Date:
20120716
Docket:
T-1636-11
Citation:
2012 FC 890
Ottawa, Ontario, July 16, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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PETER MISEK
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Peter
Misek (the Applicant) seeks judicial review of the granting of leave to appeal
to the Respondent by a Designated Member of the Pension Appeals Board
(Designated Member) in respect of a decision of the Review Tribunal allowing
his appeal for a Canada Pension Plan, RSC 1985, c C-8 (CPP)
disability pension.
[2]
For
the reasons set out below, this application is dismissed.
I. Preliminary
Matters
[3]
The
Court agreed with the position of the Respondent that it is proper for the
Attorney General of Canada as opposed to the Pension Appeals Board to be named
in the Notice of Application. Accordingly, the style of cause was amended to
reflect this change. In addition, I indicated during the hearing that I would
not consider documents not previously before the decision-maker.
II. Background
[4]
The
Applicant made three separate applications for disability benefits based on
injuries sustained in car accidents. His first application was approved and he
received these benefits from 1982 to 1987. The Minister of Human Resources and
Skills Development Canada (the Minister) denied a second application in 1989.
[5]
The
Applicant applied for a third time on January 22, 2008. He claimed to have
stopped working due to “Painful knees and right hip” as early as 2001.
[6]
By
way of a letter dated June 18, 2008, the Minister denied his third application
stating: “We recognize that you have identified limitations resulting from a
motor vehicle accident. However, we concluded that your condition did not
continuously prevent you from doing some type of work since December 2004.” The
Applicant was not seen as having a disability that was severe and prolonged to
qualify for CPP benefits.
[7]
The
Applicant requested that the Minister reconsider this decision. In its letter
dated August 28, 2008, the Minister again concluded:
We recognize that you have identified limitations
resulting from your injuries and the degenerative disc disease of your lumbar
spine and we realize that you cannot work now. However, we have concluded that
your condition did not stop you from work in December 2004, the date that you
were last eligible for a CPP disability benefit.
[8]
Thereafter,
the Applicant filed a Notice of Appeal with the Office of the Commissioner of
Review Tribunals (OCRT). A hearing was held before a Review Tribunal on
February 3, 2011. The Review Tribunal allowed the Applicant’s appeal on March
14, 2011 for the following reasons:
[27] We find that in the real world the Appellant
was not employable in 2004 and onward.
[28] We agree with Dr. Model that he was stoical for
many years, but reached a point where he could no longer work. The Appellant
has proved, on the balance of probabilities, that he was incapable regularly of
pursuing any substantially gainful occupation after his motor vehicle accident
in August 2001, and his condition became severe as of and since that time.
Prolonged Criterion
[29] […] He still suffers significant pain from
degenerative disc disease and osteoarthritis in his back and other parts of his
body. He still suffers from depression. He is now 65 years old, and his
condition is unlikely to ever improve. For these reasons we find the
Appellant’s disability of indefinite duration, and is prolonged for the
purposes of the CPP.
Conclusion
[30] The Tribunal finds that the Appellant has a
severe and prolonged disability as defined in paragraph 42(2)(a) of the Canada
Pension Plan. We find the Appellant was disabled and met these criteria as of
his third motor vehicle accident in August 2001.
[9]
The
Minister sought leave to appeal the Review Tribunal’s decision from the Pension
Appeals Board (PAB). According to the Minister, the Review Tribunal ignored or
failed to consider (a) the evidence before it, (b) the Applicant’s failure to
follow his physician’s recommendations, and (c) the Applicant’s earnings
contributions in 2007 and 2008 as evidence of his capacity to work.
[10]
The
Designated Member granted leave to appeal to the Minister on this basis in a
decision dated July 14, 2011. The Applicant now brings this application for
judicial review of that decision.
III. Issue
[11]
The
sole issue before the Court is the reasonableness of the Designated Member’s
decision to grant leave to appeal to the Respondent.
IV. Standard of Review
[12]
In
this context, the Court has held that a review of whether the Designated Member
applied the appropriate legal test in granting leave to appeal is based on
correctness, while the determination as to the application raising an arguable
case is evaluated against the reasonableness standard (see for example Canada
(Attorney General) v Zakaria, 2011 FC 136, [2011] FCJ no 189 at para 15).
