Date: 20220707  
Docket: T-1039-21  
Citation: 2022 FC 1002  
Ottawa, Ontario, July 7, 2022  
PRESENT: Mr. Justice McHaffie  
BETWEEN:  
JONATHAN PELLETIER  
Applicant  
and  
ATTORNEY GENERAL OF CANADA  
Respondent  
JUDGMENT AND REASONS  
I.  
Overview  
[1]  
On June 28, 2016, Jonathan Pelletier was playing soccer-baseball as part of a mandatory  
sports activity with the Canadian Armed Forces when he jumped, landed awkwardly, and broke  
his left femur at the hip. An appeal panel of the Veterans Review and Appeal Board [VRAB]  
found the injury did not qualify for a critical injury benefit under section 44.1 of the Veterans  
Well-being Act, SC 2005, c 21, since it was not “the result of a sudden and single incident.”  
Page: 2  
Rather, the VRAB found the injury was the culmination of a chain of events that included Mr.  
Pelletier’s osteoarthritis of the hip and his resulting hip resurfacing surgery.  
[2]  
Mr. Pelletier seeks judicial review of the VRAB’s refusal of his critical injury benefit  
claim. For the reasons that follow, I agree with Mr. Pelletier that the VRAB drew factual  
inferences regarding the role of his prior hip condition in causing his injury that had no support  
in the evidence. As this was the central reason for the VRAB’s decision, I conclude the decision  
was unreasonable and must be set aside.  
[3]  
The application for judicial review is therefore allowed and Mr. Pelletier’s appeal is  
remitted to a differently constituted appeal panel of the VRAB for redetermination.  
II.  
Issues and Standard of Review  
[4]  
Mr. Pelletier identifies the following issues on this application:  
A. Did the VRAB err by inferring causes of the injury that were not supported by the  
evidence?  
B. Did the VRAB err by interpreting the meaning of “periprosthetic” without sufficient  
evidence?  
C. Did the VRAB err in failing to assess the evidence presented by Mr. Pelletier in the  
manner required by the applicable statutory framework?  
D. Did the VRAB err in finding that Mr. Pelletier’s injury was not the result of a sudden and  
single incident?  
Page: 3  
Although Mr. Pelletier sets these issues out separately, they are tightly interwoven. In  
[5]  
essence, the VRAB found Mr. Pelletier’s injury was not the result of a sudden and single incident  
because, on its assessment of the evidence, including medical evidence that used the term  
“periprosthetic,” the injury was caused not only by the fall at the soccer-baseball game but also  
by Mr. Pelletier’s osteoarthritis and earlier hip surgery. I will therefore consider all of the issues  
cumulatively rather than as distinct issues.  
[6]  
As the parties agree, judicial review of the merits of the VRAB’s decisions is  
presumptively undertaken on the reasonableness standard: Canada (Minister of Citizenship and  
Immigration) v Vavilov, 2019 SCC 65 at paras 1617, 2325; Abdulle v Canada (Attorney  
General), 2021 FC 708 at para 9. This includes the issue of causation, which is a question of  
fact: Primeau v Canada (Attorney General), 2021 FC 829 at paras 4245, 65, 72, citing Benhaim  
v St-Germain, 2016 SCC 48 at para 36.  
[7]  
However, Mr. Pelletier argues the correctness standard should apply to one aspect of the  
VRAB’s analysis, namely the standard of causation for determining whether an injury is “the  
result of” a sudden and single incident. Citing the Federal Court of Appeal’s decision in Cole, he  
argues that discerning the standard of causation is not a question of fact but one of statutory  
interpretation, and one that is of central importance to the legal system: Cole v Canada (Attorney  
General), 2015 FCA 119 at paras 4659. I cannot agree. Cole must be read in light of the  
Supreme Court of Canada’s subsequent decision in Vavilov, which in my view dictates that the  
reasonableness standard applies to all of the issues raised, including the standard of causation.  
Page: 4  
The Court of Appeal in Cole gave two main reasons for concluding the correctness  
[8]  
standard applied. First, it relied on earlier jurisprudence applying the correctness standard: Cole  
at paras 4751, citing Dunsmuir v New Brunswick, 2008 SCC 9 at para 62 and Canada (Attorney  
General) v Frye, 2005 FCA 264. Second, it found that questions of causation arise in other areas  
of law and that statutory interpretation on such questions did not fall within the VRAB’s  
expertise: Cole at paras 5253.  
