Date: 20000613
Docket: T-1959-99
BETWEEN:
JOSEPHINE CAROL PAPROSKI
Applicant
- and -
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the judicial review of a decision by a Pension Appeals Board member, designated under subsection 83(2.1) of the Canada Pension Plan, R.S.C. 1985, c. C-8 ("CPP"), denying the applicant leave to appeal to the Pension Appeals Board.
[2] A person who is dissatisfied with a decision by the Minister of Human Resources Development, denying a CPP benefit, may appeal that decision to a Review Tribunal (subsection 82(1)). The Tribunal can confirm or vary the Minister"s decision and can take any action in relation to the decision that the Minister might have taken (subsection 82(11)). A person who is dissatisfied with a Tribunal decision may apply in writing to a designated member of the Pension Appeal Board ("designated member"), for leave to appeal the Tribunal"s decision to the Board (subsection 83(1)).
[3] If leave to appeal is granted, the hearing before the Board is essentially a trial de novo. Thus, evidence that was not before the Board can be relevant to the application for leave, and to the subsequent Board hearing if leave is granted.
[4] Board decisions are subject to judicial review by the Federal Court of Appeal (subsection 84.1). Decisions by a designated member, on leave to appeal applications, are subject to judicial review by the Federal Court Trial Division (Martin v. Canada (Minister of Human Resources Development (A-229-98, December 16, 1999 (F.C.A.)).
[5] When determining whether leave to appeal should be granted, the test to be applied by the designated member "is a first and lower hurdle for the applicant to meet" than that an applicant must meet on the hearing of an appeal on the merits. The seeking and obtaining of leave is a preliminary step to a hearing on the merits. (See, Martin, supra and Kerth v. Canada (Minister of Human Resources Development (1999), 173 F.T.R. 102.)
[6] In the present case, the reasons given by the Board member when denying leave are similar to those given for the decisions that were under review in Martin and Kerth. Those decisions were held to have been made by reference to the wrong legal test.
[7] The reasons, in this case, indicate that the designated member assessed the application for leave as through he was deciding an appeal on the merits, thereby requiring the applicant to meet a heavier burden than is required to obtain leave to appeal. The reasons for the decision read:
| The Review Tribunal concluded its decision by stating: |
| "Since the Appellant, by her own admission, indicated an ability to do modified work at her place of employment, it was obvious that the Appellant did not meet the definition of a severe and prolonged disability as defined by the Canada Pension Plan legislation and the Tribunal dismissed the appeal." |
| I find the conclusion convincing, as I am sure would any panel of the Pension Appeals Board. For this reason, leave to appeal is refused. |
[8] Counsel for the applicant argues that since the designated member applied the wrong legal test, and thereby erred in law, his decision must be quashed and either an order given that leave to appeal be granted, or that the leave application be referred back to be reconsidered by a different member. I have not been persuaded that this Court has jurisdiction to grant the first remedy described above. If the decision is set aside, the remedy is to refer the application for leave back for reconsideration by the Chairman, Vice-Chairman or another designated member.
[9] Counsel for the respondent argues that even though the designated member applied the wrong legal test, the decision should not be quashed and referred back for reconsideration. She argues that the applicant must also demonstrate some merit to her leave application. I understand counsel"s argument to be that to send the matter back for rehearing, merely because the wrong test was articulated, if in fact there is no merit to the application for leave, is a waste of everyone"s time and money and of scarce judicial resources.
[10] I accept the practical sense of that argument. At the same time, I am conscious that it is not this Court"s role to decide the merits of the leave application. I think that I am only entitled to consider the merits of the applicant"s case to determine whether it is frivolous or vexatious, or completely void of any merit.
[11] In this case the applicant makes three arguments as to why leave to appeal should be granted: (1) the Tribunal relied upon a finding that she had admitted that she was capable of work, when in fact she made no such admission; (2) the applicant has produced new medical evidence that raises a genuine doubt about the correctness of the Tribunal decision; (3) the Tribunal made an erroneous finding of fact, when it found that the applicant did not suffer from depression.
