Date: 20090324
Docket: T-1498-08
Citation: 2009 FC 312
Ottawa,
Ontario, March 24, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
MONIQUE ROY
Applicant
and
MINISTER OF HUMAN RESOURCES
AND SKILLS DEVELOPMENT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant sought leave to appeal a decision of a Review Tribunal convened under
the Canada Pension Plan, R.S.C. 1985, c. C-8 (the “Act”) to the
Pension Appeal Board. Leave was denied by a member of the Board, in a decision
dated August 15, 2008. The applicant challenges the denial of leave, and
requests that the leave application be remitted for redetermination by a
different Board member. For the reasons that follow, this application for
judicial review is dismissed.
Background
[2]
Mrs. Roy is a 60
year-old woman who has a grade 11 education. Although she is trained as a
hairdresser, she has worked at a variety of other jobs throughout her life,
including as a janitor, waitress, and cook. She first applied for CPP
disability benefits in August of 2002, alleging that she was unable to meet her
job demands as a janitor on account of pain associated with osteoarthritis of
the hands and her inability to grip objects. That application was refused by
Human Resources Development Canada (HRDC) in November 2002, on the basis that
Ms. Roy’s disability was not sufficiently severe or prolonged to warrant
benefits, and that she would still be able to do some type of work. Mrs. Roy
did not appeal that decision.
[3]
Four years later, in
June 2006, Mrs. Roy filed a new application for disability benefits. In the
interim she had worked only briefly, as her attempts to return to work had been
unsuccessful. Her most recent period of work - at Tim Hortons - was only 30
days in length and ended on March 31, 2005. The main medical condition that
she claimed prevented her from working was severe hand pain, although she also suffered
from other ailments and conditions. In order to be eligible for disability
benefits she had to establish that she was disabled within the meaning of
subsection 42(2)(a) of the Act, which requires that a disability be both severe
and prolonged. The Act defines a severe disability as one that renders a
person incapable of regularly pursuing any substantially gainful employment. A
disability is prolonged if it is likely to be long continued and of indefinite
duration.
[4]
The 2006 application
was refused by HRDC in December of that year. The decision came after HRDC had,
at the request of Mrs. Roy, reconsidered and confirmed an initial determination
that she was not disabled within the meaning of the Act.
[5]
Mrs. Roy appealed the
refusal to the Office of the Commissioner of Review Tribunals. Her appeal was
heard in February of 2008.
[6]
In
its decision, the Review Tribunal found that Mrs. Roy had made sufficient
contributions to the CPP to qualify for a disability pension, if her disability
struck before the end of her “Minimum Qualifying Period” (MQP) in February 2005
and was both severe and prolonged. The Tribunal then went on to review Mrs. Roy’s
description of her disability and its consequences. In this respect, she testified
that although she wants to work and has attempted to do so, pain in her hands
prevents her from cleaning or cooking. Even as a number two cook she had
difficulty peeling potatoes. She stated that she did not think she could work
in retail because she cannot lift anything. The Tribunal noted the medical
evidence adduced in support of her claim. The earliest evidence in this regard
was a 2002 diagnosis of “severe pain in thumb and hand – arthritis” and a
diagnostic image from the same period revealing “some mild degenerative changes
in the DIP joints second to fifth fingers,” and “No evidence of inflammatory or
erosive arthropathy.” The Tribunal also mentioned a 2007 opinion from Dr.
Murray Mitchell that Mrs. Roy would be “a prime candidate for CM joint
arthroplasty of the thumbs.”
[7]
After
reviewing the respective submissions of Mrs. Roy and the Minister, including
the Minister’s contention that there was a lack of medical evidence to support
a finding that the disability was “severe,” the Tribunal identified the issue
before it as “whether it was more likely than not that Mrs. Roy has a severe
and prolonged disability.” It concluded in the negative, noting inconsistencies
in Mrs. Roy’s testimony as to whether her pain has worsened over the years or
remained stable; her lack of attempts at finding alternate work; that she had
not pursued surgery as an option; and her adoption of what the Tribunal
described as an “I can’t do it attitude”.
[8]
Mrs.
Roy filed a timely application for Leave to Appeal and Notice of Appeal to the
Board. She presented two additional medical documents in support of her
application that had not been before the Tribunal. These were clinical notes covering
the period from January 2000 to February 2005, and a 2008 letter from Dr.
Raymond, the applicant’s family doctor.
[9]
By
decision dated August 15, 2008, the member designated pursuant to subsection
83(2.1) of the Act denied the application for leave stating:
“The Appellant does not appear to have an arguable case based on any
evidence adduced at the hearing. There is no hard evidence or medical evidence
to support her application. I agree with the assessment decision of the
Tribunal. Her application is refused.
Issues
[10]
The
applicant submits, based on Callihoo v. Canada (Attorney
General),
[2000] F.C.J. No. 612, that a review of a Pension Appeal Board member’s denial
of leave to appeal raises two issues:
a
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
b
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.
The applicant submits that the designated
member of the Board erred in both respects.
