Canada (Attorney General), 2016 FCA 253, leave to appeal from the judgment of the Federal Court of Appeal refused [2016] S.C.C.A. No. 533.

Sections 3 and 39 of the Veterans Review and Appeal Board Act direct the Board to liberally construe and interpret the applicable legislation and regulations in the exercise of its functions, in recognition of Canada’s obligations to those who have served the country. Evidence presented to the Board shall be looked at and considered in favour of the applicants or appellants. However, that does not mean that the Board can ignore the specific language of the provisions it has to consider.

Canada (Attorney General) v. MacDonald, 2003 FCA 31

Subsection 5(3) of the Pension Act cannot be used to resolve interpretative difficulties or to fill apparent gaps in a statutory scheme. However, in my opinion, this error is of little significance because section 2 of the Act directs that its provisions be liberally interpreted and construed "to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled ... as a result of military service, ... may be fulfilled." An identical provision is found in the Veterans' Review and Appeal Board Act, S.C. 1995, c. 18, section 3.

McLean v. Canada (Attorney General), 2011 FC 453

Sections 3 and 39 of the Veterans Review and Appeal Board Act have been interpreted to mean that a person seeking benefit must submit sufficient evidence to establish a causal link between his or her injury or disability and his or her period of service. These statutory provisions do not relieve an applicant for a disability pension under the Act from the obligation of adducing sufficient probative evidence to meet the requirements for the award of a disability pension.

Bradley v. Canada (Attorney General), 2011 FC 309

Sections 3 and 39 of the Act establish the overall intent of Parliament to recognize that those who serve this country in the military are deserving of special care and attention when they are injured or killed. Section 39 establishes one of the ways by which the objective of s. 3 is fulfilled. It is more than “a tie goes to the runner” provision. These provisions give context against which to apply the standard of review. This is legislation designed to protect and respect the members of the Armed Forces. However, s. 39 does not negate the burden of proof imposed on the Applicant to prove his case.

Lebrasseur v. Canada (Attorney General), 2010 FC 98

This interpretation of the terms “arose out of” in subsection 21(2) as understood as not requiring a direct casual link is well-suited to the Pension Act. Parliament, in its wisdom, has seen it fit to make clear the Pension Act “shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled … as a result of … service … may be fulfilled.” Section 3 of the Veterans Review and Appeal Board Act provides that that enactment has the same objective.

Boisvert v. Canada (Attorney General), 2009 FC 735

Section 2 of the Pension Act and section 3 of the Veterans Review and Appeal Board Act, call for a broad and liberal construction and interpretation of the provisions of these two statutes in recognition of what the members of the Forces have done for their country.

Canada (Attorney General) v. MacDonald, 2003 FCA 31

Subsection 5(3) (of the Pension Act) cannot be used to resolve interpretative difficulties or to fill apparent gaps in a statutory scheme. However, in my opinion, this error is of little significance because section 2 of the Act directs that its provisions be liberally interpreted and construed "to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled ... as a result of military service, ... may be fulfilled." An identical provision is found in the Veterans' Review and Appeal Board Act, S.C. 1995, c. 18, section 3.

Bremner v. Canada (Attorney General), 2006 FC 96

The Board was obliged by section 3 of the Veterans Review and Appeal Board Act to construe the Act liberally "to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled." The evidence here was that this applicant served his country well having being involved in fighting in France and Belgium during World War II.

Caswell v. Canada (Attorney General), 2004 FC 1364

Sections 3 and 39 of the Act urge the Board, inter alia, to take a liberal and purposive approach to veterans' claims and to make every reasonable inference in favour of the applicant. However, this only applies to evidence that is admissible before the tribunal.

Woo Estate v. Canada (Attorney General), 2002 FCT 1233

Section 3 of the Act sets out an overriding framework for the pensions of war veterans.

McTague v. Canada (Attorney General) (T.D.), [2000] 1 F.C. 647

Unlike workers' compensation legislation, pensions are payable under the Pension Act regardless of whether the claimant's injury resulted in loss of income. Rather, as section 2 of the Pension Act and section 3 of the Veterans Review and Appeal Board Act make clear, the provisions dealing with pension entitlement are to be interpreted broadly, since they are a statutory recognition of the nation's debt to men and women who have been willing to put life and limb at risk in the service of their country, and to suffer the other inconveniences of a military career.

There are two difficulties with this argument, however. Despite its generous wording, section 2 of the Pension Act still speaks of an obligation to compensate members of the Armed Forces disabled as a result of military service. The analogous section 3 of the Veterans Review and Appeal Board Act does not, however.

Moreover, the Board's reasons do not indicate that it took an inappropriately strict compensatory approach to the statute. Nowhere did the Board state whether or not MWO McTague had sustained any loss of income-earning capacity as a result of his injury. What it did say is this:

It appears that a common thread throughout the Canadian Compensation cases (workers and veterans) regarding injuries sustained during meal break is the requirement that the employment or the service was a "contributing cause" and was not merely the setting in which the event occurred.

Trainor v. Attorney General For Canada (18 April 2000) T-1759-99 Gibson J.

Under section 1.01 of the War Veterans Allowance Act and section 3 of the Veterans Review and Appeal Board Act, the Board is required to liberally construe and interpret the provisions of the War Veterans Allowance Act to the end that the recognized obligation of the people and Government of Canada to those who have "served" their country as "members" of the Canadian Forces in times of war may be fulfilled.

Metcalfe v. Her Majesty the Queen (6 January 1999) T-1136-98 Evans J. (F.C.T.D.)

Section 3 requires that the powers, duties and functions of the Board be interpreted in a liberal manner in recognition of Canada's debt to its war veterans.

Tonner v. Canada (1995) 94 F.T.R. 314

Mr. Justice Teitlebaum of the Federal Court at page 14 of his decision states:

“It is clear from a reading of section 3 and subsection 10(5) that the Board, in reviewing the evidence before it, shall make all of its decisions, where a doubt exists, in favour of the Applicant because of the “recognized obligation of the people and Government of Canada to those who have served their country so well.” The Board, in reviewing the evidence, draws every reasonable inference in favour of the Applicant, accepts any uncontradicted evidence that it considers credible and resolves any doubt in favour of the applicant...

“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 VAB. The evidence must be credible and must be reasonable....

Brychka v. Canada (Attorney General) (2 February, 1998) T-1695-96 MacKay J. (F.C.T.D.)

Section 39 of the Act requires that when credible evidence is presented during a proceeding, the Board has a duty to consider and weigh the evidence in the applicant's favour. . . . Ss.3 and 39 create liberal and purposive guidelines for claims for veterans' pensions in light of the nation's great moral debt to those who have served this country.

MacKay v. Attorney General of Canada (1997), 129 F.T.R. 286

Section 3 of the Veterans Review and Appeal Board Act is also crucial because it sets out an overriding framework for veterans' pensions. Section 3 therefore creates certain liberal and purposive guidelines for claims for veterans' pension in the light of the nation's great moral debt to those who have served this country.

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Section 7 (Acting after ceasing to hold office, Disposition where member unable to take part)

(25/2/98) Veterans Review and Appeal Board 6008332

Section 7 of the Veterans Review and Appeal Board Act is intended to prevent the re-hearing of a case when one of the members who heard the case resigns or otherwise ceases to hold office, dies or is unable to participate in its final disposition. It allows the Board to protect the integrity of proceedings initiated by a panel despite the loss of the quorum prescribed by section 27 of the Veterans Review and Appeal Board Act.

The Board is satisfied from a review of the file that the Departmental Medical Advisors can give independent medical advice to the Board under section 38 of the Veterans Review and Appeal Board Act as long as the following conditions are met: they had no prior involvement with the case; they had no prior involvement with the Appellant or his family; they were disinterested in the outcome, and they were not subject to any control, restriction or limitation in the exercise of their functions.

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Section 14 (Powers)

Canada (Attorney General) v. Ladouceur, 2011 FCA 247 varying Ladouceur v. Canada (Attorney General), 2010 FC 1148

Under section 14, the Board has been given the powers of a Commissioner under Part I of the Inquiries Act. Using these powers, the Board can summon witnesses before it and require them to attend, give evidence and produce documents. Opportunities for a claimant to cross examine or rebut that evidence would then follow.

Ladouceur v. Canada (Attorney General), 2010 FC 1148

The Board was found to have erred when it relied on the advice of a VAC Medical Advisor with regard to the appropriate table from the Table of Disabilities with which to assess an ankle condition.

Deschênes v. Canada (Attorney General), 2011 FC 449

Tribunal may consult sources other than those in the record. However, it cannot use this evidence to contradict a medical report by a specialist as it did in this case, without giving the applicant the opportunity to make additional submissions or, if he so desired, to supplement the medical evidence he had already submitted.

King v. Attorney General of Canada, 2001 FCT 535

The procedures before the Board are non-adversarial and informal. The Board is also inquisitorial. This means that it is incumbent upon the Board and the party appearing before it to research and present the evidence. The inquisitorial nature of the Board is confirmed by the powers vested to the Board pursuant to section 14 of the Veterans Review and Appeal Board Act. But as the Board is not authorized by its enabling legislation to seek out opinions at will (but only medical opinions under section 38 of the Act), its decision to seek out the Judge Advocate General's views in this case and its consideration thereof, constituted a reviewable error.

Interpretation I-28 [1981] Pension Review Board Interpretations 152

The Board ruled that under the Pension Act the Canadian Pension Commission had the right by virtue of the Inquiries Act to engage the services of a medical staff and obtain opinions on medical matters from the members of that staff. It recommended however that the Commission refrain from adopting verbatim the medical comments as the decision of the Commission so as to avoid the appearance of a de facto delegation of powers. The Board also ruled that members of the Medical Advisory Branch have specialized skill or knowledge as witnesses who are expert in medical matters. Therefore they may give evidence on medical matters but they may not give evidence on other issues.

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Section 16 (Additional powers, duties and functions)

MacDonald v. Canada (Attorney General), 2009 FC 1254

Sections 16 and 18 of the Veterans Review and Appeal Board Act set out the powers of the Board with regard to the Pension Act. In these sections, the Board has been granted the explicit and exclusive jurisdiction to decide questions of law arising under the Pension Act. Therefore, the Board has jurisdiction to decide questions of law arising under a legislative provision and the Board's power is presumed to include the jurisdiction to determine the constitutional validity of 39 under the Charter of Rights and Freedoms.

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Section 18 (Exclusive jurisdiction – Review)

Ladouceur v. Canada (Attorney General), 2010 FC 1148

The Board was found to have erred when it relied on the advice of a VAC Medical Advisor with regard to the appropriate table from the Table of Disabilities with which to assess an ankle condition.

MacDonald v. Canada (Attorney General), 2009 FC 1254

Sections 16 and 18 of the Veterans Review and Appeal Board Act set out the powers of the Board with regard to the Pension Act. In these sections, the Board has been granted the explicit and exclusive jurisdiction to decide questions of law arising under the Pension Act. Therefore, the Board has jurisdiction to decide questions of law arising under a legislative provision and the Board's power is presumed to include the jurisdiction to determine the constitutional validity of 39 under the Charter of Rights and Freedoms.

Boisvert v. Canada (Attorney General), 2009 FC 735

Neither the Pension Act nor the Veterans Review and Appeal Board Act provides for any restrictions or time limits for filing an application for review or reconsideration with the Board or an appeal before it. The Board therefore has jurisdiction to hear such actions regardless of when the facts occurred and when the most recent decision was made.

Bullock v. Canada (Attorney General), 2008 FC 1117

Section 18 of the VRAB Act confers on the VRAB full and exclusive jurisdiction to hear, assess and determine applications for review that may be made to it under the Pension Act. There is no statutory limitation period for submitting such applications either under the VRAB Act or under the Pension Act. The absence of a prescribed limitation period is indicative of the VRAB's authority to entertain applications at its discretion.

Attorney General of Canada v. Villeneuve (13 April, 1995), Tremblay-Lamer, J., T-1259-94 (F.C.T.D.)

Examining the Pension Act and the Veterans Appeal Board Act as a whole and some individual sections of them, an Entitlement Board had jurisdiction to rule on a question involving the Charter of Rights. The Entitlement Board had ruled that the words "of the opposite sex" in subsection 42(6) of the Pension Act were of no force and effect.

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Lunn v. Canada (Attorney General), 2016 FC 675

Relying on subsection 19(2) of the Veterans Review and Appeal Board Act, the Board refused to establish a panel to review a claim for a disability award. The Board concluded that no reasonable review panel could dispose of the matter in a manner favourable to the applicant because a claim for paranoid personality disorder, which had already been heard and denied by the Board, was substantially the same as the paranoid schizophrenia condition now being claimed. The application for judicial review was dismissed on the ground that it was premature. The Federal Court concluded that the applicant had not yet exhausted the administrative remedies that were available to him. He could have sought reconsideration of his entitlement to an award for his claimed condition of paranoid schizophrenia based on new evidence he possessed.

(26/11/13) Veterans Review and Appeal Board 951546

In 1987, the Pension Review Board ruled on the applicant’s Osteoarthritis Lumbar Spine condition. It had found that a fall from an aircraft wing that occurred in 1961 was service related and resulted in a permanent disability in the lumbar spine. Based on the same injury, the applicant applied for disability benefits for his Degenerative Disc Disease Lumbar Spine condition in 2013. The Minister refused to consider the 2013 application on the grounds that it had already been adjudicated by the Board’s predecessors and that the two conditions lead to the same disability. The applicant requested to have a review panel established to review the Minister’s decision.

The fundamental issues raised in the 2013 application for the lumbar spine problems were the same. That claim having already been adjudicated was therefore outside the jurisdiction of a review panel. No reasonable review panel could dispose of it in a manner favourable to the applicant because the review panel would not have had jurisdiction. The request to have a review panel established was therefore refused.

Section 21 (Disposition of application)

(27/6/03) Veterans Review and Appeal Board 619681

The case came to the Board as an assessment review matter for a back condition. The Board upon reviewing the evidence could find no basis for the Minister's award of entitlement. It therefore referred the case back to the Minister for reconsideration under section 21 of the Veterans Review and Appeal Board Act.

(26/3/03) Veterans Review and Appeal Board 510447

The claimant received pension entitlement for various conditions from the Minister. She then appealed to the Board on the matter of entitlement retroactivity only. The Board identified errors of law in the Minister's entitlement decisions. It therefore referred the matter back to the Minister under section 21 of the Veterans Review and Appeal Board Act. To do otherwise would be to confirm the substance of the Minister's Decision which granted the applicant full pension entitlement, as well as pension entitlement for consequential conditions that were awarded erroneously under the incorrect provision of the Pension Act. The panel did not wish to perpetuate those errors.

(15/8/02) Veterans Review and Appeal Board 379892

The case was referred back to the Minister under section 21 of the Veterans Review and Appeal Board Act. The Board reasoned that where assessments are provided at the same time as entitlements with no indication of the reasons why a particular assessment is and section 5 of the Award Regulations requires that reasons be given, with no indication that the person signing the combined entitlement and assessment decision made their decision in accordance with and based on the instructions contained in the Table of Disabilities, as is required pursuant to subsection 35(2) of the Pension Act, this applicant and all others in similar situations appear to this Panel to have been improperly denied one mandated level of adjudication.

