Date: 20100915
Docket: T-1040-10
Citation: 2010 FC 920
Ottawa, Ontario, September 15,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
NETSANET-TSEGAI
(ANNETTE) MEBRAHTU
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of a decision by a member of the Pensions Appeal Board
(PAB) denying the Applicant’s leave to appeal a decision of a Review Tribunal
which had found that the Applicant was not eligible for disability benefits
under the Canada Pension Plan, R.S., 1985, c. C‑8.
[2]
As
a preliminary matter, the Respondent should be the Attorney General of Canada
alone. The order to be issued will contain that amendment to the style of
cause.
[3]
The
Respondent has objected to the inclusion in the record of materials not in
evidence before the decision makers. Given the result, it is not necessary to
deal with this proper objection.
[4]
To
be eligible for a CPP disability pension, a claimant is required to establish
that they made contributions for not less than the minimum qualifying period
(MQP). As there is no issue that the MQP ended on December 31, 2001, the
Applicant had to establish that she was “disabled” as of December 31, 2001 and
continuously thereafter as per s. 42(2)(a) of the Canada Pension Plan,
which requires a claimant’s disability to be severe and prolonged.
[5]
The
Applicant had initially complained of a thumb injury in 1999. Unfortunately, by
2004 she was also suffering from blurred vision, chest pains, a burning
sensation throughout the body and light aversion. She was diagnosed with a
delusional disorder in 2005.
[6]
The
Review Tribunal denied the Applicant’s claim because the evidence showed that
after 1999, and more importantly, after December 31, 2001, the Applicant was
able to work on a regular basis, at least until the time of her 2004 diagnosis.
The Applicant made statements during the hearing process in 2008 which also
served to confirm her ability to work.
[7]
The
PAB denied leave to appeal the Review Tribunal’s decision having found that the
Applicant did not have an arguable case. The PAB relied on the evidence before
the Review Tribunal that the Applicant was capable of performing gainful work
when she last met her MQP and that the onset of her subsequent disorder occurred
after the MQP.
[8]
The
issues in this judicial review are:
(a) did
the PAB apply the correct legal test of “an arguable case”, a matter subject to
the “correctness” standard of review?
(b) did
the PAB err in its application of the legal test, a matter subject to the
“reasonableness” standard of review?
[9]
While
the PAB decision is brief, it is apparent that the Member identified the
correct legal test.
[10]
As
to the application of that test in this case, despite some issues of dates which
the Applicant raised, there was a good evidentiary basis for finding that the
injury to the Applicant’s thumb did not, as of the MQP, constitute a severe and
prolonged disability. The Applicant’s post MQP activities and the medical
opinions provide a reasonable basis for the PAB’s decision.
[11]
The
Applicant’s delusional disorder is truly unfortunate, and a factor which should
diminish the effect any of her statements made against interest in the Review
Tribunal decision. Nevertheless, the fact remains that this disorder and other
conditions occurred after the MQP.
[12]
Therefore,
this judicial review will be dismissed without costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed without costs.
“Michael
L. Phelan”
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