[9]  
With respect to the first of these reasons, the “recalibration” of the standard of review  
analysis in Vavilov means that a court seeking to determine the appropriate standard should look  
to Vavilov first rather than simply apply prior jurisprudence: Vavilov at para 143. Indeed, as the  
Attorney General points out, even prior to Vavilov, the Federal Court of Appeal questioned  
whether Cole accorded with developments in administrative law: Fawcett v Canada (Attorney  
General), 2019 FCA 87 at paras 1819. With respect to the second reason in Cole, Vavilov  
instructs that the expertise of a tribunal is no longer relevant to the selection of the standard of  
review: Vavilov at paras 2731, 58. Further, the fact that a dispute touches on an important issue  
“when framed in a general or abstract sense” is not sufficient to attract correctness review:  
Vavilov at paras 5961. In my view, the standard of causation applicable in deciding whether an  
injury was “the result of” a sudden and single incident for purposes of paragraph 44.1(1)(b) of  
the Veterans Well-being Act is not an issue that requires a “single determinative answer” and  
does not fall within the category of questions of law of central importance to the legal system as  
a whole: Vavilov at para 62.  
Page: 5  
[10] I therefore conclude the reasonableness standard applies to all of the issues on this  
application. On this standard, the Court is concerned with the existence of justification,  
transparency, and intelligibility in the decision-making process. The Court does not seek to  
substitute its own decision for that of the administrative decision maker. Rather, it reviews the  
reasons of the decision maker with “respectful attention” seeking to understand the reasoning  
process. A reasonable decision is based on an internally coherent and rational chain of analysis  
and is justified in light of the “legal and factual constraints” that bear on the decision: Vavilov at  
paras 8387, 99107.  
III.  
A.  
Analysis  
Critical injury benefits under section 44.1 of the Veterans Well-being Act  
[11] The Veterans Well-being Act, known at the time of Mr. Pelletier’s injury as the Canadian  
Forces Members and Veterans Re-establishment and Compensation Act, is designed to  
“recognize and fulfil the obligation of the people and Government of Canada to show just and  
due appreciation to members and veterans for their service to Canada”: Veterans Well-being Act,  
s 2.1. It seeks to fulfil this purpose by providing for a variety of services, assistance, benefits, and  
compensation to Canadian Forces members and veterans.  
[12] The benefit at issue in this matter is the “critical injury benefit,” provided for in  
sections 44.1 and 44.2 of the Veterans Well-being Act. Section 44.1 sets out the eligibility  
requirements for the benefit, and provides for regulation-making powers related to two of those  
requirements:  
Page: 6  
Critical Injury Benefit  
Eligibility  
Indemnité pour blessure grave  
Admissibilité  
44.1 (1) The Minister may, on  
application, pay a critical injury  
benefit to a member or veteran  
who establishes that they  
44.1 (1) Le ministre peut, sur  
demande, verser une indemnité  
pour blessure grave au militaire  
ou vétéran si celui-ci démontre  
sustained one or more severe and qu’il a subi une ou plusieurs  
traumatic injuries, or developed  
an acute disease, and that the  
injury or disease  
blessures graves et traumatiques  
ou a souffert d’une maladie aiguë  
et que les blessures ou la  
maladie, à la fois :  
(a) was a service-related injury  
a) sont liées au service;  
or disease;  
(b) was the result of a sudden  
and single incident that  
occurred after March 31, 2006;  
and  
b) ont été causées par un seul  
événement soudain postérieur  
au 31 mars 2006;  
(c) immediately caused a  
severe impairment and severe  
interference in their quality of  
life.  
c) ont entraîné  
immédiatement une  
déficience grave et une  
détérioration importante de sa  
qualité de vie.  
Factors to be considered  
Facteurs à considérer  
(2) In deciding whether the  
(2) Pour établir si la déficience  
impairment and the interference  
est grave et la détérioration de la  
in the quality of life referred to in qualité de vie importante, le  
paragraph (1)(c) were severe, the ministre tient compte des facteurs  
Minister shall consider any  
prescribed factors.  
prévus par règlement.  
