Date: 20110517
Docket: T-1832-10
Citation: 2011 FC 561
Ottawa,
Ontario, May 17,
2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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DARLENE A. TAKER
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Pension Appeals
Board (the Board), dated September 28, 2010, under section 83 of the Canada
Pension Plan, R.S.C. 1985, c. C-8 (the Plan), refusing the applicant leave
to appeal a decision of the Review Tribunal.
PRELIMINARY MATTER
[2]
A
preliminary note is that the Court at the hearing ordered the changing of the
style of cause in this case to name the respondent Attorney General of Canada,
and not the Minister of Human Resources and Skills Development. The decision
under review is a decision of the Board, which is a tribunal independent of the
Minister. According to Rule 303 of the Federal Courts Rules, SOR/98-106
(the Rules), the Attorney General of Canada is to be named as respondent in an
application for judicial review where there is no person, other than the
tribunal that made the decision, directly affected by the decision, or
otherwise statutorily required to be named as a party.
FACTS
The statutory scheme for
applying for a disability pension
[3]
Before
detailing the specific facts relating to the applicant’s attempts to obtain a
disability pension, the Court will provide a brief explanation of the statutory
scheme established by the Plan for obtaining a disability pension.
[4]
Section
60 of the Plan provides that the first step in obtaining a benefit under the
Plan is an application to the Minister.
[5]
If
that application is denied, Section 81 of the Plan provides for a right to
apply to the Minister for reconsideration of that decision.
[6]
If
the reconsideration is unsuccessful, section 82 of the Plan provides a right of
appeal to the Review Tribunal. The Review Tribunal consists of three members,
and must give the applicant a hearing at which the application will be re-determined.
[7]
If
the appeal is denied, Section 83 of the Plan provides that a party may apply to
the Chairman or Vice-Chairman of the Pension Appeals Board for leave to appeal
the decision of the review tribunal. If leave is granted, the application is
re-determined by the Pension Appeals Board at a full hearing.
[8]
Section
84(1) of the Plan provides that, “except as provided in this Act,” the decision
of a review tribunal, where leave is not granted, or of the Pension Appeals Board,
where leave is granted, is final, except for judicial review before this Court.
[9]
Section
84(2) of the Plan provides that any final decision can be re-opened if “new
facts” arise.
The applicant’s application
history
[10]
The
applicant suffers from chronic pain and fibromyalgia, which began in October
1996. Since October 1996, the applicant has at various times received social
services payments, including, for example, Workers’ Compensation benefits from
October 1996 to June 1997.
[11]
The
applicant filed two applications for disability benefits under the Plan: on
August 6, 1998, and on November 23, 1999. Both applications were denied and the
denial was maintained on reconsideration.
[12]
The
applicant appealed the denial of her November 23, 1999, application to the Review
Tribunal, which heard her case on March 6, 2001, and dismissed her appeal on
that same day. The Review Tribunal found that although the applicant suffered
from fibromyalgia, the medical evidence demonstrated that she could return to
work at a job that did not involve the same heavy lifting required at her
former employment. Thus, the applicant did not qualify for the disability
benefits because of a statutory requirement that the disability be “severe and
prolonged”:
The
medical evidence before the Review Tribunal is that Ms. Taker has been
diagnosed as suffering from fibromyalgia, but the diagnosis made by Dr. Sutton
is that it should not prevent her from a return to work. The only individual
who appears to support a decision not to return to work is Ms. Taker’s family
physical, Dr. Gregus, and he offers no explanation as to why the return to work
would not be possible for Ms. Taker, other than to indicate her education and
age are personal factors that limit her employability in areas that do not require
physical labour. The Review Tribunal notes that none of the specialists who
have examined Ms. Taker indicated she was not capable of some form of physical
labour, therefore, these personal findings cannot be determinative for the
Review Tribunal.
[13]
The
applicant did not request leave to appeal the Review Tribunal’s decision. The
decision was therefore a final and binding decision, pursuant to section 84(1)
of the Plan.
[14]
On
August 23, 2006, the applicant submitted a third application for Plan disability
benefits. This application was denied because the Minister determined that the
application was res judicata – that is, had already been finally
determined by the March 6, 2001, appeal hearing. The applicant appealed this
refusal to the Review Tribunal. Her appeal was dismissed on July 5, 2007.
