Date: 20061018
Docket: T-1451-05
Citation: 2006 FC 1246
Ottawa, Ontario, October 18,
2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
DALE
MARSDEN
Applicant
and
MINISTER OF HUMAN RESOURCES
AND SKILLS DEVELOPMENT CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is a 27 year old visually impaired student at McMaster University. He has Stargardt’s
disease, a chronic condition causing significant loss of vision. The
deterioration of his visual acuity began in approximately 1998. Mr. Marsden
withdrew from his studies in December, 1999. Unable to cope with debt he
accumulated in the course of his education and an unsuccessful painting
business, Mr. Marsden declared bankruptcy. Unable to maintain employment, Mr.
Marsden returned to McMaster University as a part-time student in
September 2004 hoping to complete his degree.
[2]
As
a post-bankrupt, however, Mr. Marsden found himself ineligible for Canada
Student Loans until he repaid his previous student loan debt of $1,952.50. Unemployed
and dependant on Employment Insurance and Ontario Disability Support Plan
benefits, Mr. Marsden applied to the Canada Student Loans Program (the CSLP)
for a debt forgiveness benefit available to students with permanent
disabilities. His application was denied because the CSLP determined that Mr.
Marsden did not have a “permanent disability” because he was still attending
school. This denial is the subject of this application for judicial review.
Background
[3]
Mr.
Marsden applies for a judicial review of the CSLP’s refusal on March 23, 2005 of
his application for a Permanent Disability Benefit, which would have cancelled
his obligation to repay student loans disbursed to him under the CSLP. Mr.
Marsden obtained Canada Student Loans while studying full-time at McMaster University between
September 1997 and December 1999.
[4]
Subsection
11(1) of the Canada Student Financial Assistance Act (the Act) provides
for the cancellation of the borrower’s repayment obligation to the lender or
Minister if the borrower has a permanent disability and experiences exceptional
hardship in repaying the loan due to the permanent disability.
[5]
Subsection
2(1) of the Canada Student Financial Assistance Regulations (the Regulations)
defines “permanent disability”:
|
INTERPRETATION
2.
(1) In the Act and these Regulations,
[…]
“permanent disability” means a
functional limitation caused by a physical or mental impairment that
restricts the ability of a person to perform the daily activities necessary
to participate in studies at a post-secondary school level or the labour
force and is expected to remain with the person for the person's expected
life; (invalidité permanente)
|
DÉFINITIONS
2. (1) Les définitions qui suivent s'appliquent à la Loi et au
présent règlement.
[…]
« invalidité
permanente » Limitation fonctionnelle causée par un état d'incapacité
physique ou mentale qui réduit la capacité d'une personne d'exercer les
activités quotidiennes nécessaires pour participer à des études de niveau
postsecondaire ou au marché du travail et dont la durée prévue est la durée
de vie probable de celle-ci. (permanent disability)
|
[6]
In
its decision letter dated March 23, 2005, the CSLP stated:
Any
definition of permanent disability must be sufficiently flexible to allow for a
variety of benefits or provisions under the CSLP. To qualify for the Permanent
Disability Benefit (PDB) the disability must be shown to permanently prevent
the borrower from returning to school and/or functioning in the work force.
As you
indicate that you are presently attending part-time studies, you cannot be
assessed for a Permanent Disability while you are still attending school.
[Emphasis in original]
[7]
Mr. Marsden argues that the CSLP erred in law in its
interpretation and application of the expression “permanent disability” in the
context of section 11 of the Act. In particular, Mr. Marsden argues that the
CSLP’s interpretation of “permanent disability” is inconsistent with other
provisions in the Act that expressly contemplate that students with permanent
disabilities may pursue post-secondary education with the benefit of Canada
Student Loans provided under the Act.
Facts
[8]
Mr.
Marsden first noticed problems with his vision in 1998. In September 2001, after
experiencing progressive deterioration of his eyesight, Mr. Marsden was diagnosed
with Stargardt’s disease. Dr. Brodie, Mr. Marsden’s family physician, described
the disease in a medical report dated October 5, 2004 as “an inherited juvenile
form of mascular degeneration”. Dr. Brodie indicated that Mr. Marsden was
restricted in his ability to perform necessary daily activities. Dr. Brodie
also stated that Mr. Marsden’s functional limitations were expected to remain
with him for his expected life. Dr. Brodie’s medical report was provided to the
CSLP as part of Mr. Marsden’s application for the Permanent Disability Benefit.
[9]
Attached
to Dr. Brodie’s medical report was a letter from Dr. Martin, the
ophthalmologist who diagnosed Mr. Marsden’s condition. Dr. Martin indicated
that Mr. Marsden’s visual acuity was 20/80 in both eyes when best corrected.
[10]
Mr.