(06/3/02) Veterans Review and Appeal Board 324496

An assessment decision was referred back to the Minister because neither the Senior District Medical Officer or the head office Medical Advisors had provided reasons for their diverging assessments of the varicose vein condition. The Board's decision observes that the Minister's delegates are obliged by the regulations to provide reasons for their decisions.

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Section 22 (Decision to be made as soon as possible, Decision of majority, Absence of majority decision)

Matchee v. Attorney General for Canada (5 January, 1999) T-1489-97 Wetston J. (F.C.T.D.)

The decision at paragraph 63 states that an adjudicative tribunal such as the Appeal Panel enjoys confidentiality with respect to its deliberative process.

(07/7/97) Veterans Review and Appeal Board #6702216/WFF

In an entitlement appeal of a regular force hearing loss case, the advocate claimed that the case should be sent back to the review level because there was no evidence that one of the two members of the review panel had acquiesced in the negative decision. The appeal panel disagreed finding that under section 7 of the Veterans Review and Appeal Board Regulations it was sufficient that the review decision was signed by one member, that a decision becomes final only when it is written and communicated to the applicant and that there was no evidence that one of the members disagreed with the decision.

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Section 25 (Appeal)

(18/11/2014) Veterans Review and Appeal Board 1814701

Section 25 of the Veterans Review and Appeal Board Act stipulates that an applicant may appeal a decision to the Board if he or she is dissatisfied with the decision made by the review panel. In this case, the Board understands that following a subsequent Minister’s decision for knee osteoarthritis, the applicant has already received what he was seeking at review (a disability award for his knee problems resulting from patellofemoral pain syndrome). Thus, it would seem that the “dissatisfied” criterion is no longer met.

Section 26 (Exclusive jurisdiction – Appeal)

Comeau v. Canada (Attorney General), 2005 FC 1648 affirmed by Comeau v. Canada (Attorney General), 2007 FCA 68

The Board at an appeal hearing is not bound by the findings made by a previous panel.

Deschênes v. Canada (Attorney General), 2011 FC 449

The respondent is entirely correct when he argues that the appeal panel may consult sources other than those in the record. However, with respect, it cannot use this evidence to contradict a medical report by a specialist as it did in this case, without giving the applicant the opportunity to make additional submissions or, if he so desired, to supplement the medical evidence he had already submitted.

Chaytor v. Canada (Attorney General), 2011 FC 501

Each stage of the process concerning the Applicant's pension application involved a decision de novo; see Nolan v. Canada (Attorney General) 2005 FC 1305. This suggests that each decision-maker has a duty to make independent findings. From this perspective, a re-assessment of the whole case, including an assessment of issues not challenged by the Applicant, does not give rise to a breach of procedural fairness. In any event, the Applicant carries the burden to prove each element of this case, at each stage. If a subsequent decision-maker makes a finding that is less favourable than the previous decision-maker, this is not necessarily a breach of procedural fairness.

Hunt v. Canada (Attorney General), 2009 FC 1218

Under the legislation, each review, except the reconsideration review, is conducted on a de novo basis, with the opportunity to submit new evidence and arguments. As set out by the Federal Court in Nolan v. Canada (Attorney General), 2005 FC 1305, applicants should be prepared to use the appeal hearing as their last opportunity to raise all potential arguments and avenues of appeal. Conducting a reconsideration every time any form of evidence is offered subsequent to the release of a final and binding appeal decision does not respect the principle of finality or promote the efficient use of resources.

Boisvert v. Canada (Attorney General), 2009 FC 735

Neither the Pension Act nor the Veterans Review and Appeal Board Act provides for any restrictions or time limits for filing an application for review or reconsideration with the Board or an appeal before it. The Board therefore has jurisdiction to hear such actions regardless of when the facts occurred and when the most recent decision was made.

MacDonald v. Canada (Attorney General), 2008 FC 796

The hearing before the Board is a de novo hearing. There was new evidence before the entitlement appeal panel of the Board that was not before the entitlement review panel. It was not apparent that the appeal panel conducted its own assessment prior to affirming the decision of the review panel. Rather, it appeared to have relied on the review panel's assessment. Although there was a relevant medical opinion and the appeal panel acknowledged its existence, it does not assess it and therefore committed a reviewable error.

Nolan v. Canada (Attorney General), 2005 FC 1305

An appeal hearing is a de novo hearing.

Gillis v. Canada (Attorney General), 2004 FC 751

An assessment appeal panel did not err when, in addressing the assessment of a pensioned condition, it excluded the effects of non-pensioned conditions which might be consequential to the pensioned condition but for which pension entitlement had not then been awarded.

Section 27 (Appeal Panel)

Ben-Tahir v. Canada (Attorney General), 2015 FC 881

While it may be a better practice for a member of the Board to not be involved in several different claims regarding the same claimant, this may not always be possible given the volume of decisions to be reviewed and appealed across the country, the composition of the Veterans Review and Appeal Board and other factors.

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Section 28 (Written and oral submissions, documented evidence)

Grenier v. Canada (Attorney General), 2013 FC 208

The Board was required to accept a DVD as documentary evidence.

Boisvert v. Canada (Attorney General), 2009 FC 735

The applicant argued that he was not given a full and complete hearing before the appeal panel because he was not permitted to testify to establish his credibility. The Department was also criticized for omitting certain important medical evidence from the record assembled for the purpose of determining his entitlement to a pension.

The arguments however were unfounded. Section 28 of the Veterans Review and Appeal Board Act provides that an appellant may make a written submission to the appeal panel or may appear before it, in person or by representative and at the appellant's own expense, to present documented evidence and oral arguments. That is fully in keeping with the requirements of procedural fairness, especially since the Armed Forces are not allowed to appear or to make written submissions before the appeal panel. It is true that the appellant, if he or she chooses to appear (in person or through counsel), must do so at his or her own expense. But that is not sufficient to invalidate section 28. The aim of the Act is to allow proceedings to be conducted as informally as possible and to permit applicants to make their arguments and to introduce new evidence without excessive formality. The requirements of section 28 were complied with.

As for the comprehensiveness of the record compiled by the Department, it is before the review panel or, ultimately, the appeal panel of the Board that the applicant should have made his submissions. On judicial review, the Court may consider only the record as it stood before the Board.

MacDonald v. Canada (Attorney General), 2007 FC 809

The Board committed no error in refusing to allow the applicant to present oral arguments at the appeal stage in addition to those made on his behalf by his representative.

Yates v. Canada (Attorney General), 2004 FC 1159

The applicant suffered from diabetic retinopathy. The Board in examining the assessment allowed 5%. The Board relied on the Table of Disabilities, Chapter 8 and a POW report in Part III of the Table which was not part of Board's record. The application for judicial review was dismissed. The Board did not err in referring to the Prisoner of War report without giving the applicant prior notice.

The applicant argued that section 28 of the Veterans Review and Appeal Board Act meant that neither he nor the Attorney General could use new evidence on the appeal before the Board. He believed that the Board breached the section when it relied on the POW Report. However, what the section means is simply that, although an appellant may make oral or written argument, no oral evidence will be permitted - it must be in documentary form such as affidavits or experts' reports. (editor's note: The Attorney General is not a party in Board proceedings which are non-adversarial)

Woo Estate v. Canada (Attorney General), 2002 FCT 1233

The Board did not err when it refused to allow the claimant's medical expert to testify in person at the appeal reconsideration hearing.

(18/1/90) Veterans Appeal Board #VAB/VQ-1012

In this appeal of an Assessment Board ruling the advocate attempted to introduce evidence from telephone conversations he had had with the appellant. The Board found that it was prohibited from hearing the evidence by subsection 10(2) of the Veterans Appeal Board Act [now section 28 of the Veterans Review and Appeal Board Act].

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Section 29 (Disposition of Appeals)

Comeau v. Canada (Attorney General), 2005 FC 1648

The applicant served during peacetime. He was later diagnosed with cardiomyopathy. The Board's appeal panel held that the condition arose during service but was not caused by it. The applicant applied for a judicial review. The application was allowed and the matter was referred to a different appeal panel for re-hearing.

The second appeal panel found that the medical reports relied upon by the applicant were inconclusive as to the date of the onset of his cardiomyopathy. That evidence was not so strong as to raise a reasonable doubt about whether there was a causal connection between the medical condition and the military service. The Board was not bound by the findings made by the previous panel. Natural justice did not require that the applicant be given notice that a different panel might reach different findings of fact.

Matchee v. Attorney General for Canada (5 January, 1999) T-1489-97 Wetston J. (F.C.T.D.)

An adjudicative tribunal such as the Appeal Panel enjoys confidentiality with respect to its deliberative process.

(10/9/98) Veterans Review and Appeal Board #6273212

The claimant appealed the decision of an Entitlement Review panel concerning the effective date of an award for additional pension for children. The Entitlement Appeal panel after examining the case cancelled the additional pension. The Advocate argued that under section 29 of the Veterans Review and Appeal Board Act the Entitlement Appeal panel must confine itself to the issue of the retroactivity of the effective date. The Board however found that the appeal contemplated by subsection 29(1) was a quasi-judicial appeal which invested the tribunal with the right to judge the matter de novo. The phrase “decision being appealed” simply means the decision taken by the Review panel and not a particular aspect of it. The Entitlement Appeal panel could therefore review all elements of the decision being appealed.

(18/11/91) Veterans Appeal Board #VAB/VE-6463/2P

The appellant appealed in an effort to have his three-fifths pension increased to full entitlement. The Board found that where the Entitlement Board had not had access to a "recent and relevant report" unfavourable to the appellant, the matter should be referred back to the Entitlement Board in order to determine if a previous increase from one-fifth to three-fifths had been warranted.

(02/8/91) Veterans Appeal Board #VAB/VQ-1622

The appellant sought an increased assessment for a temporary period following surgery for lumbar disc disease. The Board found that the Canadian Pension Commission might have erred in its assessment and referred the case back to the CPC pursuant to paragraph 9(2)(b) of the Veterans Appeal Board Act [now 29(1)(b) of the VRAB Act].

(28/11/89) Veterans Appeal Board #VAB/VQ-995

The appellant had been assessed at 15% for pes planus without the benefit of a pension medical. He appealed and the Assessment Board reduced the assessment to 10%. He then appealed the Assessment Board's decision, still with no pension medical examination having been done. The Appeal Board referred the matter back to the Canadian Pension Commission under paragraph 9(2)(b) of the Veterans Appeal Board Act [now 29(1)(b) of the VRAB Act] for further investigation -- by way of a pension medical examination -- and reconsideration.

(10/1/90) Veterans Appeal Board #VAB/E-2827

A matter of retroactivity was referred back to the Canadian Pension Commission under paragraph 9(2)(c) of the Veterans Appeal Board Act [now 29(1)(c) of the VRAB Act] because the matter had not been dealt with as part of the Entitlement Board decision under appeal in this case.

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Section 31 (Decision of majority)

Rivard v. Canada (Attorney General), 2001 FCT 704

The privative clause found in the former Veterans Appeal Board Act entitled that Board to deference. A similar clause is now found in s. 31 of the present Act. I conclude that the Court is to defer to a decision of the VRAB, other than one concerning jurisdiction of the Board, unless it is patently unreasonable.

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Section 32 (Reconsideration of decisions, Board may exercise powers, Other sections applicable)

Newman v. Canada (Attorney General), 2014 FCA 218

Section 32 of the Veterans Review and Appeal Board Act deals with the reconsideration of an Appeal panel decision. It permits an Appeal panel to accept new evidence and requires the Appeal panel, whether or not new evidence is accepted, to reconsider its initial decision de novo in respect of any errors of law and fact alleged in the reconsideration application. A reconsideration decision by an Appeal panel is not reasonable if its initial decision was based on an error of law or fact that should have been corrected on reconsideration and was not.

McAllister v. Canada (Attorney General), 2014 FC 991

Section 32 of the Veterans Review and Appeal Board Act permits reconsideration of “final and binding” decisions when an error of fact or law has been revealed or when new evidence has come forward from which an applicant should be allowed to benefit. Reconsiderations are not meant to provide an opportunity to reargue a case already determined by the Board; there must be a justifiable reason for reopening a final and binding decision.

Moreau v. Veterans Review and Appeal Board, 2013 FC 168

A new letter from a physician which was more general, less affirmative and consequently of less probative value than previous evidence was not new evidence that would permit a reconsideration under section 32 of the Veterans Review and Appeal Board Act.

Gilbert v. Canada (Attorney General), 2012 FC 1112

The Veterans Review and Appeal Board Act specifically contemplates that Appeal Panels may receive new evidence: see, for example, sections 32(1), 38, 39(a) and 111. It was, therefore, unreasonable for the Appeal Panel to refuse to “to take jurisdiction” over a medical report prepared after a Review Panel had heard the claim.

Cossette v. Canada (Attorney General), 2011 FC 416

The physician's letter was filed as additional information in reply to the appeal panel's finding son the insufficiency of the reasons and the vagueness of the report. This additional information could not have been filed before the applicant learned of the appeal panel's criticism of his expert. It was therefore unreasonable to find that the letter filed in support of the application for reconsideration did not meet the due diligence test in MacKay v. Canada (Attorney General), (1997) 129 F.T.R. 286.

It was also unreasonable for the appeal panel sitting in reconsideration to find that this evidence did not meet the relevance test in MacKay, above. This letter provided the precision sought that was essential to a determinative issue, as the refusal to award the benefit sought was based on insufficient evidence establishing the link between the military service and the aggravation of the applicant's disability.

Arial v. Canada (Attorney General), 2010 FC 184

MacKay v. Canada (Attorney General), (1997) 129 F.T.R. 286, Justice Teitelbaum adopted the test developed by the Supreme Court in Palmer and Palmer v. The Queen, [1980], 1 S.C.R. 759 which states that to be admissible by the appeal panel, the new evidence submitted by an appellant must be, among other things, “such that if believed it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result.” The new evidence submitted by the applicants in this case would not have affected the result of application. This depended solely on the interpretation of the Pension Act and the evidence submitted had nothing to do with the determination of the issue in the case.

Armstrong v. Canada (Attorney General), 2010 FC 91

Section 31 (probably intended to refer to section 32) of the Veterans Review and Appeal Board Act, as opposed to section 111 which deals with the jurisdiction it inherited from earlier boards, does not require new evidence to support a decision to reconsider.

MacDonald v. Canada (Attorney General), 2009 FC 1254

Subsection 32(1) of the Veterans Review and Appeal Board Act provides that an appeal panel may reconsider a decision made by it under subsection 29(1). If the Applicant requests the reconsideration, they have the onus of persuading the panel that there are grounds to reconsider the case.

