[2000] 1 F.C. 647
T-1515-98
Ronald William McTague (Applicant)
v.
The Attorney General of Canada (Respondent)
Indexed as: McTague v. Canada (Attorney General) (T.D.)
Trial Division, Evans J.—Toronto, September 1; Ottawa, September 30, 1999.
Administrative law — Judicial review — Certiorari — Standard of review — Judicial review of Veterans Review and Appeal Board’s decision applicant not entitled to disability pension under Pension Act, s. 21(2)(a) — S. 21(2)(a) permitting award of pension where member suffering disability resulting from injury “arising out of or directly connected with” military service — Applicant injured by motor vehicle when crossing road to return to base where on duty after dining in restaurant as no mess at base — Pragmatic, functional analysis applied to determine appropriate standard of judicial review of specialist tribunal’s interpretation, application of constitutive statute — (i) “Arose out of” or “directly connected with” not legal terms of art — Meaning must be determined in light of purposes of statutory scheme to enable claims to be decided with minimum of formality, costs, delay — Absence of right of appeal from Board, creation of series of administrative appeals, that appeal panels expressly empowered to reconsider own decisions, indicating Parliament not intending close judicial scrutiny of Board’s decisions — (ii) Adjudicative nature of Board’s responsibilities, composition of Board (including part-time members, neither qualifications nor representation of different interests prescribed) indicative of intent standard of review should be towards correctness — Nature of rights at stake (important to individuals, but not akin to rights protected by Charter), reasons for creation of Board (to ensure fair, accessible, inexpensive, expeditious determination of claims) consistent with deferential standard — (iii) Nature of issue (application of s. 21(2)(a) to facts) indicating judicial deference appropriate — Weight of factors indicating Parliament intended deferential standard of review, but not most deferential standard.
Pensions — Judicial review of Veterans Review and Appeal Board decision applicant not entitled to disability pension under Pension Act, s. 21(2)(a) — S. 21(2)(a) permitting award of pension where member suffering disability resulting from injury arising out of or directly connected with military service — Applicant injured crossing road to return to base where on duty after dining in restaurant as no mess at base — Board’s decision not unreasonable in light of requirement of causal connection between injury, military service — Some facts indicating injury satisfied definition of eligibility, while others not — Cannot be inferred Board failed to interpret s. 21(2)(a) in statutory context — Statement that injury occurred during working day merely “setting”, not “contributing cause” distinguishing stronger from weaker causal connections between injury, performance of military service — “Directly connected” requiring Board to consider strength of causal connection between injury, military service — No error of law as not sufficient for pension purposes applicant serving in military when injured — Difficult to maintain Board not considering statutory provisions requiring liberal interpretation when expressly stating so considered.
Armed Forces — Applicant, member of Armed Forces, struck by motor vehicle, injured while crossing road to return to duties from restaurant as no mess at base — Veterans Review and Appeal Board holding not entitled to disability pension under Pension Act, s. 21(2)(a) — S. 21(2)(a) permitting award of pension where member suffering disability resulting from injury “arising out of or directly connected with” military service — Army paid for meal but no military business conducted during it — Could have brought food from home, eaten at base — Not injured by Armed Forces member — Board’s decision not unreasonable — Facts not so clearly pointing to finding of eligibility that Board’s decision unreasonable.
This was an application for judicial review of the Veterans Review and Appeal Board’s decision confirming its earlier determination that the applicant was not eligible for a disability pension under Pension Act, paragraph 21(2)(a). The applicant was seriously injured when hit by a vehicle while crossing a road to return to the base where he was on duty, from the restaurant where he had eaten dinner because there was no mess on the base.
Pension Act, paragraph 21(2)(a) provides that where a member of the forces suffers disability resulting from an injury that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to the member. Section 2 provides that the Act shall be liberally construed and interpreted to provide compensation to those members of the forces who have been disabled as a result of military service. Veterans Review and Appeal Board Act, section 31 provides that a decision of a majority of members of an appeal panel is final and binding.
The Department of Veterans Affairs rejected the applicant’s claim for a pension on the ground that his disability was not as a result of an injury that “arose out of or was directly connected with” military service. An appeal from that decision to a review panel of the Veterans Review and Appeal Board was dismissed. An entitlement appeal panel of the Board dismissed an appeal from the Board’s review panel. On a rehearing the Board agreed that it had erred by placing undue weight on the fact that the applicant was not “on duty” when he was injured, in light of the Federal Court Trial Division decision in Ewing v. Veterans Review and Appeal Board (Can.) et al. , but the Board affirmed the appeal panel’s decision: any causal link between the applicant’s military service and the injury was insufficient to satisfy paragraph 21(2)(a). Although the army paid for applicant’s dinner, no military business was conducted at it.
The issues were: (1) what was the appropriate standard of review; (2) whether the Board’s decision was unreasonable; and, (3) whether the Board erred in law when it found that the applicant’s injury did not “arise out of” or was not “directly connected with” military service.
