Date: 20010927
Docket: T-1510-00
Neutral citation: 2001 FCT 1059
Ottawa, Ontario, this 27th day of September, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
PATRICK GRENIER
Applicant
- and -
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
APPLICATION UNDER Rule 300
of Federal Court Rules, 1998 SOR/98-106
[1] This is an application for judicial review brought pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision dated July 14, 2000 of the Member Designate, Pension Appeals Board (the "Member Designate"). In his decision, the Member Designate refused the applicant leave to appeal to the Pension Appeals Board (the "PAB").
[2] The applicant seeks an order that he be granted leave to appeal to the PAB. In the alternative, the applicant seeks an order setting aside the above decision and an order referring the matter back for determination in accordance with directions.
Background Facts
The Application for Disability Benefits
[3] The applicant, Patrick Grenier, was born March 17, 1942. The applicant worked as a general labourer (in construction) with one employer from 1968 until September 30, 1994 and has a grade eight education. The applicant lives with his sister and brother-in-law in his mother's house. The applicant states in his affidavit in support of this application for judicial review that he stopped working in 1994 due to "Degenerative Arthritis, Cervical and Lumbar Spine". The applicant's application for disability benefits made pursuant to the Canada Pension Plan, R.S.C. 1985 c-8 ("CPP") indicates that he stopped working in 1994 because he was laid off due to a shortage of work.
[4] The applicant's application for disability benefits was received by the respondent on September 25, 1995. The application included a medical report from his family physician, Dr. Duggan, dated September 22, 1995, which diagnosed the applicant with "Degenerative Arthritis, Cervical and Lumbar Spine". The report indicates that Dr. Duggan began seeing the applicant for this problem in May of 1995. The report states that the applicant's "prognosis is poor for return to work". The application also included a report concerning x-rays of the applicant's back made by Dr. Lyons in May of 1995. By a letter dated November 10, 1995, the applicant's application for disability benefits was denied. In part, the letter reads:
The information in your file shows that when you applied for benefits, you had the ability to do some form of light work, suitable to your condition and limitations, on a regular basis. Thus, we cannot consider your disability to be severe and prolonged, as defined in the Canada Pension Plan legislation, and you are not eligible for benefits.
[5] The applicant, by letter dated February 2, 1996, expressed his disappointment with this decision and sought a reconsideration. An independent medical evaluation of the applicant was conducted on May 2, 1999 by Dr. Racine. Dr. Racine, in a medical report dated May 22, 1999, was of the opinion that the applicant may be unable to return to work in construction, but that he was a candidate capable of a lighter or more sedentary occupation. The respondent informed the applicant by letter dated May 23, 1997 that because he did not meet the requirements of the Canada Pension Plan, he could not be granted disability benefits.
Appeal to the Review Tribunal
[6] The applicant then appealed to the Review Tribunal, which held a de novo hearing on August 10, 1999. The hearing was scheduled for an earlier date, but had to be adjourned because the applicant was hospitalized on October 14, 1998 with a "Mood Disorder, possibly with
psychotic symptoms (loss of contact with reality)". The applicant was released from the hospital on November 9, 1998.
[7] In addition to the above evidence, another report of Dr. Duggan dated April 27, 1998 was before the Review Tribunal. Although Dr. Duggan writes that he has not seen the applicant since August of 1997, he states the applicant has been incapacitated for the purposes of doing physical labour since at least May of 1995 and that he should probably be considered eligible for a disability pension since that date. Dr. Duggan assumed the applicant is not better since his last visit because his degenerative medical condition cannot be reversed. Both the applicant and his sister gave oral testimony at the hearing. The Review Tribunal dismissed the applicant's appeal by decision dated October 22, 1999, stating in part the following:
While there is subjective evidence both from the Appellant and his sister that the Appellant could not continue to work, neither the specialist nor the family doctor state that he is disabled from doing all work and the x-ray reports do not show degeneration so severe that it would keep the Appellant from working.
There is no objective medical evidence with respect to the psychotic episode and that it existed before October 1998. It is, therefore, outside of the Minimum Qualifying Period.
Based on all the above reasons the Tribunal dismisses the appeal.
