Powell v. Canada (Attorney General), (2005) 271 F.T.R. 306 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: December 14, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2005), 271 F.T.R. 306 (FC);2005 FC 433

Powell v. Can. (A.G.) (2005), 271 F.T.R. 306 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. AP.024

David Powell (applicant) v. Attorney General of Canada (respondent)

(T-1234-04; 2005 FC 433)

Indexed As: Powell v. Canada (Attorney General)

Federal Court

Mosley, J.

March 31, 2005.

Summary:

Powell served in the Canadian Armed Forces (CAF) for over 20 years in the infantry, as an airborne paratrooper and as a drill instructor. Powell applied for a disability pension in relation to a knee injury. The CAF denied the request. A two member panel of the Veterans' Review and Appeal Board (VRAB) upheld the denial. A three member panel of the VRAB dismissed an appeal. Powell applied for judicial review.

The Federal Court allowed the application and remitted the matter to the VRAB for reconsideration by a differently constituted panel.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Powell served in the Canadian Armed Forces (CAF) for over 20 years in the infantry, as an airborne paratrooper and as a drill instructor - Powell applied for a disability pension in relation to a knee injury - The CAF denied the request - A two member panel of the Veterans' Review and Appeal Board (VRAB) upheld the denial - A three member panel of the VRAB dismissed an appeal - Powell applied for judicial review - He argued that a document entitled "Strategic Plan for 2003-2004" found on the VRAB website expressing concern for the financial consequences of approving claims that resulted in long term disability payments and calling for responsible administration of the appeal programs created a reasonable apprehension of bias - The Federal Court rejected the argument - There was no evidence that any of the particular VRAB members sitting on Powell's appeal had a hand in preparing or approving the Strategic Plan - Even if they were aware of its existence, there was no evidence that they agreed with its findings or goals - There was no apprehension of bias - See paragraphs 40 to 43.

Armed Forces - Topic 8082

Pensions - Disability and survivor pensions - Entitlement - Evidence and proof (incl. standard of proof) - Powell served in the Canadian Armed Forces (CAF) for over 20 years in the infantry, as an airborne paratrooper and as a drill instructor - Powell applied for a disability pension in relation to a knee injury - The CAF denied the request - A two member panel of the Veterans' Review and Appeal Board (VRAB) upheld the denial - A three member panel of the VRAB dismissed an appeal - The VRAB found that there was no documented medical or other evidence of significant service related injuries which could be considered to have resulted in the knee injury - Powell applied for judicial review - The Federal Court allowed the application - Powell and his wife had testified at the review hearing and Powell adduced a letter from an orthopaedic specialist which made a clear causal connection between Powell's service in the CAF and the knee injury - The VRAB had the options of accepting the report, rejecting it with reasons for finding it not credible or, under s. 38 of the Veterans Review and Appeal Board Act, to seek independent medical advice - Having done none of those things, the VRAB erred in law - See paragraphs 22 to 36.

Armed Forces - Topic 8093

Pensions - Disability and survivor pensions - Entitlement - Judicial review - Powell served in the Canadian Armed Forces (CAF) for over 20 years in the infantry, as an airborne paratrooper and as a drill instructor - Powell applied for a disability pension in relation to a knee injury - The CAF denied the request - A two member panel of the Veterans' Review and Appeal Board (VRAB) upheld the denial - A three member panel of the VRAB dismissed an appeal - Powell applied for judicial review - The Federal Court held that the applicable standard of review was reasonableness - See paragraphs 7 to 21.

Armed Forces - Topic 8094

Pensions - Disability and survivor pensions - Entitlement - Activity connected to military - Powell served in the Canadian Armed Forces (CAF) for over 20 years in the infantry, as an airborne paratrooper and as a drill instructor - Powell applied for a disability pension in relation to a knee injury - The CAF denied the request - A two member panel of the Veterans' Review and Appeal Board (VRAB) upheld the denial - A three member panel of the VRAB dismissed an appeal - The VRAB found that there was no documented medical or other evidence of significant service related injuries which could be considered to have resulted in the knee injury - Powell applied for judicial review - The Federal Court allowed the application - The VRAB applied the wrong test by requiring evidence of significant service related injuries - Only service related injuries needed to be proven (Pension Act, s. 21(2)(a)) - Requiring significant service related injuries raised the bar too high - See paragraphs 37 to 39.

Cases Noticed:

Moar v. Canada (Attorney General) (1995), 103 F.T.R. 314 (T.D.), refd to. [para. 7].

Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (T.D.), refd to. [para. 8].

Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (T.D.), refd to. [para. 8].

McTague v. Canada (Attorney General), [2000] 1 F.C. 647; 177 F.T.R. 5 (T.D.), refd to. [para. 9].

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; 160 D.L.R.(4th) 193, refd to. [para. 10].

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. 11].

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. 11].

Dr. Q. v. College of Physicians and Surgeons of British Columbia - see Dr. Q., Re.

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. 21].

Brychka v. Canada (Attorney General) (1998), 141 F.T.R. 258 (T.D.), refd to. [para. 25].

MacDonald v. Canada (Attorney General) (1999), 164 F.T.R. 42 (T.D.), refd to. [para. 25].

Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133 (T.D.), refd to. [para. 25].

King v. Veterans Review and Appeal Board (Can.) et al. (2001), 205 F.T.R. 204 (T.D.), refd to. [para. 25].

Bradley v. Canada (Attorney General) (2001), 208 F.T.R. 267 (T.D.), refd to. [para. 25].

Bernier v. Canada (Attorney General) (2003), 230 F.T.R. 89 (T.D.), refd to. [para. 25].

Elliot v. Canada (Attorney General) (2003), 307 N.R. 344 (F.C.A.), refd to. [para. 27].

Nisbet v. Canada (Attorney General) (2004), 260 F.T.R. 31; 2004 FC 1106, refd to. [para. 27].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 40].

Liidlii Kue First Nation v. Canada (Attorney General) et al. (2000), 187 F.T.R. 161 (T.D.), refd to. [para. 42].

United States Polo Association v. Polo Ralph Lauren Corp. et al. (2000), 286 N.R. 282 (F.C.A.), refd to. [para. 42].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 209 D.L.R.(4th) 564; 220 SCC 13, refd to. [para. 49].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Apotex Inc. v. Canada (Minister of National Health and Welfare) (2000), 265 N.R. 90 (F.C.A.), refd to. [para. 49].

Counsel:

Myfanwy Bowman, for the applicant;

Kevin Staska, for the respondent.

Solicitors of Record:

Tapper Cuddy, Winnipeg, Manitoba, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Winnipeg, Manitoba, for the respondent.

This application was heard on December 14, 2004, at Winnipeg, Manitoba, before Mosley, J., of the Federal Court, who delivered the following decision on March 31, 2005.