V. Analysis
[13]
To
be granted leave to appeal by the Designated Member, the Respondent had to
raise an arguable case in its application for leave. According to this Court
in Callihoo v Canada (Attorney General) (2000), 190 FTR 114, [2000] FCJ
no 612 at para 15, an arguable case relates to adducing new evidence with the
application or raising an issue of law or of relevant significant facts not
appropriately considered by the Review Tribunal in its decision. The Federal
Court of Appeal has also suggested that the term reasonable chance of success
would in substance be the correct test as related to an arguable case (see Fancy
v Canada (Minister of Social Development), 2010 FCA 63, [2010] FCJ no 276
at paras 2-3).
[14]
For
the purposes of judicial review, the application for leave to appeal on
becoming the Notice of Appeal with a grant of leave are deemed to be the
reasons for the Designated Member’s decision (see Mrak v Canada
(Minister of Human Resources and Social Development),
2007 FC 672, [2007] FCJ no 909 at para 29).
[15]
As
is evident in the application for leave to appeal and in the Respondent’s
submissions, the Minister focused on demonstrating an arguable case by raising
three errors in the consideration of relevant significant facts in line with Callihoo,
above. The Respondent submitted that the Review Tribunal failed to consider
and adequately analyze evidence before it. More specifically, it noted there
was no evidence of the Applicant pursuing training and his previously measured
academic and computer skills were not addressed. Similarly, the Review
Tribunal did not direct its attention to a statement on his questionnaire that
he could sit and stand for a few hours as well as the advice of a physician
that the Applicant seek sedentary work. The Respondent further claimed that
the Review Tribunal erred by failing to consider the Applicant not following
his physician’s recommendations for treatment. Finally, the Respondent raised
the Applicant’s earnings and contributions in 2007 and 2008.
[16]
Based
on this material, I am satisfied that it was reasonable for the Designated
Member to conclude the Respondent raised an arguable case because these are
relevant significant facts that should have been appropriately considered by
the Review Tribunal. It was justifiable to recognize the potential relevance
of those facts to the overall determination of the Applicant’s claim for
disability benefits. They relate to his ability to work, possibly in different
capacity, as well as efforts to seek training and follow through with
treatment.
[17]
The
Applicant’s position amounts to asking this Court to reweigh the evidence or
delve into the merits of the Review Tribunal’s determination that he suffers
from a severe and prolonged disability – both issues are outside the scope of a
judicial review related to the Designated Member’s grant of leave to appeal. In
this context, my role is to assess whether the granting of leave based on the
arguable case test was within the range of possible, acceptable outcomes (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[18]
The
Applicant disputes the analysis provided by the Respondent of evidence not
being appropriately considered. He takes issue with the timeline provided and
the reference to computer and academic skills tests taken years earlier. He
also asserts that he never avoided his physician’s advice but followed that of
his family physician, Dr. Model. He insists that Dr. Ellis misdiagnosed his
condition and this explains his optimistic assessment.
[19]
Further
assessing the impact of this evidence, however, relates to the merits of the
case on appeal. His arguments do not undermine the reasonableness of the
Designated Member’s determination. There were relevant facts not appropriately
considered by the Review Tribunal as raised in the Respondent’s application for
leave to appeal, irrespective of whether the Applicant disagrees with the characterization
of those facts as significant.
[20]
At
this stage, the Designated Member is merely assessing whether there are
relevant significant facts not appropriately considered. It must be borne in
mind 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. The
Applicant, at the leave stage, does not have to prove his or her case” (Kerth
v Canada (Minister of Human Resources Development) (1999), 173 FTR 102,
[1999] FCJ no 1252 at para 24). They must still raise some arguable ground on
which the proposed appeal might succeed (Zakaria, above at para 39). The
Pension Appeals Board remains tasked, however, with determining whether those
facts ultimately warrant reversing the Review Tribunal’s decision.
[21]
The
Applicant does raise a valid point that the failure to consider the earnings
and contributions in 2007 and 2008 cannot be considered an error of the Review
Tribunal where that information was not available prior to issuing the
decision. The Respondent acknowledges, and I agree, that this information
should have been explicitly labelled as new evidence in its application for
leave to appeal. I am, however, prepared to overlook this error as it is one
of various bases raised by the Respondent that could reasonably justify the granting
of leave to appeal.
[22]
Contrary
to the Applicant’s submissions on procedural fairness concerns, there was also
no requirement to verify the facts presented with him prior to making an
application for leave to appeal.
VI. Conclusion
[23]
The
Designated Member reasonably concluded, based on the facts presented, that the
Respondent should be granted leave to appeal the Review Tribunal’s decision. Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
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