Regulations  
Règlements  
(3) The Governor in Council may, (3) Le gouverneur en conseil peut  
for the purpose of subsection  
44.1(1), make regulations  
respecting the determination of  
what constitutes a sudden and  
single incident.  
prendre des règlements  
concernant ce qui constitue, pour  
l’application du paragraphe  
44.1(1), un seul événement  
soudain.  
[Emphasis added.]  
[Je souligne.]  
Page: 7  
[13] As permitted under subsections 44.1(2) and (3), the Governor in Council has promulgated  
regulations regarding factors relevant to whether the impairment and interference in the quality  
of life are “severe,” and respecting the determination of what constitutes a “sudden and single  
incident”: Veterans Well-being Regulations, SOR/2006-50, ss 48.3, 48.4. Of particular relevance  
is section 48.4 of the Veterans Well-being Regulations, which defines a “sudden and single  
incident”:  
48.4 For the purpose of  
48.4 Pour l’application du  
paragraphe 44.1(1) de la Loi, un  
seul événement soudain s’entend  
de l’événement unique — tel  
qu’un accident automobile, une  
chute, une explosion, une  
blessure par balle, une  
électrocution et une exposition à  
un agent chimique au cours  
duquel le militaire est  
subsection 44.1(1) of the Act, a  
sudden and single incident is a  
one-time event including  
motor vehicle accidents, falls,  
explosions, gunshot wounds,  
electrocution, and exposure to  
chemical agents in which the  
member is abruptly exposed to  
external factors.  
brusquement exposé à des  
facteurs externes.  
[Emphasis added.]  
[Je souligne.]  
[14] In addition to these “legal constraints” that define when a member or veteran is eligible  
for a critical injury benefit, the VRAB’s decision was constrained by provisions in both the  
Veterans Well-being Act and the VRAB’s constating statute, the Veterans Review and Appeal  
Board Act, SC 1995, c 18 [VRAB Act] that give broad instructions regarding the application of  
the Veterans Well-being Act and the consideration of evidence.  
[15] The “purpose” section of the Veterans Well-being Act provides that the statute “shall be  
liberally interpreted” to fulfill the recognized obligation to members and veterans: Veterans  
Well-being Act, s 2.1. Section 3 of the VRAB Act contains similar language. While this injunction  
Page: 8  
echoes the approach to the interpretation of all statutes, set out in section 12 of the Interpretation  
Act, RSC 1985, c I-21, its appearance in section 2.1 of the Veterans Well-being Act and section 3  
of the VRAB Act underscores the importance of a liberal interpretation of the statutory provisions  
pertaining to compensation and benefits for members and veterans.  
[16] This approach is reinforced by section 43 of the Veterans Well-being Act, which calls on  
the Minister and their delegates to give applicants the “benefit of the doubt” in making decisions  
on compensation and benefits in three ways:  
Benefit of doubt  
Décisions  
43 In making a decision under  
this Part or under section 84, the  
Minister and any person  
43 Lors de la prise d’une  
décision au titre de la présente  
partie ou de l’article 84, le  
designated under section 67 shall ministre ou quiconque est  
désigné au titre de l’article 67 :  
(a) draw from the  
a) tire des circonstances  
portées à sa connaissance et  
des éléments de preuve qui lui  
sont présentés les conclusions  
les plus favorables possible au  
demandeur;  
circumstances of the case, and  
any evidence presented to the  
Minister or person, every  
reasonable inference in favour  
of an applicant under this Part  
or under section 84;  
(b) accept any uncontradicted  
evidence presented to the  
Minister or the person, by the  
applicant, that the Minister or  
person considers to be credible  
in the circumstances; and  
b) accepte tout élément de  
preuve non contredit que le  
demandeur lui présente et qui  
lui semble vraisemblable en  
l’occurrence;  
(c) resolve in favour of the  
applicant any doubt, in the  
weighing of the evidence, as to  
whether the applicant has  
established a case.  
c) tranche en faveur du  
demandeur toute incertitude  
quant au bien-fondé de la  
demande.  
Page: 9  
[17] Nearly identical language is found in the VRAB Act, under the heading “Rules of  
evidence,” requiring the VRAB to apply the three principles above in “all proceedings under this  
Act”: VRAB Act, s 39.  
B.  
