Letter to the Minister of Veterans Affairs regarding Agent Orange Claims - 2017

29 November 2017

Dear Minister:

I am writing to advise you that from this date forward, when the Board receives a request to hear an Agent Orange claim, I will exercise the Board's authority under subsection 85(1)(b) of the Pension Act and 86(b) of the Canadian Forces Members and Veterans Re-establishment and Compensation Act*, to refer all such claims back to you for further consideration.

This decision has been brought about as a result of the following Federal Court decisions:

Over the years, the Board has received a substantial number of applications involving alleged exposure to Agent Orange during service at CFB Gagetown in the 1960s. In evaluating these claims, the Board-like the Department-has relied upon the Fact Finders' Report prepared by Dr. Dennis Furlongi at the request of the Government of Canada. The Furlong Report was accepted as definitive evidence of:

  • the location of Agent Orange spraying;
  • the dates of Agent Orange spraying;
  • the duration during which the toxic agents in the defoliant were active or at hazardous levels;
  • the drift area resulting from prevailing winds; and
  • which individuals or occupations would have been exposed to Agent Orange at hazardous levels during the two known spray periods at CFB Gagetown for three days in June of 1966 and four days in July of 1967.

The Furlong Report noted that: the testing took place in a remote and heavily forested part of the Base; the test areas had not been used since that time for training purposes; and a limited number of people were involved with the two test events. And, it concluded that:

  • those who acted as mixers, loaders, and flaggers for the spraying-as well as those who may have been allowed access to the sprayed areas within 24 hours of the spraying-may have experienced short-term health effects; and
  • potential long-term health risks were identified as a possibility for only those individuals directly involved with the application of the herbicides or clearing of treated brush soon after herbicide application. ii

The above-noted Federal Court decisions, when reviewed as a body of law, have made clear that the Department and the Board have been incorrectly evaluating the Furlong Report. These decisions establish that the Furlong Report cannot be relied upon to support the conclusion that military personnel posted to Gagetown during the spraying periods were restricted from entering the areas in which Agent Orange was sprayed. In particular, from Norman Allan Blount v. Attorney General of Canada, 2017 FC 647:

  • "the Board could not reasonably conclude that [the Furlong Report] was the best evidence on [whether military personnel were restricted from the spray sites] when it was faced with conflicting evidence from Mr. McAllister and witnesses who served with him at CFB Gagetown";
  • "The Furlong Report cannot stand as conclusive evidence that Agent Orange was sprayed in an 'unused' area"; and
  • "the Appeal Panel's determination that the Furlong Report was 'the best evidence' as to what took place at the Base can no longer be considered as being valid in view of McAllister (2014)."

In general terms, the Federal Court has identified some evidentiary gaps, particularly: 1) the location and movement of units in the CFB Gagetown training area before, during, and, after the Agent Orange spraying periods in 1966 and 1967; and 2) a comparison of those locations and movements with the Agent Orange spray area.

The Court's conclusions have led me to determine that Veterans who have had their claims adjudicated at the first level based upon the Furlong Report have suffered a substantial breach of procedural fairness. It is for this reason that, from this date forward, I will refer such cases back to you. This will ensure that all Veterans with an Agent Orange claim receive a first-level decision based upon the law as it has been interpreted by the Federal Court, and will fulfill the Board's obligation of procedural fairness to the Veterans that come before us.

I would be pleased to discuss this issue with you at your convenience, to answer any questions you may have.

Yours sincerely,

Thomas Jarmyn
Chairman

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*Effective April 1, 2018, the Canadian Forces Members and Veterans Re-establishment and Compensation Act will be known as the Veterans Well-being Act.
iSubmitted to the Department of National Defence and then Minister of National Defence Peter MacKay in August 2007.
iiPage 15, Fact-Finders' Report by Dr. Dennis Furlong.

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