Date: 20100811
Docket: T-1784-09
Citation:
2010 FC 815
Ottawa, Ontario, August 11, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
GIOVANNI
ZAVARELLA
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, Mr. Zavarella, is currently suffering from various medical
conditions including a herniated disc in his upper-spine, depression and
anxiety, post-traumatic stress disorder (PTSD), degenerative disc disease in his
lower spine, an arthritic knee, an irritable bowel and Raynaud’s Syndrome.
[2]
His
application for disability benefits under the Canada Pension Plan (CPP) was
denied by two separate Medical Adjudicators, on behalf of the Minister of Human
Resources and Skills Development, and then by the Review Tribunal established
under the CPP on the ground that he had not demonstrated that he was disabled
within the meaning of the CPP, as at his minimum qualifying period (MQP) of
December 2000. He was subsequently denied leave to appeal by a Member of the
Pension Appeals Board (PAB). He is seeking judicial review of the latter
decision on the grounds that the Member:
i.
applied
an incorrect test in assessing whether to grant leave to appeal; and
ii. unreasonably
concluded that an arguable case had not been raised as to whether he was
disabled within the meaning of the CPP as at December 2000, the date of his
MQP.
[3]
For
the reasons that follow, this application is dismissed.
I. BACKGROUND
[4]
Mr.
Zavarella suffered a neck injury in a serious motor vehicle accident in 1984. He
subsequently suffered a work-related injury to his left lower back in 1987, a
neck injury in another motor vehicle accident in 1988, and a work-related
injury to his left knee in 1997. On September 21, 1998 he struck his head on a
steel beam while standing on a lift with a co-worker as it was going up, in the
course of his employment as an electrician with Petro Canada. He alleges that this
last accident caused him to experience significant pain in his neck and lower
back. He attempted to return to work for a brief period of time and has not
worked since October 6, 1998. As a result of the latter injury, he has been
receiving Workplace Safety and Insurance Board (WSIB) benefits for several
years.
[5]
Mr.
Zavarella first applied for disability benefits under the CPP on September 7,
2005. His application was stamped as received on April 6, 2006. He alleged that
he stopped work on October 6, 1998 for medical reasons related to the accident
that took place on September 21, 1998. He maintains that the pain that he
continues to suffer from that accident, which radiates from his neck to his
head and from his lower back to his legs, has rendered him incapable of
regularly pursuing any substantially gainful employment, within the meaning of
paragraph 42(2)(a) of the CPP.
[6]
There
is no dispute that Mr. Zavarella made sufficient contributions to the CPP to
qualify for a disability pension. It is also common ground between the parties
that his MQP is December 2000.
[7]
On
July 18, 2006, a Medical Adjudicator representing the Minister wrote a letter
to Mr. Zavarella informing him that he did not meet the general eligibility
requirement for disability benefits under the CPP because he had not paid
enough into the CPP for four of the six years prior to the date of his
application, as required by paragraph 44(2)(a) of the CPP. That letter
proceeded to note that the late application provisions in the CPP provide for
the possibility of eligibility for such benefits as at the point in time when
he had in fact made sufficient contributions to the CPP to qualify for those
benefits. The letter stated that he had made sufficient contributions to the
CPP to so qualify until December 2000. However, the letter then concluded that
he did not have a disability within the meaning of the CPP since December 2000,
because the evidence did not establish that he was unable to perform some type
of work. The letter stated that, considering his age, education and work
experience, he should be able to perform or retrain to a job suitable to his
limitations.
