Date: 20091022
Docket: T-1423-08
Citation: 2009
FC 1074
Ottawa, Ontario, October 22, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
JAMES MCDONALD
Applicant
and
MINISTER OF HUMAN RESOURCES
AND SKILLS DEVELOPMENT STYLED
MINISTER OF HUMAN RESOURCES AND
SOCIAL DEVELOPMENT
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
McDonald has been in chronic pain since he suffered a workplace injury in 2001.
He applied for a disability pension in 2005 under the Canada Pension Plan,
R.S.C. 1985, c. C-8. The Minister first rejected his application and on
reconsideration rejected it again. Mr. McDonald appealed to a Review Tribunal
which, following a fresh hearing, granted his appeal and held he was entitled
to disability benefits in accordance with the Plan.
[2]
Subsection
83 of the Plan provides that a party dissatisfied with the decision of
the Review Tribunal, in this case the Minister, may apply to the chairman or
vice-chairman of the Pension Appeals Board for leave to appeal to the Pension
Appeals Board. Rule 7 of the Pension Appeals Board Rules of Procedures
(Benefits) provides that such an application shall be disposed of ex
parte unless the chairman or vice-chairman directs otherwise.
[3]
Section 83
of the Plan also provides that the decision may be made by a designated
member, as it was in this case. It goes on to provide that where leave to
appeal is refused written reasons must be given. There is no corresponding
mandatory requirement for reasons when leave is granted.
[4]
In this
case, the Minister was granted leave without reasons. In this application for
judicial review, Mr. McDonald seeks an order that the decision on the leave
application be quashed.
THE STANDARD OF REVIEW
[5]
The
parties are in agreement that the test was set out by Mr. Justice MacKay in Callihoo
v. Canada (Attorney General) (2000), 190 F.T.R. 114 at
paragraph 15:
15. 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.
[6]
The first
part of the analysis, a determination as to whether the decision maker has
applied the right test, is a matter of characterization and is to be reviewed
on a correctness standard. The second, at least as an appreciation of the facts
is concerned, is reviewed on a reasonableness standard (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190).
[7]
In this
case no new evidence has been adduced. Since the decision maker gave no
reasons, and was not obliged do so, it falls upon the Court to determine
whether the application for leave raises an arguable case. The threshold is
somewhat low, certainly less than a determination on the balance of
probabilities that the appeal would succeed.
THE REVIEW TRIBUNAL’S DECISION
[8]
The Review
Tribunal correctly stated the law. The Canadian Pension Plan Disability
Benefits are provided to persons who have made the minimum amount of
contributions over a specified period, and who are found to have a severe and
prolonged disability. Section 42(2)(a)(ii) of the Plan states that a disability
is prolonged if it is long continued and of indefinite duration or is likely to
result in death. Under s. 42(2)(a)(i), a disability is severe if the person is
incapable regularly of pursuing any substantially gainful occupation.
[9]
It also
correctly stated that Mr. McDonald’s minimum qualifying period ended in
December 2003; meaning that the issue is whether he had a disability within the
meaning of the Plan at that time. In his application he stated he was only
disabled as of March 2005. That was the time of the last letter from his family
doctor. However, based on earlier letters from the doctor, the Review Tribunal
determined that his disability related back to January 2002.
[10]
There was
also evidence from Mr. McDonald’s psychiatrist that he suffers from depression
and panic disorder. This began about three years after his injury, that is to
say in 2004.
[11]
The Review
Tribunal also noted that he had taken retraining courses and that although he
appears to have succeeded, it was because of considerable help. He had sent out
various job applications, but was not successful in finding employment.
THE MINISTER’S APPLICATION FOR LEAVE TO
APPEAL
[12]
The Act
requires the Minister to set out the proposed grounds of appeal in considerable
detail. This was done.
[13]
The
Minister took the position that the analysis of the doctors’ evidence was
somewhat one-sided in that other notes indicate his pain was in better control but
“not 100% yet” and that he was doing “reasonably well.”
[14]
In
addition, if Mr. McDonald was able to attend school from 2003 to 2005 (his
application for disability benefits coincided with the end of his schooling),
there is jurisprudence to suggest that he should also be able to hold down
gainful employment.
[15]
Finally,
the date of Mr. McDonald’s disability is crucial. Even if it could be said that
the depression he currently suffers was a natural progression from his chronic
pain and even if as a result of the depression he is unable to work, that
depression may have only related back to 2004. It does not necessarily follow
that he was disabled in December 2003, his qualifying date.
DECISION
[16]
Although
Mr. McDonald’s application has the look and feel of an application to set aside
an interlocutory decision, and although this Court is loath in most cases to
deal with interlocutory decisions, applications of this type under the Plan
have been routinely considered.
[17]
If the
Minister were seeking a judicial review of the decision of the Review Tribunal,
she would be facing some difficulty because what would be at issue is a
reweighing of the evidence. The Review Tribunal is a specialized tribunal and would
be owed considerable deference by this Court. Findings of fact are not
disturbed unless unreasonable.
[18]
What is at
issue here, however, is something quite different. An appeal to the Pension
Appeals Board is yet another hearing de novo. The Appeals Board, on the
evidence before it, is entitled to make its own findings of fact without deferring
to the Review Tribunal.
[19]
With that
in mind, I have come to the conclusion that the Minister has raised fairly
arguable issues in his application for leave, and so I must dismiss Mr.
McDonald’s application for judicial review. The Appeal Board may or may not
come to the conclusion that Mr. McDonald is entitled to a pension. That is a
matter for its expertise. An application for judicial review of whatever
decision it makes on the merits may be brought before the Federal Court of
Appeal in accordance with section 28(1)(d) of the Federal Courts Act.
[20]
The
Minister did not ask for costs, and none shall be granted.
ORDER
FOR REASONS GIVEN;
THIS COURT ORDERS that:
1. This application for judicial
review is dismissed.
2. The whole without costs.
“Sean Harrington”
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