Dumas v. Canada (Attorney General), (2006) 305 F.T.R. 210 (FC)

• Judge: Tremblay-Lamer, J.
• Court: Federal Court (Canada)
• Case Date: December 11, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 305 F.T.R. 210 (FC);2006 FC 1533

Dumas v. Can. (A.G.) (2006), 305 F.T.R. 210 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. JA.009

Paul Joseph Dumas (applicant) v. The Attorney General of Canada (respondent)

(T-694-06; 2006 FC 1533)

Indexed As: Dumas v. Canada (Attorney General)

Federal Court

Tremblay-Lamer, J.

December 20, 2006.

Summary:

Dumas served in the Regular Force from 1957 to 1977. From 1959 to 1960, he worked as a dental assistant. In 1999, Dumas applied for a disability pension under s. 21(2) of the Pension Act. He asserted that his asthma was linked to pneumonia that he contracted as a result of not wearing a mask while working as a dental assistant. The Minister of Veterans Affairs dismissed the application. The Veterans Review and Appeal Board (VRAB) dismissed an appeal. An Appeal Panel of the VRAB dismissed a further appeal. Dumas applied for judicial review.

The Federal Court dismissed the application.

Armed Forces - Topic 8082

Pensions - Disability and survivor pensions - Entitlement - Evidence and proof (incl. standard of proof) - Dumas served in the Regular Force from 1957 to 1977 - From 1959 to 1960, he worked as a dental assistant - In 1999, Dumas applied for a disability pension under s. 21(2) of the Pension Act - He asserted that his asthma was linked to pneumonia that he contracted as a result of not wearing a mask while working as a dental assistant - The Minister of Veterans Affairs dismissed the application - The Veterans Review and Appeal Board (VRAB) dismissed an appeal - An Appeal Panel of the VRAB dismissed a further appeal - The VRAB concluded that Dumas had been a pack-a-day smoker for approximately 17 years and stopped in 1971; the discharge medical examination in 1977 did not refer to any lung problems; a 1999 diagnosis referred only to mild chronic obstructive pulmonary disorder, roughly 22 years post Regular Force service discharge; Dumas was only employed as a dental assistant for one year from 1959 to 1960; and the information provided by Dumas's physician was not persuasive - Dumas applied for judicial review, arguing that the Appeal Panel erred in law in its treatment of the evidence as it contravened its special obligation to give Dumas "the benefit of the doubt" under ss. 3 and 39 of the Veterans Review and Appeal Board Act - The Federal Court dismissed the application - Dumas bore the ultimate burden of proof - The Appeal Panel found no credible evidence establishing the causal connection between the injury and the performance of military service, as required by s. 21(2) of the Pension Act - The Appeal Panel had no doubt with regard to the evidence - In the absence of doubt, there was no obligation on the Appeal Panel under ss. 3 and 39 to make any determination in Dumas's favour - See paragraphs 24 to 31.

Armed Forces - Topic 8082

Pensions - Disability and survivor pensions - Entitlement - Evidence and proof (incl. standard of proof) - Dumas served in the Regular Force from 1957 to 1977 - From 1959 to 1960, he worked as a dental assistant while in service - In 1999, Dumas applied for a disability pension under s. 21(2) of the Pension Act - He asserted that his asthma was linked to pneumonia that he contracted as a result of not wearing a mask while working as a dental assistant - The Minister of Veterans Affairs dismissed the application - The Veterans Review and Appeal Board (VRAB) dismissed an appeal - An Appeal Panel of the VRAB dismissed a further appeal - The VRAB concluded that Dumas had been a pack-a-day smoker for approximately 17 years and stopped in 1971; the discharge medical examination in 1977 did not refer to any lung problems; a 1999 diagnosis referred only to mild chronic obstructive pulmonary disorder, roughly 22 years post Regular Force service discharge; Dumas was only employed as a dental assistant for one year from 1959 to 1960; and the information provided by Dumas's physician was not persuasive - Dumas applied for judicial review, arguing that the Appeal Panel erred by not submitting a medical report contradicting the report by Dumas's physician, implying that the Appeal Panel should have sought another medical opinion under s. 38(1) of the Veterans Review and Appeal Board Act - The Federal Court dismissed the application - Section 38(1) stipulated that the Appeal Panel "may"obtain independent medical advice and "may" require an applicant to undergo any medical examination that was deemed necessary - This statutory language was permissive, not mandatory - The Appeal Panel was under no obligation to seek independent medical advice - See paragraphs 32 and 33.

Armed Forces - Topic 8090

Pensions - Disability and survivor pensions - Entitlement - Statutory interpretation - [See both Armed Forces - Topic 8082 ].

Armed Forces - Topic 8093

Pensions - Disability and survivor pensions - Entitlement - Judicial review - Dumas served in the Regular Force from 1957 to 1977 - From 1959 to 1960, he worked as a dental assistant while in service - In 1999, Dumas applied for a disability pension under s. 21(2) of the Pension Act - He asserted that his asthma was linked to pneumonia that he contracted as a result of not wearing a mask while working as a dental assistant - The Minister of Veterans Affairs dismissed the application - The Veterans Review and Appeal Board (VRAB) dismissed an appeal - An Appeal Panel of the VRAB dismissed a further appeal - Dumas applied for judicial review - The Federal Court held that given the privative clause (Veterans Review and Appeal Board Act (VRABA), s. 31), the VRAB's exclusive jurisdiction to hear all reviews and related matters (VRABA, s. 18), the VRAB's expertise, the purpose of the VRABA and the nature of the question, i.e., mixed fact and law, the appropriate standard of review was patent unreasonableness - See paragraphs 16 to 23.

Cases Noticed:

Smith v. Minister of National Revenue (2001), 272 N.R. 174; 2001 FCA 86, refd to. [para. 15].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 16].

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, refd to. [para. 17].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 17].

Powell v. Canada (Attorney General) (2005), 271 F.T.R. 306; 2005 FC 433, refd to. [para. 19].

Cramb v. Canada (Attorney General) (2006), 292 F.T.R. 306; 2006 FC 638, refd to. [para. 22].

Currie v. Canada (Attorney General), [2005] F.T.R. Uned. 899 (F.C.), refd to. [para. 22].

Moar v. Canada (Attorney General), [2006] F.T.R. Uned. 380; 2006 FC 610, refd to. [para. 24].

Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133 (T.D.), refd to. [para. 26].

John Doe v. Canada (Attorney General) (2004), 249 F.T.R. 301; 2004 FC 451, refd to. [para. 27].

McTague v. Canada (Attorney General), [2000] 1 F.C. 647; 177 F.T.R. 5 (T.D.), refd to. [para. 28].

Elliot v. Canada (Attorney General) (2002), 226 F.T.R. 145; 2002 FCT 972, refd to. [para. 28].

Martel v. Canada (Attorney General) (2004), 264 F.T.R. 89; 2004 FC 1287, refd to. [para. 30].

Metcalfe v. Canada (1999), 160 F.T.R. 281 (T.D.), refd to. [para. 30].

Statutes Noticed:

Veterans Review and Appeal Board Act, S.C. 1995, c. 18, sect. 3 [para. 13]; sect. 38(1) [para. 12]; sect. 39 [para. 13].

Counsel:

Paul Joseph Dumas, for the applicant;

Elizabeth Kikuchi, for the respondent.

Solicitors of Record:

Paul Joseph Dumas, Pembroke, Ontario, for the applicant;

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

This application was heard on December 11, 2006, at Ottawa, Ontario, by Tremblay-Lamer, J., of the Federal Court, who delivered the following judgment on December 20, 2006.