[8]
On
November 8, 2006, another Medical Adjudicator representing the Minister rejected
Mr. Zavarella’s request for reconsideration of the initial adverse decision on
his application. In short, the reconsideration letter stated that Mr. Zavarella
was not disabled within the meaning of the CPP in December 2000 or continuously
since that time. That letter noted that benefits can only be extended under the
CPP when it has been determined that an applicant is unable to do any type of
work and is unlikely to regain the ability to do any type of work in the
foreseeable future. That letter further explained that, to be eligible for CPP
disability benefits, Mr. Zavarella would have to establish that he was disabled
in December 2000 and that he continued to be disabled as at the date of his
application. The letter stated that Mr. Zavarella had not met these
requirements, because:
i.
the
information on file demonstrated that he was attending school and participating
in vocational rehabilitation from 2000 to 2004, and that this showed “capacity
for some type of work on a full or part time basis”;
ii.
there
was no indication that he was not capable of some type of light or sedentary
work; and
iii.
there
was no evidence on file that any comprehensive pain management program had been
attempted.
[9]
In
a detailed decision dated May 12, 2009, a Review Tribunal dismissed Mr.
Zavarella’s appeal of the Minister’s decision. After considering and
specifically addressing a substantial amount of medical evidence adduced by Mr.
Zavarella, the Review Tribunal concluded that his disabilities were not severe,
within the meaning of the CPP, as at the date of his MQP (December 2000). More
specifically, the Review Tribunal found that “although Mr. Zavarella likely had
ongoing physical and psychological limitations with respect to his medical
problems, he was not, on a balance of probabilities, rendered incapable of all
work as at the date of his MQP.”
II. THE DECISION
UNDER REVIEW
[10]
In a short decision dated September 9, 2009, the Honourable P.
Mercier, a designated Member of the PAB, dismissed Mr. Zavarella’s application
for leave to appeal the Review Tribunal’s decision to the PAB. In his decision,
the Member stated that:
i.
the
evidence presented at the Review Tribunal hearing clearly established that Mr.
Zavarella was capable of performing some form of gainful employment as of the
date of his MQP;
ii.
the
evidence submitted in support of the application for leave to appeal to the PAB
(a) did not even attempt to establish a disability on or before the date of his
MQP, and (b), if anything, indicated that Mr. Zavarella only became disabled
some time after 2002; and
iii.
that
based on the foregoing, Mr. Zavarella had no arguable case for appeal to the
PAB.
III. THE
APPLICABLE LEGISLATION
[11]
The
eligibility requirements for disability benefits under the CPP are set forth in
subsection 42(2) of that legislation, which states:
|
When person
deemed disabled
(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.
|
|
Personne déclarée
invalide
(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.
|
[12]
With
respect to the timing of an application for disability benefits, the following
“late application” and “incapacity” provisions are set forth in paragraph 44(1)(b)(ii)
and subsections 60(8) – 60(11) of the CPP:
|
Benefits payable
44. (1) Subject to the Part,
…
(b)
a disability pension shall be paid to a contributor who has not reached
sixty-five years of age, to whom no retirement pension is payable, who is
disabled and who
…
(ii)
is a contributor to whom a disability pension would have been payable at the
time the contributor is deemed to have become disabled if an application for
a disability pension had been received before the contributor’s application
for a disability pension was actually received, or
…
Incapacity
60. (8) Where
an application for a benefit is made on behalf of a person and the Minister
is satisfied, on the basis of evidence provided by or on behalf of that
person, that the person had been incapable of forming or expressing an
intention to make an application on the person’s own behalf on the day on
which the application was actually made, the Minister may deem the
application to have been made in the month preceding the first month in which
the relevant benefit could have commenced to be paid or in the month that the
Minister considers the person’s last relevant period of incapacity to have
commenced, whichever is the later.
Idem
(9) Where an
application for a benefit is made by or on behalf of a person and the
Minister is satisfied, on the basis of evidence provided by or on behalf of
that person, that
(a) the person
had been incapable of forming or expressing an intention to make an
application before the day on which the application was actually made,
(b) the person
had ceased to be so incapable before that day, and
(c) the
application was made
(i) within the
period that begins on the day on which that person had ceased to be so
incapable and that comprises the same number of days, not exceeding twelve
months, as in the period of incapacity, or
(ii) where the
period referred to in subparagraph (i) comprises fewer than thirty days, not
more than one month after the month in which that person had ceased to be so
incapable,
the Minister
may deem the application to have been made in the month preceding the first
month in which the relevant benefit could have commenced to be paid or in the
month that the Minister considers the person’s last relevant period of
incapacity to have commenced, whichever is the later.