Analysis
Application
of the Correct Test
[11]
The applicant submits
that the Board member applied the wrong test. It is submitted that rather than
inquiring as to whether Mrs. Roy had raised an arguable case, he effectively evaluated
the merits of her application, as shown by his statement that “there is no hard
evidence or medical evidence to support her application.” The parties are
agreed that the “application” referred to in that statement is the application
for leave to appeal, not the underlying application for disability benefits.
[12]
Callihoo stipulates
that the member on a leave application is not to evaluate the merits of the
application for disability benefits. It makes no sense that the member should
not evaluate the merits of the leave application as that is precisely the task
the member has been assigned. Thus, having agreed that the “application” to
which the member is referring is the leave application, the fact that he states
that there is no evidence to support her leave application is not at all
indicative that the member has evaluated the underlying application for
benefits. Rather, it shows that the member has looked at the evidence submitted
in support of the leave application and determined that there is no evidence to
support that the application raises an arguable case. Accordingly, the member
did not err, as alleged, in applying the wrong test.
Appreciation
of the Facts
[13]
The factual error alleged
by the applicant refers to the Board member’s alleged disregard for the new
evidence, which it was argued supports Mrs. Roy’s claim to have been disabled
during the MQP.
[14]
It is common ground
that the decision denying leave is reviewable for reasonableness; however, the
respondent submits that the decision-maker is entitled to a high degree of
deference. The respondent maintains that the Board member applied the correct
test (“is there an arguable case?”) and that the mere existence of additional
evidence which was not before the Review Tribunal did not, in and of itself,
mean that leave was warranted. In the respondent’s submission the new evidence
added little or nothing to the material that had previously been placed before
the Review Tribunal: the clinical notes filed by the applicant contain the
same information that was in the reports that were before the Review Tribunal,
while Dr Raymond’s affirmations in his 2008 report are not supported by the
medical evidence that was before the Review Tribunal. In these circumstances,
says the respondent, the Board member was not required to specifically itemize
the two new documents as they were not significant.
[15]
In
Kerth v. Canada (Minister of Human Resources Development), [1999] F.C.J.
No. 1252, Justice Reed commented that when new evidence has been raised on an
application for leave to the Pension Appeals Board, it must be asked whether
that evidence raises a genuine doubt as to whether the Review Tribunal would
have reached the decision it did. In this case, the Board member does not
specifically reference the new evidence. The respondent says that it should be
presumed that he did consider it, based on the fact that the Board itself
solicited the evidence and that it arrived before the decision was rendered,
and adds that the Board member was under no obligation to actually itemize the
evidence he examined or to comment thereon unless there was clear and
convincing evidence that pointed to a conclusion different from the one
actually reached.
[16]
I
agree with the respondent and adopt the observation of Justice Linden of the
Federal Court of Appeal in Litke v. Canada (Minister of
Human Resources and Social Development), 2008 FCA 366:
“While a decision will be unreasonable if
the Board ignores relevant evidence … it is clear that it does not have to
mention and discuss every piece of evidence placed before it.”
In this case, I agree
with the respondent that the new evidence tendered by the applicant was not of
such probative significance that the Board member would have been expected to
specifically address why it was insufficient to raise an arguable case. The
Review Tribunal and the Board had previous opinions and documents from Dr.
Raymond and the new documents added nothing of significance to the record that
was before the Review Tribunal. Further, as was noted by the respondent, the 2008
letter from Dr. Raymond was in some respects contrary to other evidence before
the Board and appears to be more in the nature of advocacy for his patient than
an objective medical opinion. This view is supported by the fact that his most
recent letter fails to mention that surgery had been recommended at one time
but was not undertaken or that the applicant failed to undergo physiotherapy,
which had also been recommended. He makes no mention of what her medical
condition might be had either or both of these treatments been undertaken.
Absent that it was reasonable for the reviewing member to conclude that there
was no “hard evidence” that supported her application for leave.
[17]
I
am unable to conclude that the statements in the clinical notes and the 2008
letter put the medical evidence that was before the Review Tribunal in a
substantially different light. The clinical notes add nothing significant to
the reports of Dr. Raymond dated February 2, 2006 and July 2, 2002, in which he
notes the applicant’s severe hand pain, states his diagnosis of arthritis and
concludes with the statement that her prognosis is poor.
[18]
Dr.
Raymond’s 2008 letter includes a statement that the applicant has “an
inflammatory condition of the joints which stops her from doing any work of any
kind”. This report, although dated in 2008, indicates that these conditions
were present in 2005. This is to be contrasted with the evidence before the
Tribunal, an x-ray from 2006 showing “no indication of erosive arthropathy,
fracture, dislocation or flexion contractures” and a diagnostic image from 2002
which indicated “some mild degenerative changes in the DIP joints second to
fifth fingers” and “no evidence of inflammatory or erosive arthropathy”. As
noted, the report of Dr. Raymond, as it fails to specifically address the
previous medical evidence, is of little probative value. Accordingly, this is
enough to satisfy the Kerth criterion. There is no genuine doubt that
the Review Tribunal decision might have been different; thus there is no
arguable case. For these reasons this application is dismissed.
[19]
Both
parties agreed that each party would bear their own costs of this application.
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