[15]
On
December 22, 2008, the applicant filed an application under section 84(2) of
the Plan to re-open the March 6, 2001, decision of the Review Tribunal. As
stated above, section 84(2) of the Plan provides that “on new facts” a decision
maker under the Canada Pension Plan may rescind or amend a decision that
they have made, even though that decision was final under section 84(1).
[16]
In
a decision dated June 14, 2010, a new Review Tribunal (the Tribunal) dismissed
the applicant’s application. The reasons of the Tribunal are detailed below.
[17]
The
applicant requested leave to appeal the June 14, 2010, decision of the Tribunal.
In a decision dated September 28, 2010, the Pension Appeals Board dismissed the
applicant’s request. It is this decision that is the subject of this judicial
review application.
DECISIONS BELOW
Decision of the Tribunal
[18]
The
applicant represented herself before the Tribunal, and the respondent was
represented by counsel. The Tribunal dismissed the applicant’s section 84(2)
application because it found that no new facts existed.
[19]
The
Tribunal stated that the onus was on the applicant to demonstrate that new
facts existed. The Tribunal cited Kent v. Canada (Attorney General),
2004 FCA 420, in which the Federal Court of Appeal enumerated a two-step test
to determining whether “new facts” have been established that establish
disability existing during the relevant period: first, the facts must not have
been discoverable before the original hearing by the exercise of reasonable
diligence, and, second, it must be “material”—that is, there must be a
reasonable probability that the evidence, if admitted, could lead to a change
in the original Tribunal’s decision.
[20]
The
Tribunal provided the following relevant dates:
a.
Date of
the original tribunal hearing: March 6, 2001;
b.
Date of
the application for disability benefits: November 23, 1999; and
c.
The relevant
end date for determining whether the applicant has met the requisite “minimum
qualifying period.” The applicant must have become disabled prior to the end of
her minimum qualifying period: December 31, 1998.
[21]
The
Tribunal enumerated the “new facts” that the applicant had submitted in support
of her application, either before the hearing or at the hearing:
a.
A medical
report by Dr. Gregus, dated August 27, 2006;
b.
A second
medical report by Dr. Gregus, dated February 19, 2001;
c.
A
diagnostic imaging report, dated July 31, 2006;
d.
An
operative report, dated June 21, 2001;
e.
A medical
report by Dr. S. Ouellette, dated December 15, 2004;
f.
Two
medical reports by Dr. E. Sutton, dated March 27, 2001 and February 13, 2001;
g.
A medical
report by Dr. K Chisholm, dated August 10, 2000;
h.
A medical
report by Dr. D. I. Alexander, dated April 10, 2000;
i.
A medical
report by Dr. K. Malaviarachchi, dated February 27, 2001;
j.
Three
patient diagnostic imaging reports, dated February 12, 2004, July 31, 2006, and
August 21, 2007;
k.
Three
handwritten doctor’s notes – one undated, and two dated 1997; and
l.
A “bundle
of various documents created by the Nova Scotia Department of Community
Services.”
[22]
The
Tribunal reviewed the parties’ submissions. First, it considered the
applicant’s submission that because the original decision had committed an
error of law, therefore the applicant did not in fact require new facts in order
to have the decision reconsidered.
[23]
The
Tribunal did not explicitly consider this argument, but its analysis
demonstrates that it rejected it. The Tribunal emphasized what was required in
order for the application to succeed:
¶14. As
mentioned above, in order to allow this application and reopen the hearing, the
Tribunal must find that the information submitted by the Applicant was 1) not
reasonably discoverable at the time of the first hearing and 2) could
reasonably lead to a reversal of the Tribunal’s decision made following the
first hearing.
[24]
The
Tribunal then considered whether the evidence submitted by the applicant met
the test for “new facts” that it had enunciated. The Tribunal found that none
of the evidence met the test. First, the Tribunal rejected all of the documents
that pre-dated the March 6, 2001, hearing:
¶15. The
Applicant did not demonstrate, on the balance of probabilities, that the
documents which pre-date the original March 6, 2001 hearing were not reasonably
discoverable at that time.
[25]
Second,
the Tribunal found that some of the evidence, specifically a report by Dr.
Sutton, was included in the original hearing file.
[26]
Third,
the Tribunal found that the undated doctor’s note could not have provided
information that would reasonably have led to a reversal of the Tribunal’s
original decision, because it was addressed “to whom it may concern,” and
stated only that most of the applicant’s visits to the doctor had been related
to her injury.
