Date: 20090116
Docket: T-1871-07
Citation: 2009 FC 37
Ottawa, Ontario, January 16, 2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
JANET
ZEPOTOCZNY BERGER
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In 1999, Ms. Janet Zepotoczny Berger, a
registered nurse, was travelling on a Toronto city bus. When the bus came to a sudden and unexpected stop, she
was thrown from her seat and incurred a number of injuries. To this day, she
experiences chronic neck and back pain, dizziness, high blood pressure and
numbness in her arms and hands. These conditions affect her ability to work.
[2]
In 2005, Ms. Berger applied for disability
benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP). Her
application was considered and denied by the Minister of Human Resources
Development and by the Pension Review Tribunal on the basis that Ms. Berger’s
circumstances did not fall within the definition of a “disability” under the
CPP. Ms. Berger sought leave to appeal the Review Tribunal’s decision to the
Pension Appeals Board (PAB) but, in August 2007, the PAB denied her
application.
[3]
Ms. Berger maintains that the PAB wrongly denied
her leave and asks me to overturn its decision. However, I can find no basis
for overturning the PAB’s decision and must, therefore, dismiss this
application for judicial review.
[4]
The sole question is whether the PAB’s decision
was unreasonable.
I.
The Legal Framework
[5]
Under s. 42(2)(a) of the CPP, a person is
considered disabled if he or she has “a severe and prolonged mental or physical
disability”. A disability is “severe” if the person is “incapable regularly of
pursuing any substantially gainful occupation”. A disability is “prolonged” if
it is “likely to be long continued and of indefinite duration or is likely to
result in death”.
[6]
A decision of the Review Tribunal can be
appealed to the Pension Appeals Board on leave. The PAB will grant leave where
the applicant raises an “arguable case” in respect of the Review Tribunal’s
decision - either an error of law or an unsupportable finding of fact (Callihoo
v. Canada (Attorney General), [2000] F.C.J. No. 612 (T.D.)). In
turn, the Federal Court can overturn the PAB’s decision if it applied the wrong
test or if its decision was otherwise unreasonable. Here, the PAB clearly
applied the proper test. The only question is whether its decision to deny
leave was reasonable.
[7]
In deciding whether the PAB’s decision was unreasonable,
I can only consider the evidence that was before it. Ms. Berger urged me to
consider other evidence that she felt unable to compile in time to submit to
the PAB (although she did submit some new evidence to the PAB). This would
require me to expand my role on an application for judicial review. I have no
authority to do so.
II.
Was the PAB’s Decision Unreasonable?
[8]
Since her accident, Ms. Berger has been working
mainly on a free-lance basis in the health-care field. Her employment
opportunities are somewhat limited, however, since she finds it difficult to
stand for long periods of time. Still, Ms. Berger has been able to continue to
work.
[9]
Based on Ms. Berger’s circumstances, the Review
Tribunal concluded that she failed to meet the definition of a person who has a
disability. In particular, the Review Tribunal found that Ms. Berger had
continuously worked, notwithstanding her injuries. The Review Tribunal was
sympathetic to Ms. Berger’s plight and noted that she had continued to work
“through the pain”. Still, it could not conclude that she was “incapable
regularly of pursuing any substantially gainful occupation”. Therefore, she did
not meet the statutory definition of a “severe” disability.
[10]
After receiving and considering Ms. Berger’s
application for leave to appeal the Review Tribunal’s decision, the PAB
concluded that she had failed to present any new materials that might alter the
Review Tribunal’s decision. As such, she had not raised an arguable case for
granting leave to appeal.
[11]
Ms. Berger’s principal arguments on her
application for judicial review of the PAB’s decision raise issues I have no
authority to address. In particular, she argues that the definition of
“disability” is unduly restrictive. She has injuries that limit her ability to
earn a living. While she is still able to work, she cannot earn the same salary
she could have earned otherwise and has had difficulty finding jobs that she
can manage. Further, she has had gaps in her employment history due to her
limitations. She maintains that it is unfair that the CPP only provides
disability benefits to those who are “incapable regularly of pursuing any
substantially gainful occupation”. Many others, like her, who have chronic
medical issues, are deserving of help.
[12]
Ms. Berger also argues that the CPP scheme is
discriminatory in that it precludes someone who has paid into the plan for many
years from receiving benefits when needed.
[13]
I cannot alter the definition of “disability” in
the CPP; nor can I grant Ms. Berger benefits that Parliament has reserved for a
certain category of applicants.
[14]
My only role is to determine whether the PAB
made any serious error in deciding Ms. Berger’s leave application under the
legislation as it now stands and on the record before it. I can find no
reviewable error in the PAB’s decision and must, therefore, dismiss this
application for judicial review.
[15]
Ms. Berger was very concerned that a particular
document, an “Authorization to Disclose Information”, was omitted from the
record. I agree with her that it is important that the record before the
tribunals below and this Court be complete. However, I am not satisfied that
there was any oblique motive for omitting this document or that it was of such
significance that it would have made any difference.
[16]
Prior to the hearing of her application for
judicial review, Ms. Berger had requested and received from the Court a
confidentiality order in relation to her medical records. Before me, she asked
that the order be extended to her entire file. I am not persuaded that such an
extraordinary order is appropriate in the circumstances.
III.
Conclusion and Disposition
[17]
Ms. Berger has not persuaded me that the PAB’s
decision denying her leave to appeal was unreasonable. Therefore, I would
dismiss her application for judicial review. There will be no order as to
costs.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for judicial review is dismissed.
2.
No
order as to costs.
“James
W. O’Reilly”
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