Hunt v. Canada (Attorney General), 2009 FC 1218

The Board decided that the Applicant had not acted with due diligence. She knew or ought to have known that medical evidence on causation was necessary and had an opportunity to produce this evidence at her de novo appeal hearing before the Board. She stated that she did not produce the evidence because she felt the application was strong enough without it and that the evidence met the Medical Guideline's causation requirements. On reconsideration, the Board found that she could have produced the physician's letter at the entitlement appeal stage but chose not to until the reconsideration hearing and therefore she had not acted with due diligence. The Board's decision to refuse to reconsider the case was reasonable.

The Board also held that the evidence from a physician employed by National Defence was not credible as it was not reasonably capable of belief as the evidence was not supported by the documentary evidence. The Board stated that it was difficult to reconcile the findings of the on-going medical reports that did not reference the Applicant's condition with the physician's statement that she would have, on several occasions from 1982 to the present day, been symptomatic with her condition. The Board found that the physician's opinion did not accord with the prevailing medical wisdom on the matter. The Board held that, while the physician was credible, his opinion was not as it appeared to be based on the Applicant's self-reporting and was not consistent with other evidence, including the objective medical evidence. The Board then determined that the physician's evidence, when considered with the other evidence, did not provide a credible opinion on causation - the decisive issue in the matter - and therefore, the new evidence could not reasonably have affected the results. The Board's decision was reasonable.

Anderson v. Canada (Attorney General), 2009 FC 1122

Viva voce evidence was not permitted in the context of a request for reconsideration.

The Applicant did not contest that no explanation for the delay in seeking his physician's medical evidence linking the osteoarthritis to the service related injury was given to the Board. It was not the time to provide such explanation. This is an essential criteria, for the admission of the evidence, that cannot simply be ignored. It concerns the filing of evidence supporting a causal link and not the existence of prior evidence of osteoarthritis in the file. Having considered the wording of the physician's letter, it was not unreasonable for the Board to conclude that this evidence had little probative weight and was not persuasive.

Boisvert v. Canada (Attorney General), 2009 FC 735

Neither the Pension Act nor the Veterans Review and Appeal Board Act provides for any restrictions or time limits for filing an application for review or reconsideration with the Board or an appeal before it. The Board therefore has jurisdiction to hear such actions regardless of when the facts occurred and when the most recent decision was made.

Bullock v. Canada (Attorney General), 2008 FC 1117

In its decision not to re-consider, the Board made reference to a letter from the applicant as the only piece of new documentation provided in support of his application. In the letter, the applicant sought the Board's re-consideration of its prior decisions on the basis of an alleged error of law, namely the violation of section 32 of the Crown Liability and Proceedings Act. The Federal Court found the CLPA had no application in this case. The applicant had not alleged that an error was made with respect to any finding of fact and no other “new evidence” was provided. Accordingly, the applicant failed to meet the requirements of the first step in the reconsideration application process provided for under section 32 of the VRAB Act.

Rioux v. Canada (Attorney General), 2008 FC 991

The Federal Court dismissed the judicial review application because the evidence did not meet the test for new evidence on various grounds but stated it was open to the applicant to apply again for pension entitlement should the evidence available to him warrant such application.

Chief Pensions Advocate v. Canada (Attorney General), 2006 FC 1317 affirmed by Chief Pensions Advocate v. Canada (Attorney General), 2007 FCA 298

The issue before the Federal Court was whether the tribunal could consider the principle of due diligence in deciding whether to exercise its discretion to reconsider an appeal decision under subsections 32 and 111 of the Veterans Review and Appeal Board Act. The Court answered the question in the affirmative subject to the provision that the discretion must be exercised in a manner that conforms with the broad purpose of the Act and respects the intent and meaning of sections 3 and 39 of the Act. Due diligence should not be given disproportionate weight.

MacGregor v. Canada (Attorney General), Court File 06-T-62, 30 June 2006

The Federal Court found that the applicant was not permitted to proceed in two different forums — the Board and the Federal Court — at the same time. To proceed with a request for reconsideration by the Board and at the same time a judicial review by the Court would be prejudicial to the respondent and an abuse of process.

Veterans Review and Appeal Board Interpretation I-1 1 February 2005

New evidence submitted to the Board upon an application for reconsideration of an appeal decision would generally be subject to the requirement of due diligence, as well as to the other criteria by which evidence is assessed to determine if it is in fact new evidence within the meaning of the reconsideration provisions in the Veterans Review and Appeal Board Act. This means that applicants seeking a reconsideration based on new evidence should provide an explanation as to why the evidence could not have been presented at an earlier proceeding in the case.

Cormier v. Canada (Attorney General), 2006 FC 118

It is correct that subsection 18.1(3) of the Federal Courts Act, R.S.C. 1985, c. F-7, allows the Court on an application for judicial review to set aside a decision and to refer the matter back for determination in accordance with such directions as the Court considers appropriate. The jurisprudence shows that on occasion the Court has remitted applications back to decision-makers with specific directions that, in effect, direct a specific decision. However, the jurisprudence cautions that this remedy should only be granted in extraordinary circumstances. Madam Justice Reed, in Ali v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 73, at paragraphs 17 and 18, found the following factors to be relevant to the consideration of whether specific directions respecting a decision should be issued:

• (i) whether the evidence on the record is so conclusive that there is only one possible conclusion;
• (ii) whether the sole issue to be decided is a pure question of law which will be dispositive of the case;
• (iii) whether such question of law is based on uncontroverted evidence and accepted facts; and
• (iv) whether there is a factual issue which involves conflicting evidence which is central to the claim.

Nolan v. Canada (Attorney General), 2005 FC 1305

The claimant injured his left ankle during a tour of duty. He received a pension for a chronic left ankle sprain. Subsequently he lost three toes on his right foot from a lawnmower accident at his home. He claimed a pension for the right foot injury as consequential to the pensioned left foot condition. The Board denied the consequential claim. The claimant applied for a reconsideration and introduced an additional letter from his physician. The Board ruled that the additional letter did not qualify as new evidence and denied a reconsideration because the claimant failed to present new evidence to show that the previous decision was in error. The Federal Court dismissed the judicial review application. The Board had applied the proper test. The test was not contrary to the Veterans Review and Appeal Board Act and was consistent with good agency management. A less restrictive test would seriously undermine principle of finality and would be contrary to the legislation. The decision states:

When an applicant is ready to proceed with an appeal hearing, the issues on appeal should be reasonably clear. An applicant and his or her representative should be prepared to use the appeal hearing as their last opportunity to raise all potential arguments and avenues of appeal. It would be a rare case where, after reading the appeal decision, a dissatisfied applicant could not think of some additional information or evidence or slightly new variation of the argument in order to try to resurrect what has turned out to be an unsuccessful argument on appeal. Performing a reconsideration every time any form of evidence is offered subsequent to the release of a final and binding appeal decision does not respect the principle of finality of decisions, or promote the efficient use of a tribunal's resources.

Rouselle v. Canada (Attorney General), 2005 FC 330

“In any case, the Palmer criteria are not cumulative: the evidence can be inadmissible because of the failure to meet one criterion. In Caswell, supra, Noël J. states at paragraph 22 that when an applicant does not adduce clear and convincing evidence when it is available, the burden is on the applicant to establish that there are important reasons to adduce this evidence later on . . .

Like the decision in Caswell, it is my opinion that the applicant is out of time to request that his file be reopened, failing a convincing explanation regarding the fact that it took him more than ten years to ask for a review. The VRAB's determination to the effect that these documents do not amount to new evidence is therefore reasonable.”

Caswell v. Canada (Attorney General), 2004 FC 1364

The claimant had applied for a disability pension based on a 1988 shoulder injury. The Board ruled that the claimant's shoulder pain was not attributable to the 1988 incident. Several years later, a witness wrote a letter detailing the circumstances of the injury. The claimant took the letter to a doctor who wrote a report stating that it was reasonably likely that his ongoing shoulder problems were caused by the 1988 incident. The Board found that the claimed new evidence did not meet the test for new evidence to justify a reconsideration of the case. The claimant applied for a judicial review of the Board's decision. The judicial review application was dismissed. There was no clear and convincing evidence on the record adequately explaining why the claimant was unable to obtain the letter at an earlier date. Sections 3 and 39 of the Act urge the Board, inter alia, to take a liberal and purposive approach to veterans' claims and to make every reasonable inference in favour of the applicant. However, this only applies to evidence that is admissible before the tribunal.

Thériault v. Canada (Attorney General), 2004 FC 978

The Board found new evidence to be credible but not relevant under the four part test for new evidence presented to support a reconsideration application. It was found to have committed an error in not explaining in sufficient detail why it did not consider the evidence to be relevant.

Percy v. Canada (Attorney General), 2004 FC 729

The Act does not provide a specific test regarding new evidence. Mr. Justice Teitelbaum considered this issue in Mackay v. Canada (Attorney General) (1997), 129 F.T.R. 286 and applied the test for new evidence set out in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759. Specifically, Justice Teitelbaum referred, at paragraph 26, to the following principles:

• (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced earlier;
• (2) The evidence must be relevant in the sense that it bears upon a decisive or a potentially decisive issue;
• (3) The evidence must be credible in the sense that it is reasonably capable of belief;
• (4) The evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced, be expected to have affected the result.

This was the test used by the Board. In this case, the evidence was not new, was not relevant, and could not have changed the result on any issue and the Board made no error in so finding. Moreover, there was no indication that the information contained therein could not have been available at the time of the claimant's initial appeal to the appeal panel of the Board. Thus, the Board was correct in concluding that the new evidence was not relevant and could not have led to a different conclusion.

Furlong v. Canada (Attorney General), 2003 FCT 731

The Board did not err in giving little weight to the psychiatrist's evidence which was based entirely on a history of the event provided by the claimant eight years after it occurred. It had not erred in rejecting the other evidence because although that evidence supported the occurrence of the event the individuals who produced it were not qualified to provide expert opinions of its effect on the claimant. There was therefore no new evidence that would justify a reconsideration of the case.

The claimant alleged that the reconsideration panel of the Board was biased because it was the same panel that had sat on the appeal. He held that the claimant could not raise that argument for the first time at the judicial review but rather should have raised it before the Board. He also found that section 32 of the Veterans Review and Appeal Board Act directed that reconsiderations were to be conducted by the same panel that issued the appeal decision.

Gagné v. Attorney General of Canada and Veterans Review and Appeal Board, 2002 FCT 711

The Minister of Veterans Affairs had decided that the claimant was not entitled to receive a pension as the surviving spouse of a veteran. A review panel of the Board affirmed the decision, as did the Appeal panel. The claimant requested an oral hearing for the Board to reconsider its decision. The Board declined, but invited written argument. Madame Justice Tremblay-Lamer allowed the application. The matter was referred back to a newly constituted panel of the Board. She held that the claimant was entitled to present oral arguments before the Board interpreting section 3 of the Veterans Review and Appeal Board Regulations as the relevant provision which required an oral hearing if the claimant requested it.

MacDonald v. Attorney General of Canada (11 March 1999) T-1081-98 Cullen J. (F.C.T.D.)

Section 39 of the Veterans Review and Appeal Board Act requires that when new and credible evidence is presented during a reconsideration proceeding, the Board has a duty to consider and weigh the evidence, drawing every reasonable inference in the applicant's favour. This 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.

MacKay v. Attorney General of Canada (1997), 129 F.T.R. 286

On judicial review the Board's decision was set aside and remitted for reconsideration. A medical report qualified as new evidence for the purposes of Section 111 of the Veterans Review and Appeal Board Act. The applicant had cited a test for new evidence from Palmer and Palmer v. The Queen (1979), 106 D.L.R. (3d) (S.C.C.) 212 at 224. The following principles emerged:

• (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1965] 1 C.C.C. 142, 46 D.L.R. (2d) 372, [1964] S.C.R. 484;
• (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
• (3) the evidence must be credible in the sense that it is reasonably capable of belief, and
• (4) it must be such that if believed it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result.

The report met the criteria for new evidence enumerated in Palmer like relevance, credibility, effectiveness and the interests of justice. Although Palmer was a criminal law case, its analysis is pertinent to the case at bar. The Board also violated procedural fairness by failing to notify the applicant that he could request an oral hearing. The Board should have looked to potential errors of fact or law in deciding whether to reconsider its decision. However, it was not for the Court to overturn the earlier decision, so the matter was remitted.

Silver v. Attorney General of Canada (19 April, 1996), Richard, J., T-700-95 (F.C.T.D.)

Where the appellant had not been given the opportunity to appear before the Board on a reconsideration and there was no indication that the appellant wished to have the case decided without the necessity of personal appearance, the decision of the Board was made in excess of its jurisdiction and was therefore quashed.

(14/11/89) Veterans Appeal Board #VAB/VE-2360-R/3P

A decision of the Veterans Appeal Board was amended and the previous Entitlement Board decision confirmed in a case where fraudulent evidence had been introduced before the Appeal Panel.

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Section 34 (Compassionate Awards)

100002312943 (Re), 2015 CanLII 91924 (CA VRAB)

The Board reviewed the wording of section 34 and concluded that since a compassionate award is a discretionary award that is intended to provide assistance on a compassionate basis, it is essential that the applicant show that he or she requires assistance because he/she is in a state of need. The Board also considered the comments of the Wood Committee Report which indicated that evidence of special circumstances should be present in a case, because economic or financial need alone is not sufficient grounds for approving an application for compassionate award.

Accordingly, there should be evidence of medical or financial need that exceeds the applicant's ability to pay. There should also be some evidence of expenses in relation to necessities such as medication, food, housing or medical treatment that the applicant is unable to satisfy.

The Board also found that the applicant’s need for financial assistance should be related to the medical same condition, or the same set of circumstances for which statutory entitlement had been previously refused. This conclusion is supported by a reading of subsection 34(4) which limits the amount of the compassionate award to the amount to which the applicant would have been entitled to receive if the earlier claim for entitlement had not been refused. The Board also found that the compassionate award is not intended to be a general assistance program or to replace other social programs or benefits that are generally available to Canadians. This is evident from the fact that a compassionate award is limited to veterans and contingent upon denial of an award or legislative benefit that is restricted to veterans, and is under the VRAB’s exclusive jurisdiction. Accordingly, there should be some connection between the circumstances have resulted in the applicant’s financial need, and service in the Forces or the RCMP.

The following questions are relevant when in determining whether a compassionate award is merited under subsection 34(3):

• Is the applicant in need?
• Does income exceed expenses?
• What is the nature of the identified expenses?
• Is the applicant’s need related to a medical condition or a claim for entitlement, that had been previously denied?
• What proportion of the applicant’s expenses is specifically related to the need for medications, treatments and assistive devices associated with the previously claimed medical condition?
• Is there a relationship between the Applicant's service and the medical condition, or any other circumstances which are contributing to the applicant’s need?
• Does the applicant’s income deficit or financial need arise from expenses relating to the necessities of life, medications and other aids for the Applicant?