Application for Leave to Appeal to the Pension Appeals Board (PAB)
[8] On January 18, 2000, the applicant submitted an application for leave to appeal and notice of appeal of the above decision to the PAB. If leave to appeal was granted, the applicant intended to appeal on the following grounds:
(a) The Review Tribunal erred in finding that there was no objective medical evidence to show that the Appellant suffered from a disability that was both severe and prolonged.
(b) The Review Tribunal erred in its determination that the Appellant was not "disabled" on the grounds that it rejected the evidence of the Appellant and his witness because this evidence was "subjective".
(c) The Review Tribunal further erred in its assessment of the Appellant's capacity for work and his ability to be gainfully employed.
[9] Leave to appeal the decision of the Review Tribunal was refused by the Member Designate on July 14, 2000. In refusing leave to appeal, the Member Designate's reasons read in part as follows:
The Appellant must be found continuously disabled within the meaning of the said legislation from December 1997 being the Minimum Qualifying Period.
The Tribunal stated that "neither the specialist nor the family doctor state that he is disabled from doing all work . . ."
It requires a demonstrated error on the part of the Review Tribunal or additional evidence that may lead to a different conclusion on appeal in order to justify leave being granted.
This application fails to disclose such grounds and I am not persuaded that leave should be granted.
Leave to appeal is therefore refused.
[10] The applicant now seeks judicial review of the above decision.
Relevant Statutory Provisions
[11] Subsection 42(2) of the Canada Pension Plan, supra states:
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(2) For the purposes of this Act, (a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph, (i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and (ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and (b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made. |
(2) Pour l'application de la présente loi_: a) une personne n'est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d'une invalidité physique ou mentale grave et prolongée, et pour l'application du présent alinéa_: (i) une invalidité n'est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice, (ii) une invalidité n'est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès; b) une personne est réputée être devenue ou avoir cessé d'être invalide à la date qui est déterminée, de la manière prescrite, être celle où elle est devenue ou a cessé d'être, selon le cas, invalide, mais en aucun cas une personne n'est réputée être devenue invalide à une date antérieure de plus de quinze mois à la date de la présentation d'une demande à l'égard de laquelle la détermination a été établie. |
And subsections 83(1), (2) and (2.1) of the Act state:
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83. (1) A party or, subject to the regulations, any person on behalf thereof, or the Minister, if dissatisfied with a decision of a Review Tribunal made under section 82, other than a decision made in respect of an appeal referred to in subsection 28(1) of the Old Age Security Act, or under subsection 84(2), may, within ninety days after the day on which that decision was communicated to the party or Minister, or within such longer period as the Chairman or Vice-Chairman of the Pension Appeals Board may either before or after the expiration of those ninety days allow, apply in writing to the Chairman or Vice-Chairman for leave to appeal that decision to the Pension Appeals Board. (2) The Chairman or Vice-Chairman of the Pension Appeals Board shall, forthwith after receiving an application for leave to appeal to the Pension Appeals Board, either grant or refuse that leave. (2.1) The Chairman or Vice-Chairman of the Pension Appeals Board may designate any member or temporary member of the Pension Appeals Board to exercise the powers or perform the duties referred to in subsection (1) or (2). |
83. (1) La personne qui se croit lésée par une décision du tribunal de révision rendue en application de l'article 82 -- autre qu'une décision portant sur l'appel prévu au paragraphe 28(1) de la Loi sur la sécurité de la vieillesse -- ou du paragraphe 84(2), ou, sous réserve des règlements, quiconque de sa part, de même que le ministre, peuvent présenter, soit dans les quatre-vingt-dix jours suivant le jour où la décision du tribunal de révision est transmise à la personne ou au ministre, soit dans tel délai plus long qu'autorise le président ou le vice-président de la Commission d'appel des pensions avant ou après l'expiration de ces quatre-vingt-dix jours, une demande écrite au président ou au vice-président de la Commission d'appel des pensions, afin d'obtenir la permission d'interjeter un appel de la décision du tribunal de révision auprès de la Commission. (2) Sans délai suivant la réception d'une demande d'interjeter un appel auprès de la Commission d'appel des pensions, le président ou le vice-président de la Commission doit soit accorder, soit refuser cette permission. (2.1) Le président ou le vice-président de la Commission d'appel des pensions peut désigner un membre ou membre suppléant de celle-ci pour l'exercice des pouvoirs et fonctions visés aux paragraphes (1) ou (2). |
Issue
[12] Did the Member Designate commit a reviewable error in refusing the applicant's application for leave to appeal?
