Federal court | Public Law | Public authorities | Armed forces
Applicant was member of Regular Canadian Forces for 10 years until May 1992, and two days before her release she underwent audiogram examination which showed no significant hearing loss. In January 2016, over 23 years after leaving Regular Forces, applicant applied to Minister of Veterans Affairs for disability award based on hearing loss and tinnitus. Benefits adjudicator denied application because there was no evidence to show that service factors had contributed to applicant's conditions. Review panel affirmed adjudicator's decision with respect to claimed condition of hearing loss, but granted award for applicant's tinnitus. Applicant appealed, and appeal panel concluded that applicant's claimed condition of hearing loss did not arise out of, nor was it directly connected with, her service in Regular Forces. Applicant applied for judicial review of appeal panel's decision. Application dismissed. Appel panel did not err in its treatment of medical evidence of ENT specialist. Eight factors listed by appeal panel to assess credibility of medical reports emanated from court's jurisprudence, they did not constitute test, and they were not used as test. Appeal panel clearly expressed its concerns about medical evidence and explained why it lacked credibility, and its conclusion that report did not provide compelling evidence in support of applicant's claim was reasonable. Appeal panel gave appropriate weight to Entitlement Eligibility Guidelines, and it did not unreasonably fetter its discretion by utilizing Guidelines. It was reasonable for appeal panel to look to Guidelines to assess applicant's level of hearing at time of discharge from Regular Forces, and it reasonably applied Guidelines in finding that applicant did not suffer from loss of hearing when she left Regular Forces. Applicant did not meet her burden of proving that service factors played significant role in her hearing loss. Applicant failed to establish to appeal panel's satisfaction that significant causal connection existed between her hearing loss and her military service. Appeal panel reasonably concluded that applicant's hearing loss was post-discharge in origin and was not caused, contributed to or aggravated by her military service. Appeal panel's reasons provided intelligible and transparent explanation for its decision, and outcome was defensible in respect of facts and law.
Everett v. Canada (Attorney General) (2019), 2019 CarswellNat 1594, 2019 FC 627, Keith M. Boswell J. (F.C.).
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