[27]
Finally,
the Tribunal found that all of the other documents referred to information that
post-dated the time of the first hearing and therefore could not constitute
“new facts.”
Decision under review –
Decision of the Pension Appeals Board
[28]
The
applicant applied to the Board for leave to appeal the decision of the
Tribunal. The Board stated that the applicant did not contest the Tribunal’s
finding that the applicant had not submitted any “new facts” evidence. Instead,
the applicant submitted that the established facts had to be considered in
light of a Supreme Court of Canada decision that the applicant submitted
reinterpreted the meaning of “disability” under the Plan.
[29]
The
Board found that the Tribunal had properly interpreted the facts and the law:
¶1. The
Review Tribunal gave full consideration to the matter of reconsidering a
decision on the basis of new facts and properly concluded that the facts of
this claim did not lead to a consideration of new facts and correctly concluded
the matter could not be revisited.
[30]
The
Board paraphrased the applicant’s claim as follows:
¶4. In
other words, it is her claim that the fact is “res judicata” unless
re-opened due to “new facts” as the Supreme Court decision makes a finding of
disability retroactive.
[31]
The
Board concluded that the applicant’s submission “is a complete
misinterpretation of the law and of the principles enunciated in the Supreme
Court decision.”
[32]
The
Board concluded that the applicant could have no arguable case to present on
appeal because she had not appealed the original decision and there were no new
facts upon which to re-open it. Therefore the Board denied leave.
ISSUE
[33]
The
issue is whether the Board erred in finding that the applicant could have no
arguable case to present on appeal.
RELEVANT LEGISLATION
[34]
Section
84 of the Plan provides that a Review Tribunal or the Pension Appeals Board may
determine any question of law or fact, and that this determination will be
final, unless new facts are presented:
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84.
(1) A Review Tribunal and the Pension Appeals Board have authority to
determine any question of law or fact as to
(a) whether any benefit is payable to a
person,
(b) the amount of any such benefit,
(c) whether any person is eligible for a
division of unadjusted pensionable earnings,
(d) the amount of that division,
(e) whether any person is eligible for an
assignment of a contributor’s retirement pension, or
(f) the amount of that assignment,
and the decision of a
Review Tribunal, except as provided in this Act, or the decision of the
Pension Appeals Board, except for judicial review under the Federal Courts
Act, as the case may be, is final and binding for all purposes of this
Act.
(2) The
Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding
subsection (1), on new facts, rescind or amend a decision under this Act
given by him, the Tribunal or the Board, as the case may be.
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84. (1) Un tribunal de révision et la
Commission d’appel des pensions ont autorité pour décider des questions de
droit ou de fait concernant :
a) la
question de savoir si une prestation est payable à une personne;
b) le
montant de cette prestation;
c) la
question de savoir si une personne est admissible à un partage des gains non
ajustés ouvrant droit à pension;
d) le
montant de ce partage;
e) la
question de savoir si une personne est admissible à bénéficier de la cession
de la pension de retraite d’un cotisant;
f) le
montant de cette cession.
La
décision du tribunal de révision, sauf disposition contraire de la présente
loi, ou celle de la Commission d’appel des pensions, sauf contrôle judiciaire
dont elle peut faire l’objet aux termes de la Loi sur les Cours fédérales,
est définitive et obligatoire pour l’application de la présente loi.
(2) Indépendamment du paragraphe (1), le ministre, un tribunal de
révision ou la Commission d’appel des pensions peut, en se fondant sur des
faits nouveaux, annuler ou modifier une décision qu’il a lui-même rendue ou
qu’elle a elle-même rendue conformément à la présente loi.
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STANDARD OF REVIEW
[35]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded
with regard to a particular category of question”: see also Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339,
per Justice Binnie at paragraph 53.
[36]
It is
clear as a result of Dunsmuir and Khosa that questions of fact or
mixed fact and law are to be reviewed on a standard of reasonableness. The
Board’s decision regarding whether an arguable case exists is a decision of
mixed fact and law that is reviewable on a standard of reasonableness: Williams
v. Canada (Attorney
General),
2010 FC 701, at paragraph 12.
[37]
In
reviewing the Board's decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, at paragraph 47; Khosa at paragraph 59.
ANALYSIS
The legal requirements
for eligibility for disability pension
[38]
In
order to receive a disability pension under the Plan, a person must satisfy two
requirements:
a.
The person
must meet the earnings and contributory requirements of sections 44(1)(b) and
44(2) of the Plan (also known as the “Minimum Qualifying Period”); and
b.
