Hornby ( Re )
T-1776-92
Cullen J.
6/5/93
15 pp.
Application to review and set aside Veterans Appeal Board's refusal to grant pension benefits in respect of alleged disability due to hearing loss in both ears -- Applicant pilot in noisy Wellington bombers during World War II -- Canada Pension Commission rejecting application for pension based on opinion from its medical advisor indicating hearing loss not symmetrical as would be expected from cabin noise and not showing typical noise-induced hearing loss pattern -- Opinion unsigned and applicant unaware of who authored opinion -- Pension Entitlement Board subsequently holding "audiogram is not typical of a noise induced loss" -- Veterans Appeal Board confirming Entitlement Board decision, also referring to Commission's medical officer's opinion -- Applicant applying for reconsideration based on new medical evidence -- Board dismissing new evidence as "speculative" -- Decision stating complied with Veterans Appeal Board Act, s. 10(5), requiring drawing of every reasonable inference and resolution of any doubt in appellant's favour -- S. 10(4) providing Board "shall notify appellant" before accepting as evidence in appeal any medical opinion -- Application allowed -- Veterans Appeal Board erred in relying almost exclusively upon unsigned medical opinion without disclosing it to applicant and without commenting on qualified expert evidence reaching different conclusion -- Making applicant aware of medical opinion insufficient to meet demands of procedural fairness -- Although abundant opportunity to introduce medical evidence to refute contents of medical opinion, no opportunity to cross-examine author or information contained therein -- Labelle v. Canada (Treasury Board) and Canadian Human Rights Commission (1987), 76 N.R. 222 (F.C.A.) distinguished -- Applicant also denied benefit of s. 10(4) -- S. 10(4) imposing duty to notify applicant and show compliance therewith -- "Notify" having connotation of concrete action -- No evidence of notification of Board's intention -- All hearings and decisions dependent upon Canada Pension Commission decision, which was simply appropriated in shorter version at each level -- No consideration or real testing of applicant's evidence against Commission's evidence -- If simply found Commission's evidence better or more credible, should have commented on why applicant's evidence not acceptable or credible -- Not dealing with opinion hearing loss could have resulted from infection and noise -- Must be clearly shown Board considered all evidence, especially that of specialist relying upon all circumstances under which applicant served in war before coming to proper decision -- Board entitled to accept evidence considers most cogent as long as considers special rules in s. 10(5) and reasoning in evaluating evidence not defective -- Board's reasoning flawed as simply repeated previous decisions without indicating why rejected applicant's evidence -- Veterans Appeal Board Act, R.S.C., 1985 (3rd Supp.), c. 20, ss. 3, 10(4),(5) -- Pension Act, R.S.C., 1985, c. P-6, s. 21(1)(d).