The Board found that the circumstances of the applicant’s case did not establish that he was in need as required by section 34 of the Act. The reason that the applicant had requested a compassionate award was to have money to purchase a motor scooter for greater mobility, and a more reliable car, and to save money for future expenses. The Board said that while these were items that the applicant desired, they could not be characterized as needs. Although the applicant had not provided all of the financial information that is required by the Board under section 34, he did provide enough information to show that he had a monthly surplus after his expenses. There was also no evidence of any exceptional medical expenses related to his neck condition or other health problems. The Board was therefore unable to grant a compassionate award under section 34.

(16/3/00) Veterans Review and Appeal Board #CA2

The applicant was the adult child of a veteran. She suffers from a psychological condition that may have been caused by a dysfunctional family environment. The Board although it viewed her plight with sympathy could not find that the applicant was a dependent of the deceased veteran nor could it find any evidence of specially meritorious service. It therefore declined to make a compassionate award.

(4/8/99) Veterans Review and Appeal Board #CA1

The Board explained that its jurisdiction to make compassionate awards is triggered by circumstances on the part of the applicant which would invite a humanitarian, sympathetic or merciful response. Section 34 was not intended to be used by the Board to bestow discretionary awards solely in recognition of honourable service or as an acknowledgement of merit. Previous decisions have confirmed that the key element is the ground of need, distress or suffering. Therefore a detailed financial statement should be provided to the Board to show that the applicant is experiencing exceptional circumstances, distress or hardship which may warrant compassionate relief. The Board also questioned its jurisdiction to make a compassionate award to an applicant who did not meet the domicile requirements in section 65 of the Pension Act.

(15/5/97) Veterans Review and Appeal Board #/BFF

The Board declined a request for a compassionate award and in doing so stated that an award based strictly on financial grounds is not the intent of the section.

(27/10/95) Veterans Review and Appeal Board #/BFF

The appellant sought a compassionate award under section 34 for a lower leg amputation which stemmed from a motorcycle accident on the way home at night following special duties. The Board suggested it assessed Compassionate Awards under section 34 according to the applicant's financial status, the significance of the disability, whether the disability occurred while attempting to assist another person, avoidance of duplication of assistance, and other relevant factors making the case specially meritorious. In this case the Board had insufficient financial information and considered that the appellant had adapted to his disability and that his activities on the night in question were part and parcel of military life. It concluded the case was not specially meritorious and denied the award under section 34.

(20/10/95) Veterans Review and Appeal Board #VE-10833/BFF

The appellant's late husband had died from amyotrophic lateral sclerosis. All avenues of appeal having been exhausted, the appellant sought a compassionate award under section 34. The Board reviewed the principles that governed such awards: financial status, nature of disability, how it occurred, duplication of assistance. In this case it could find no evidence of financial need and while the late member's service had been honourable there were no circumstances that rendered the case specially meritorious.

(14/9/89) Veterans Appeal Board #VAB/E-3053/1P

The circumstances of the individual case must be specially meritorious not particularly his service...The nature of service is a consideration but by no means should it be used to turn down and award...The key to a compassionate award should be consideration of the elements of need, distress or suffering (physical, mental and financial hardship are identified as relevant factors).

(04/8/88) Veterans Appeal Board #VAB/E-680/1P

An award under section 24 [now section 34 of the VRAB Act] is conditional upon the applicant being "otherwise unqualified" to receive a pension under the Pension Act. In effect the section provides that until an applicant has exhausted the remedies available elsewhere in the Pension Act, a compassionate award cannot be considered. Section 24 was designed to give the Commission a discretion to make a compassionate award in cases where it is unable to grant a pension under another section and where there are specially meritorious circumstances....such circumstances do not mean, and may not necessarily include, meritorious service, but they are intended to include a state of need, as well as the fact that a normal award, though seemingly warranted, has been prevented because of some technical difficulty.

[1978] 7 Pension Review Board Reports 279

In determining whether an application for a compassionate award is specially meritorious, the element of service is not necessarily the only, or even the overriding condition. At the same time, the factors of pain, and suffering, handicap, and financial need, which are factors shared by many veterans, are not themselves sufficient to qualify an applicant under the section.

[1977] 7 Pension Review Board Reports 17

A Regular Force naval officer who had had an exceptional career with the Royal Canadian Navy in World War II drowned during a yachting trip. He was receiving a pension for asthma at 20% disability. The widow claimed his drowning was a direct result of the pensioned condition and that the week-end yacht trip constituted sports activity performed in the interests of the service within the meaning of paragraph 12(3)(a) [now 21(3)(a)] of the Pension Act. The Board rejected both claims. It did however authorize a compassionate award if financial need were demonstrated.

[1975] 4 Pension Review Board Reports 474

The Board wrote in its decision:

Where the widow is the applicant, it must first be established that the case of the deceased veteran is a specially meritorious one and then that the circumstances of the applicant warrant a compassionate award. . . The Board fully sympathizes with the applicant in her efforts to secure a tangible recognition of her late husband's outstanding contribution. . . However, an award under section 24 of the Pension Act (now section 34 of the Veterans Review and Appeal Board Act) is not per se a means for achieving recognition and . . . is not a proper avenue for a merit award. Awards granted under (the section) are compassionate awards and imply elements of need, distress or suffering.

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(21/3/13) Veterans Review and Appeal Board 1863727

The Applicant’s request for removal of his name from his decision was denied. In reaching this conclusion, the Board ruled that the open court principle applies to the Board’s hearings and to its decisions by virtue of subsection 36(2) of the Veterans Review and Appeal Board Act. The removal of the Applicant’s name from the decision would have required closure of the hearing itself under subsection 36(2) of the Act. However, the Panel received no submissions to show why closure would be necessary and would not be contrary to the public interest in the circumstances of this case.

Section 38 (Medical opinion, Notice of intention)

Canada (Attorney General) v. Ladouceur, 2011 FCA 247

Under section 38(1) of Veterans Review and Appeal Board Act, the Board may obtain independent medical advice and may require that a claimant undergo a medical examination. Before accepting as evidence any advice or report concerning the examination, the claimant has the right under subsection 38(2) to make submissions about its admissibility.

Phelan v. Canada (Attorney General), 2014 FC 56

Section 38 of the Veterans Review and Appeal Board Act permits the Board to require a medical opinion and to obtain independent medical advice. The Board does not have medical expertise and therefore must rely on the opinion of those qualified to diagnose a disability.

Gilbert v. Canada (Attorney General), 2012 FC 1112

The Veterans Review and Appeal Board Act specifically contemplates that Appeal Panels may receive new evidence: see, for example, sections 32(1), 38, 39(a) and 111. It was, therefore, unreasonable for the Appeal Panel to refuse to “to take jurisdiction” over a medical report prepared after a Review Panel had heard the claim.

Leroux v. Canada (Attorney General), 2012 FC 869

The medical evidence was not contradicted and the Board did not find it necessary to obtain additional medical evidence using section 38 of the Veterans Review and Appeal Board Act. Although the Board does not have an obligation to require additional evidence, it may do so when it has doubts as to the credibility of the evidence presented by an applicant.

Jarvis v. Canada (Attorney General), 2011 FC 944

Under section 38 of the VRAB Act, the Board may obtain independent medical advice. The provision permits the Board to seek medical advice; it does not obligate it to do so. In this case, three separate medical opinions failed to disclose anything beyond a speculative link between the disease of the Applicant and his exposure to chemicals. Thus, the Board did not act unfairly in failing to seek further medical advice.

Trainor v. Canada (Attorney General), 2011 FC 484

The Board has no particular expertise in medical matters. The weighing of evidence, including medical evidence, is reviewable by the Federal Court on a reasonableness standard.

Armstrong v. Canada (Attorney General), 2010 FC 91

There is no basis to assume that the Board itself has any medical expertise. Section 38 of its Act allows it to obtain its own medical evidence. This led Mr. Justice Nadon, as he then was, to conclude in Rivard v. Attorney General of Canada, 2001 FCT 704 that the Board has no inherent expertise in this area. Thus, the finding connecting a disability to a non-service hockey injury was outright speculation, and can be given no weight whatsoever. There was no conflicting medical evidence. There were no facts in the record to allow the Board to infer a causal connection between her hockey injury and the disability. If it had concern, it should have sought a further medical opinion.

Boisvert v. Canada (Attorney General), 2009 FC 735

The applicant argued that the Board had erred by rejecting the medical evidence adduced and by questioning the assessment of the orthopaedic surgeon, in the absence of any contradictory evidence. According to the applicant, the Board exceeded its jurisdiction by substituting its opinion for that of the physician even though none of its members had medical expertise and no second opinion was sought under the authority of section 38 of the Veterans Review and Appeal Board Act.

Section 39 of the Act does not exempt an applicant from the obligation to establish that his or her condition is directly attributable to his or her military service. Even if there is no contradictory evidence, the Board is not obliged to blindly accept the evidence adduced by the applicant if it considers that it is not credible or of little probative value. In that case, the Court must weigh the reasons given for rejecting the evidence submitted by the applicant and determine whether they are reasonable, having regard to the record as a whole.

Dumas v. Canada (Attorney General), 2006 FC 1533

This subsection stipulates that the Panel may obtain independent medical advice. The panel is under no obligation to seek independent medical advice. The Panel was satisfied that the applicant had no established the necessary causal link between his service and the claimed condition. In light of the circumstances and of the permissive nature of subsection 38(1) the panel had no obligation to seek an independent medical opinion.

Thériault v. Canada (Attorney General), 2006 FC 1070

The Board invoked its expertise and specialized knowledge of the various ailments pleaded before it. The Board stated that it had no knowledge of any study indicating that there was a higher rate of this ailment among members of the military. Nonetheless, the Board has no medical expertise and cannot disregard medical evidence by stating that it has special medical knowledge. Section 38 of the VRABA authorizes it to obtain the opinions of a qualified physician on any inconclusive medical question.

Cramb v. Canada (Attorney General), 2006 FC 638

The applicant submitted that the Board should have referred the applicant to another medical expert to provide further evidence. Subsection 38(1) of the Veterans Review and Appeal Board Act provides that the Board may obtain independent medical advice and may require the applicant to undergo any medical examination that the Board may direct. The Federal Court decision states that this statutory language is permissive, not mandatory. The Board is not obliged to obtain independent medical advice, and it is not under any duty to inform the applicant of which evidence the Board finds credible prior to rendering the Board's decision.

Macdonald v. Canada (Attorney General of Canada), 2003 FC 1263

The tribunal embarked upon forbidden territory making medical findings to discount uncontradicted credible evidence when it had no inherent medical expertise and had the ability to obtain and share independent medical evidence on points which troubled it.

Léonelli v. Canada (Attorney General), 2003 FC 1374

As Moar, supra, noted, the Board can refer to an independent medical expert (now pursuant to subsection 38(1)). What is more, also according to Moar, it has a duty to do so if it intends to contradict evidence before it which has so far not been contradicted. If it does not do so, and that evidence is favourable to the applicant, under section 39 it is bound to accept it. Once again, not acting in this way constitutes an error of law.

Rivard v. Canada (Attorney General), 2001 FCT 704

The fact that section 38 of the VRABA allows the Board to seek medical advice on any medical matter suggests that the Board has no particular medical expertise. That was acknowledged by jurisprudence, beginning with Moar v. Canada (Attorney General) (1995), 103 F.T.R. 314 (T.D.). Mr. Justice Heald's conclusion in Moar, supra, was cited in several cases, in particular in Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (T.D.). MacKay J.'s comments at paragraphs 14 and 15 read:

Under section 38 of the Act, the Board may seek independent medical opinions regarding any matter before the Board. Mr. Justice Heald, in Moar v. Canada (Attorney General), (1995), 103 F.T.R. 314, at p. 316 commenting on a similar provision, s.10(3) of the former, and now repealed Veterans Appeal Board Act, and its significance for the deference to be accorded by the Court to the Board's decision, had this to say:

The issue in this case clearly involves medical matters. Section 10(3) of the Veterans Appeal Board Act empowers the Board to obtain independent medical opinions relating to any matter before the Board. On this basis I conclude that the Board is not to be afforded the deference usually given to tribunals of a specialized nature because of their particular expertise.

The substance of Justice Heald's analysis concerning the Board's medical expertise still applies; the existence still today of section 38 of the VRABA confirms that the Board does not have any specific medical expertise.

King v. Canada (Veterans Review and Appeal Board), 2001 FCT 535

“The position taken by the VRAB would also render meaningless section 38 of the Veterans Review and Appeal Board Act, which authorizes the Board to obtain independent medical advice in respect of the issues before it. The section also allows the Board to require an applicant to submit himself or herself to a medical examination directed by the Board. When the Board intends to exercise the power conferred upon it by section 38, it must notify an applicant of its intention to do so and allow the applicant an opportunity to argue the issue. If the position taken herein by the Board were correct, section 38 of the Veterans Review and Appeal Board Act would have to be considered as an example only of the broad powers given to the Board by section 14 of that Act. In my view, that cannot be the correct position.”

(26/8/99) Veterans Review and Appeal Board 6095762

The Board observed that if the assertion were true that Departmental Medical Advisors could not render independent opinions, the Bureau of Pensions Advocates and all its members would not be independent because they too are paid by the Department of Veterans Affairs.

(26/8/99) Veterans Review and Appeal Board 6095762

The Board found that the opinion of a physician employed by the Department of Veterans Affairs could constitute independent medical advice under section 38 of the Veterans Review and Appeal Board Act because the physician had not previously been involved in the case, had not provided medical services to the claimant or his family, had no personal interest in the matter and was under no pressure when he prepared his medical opinion.

The Board observed that if the assertion were true that Departmental Medical Advisors could not render independent opinions, the Bureau of Pensions Advocates and all its members would not be independent because they too are paid by the Department of Veterans Affairs.

(25/2/98) Veterans Review and Appeal Board 6008332

At issue in this case was the independence of a medical advisor with the Department of Veterans Affairs. The Board pointed out that a medical advisor was not an adjudicator. That the issue of the independence of a physician giving evidence was not the same as the bias of an adjudicator and that a departmental medical advisor could give independent medical advice to the Board under section 38 of the Veterans Review and Appeal Board Act if the following conditions were met: The physician had no prior involvement with the case; had no prior involvement with the claimant or his or her family; was disinterested in the outcome; and was not subject to any control, restriction or limitation in the exercise of his or her function.

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Section 39 (Rules of evidence)

Canada (Attorney General) v. Wannamaker, 2007 FCA 126 reversing Wannamaker v. Canada (Attorney General), 2006 FC 400

Section 39 of the Veterans Review and Appeal Board Act 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: Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133 (F.C.T.D.), Cundell v. Canada (Attorney General) (2000), 180 F.T.R. 193 (F.C.T.D).

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: MacDonald v. Canada (Attorney General) (1999), 164 F.T.R. 42 at paragraphs 22 and 29.

Evidence is credible if it is plausible, reliable and logically capable of proving the fact it is intended to prove.

The applicant first asserted his claim some 30 years after the injuries were alleged to have occurred. That is a factor that weakens the reliability of his evidence and therefore its credibility.

The applicant's evidence is contradicted by the contemporaneous medical records. Thus, this is not a situation that engages paragraph 39(b), which requires the Board to “accept any uncontradicted evidence” presented by the applicant that the Board considers “credible in the circumstances.”