Marsden also submitted as part of his application the Canada Student Loans
Program Disability Benefit Education and Employment History Questionnaire (the
History Questionnaire) and the Financial Questionnaire for Permanent Disability
Benefit (the Financial Questionnaire). Attached to the Financial Questionnaire were
Statements of Assistance indicating benefits received under the Ontario
Disability Support Program Act and Mr. Marsden’s tax return information for
the 2001, 2002 and 2003 tax years.
[11]
The
History Questionnaire indicates that Mr. Marsden withdrew early from his
studies in Commerce because of “insufficient resources and increased medical
troubles”. Mr. Marsden stated in the History Questionnaire that he had been
unemployed since approximately August 1, 2002. From September 2002 until July
2003, Mr. Marsden received Employment Insurance benefits totalling approximately $13,000
annually.
[12]
In support of his application for judicial review, Mr. Marsden
has filed additional information which may be relevant to determining the
extent of his disability and the financial hardship it has caused him. However,
as the respondent submits, only evidence before the decision-maker ought to be
considered by a reviewing Court. Accordingly, the Court will not in its
substantive review rely on information that was not before the original
decision-maker.
Issues
[13]
This
application raises the issue: Did the Minister err in denying Mr. Marsden’s
application for the Permanent Disability Benefit?
Relevant Legislation
[14]
The
legislation relevant to this application is:
1. the Canada Student Financial Assistance
Act, S.C.
1994, c. 28; and
2. the Canada Student Financial Assistance
Regulations,
S.O.R./95-329.
Standard of Review
[15]
Before embarking on an analysis of the issues
raised in this application, it is necessary to undertake the pragmatic and
functional analysis of the appropriate standard of review: Dr. Q. v. College
of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226.
Presence of
absence of a privative clause or statutory right of appeal
[16]
The first factor in the pragmatic and functional
analysis concerns the presence or absence of a privative clause or statutory
right of appeal. The Act provides no guidance as to reviews or appeals of the
Minister’s decisions.
[17]
Given the discretion granted to the Court to judicially
review a Minister’s decision, the first factor of the pragmatic and functional
analysis suggests a low level of deference.
Relative
expertise
[18]
The second factor to consider is the expertise of the
decision-maker relative to the Court. The finding under review involves the
statutory interpretation by the Minister of the expression “permanent
disability” under the Act.
Relative to the reviewing judge, this decision-maker has no expertise in
statutory interpretation. The Court is better able to decide questions of law
than the Minister. Accordingly, this factor suggests a less deferential review.
Purpose of the
legislation
[19]
The third factor considers the purpose of the Act as a
whole and the particular provisions engaged within it. The purpose of the Act
is to provide a framework for the granting of loans and other forms of
financial assistance to eligible students. Within this framework, the
provisions concerning benefits for permanently disabled students is to promote
the inclusion of persons with permanent disabilities in post-secondary
education by accommodating disabled borrowers at both the eligibility phase and
the repayment phase. Section 11 of the Act in particular charges the Minister
with the task of determining whether a borrower’s permanent disability causes
exceptional hardship in repaying a student loan. In doing so, the Minister is
directed to take into account the borrower’s family income. The purpose of the
legislation and the permanent disability provisions in particular suggests considerable
deference.
Nature of the
question
[20]
The fourth factor to be
addressed is the nature of the question: whether it is one of law, fact, or
mixed law and fact. The Court will accord greater deference to the Minister’s
factual findings, and less deference on questions of legal principle or
interpretation. The question in this review involves the statutory
interpretation of
the expression “permanent disability” and the application of that definition to
a specific set of facts. This is a question of mixed law and fact, which
warrants deference in respect of the Minister’s factual findings and no
deference on the proper statutory interpretation.
Conclusion on
standard of review
[21]
Having regard to all four factors, I conclude that the standard
of correctness applies to the Minister’s interpretation of the expression
“permanent disability” and that the standard of reasonableness applies to the
Minister’s application of the expression to the specific facts of this case.
Analysis
Did the Minister err in denying Mr.
Marsden’s application for the Permanent Disability Benefit?
[22]
Mr.
Marsden’s application for the Permanent Disability Benefit was denied because
the Minister determined that Mr. Marsden did not have a permanent disability
within the meaning of section 11 of the Act. Central to the Minister’s analysis
is the view that a permanent disability prevents a person from studying at the
post-secondary level or participating in the labour force.
[23]
The decision letter, dated March 23, 2005, states:
…the
disability must be shown to permanently prevent the borrower from
returning to school and/or functioning in the workforce. […] As […] you are
presently attending part-time studies, you cannot be assessed for a Permanent
Disability while you are still attending school.