Held, the application should be dismissed.
(1) A pragmatic or functional analysis must be applied to determine the appropriate standard of review when a specialist tribunal’s interpretation or application of its constitutive statute is challenged. (i) The statutory language was examined first. “Arose out of” and “directly connected with” are not terms of legal art, and can be applied to the facts of a given case in a way that is consistent with the purposes of the statute by persons without the particular expertise of judges. However, because they appear in a statute, their meaning and application must be determined in the light of the purposes of the statutory scheme, which was designed to enable claims to be decided with the minimum of formality, costs and delay. In this context, the words defining entitlement indicate that on an application for judicial review, considerable deference should be given to the Board’s decision.
The second aspect of the statutory language considered was the extent to which it expressly contemplates or precludes access to the Court from decisions by the Board. The absence of a right of appeal from the Veterans Review and Appeal Board, and the exclusive jurisdiction and finality provision indicated that Parliament did not intend the Board’s decisions to be subject to close judicial surveillance. This conclusion was also evident in the provisions creating a series of administrative appeals against a rejection of a claim for a pension, and the fact that both review and appeal panels are expressly empowered to reconsider their own decisions. When, as here, Parliament has custom-designed a system of administrative appeals to and within an independent administrative agency, and conferred a power on the tribunals to reopen decisions that they have made, the statutory avenues of recourse will normally be regarded as constituting an adequate remedy. Accordingly, a reviewing court should not lightly intervene in their decisions.
(ii) The essentially adjudicative nature of the Board’s responsibilities suggested that its expertise is relatively limited, compared with a regulatory agency with broad policy-making functions and powers, such as a securities commission. The Board is composed of full-time and part-time members and the Act does not prescribe any particular qualifications that members must possess. Nor are the Board’s members representative of different interests i.e. the Minister’s or veterans’. While the rights determined by the Board are important to the individuals concerned, their denial will neither consign unsuccessful claimants to destitution nor preclude the pursuit of other remedies (such as a tort claim against the owner of the motor vehicle that struck applicant or a statutory claim under a provincial motor vehicle compensation fund). They are not closely linked to constitutional rights protected by the Charter. The statutory purpose underlying the creation of the Board had to be considered. Veterans Review and Appeal Board Act, section 40 indicates that considerations such as fair, accessible, inexpensive, expeditious determination of claims were taken into account when Parliament conferred on the Board jurisdiction to determine whether an injured member of the Armed Forces is entitled to a pension. Furthermore, the familiarity that tribunal members will acquire from a regular exposure to recurring factual situations and to the legislative scheme should enhance the quality of their decisions. While the limited powers of the Board are indicative of a legislative intent that the standard of review should be towards the correctness end of the spectrum, the nature of the rights at stake and the reasons for the Board’s creation are more consistent with a deferential standard.
(iii) Where an issue falls towards the “interpretation” end of the spectrum, correctness may be the appropriate standard of review is appropriate because of the precedential value of the decision and the relevance of judicial interpretative skills for reaching the “best” result. Conversely, an issue that has little or no significance beyond the facts of the particular case will tend to be characterized as one of application, and will attract judicial deference because its determination calls for an assessment of those facts, an exercise that is within the tribunal’s area of expertise and does not require the expenditure of court resources for determining the “correct” answer. The questions in dispute i.e. the application of paragraph 21(2)(a), is at the “application” end of the spectrum.
The weight of the factors considered suggested that Parliament intended a deferential standard of review, but not the most deferential standard. “Patent unreasonableness” is increasingly the standard of review applied to decisions of administrative tribunals protected by strong preclusive clauses and having a wider range of regulatory responsibilities than the merely adjudicative functions performed by the Board. It is also appropriate where the issue involves findings of primary fact, including drawing of inferences from evidence.
(2) The Board’s decision was not unreasonable. Some facts indicated that the injury satisfied the definition of eligibility for a pension under paragraph 21(2)(a), while others did not. The Pension Act requires some causal connection between the injury and the performance of military service. Facts supporting the Board’s decision were: the applicant’s injuries did not occur on the base and were not caused by another member of the Armed Forces; the applicant was not required to eat at a particular restaurant, and was not required to eat out at all because he could have brought food from home. Bearing in mind the statutory directives to construe the legislation broadly, the resulting decision was not “unreasonable”. In view of the requirement that the injury “arose from or was directly connected with” the claimant’s military service, the facts taken into consideration by the Board do not so clearly point towards a finding of eligibility that the Board’s decision to refuse a pension was unreasonable.
Inconsistency with cases previously decided by the Board is generally not an independent ground of judicial review. While it would have been desirable for the Board to address cases where the Board found in favour of claimants on materially similar facts, it was not legally obliged to do so. When the Board is essentially making a determination based on the facts of the specific case, it would be unrealistic to expect it to provide reasons that contain an analysis of factually similar cases and, in view of the considerations outlined above, the need to avoid arbitrary decision making does not so require.