Analysis and Decision
[13] As indicated, this is an appeal from the applicant's application for leave to appeal to the Pension Appeals Board. On a leave to appeal application, the hurdle to be overcome by the applicant is lower than on the hearing of the merits of the appeal. In Mervyn K. Martin v. The Minister of Human Resources Development (December 26, 1999), Docket A-229-98 (F.C.A.), Malone J.A. speaking for the Court of Appeal put it as follows at page 3:
Subsequent to the above decision, Madam Justice Reed in Kerth v. Canada (Minister of Human Resources Development) [1999] F.C.J. No. 1252, August 13, 1999, also considered the standard of review to be applied by the Federal Court of Canada, Trial Division in reviewing decisions relative to leave to appeal applications to the PAB.
Justice Reed found that a leave to appeal proceeding is a preliminary step to a hearing on the merits. As such "it is a first and lower hurdle for the applicant to meet than that that must be met on the hearing of the appeal on the merits" (see page 6 of decision). The Court relied on the case of Kurniewicz v. Canada (Minister of Manpower and Immigration) (1974) 6 N.R. 225, at p. 230 (F.C.A.) for the proposition that some arguable ground upon which the proposed appeal might succeed is needed in order for leave to be granted.
[14] In Kenin Calliho v. The Attorney General of Canada (May 12, 2000), Docket T-859-99 (F.C.T.D.), MacKay J. stated at paragraph 15:
On the basis of this recent jurisprudence, in my view the review of a decision concerning an application for leave to appeal to the PAB involves two issues;
1. whether the decision maker has applied the right test - that is, whether the application raises an arguable case without otherwise assessing the merits of the application, and
2. whether the decision maker has erred in law or in appreciation of the facts in determining whether an arguable case is raised. If new evidence is adduced with the application, if the application raises an issue of law or of relevant significant facts not appropriately considered by the Review Tribunal in its decision, an arguable issue is raised for consideration and it warrants the grant of leave.
It is clear from the jurisprudence of this Court that it is not my role to assess the merits of the application. The Member Designate stated that in order for him to grant leave to appeal, it "requires a demonstrated error on the part of the Review Tribunal or additional evidence that may lead to a different conclusion on appeal . . .". According to the Martin, supra decision and the Calliho, supra decision, this is not the test to be applied. The test is whether or not the application raises an arguable issue. The Member Designate made an error by applying an incorrect test when determining whether or not to grant leave.
[15] The question now becomes whether or not the application raises an arguable case or issue. For ease of reference, I will repeat subparagraph 42(2)(a)(i) of the Canada Pension Plan Act, supra which reads as follows:
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(2) For the purposes of this Act, (a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph, (i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and |
(2) Pour l'application de la présente loi_: a) une personne n'est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d'une invalidité physique ou mentale grave et prolongée, et pour l'application du présent alinéa_: (i) une invalidité n'est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice, |
In its decision, the Review Tribunal stated in part as follows:
" . . . neither the specialist nor the family doctor state that he is disabled from doing all work . . ."
[16] The applicant argues that the Review Panel erred by referring to being "disabled from doing all work" when subparagraph 42(2)(a)(i) refers to the applicant being "incapable regularly of pursuing any substantial gainful occupation". I agree with the applicant that the question as to whether or not the Review Panel erred raises an arguable issue.
[17] The applicant also argued that the Review Panel erred in determining disability by only relying on the medical evidence for the purpose of determining whether the applicable was incapable of regularly pursuing any substantially gainful occupation. There was oral evidence from the applicant and his sister with respect to this point. I cannot determine the merits of this argument but it, in my opinion, is an arguable issue.
[18] The application for judicial review is therefore allowed and for the reasons outlined above, the decision of the Member Designate is set aside and the matter is referred back for determination in accordance with these reasons.
ORDER
[19] IT IS ORDERED that the application for judicial review is allowed, the decision of the Member Designate is set aside and the matter is referred back for determination in accordance with these reasons.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
September 27, 2001