[12] The last argument can be easily dealt with because the Tribunal did not find that the applicant did not suffer from depression. It found that at the date of the hearing, the applicant was not taking any medication. I did not understand this finding to be challenged.
[13] The new medical evidence is a Functional Capacity Evaluation conducted by the Ontario March of Dimes on March 16, 1999, and a report consequent thereon, dated March 19, 1999. The report states that the applicant has the physical capacity to "work at the Sedentary - Light Physical Demand Level for a 4 hour day". The evaluation also notes that the applicant broke down, crying, on several occasions during the testing, which led to a disruption in the testing. At the same time, reference to her emotional stability or lack thereof, was not a matter that found its way into the Report, because the testing was not designed to evaluate those factors. I could not conclude that the new medical evidence differs appreciably from what is already on the file.
[14] This leaves the applicant"s assertion that the Tribunal misunderstood her evidence. She states in her affidavit:
| 16. The Tribunal Panel stated in its decision that I was able to perform the modified work at my place of employment. With all due respect, this is not true. I testified at the Hearing that I was not able to perform the work, including the lighter duties and modified work available to me prior to stopping work in January, 1994. Has I been able to perform modified work, I most certainly would have remained with Canada Post. It was hard work, but I was proud to be employed there. |
[15] The applicant was not cross-examined on her affidavit. There is no transcript of the hearing before the Tribunal. The designated member, in refusing leave to appeal, relied on the Tribunal"s finding that the applicant had made an admission that she could perform the modified work that had been made available.
[16] Counsel for the respondent argues that the applicant did not challenge the correctness of the Tribunal"s finding in her submissions to the designated member when seeking leave to appeal the Tribunal decision. Counsel also argues that there is an admission in writing on the record.
[17] I do not read the record as supporting those assertions. Paragraphs 15 and 20 of the applicant"s submissions to the designated member on the leave to appeal application read:
| 15. The Appellant was provided with employment accommodations in the latter months of 1993. She was occasionally provided lighter duties, but primarily her work was modified whereby she was allowed to sit on a stool to sort the mail. By January 18, 1994, the Appellant was forced to leave work altogether because her body was feeling completely spent; her right arm was immobile with burning pain, she was unable to stand because of pain in her lower extremities and she was suffering weakness and pain generally throughout her body. |
| . . . |
| 20. The Tribunal Panel found that the Appellant did not meet the definition of a severe and prolonged disability on the basis of her alleged "admission" that she could perform modified work at her place of employment. It is respectfully submitted that the Review Tribunal erred in finding that the Appellant was able to perform the modified work available to her at Canada Post. As described above, the Appellant stopped work even though accommodations had been made at her work site and she had attempted modified work. |
[18] In a March 20, 1996, evaluation of her physical situation, Assess Med Inc. wrote:
| Mrs. Paproski stated that Worker"s Compensation, apparently, rejected both claims for her feet and for her arm. She stated that she has not been able to return to work since that time as, apparently, no modified duties have been made available. She reported that Dr. Harding applied for Canada Pension Plan as well as LTD and both of these were rejected. |
[19] In the April 3, 1996, questionnaire she filled out with respect to her claim for disability benefits, she wrote that she had stopped work completely as a result of repetitive strain injuries; she referred to the modified work accommodation as an option that had been open to her in the past.
[20] The applicant's application for leave, then, raises a question that requires a weighing of evidence, an evaluation of the credibility of the applicant"s assertion that her evidence was misunderstood by the Tribunal, a determination of the proper interpretation of some of the documentary evidence. These are outside the scope of a reviewing judge"s mandate on a judicial review.
[21] For the reasons given, the decision under review will be set aside and the applicant's leave to appeal application returned for rehearing by the Chairman, Vice-Chairman or by a different designated member.
Judge
OTTAWA, ONTARIO
June 13, 2000