(3) The applicant submitted that it could be inferred that the Board failed to approach the application of paragraph 21(2)(a) in the very different context of the Pension Act, from its reference to the long legal pedigree, going back to early British workers’ compensation legislation, of “arose from or was directly connected with”. The applicant submitted that pensions are payable regardless of whether the injury resulted in loss of income. There were two difficulties with this argument. Pension Act, section 2 speaks of an obligation to compensate members of the Armed Forces disabled as a result of military service. Moreover, its reasons do not indicate that the Board took an inappropriately strict compensatory approach to the statute. The Board did not find that the applicant had sustained any loss of income-earning capacity as a result of his injury. It could not be inferred that the Board failed to interpret the relevant phrase in the statutory context of the Pension Act.
The applicant submitted that the Board misinterpreted the Pension Act by importing terms not contained in the language of the statute itself, namely the distinction between “contributing cause” and “setting”. The Board stated that the fact that the applicant’s injury occurred in the course of a working day did not provide sufficient causal nexus to bring it within paragraph 21(2)(a); that the injury occurred during a working day was merely the “setting”, not a “contributing cause”. While these words are not in the legislation, the phrase “directly connected” required the Board to consider the strength of the causal connection between the injury and the applicant’s military service. In contrasting “contributing cause” with “setting” the Board was distinguishing stronger from weaker causal connections between the injury and the performance of military service. Given that it is not sufficient that, when injured, the applicant was serving in the military, the Board did not err in law in its understanding of the statutory test.
Finally, the applicant argued that the Board had failed to take into account the statutory directives that the legislation should be interpreted broadly and that claimants should be given the benefit of any reasonable doubt. The Board stated in the introduction to its original decision that it had taken these provisions into account in reaching its decision. It is difficult to maintain that the Board failed to take into account a matter that it stated it had considered. The real objection was that the Board failed to give sufficient weight to the statutory directives. This was a matter of application rather than interpretation, and was reviewable on a standard of unreasonableness. The Board’s conclusion was neither unreasonable nor clearly wrong.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4)(c) (as enacted by S.C. 1990, c. 8, s. 5).
Pension Act, R.S.C., 1985, c. P-6, ss. 2, 21(2)(a) (as am. by S.C. 1990, c. 43, s. 8), (3) (as am. idem).
Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ss. 3, 4, 19 (as am. by S.C. 1999, c. 10, s. 38), 23(1), 25, 26, 31, 32(1), 39, 40.
CASES JUDICIALLY CONSIDERED
APPLIED:
Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.).
DISTINGUISHED:
Page v. Canada (Veterans Appeal Board) (1994), 5 C.C.P.B. 75; 82 F.T.R. 115 (F.C.T.D.); Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 43 Imm. L.R. (2d) 117; 226 N.R. 201; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R. 1; Brown, VAB/E-12014, judgment dated 15/3/95.
CONSIDERED:
Ewing v. Veterans Review and Appeal Board (Can.) et al. (1998), 137 F.T.R. 298 (F.C.T.D.); Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 71 C.P.R. (3d) 417; 209 N.R. 20; affg (1995), 127 D.L.R. (4th) 329; 21 B.L.R. (2d) 68; 63 C.P.R. (3d) 67; 185 N.R. 291 (C.A.).
REFERRED TO:
National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; (1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114 N.R. 81; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; (1994), 114 D.L.R. (4th) 385; [1994] 7 W.W.R. 1; 22 Admin. L.R. (2d) 1; 46 B.C.A.C. 1; 92 B.C.L.R. (2d) 145; 14 B.L.R. (2d) 217; 4 C.C.L.S. 117; 168 N.R. 321; 75 W.A.C. 1; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; (1993), 105 D.L.R. (4th) 385; 15 Admin. L.R. (2d) 1; 49 C.C.E.L. 1; 154 N.R. 104; 55 Q.A.C. 241; Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230; (1993), 102 D.L.R. (4th) 609; 14 Admin. L.R. (2d) 1; 93 CLLC 14,032; 152 N.R. 1; 63 O.A.C. 1; MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (T.D.) (QL); Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (F.C.T.D.); Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (F.C.T.D.); Henderson v. Canada (Attorney General) (1998), 144 F.T.R. 71 (F.C.T.D.); Galbraith, VAB/E-122, judgment dated 13/9/88; British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; (1995), 125 D.L.R. (4th) 443; 31 Admin. L.R. (2d) 169; 183 N.R. 184.
APPLICATION for judicial review of the Veterans Review and Appeal Board decision confirming its earlier determination that the applicant, who had been injured while crossing the road to return to the armed forces base where he was on duty after dinner at a restaurant, was not entitled to a disability pension under Pension Act, paragraph 21(2)(a) because his disability was not as a result of an injury that “arose out of or was directly connected” with military service. Application dismissed.