The medical evidence  
[18] There is no dispute that Mr. Pelletier broke his femur at a game of soccer-baseball on the  
morning of June 28, 2016. He jumped to field a ball, twisted in the air, landed awkwardly on his  
left leg, and fell to the ground. Mr. Pelletier was taken to the Montfort Hospital in Ottawa, where  
he underwent surgery. Hospital records that were part of the record before the VRAB include an  
initial physical assessment report by a Dr. Hobden, the results of several X-rays, and an operative  
report prepared by the treating orthopaedic surgeon, Dr. Rancourt. Dr. Rancourt’s report gives a  
diagnosis of “Left hip femoral neck fracture in patient with previous hip resurfacing” and  
describes the surgery in detail. Dr. Rancourt also provided a letter addressed to Veterans Affairs  
Canada dated August 19, 2016, filed in support of Mr. Pelletier’s claim for a critical injury  
benefit, and another dated October 4, 2018, filed in support of his appeal to the appeal panel of  
the VRAB.  
[19] In addition to the Montfort Hospital records, the VRAB had before it a medical opinion  
prepared by Dr. Toms, a medical advisor to the Minister. Dr. Tomsopinion, dated  
January 31, 2017, was prepared in the context of Mr. Pelletier’s claim for a critical injury benefit  
and in response to a consultation request by a pension adjudicator. Both Dr. Toms’ opinion and  
Dr. Rancourt’s operative report refer to Mr. Pelletier having undergone hip resurfacing, a  
Page: 10  
procedure involving the insertion of a prosthetic, in 2014 as a result of osteoarthritis. Dr. Toms’  
opinion refers to the fracture as being “periprosthetic,” as do each of Dr. Rancourt’s letters.  
[20] Dr. Tomsopinion concluded that while Mr. Pelletier had undergone complex surgery, it  
did not fall within the criteria of section 48.3 of the Veterans Well-being Regulations, which  
relate to whether the injury caused a severe impairment and severe interference in the member or  
veteran’s quality of life: Veterans Well-being Regulations, ss 48.3(e), (h); Veterans Well-being  
Act, s 44.1(c).  
C.  
The VRAB’s decision  
[21] The VRAB accepted that Mr. Pelletier’s injury was severe and traumatic, that it was  
service-related, and that it caused a severe impairment and severe interference with  
Mr. Pelletier’s quality of life, thereby meeting the requirements of subsection 44.1(1) and  
paragraphs 44.1(1)(a) and (c). However, it concluded the injury was not “the result of a sudden  
and single incident” within the meaning of paragraph 44.1(1)(b) of the Veterans Well-being Act  
since it was not caused by a “one-time event” as required by section 48.4 of the Veterans Well-  
being Regulations.  
[22] The VRAB noted Mr. Pelletier had suffered from osteoarthritis in his left hip for a  
number of years and had received a benefit in 2015 for this condition. It referred to Dr. Toms’  
opinion which identified the osteoarthritis as the reason the hip resurfacing prosthetics were  
needed, and highlighted Dr. Toms’ reference to the injury being a “periprosthetic fracture of the  
left hip” (fracture periprothétique de la hanche gauche). The VRAB noted that Dr. Rancourt  
Page: 11  
had similarly mentioned the hip resurfacing and referred to the fracture as a periprosthetic in her  
letters, while Dr. Hobden’s initial assessment referred to the possibility of a “dislocation or  
fracture around hardware.”  
[23] The VRAB found this evidence showed the injury was a fracture near the prosthetic  
implant (une fracture en périphérie de l’implant prothétique autour ou à proximité de cet  
implant). It then reached the following conclusions:  
The Act states that the injury, to be eligible, must be caused by a  
sudden and single incident.  
The appeal committee concludes that the fracture was not caused  
by a one-time event, but rather by a chain of events: the  
osteoarthritis of the hip; the evolution of osteoarthritis probably  
over a period of several years; the placement of a prosthetic  
implant (i.e. resurfacingof the hip); the fall at the soccer-  
baseball game; and unfortunately the fracture associated with the  
prosthetic implant. Therefore, the fall at the soccer-baseball game  
on June 28, 2016, was not the sole cause as required by  
subsection 44.1(1) of the Act.  
The appeal panel concludes that the injury the veteran sustained on  
June 28, 2016 was unfortunately the culmination of an interrelated  
chain of events that began several years ago. Even after reviewing  
the evidence in the best possible light, the appeal panel finds that  
the available evidence depicts an evolving situation and not a  
sudden incident, as required by subsection 44.1(1) of the Act.  