Period of
incapacity
(10) For the
purposes of subsections (8) and (9), a period of incapacity must be a
continuous period except as otherwise prescribed.
Application
(11)
Subsections (8) to (10) apply only to individuals who were incapacitated on
or after January 1, 1991.
|
|
Prestations
payables
44.
(1) Sous réserve des autres dispositions de la présente partie :
…
b) une pension d’invalidité doit
être payée à un cotisant qui n’a pas atteint l’âge de soixante-cinq ans, à
qui aucune pension de retraite n’est payable, qui est invalide et qui :
…
(ii) soit est un cotisant à qui une
pension d’invalidité aurait été payable au moment où il est réputé être
devenu invalide, si une demande de pension d’invalidité avait été reçue avant
le moment où elle l’a effectivement été,
…
Incapacité
60.
(8) Dans le cas où il est convaincu, sur preuve présentée par le demandeur ou
en son nom, que celui-ci n’avait pas la capacité de former ou d’exprimer
l’intention de faire une demande le jour où celle-ci a été faite, le ministre
peut réputer cette demande de prestation avoir été faite le mois qui précède
celui au cours duquel la prestation aurait pu commencer à être payable ou,
s’il est postérieur, le mois au cours duquel, selon le ministre, la dernière
période pertinente d’incapacité du demandeur a commencé.
Idem
(9)
Le ministre peut réputer une demande de prestation avoir été faite le mois
qui précède le premier mois au cours duquel une prestation aurait pu
commencer à être payable ou, s’il est postérieur, le mois au cours duquel,
selon lui, la dernière période pertinente d’incapacité du demandeur a
commencé, s’il est convaincu, sur preuve présentée par le demandeur :
a)
que le demandeur n’avait pas la capacité de former ou d’exprimer l’intention
de faire une demande avant la date à laquelle celle-ci a réellement été
faite;
b)
que la période d’incapacité du demandeur a cessé avant cette date;
c)
que la demande a été faite, selon le cas :
(i)
au cours de la période — égale au nombre de jours de la période d’incapacité
mais ne pouvant dépasser douze mois — débutant à la date où la période
d’incapacité du demandeur a cessé,
(ii)
si la période décrite au sous-alinéa (i) est inférieure à trente jours, au
cours du mois qui suit celui au cours duquel la période d’incapacité du
demandeur a cessé.
Période d’incapacité
(10)
Pour l’application des paragraphes (8) et (9), une période d’incapacité doit
être continue à moins qu’il n’en soit prescrit autrement.
Application
(11)
Les paragraphes (8) à (10) ne
s’appliquent
qu’aux personnes incapables le 1er janvier 1991 dont la période d’incapacité
commence à compter de cette date.
|
IV. STANDARD
OF REVIEW
[13]
A
decision of a designated Member of the PAB with respect to an application for
leave to appeal to the PAB involves two issues: (i) whether the correct test
was applied, and (ii) whether an error was committed in determining whether
that test was satisfied (Callihoo v. Canada (Attorney General), [2000]
F.C.J. No. 612, at para. 15).
[14]
The
first of those issues is reviewable on a standard of correctness (Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339, at para. 44; Harvey v. Canada (Attorney
General of Canada), 2010 FC 74, at para. 38; McDonald v. Canada (Minister
of Human Resources and Skills Development), 2009 FC 1074, at para. 6). However,
the second issue is reviewable on a standard of reasonableness. That is to say,
the decision will stand unless it is not “within a range of possible, acceptable outcomes
which are defensible with respect to the facts and the law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47 and 51; Harvey, above; McDonald, above).
V. ANALYSIS
A. Did
the Member apply the correct legal test in assessing Mr. Zavarella’s
application?