APPEARANCES:
Thomas H. Wilson for applicant.
Derek Edwards for respondent.
SOLICITORS OF RECORD:
Thomas H. Wilson, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Evans J.:
A. INTRODUCTION
[1] Master Warrant Officer Ronald William McTague was scheduled to work a long day at the Fort York Armouries in Toronto on November 10, 1992. He reported for duty at 7:30 a.m. and was to train recruits in the use of equipment until 11:30 that night.
[2] At about 6:00 p.m. he and other non-commissioned officers went out to a local restaurant for dinner because there were no mess facilities on the base; that is, unlike most other military establishments, there was nowhere there to eat. In recognition of the absence of this customary facility, the army agreed to reimburse MWO McTague the cost of his dinner.
[3] While crossing the road to return to the base from the restaurant he was hit by a vehicle and seriously injured.
[4] MWO McTague’s subsequent claim for a pension was rejected on the ground that he was not suffering from disability as a result of an injury that, in the words of the relevant statutory provision, “arose out of or was directly connected with” military service.
[5] MWO McTague has made an application for judicial review of the decision by the Veterans Review and Appeal Board confirming its earlier determination that he was not eligible for a disability pension. His counsel submitted that the Board erred in law when it found that, on these facts, the applicant’s injury did not “arise out of” or was not “directly connected with” military service, and accordingly should be set aside.
[6] He had also argued before the Board that the injury fell within one of the specific situations listed in subsection 21(3) [as am. by S.C. 1990, c. 43, s. 8] of the Pension Act [R.S.C., 1985, c. P-6] in which an injury is deemed to have arisen out of or to have been directly connected with military service. The Board did not refer to this aspect of the claim.
[7] Although counsel raised this omission in his memorandum of law and fact, he did not seriously contend in oral argument that this invalidated the Board’s conclusion. In neither his written submissions, nor his oral argument, did counsel urge me to find that the Board had erred in law in failing to conclude that the applicant’s injury fell within one of the situations deemed by subsection 21(3) to be pensionable under paragraph 21(2)(a) [as am. by S.C. 1990, c. 43, s. 8].
[8] In these circumstances I reject any contention that the Board’s failure to address this issue rendered its reasons defective in law. I infer from the way that counsel has structured his argument in this case that he regarded the subsection 21(3) point as relatively minor in nature. Indeed, having considered the point myself, I do not think that it was a strong one.
B. LEGISLATIVE FRAMEWORK
[9] The following provisions of the Pension Act, R.S.C., 1985, c. P-6 are relevant to this application:
2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
…
21. (2) …
(a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I; [Emphasis added.]
[10] The Veterans Review and Appeal Board Act, S.C. 1995, c. 18 is also relevant to this application:
3. The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled.
…
31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.
…
39. In all proceedings under this Act, the Board shall
(a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant;
…
(c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case. [Underlining added.]
C. THE BOARD’S DECISION
[11] The applicant’s claim had been originally rejected by the Department of Veterans Affairs, and an appeal from that decision to a review panel of the Veterans Review and Appeal Board was dismissed. There was no dispute about the primary facts relating to either the cause and extent of the applicant’s injury, or the circumstances in which it occurred. However, these facts were found not to satisfy the statutory criterion of eligibility for pension purposes.
[12] In a decision dated August 13, 1997 an entitlement appeal panel of the Veterans Review and Appeal Board dismissed an appeal from the Board’s review panel. The applicant requested a rehearing by the Board in light of the subsequent decision of this Court in Ewing v. Veterans Review and Appeal Board (Can.) et al. (1998), 137 F.T.R. 298 (F.C.T.D.). In that case it was held that the Board had misinterpreted paragraph 21(2)(a) of the Pension Act by denying a pension on the ground that the claimant was not “on duty” when the injury occurred. Gibson J. stated that an injury could “arise from” or be “directly connected with” military service within the meaning of paragraph 21(2)(a), even if the claimant was not at that time “on duty” for other military purposes.
[13] In its decision of April 1, 1998 the Board agreed with counsel that its reasons were erroneous because, in view of Gibson J.’s decision in Ewing, they placed undue weight on the fact that MWO McTague was not “on duty” when he was hit by the vehicle while returning to the base from dinner. Whether the claimant was “on duty” at the time that the injury occurred was simply one of the factors to be considered.
[14] Nonetheless, the Board affirmed the appeal panel’s decision: any causal link between the applicant’s military service and the injury was insufficient to satisfy paragraph 21(2)(a). Despite the fact that the army was paying for the dinner, it was not the occasion for the conduct of any military business, and the applicant and his colleagues freely chose where to eat.
