Federal Appeal

Public Law

Public authorities

Armed forces

Decision-maker advised to consider recommendations of reviewing court but not required to follow them

Applicant unsuccessfully claimed disability benefits on basis exposure to airborne particles while in armed forces caused sarcoidosis. Panel of Veterans Review and Appeal Board (panel) dismissed applicant’s appeal. Applicant’s application for judicial review of panel’s decision was granted by judge S, who remitted matter to second panel for redetermination taking into account court’s reasons. Second panel dismissed appeal. Applicant applied for judicial review alleging second panel did not follow instructions in judge S’s reasons. Judge F dismissed application. Applicant appealed. Appeal dismissed. 2017 Federal Court decision confirmed that in applications for judicial review, only instructions explicitly stated in judgment bind subsequent decision-maker. Decision-maker is advised to consider comments and recommendations of reviewing court in its reasons, but is not required to follow them. Second panel considered judge S’s reasons and concluded evidence did not establish military service was significant causal factor in development of sarcoidosis and applicant was not entitled to benefit. Judge F did not err in finding dismissal of second judicial review application was not contrary to judge S’s judgment or 2017 case.

Ouellet v. Canada (Attorney General) (2018), 2018 CarswellNat 99, 2018 FCA 25, Wyman W. Webb J.A., Richard Boivin J.A., and J. Woods J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 2728, 2017 CarswellNat 3457, 2017 FC 586, 2017 CF 586, Simon Fothergill J. (F.C.).

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