Preliminary Matter
[2]
By
agreement between the parties, the following medical reports
produced by the applicant subsequent to the date of the decision under review
are to be struck from the applicant’s record, namely: the report of Dr. Paul
Termannsen, dated July 14, 2009 and the report of Dr. Wayne M. Smith, dated
June 16, 2009. It was also agreed that reference to these reports contained in
the applicant’s affidavit at paragraphs 36, and at paragraph 35 of his written
submissions be also struck.
Background
[3]
The applicant worked as a chiropractor from 1992 to 2004. On March
12, 2004, the applicant suffered a work-related injury to his left wrist and
stopped working because he experienced severe pain. The applicant sustained a
tear to the triangular fibrocartilage (FTC), non-union ulnar fracture and
radial and ulnar collateral strain/laxity. On July 10, 2007 the applicant
underwent an arthroscopic debriment of the wrist (a surgical procedure).
[4]
On January 12, 2007, the applicant applied for disability benefits
under the Canada Pension Plan, R.S.C. 1985, c. C-8 (the CPP). His
application was denied and his request for reconsideration was also denied. He
appealed the decision pursuant to subsection of 82(1) of the CPP to the Review
Tribunal, which heard the appeal on September 24, 2008. The Review Tribunal dismissed
the appeal on January 14, 2009 on the basis that the applicant failed to
establish that he was disabled within the meaning of the CPP.
[5]
The applicant sought leave to appeal to the Board, pursuant to
subsection 83(1) of the CPP. Leave was denied on May 5, 2009. The reasons given
by the designated member of the Board for refusing leave are reproduced below:
There
is no arguable case that the Review Tribunal’s decision was not justified. The
Review Tribunal did consider all the evidence and reached the obvious
conclusion.
The application for leave does not provide any
facts or reports that could be argued on appeal to establish the Appellant was
in fact disabled as required by the Act.
[6]
The applicant argues that the designated member of the Board erred
in denying his application for leave to appeal.
Legal Framework
[7]
The relevant provisions of the CPP are as follows:
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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.
…
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.
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42(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.
[…]
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.
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Analysis
[8]
The
review of a decision concerning an application for leave to appeal to the Board
involves consideration of the following two questions articulated by Justice
MacKay in Callihoo v. Canada (AG), (2000) 190 F.T.R.
114 (T.D.), at paragraph 15:
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.
[9]
Each
of these questions will be considered, in turn.
Did the designated member of
the Board apply the correct test for leave to appeal?
[10]
Determining whether the designated member of the Board applied the
right legal test is a question of law, it is therefore to be reviewed on a
correctness standard (Mcdonald v. Canada (Minister of Human Resources and Skills Development), 2009 FC 1074, at
para. 6).
[11]
In the case
before me, the applicant did not present any new evidence with his application
for leave to appeal. The designated member of the Board found that: “There is no arguable case that the Review
Tribunal’s decision was not justified.” I am satisfied that the designated member of the Board properly
considered whether the applicant raised an arguable case upon which the
proposed appeal might succeed, without considering the merits of the
application. Nothing in the reasons indicates that the designated member of the
Board applied a higher threshold than “arguable case” or assessed the
application on the merits. Therefore I find that the designated member of the
Board, in this case, applied the correct legal test.
Was it reasonable for the designated member of the Board to
conclude that the applicant had not raised an arguable case?
[12]
The
issue of whether the designated member of the Board erred in denying leave to
appeal is a question of mixed fact and law since it requires that the legal
test of “arguable case” be applied to the particular facts of the case. The
applicable standard of review is therefore reasonableness (McDonald, at
para. 6; Singh
Pannu v. Canada (Human
Resources and Social Development Canada),
2007 FC 1348, at para. 18). Reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. The Court will also look to whether the decision falls
within a range of possible, acceptable outcomes that are defensible in respect
of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, at
para. 47).
[13]
As
noted above, the applicant did not present any new evidence with his
application for leave to appeal; he argued that the Review Tribunal had erred in finding that he was not disabled within the
meaning of the CPP. The designated member of the Board found that the leave
application did not raise an arguable case for appeal because the Review
Tribunal had considered all the evidence and “reached the obvious conclusion.”
[14]
The issue is whether the conclusion of the designated member of
the Board that the applicant did not raise an arguable case, is reasonable. According to Callihoo, at
paragraph 22:
In the absence of significant new or additional evidence not
considered by the Review Tribunal, an application for leave may raise an
arguable case where the leave decision maker finds the application raises a
question of an error of law, measured by a standard of correctness, or an error
of significant fact that is unreasonable or perverse in light of the evidence…
[15]
The
Review Tribunal found that the applicant was not disabled within the meaning of
subsection 42(2) of the CPP as his disability was neither severe nor prolonged.