[15] This second decision of the Board is the subject of this application for judicial review. However, counsel for the applicant submitted that, in order better to understand the Board’s reasoning, I should read its reasons for the decision under review together with those that it gave for its first decision, with the exception, of course, of that part of its original reasons that the Board subsequently disavowed.
D. ISSUES AND ANALYSIS
1. Standard of Review
[16] Counsel for the applicant argued that, since there were no primary facts in dispute in this case, the dispute centred on questions of law. By virtue of paragraph 18.1(4)(c) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7, the Court has jurisdiction to set aside a decision of a federal tribunal, such as the Board, if it erred in law in making its decision. Consequently, it was for the Court to determine for itself whether the applicant’s injury “arose from” or was “directly connected with” military service, and if it found that it was, it should set aside the Board’s decision as erroneous in law.
[17] Counsel for the Attorney General, on the other hand, submitted that the Board was entitled to a degree of deference from the Court in its interpretation and application of the Pension Act, especially in view of the statutory provision that the Board’s decisions are “final and binding” (Veterans Review and Appeal Board Act, section 31), and that the Board had full and exclusive jurisdiction to determine all matters relating to appeals (section 26). Accordingly, he submitted, the Board’s decision was only erroneous in law if patently unreasonable: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557.
[18] Counsel for the applicant appeared to argue that the Court’s jurisdiction to set aside a decision of a federal administrative tribunal for error of law mandates the Court to review any question of law decided by the tribunal under review by asking whether it was correct. This, with respect, is not the law. Indeed, it is quite contrary to the elaboration by the Supreme Court of Canada since the mid-1980s of a pragmatic or functional analysis for determining the standard of review that legislatures should be regarded as implicitly prescribing when a specialist tribunal’s interpretation or application of its constitutive statute is challenged in judicial review proceedings.
[19] The search for legislative intent in this context is at bottom about determining a rational allocation of decision-making responsibility between specialist tribunal and reviewing court. An important element of this quest is an assessment of whether the tribunal or the reviewing court is better equipped to decide the issues in dispute: Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756.
[20] Also important is a concern that the administration of the statutory scheme not be encumbered with costly and protracted litigation. In public administration, quality cannot be considered in the abstract without regard to its attendant costs and the implications for the system of limited resources. Accordingly, even if a reviewing court might conceivably make a “better” decision than the tribunal under review, Parliament may be regarded as nonetheless preferring the benefits of finality and a relatively inexpensive and expeditious administrative decision-making process.
[21] I turn now to consider the components of the pragmatic or functional approach relevant to this case in order to determine the applicable standard of review.
(a) the statutory language
[22] Two matters require consideration here: the wording of the statutory definition of eligibility for a pension as a result of disability, and the provisions relating to the review of the administrative decisions made in response to claims for a pension.
[23] The words of the Pension Act relevant in this case are that the claimant’s injury “arose out of” or was “directly connected with” military service. These are not terms of legal art, and can be applied to the facts of a given case in a way that is consistent with the purposes of the statute by persons without the particular expertise of judges.
[24] Rather, what is generally required is a thoughtful and open-minded assessment of the facts of the particular case that is informed by the insights that the decision maker has obtained by consulting his or her previous experience with the scheme, or the reasons given by colleagues for decisions that they have rendered, in the disposition of similar disputes.
[25] However, because they appear in a statute, even open-textured words that are familiar from every day speech have a legal significance. Their meaning and application must therefore be determined in the light of the purposes of the particular statutory scheme in which they are employed. Further, the words in question in this case are apt to conjure up concepts that are well known to lawyers from other legal contexts, including the law of vicarious liability and workers’ compensation.
[26] In my opinion, given the context of a statutory scheme designed to enable claims to be decided with the minimum of formality, cost and delay (see, for example, section 40 of the Veterans Review and Appeal Board Act), the words defining entitlement indicate that on an application for judicial review considerable deference should be given to the Board’s decision.
[27] The second aspect of the statutory language to be considered is the extent to which it expressly contemplates or precludes access to the Court from decisions by the Board. The absence of a right of appeal from the Veterans Review and Appeal Board, and the exclusive jurisdiction and finality provisions (sections 26 and 31 of the Veterans Review and Appeal Board Act) are indicative that Parliament did not intend the Board’s decisions to be subject to close judicial surveillance.
[28] This conclusion is also evident in the provisions creating a series of administrative appeals against a rejection of a claim for a pension: from Veterans Affairs to the entitlement review panel of the Veterans Review and Appeal Board (Veterans Review and Appeal Board Act, section 19 [as am. by S.C. 1999, c. 10, s. 38]), and from there to an appeal panel of the Board (sections 25 and 26). In addition, both review and appeal panels are expressly empowered to reconsider their own decisions (subsections 23(1) and 32(1)).
[29] When, as here, Parliament has custom designed a system of administrative appeals to and within an independent administrative agency, and conferred a power on the tribunals to reopen decisions that they have made, the statutory avenues of recourse will normally be regarded as constituting an adequate remedy. Accordingly, a reviewing court should not lightly intervene in their decisions.
