VETERANS |
Cundell v. Canada (Attorney General)
T-648-99
Teitelbaum J.
13/1/00
20 pp.
Application for judicial review of Veterans Review and Appeal Board (Board) decision confirming decision of Entitlement Review Board affirming Minister's decision denying pension entitlement for claimed condition of sarcoidosis under Pension Act, Appropriation Act No. 10, 1964--Applicant claiming condition resulting from having been heavily exposed to pollutants created by oil well fires during period of service in Persian Gulf during Gulf War--Issue whether Board committed reviewable error in deciding applicant not entitled to pension--Application allowed--Applicant bears burden of demonstrating Board made error of law or erroneous finding of fact made in perverse or capricious manner or without regard to material before Board--However, Pension Act, s. 21(3) providing injury or illness will be assumed to have been incurred during military service where no evidence to contrary--On basis of evidence herein, Board misapplied Veterans Review and Appeal Board Act, ss. 3 and 39 and misinterpreted Federal Court case law--While applicant bore burden of establishing causal link between current medical condition and military service, benefit of doubt must be given to applicant--Sole medical opinion before Board herein stated cause of sarcoidosis not clear--Board erred when refused applicant his right to pension based thereon--While etiology of sarcoidosis may be unclear, all x-rays of applicant before going to Persian Gulf showed no problem with lungs and post-return x-rays show sarcoidosis--If benefit of doubt must be resolved in favour of applicant and applicant must make proof on balance of probabilities, Board's decision patently unreasonable--Board erred in law by requiring much greater standard of proof than balance of probabilities--Applicant clearly entitled to pension--Appropriation Act No. 10, 1964, S.C. 1964-65, c. 34--Pension Act, R.S.C., 1985, c. P-6, s. 21(3) (as am. by S.C. 1990, c. 43, s. 8)--Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ss. 3, 39.