Matchee v. Canada ( Attorney General )
T-1489-87
Wetston J.
5/1/99
29 pp.
Judicial review of Veterans Review and Appeal Board's denial of Clayton Matchee's pension entitlement-While serving in Somalia as member of Canadian Armed Forces, Matchee arrested in connection with investigation into torture, murder of Somali teenager-Within 24 hours of arrest, Matchee found hanging by combat boot laces from roof beam of bunker in which confined-Guards cut him down, thereby saving his life-Matchee suffered anoxic encephalopathy, brain damage-In February 1995, Canadian Pension Commission denying application for pension entitlement for Matchee's disability on ground disability resulting from improper conduct-Decision affirmed by Review Panel, Appeal Panel-Pension Act, s. 3(1) defining "improper conduct" as wilful disobedience of orders, wilful self-inflicted wounding, vicious or criminal conduct-S. 22(1) prohibiting award of pension when disability due to improper conduct-S. 39 requiring Appeal Panel to draw from all circumstances of case and all evidence presented to it every reasonable inference in favour of applicant-Must also resolve any doubt in weighing of evidence in favour of applicant-Panel not giving appreciable weight to psychiatric opinion, in form of questions, answers to hypothetical questions, based on brief statement of facts, public knowledge of events, but no medical examination-No direct medical evidence as to state of Matchee's mental health prior to incident-Panel concluding no evidence applicant incapable of forming intent to injure himself, or even that incapable of rational thinking-No reviewable error with respect to finding attempted suicide wilful, self-inflicted-As to intention to wound, applicant relying on Board's decision in Billard (VAB/VB-10966) for contention wilful, self-inflicted wounding involving intention to do act, as well as result-Submitted Matchee not obtaining result intended-Whether difference between intending to kill oneself, intending to wound oneself within meaning of s. 3-Act of attempted suicide by hanging necessarily involving self-inflicting injury which may or may not result in death-Actions clearly directed at self-injury sufficient to result in death-Likely death would have occurred except for interruption of guards-But facts not supporting finding of improper conduct-(1) Plain meaning proper approach to legislative interpretation of Act-S. 2 requiring liberal construction, interpretation to provide compensation to disabled veterans, families-(2) 1980 amendments to s. 22(1) removing "death" from section dealing with improper conduct suggesting Parliament not intending to penalize dependants of those who committed suicide or intentionally wounded themselves resulting in death-Death, disability not having same meaning-While death not resulting herein, Court not satisfied attempted suicide resulting in brain damage, where no evidence of falseness or artifice, amounting to improper conduct-(3) With respect to wilful, self-inflicted wounding, s. 22(1) designed, in part, to discourage spurious disability claims-No evidence suggesting purpose of attempted suicide to fake suicide attempt in order to obtain pension for himself, family-Panel erred in law by misapprehending meaning of statute, application of law to facts-Reasonable apprehension of bias not demonstrated-Appointment of larger panel shortly before hearing commenced not giving rise to reasonable apprehension of bias simply because larger panel not common, lawyers not appointed or two new members formed part of majority-No evidence of attitudinal bias, or pre-determination of issues-While no interpretation hearing held, applicant having every opportunity to present argument on question of statutory interpretation prior to Appeal Panel rendering decision-Delay in reaching, promulgating decision not constituting evidence of reasonable apprehension of bias-Delay more consistent with indecision than interference with process or biased appraisal of issues-Nothing improper in delay-Matchee not treated so differently that reasonably well-informed person, viewing matter practically, realistically would think reasonable apprehension of bias existed-As to failure to follow previous Panel's decisions, while consistency in decision-making desirable as enhancing equality before law, reducing arbitrariness, tribunal must remain flexible so can make decision on legal principles believes pertinent to case before it-Application allowed-Pension Act, R.S.C., 1985, c. P-6, ss. 2, 3(1) "improper conduct", 22(1), 39 (as am. by R.S.C., 1985 (3rd Supp.), c. 28, s. 28; S.C. 1995, c. 18, s. 57).