[30] The precise extent to which a finality clause precludes or limits judicial review must be determined within the context of the particular statutory scheme in which it appears (Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230). In my opinion, the provisions considered above strongly indicate that Parliament intended the Court to afford considerable deference to the Board’s decisions when challenged in an application for judicial review.
(b) the statutory decision maker and its decisions
[31] A range of considerations is relevant under this compendious heading. First, the degree of expertise of the administrative tribunal must be assessed. The essentially adjudicative nature of the Board’s responsibilities suggests that its expertise should be regarded as relatively limited (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at page 1018), compared, for instance, with a regulatory agency with broad policy-making functions and powers, such as a securities commission (Pezim v. British Columbia (Superintendent of Brokers), supra).
[32] In addition, the statute provides that the Board is composed of full-time and part-time members (section 4), and prescribes no particular qualifications that they must possess. Moreover, unlike many “tripartite” tribunals determining disputes between employers and employees (including workers’ compensation tribunals in some jurisdictions), the Board’s members are not statutorily required to include nominees of the Minister on the one hand, and representatives of veterans, for instance, on the other.
[33] Second, the nature of the rights determined by the Board is also relevant. Disability pensions are doubtless of great importance to the individuals concerned, but their denial is not normally likely to consign unsuccessful claimants to destitution, nor to preclude their pursuit of other remedies such as, in this case, a claim in tort against the owner of the vehicle that hit MWO McTague, or a statutory claim under the provincial motor vehicle compensation fund.
[34] In my opinion, the rights at stake here are not of the same order of importance as the right to be recognized as a refugee (Pushpanathan, supra), or to be free from discrimination (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554). The statutory rights in question in those cases were closely linked to constitutional rights protected by sections 7 and 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] respectively.
[35] Third, the statutory purpose underlying the creation of the tribunal under review must also be taken into account. The administration of programs of social benefits, especially after the first-level decision has been made, are commonly entrusted to independent, specialist administrative tribunals in an attempt to ensure a fair, accessible, inexpensive and expeditious determination of claims.
[36] Indeed, section 40 of the Veterans Review and Appeal Board Act indicates that these considerations were taken into account when Parliament conferred on the specialist tribunals jurisdiction to determine whether an injured member of the Armed Forces is entitled to a pension. In addition, of course, the familiarity that tribunal members will acquire from a regular exposure to recurring factual situations and to the legislative scheme should enhance the quality of their decisions.
[37] To summarize, while the limited powers of the Board are indicative of a legislative intent that the standard of review should be towards the correctness end of the spectrum, the nature of the rights at stake and the reasons for the Board’s creation are more consistent with a deferential standard.
(c) the issues in dispute
[38] As I have already indicated, there is no dispute in this case about the primary facts. The issue in contention principally concerns the application to those facts of paragraph 21(2)(a) of the Pension Act: in particular, whether MWO McTague’s injury “arose out of or was directly connected with” military service within the meaning of the statute.
[39] In addition, counsel for the applicant maintained that, in using language not found in the statute to reach its decision, the Board “asked itself the wrong question” or, in other words, misinterpreted the Act. Counsel also submitted that the Board erred in law because it failed to give effect to the statutory instruction to interpret the statute broadly and to draw from the evidence and all the circumstances of the case any reasonable inference in favour of the claimant.
[40] While a conceptual distinction between the interpretation and application of a statute can be drawn, in reality, as the Supreme Court of Canada pointed out in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, “pure” questions of interpretation tend to merge imperceptibly into “fact specific” applications.
[41] That an issue falls towards the “interpretation” end of the spectrum is an indicator that correctness review is appropriate because of the precedential value of the decision and the relevance of judicial interpretative skills for reaching the “best” result. Conversely, an issue that has no or little significance beyond the facts of the particular case will tend to be characterized as one of application, and will attract judicial deference because its determination calls for an assessment of those facts, an exercise that is within the tribunal’s area of expertise and does not require the expenditure of court resources for determining the “correct” answer.
[42] While it is a part of the lawyer’s art to identify in a tribunal’s decision some “general questions” that have a significance beyond the facts of the particular case, in my opinion a reviewing court should normally resist counsel’s appeal to “principle” when the statutory language in question, as in this case, is non-technical in nature and relatively open-textured, and thus invites the tribunal to decide on which side of a hazy line the particular facts fall in any given case.
[43] To “legalize” the process by breaking into a series of questions of “interpretation” what ought to be an exercise in assessing the factual situation as a whole seems to me apt to undermine Parliament’s intention that decision making by the administrative tribunals determining pension entitlement should be accessible, informal, cost-effective and expeditious.