[15]
It
is now established that test to be applied by a designated Member of the PAB in
determining whether to grant leave to appeal to the PAB is whether the
application raises an arguable case (Callihoo, above; Harvey,
above, at para. 44; McDonald, above, at paras. 5 and 7; Canada
(Attorney General) v. Pelland, 2008 FC 1164, at para. 8). This is not a
strict formula, and can be met by simply making it clear to the reader that the
Member assessed whether the appellant “could make some reasonable argument
challenging the merits of the decision of the Review Tribunal” (Canada (Attorney General)
v. Kermenides, 2009 FC 429, at para. 11). A reasonable argument is one
that has a meaningful, realistic chance of success.
[16]
In
determining whether an arguable case has been raised, a designated Member of
the PAB need not otherwise assess the merits of the underlying application (Callihoo,
above; McDonald, above, Kermenides, above; Samson v. Canada (Attorney
General),
2008 FC 461, at para. 14).
[17]
In
the case at bar, I am satisfied that the Member articulated and applied the
correct test. Although the Member’s decision was very short, the Member
explicitly stated, after assessing the evidence presented at the Review
Tribunal hearing as well as the new evidence subsequently submitted by Mr.
Zavarella in support of his application for leave to appeal to the PAB, that Mr.
Zavarella was left with no arguable case. In my view, this would be a logical
and appropriate conclusion to reach as a matter of law after determining that
(i) the evidence presented at the Review Tribunal hearing clearly
established that the applicant was capable of performing some form of
employment as at the date of his or her MQP, and (ii) any additional evidence
that may have been submitted to the Member did not even attempt to establish a
disability on or before that date.
B. Was it reasonable for the Member to conclude that no
arguable case had been raised as to whether Mr. Zavarella was disabled, within
the meaning of the CPP, at the date of his MQP?
[18]
Mr.
Zavarella submitted that it was unreasonable for the Member to conclude that he
had not raised an arguable case that he was disabled at the date of his MQP. In
support of his position, Mr. Zavarella referred to a number of doctors' reports
spanning the period 1998 to 2009 which, among other things, stated that he
continued to experience significant pain in his neck, back and arm, and suffered
from major depression. Mr. Zavarella submitted that the Member had made his
decision without regard to much of the information in those doctors’ reports.
[19]
Relying
on Villani v. Canada (Attorney General), 2001 FCA
248, at paras. 33 to 50, Mr. Zavarella submitted that the Member was required
to adopt a “real world” approach to determining whether an arguable issue had
been raised in respect of his claimed disability as at the date of his MQP. In
this regard, he submitted that it was not realistic for the Member or the
Review Tribunal to conclude that he was capable of pursuing some form of
gainful occupation as at the date of his MQP, when he was constantly in pain
and suffering from major depression. He added that the evidence submitted in
support of his application for leave to appeal to the PAB raised at least an
arguable case as to whether, given his physical and mental condition, any
employer would realistically consider engaging him.
[20]
In
this regard, the evidence most favourable to Mr. Zavarella included:
i.
A
report, dated July 20, 2009, by Dr. R. Klein, a family physician, which stated that
Mr. Zavarella “is totally disabled and unable to work”, together with an
earlier report, dated October 3, 2006, by the same doctor, which stated that
the dates of the marked restriction in Mr. Zavarella’s ability to walk and
mental functions were September 1998 and March 1999, respectively, as opposed
to the 2003 dates previously reported by Dr. Klein;
ii.
A
report, dated March 1, 2006, by Dr. J. Pilowsky, a psychologist, which stated that
Mr. Zavarella “is completely disabled from engaging in any form of employment …
as a result of his physical and mental impairment,” as well as an earlier
report by the same doctor dated August 5, 2005,which sated that he did “not
believe that a return to work is a realistic goal” for Mr. Zavarella;
iii.
