Brychka v. Canada ( Attorney General )
T-1695-96
MacKay J.
2/2/98
18 pp.
Application for judicial review of decision of Veterans Review and Appeal Board-Applicant 72-year old veteran of Canadian Navy in which he served during Second World War-While near Naples, Italy between July and August 1944, number of ship Prince Henry's crew, including applicant contracting dysentery-Considered fit in 1946 medical discharge certificate-Treated by doctor in Dauphin, Manitoba for attacks in 1952, 1954-Diagnosed with ulcerative colitis-On June 6, 1959, applicant applied for pension under Pension Act-Canadian Pension Commission ruled condition post-discharge from navy, not attributable to applicant's military service-Pension Commission's decision appealed to, upheld by, Entitlement Board-Board concluding no medical evidence connecting intestinal difficulties of 1944 with condition applicant began suffering from in 1952-In April 1996, Veterans Review and Appeal Board decided again applicant's ailment post-discharge in origin, not related to applicant's active service-Board acting as sole review and appeal authority for war veterans' pensions-Veterans Review and Appeal Board Act, ss. 3, 39 create liberal, purposive guidelines for claims for veterans' pensions in light of nation's great moral debt to those who have served country-Board empowered under s. 38 to seek independent medical opinions regarding any matter before it-May reject medical evidence when has before it contradictory medical evidence-Must draw every reasonable inference in favour of applicant-Evidence on record suggesting stomach ailment in 1944 first manifestation of applicant's disease-Attributing evidence to recollections not enough to render evidence not credible, unreasonable without providing reasons for such finding-There must be finding evidence from recollections not credible-Facts on record regarding commencement of ailment, periodic manifestation, particularly since 1952, from sources other than applicant's own recollections-Evidence before Board attributing applicant's ailment to wartime service-No medical evidence before Board contradicting applicant's theory for possible commencement of ailment in Italy in 1944-Board obliged to make explicit finding medical evidence in support of applicant's claim not credible, to solicit own medical evidence dealing with issue of stress etiology, to accept applicant's uncontradicted evidence in rendering decision bearing in mind Act, ss. 3, 39-Board erred by failing to deal directly with evidence on merits-On judicial review, Court can consider only evidence before administrative decision-maker whose decision being reviewed, not new evidence-Proceeding not trial de novo-Task of Court on judicial review not to determine merits of whether applicant entitled to pension, but to assess whether any of grounds in Federal Court Act, s. 18.1 established-Application allowed in part-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5)-Pension Act, R.S.C., 1985, c. P6-Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ss. 3, 38, 39.