Comeau v. Canada (Attorney General), (2005) 284 F.T.R. 107 (FC)

• Judge: Dawson, J.
• Court: Federal Court (Canada)
• Case Date: October 03, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 284 F.T.R. 107 (FC);2005 FC 1648

Comeau v. Can. (A.G.) (2005), 284 F.T.R. 107 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. DE.023

Donald E. Comeau (applicant) v. The Attorney General of Canada (respondent)

(T-805-05; 2005 FC 1648)

Indexed As: Comeau v. Canada (Attorney General)

Federal Court

Dawson, J.

December 6, 2005.

Summary:

Comeau applied for judicial review of a decision of the Veterans Review and Appeal Board that his medical condition of non-ischemic dilated cardiomyopathy was neither caused, nor aggravated, by his military service.

The Federal Court dismissed the application.

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - Comeau applied for judicial review of a decision of the Veterans Review and Appeal Board that his medical condition of non-ischemic dilated cardiomyopathy was neither caused, nor aggravated, by his military service - He argued that over the past 12 years, he had been required to attend numerous hearings, appeal hearings and judicial review hearings - A 12 year delay was an "incredible" delay which was unfair and contrary to natural justice - The Federal Court dismissed the application - Comeau had not adduced evidence of "prejudice of sufficient magnitude to impact on the fairness of the hearing" - While the court felt sympathy for Comeau, he had not established such unreasonable delay as would constitute a denial of procedural fairness - See paragraph 30.

Administrative Law - Topic 2159

Natural justice - Administrative decisions or findings - Effect of prior decisions - Comeau applied for judicial review of a decision of the Veterans Review and Appeal Board that his medical condition of non-ischemic dilated cardiomyopathy was neither caused, nor aggravated, by his military service - He argued that the Board breached the principles of natural justice when it found that Comeau's heart condition did not arise during his period of military service - Natural justice was breached because a differently constituted panel had previously reached the contrary conclusion, but its decision was set aside on judicial review - The Federal Court dismissed the application - Comeau failed to establish that the Board was bound by the findings made by another panel - Natural justice did not require that Comeau be given special notice that a different panel, operating with the benefit of additional evidence, might reach different findings of fact - See paragraph 31.

Armed Forces - Topic 8082

Pensions - Disability and survivor pensions - Entitlement - Evidence and proof (incl. standard of proof) - [See Armed Forces - Topic 8090 and Armed Forces - Topic 8093 ].

Armed Forces - Topic 8090

Pensions - Disability and survivor pensions - Entitlement - Statutory interpretation by board or tribunal - Comeau applied for judicial review of a decision of the Veterans Review and Appeal Board that his medical condition of non-ischemic dilated cardiomyopathy was neither caused, nor aggravated, by his military service - He argued that the Board did not properly apply ss. 3 and 39 of the Veterans Review and Appeal Board Act to resolve any doubt in his favour - The Federal Court dismissed the application - The Board did not err in failing to apply s. 39 because the medical opinion given by a cardiologist, which was inconclusive as to the date of the onset of his cardiomyopathy, was not sufficient to justify its application - The evidence was not so strong as to raise a reasonable doubt about whether there was a causal connection between Comeau's medical condition and his military service - See paragraphs 22 to 25.

Armed Forces - Topic 8093

Pensions - Disability and survivor pensions - Entitlement - Judicial review - Comeau applied for judicial review of a decision of the Veterans Review and Appeal Board that his medical condition of non-ischemic dilated cardiomyopathy was neither caused, nor aggravated, by his military service - The Board relied on the medical evidence from several cardiologists which was inconclusive as to the date of the onset of his condition - The Federal Court dismissed the application - The Board did not err in law or misapprehend or ignore relevant evidence before it - Given the nature of the evidence that was before it, Comeau had failed to demonstrate that the Board's decision was patently unreasonable - See paragraphs 26 and 27.

Cases Noticed:

Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (T.D.), affd. (1999), 250 N.R. 93 (F.C.A.), refd to. [para. 18].

McTague v. Canada (Attorney General), [2000] 1 F.C. 647; 177 F.T.R. 5 (T.D.), refd to. [para. 18].

Cundell v. Canada (Attorney General) (2000), 180 F.T.R. 193 (T.D.), refd to. [para. 18].

Comeau v. Canada (Attorney General), [2004] F.T.R. Uned. A99 (F.C.), refd to. [para. 18].

Matusiak v. Canada (Attorney General) (2005), 270 F.T.R. 160 (F.C.), refd to. [para. 18].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 21].

Elliot v. Canada (Attorney General) (2003), 307 N.R. 344; 2003 FCA 298, refd to. [para. 24].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 26].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 26].

Canadian Airlines International Ltd. v. Canadian Human Rights Commission and Belloni, [1996] 1 F.C. 638; 192 N.R. 74 (F.C.A.), refd to. [para. 30].

Statutes Noticed:

Veterans Review and Appeal Board Act, S.C. 1995, c. 18, sect. 3, sect. 39 [Appendix].

Counsel:

Donald E. Comeau, on his own behalf;

Susan L. Inglis, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on October 3, 2005, at Fredericton, New Brunswick, by Dawson, J., of the Federal Court, who delivered the following judgment on December 6, 2005.