A
report, dated November 26, 2003, by Dr. R.L. Cole, another psychologist, which
diagnosed Mr. Zavarella with “Major Depression”, “anxiety” and as exhibiting
symptoms of PTSD, together with an earlier report by the same doctor, dated
September 15, 2003, which noted that Mr. Zavarella states that he continues to
experience significant pain in his lower back, the right side of his neck and
down his right arm;
iv. A report,
dated February 10, 1999, by Dr. Handelsman, a rheumatologist, which noted
ongoing symptoms of pain and concluded: “He is not ready to go back to work”;
v.
A
report, dated February 18, 1999, by Dr. M. Wills, an occupational health
consultant, which noted that Mr. Zavarella continued to experience symptoms of
constant neck pain;
vi. A report,
dated June 30, 1999, by Dr. W.S. Tucker, a neurosurgeon, which noted that Mr.
Zavarella “continues to have neck pain and some scapular pain, particularly if
he attempts to be active”;
vii. A report,
dated September 11, 2002, by Dr. F. Gentili, another neurosurgeon, which stated
that “the patient presents with a long-standing history of neck and right arm
pain secondary to a work-related accident.”
[21]
In
addition to the foregoing, Mr. Zavarella referred the Court to a report,
dictated on January 31, 2001, by Dr. D. Evans, in which it was noted that he
was “almost free of pain sitting in the office, and the only discomfort he gets
is when he tries to work over an extended period with his arms above his
head.” Mr. Zavarella suggested that this was further proof that he remained in
pain as at the date of the report.
[22]
Mr.
Zavarella also referred to a report, dated December 11, 1998, by Dr. S. Kingstone
which summarized various diagnoses made by him over the period 1985 to 1995.
Mr. Zavarella notes that Dr. Kingstone confirmed that he found Mr. Zavarella to
be experiencing pain in his back, his neck and elsewhere at various points
during that period. However, this report does not assist Mr. Zavarella to
demonstrate that he was disabled as at December 2000, as Dr. Kingstone stated
that he had not seen Mr. Zavarella since February 27, 1995.
[23]
The
two above mentioned reports by Dr. Klein were among four medical reports that
were submitted in support of Mr. Zavarella’s application for leave to appeal to
the PAB, but were not before the Review Tribunal. The first of those two
reports by Dr. Klein, dated July 20, 2009, referred to fourteen other reports,
twelve of which were before the Review Tribunal and eight of which were
specifically referred to in the Review Tribunal’s decision.
[24]
Having
reviewed each of those fourteen reports, I am satisfied that it was reasonably
open to the Member to conclude that none of those reports raised an arguable
case that Mr. Zavarella was disabled as at December 2000. Indeed, apart from
two electromyogram (EMG) tests, one magnetic resonance imaging (MRI), and
reports by doctors discussed below, those reports were all dated over the
period 2002 to 2006 and mainly provided current or forward-looking assessments.
[25]
As to the two reports written by Dr. Klein, it is noteworthy that he
did not begin to treat Mr. Zavarella until January 22, 2002 and that neither of
his reports addressed the issue of whether Mr. Zavarella was disabled as at
December 2000.
[26]
Likewise,
Dr. Pilowsky, whose two reports were also among the fourteen identified by Dr.
Klein, did not begin to treat Mr. Zavarella until March 23, 2004, over three
years after the date of Mr. Zavarella’s MQP; and neither of his reports addressed
the issue of whether Mr. Zavarella was disabled as at December 2000.
[27]
The
same is true of the report by Dr. Cole, dated November 26, 2003. That one
paragraph report simply diagnosed Mr. Zavarella with major depression and
anxiety as at the date of the report, based on Dr. Cole’s observations in July
and August of 2003, and on July 24, 2000. The report added that “Mr. Zavarella
gives no evidence of having had a diagnosable psychological disorder prior to
the date of the injury, September 21, 1998.”