The applicant's evidence was supported by current medical opinions. However, the Board found that evidence to be incapable of proving that the injuries occurred, because they are the opinions of persons who were not in a position to know whether or not the applicant's account of his injuries was correct. The Board's reasoning on this point is not unreasonable.

This was not a case in which the Board was required to give the benefit of the doubt, as mandated by paragraph 39(c). The only evidence of injury came from the applicant himself, either directly or indirectly through the medical opinions, and the Board found his evidence not to be reliable.

Comeau v. Canada (Attorney General), 2005 FC 1648 affirmed by Comeau v. Canada (Attorney General), 2007 FCA 68

The applicant served during peacetime. He was later diagnosed with cardiomyopathy. He applied for a disability pension. He argued that the condition was caused or aggravated by service because the military supplied cigarettes at a very low price, he was often subjected to high levels of stress, the navy provided daily rations of rum, he had no family history of cardiomyopathy, and he was not informed of critical health information upon release from the military. The Board's appeal panel held that his condition arose during service but was not caused by it. He applied for a judicial review. The application was allowed and the matter was referred to a different appeal panel for re-hearing.

The second appeal panel found that the medical reports relied upon by the applicant were inconclusive as to the date of the onset of his cardiomyopathy. The physician opined that the evidence did not prove the onset of cardiomyopathy in 1971, but rather was "suggestive of this possibility". As such, this evidence was not so strong as to raise a reasonable doubt about whether there was a causal connection between the medical condition and the military service and therefore the Federal Court found that the Board had not committed a reviewable error.

Elliot v. Canada (Attorney General), 2003 FCA 298 affirming Elliot v. Canada, 2002 FCT 972

Although the medical evidence suggested it was possible that a mess hall meal had caused a permanent disability, it was reasonable and open to the Board to find that the evidence was insufficient to “raise a doubt”. The Federal Court of Appeal stated that one cannot use the presence of the diagnosis as a reason to infer the presence of an infection, and then use the presence of the infection to infer that it caused the appellant's disability. 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.

Hall v. Attorney General of Canada (22 June 1998) T-2267-97 Reed J. (F.C.T.D.) affirmed by Hall v. Attorney General of Canada (19 November 1999) A-539-98 (F.C.A.)

While the claimant correctly asserted that uncontradicted evidence by him should be accepted unless a lack of credibility finding is made, and that every reasonable inference should be drawn, and any reasonable doubt resolved in his favour, he still had the obligation to demonstrate that the medical difficulty from which he suffers arose out of or in connection with his military service; that is, the causal linkage must be established. The evidence supporting a causal linkage between the 1983-84 events and the later problem, however, was the claimant's own evidence and this evidence was not uncontradicted. It was contradicted by the 1984 documentary evidence: the Medical Statement that the claimant signed on discharge. That document stated that the claimant did not suffer an injury attributable to his military service during the relevant period. An often quoted principle used in evaluating evidence is that greater weight is generally given to statements made prior to a legal claim being made than to those made at the time of the claim, or in contemplation of the claim. The earlier statements will not likely have been framed with the subsequent claim in mind. It was not that the claimant's evidence was untrue, but the decision-makers below had the unenviable job of evaluating the claimant's 1995 evidence concerning the cause of the injury with the documentary evidence from 1984. They chose to rely on the latter and particularly the absence of any medical statement on discharge referring to the injury. That the doctor “feels” the current disability is “probably” the result of the 1984 injury was speculation.

The doctors who provided the evidence for the claimant did not have any first hand knowledge of the events; they were not treating the claimant in 1983-84, and had not even been doing so at the commencement of his complaints in 1987-8. They did not have any basis other that the claimant's recitation of events on which to base a conclusion as to the event that caused the injury. And the claimant's description of the 1983-84 event as constituting a cause of injury was contradicted by documentary evidence, signed by him in 1984. The Board therefore had not committed a reviewable error in denying pension entitlement. The Federal Court decision was affirmed by the Federal Court of Appeal.

Hunt v. The Minister of Veterans Affairs (20 March 1998) T-217-97 Muldoon J. (F.C.T.D.) affirmed by Hunt v. The Attorney General of Canada (18 October 1999) A-236-98 (F.C.A.)

Although section 39 of the Veteran's Review and Appeal Board Act requires that the Board accept uncontradicted evidence, this evidence must be credible. The claimant must prove the civil standard that on a balance of probabilities, with the bonus of having this evidence put in the best light possible, his disease was contracted while in the service. This civil standard must be read in concert with the entitling provision of section 21 of the Pension Act.

Walker v. Canada (Attorney General), 2019 FC 1020

The Board is mandated to assess the evidence submitted by a person seeking a disability award. The operation of the statutory scheme requires evidence. Section 39 of the Veterans Review and Appeal Board Act has been interpreted to mean that an applicant must submit sufficient credible evidence to show a causal link between his or her injury or disability and the period of military service.

Thompson v. Canada (Attorney General), 2019 FC 662

In this case, the lack of in-service audiograms, without more, could not reasonably negate credibility of the medical reports.

Everett v. Canada (Attorney General), 2019 FC 627

The Board reviewed a specialist report, and in order to assess the credibility of the report, the Board looked to eight factors, namely, whether the physician:

1. was an expert in the claimed condition;
2. provided unbiased evidence;
3. provided all aspects relating to the condition, including information that was helpful and not helpful to the claim;
4. stated when something was outside their area of expertise;
5. provided a detailed history of treatment of the condition;
6. had reviewed and commented on the contemporaneous medical report;
7. provided a full analysis explaining how the conclusion was reached; and
8. provided reference to any resources used in preparing the medical report.

Those eight factors to assess the credibility of medical reports emanate from the Federal Court’s jurisprudence.

Jeffrey v. Canada (Attorney General), 2019 FC 467

The Board is tasked with assessing the evidence submitted by a person seeking a disability award. The statutory scheme depends upon evidence. The ameliorative benefit of section 39 does not operate in an evidentiary vacuum. The operation of that provision requires evidence. Section 39 means that an applicant must submit sufficient credible evidence to show a causal link between his or her injury or disease and his or her time of military service.

Brown v. Canada (Attorney General), 2018 FC 976

Section 39 of the Veterans Review and Appeal Board Act does not relieve an applicant of the burden to supply credible evidence to support their claim. The Board has the discretion to find evidence to be not credible. In this case, it was reasonable for the Board to find the new medical evidence not credible and it explained why. In order to find the new medical reports to be credible, the Board looked to eight different factors, namely, whether the physician:

1. is an expert in the claimed condition;
2. provides unbiased evidence;
3. provides all aspects relating to the condition, including information that is helpful and not helpful to the claim;
4. states when something is outside their area of expertise;
5. provides a detailed history of treatment of the condition;
6. has reviewed and commented on the contemporaneous medical report;
7. provides a full analysis explaining how the conclusion was reached, and
8. provides reference to any resources used in preparing the medical report.

Hiscock v. Canada (Attorney General), 2018 FC 727

The applicant could not advance submissions based on section 39 of the Veterans Review and Appeal Board Act on the “evidence presented to it”, i.e., presented to the Board, without knowing what extrinsic evidence the Board considered. It cannot be that the Board alone not only determines what extrinsic post-hearing evidence it may consider, but also how and to what extent the presumptions created by section 39 may or may not apply, without input from the member or veteran before it. Such unilateral consideration and decision, occurring after and outside the hearing, does not conform with the substance of section 39’s evidentiary benefits conferred on veterans by Parliament. To conclude otherwise empties section 39 of important content intended to benefit members and veterans of the Canadian Armed Forces.

Jeffrey v. Canada (Attorney General), 2018 FC 117

The Board did not fail to give the applicant the benefit of the doubt as mandated by subsection 39(c) of the Act. The inferences the applicant said it ought to have drawn from the evidence were not always “reasonable” as required by subsection 39(a) while the evidence he sought to rely on was not always “uncontradicted” or found to be “credible” as required subsection 39(b).

Northrup v. Canada (Attorney General), 2017 FC 521

The Board must accept any uncontradicted evidence presented by the applicant that it considers to be credible. It may reject this evidence only if there is evidence to the contrary, or if it provides reasons.

Ryan v. Canada (Attorney General), 2016 FC 1246

While the legislative scheme provides various mechanisms that favour applicants, it does not provide them with carte blanche to the effect that any submission must automatically be accepted. Rather, evidence presented must be credible and reasonable (Weare v Canada (Attorney General), 1998 CanLII 8341 (FC)). Evidence is credible when “it is plausible, reliable and logically capable of proving the fact it is intended to prove” (Wannamaker v Canada (Attorney General), 2007 FCA 126). The burden of proof lies on applicants, who must submit sufficient credible evidence establishing, on a balance of probabilities, a causal link between their injury and their military service. The Board made no error when it discounted the medical opinions tendered by the applicant as not credible for entitlement purposes, as the opinions did not persuasively establish that two service-related incidents led to his claimed back condition, particularly in light of his post-discharge injuries. While taking no issue with the doctors’ qualifications, the Board wrote that:

[…] these medical opinions do not address or rule out other significant potential factors, such as the four Workers Compensation back injury claims sustained by the Appellant in the post-discharge period while employed at Canada Post. These injuries and claims were not addressed in the medical opinions and were not ruled out as possible factors in the development of the claimed condition.

Ouellet v. Canada (Attorney General), 2016 FC 608

The Board had accepted and found credible the circumstances of the case and all of the submitted evidence—specifically the findings of studies which confirmed an increased risk of sarcoidosis in certain circumstances, including those to which the applicant was exposed. The Board should have considered whether this permitted it to draw a reasonable inference that the applicant’s condition was the result of his military service. The Board should have weighed all of this evidence in making its finding. Instead, it simply dismissed the claim on the basis that because the cause of sarcoidosis was unknown, the information contained in the articles was speculative. The Board was required to take a holistic view of the evidence in the context of Section 39 of the Veterans Review and Appeal Board Act, but failed to do so, thereby rendering its decision unreasonable.

Starratt v. Canada (Attorney General), 2016 FC 528

In his letter, the doctor opined that the applicant’s “service related events most likely caused the deterioration” of his lower back. However, the doctor failed to consider other possible causes, such as other post-service jobs or natural degenerative conditions. The Board properly considered and applied section 39 of the Veterans Review and Appeal Board Act¸ but the Board could not overcome the gap in the medical evidence and find the necessary link between the applicant’s military injury and his current diagnosed condition of mechanical low back pain.

Sanders v. Canada (Attorney General), 2015 FC 556

Sections 3 and 39 of the Veterans Review and Appeal Board Act do not result in an automatic pension award on the basis of injury submissions. Even if section 39 requests that the evidence presented by the veteran be assessed under the “best light possible”, the Board may still find that the veteran is not entitled to a pension when he has not proven, on a balance of probabilities, the facts required to establish entitlement. Speculative evidence does not trigger the application of subsection 39(b) of the Act.

Stevenson v. Canada (Attorney General), 2014 FC 1130

The applicant stated that he did not report his stress because he wanted to preserve his career prospects. He submitted that the Board had to believe him because of section 39 of the Veterans Review and Appeal Board Act. However, that was not the case, as the Board only had to accept evidence that it found credible. Evidence is credible if it is reliable (Wannamaker v Canada (Attorney General), 2007 FCA at paragraph 6). Although not reporting stress could potentially had been explained by the applicant’s alleged desire not to be seen as a complainer, it would have been a very dangerous secret to keep given his alleged belief that it was contributing to his heart problems. The Board did not act unreasonably by dismissing his evidence on this issue as unreliable. In the absence of credible evidence which can raise any doubt or from which a favourable inference can be drawn, section 39 is not engaged.

Balderstone v. Canada (Attorney General), 2014 FC 942

The Board found that there was no evidence to support an inference that medical negligence on the part of the military caused or permanently aggravated the claimed teeth condition. There was no error on the part of the Board that could justify the intervention of the Federal Court.

Beaudoin v. Canada (Attorney General), 2014 FC 536

Evidence is credible if it is plausible. It is up to the Board to examine the plausibility of any medical evidence submitted to it.

Hawryluk v. Canada (Attorney General), 2014 FC 305

The applicant maintained that he began serving in the Canadian Merchant Navy in 1946. Official records showed that he began his service in 1947, too late to be entitled to the benefits he was claiming. Some records contained obvious errors. The applicant argued that the government’s records were unreliable and that he should have been given the benefit of the doubt. The Federal Court was not convinced that the records were so unreliable that the Board was unreasonable in its reliance on them. The critical question was the start date of the applicant’s period of service. There was simply no documentary evidence showing that the applicant served prior to 1947.

Nicol v. Canada (Attorney General), T-1923 -12, 29 November 2013

The applicant submitted that the Board failed to draw every reasonable inference in his favour and resolve any doubt, in the weighing of evidence presented by him. He submitted that he never complained of medical issues regarding his feet problems as it was not the culture of being a leader and a paratrooper. The Board did not accept this submission as the applicant’s medical record was not silent as he had other complaints recorded in his service records. The Board’s assessment of the medical evidence was reasonable. The applicant did complain and report injuries during his military service despite the culture of not doing so. It is logical to conclude that where the applicant had a history of raising complaints of other medical injuries and maladies arising during military service, if he had had a foot injury or complaint from military service he would have complained about it as he had in the past.

Quann v. Canada (Attorney General), 2013 FC 460

The Federal Court ruled that the Board had confused the ideas of “credibility of evidence” and “sufficiency of evidence”. The Court concluded that the applicant’s doctors’ reports had not been contradicted and that the reports acknowledge that it was “possible” that military service may have been the cause of the applicant’s injury. The Court stated that the Armed Forces could have examined the applicant’s knee and medical records and produced their own evidence, but they did not do so. The Court therefore ruled that a doubt had been raised and that it had to be resolved in favour of the applicant under paragraph 39(c) of the Veterans Review and Appeal Board Act.

Gilbert v. Canada (Attorney General), 2012 FC 1112

The Veterans Review and Appeal Board Act specifically contemplates that Appeal Panels may receive new evidence: see, for example, sections 32(1), 38, 39(a) and 111. It was, therefore, unreasonable for the Appeal Panel to refuse to “to take jurisdiction” over a medical report prepared after a Review Panel had heard the claim.

Leroux v. Canada (Attorney General), 2012 FC 869

The rules of Section 39 do not relieve the applicant of his burden of proof nor do they oblige the Board to blindly accept any evidence, even when uncontradicted. Section 39 clearly states that the Board must accept any evidence that “it considers to be credible”. The Court of Appeal summarized the impact and limits of section 39 in Wannamaker when it stated:

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: Wood v. Canada (Attorney General), (2001), 199 F.T.R. 133 (F.C.T.D.), Cundell v. Canada (Attorney General), (2000), 180 F.T.R. 193 (F.C.T.D).

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: MacDonald v. Canada (Attorney General), (1999), 164 F.T.R. Evidence is credible if it is plausible, reliable and logically capable of proving the fact it is intended to prove.