The panel cannot accept counsels submission that it is clear that  
in the appellant’s case, a fall is what caused the injury.Rather, the  
panel finds that the fall is one of the causal factors, but it is far  
from being the only one.  
[Emphasis added; my translation.]  
[24] It is clear from this reasoning that the VRAB concluded that Mr. Pelletier’s osteoarthritis  
and his prosthetic implant were contributing causes to his injury.  
Page: 12  
D.  
The VRAB’s decision is unreasonable  
(1)  
There was no medical evidence of causation  
[25] As Mr. Pelletier points out, and the Attorney General does not dispute, none of the  
medical evidence before the VRAB stated that either Mr. Pelletier’s osteoarthritis or his  
prosthetic implant caused, or even contributed to, his injury. Dr. Hobden’s initial assessment  
gives only a preliminary diagnosis of the injury expressed with question marks (her notes read  
“?fracture/dislocation” and “?dislocation or fracture around hardware”) and does not address the  
cause of the injury. Neither Dr. Rancourt’s operative report nor her subsequent letters say the  
osteoarthritis or the prosthesis was a contributing cause. Dr. Rancourt’s operative report referred  
to “periprosthetic fracture” as a potential risk of the surgery, along with other risks such as nerve  
damages, infection, leg length discrepancy, and postoperative pain. But she does not give any  
opinion that the osteoarthritis or the prosthesis caused the fracture Mr. Pelletier had suffered.  
[26] As for Dr. Toms, while he was asked for his medical opinion on the claim, both the  
pension adjudicator’s request and Dr. Toms’ opinion were focused on the severity criteria in  
section 48.3 of the Veterans Well-being Regulations and not on causation. Dr. Toms’ opinion  
does not say Mr. Pelletier’s osteoarthritis and/or prosthesis were causes of the injury or give any  
other opinion on causation.  
[27] There was, in short, no evidence from any of the physicians involved that Mr. Pelletier’s  
osteoarthritis and/or hip prosthetics caused or contributed to his broken bone or, more generally,  
that osteoarthritis and/or hip prosthetics cause or contribute to bone breakage near the prosthetic.  
Page: 13  
[28] The Attorney General conceded at the oral hearing of this matter that there was no  
medical evidence on the issue of causation. However, the Attorney General argues the VRAB  
drew a reasonable factual inference regarding causation based on the evidence before it,  
including the circumstances of the injury at the soccer-baseball game and the repeated references  
in the medical reports to the proximity between the break and the prosthesis, to conclude that the  
osteoarthritis and implant contributed to the break.  
[29] I am conscious of the importance of reviewing courts not “reweighing and reassessing the  
evidence considered by the decision maker”: Vavilov at para 125, citing Canada (Canadian  
Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at para 55. However,  
this cannot prevent a reviewing court from reviewing evidence to determine whether the  
evidence is capable of supporting the factual findings of an administrative decision maker. A  
decision that is not supported by or consistent with the evidence may be regarded as  
unreasonable: Makivik Corporation v Canada (Attorney General), 2021 FCA 184 at para 86,  
citing Vavilov at para 126.  
(2)  
The factual inference could not be drawn without medical evidence  
[30] Factual inferences, including those pertaining to causation, are regularly drawn by finders  
of fact from the evidence before them, general knowledge, experience, logic, and “common  
sense.” A difficulty arises, however, where an inference is drawn that goes beyond such common  
experience or common sense, and requires scientific knowledge or evidence to support the  
inference. In my view, the VRAB’s findings fall into the latter category. Whether, or the extent  
to which, either osteoarthritis or a hip resurfacing prosthetic are contributing causes to a broken  
Page: 14  
femur at the hip are not matters of mere experience, logic, or common sense. The sequelae of  
such medical conditions and in particular their impact on the likelihood of bone fractures are  
matters of medical knowledge and expertise.  
[31] This Court has cautioned the VRAB from making its own medical findings and  
inferences not based in the evidence, noting that section 38 of the VRAB Act gives the VRAB the  
ability to obtain independent medical advice: Rivard v Canada (Attorney General), 2001 FCT  
704 at paras 3943; Macdonald v Canada (Attorney General of Canada), 2003 FC 1263 at  
paras 2124; Thériault v Canada (Attorney General), 2006 FC 1070 at paras 5560; Dugré v  
Canada (Attorney General), 2008 FC 682 at paras 2428. In Rivard, Justice Nadon, then of this  
Court, relied on section 38 and the “Rules of evidence” provision in section 39 of the VRAB Act  
to conclude that the VRAB should not second-guess an applicant’s medical evidence without  
supporting evidence:  
In my opinion, the very existence of section 38 suggests that the  
Board does not have an inherent jurisdiction over medical matters.  