[28]
With
respect to the reports by Drs. Handelman, Tucker and Wills, (who collectively
accounted for five of the fourteen reports identified by Dr. Klein), other
information in those reports, or in subsequent reports that they authored, clearly
supported the conclusions reached by the Member and the Review Tribunal and did
not raise an arguable case as to whether Mr. Zavarella was disabled as at
December 2000.
[29]
Specifically,
a report dated August 12, 1999 by Dr. Handelman, who had been treating Mr.
Zavarella since early 1999, concluded that “Mr. Zavarella has made an excellent
recovery with respect to his right C7 radiculopathy” and suggested “that he
return back to work initially putting in four hours a day and not having to
reach overhead for prolonged periods of time.”
[30]
Similarly,
a report dated June 30, 1999 by Dr. Tucker also suggested that it would be best
for Mr. Zavarella to get back to work. Dr. Tucker added that he was not very
anxious to operate on Mr. Zavarella.
[31]
In
the same vein, a report dated November 4, 1999 by Dr. Wills noted that while
Mr. Zavarella still had neck pain, particularly when driving, he had made some
improvement in his right arm. Dr. Wills concluded that “it would be worthwhile
for Mr. Zavarella to return to some kind of work.”
[32]
The
Member and the Review Tribunal were entitled to give the reports by Drs.
Handelman, Tucker and Wills that are mentioned at paragraphs 29 to 31 above, far
greater weight than the various reports mentioned by Dr. Klein or submitted by
Mr. Zavarella that were written in 2002 or later, because the reports by Drs.
Handelman, Tucker and Wills reflected assessments that were much closer in time
to Mr. Zavarella’s MQP than the latter reports.
[33]
It
is noteworthy that another report, dated February 3, 1999, by Dr. Kovacs, a
general practitioner, also commented that Mr. Zavarella’s symptoms “appeared to
have been improving.”
[34]
In
addition to the foregoing, and as noted in the Review Tribunal’s decision, WSIB
Vocational Rehabilitation documentation and progress reports from July 15, 2000
to September 12, 2001 revealed a list of possible occupations for Mr.
Zavarella, taking into consideration the limitations imposed by his physical
condition, for example, in respect of activities such as lifting, carrying,
pushing/pulling more than ten pounds, climbing ladders, repetitive or sustained
bending, crouching and crawling, reaching above chest height and repetitive use
of his right arm.
[35]
Moreover,
by August 15, 2001, Mr. Zavarella was reported to have completed the entry
level requirements for the Network Administrative Computer Program. According
to the Review Tribunal, his grades in the up-grading program ranged from 72% to
90%. By October 13, 2004, a WSIB Adjudicator apparently wrote to Mr. Zavarella’s
representative advising that he had completed his labour market re-entry
program, including upgrading in his two diploma courses. This successful
retraining experience is inconsistent with his submission that he was disabled
within the meaning of the CPP as at December 2000.
[36]
In Klabouch
v. Canada (Minister of Social
Development),
2008 FCA 33, at para. 9, Justice Nadon described the test for disability set
forth in paragraph 42(2)(a) of the CPP as follows:
[…]
To be entitled to a disability pension, an applicant must demonstrate that he
has made valid contributions to the CPP for a minimum qualifying period and
that his or her disability is "severe" and "prolonged". The
term "severe" requires that the disability render the person
incapable of regularly pursuing any substantially gainful occupation, while the
term "prolonged" requires that the disability be either likely to be
of indefinite duration or likely to result in death. […]
[37]
I
am satisfied that it was reasonably open to the Member to conclude, based on
all of the foregoing, and his review of the other evidence that was submitted
by Mr. Zavarella, that Mr. Zavarella had not raised an arguable case that he
was disabled, as contemplated by paragraph 42(2)(a) and the jurisprudence there
under. In my view, this conclusion was well “within a range of possible, acceptable
outcomes which are defensible with respect to the facts and the law” (Dunsmuir, above).
