Lunn v. Veterans Affairs Canada, 2010 FC 1229

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: October 04, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FC 1229;(2010), 379 F.T.R. 59 (FC)

Lunn v. Veterans Affairs (2010), 379 F.T.R. 59 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. DE.037

Hugh Vincent Lunn (applicant) v. Veterans Affairs Canada (respondent)

(T-288-10, T-289-10; 2010 FC 1229)

Indexed As: Lunn v. Veterans Affairs Canada

Federal Court

Russell, J.

December 6, 2010.

Summary:

The Veterans Review and Appeal Board denied Lunn's claims for a disability pension on the basis that his hearing loss and his degenerative disc disease of the lumbar spine did not arise out of, nor were they directly connected to, his service in the Canadian Forces within the meaning of s. 21(2) of the Pension Act. Lunn sought judicial review of the decisions.

The Federal Court dismissed the applications.

Armed Forces - Topic 8082

Pensions - Disability and survivor pensions - Entitlement - Evidence and proof (incl. standard of proof) - In 1995, Lunn retired from the Canadian Forces after 19 years of service - He alleged that his hearing was damaged in 1981 when an artillery round was detonated close to the trench in which he was situated and that this initial injury was exacerbated by prolonged exposure to noise during his service in the infantry and the military band - His hearing was tested in 1976 and on a number of occasions prior to his retirement - The last of these audiograms was conducted as part of his Medical Examination for Release in 1994 - In all cases, the results were interpreted as indicating that Lunn had normal hearing - The Veterans Review and Appeal Board denied Lunn's claim for a disability pension on the basis that his hearing loss did not arise out of, nor was it directly connected to, his service in the Canadian Forces within the meaning of s. 21(2) of the Pension Act - The Board acknowledged that Lunn was currently suffering from disabling hearing loss but found that the more likely cause was his age - Lunn sought judicial review, arguing that the Board erred in relying on the "faulty" audiograms conducted during his military service as evidence that his hearing loss was not attributable to his military service - He alleged that the military's audiogram technology and testing were not adequate and that the "new" audiograms conducted in 2008 and 2009 at a hearing clinic not connected with the military proved that he suffered from disabling hearing loss - The Federal Court dismissed the application - The Board's finding of no causal link between Lunn's injury and his military service was reasonable - The presumption in s. 21(3) allowed for causation to be presumed if the injury was incurred during the course of the veteran's service - Lunn's medical records (audiograms) constituted evidence to the contrary - There was no medical record of hearing loss to make the causative link between military service and the injury - Lunn had no evidence to contradict the Medical Release Report - The fact that the hearing loss was not detected until many years after his release made causation that much harder to establish - See paragraphs 49 to 68.

Government Programs - Topic 2542

Veterans' pensions - Entitlement - Evidence and proof - [See Armed Forces - Topic 8082 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 27].

McTague v. Canada (Attorney General), [2000] 1 F.C. 647; 177 F.T.R. 5 (T.D.), refd to. [para. 41].

Wannamaker v. Canada (Attorney General) (2007), 361 N.R. 266; 2007 FCA 126, refd to. [para. 44].

MacNeill v. Canada et al. (1998), 151 F.T.R. 121 (T.D.), refd to. [para. 44].

Boisvert v. Canada (Attorney General), [2009] F.T.R. Uned. 880; 2009 FC 735, refd to. [para. 50].

Bernier v. Canada (Procureur général) (2003), 230 F.T.R. 89; 2003 FCT 14, refd to. [para. 57].

Cundell v. Canada (Attorney General) (2000), 180 F.T.R. 193 (T.D.), dist. [para. 61].

Nisbet v. Canada (Attorney General) (2004), 260 F.T.R. 31; 2004 FC 1106, refd to. [para. 64].

Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (T.D.), refd to. [para. 65].

Krasnick Estate v. Canada (Minister of Veterans Affairs) (2007), 321 F.T.R. 141; 2007 FC 1322, refd to. [para. 73].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 73].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 74].

Counsel:

Hugh Vincent Lunn, in person;

Lynn Marchildon, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

These applications were heard in Ottawa, Ontario, on October 4, 2010, before Russell, J., of the Federal Court, who delivered the following judgment on December 6, 2010.