[Emphasis in
original]
The statutory
framework
[24]
The
Regulations provide:
|
|
|
|
INTERPRETATION
2. (1) In the Act
and these Regulations,
[…]
“permanent disability” means a
functional limitation caused by a physical or mental impairment that
restricts the ability of a person to perform the daily activities necessary
to participate in studies at a post-secondary school level or the labour
force and is expected to remain with the person for the person's expected
life; (invalidité permanente)
|
DÉFINITIONS
2. (1) Les
définitions qui suivent s'appliquent à la Loi et au présent règlement.
[…]
« invalidité
permanente » Limitation fonctionnelle causée par un état d'incapacité
physique ou mentale qui réduit la capacité d'une personne d'exercer les
activités quotidiennes nécessaires pour participer à des études de niveau
postsecondaire ou au marché du travail et dont la durée prévue est la durée
de vie probable de celle-ci. (permanent
disability)
|
|
|
|
|
|
[25]
The
Permanent Disability Benefit, as it has come to be known, is authorized under section
11 of the Act:
|
DEATH OR
DISABILITY OF BORROWER
[…]
Permanent
disability of borrower
11.
(1) All rights of the lender against a borrower in respect of a student loan
prescribed by regulations made under paragraph 15(j) terminate if the
Minister is satisfied, on the basis of information specified by the Minister
and provided to the Minister by or on behalf of the borrower, that the
borrower, by reason of the borrower’s permanent disability, is or will be
unable to repay the student loan without exceptional hardship, taking into
account the borrower’s family income, and in that event the Minister shall
pay to the lender the amounts referred to in subparagraph 5(a)(iii).
Time of
disability
(2) For the
purposes of subsection (1), the permanent disability must occur
(a) in
the case of a full-time student, before the first day of the seventh month
after the month in which the borrower ceases to be a full-time student; and
(b) in
the case of a part-time student, before the day on which the lender and the
borrower enter into the student loan agreement.
|
DÉCÈS
OU INVALIDITÉ DE L’EMPRUNTEUR
[…]
Invalidité
11. (1) Dans le cas d’un prêt
d’études visé par les règlements pris en vertu de l’alinéa 15j), les
droits du prêteur à l’égard de l’emprunteur s’éteignent lorsque, sur
communication par celui-ci — ou en son nom — des renseignements qu’il
détermine, le ministre est convaincu que ce dernier, en raison d’une
invalidité permanente et compte tenu du revenu familial, ne peut ou ne pourra
rembourser son prêt sans privations excessives; le ministre effectue alors le
paiement visé au sous-alinéa 5a)(iii).
Conditions de l’extinction et du
paiement
(2)
Pour l’application du paragraphe (1), l’extinction des droits ne se réalise
que si l’invalidité permanente survient :
a) dans le cas d’un prêt
consenti à un étudiant à temps plein, avant le premier jour du septième mois
suivant celui où il a cessé de l’être;
b) dans le cas d’un prêt
consenti à un étudiant à temps partiel, avant la conclusion du contrat de
prêt simple.
|
[26]
The Court is of the view that the definition of “permanent
disability” has not been correctly interpreted. The respondent admits that the
decision letter incorrectly states that the permanent disability must be shown
to permanently “prevent” the borrower from returning to school. Rather, the
definition requires only that the permanent disability “restrict” the ability
of the person to participate in studies at a post-secondary level. In fact, the
Act contemplates in other sections that a person with a permanent disability
can be a “full-time student”. Accordingly, the respondent’s interpretation of
the definition is incorrect.
[27]
Moreover, the evidence demonstrates that the applicant originally
withdrew from his university studies in December, 1999 partly because of his
permanent disability. He has now returned on a restricted basis because of his
disability. Accordingly, the decision was not reasonable in concluding that his
permanent disability has not restricted his ability to attend university.
Conclusion
[28]
The
Minister’s decision to refuse Mr. Marsden’s application was based on an
incorrect interpretation of the relevant law, and an unreasonable finding of
mixed fact and law. It follows that the Minister’s delegate erred in law in refusing
Mr. Marsden’s application for a Permanent Disability Benefit.
[29]
For these reasons, I would allow the application
for judicial review, set aside the Minister’s decision denying Mr.
Marsden’s application for the Permanent Disability Benefit, and remit it to a
different medical officer for reconsideration.
Costs
[30]
Mr. Marsden has asked for costs. As a
self-represented lay litigant, he is entitled to be paid his disbursements by
the respondent, including filing fees, photocopying and travel expenses to
Court.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
- This application
for judicial review is allowed, the Respondent’s decision dated March 23,
2005 is set aside, and the matter is remitted to a different medical
officer for re-determination based on the original application for the
Permanent Disability Benefit and the updated material filed by the applicant
in this application; and
- The applicant is
entitled to his costs.
“Michael
A. Kelen”
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