The assessment the Board makes of the “credibility” of the medical evidence must be reasonable and take into consideration the guidelines provided at section 2 of the Pension Act and section 3 of the Veterans Review and Appeal Board Act.

Lapalme v. Canada (Attorney General), 2012 FC 820

The applicant did not present any tangible evidence to establish the amount of the child's living expenses. Even though the Board must accept any uncontradicted evidence that it considers credible, the fact of the matter is that it is quite difficult for the Board to presume the costs incurred by the applicant in the absence of invoices to corroborate the applicant’s declaration.

Di Domenici v. Canada (Attorney General), 2012 FC 303

The applicant was submitting that an entry in her late husband’s military health record was evidence of the worsening of his flat feet during his service. The applicant was reading the entry as stating that the veteran’s physical health rating was lowered because of the worsening of his flat feet.

If there had been no evidence of the veteran’s rating prior to this note, that interpretation would have been available. Moreover, because it favoured the veteran, it would have been accepted as the correct interpretation in keeping with section 39 of the Veterans Review and Appeal Board Act, which provides that the Board is to “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.”

However, there was evidence of the rating of the veteran prior to the note. The discharge papers stated that on enlistment the veteran’s rating was lowered and that was because of his flat feet. The applicant submitted that this entry must have been in error. The Federal Court could not agree.

First, the document was an official armed forces report and accordingly was a record that was admissible for the truth of its contents in accordance with subsection 26(1) of the Canada Evidence Act, as an entry in a book kept in any office or department of the Government of Canada. Second, there was no evidence to suggest that the veteran was not given a lowered rating at the time of enlistment. In fact, given his flat feet, the suggested prior “Excellent” rating would not have been likely or accurate. Common sense alone suggested that the best rating he could have obtained on enlistment given his flat feet was the second best rating as noted in the entry at issue.

Hynes C.D. v. Canada (Attorney General), 2012 FC 207

The applicant submitted that if the Board could not find beyond a reasonable doubt that non service factors caused his Lumbar Disc Disease (LDD), then it must grant him the full entitlement. He argued that since the medical literature indicated that 5% of cases of LDD are caused solely by trauma, the Board was required to give him the benefit of the doubt that he fell within that 5%. Even if there was only a one in a million chance that the LDD was caused solely by trauma, the applicant argued, s. 39 required that he be given the benefit of the doubt raised by that one chance.

The applicant overstated the effect of s. 39 in this context. His argument would require the grant of full entitlement in any case where there was even a remote possibility that LDD was solely caused by trauma. Section 39 does not usurp the Board’s discretion to exercise its judgment as to causation. The Board was not required to accept the Advocate’s submission that in the absence of evidence to establish beyond all reasonable doubt that non service related factors had contributed to the disability it was required to find in favour of full pension entitlement.

Carnegie v. Canada (Attorney General), 2012 FC 93

While the Applicant relies on John Doe v Canada (Attorney General), 2004 FC 451 to suggest that a standard of proof lower than the balance of probabilities could be applied, this is no longer the prevailing approach. In its decision in Wannamaker v Canada (Attorney General), 2007 FCA 126, the Federal Court of Appeal stated that while section 39 ensured evidence is “considered in the best light possible” it does not relieve the applicant of the burden of “proving on a balance of probabilities the facts required to establish entitlement to a pension.” Moreover, the Board is not required to automatically accept all evidence presented by the applicant.

McLean v. Canada (Attorney General), 2011 FC 1047

Section 39 of the VRAB Act sets out rules designed to favour an applicant with respect to his or her burden of proof. However, the effect of this provision is not to compel the Board to accept all of the allegations made by a member. Rather, the applicant must establish, on a balance of probabilities, that he or she suffers from a disability and that the disability arose out of or was directly connected with his or her military service. According to Justice Sharlow in Wannamaker v Canada (Attorney General), 2007 FCA 126, the purpose of s. 39 is to ensure that the evidence in support of an application is viewed in the best possible light, but it does not relieve the applicant of the burden of proving entitlement. Nor does it operate to require the Board to accept all the evidence presented by an applicant. For instance, if the Board finds certain evidence not to be credible, it need not accept it, even if it is uncontradicted.

McLean v. Canada (Attorney General), 2011 FC 453

Sections 3 and 39 of the Veterans Review and Appeal Board Act have been interpreted to mean that a person seeking benefit must submit sufficient evidence to establish a causal link between his or her injury or disability and his or her period of service. These statutory provisions do not relieve an applicant for a disability pension under the Act from the obligation of adducing sufficient probative evidence to meet the requirements for the award of a disability pension.

Since the Board focussed exclusively on one physician's report and did not refer to the other medical reports the Board effectively disregarded the evidence that was before it. The Board should have discussed these reports and give reasons for rejecting them, if that is what it intended to do. The application for judicial review was allowed.

Jarvis v. Canada (Attorney General), 2011 FC 944

The Federal Court decision makes the following points about medical evidence:

A specialist's medical opinion was not conclusive with regard to the relation between toxic exposure and the Applicant's medical condition. The opinion was based on what the Applicant told the physician about his medical history and exposure. here was no information on the details or nature of the alleged exposure. The opinion was based on a diagnosis of exclusion and was not based on any scientific research. It was therefore not unreasonable for the Board to find the opinion did not establish causation.

As noted by a number of judges considering questions of entitlement to a military pension or disability award, the lower standard provided for in s.39 of the VRAB Act does not relieve an applicant of the ultimate burden of proof.

With regard to a HAZMAT Officer's evidence, it was unsupported by any independent expert evidence and further the listing of chemicals to which the applicant was exposed does not establish that exposure to the chemicals caused or contributed to his claimed condition.

Simply because a medical doctor and a panel of the Board in another case found a link between the specific chemical exposure of one individual and his medical condition does not mean that this is a precedent that must be followed in every case. The opinion of a physician is applicable only to the individual to whom it is given.

The fact that an application is made under the CFMVRC Act rather than the Pension Act has little effect on a judicial review. This is because, whether the application is for a pension or for a disability award, the applicable provisions of the VRAB Act (specifically s. 39) are equally applicable. Moreover the statutory requirement that the injury or disease be a consequence of or aggravated by the military service is the same under both pieces of legislation. As a result, although most of the jurisprudence relates to matters that were commenced under the Pension Act, it is instructive.

Deschênes v. Canada (Attorney General), 2011 FC 449

The respondent is entirely correct when he argues that the Tribunal may consult sources other than those in the record. However, with respect, it cannot use this evidence to contradict a medical report by a specialist as it did in this case, without giving the applicant the opportunity to make additional submissions or, if he so desired, to supplement the medical evidence he had already submitted.

Bradley v. Canada (Attorney General), 2011 FC 309

Sections 3 and 39 of the Act establish the overall intent of Parliament to recognize that those who serve this country in the military are deserving of special care and attention when they are injured or killed. Section 39 establishes one of the ways by which the objective of s. 3 is fulfilled. It is more than “a tie goes to the runner” provision. These provisions give context against which to apply the standard of review. This is legislation designed to protect and respect the members of the Armed Forces. However, s. 39 does not negate the burden of proof imposed on the Applicant to prove his case.

Acreman v. Canada (Attorney General), 2010 FC 1331

The Board did not accept a specialist's conclusion, noting that he did not provide any medical literature for his opinion on the connection between stress and the claimed condition of scleroderma. The Board also rejected the medical articles submitted by the Applicant, finding that they were not sufficiently credible medical sources to conclude that stress played a role in the onset and continuance of the applicant's disability. One of the medical articles was from the Annals of Oncology (which appears to be a reputable publication by Oxford), focussing on the topic of stress and scleroderma.

Given that section 3 of the Act requires the provisions be “liberally construed and interpreted” and section 39 requires the Board draw every reasonable inference in favour of the Applicant, accept any uncontradicted evidence presented to it by the Applicant that it considers credible in the circumstances, and resolve in favour of the Applicant any doubt, in weighing of evidence, the Board has to properly scrutinize the credibility of the journal articles and provide cogent reason for rejecting the medical literature.

Lunn v. Canada (Veterans Affairs), 2010 FC 122

The concessions provided by section 39 of the Act do not assist the Applicant. He simply did not demonstrate to the Board that, on a balance of probabilities, his present hearing loss can in any way be attributable to what occurred during his time in the service. The relevant provisions of the Act do not create a pension scheme based upon membership in the Canadian Forces. The legislation requires a causal connection between the injury and the performance of military service. This means that the Board is required by Parliament to consider the circumstances of the injury and to assess the strength of the causal connection between the injury and the Applicant's military services.

Lebrasseur v. Canada (Attorney General), 2010 FC 98

While it is right that the Board is entitled to make credibility findings and need not accept all of the evidence tendered to it, its calling in question of the medical reports submitted by the applicant on the basis that he was the source of the health professionals' conclusions is unjustified. It is not enough to say that the reports in question are based on a story told by the applicant because that does not make them any less credible if that story is true. The Board did not make any findings as to the applicant's credibility and failed to justify its decision to discount the medical reports. The Board's reasoning is particularly flawed given the nature of the Applicant's disability.

Unlike a wound or injury which a physician can simply inspect, diagnosing the causes of a disability such as the applicant's – anxiety and depression – is simply not possible unless the health professional speaks to the patient; he has little to rely on but the patient's words. If the Board suspects that the patient's perception of past events is inexact, it must say so, and explain why.

The Board concluded that the evidence is ambiguous. According to the Federal Court, it is precisely the kind of case to which paragraph 39(c) of the Veterans Review and Appeal Board Act, which provides that “the Board shall … 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” applies. The evidence, in the Board's view, left room for doubt; that doubt must have been resolved in favour of the Applicant; it was not.

Armstrong v. Canada (Attorney General), 2010 FC 91

As Mr. Justice MacGuigan, speaking for the Federal Court of Appeal, noted in Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171, [1989] F.C.J. No. 505 (QL):

The common law has long recognized the difference between reasonable inference and pure conjecture. Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, at 45, 144 L.T. 194, at 202, (H.L.):

"The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof...". M

Hunt v. Canada (Attorney General), 2009 FC 1218

The Applicant argued that a physician's evidence should have been found to be credible as he was a doctor employed by National Defence. However, the Federal Court noted that the Board did not find the physician not credible; they found his opinion not credible.

Zielke v. Canada (Attorney General), 2009 FC 1183

The Applicant suffered a left shoulder injury while walking to his residence. Whether the Applicant was on-duty at the time of this injury is a crucial factual finding in the decision under review. The Board reviewed evidence showing the Applicant was off-duty when he fell, such as two memoranda from 1980, one stating the Applicant fell while returning home “from duty” and the other stating the Applicant suffered a fall “at his residence”. Although Sections 3 and 39 of the VRAB Act shift the balance in favour of pension applicants due to the moral debt that Canada owes to them, the Court in Lenzen v. Canada (Attorney General), 2008 FC 520 held the provisions have been interpreted as obliging applicants to adduce sufficient probative evidence to establish a causal link between the injury and his or her period of service (Lenzen at para. 38).

On the facts of this case, the Board reasonably concluded the applicant had not done so. In addition to Rivard v. Canada (Attorney General), 2001 FCT 704, the Court in MacKay v. Canada, (1997), 129 F.T.R. 286 held that s. 39 requires VRAB Reconsideration Panels to accept new evidence if it is uncontradicted and credible (MacKay at paras. 28, 29). The Court held the Panel's finding that new medical evidence was “speculative” did not amount to a negative credibility finding; therefore, the Panel committed an error when it did not give its reasons for deciding the evidence was “speculative” (MacKay at para. 30).

Anderson v. Canada (Attorney General), 2009 FC 1122

A medical opinion stated that it “certainly is possible” that there was a relationship between a service injury and later osteoarthritis. However, sections 3 and 39 of the VRAB Act do not relieve the applicant of his burden of establishing a causal link between the injury and the condition under review. Although the Court does not agree with the respondent's view that this must be done on a balance of probability, the applicant still has to establish more than a mere possibility. Having very carefully considered the medical opinion, the Court could not conclude that it was unreasonable to find that the applicant had done nothing more than raise a mere possibility of such link.

Patterson v. Canada (Attorney General), 2009 FC 801

The Board denied an application for MS as consequential to a one-fifth pension for PTSD. The applicant served in the forces from 1981 to 2003. He began suffering serious medical symptoms in 1998 and was diagnosed with MS in 2000. He was not diagnosed with PTSD until 2002, but his medical experts indicated that he had suffered PTSD prior to his diagnosis and that the stress precipitated his MS. The Board found the applicant had failed to establish a consequential relationship between PTSD and MS.

In its decision the Board referenced a passage from the VAC Guidelines that denied any clear connection between stress and arterial sclerosis. This was an error, as the Board had based its decision on a condition other than the MS suffered by the plaintiff. The Board was also heavily influenced by the dates of diagnoses, despite uncontradicted medical evidence that the applicant had suffered PTSD before being diagnosed with it and before suffering MS. The Board had made no findings that any of the evidence offered by the applicant was not credible.

Boisvert v. Canada (Attorney General), 2009 FC 735

Section 39 of the Veterans Review and Appeal Board Act, which generally gives the applicant or appellant the benefit of the doubt, has occasioned much debate over the nature of the evidence that will allow the applicant or appellant to succeed. The decisions of the Federal Court and of the Court of Appeal instruct that the effect of this provision is not to compel the Board to accept all of the allegations made by a veteran. Under the terms of paragraph 21(2)(a), the applicant must establish, on the standard of proof applicable in civil matters (a balance of probabilities), that he or she suffers from a disability and that this disability arose out of or was directly connected with his or her military service. It is the member who must prove causation between the alleged incident and the condition cited.

Under the terms of paragraph 21(2)(a) of the Pension Act, the applicant first had to establish on a balance of probabilities that his condition constituted a disability.

Counsel for the applicant argued that the Board had erred by rejecting the medical evidence adduced and by questioning the assessment of the orthopaedic surgeon, in the absence of any contradictory evidence. According to the applicant, the Board exceeded its jurisdiction by substituting its opinion for that of the physician even though none of its members had medical expertise and no second opinion was sought under the authority of section 38 of the Veterans Review and Appeal Board Act.

Section 39 of the Act does not exempt an applicant from the obligation to establish that his or her condition is directly attributable to his or her military service. Even if there is no contradictory evidence, the Board is not obliged to blindly accept the evidence adduced by the applicant if it considers that it is not credible or of little probative value. In that case, the Court must weigh the reasons given for rejecting the evidence submitted by the applicant and determine whether they are reasonable, having regard to the record as a whole.

The Board could assign little credibility to the opinions of the osteopath and the physiatrist, in that those specialists relied essentially on what the applicant had told them to formulate their opinions. The two specialists limited themselves to speculating on the possible connection between the duties performed by the applicant and his physical condition.

