Date: 20060314
Docket: T-1345-05
Citation: 2006 FC 322
Ottawa, Ontario, March
14, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MINISTER
OF HUMAN RESOURCES DEVELOPMENT
Applicant
- and -
NOEL
P. LEWIS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application for judicial review of a decision of
the Pension Appeals Board (the Board), dated July 7, 2005, which denied the
applicant leave to appeal a decision of the Review Tribunal granting the
respondent a disability pension under the Canada Pension Plan, R.S.C.
1985, c. C-8 (CPP).
[2] The applicant requests
that:
1. the application for
judicial review be allowed, without costs; and
2. the matter be remitted to
a different member designate of the Board for
re-determination.
Background
[3] Mr. Noel P. Lewis (the
respondent) sustained injuries from a motor vehicle accident in July 2002 which
brought an end to his employment as a paramedic. He applied for CPP disability
benefits in October 2003. On his application form, he described his main
disabling conditions as an open patella fracture, left shoulder and rotator
cuff tear, left acromioplasty and removal of bursa, head injury, right temporal
traumatic epileptic seizure, and subconjunctival haemorrhage and running of the
right eye. He also indicated that he had difficulties in ascending and
descending stairs, lifting, bending, kneeling and carrying; a reduced range of
motion; and seizure activity. The Minister of Human Resources Development (the applicant)
denied the respondent’s application because the evidence revealed that although
the respondent may not be able to do his usual work, he was able to do some
type of work. This decision was confirmed upon reconsideration. The respondent
then appealed this decision to a Review Tribunal, which allowed his appeal on
December 21, 2004. The Review Tribunal found that the respondent could not
return to his work as of the date of his motor vehicle accident, and therefore
awarded him a disability pension with a date of onset of July 2002.
[4] The Minister filed an
application for leave to appeal the Review Tribunal’s decision. Leave to appeal
was refused by the Board on July 7, 2005. This is the judicial review of the
Board’s decision refusing leave to appeal.
Reasons for the Board’s Decision
[5] The Board’s decision is
reproduced below in full:
The Review Tribunal found that the
Respondent was disabled within the meaning of the Canada Pension Plan as of
July 2002, the month of his motor vehicle accident.
The Tribunal in comprehensive reasons
reviewed the medical evidence and the submission of the Minister. It is noted
that Drs. Shaikh and Tumilty confirmed that Mr. Lewis was disabled and unable
to work. While medication mostly controlled his traumatic epilepsy, he has had
difficulty tolerating the medication. His driver’s permit has been revoked.
The Tribunal issued reasons which allow
everyone to know how they reached their conclusion; they put considerable faith
in the evidence of Mr. Lewis which was their right. Giannaros v. Minister of
Social Development, 2005 FCA 187 at page 4 reviews a similar situation and
finds in that case the Board was entitled to deal with the evidence. Leave to
appeal is refused.
Issue
[6] The
applicant raised the following issue:
In refusing leave to appeal, did the
Board apply the right test, that is, whether the applicant raised an arguable
case?
Applicant’s Submissions
[7] The applicant submitted
that when a party applies to the Board pursuant to subsection 83(1) of the CPP
for leave to appeal a decision of the Review Tribunal, the party does not have
to prove his or her case. Leave to appeal is a first and lower hurdle to meet
than the hurdle that must be met on the hearing of the appeal on the merits
(see Kerth v. Canada (Minister of Human Resources Development) (1999), 173 F.T.R. 102
at paragraph 24 (T.D.)).
[8] The applicant submitted
that while the CPP does not set out any criteria for determining leave
applications under section 83, case law has established that the test is
whether the application raises an arguable case (see Callihoo v.
Canada (Attorney General) (2000), 190 F.T.R. 114 at paragraph 15 (T.D.)).
[9] The applicant submitted
that the Board assessed the Review Tribunal’s decision on its merits on the
disability issues rather than asking whether the applicant had an arguable
case, and in so doing, the Board applied the wrong test. It was submitted that
the Board went further than considering whether an arguable case was raised.
[10] The Board in its reasons
cited the decision of Giannaros v. Canada (Minister of Social
Development),
2005 FCA 187, which concerns an application for judicial review of a decision
of the Board dismissing an appeal on its merits. The applicant submitted that
the Giannaros decision is not relevant to the assessment of a request
for leave to appeal.
[11] The applicant submitted
that in its application for leave to appeal, it provided evidence of an
arguable case that the respondent is able to pursue a substantially gainful
occupation within the meaning of subparagraph 42(2)(a)(i) of the CPP.
