Federal Court


Crown

ARMED FORCES
Critical issue was whether veteran had been exposed to Agent Orange

Veteran started serving in Canadian Armed Forces around 1955. Veteran was allegedly exposed to herbicide known as “Agent Orange” in 1967. Veteran retired in 1975 when he was 43 years old. Veteran was diagnosed with prostate cancer when he was 63 years old. Veteran unsuccessfully applied for pension entitlement for prostate cancer. Veteran unsuccessfully appealed to Veterans Review and Appeal Board and unsuccessfully sought reconsideration. All decisions concluded there was no evidence that veteran had been exposed to Agent Orange. Veteran unsuccessfully sought further reconsideration based on new evidence. Veteran brought application for judicial review. Application granted; matter remitted for re-determination. Standard of review was reasonableness in light of prior authorities, and decision was not reasonable. Critical issue was whether veteran had been exposed to Agent Orange. Board chose to prefer findings of particular report that use of Agent Orange was limited over statements of veteran and his comrades that they had been exposed. Board read more into report than it actually stated. In particular, there was no clear finding in report that ordinary soldiers were restricted from spray sites and did not have access to these sites. Author of report acknowledged degree of exposure of individual to any chemical sprayed was indeterminable. Veteran should have been entitled to benefit of doubt pursuant to s. 39 of Veterans Review and Appeal Board Act (Can.). Nonetheless, determination of whether veteran was exposed to Agent Orange and extent of any exposure was better left to board.

McAllister v. Canada (Attorney General) (Oct. 17, 2014, F.C., Yves de Montigny J., File No. T-470-14) 246 A.C.W.S. (3d) 829.

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