It does not have any particular medical expertise that would enable  
it to state without supporting evidence that Dr. Sestier’s opinion  
and the article he adduced in this case were not part of the medical  
consensus. Therefore, I believe that the Board could not present  
medical facts that had not been adduced as evidence for the  
purpose of rebutting the applicants evidence. If the Board required  
evidence other than that adduced by the applicant or evidence  
representing the medical context, it had only to invoke section 38  
and seek medical advice.  
Therefore, I am of the view that sections 38 and 39 of the VRAA  
and the case law, when read together, require that contradictory  
evidence be adduced in the file before rejecting medical evidence  
adduced by the applicant. Unless the Board believed that the  
evidence was not credible, which was not the case here, it could  
not reject Dr. Sestier’s opinion without having contradictory  
evidence before it.  
Page: 15  
Therefore, I believe that by rejecting Dr. Sestiers opinion, the  
Board erred in its application of section 39 of the VRAA and  
breached its duties therein. As mentioned by the case law cited  
above, this constitutes a jurisdictional error that nullifies the  
decision in its entirety.  
[Emphasis added; Rivard at paras 4244.]  
[32] Relying on Rivard, Justice Lemieux in Macdonald held that the VRAB had “embarked  
upon forbidden territory making medical findings to discount uncontradicted credible evidence  
when it had no inherent medical expertise and had the ability to obtain and share independent  
medical evidence on points which troubled it”: Macdonald at para 24. To the same effect,  
Justice Shore in Thériault criticized the VRAB’s reliance on a medical dictionary found on the  
Internet to substitute its opinion for that found in the applicant’s medical evidence, relying on  
sections 38 and 39, and the Rivard and Macdonald cases: Thériault at paras 5559.  
[33] Justice Blanchard’s decision in Dugré bears some similarities to the current case, as the  
veteran suffered a fall and there was an issue regarding whether some of his subsequent  
problems were attributable to a pre-existing condition: Dugré at paras 46, 2122.  
Justice Blanchard noted there was no evidence “that the debilitating effects suffered by the  
applicant are attributable to the pre-existing condition” and found it unreasonable for the VRAB  
to infer they were: Dugré at paras 2428.  
[34] The Attorney General correctly points out that in each of the foregoing cases, the  
applicant had presented medical evidence of causation and the VRAB’s error lay in reaching  
contrary findings in the absence of medical evidence. In the present case, Mr. Pelletier did not  
file medical evidence stating that his fall was the unique cause of his fracture. The  
Page: 16  
Attorney General underscores that it is a claimant’s onus to prove their claim, including as to  
causation, even in the face of section 39: Canada (Attorney General) v Wannamaker,  
2007 FCA 126 at para 5.  
[35] I agree that Rivard, Macdonald, Thériault, and Dugré each involved the VRAB drawing  
medical inferences without evidence that contradicted the claimant’s evidence. Nonetheless, the  
principles expressed in those cases underscore more generally the importance of the VRAB not  
drawing inferences on medical matters going beyond common experience, in the absence of any  
evidentiary support. This is true as a general matter of evidence, and is particularly so where the  
resulting inference is not “in favour of an applicant”: Veterans Well-being Act, s 43; VRAB Act,  
s 39.  
[36] This is not to say that the VRAB is required to accept any medical hypothesis or evidence  
put forward by an applicant uncritically. The Veterans Well-being Act and VRAB Act themselves  
only call on the VRAB to draw “every reasonable inference in favour of the applicant”  
[emphasis added] and to accept uncontradicted evidence where it considers it to be credible:  
Veterans Well-being Act, s 43(a)(b); VRAB Act, s 39(a)(b). Evidence filed on behalf of a  
veteran that is baseless, speculative or not credible can be rejected, even without the benefit of  
independent medical advice: Jarvis v Canada (Attorney General), 2011 FC 944 at paras 1617,  
25; Wannamaker at paras 6, 2831.  