Respondent’s Submissions
[12] The respondent did not
file any written submissions and did not attend the hearing before me.
Analysis and Decision
[13] Issue 1
In refusing leave to
appeal, did the Board apply the right test, that is, whether the applicant
raised an arguable case?
In Callihoo above, Justice
MacKay stated that judicial review applications in respect of applications for
leave to appeal to the Pension Appeals Board generally involve 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.
[14] This application is concerned with the first
issue, namely, whether the Board applied the right test in deciding whether to
grant leave to appeal. As this is a question of law, the Board’s decision will
be set aside if it applied the incorrect test. See, for example, Martin v.
Canada (Minister of
Human Resources Development) (1999), 252 N.R. 141 (F.C.A.), where Justice Malone wrote at
paragraphs 6 and 7:
On examination of the reasons given by
the PAB Vice-Chairman in refusing leave to appeal it is evident that he went
much further than merely considering whether an arguable case or question of
law or jurisdiction had been raised and instead considered whether the
appellant could succeed on the merits. This is an error of law. The
Vice-Chairman stated (Appeal Book, page 60):
It is difficult to see how the Board
could come to any different conclusion from that reached by the Review
Tribunal. The medical evidence does not support the contention that the
applicant is incapable regularly of pursuing any gainful occupation. It shows
he is limited as to what work he can do, but supports the Minister's contention
that less physically demanding work would be within his capacity. As to the
applicant's education qualifications, any limitation flowing from that
consideration are not based on disability. Leave to appeal cannot be justified.
We are of the respectful view that the
Vice-Chairman of the PAB in making his decision applied an incorrect test and
placed too heavy a burden on the appellant when assessing the application for
leave to appeal. In our view there is at least an arguable case as to the
proper interpretation of subparagraph 42(2)(a)(i) of the Canada Pension Plan
which requires that for a disability to be severe the claimant must be
"incapable regularly of pursuing any substantially gainful
occupation". The Review Tribunal, however, assumed that the appellant had
to show that he is "incapable of doing any type of work".
[15] In the present
application, the key paragraph of the Board’s reasons is reproduced below:
The Tribunal issued reasons which allow
everyone to know why they reached their conclusion; they put considerable faith
in the evidence of Mr. Lewis which was their right. Giannaros v. Minister of
Social Development, 2005 FCA 187 at page 4 reviews a similar situation and
finds in that case the Board was entitled to deal with the evidence. Leave to
appeal is refused.
[16] It
is obvious from the above paragraph that the Board applied the Giannaros
decision in coming to its decision to refuse leave to appeal. The difficulty
with applying this decision flows from the fact that the Giannaros
decision was a judicial review of a decision on the merits of the case. It was
not a decision dealing with leave to appeal as in the present case.
[17] I
am of the view that the Board assessed this present case on the merits of the
application when it applied the Giannaros decision. That is not the
proper test to apply when determining whether to grant leave to appeal. In leave
applications, the Board only has to determine whether the applicant has raised
an arguable issue without otherwise assessing the merits of the case. As a
result of applying the wrong test, the Board has committed an error of law. The
Board’s decision must be set aside.
[18] The
applicant’s application for judicial review is therefore allowed without costs
and the matter is referred to a different member designate of the Board for re-determination.
JUDGMENT
[19] IT IS ORDERED that:
1. The application for
judicial review is allowed and the matter is referred to a different member
designate of the Board for re-determination.
2. There shall be no
order as to costs.
“John
A. O’Keefe”
ANNEX
Relevant
Legislation
A person is entitled to receive
a disability pension if he or she is disabled within the meaning of section 42
of the Canada
Pension Plan,
R.S.C. 1985, c. C-8.
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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.
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(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.
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Section 83 of the Canada
Pension Plan provides that a party may apply to the Board for leave to
appeal a decision of the Review Tribunal.
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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).
(3) Where leave to
appeal is refused, written reasons must be given by the person who refused
the leave.
(4) Where leave to
appeal is granted, the application for leave to appeal thereupon becomes the
notice of appeal, and shall be deemed to have been filed at the time the
application for leave to appeal was filed.
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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).
(3) La personne qui
refuse l'autorisation d'interjeter appel en donne par écrit les motifs.
(4) Dans les cas où
l'autorisation d'interjeter appel est accordée, la demande d'autorisation
d'interjeter appel est assimilée à un avis d'appel et celui-ci est réputé
avoir été déposé au moment où la demande d'autorisation a été déposée.
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