[38]
Indeed,
in my view, this was the appropriate conclusion to draw from the Member’s
findings that (i) the evidence presented at the Review Tribunal hearing clearly
established that Mr. Zavarella was capable of performing some form of
employment as at the date of his MQP, and (ii) the new evidence did not even
attempt to establish a disability on or before that date.
[39]
In
turn, based on the evidence before the Member, and applying the real world test
mandated by Villani, above, those findings were entirely reasonable and
appropriate.
C.
Additional Matters Raised by Mr. Zavarella
[40]
At
the outset of the hearing before this Court, Mr. Zavarella stated that he would
be able to supply additional evidence to support his claims if this Court
ordered that his application for leave to appeal to the PAB should be remitted
for reconsideration by a different designated member of the PAB. In this
regard, he noted that all or most of the medical reports that he had submitted
in support of his application for leave to appeal to the PAB had been prepared
with respect to his dealings with the WSIB, and as opposed to his claims under
the CPP. In addition, he submitted that chronic pain has been recently
recognized as a form of disability and that he believes he can demonstrate that
he has had this form of disability since December 2000.
[41]
Unfortunately,
on a judicial review of a designated Member’s decision, I can only consider the
evidence that was before that Member. I cannot speculate as to the nature of
the additional evidence that Mr. Zavarella may be able to adduce, let alone
place any weight on that evidence, in making my decision.
[42]
For
the present purposes, it bears underscoring that the Member’s conclusion that
Mr. Zavarella had not raised an arguable case as to whether he was disabled
within the meaning of the CPP as at December 2000 was entirely reasonable and
appropriate given the evidence before him. It was not unreasonable for the
Member and the RT to conclude that the ongoing pain experienced by Mr.
Zavarella between December 2000 and the date of his application, together with
his belief that he was incapable of regularly pursuing any substantially
gainful occupation, did not raise an arguable case as to whether he was
disabled within the meaning of the CPP as at December 2000.
[43]
Mr.
Zavarella attempted to raise another issue at the outset of the hearing before
this Court, namely, that the representative of the union who appeared on his
behalf before the Review Tribunal had not properly represented him. I agree
with the respondent that Mr. Zavarella was precluded from raising this issue at
“the last minute,” without having provided the Respondent with an opportunity
to prepare to respond to this argument (Mishak v. Canada (Minister of
Citizenship and Immigration), 1999 CanLII 8579 (F.C.)).
[44]
Finally,
in a letter dated August 3, 2009, the applicant’s spouse, Mrs. Ivana Zavarella,
requested that her husband’s application for disability benefits under the CPP
be reconsidered under the late applicant and incapacity provisions in paragraph
44(1)(b)(ii) and subsections 60(8) – (11) of the CPP, respectively. The
incapacity provisions protect the benefit eligibility of persons who are unable
to apply for benefits on time because of incapacity. In support of this
request, Mrs. Zavarella attached a Declaration of Incapacity signed by Dr.
Klein and dated June 15, 2009, which stated that Mr. Zavarella had been
incapacitated since September 1998. Mr. Zavarella did not raise this issue before
this Court.
[45]
I
agree with the respondent that Mr. Zavarella’s application was in fact considered
in under the late applicant provisions, as was explained to him in the letter
of the first Medical Adjudicator, dated July 18, 2006, discussed at paragraph 7,
above. I further agree that (i) Dr. Klein, who did not begin to treat Mr.
Zavarella until January 2002, provided no credible evidence that Mr. Zavarella
was incapable of forming or expressing an intention to make an application in
1998, or at any period before his MQP of December 2000, (ii) none of the
reports prepared by doctors who evaluated Mr. Zavarella between 1998 and the
time when he began to be treated by Dr. Klein referred to any evidence of such
incapacity, and (iii) numerous activities pursued by Mr. Zavarella during that
period and beyond are inconsistent with such incapacity.
VI. CONCLUSION
[46]
This
application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUGES THAT this application for judicial review is dismissed.
"Paul
S. Crampton"
_____________________________
Judge
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