[37] This is not that case, however. In the present case, the uncontradicted evidence was that  
Mr. Pelletier’s injury followed the fall at the soccer-baseball game. There is no dispute that that  
Page: 17  
fall was, at the very least, a cause of his broken hip. The VRAB recognized it as such, describing  
the fall as part of the “chain of events” causing the injury.  
[38] In this regard, I cannot accept Mr. Pelletier’s contention that the Rivard line of cases  
means the VRAB cannot make any findings of “medical fact” that are not supported by evidence.  
Some factual findings and inferences that touch on the “medical” may nonetheless be readily  
within the VRAB’s fact-finding competence as they are matters of common experience or  
knowledge. For example, the fact that a fall can cause a broken bone could be considered to  
touch on the medical. But it is so clearly within the scope of common knowledge that it requires  
no medical expertise or evidence to infer that a fall that preceded a broken bone was a cause of  
the break. The VRAB’s conclusion that the fall was a cause of the break was thus reasonable  
even though none of the medical reports state that Mr. Pelletier’s broken femur was caused by  
the fall.  
[39] The same cannot be said of the VRAB’s conclusion that there were other events in the  
causative chain, notably Mr. Pelletier’s osteoarthritis and hip prosthetic. In my view, this  
conclusion was unreasonable. Without any evidence, whether in the form of a medical opinion, a  
hospital or medical report, or otherwise, to support the inference that the osteoarthritis and/or hip  
prosthetic were causes of Mr. Pelletier’s broken hip, it was not open to the VRAB to make this  
factual finding.  
[40] The VRAB’s reasons highlight the references in the medical reports to the hip resurfacing  
and the prosthesis, as well as the repeated use of the term “periprosthetic.” None of the medical  
Page: 18  
evidence defines the word “periprosthetic.” Mr. Pelletier submits that without evidence of the  
meaning of the term, it was unreasonable for the VRAB to interpret the word “periprosthetic” to  
indicate some form of causation between the injury and the prosthetic, as opposed to just  
proximity. I do not agree that the VRAB interpreted “periprosthetic” as indicating causation. To  
the contrary, the VRAB appears to have interpreted the term exactly as Mr. Pelletier proposes,  
namely as meaning simply in the periphery, around, or in proximity to the prosthetic (en  
périphérie de l’implant prothétique autour ou à proximité de cet implant). Neither party  
suggested the term had any other meaning.  
[41] However, having interpreted the term in this way, the VRAB then appears to conclude  
that since the medical reports used the term, and referred to the location of the injury as being  
near the prosthetic, the break was not just near the prosthetic but associated causally with the  
prosthetic. As noted above, the medical evidence does not give this indication, and there was no  
evidence before the VRAB that would allow it to infer as a medical matter that a break near the  
prosthetic was caused by the prosthetic. This may be a sound medical inference to draw, or it  
may not. But in the absence of evidence establishing that it was a sound medical inference, it was  
not open to the VRAB to draw the inference, particularly given its statutory obligation to draw  
every reasonable inference in favour of Mr. Pelletier: Veterans Well-being Act, s 43; VRAB Act,  
s 39.  
[42] In this regard, I cannot agree with the Attorney General that the mere fact that the term  
“periprosthetic” was used in the medical reports must mean that it was medically relevant and  
that this must imply some degree of causation. The fact that the break was periprosthetic may  
Page: 19  
well be medically relevant. Indeed, it appears to have been highly relevant to the surgery  
required to treat the injury. However, this does not mean, without further medical evidence to  
this effect, that it was a cause of the break.  
[43] Nor can I agree with the Attorney General that the mere circumstances of the injurythe  
fact that a jump and fall at a soccer-baseball game resulted in a broken hipitself indicates that  
there must have been other causes. I question whether such an inference would be sound, given  
the potential variety of injuries that can arise in sports. In any case, it is not an inference the  
VRAB itself made. The VRAB did not conclude that there must have been other causes because  
of the nature of the injury. Rather, it found Mr. Pelletier’s osteoarthritis and his prosthetic were  
causes of the injury based on the references to the medical reports, even though those reports did  
not support that inference.  