The Review Tribunal
correctly stated the law. It explained the concept of disability under the CPP,
and properly defined “severe” and “prolonged.”
[16]
With respect
to the appreciation of the facts, the Review Tribunal summarized the medical
evidence of the applicant’s family physician, Dr. Taylor, and of Dr. Vaisler, an
Orthopedic Surgeon, who gave an independent medical opinion. The Review
Tribunal then concluded that:
Dr. Williams worked half the time preparing reports during
the course of employment and half the time working as a chiropractor. Dr.
Williams also indicated that, when his condition allowed, he was writing a
book. Dr. Williams has not pursued any other employment opportunities related
to or unrelated to his work as a chiropractor. There is no medical or
psychiatric evidence to indicate that the Appellant could not pursue other
types of employment, such as writing reports, or dictating them, or involving
himself in a completely different kind of field of endeavor. The Appellant is
not at an age where retraining is not realistic.
[17]
Pursuant to
subsection 42(2)(a) of the CPP, a person is considered disabled if they
have a severe and prolonged mental or physical disability. Subsection
42(2)(a)(ii) of the CPP states that a disability is prolonged if it “is
likely to be long continued and of indefinite duration or is likely to result
in death.” Pursuant to subsection 42(2)(a)(i) of CPP, severe means that
the claimant “is incapable regularly of pursuing any substantially gainful
occupation.” The jurisprudence teaches that the severity requirement must be
considered in a “real world” context and not be simply a conclusion that
somewhere in the world there exists employment for which this applicant is
physically capable, without regard to the applicant’s education, background or
other factors (Villani v Canada, 2001 FCA 248, at para. 38).
[18]
Notwithstanding
the requirement that severity must be assessed in the “real world context,” in Villani,
the Federal Court of Appeal went on to say:
This restatement of the approach to the definition of
disability does not mean that everyone with a health problem who has some difficulty
finding and keeping a job is entitled to a disability pension. Claimants still
must be able to demonstrate that they suffer from a “serious and prolonged
disability” that renders them “incapable regularly of pursuing any
substantially gainful occupation”. Medical evidence will still be needed as
will evidence of employment efforts and possibilities… (para. 50)
[19]
Further,
where there is evidence of work capacity, the applicant must also show that
efforts at obtaining and maintaining employment have been unsuccessful by
reason of the applicant’s health condition. In Inclima v. Canada (Attorney General), 2003 FCA 117, at para. 3, the
Federal Court of Appeal found:
…Consequently, an applicant who seeks to bring himself
within the definition of severe disability must not only show that he (or she)
has a serious health problem but where, as here, there is evidence of work
capacity , must also show that efforts at obtaining and maintaining employment
have been unsuccessful by reason of that health condition.
[20]
The record
before the Review Tribunal demonstrates that the applicant did not pursue any
other employment or retraining opportunities. The Review Tribunal found that
the applicant had a torn fibrocartilage (FTC) and other injuries to his left
wrist, but it also found that there was no medical or psychiatric evidence to
indicate that the applicant could not pursue retraining opportunities or other
types of employment related or unrelated to chiropractic medicine, which would
not require the physical manipulation of patients. In so doing, it considered
the medical evidence as well as the applicant’s age, his education and the fact
that the applicant was able to invest himself in his hobby of writing a book. The
Review Tribunal’s conclusion that the applicant was not disabled, within the
meaning of the CPP, was supported by the evidence.
[21]
In my view,
the decision of the Review Tribunal does not contain any error of significant
fact that is unreasonable or perverse in light of the evidence. Nor does the decision
of the Review Tribunal contain any error of law. Further, no new evidence was
adduced with the application for leave. In the circumstances on application of the
Callihoo test for an arguable case, set out above, I find that it
was open to the designated member of the Board to conclude that the
application for leave did not raise an arguable case upon which the proposed
appeal might succeed. The decision of the designated Board member falls within
the range of possible, acceptable outcomes that is defensible in respect of the
facts and law. Consequently, I find the Board’s decision denying the
applicant’s leave to appeal to be reasonable.
[22]
On the basis
of the above, the application for judicial review will be dismissed.
[23]
Since the
respondent is not seeking costs, none will be awarded.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review
is dismissed.
2. The
reports of Dr. Paul Termannsen, dated July 14, 2009 and Dr. Wayne M. Smith,
dated June 16, 2009, are struck from the applicant’s record as are references
to these reports contained in the applicant’s affidavit at paragraphs 35 and 36,
and at paragraph 34 of his written submissions.
“Edmond P. Blanchard”
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