MacKay v. Canada ( Attorney General )
T-1876-96
Teitelbaum J.
24/4/97
19 pp.
Application for judicial review of Veterans Review and Appeal Board (VRAB) decision refusing to reconsider, in light of new medical evidence, earlier decision of Veterans Appeal Board (VAB)-In 1958, while serving in military, applicant had driving accident and endured neck pain-Allegedly continued to experience minor neck pain since but did not seek medical attention for injury until 1988-X-Rays revealed some evidence of cervical disease-Radiologist diagnosed cervical deterioration as not unusual for 50-year-old-Applicant then sought veteran's disability pension based on 1958 military road accident-Applicant's claim rejected by Pension Commission on basis disability found to be age-related and not connected to military service-Appeal to Entitlement Board of Canadian Pension Commission dismissed in 1990-Soon thereafter, applicant asked orthopaedic surgeon to review case-Latter found applicant's gradually increasing neck pain usually associated with traumatic injury to cervical discs and that disability could be traced to 1958 accident-In 1991, VAB refused to overturn Entitlement Board's decision-Despite orthopaedic surgeon's second report submitted in 1993 with applicant's request for VAB to reconsider earlier decision, VAB refused to reconsider-In 1995, applicant sought medical opinion of another specialist who concluded more likely than not, or probable, accident played significant, causative role in present cervical problem-Latter report cited in request to VRAB to reconsider VAB's decision-VRAB found new evidence not adding anything to claim not already considered by previous Tribunal in 1994-Application allowed-VRAB committed jurisdictional error and acted contrary to Veterans Review and Appeal Board Act, ss. 3 and 39 when failed to draw from evidence every reasonable inference in favour of applicant-Last specialist's evidence raising reasonable inference applicant's neck disease may have been attributable to 1958 military accident-Criteria for new evidence in Palmer et al. v. Queen, [1980] 1 S.C.R. 759 met-VRAB also violated procedural fairness as failed to inform applicant of his right to request oral hearing (Regulations, s. 3 and Act, s. 28(1)-And VRAB applied incorrect principle of law concerning test for when it could reconsider new evidence on its own motion-Act, s. 111 providing VRAB can reconsider earlier decision if determining error made with respect to any finding of fact or interpretation of any law whereas VRAB stated would not review earlier decision as new evidence speculative and did not outweigh medical evidence already considered on case-VRAB, to properly exercise its statutory mandate under s. 111, must look to potential errors of fact or law in earlier decision under reconsideration and examine its merits-Effectively in reconsideration, VRAB required to look backwards to substance of earlier decision-However, not for Court in current proceedings to conduct full-fledged judicial review of 1994 VAB decision-Discussion of how VRAB should have exercised its discretion if it had considered proper criteria for reconsidering earlier decision of its own motion-VRAB's 1996 decision set aside-VRAB should accept last specialist's evidence and give applicant benefit of every reasonable inference on basis of this evidence if evidence found credible-However, if VRAB not prepared to accept evidence as credible, it should provide reasons for its refusal and conclusion of noncredibility, and still always bear in mind dictates of Act, ss. 3 and 39-Furthermore, applicant should be given opportunity to request oral hearing and make oral submissions, if desired-Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ss. 3, 28(1), 39-Veterans Review and Appeal Board Regulations, SOR/96-67, s. 3.