[44] I note that the VRAB also did not purport to apply its own specialized medical  
knowledge or expertise. While an administrative decision maker’s expertise may be relevant to  
performing reasonableness review, that expertise must be demonstrated through their reasons:  
Vavilov at para 93. As noted above, this Court has found that the VRAB does not have  
specialized medical expertise as an institution: Rivard at para 42. In any case, the VRAB did not  
profess in its reasons to apply or demonstrate any particular or specialized knowledge with  
respect to osteoarthritis or hip prosthetics in drawing its inferences. Rather, it relied on the  
medical evidence, which did not support those inferences.  
Page: 20  
[45] Finally, I reject the Attorney General’s reliance on Mr. Pelletier’s onus to prove his  
claim, including as to causation. Mr. Pelletier adequately demonstrated that the fall at the soccer-  
baseball game caused his injury. While the onus is on a member of the Canadian Forces or  
veteran to establish their eligibility for a benefit under the Veterans Well-being Act, this does not  
require the member or veteran to disprove every other possible or hypothesized cause of the  
injury, particularly where such other causes are not established in any of the medical evidence. A  
claimant’s onus does not justify the drawing of inferences that are not supported by the evidence.  
(3)  
The standard of causation  
[46] Mr. Pelletier argues the VRAB erred in its approach to causation under section 44.1 of  
the Veterans Well-being Act by rejecting his claim because his injury was caused by a chain of  
events. He argues that paragraph 44.1(1)(b) requires the injury to be the “the result of a sudden  
and single incident[emphasis added] but does not require it to be the only cause or contributing  
factor to the injury. Mr. Pelletier points to the Supreme Court’s decision in Athey v Leonati,  
where the Court rejected the notion of “apportionment of causation” in tort cases between  
tortious and non-tortious conduct and confirmed that a plaintiff was not required to show the  
defendant’s conduct to be the “sole cause” of their injury: Athey v Leonati, [1996] 3 SCR 458 at  
paras 1220.  
[47] In light of my determination above regarding the VRAB’s inferences, I need not decide  
whether the VRAB’s approach to causation was reasonable. I consider it more appropriate to  
refer the matter back to the VRAB, which can consider these issues anew if necessary, including  
whether the tort principles in Athey v Leonati are applicable in the context of assessing causation  
Page: 21  
under the Veterans Well-being Act and, as a related matter, whether a pre-existing medical  
condition precludes a critical injury benefit, if there is evidence the condition contributed to the  
injury. I note in this regard that the VRAB did not have the assistance of Mr. Pelletier’s  
submissions on this point when rendering its decision. This was likely because the earlier  
decision of the review panel that was appealed to the appeal panel determined the “sudden single  
incident” issue on different grounds, namely whether Mr. Pelletier was “abruptly exposed to  
external factors” at the soccer-baseball game.  
IV.  
Conclusion  
[48] The application for judicial review is therefore granted. Mr. Pelletier’s appeal is remitted  
for redetermination by a differently constituted appeal panel of the VRAB.  
[49] Mr. Pelletier sought his costs of the application for judicial review. The Attorney General  
did not seek costs. In light of Mr. Pelletier’s success on the application, and considering the  
factors set out in Rule 400(3) of the Federal Courts Rules, SOR/98-106, he is entitled to costs at  
the usual level.  
Page: 22  
JUDGMENT IN T-1039-21  
THIS COURT’S JUDGMENT is that  
1. The application for judicial review is allowed. Jonathan Pelletier’s appeal is remitted  
for redetermination to a differently constituted appeal panel of the Veterans Review  
and Appeal Board.  
2. Costs are payable to Mr. Pelletier in accordance with the middle of Column III.  
Nicholas McHaffie”  
Judge  
FEDERAL COURT  
SOLICITORS OF RECORD  
T-1039-21  
DOCKET:  
JONATHAN PELLETIER v ATTORNEY GENERAL  
OF CANADA  
STYLE OF CAUSE:  
HELD BY VIDEOCONFERENCE  
MARCH 9, 2022  
PLACE OF HEARING:  
DATE OF HEARING:  
JUDGMENT AND REASONS:  
DATED:  
MCHAFFIE J.  
JULY 7, 2022  
APPEARANCES:  
Michael Gaber  
Matthew Schneider  
Colin Laroche  
FOR THE APPLICANT  
Alexander Brooker  
FOR THE RESPONDENT  
SOLICITORS OF RECORD:  
Borden Ladner Gervais LLP  
Calgary, Alberta  
FOR THE APPLICANT  
Attorney General of Canada  
Edmonton, Alberta  
FOR THE RESPONDENT  


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