[44] In my opinion, the questions in dispute in this case are at the “application” end of the spectrum. The applicant’s complaint in essence is that the Board did not give sufficient weight to the fact that, in the course of a long day at work, MWO McTague was compelled to go out for dinner by the absence of eating facilities on the base, something that the army recognized when it agreed to reimburse him the cost of his dinner. Allocating an appropriate weight to the relevant facts is an exercise of judgment for which the Board is at least as well equipped as a reviewing court. A deferential standard of review is thus indicated by the nature of the issues in dispute in this case.
[45] The applicant’s allegation that the Board erred in law by failing to give him the benefit of the doubt and to interpret the legislation in a broad and liberal fashion should be taken into consideration at the stage of deciding if the Board’s decision falls short of the standard of reasonableness.
[46] Finally, I should note that it is well established in this Court that the less demanding standard of patent unreasonableness is applicable when the issue in dispute is the Board’s weighing or interpretation of often conflicting or inconclusive medical evidence and determining from it whether the claimant’s disability was in fact caused or aggravated by military service: MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (T.D.) (QL); Weare v. Canada (Attorney General) (1998), 153 F.T.R. 75 (F.C.T.D.); Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58 (F.C.T.D.); Henderson v. Canada (Attorney General) (1998), 144 F.T.R. 71 (F.C.T.D.).
[47] Factual determinations of this nature are at the very heart of the specialized jurisdiction of the Board. Considerations of cost effectiveness and relative institutional competence call for maximum curial deference to findings of fact.
(d) conclusion
[48] The weight of the factors considered above in the pragmatic or functional analysis suggests that Parliament should be regarded as prescribing a deferential standard of review in this case. However, they do not indicate that the most deferential standard should be applied. “Patent unreasonableness” seems increasingly to be reserved as the standard of review applied to the decisions of administrative agencies that are protected by strong preclusive clauses and have a wider range of regulatory responsibilities than the merely adjudicative functions performed by the Board. It is also the appropriate standard, as I have indicated above, where the issue in dispute involves findings of primary fact, including the drawing of inferences from the evidence.
2. Was the Board’s Decision “Unreasonable”?
[49] In my opinion it was not. The Board was faced with a classic example of a fact situation that fell in the “grey area” of the relevant statutory language: some facts indicated that the injury satisfied the definition of eligibility for a pension under paragraph 21(2)(a) of the Pension Act, while others indicated that it did not.
[50] The following facts support MWO McTague’s claim: his injury occurred during a scheduled break in the performance of military duties; it was entirely foreseeable that he would leave the base for dinner because there were no eating facilities at the base, and might be hit by a vehicle while crossing a road on his way to or from a restaurant; and the army recognized and supported the applicant’s decision to go out for dinner by reimbursing him the cost of his meal.
[51] However, the Pension Act does not provide a pension to members of the Armed Forces simply because they are injured while they are in the Armed Forces. There must be some causal connection between the injury and the performance of military service. Thus, some of the facts support the Board’s decision that the applicant was not eligible under the statutory test.
[52] For example, his injuries did not occur on the base and were not caused by another member of the Armed Forces. MWO McTague was not required to eat at a particular restaurant, and was not required to eat out at all because he could have brought food from home. Unlike the unusual situation considered in Page v. Canada (Veterans Appeal Board) (1994), 5 C.C.P.B. 75 (F.C.T.D.), the dinner served no “business” purpose, except that of providing sustenance to the applicant prior to his resumption of military activities.
[53] In determining whether this finding was unreasonable I must also bear in mind Parliament’s directive in the Pension Act that the legislation must be construed broadly in order to discharge Canada’s obligation to compensate those members of the Armed Forces who have been disabled as a result of military service, and that any reasonable inference should be drawn from the evidence in favour of claimants. The similar, but not identical, wording of section 3 of the Veterans Review and Appeal Board Act must also be considered.
[54] Even with these considerations in mind, which the Board stated in its reasons that it had taken into account, the resulting decision was not “unreasonable”: it will withstand the “somewhat probing examination” called for in Southam Inc., supra, at page 776. In view of the requirement that the injury “arose from or was directly connected with” the claimant’s military service, the facts taken into consideration by the Board do not so clearly point towards a finding of eligibility that the Board’s decision to refuse a pension must be characterized as unreasonable.
[55] Counsel also relied on cases previously decided by the Board. For instance, he argued, in the cases of Galbraith (VAB/E-122; September 13, 1988), and Brown (VAB/E-12014; March 15, 1995) the Board had found in favour of claimants on facts materially similar to those of this case. However, inconsistency is generally not an independent ground of judicial review: Domtar Inc., supra; British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739.
[56] Counsel also argued that the Board was at least obliged to explain in its reasons why it reached a different conclusion from that in the earlier cases. Without such reasons, he submitted, the Board would be permitted to lapse into unprincipled and arbitrary decision making, and there would be no adequate means for ensuring its accountability.