The osteopath opined that it was “very highly probable” that the duties performed by the applicant could have engendered his neck pain, while the physiatrist concluded that the applicant's symptomatic cervical diskarthrosis was “probably caused” by playing hockey and that his occupational activities “may have contributed to the aggravation” of his condition. In view of the case law and the record as a whole, the Board's reasoning on this point was not unreasonable: Canada (Attorney General) v. Wannamaker, 2007 FCA 126; Nisbet v. Attorney General of Canada, 2004 FC 1106.

The orthopaedic surgeon in contrast to the osteopath and the physiatrist, expresses a firm opinion devoid of speculation. Not only does he state in his first letter that the degree of the applicant's diskarthrosis goes well beyond what could be expected in a patient of his age, but he adds: “It is clear that this condition, which is very unusual for a man of his age, was engendered in a proportion of 5/5 by his activities in the Canadian Armed Forces.”

McLean v. Canada (Attorney General), 2009 FC 626

The Board denied a claim because that there was no report on injuries to support the applicant's position that he suffered a serious injury to his knee due to service-related activities and that there was no continuity of complaints from the late 1970s to 2005. The Federal Court found that the Board's conclusions were unreasonable. The Board made no adverse credibility findings, yet discounted critical evidence as if it had. The Board ignored the type of day-to-day work performed by the applicant and the policing conditions in rural Saskatchewan in the 1970s and discounted evidence of the car accident injury to his knee. Consequently, the Board's conclusion was contrary to the Veterans Review and Appeal Board Act, s. 39(c). To the extent that the Board weighed the absence of a formal report of injury against evidence of letters attesting to the crash, of trauma to the knee and of the RCMP culture against taking time off in a small detachment, the Board did not apply and did not consider the application of s. 39(b) of the Act. The Board's findings with respect to the medical opinion were also unreasonable.

Gillis v. Canada (Attorney General), 2009 FC 504

The Board upheld the Department's assessment of bilateral knee disabilities and the applicant applied for a judicial review. The judicial review application was allowed. The Board had assumed that a contradiction existed between two medical reports, where one did not necessarily exist. A careful reading of the evidence indicated that both reports supported a higher disability assessment. The Board had insufficiently considered portions of the report that it favoured. That was an error that warranted the Court's intervention.

Rioux v. Canada (Attorney General), 2008 FC 991

The claimant argued that there was a causal connection between his condition of lymphoma and exposure to radiation and various toxins during his naval service. He presented a letter from his oncologist stating that she thought it was “very possible” that the claimant's non-Hodgkins lymphoma may have developed because of work-related carcinogenic exposure. The Board denied the claim.

The Federal Court decision observed that the evidence raised only a mere possibility that military service was a cause of the claimed condition. At best, the opinion was equivocal and cautious. Similar expert opinions using equivocal wording had been rejected as credible evidence in previous judicial reviews. 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. The judicial review application was therefore dismissed.

MacDonald v. Canada (Attorney General), 2008 FC 796

It is beyond dispute that the Board is not required to accept a medical opinion that is speculative. Nor is it required to accept a medical opinion where the medical specialist is not in a position to know whether the patient's account of the injury is correct: Canada (Attorney General) v. Wannamaker; 2007 FCA 126, Goldsworthy v. Canada (Attorney General), 2008 FC 380; Comeau v. Canada (Attorney General) (2005), 284 F.T.R. 107 (F.C.) aff'd. (2007), 360 N.R. 323 (F.C.A.).

Section 39 of the VRAB Act requires the Board, when weighing the evidence, to resolve any doubt in favour of the applicant. However, it 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 it require the Board to accept all evidence presented by the applicant if it finds that evidence not to be credible, even if it is not contradicted. Evidence is credible if it is plausible, reliable and logically capable of proving the fact it is intended to prove: Wannamaker.

Clark v. Canada (Veterans Review and Appeal Board), 2009 FC 298

The applicant for a disability pension in respect of a back disability. After describing numerous non-service related injuries, the Board found that one of them, a 1995 injury sustained while the applicant was shovelling snow, to be “the most significant injury.” The Board had also considered that, given the time involved, the 2005 injury was a manifestation of the applicant's low back pathology, rather than a cause of the pathology. The applicant was arguing that his back injuries did not result from the 1995 shovelling incident, but instead occurred in 2005; he submitted that the 1995 incident was resolved in short order as evidenced by a Medical Inspection Room report of 1995 that stated “PT. Is doing well - no recent pain - progressed to a full unreadable routine.”

The Federal Court ruled that no reasonable, favourable inference could have been drawn by the Board that failed to draw. The fact that the applicant was from time to time symptom-free was anecdotal evidence that would not, by itself, support an inference that contradicted the objective evidence that the Board relied upon.

Murphy v. Canada (Attorney General), 2007 FC 905

With regard to the issue of whether or not the Board was required to refer to each piece of evidence individually in its decisions, the Federal Court provided the following:

[13] A tribunal is presumed to have considered all of the material before it and is not obliged to refer to each and every document. As stated by Justice Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 at para. 16 (QL):

A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

[14] However, this presumption may be rebutted and a tribunal's failure to deal with evidence very specific to the claim may lead a reviewing court to a conclusion that the tribunal made an erroneous finding of fact “without regard to the evidence”.

The more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. (Cepeda-Gutierrez, at para. 17)

MacDonald v. Canada (Attorney General), 2007 FC 809

The Board erred by failing to address the fact that medical records for a relevant period were missing from the official record. The military, not the applicant, was responsible for the maintenance of the personal records, including the medical records. The applicant should not be penalized for a gap in the medical history that arises from their unavailability. Although the Board focussed on the incompleteness of the record, it erred by failing to acknowledge the reasons for that state of affairs.

Dumas v. Canada (Attorney General), 2006 FC 1533

[29] The applicant submits that the Panel erred in law in its treatment of the evidence as it contravened its special obligation to give the applicant “the benefit of the doubt”, pursuant to sections 3 and 39 of the Act.

[30] In Martel v. Canada (Attorney General) 2004 FC 1287, [2004] F.C.J. No. 1559 (QL), Justice James Russell adopts the reasoning of Justice John Evans in Metcalfe v. Canada (Attorney General) [1999] F.C.J. No. 22 (QL), in concluding that the effect of section 39 is to give claimants the benefit of any reasonable doubt:

While paragraphs (a), (b) and (c) of this section [39] may not create a reverse onus by requiring the respondent to establish that a veteran's injury or medical condition was not attributable to military service, they go a considerable way in this direction by requiring, in effect, that claimants be given the benefit of any reasonable doubt. [emphasis added]

[31] Crucially, in the present matter the Panel had no doubt with regard to the evidence provided by Dr. Yang and contained in the documentary evidence furnished by the applicant. It clearly and unequivocally found this evidence not to be credible. Evidently, in the absence of doubt, there was no obligation on the Panel pursuant to sections 3 and 39 of the Act to make any such determinations in favour of the applicant. (Cramb, above, at para. 29). (see note below regarding the Cramb decision)

Sonier v. Canada (Attorney General), 2007 FC 1278

The decision about a psychiatric claim states that it is well established in the jurisprudence that the tribunal could refer to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) because it is authorized by the law in departmental guidelines. Expert reports must be weighed in light of the relevant guidelines. It is up to the claimant to demonstrate that his case corresponds to the guidelines and to ask his medical expert to respond in the opinion to the requirements of the guidelines. The Board did not violate section 39 of the Veterans Review and Appeal Board Act in weighing the expert evidence in light of the guidelines.

Thériault v. Canada (Attorney General), 2006 FC 1070

The Federal Court ruled that the Board had committed a reviewable error as follows:

In this case, the Board did not receive additional medical evidence (under section 38 of the Veterans Review and Appeal Board Act): rather, it appears instead to have conducted a cursory research into Mr. Thériault's ailment by referring to a medical dictionary (the Merck Manual) found on the Internet. Without having obtained medical opinions to the contrary, the Board could not substitute its opinion for that of Dr. Nagpal (the physician providing medical evidence on behalf of the applicant) or question his opinion. Thus, the Board did not comply with sections 3 and 39 of the VRABA (Veterans Review and Appeal Board Act).

Cramb v. Canada (Attorney General), 2006 FC 638

The Federal Court decided that the Board, having recognized its obligation under sections 3 an 39 of the Veterans Review and Appeal Board Act, could reject an opinion about a claimed condition on the grounds that it did not accord with the Table of Disabilities, the Entitlement Eligibility Guidelines and the medical consensus as described in a medical text.

As well the Board could not resolve in favour of the applicant any doubt it had in weighing the evidence because the applicant's psychological report stating that he suffered from PTSD was not credible, and the Board implicitly found that it had no doubt in this regard.

Moar v. Canada (Attorney General), 2006 FC 610

The applicant served in the Canadian Forces from 1961 to 1988. He suffered from asthma which he claimed was caused or aggravated by exposure to fuels that produced toxic fumes. The record included no medical literature that exposure to the fuels caused asthma. One medical opinion was not based on the facts of this case. Another was too vague to be accepted as credible. It therefore was not patently unreasonable for the Board to conclude that there was no more than a mere possibility that the applicant's condition was caused or aggravated by the exposures during his service.

Bremner v. Canada (Attorney General), 2006 FC 96

Evidence is not "contradicted" unless there is inconsistent physical evidence or a conflicting opinion which is properly assessed in accordance with the requirements of the Act to be clearly more credible.

Youden v. Canada (Attorney General), 2005 FC 1696

The Board was obliged to examine the medical evidence to establish whether the applicant had established a case, and resolve any doubt in favour of the applicant. It was not clear from the Boards' decision that it had applied this statutory burden of proof. Therefore the board had erred. The application was allowed and the matter remitted back to the Board for redetermination.

Currie v. Canada (Attorney General), 2005 FC 1512

The applicant claimed a disability pension for tinnitus from noise exposure during Regular Force service between 1948 and 1973. The diagnosis of tinnitus was not made until some 30 years after his service had ended. The claim was supported by a brief letter from a family physician. The Federal Court judicial review decision found that the Board did not err in rejecting or giving little weight to the medical evidence. Although based on the physicians' experience, the letter was nevertheless non-specific medical evidence. Similarly a Tinnitus Report presented as evidence to the Board spoke only in generalities and did not fulfill the requirement for a credible opinion specific to the case at hand.

Garrammone v. Canada (Attorney General), 2004 FC 1553

In reviewing assessment decisions under section 35 of the Act and the Table of Disabilities, the Board was found to be able to cast doubt on the credibility of a physician's opinion about the extent of a disability insofar as that opinion was largely based on facts that were medically unverifiable or directly derived from impressions communicated by the applicant during the sole consultation he had with the physician. The Board may assign limited probative value to specific evidence when the evidence as a whole tends to affirm the contrary.

Caswell v. Canada (Attorney General), 2004 FC 1364

Sections 3 and 39 of the Act urge the Board, inter alia, to take a liberal and purposive approach to veterans' claims and to make every reasonable inference in favour of the applicant. However, this only applies to evidence that is admissible before the tribunal.

Martel v. Canada (Attorney General), 2004 FC 1287

The effect of s. 39 of the Act is to give claimants the benefit of any reasonable doubt.

The Board relied on some medical evidence in deciding the claimant was entitled only to a partial pension for a knee disability. The medical evidence relied on by the Board did not address the central issue in the case. In fact it predated the relevant injury. There was other evidence favourable to the claimant which did address the central issue. The Board committed an error under section 39 of the Veterans Review and Appeal Board Act when it relied on the unfavourable evidence without providing sufficient reasons for its decision or without having contradictory evidence that addressed the central issue in the case.

Nisbet v. Canada (Attorney General), 2004 FC 1106

The applicant suffered injuries while playing hockey for his RCMP detachment's team. He had also been involved in two off-duty motor vehicle accidents. The medical opinion provided by his doctor was based on subjective information provided by the applicant, and did not provide any specific medical information relating the claimed conditions to the RCMP service. It also failed to address the impact of the motor vehicle accidents on the conditions.

The Board was entitled to reject uncontradicted medical evidence in support of the causal link. It had given a reasonable explanation for its rejection of the doctor's evidence.

Bradley v. Canada (Attorney General), 2004 FC 996

The claimant argued that the Board had not followed section 39 of the Veterans Review and Appeal Board Act, which required it to resolve any doubt in his favour, and had failed to observe procedural fairness by relying on portions of the medical evidence, while ignoring others.

The Federal Court dismissed the claimant's application. The Board did not breach section 39 of the Veterans Review and Appeal Board Act. Only submissions and assertions supported by credible evidence had to be accepted. The Board found much of the evidence to not be credible and provided its reasons for rejecting the medical evidence. It was open to the Board to prefer the objective medical evidence from the time of the applicant's accident to that of the opinions given by several doctors years later.

Schut v. Attorney General of Canada, 2003 FC 1323

The Applicant argued that all he needed to do in this case was to raise a doubt. If such a doubt can be raised, he contended, then s. 39 of the Veterans Review and Appeal Board Act would dictate that a finding must be made in the Applicant's favour. Mr. Justice Russel wrote:

“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.”

Furlong v. Canada (Attorney General), 2003 FCT 731

The Board did not err in giving little weight to the psychiatrist's evidence which was based entirely on a history of the event provided by the claimant eight years after it occurred.

Bourgeois v. Attorney General of Canada (23 May 2003) T-86-02 Gauthier J

Notwithstanding the duty to favourably interpret the circumstances and the evidence as foreseen in section 39 of the Veterans Review and Appeal Board Act, the claimant was nevertheless obliged to produce evidence establishing a causal link between the aggravation he claims and his military service and the Board cannot presume such a link to exist.

Whitehead v. Canada (Attorney General), 2003 FCT 75

It is not sufficient merely to mention the evidence put forth by the appellant and to state that the Act requires that every reasonable inference in favour of the applicant be drawn from it. The Board must either draw those inferences or give clear reasons why it does not find them to be reasonable.

Woo v. Attorney General of Canada, 2002 FCT 1233

The Board was permitted to reject a physician's opinion because it lacked a valid and complete history.

Kripps v. Attorney General of Canada (17 May 2002) T-870-01 2002 FCT 575 Pinard J.

“It is therefore clear that the VRAB has a duty to examine any new and credible evidence of the applicant in accordance with the latter provisions. However, recent jurisprudence indicates that the VRAB may reject evidence submitted by the applicant if there exists contradictory evidence, or the Board provides reasons for its rejection of the evidence bearing on the credibility and reasonableness of the evidence being rejected.

Shmyr v. Attorney General of Canada (6 October 2000) T-405-98 Teitelbaum J. (F.C.T.D.)

The Board was entitled to find the medical evidence not credible based on the fact that the history relied on by the medical evaluators was provided entirely by the claimant. The statutory presumptions in favour of a claimant did not mean that all evidence in support of his claim was automatically accepted. The evidence had to be credible and reasonable, and the causal link was required between the accident and the injuries.

MacDonald v. Attorney General of Canada (11 March 1999) T-1081-98 Cullen J. (F.C.T.D.)

. . . . section 39 of the Veterans Review and Appeal Board Act . . . requires that when new and credible evidence is presented during a reconsideration proceeding, the Board has a duty to consider and weigh the evidence, drawing every reasonable inference in the applicant's favour. This 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 . . . .

