Date: 20010703
Docket: T-1242-99
Neutral Ctation:2001 FCT 736
BETWEEN:
WILLIAM DUNCAN
Applicant
- and -
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] The applicant ("Mr. Duncan") applies for the judicial review of a decision of Mr. Justice McMahon, a member of the Pension Appeals Board ("the Board") dated March 17, 1999, wherein he refused leave to appeal to the Board a decision of the Review Tribunal ("the Tribunal") dated April 1, 1998, wherein the Tribunal held that Mr. Duncan was not disabled within the meaning of subsection 42(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8 ("the Act").
1. Facts
[2] On January 25, 1996, Mr. Duncan, a forty-five year old Mi'kmaq Indian with a grade nine education, made an application for disability benefits under the Act arising from the debilitating pain he has suffered as a result of a motorcycle accident sustained when he was 17 years old. He had been unable to work since 1991.
[3] His application was denied on March 22, 1996. It was reconsidered and denied by the respondent Minister on January 17, 1997. His appeal to the Tribunal was dismissed on the ground that the objective medical evidence did not support a finding that he suffered from a disability that is "severe and prolonged".
[4] Mr. Justice McMahon found that the decision of the Tribunal was not unreasonable and could be supported by the evidence, also that no error in principle had been committed, and that the additional evidence presented with the leave application, namely a medical opinion of Dr. L.B. Slipp, added nothing new to the case.
2. The law and jurisprudence
[5] Subsection 42(2) of the Act reads as follows:
42. (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.
[6] In Kerth v. Canada (Minister of Human Resources Development), [1999] F.C.J. No. 1252 (T.D.) (QL), Reed J. of this Court, as she then was, dealt with the standard of review applicable to a judicial review of such a decision rendered by a member of the Board refusing the applicant's request for leave. She concluded (at paragraph 23), after an exhaustive analysis of the relevant factors applying to that Board, "that the standard of review in this case is closer to the non-deferential end of the spectrum, rather than to the deferential end". She also noted (at paragraph 24) that "a leave to appeal proceeding is a preliminary step to a hearing on the merits. 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". Thus, the applicant had to satisfy the member of the Board that there is some arguable ground upon which the proposed appeal might succeed.
[7] In Callihoo v. The Attorney General of Canada, [2000] F.C.J. No. 612 (T.D.) (QL), my colleague McKay J. reviewed the jurisprudence applicable to the standard of review on a refusal of such a leave to appeal, including the Kerth (supra) case, and on the basis of the more recent jurisprudence came to this conclusion as follows:
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.
3. Analysis
[8] In my view, Mr. Justice McMahon did not apply the wrong test. He did not attempt to assess the merits of the application. The key paragraph of his decision reads as follows:
After reviewing the decision and carefully considering the evidence in the file, I find that the decision of the Review Tribunal is not unreasonable and could be supported by the evidence, that no error in principle has been made and that the additional evidence, presented with the Application for Leave to Appeal, of Dr. Slipp does not add anything new that was not in his report of December 16, 1997 and would not likely result in a different conclusion.
[9] He did not apply a deferential standard of review to the decision of the Tribunal but merely found that it was not unreasonable. He did not specifically say that the applicant had not raised "an arguable case" and did not have to. He added that the decision could be supported by the evidence. He found no error of principle that could be raised against it. As to the new evidence, he found that "Dr. Slipp does not add anything new that was not in his report of December 16, 1997".
[10] The additional evidence in question is from the family physician, Dr. L.B. Slipp, dated April 27, 1998. It reads as follows:
Re: William Duncan
This man has been troubled by chronic lumbar instability since 1971. The back worsened in 1991.
He has made no progress and has not responded to any form of therapy.
[11] The previous report of Dr. Slipp dated December 16, 1997 reported as follows:
This man continues to complain of low back pain of at least 15 years duration.
He has been seen by two physiotrists and at least two orthopedic surgeons.
He has multiple level degenerative disc disease and evidence of an old compression fracture of L4.
He has grade 9 education and finds it physically impossible to carry on at any work involving lifting, walking, prolonged walking or bending.
He is quite depressed over his inability to work and has a very low self esteem.
He has been turned down by Canada in the past but has no alternative but to reapply.
[12] It is clear that Dr. Slipp's more recent opinion does not raise any new material. It merely states that Mr. Duncan has made no progress.
4. Disposition
[13] Consequently, the decision maker having applied the right test and not erred in law or in his appreciation of the facts, including the new evidence, it cannot be said that his decision was unreasonable. It follows that this application must be dismissed.
OTTAWA, Ontario
July 3, 2001
Judge
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