[57] It would no doubt have been desirable if the Board had addressed those cases but, in my opinion, it was not legally obliged so to do. Different panels may always reach different conclusions about which side of an imprecise line similar facts fall. Moreover, no two factual situations are ever identical: for example, in Brown the claimant had been injured by another soldier, apparently while they were on military premises.
[58] In Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193, the Supreme Court recently reminded us that, in assessing the adequacy of a tribunal’s reasons, reviewing courts should consider the administrative decision-making context as a whole, and be alert not to set the standard too high for fear of unduly burdening the due administration of the statutory scheme.
[59] When the Board is essentially making a determination based on the facts of the specific case before it, it would be unrealistic to expect the Board to provide reasons that contain an analysis of the factually similar cases to which counsel referred it and, in view of the considerations outlined above, the need to avoid arbitrary decision making does not so require.
3. Did the Board Misinterpret the Statute?
[60] Counsel for the applicant argued that the Board’s decision was legally flawed because it was apparent from the reasons that it had misinterpreted the statutory phrase “arose from or was directly connected with” military service.
[61] First, he submitted that it could be inferred from the Board’s reference in its reasons to the fact that the phrase in question had a long legal pedigree, including its early appearance in British workers’ compensation legislation, that it had failed to approach its application in a manner consistent with the very different context of the Pension Act.
[62] Unlike workers’ compensation legislation, pensions are payable under the Pension Act regardless of whether the claimant’s injury resulted in loss of income. Rather, as section 2 of the Pension Act and section 3 of the Veterans Review and Appeal Board Act make clear, the provisions dealing with pension entitlement are to be interpreted broadly, since they are a statutory recognition of the nation’s debt to men and women who have been willing to put life and limb at risk in the service of their country, and to suffer the other inconveniences of a military career.
[63] There are two difficulties with this argument, however. Despite its generous wording, section 2 of the Pension Act still speaks of an obligation to compensate members of the Armed Forces disabled as a result of military service. The analogous section 3 of the Veterans Review and Appeal Board Act does not, however.
[64] Moreover, the Board’s reasons do not indicate that it took an inappropriately strict compensatory approach to the statute. Nowhere did the Board state whether or not MWO McTague had sustained any loss of income-earning capacity as a result of his injury. What it did say is this:
It appears that a common thread throughout the Canadian Compensation cases (workers and veterans) regarding injuries sustained during meal break is the requirement that the employment or the service was a “contributing cause” and was not merely the setting in which the event occurred. [Veterans Review and Appeal Board, Decision No. 6965033, April 1, 1998, at page 2.]
[65] I cannot infer from this that the Board failed to interpret the relevant phrase in the statutory context of the Pension Act. It had already noted that the phrase also appears in Australian veterans legislation.
[66] Second, counsel submitted, the Board misinterpreted the Pension Act by importing terms not contained in the language of the statute itself, namely the distinction between “contributing cause” and “setting”. In particular, it stated in its reasons that the fact that the applicant’s injury occurred in the course of a working day did not provide a sufficient causal nexus to bring it within paragraph 21(2)(a). That the injury occurred during a working day was merely the “setting” not a “contributing cause”.
[67] It is true that these words are not in the legislation; however, the phrase “directly connected” in my opinion required the Board to consider the strength of the causal connection between the injury and the applicant’s military service. In contrasting “contributing cause” with “setting”, the Board was distinguishing stronger from weaker causal connections between the injury and the performance of military service. Given that it is not sufficient that, when injured, the applicant was serving in the military, I find that the Board committed no error of law here in its understanding of the statutory test.
[68] Finally, counsel argued that the Board had failed to take into account the statutory directives that the legislation should be interpreted broadly and that claimants should, in effect, be given the benefit of any reasonable doubt. That it failed to do this was obvious, he submitted, from the fact that the Board had found in favour of the claimants in the cases of Galbraith, supra, and Brown, supra, where the facts were materially identical.
[69] Counsel acknowledged, however, that the Board had stated in the introduction to its original decision that it had taken these provisions into account in reaching its decision. He took no issue with the fact that the Board did not repeat this in the reasons that it gave on its reconsideration, which is the decision that is the subject of this application for judicial review.
[70] It is difficult to maintain that the Board failed to take into account a matter that it stated that it had considered. However, its reasons would undoubtedly have been strengthened if they had indicated more clearly that the Board had kept these provisions firmly in mind when it grappled with the case.
[71] Nonetheless, in my opinion counsel’s real objection is that the Board failed to give sufficient weight to the statutory directives: this is a matter of application rather than interpretation, and is reviewable on a standard of unreasonableness. And, while I might have been inclined to come to a different conclusion from that of the Board if I had been in its position, I cannot say, as I have already indicated, that its conclusion was either unreasonable, or even clearly wrong
E. CONCLUSION
[72] For these reasons the application for judicial review is dismissed.