Metcalfe v. Her Majesty the Queen (6 January, 1999) T-1136-98 Evans J. (F.C.T.D.)

While paragraphs (a), (b) and (c) of this section may not create a reverse onus by requiring the respondent to establish that a veteran's injury or medical condition was not attributable to military service, they go a considerable way in this direction by requiring, in effect, that claimants be given the benefit of any reasonable doubt. The applicant's explanation for his failure to seek medical attention earlier seems quite plausible, and the Board did not dispute it.

MacNeill v. Canada (4 August 1998) T-2222-97 Nadon J. (F.C.T.D.)

Sections 3 and 39 of the Veterans Review and Appeal Board Act do not require the Board to accept all evidence presented by the applicant. Only uncontradicted evidence which is credible must be statutorily accepted.

Silver v. Attorney General of Canada (1996), 112 F.T.R. 292

It is incumbent on the Board to give clear reasons demonstrating a rational connection between the statutory provisions, the evidence presented and the conclusion reached. It is not sufficient merely to mention the evidence put forth by the appellant and to state that the Act requires that every reasonable inference in favour of the applicant be drawn from it. The Board must either draw those inferences or give clear reasons why it does not find them to be reasonable.

Tonner v. Canada (1995), 94 F.T.R. 314

Sections 3 and 10 of the Act (now 3 and 39 of the Veterans Review and Appeal Board Act) do not mean that whatever submission is made by a veteran must automatically be accepted by the members of the Board. The evidence must be credible and must be reasonable. Even if other Boards, either the Veterans Appeal Board, or Entitlement Boards or Commissions allowed other claims for the same condition, this fact in no way binds any other Board or Commission. Each case must be decided on its own merits. The medical evidence for each individual is different and the "combat" circumstances are different. It would be pure speculation to conclude that the claimant's disease was the result of his Active Force service. No reviewable error had been made.

Minister of Pension and National Insurance v. Greer (1958) 2 WPAR 957

The decision states that the tribunal must determine whether upon reliable evidence a reasonable doubt exists as to whether there is a relevant connection between the disability and service. If so, the applicant is to be given the benefit of that doubt. However, this did not remove the onus from the applicant to produce reliable evidence upon which such a doubt could be raised.

Irving v. The Minister of Pensions (1944) 2 WPAR 410

“The doubt must of course be a reasonable doubt and not a strained or fanciful acceptance of remote possibilities.”

(15/5/03) Veterans Review and Appeal Board 590200

The applicant in 1997 reported a history of working with chain saws after his release from the Armed Forces, a fact that was confirmed during the applicant's testimony before the review panel. Since the applicant was subject to this acoustic trauma a few years after his military service was completed, but long before this hearing loss was detected, the fact that the physician who provided evidence does not seem to have been aware of another possible triggering factor for the applicant's hearing loss contradicts the claim that the doctor's opinions explained how it could be concluded that part of the hearing loss could be linked to the alleged acoustic trauma from service in Canada during World War II. The Board considered that the medical support provided by the physician was due to the fact that he was only aware of a selected part of the whole of the evidence available and that his findings could have been quite different if he had taken into account all the relevant elements of the available evidence. There was therefore no new evidence that would permit a reconsideration of the case.

(07/1/03) Veterans Review and Appeal Board 513636

The Appellant attempted to link non-traumatic RCMP duties to a degenerative condition of the spine which, according to the departmental medical guidelines, is associated with traumatic injuries and constitutional factors and occurs in a very high percentage of the population. In Veterans Review and Appeal Board Decision # 6671744 (25 October 1999) the Board set out its expectations with regard to “medical” evidence in light of its duty to weigh or assess the credibility of the evidence it admits. There are three important factors: The qualifications of the expert providing the evidence; the accuracy and completeness of the information the expert has access to in order to render the opinion; the persuasiveness of the expert's conclusion which is determined by whether or not the conclusion flows logically from the facts; the degree to which the expert explored all the relevant factors and whether or not the opinion could be accepted as reflecting the general medical consensus as established through scientific study of the relevant condition.

Ultimately the Board members, not the physician, must decide if the provisions of the Pension Act permit an award and the extent of the award. The Board defers to medical experts in medical matters including diagnosis and the identifying of causation factors. But in applying the physician's findings of fact and conclusions regarding the causation of a claimed condition to the wording of the Pension Act, the Board cannot simply delegate its decision to the physician expert but rather must weigh the evidence carefully in view of the legislative provisions to determine the ultimate pension entitlement decision. Physicians as individuals bring varying degrees of both conscientious medical investigation and patient advocacy to their report writing. Questions that confront the Board in almost every case are: What factors has the physician considered in making a diagnosis and attribution of cause? And, to what degree is he or she operating as an advocate for a patient as opposed to an independent medical expert?

(10/12/02) Veterans Review and Appeal Board 472666

In assessing the reliability of an expert opinion, one of the most relevant factors in the assessment of credibility and reliability of the evidence, is the factual basis for the opinion. When the facts relied upon by the medical expert in rendering an opinion come directly from the interested party, and the facts relied upon by the medical expert are inconsistent with those accepted by the finder of fact, the evidence may be given less weight.

(15/1/02) Veterans Review and Appeal Board 92163

In a post-traumatic stress disorder claim, the Board noted that an expert opinion could not establish the presence of a factual traumatic injury related to service.

(25/10/99) Veterans Review and Appeal Board V29412113

The panel set out its view of what would constitute a credible medical report: The facts or history are accurate and complete, that is, they are the same facts that are apparent from the other evidence. The conclusion makes sense in that it flows logically from the facts. The expert provides a reasonable explanation of how he or she has drawn the conclusion from the facts. In addition, the opinion, when presented as evidence, should be accompanied by a description of the expert's qualifications and any correspondence or communication by which the opinion was elicited.

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Section 40 (Expeditious proceedings)

MacDonald v. Canada (Attorney General), 2016 FC 186

Prior to the hearing before the Board, the applicant made a motion to exclude documents from the record. The Federal Court found that in light of the informal and expeditious nature of proceedings before the Board, it was entitled to refuse to exclude the materials.

Boisvert v. Canada (Attorney General), 2009 FC 735

Section 28 of the Veterans Review and Appeal Board Act provides that an appellant may make a written submission to the appeal panel or may appear before it, in person or by representative and at the appellant's own expense, to present documented evidence and oral arguments. That is fully in keeping with the requirements of procedural fairness, especially since the Armed Forces are not allowed to appear or to make written submissions before the appeal panel. It is true that the appellant, if he or she chooses to appear (in person or through counsel), must do so at his or her own expense. But that is not sufficient to invalidate section 28. The aim of the Act is to allow proceedings to be conducted as informally as possible and to permit applicants to make their arguments and to introduce new evidence without excessive formality.

Powell v. Canada (Attorney General), 2005 FC 433

Section 40 of the Veterans Review and Appeal Board Act states that all proceedings before the Board shall be dealt with as expeditiously and informally as the circumstances and considerations of fairness permit. That would suggest that Parliament’s intent in enacting the legislation was to create a mechanism to resolve issues arising from claims by individuals for benefits from the state in a fair, accessible and inexpensive manner.

Gillis v. Canada (Attorney General), 2004 FC 751

An assessment appeal panel did not err when in assessing a pensioned condition it excluded the effects of non-pensioned conditions which might be consequential to the pensioned condition but for which pension entitlement had, to that point, not been awarded.

Matchee v. Canada (Attorney General) (5 January 1999) T-1489-97 Wetston J. (F.C.T.D.)

An adjudicative tribunal such as the Appeal Panel enjoys confidentiality with respect to its deliberative process. The most reasonable inference arising from a circumstance of delay is that the decision was a difficult one for the tribunal to make. Delay in reaching and promulgating the decision does not constitute evidence of a reasonable apprehension of bias.

McTague v. Attorney General of Canada (30 September 1999) T-1515-98 Evans J. (F.C.T.D.)

Mr. Justice Evans wrote:

Also important is a concern that the administration of the statutory scheme not be encumbered with costly and protracted litigation. In public administration, quality cannot be considered in the abstract without regard to its attendant costs and the implications for the system of limited resources. Accordingly, even if a reviewing court might conceivably make a "better" decision than the tribunal under review, Parliament may be regarded as nonetheless preferring the benefits of finality and a relatively inexpensive and expeditious administrative decision-making process.

The decision refers to section 40 in the following terms: [...] a statutory scheme designed to enable claims to be decided with the minimum of formality, cost and delay [...].

At page 13 of the decision, Mr. Justice Evans wrote: The administration of programs of social benefits, especially after the first-level decision has been made, are commonly entrusted to independent, specialist administrative tribunals in an attempt to ensure a fair, accessible, inexpensive and expeditious determination of claims.

Indeed, section 40 of the Veterans Review and Appeal Board Act indicates that these considerations were taken into account when Parliament conferred on the specialist tribunals jurisdiction to determine whether an injured member of the Armed Forces is entitled to a pension.

(11/7/12) Veterans Review and Appeal Board 718315

In the event that generic medical information has been omitted from the Board’s Statement of Case, it can be introduced at the hearing, provided that the advocate is provided with an adjournment that will enable them to review the material. This is consistent with the Board’s obligations of procedural fairness under section 40 of the Veterans Review and Appeal Board Act.

(26/8/99) Veterans Review and Appeal Board 6095762

The Board stated that allowing cross-examination (of a physician) into its proceedings would have the effect of introducing an element of formalism that might be detrimental to the objectives of section 40 of the Veterans Review and Appeal Board Act.

(10/6/99) Veterans Review and Appeal Board 6701074

The Advocate had requested that the Board issue a subpoena to a physician of the Department of Veterans Affairs who had provided medical advice about the claimant's disability. The Board denied the request and stated that generally, given the informal nature of the proceedings, cross-examination of witnesses should not be allowed in the Board's proceedings. There may be some rare circumstances however where cross-examination may be warranted such as cases in which the evidence on a crucial issue is conflicting and the credibility of the witnesses must be assessed by observing their demeanour.

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Section 41 (Immunity)

Matchee v. Attorney General for Canada (5 January, 1999) T-1489-97 Wetston J. (F.C.T.D.)

An adjudicative tribunal such as the Appeal Panel enjoys confidentiality with respect to its deliberative process: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. The members of the Appeal Panel clearly exercise an adjudicative function and have security of tenure. The Board is specifically declared by Parliament to be an "independent tribunal" and its members have immunity for acts done in the performance of statutory duties: VRAB Act, ss. 4, 41.

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Section 111 (Reconsideration of decisions of predecessor bodies)

Chief Pensions Advocate v. Canada (Attorney General), 2006 FC 1317 affirmed by Chief Pensions Advocate v. Canada (Attorney General), 2007 FCA 298

The issue before the Federal Court was whether the tribunal could consider the principle of due diligence in deciding whether to exercise its discretion to reconsider an appeal decision under subsections 32 and 111 of the Veterans Review and Appeal Board Act. The Court answered the question in the affirmative subject to the provision that the discretion must be exercised in a manner that conforms with the broad purpose of the Act and respects the intent and meaning of sections 3 and 39 of the Act. Due diligence should not be given disproportionate weight.

Veterans Review and Appeal Board Interpretation I-1 1 February 2005

New evidence submitted to the Board upon an application for reconsideration of an appeal decision would generally be subject to the requirement of due diligence, as well as to the other criteria by which evidence is assessed to determine if it is in fact new evidence within the meaning of the reconsideration provisions in the Veterans Review and Appeal Board Act. This means that applicants seeking a reconsideration based on new evidence should provide an explanation as to why the evidence could not have been presented at an earlier proceeding in the case.

Gilbert v. Canada (Attorney General), 2012 FC 1112

The Veterans Review and Appeal Board Act specifically contemplates that Appeal Panels may receive new evidence: see, for example, sections 32(1), 38, 39(a) and 111. It was, therefore, unreasonable for the Appeal Panel to refuse to “to take jurisdiction” over a medical report prepared after a Review Panel had heard the claim.

Armstrong v. Canada (Attorney General), 2010 FC 91

Section 31 (probably intended to refer to section 32) of the Veterans Review and Appeal Board Act, as opposed to section 111 which deals with the jurisdiction it inherited from earlier boards, does not require new evidence to support a decision to reconsider.

Anderson v. Canada (Attorney General), 2009 FC 1122

The reconsideration was sought on the basis of new evidence pursuant to section 111 of the Veterans Review and Appeal Board Act. Viva voce evidence was not permitted in the context of a request for reconsideration.

The Board applied the four-prong test set out in MacKay v. Canada (Attorney General), (1997), 129 F.T.R. 286. The Board had no choice but to apply this test.

Caswell v. Canada (Attorney General), 2004 FC 1364

The claimant had applied for a disability pension based on a 1988 shoulder injury. The Board ruled that the claimant's shoulder pain was not attributable to the 1988 incident. Several years later, a witness wrote a letter detailing the circumstances of the injury. The claimant took the letter to a doctor who wrote a report stating that it was reasonably likely that his ongoing shoulder problems were caused by the 1988 incident.

The Board found that the claimed new evidence did not meet the test for new evidence to justify a reconsideration of the case. The claimant applied for a judicial review of the Board's decision. The judicial review application was dismissed. There was no clear and convincing evidence on the record adequately explaining why the claimant was unable to obtain the letter at an earlier date. Sections 3 and 39 of the Act urge the Board, inter alia, to take a liberal and purposive approach to veterans' claims and to make every reasonable inference in favour of the applicant. However, this only applies to evidence that is admissible before the tribunal.

Woo v. Attorney General of Canada (28 Nov. 2002) T-1688-01 2002 FCT 1233

This case involves the judicial review of a reconsideration decision of the VRAB. When conducting a reconsideration hearing under section 111 of the Act, the VRAB considers the new evidence along with the evidence that was obtained in the previous decision. Similarly, when conducting a judicial review application, the Court looks at the new evidence that was submitted in the reconsideration, and contrasts it with the evidence that had been obtained previously.

MacKay v. Attorney General of Canada (1997), 129 F.T.R. 286

On judicial review the Board's decision was set aside and remitted for reconsideration. The evidence raised a reasonable inference that the applicant's neck disease might have been attributable to service accident, and the Board committed a jurisdictional error in failing to draw from that evidence every reasonable inference in the applicant's favour. A surgeon's report qualified as new evidence for the purposes of Section 111 of the Veterans Review and Appeal Board Act. The applicant had cited a test for new evidence from Palmer and Palmer v. The Queen (1979), 106 D.L.R. (3d) (S.C.C.) 212 at 224. The following principles emerged:

• (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1965] 1 C.C.C. 142, 46 D.L.R. (2d) 372, [1964] S.C.R. 484;
• (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
• (3) the evidence must be credible in the sense that it is reasonably capable of belief, and
• (4) it must be such that if believed it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result.

The report met the criteria for new evidence enumerated in Palmer like relevance, credibility, effectiveness and the interests of justice. Although Palmer was a criminal law case, its analysis is pertinent to the case at bar.