The person
must have been disabled within the meaning of section 42(2) of the Plan when
the earnings and contributory requirements were met.
[39]
The
earnings and contributory requirements of sections 44(1)(b) and 44(2) of the
Plan establish a time period during which the applicant must be found to have
become disabled. In this case, the applicant accepted that to be eligible for
disability benefits she had to establish that she was disabled no later than
December 31, 1998.
[40]
Section
42(2) requires that in order to qualify for disability benefits, the applicant’s
disability must be “severe and prolonged.” The section further specifies that a
disability is “severe” if it renders a person “incapable regularly of pursuing any substantially
gainful occupation” and is “prolonged” if it “is likely to be long continued
and of indefinite duration or is likely to result in death”.
[41]
In
Klabouch v. Canada (Social Development), 2008 FCA 33, at paragraphs 14
to 17, the Federal Court of Appeal reviewed the law with regard to interpreting
the “severe and prolonged” requirements of the Plan. The Court of Appeal stated
that the severity of a disability is measured in terms of its effect on the
applicant’s capacity to work, regardless of the nature of the disability.
Moreover, the capacity to work is to be measured with respect to any
substantially gainful occupation, and not the applicant’s usual job. In
addition, the applicant must provide evidence not only of her disability, but
also that she has made efforts and obtaining and maintaining employment that
have failed as a result of the disability.
Re-opening a decision
[42]
As
stated above, section 84(2) of the Plan provides that despite section 84(1), a decision-maker
may rescind or amend a previous decision if there are “new facts.” The Tribunal
correctly stated the law with respect to what constitutes “new facts.” “New
facts” must (1) relate to a condition that existed during the relevant period,
but not discoverable with reasonable diligence, and (2) be material, in the
sense that they could reasonably be expected to affect the outcome of the case:
see, e.g., Kent, above, at paragraph 33, Gaudet v. Canada (Attorney
General), 2010 FCA 59, at paragraph 3, and Canada (Attorney General) v.
Jagpal, 2008 FCA 38, at paragraph 23.
[43]
If
there are no new facts, then the decision-maker’s prior decision must stand.
If, however, there are new facts, then a decision on the merits must be made,
taking those new facts into account.
[44]
The
Court must stress, therefore, that an application for judicial review of the
decision of the Board denying the applicant leave to appeal the decision of the
Tribunal cannot consider the merits underlying the applicant’s original claim.
Although much of the applicant’s evidence and submissions stress the reasons
that she believes that the initial determination that she does not qualify for
disability benefits was mistaken, that is not a question properly before this
Court. Had the applicant wished to contest that finding, the applicant had to
appeal the original decision of the Review Tribunal.
[45]
Instead,
this Court must determine whether the Board was reasonable in holding that the
applicant had no arguable case for appeal because she had failed to present “new
facts” that could provide a basis for re-opening the Tribunal decision.
The new facts
[46]
Before
this Court, the applicant has provided new evidence that was not before the
Tribunal when it found that there were no “new facts” or before the Board when
it upheld that decision. In particular, the following documents were submitted
by the applicant for the first time on this application:
a.
A letter
from Dr. John M. Sperry, dated June 2, 1997, providing an assessment of the
behavioural and emotional effects of her chronic pain on her;
b.
Reports
from Portland Physiotherapy Clinic, with various dates between November 1996 and
March 1997, reporting on the applicant’s response to physiotherapy treatments;
c.
Workers’
Compensation Board of Nova
Scotia physician
report forms, also of various dates;
d.
radiological
reports dated March 27 and August 21, 2007, and June 17, 2009;
e.
A letter
from Nova Scotia Social Assistance dated May 15, 1998, and containing notations
from September and October, 2000; and
f.
Various
reports from Dr. Gregus, most dated between February 1998 and September 1999,
but also including a doctor’s note dated November 22, 2010 (i.e., after the
September 28, 2010 decision of the Board). Of these reports, it appears that
only two, the March 6, 1997, and May 15, 1998, are in the certified tribunal
record that was before the Board.
[47]
Because
the issue in this case is whether the Board erred in upholding the Tribunal’s
finding that the applicant had not presented “new facts” sufficient to re-open
the case under section 84(2), the Court cannot consider additional evidence
that was not presented to the Tribunal or the Board.
[48]
In
order to have presented an arguable case, the applicant had to have presented
“new facts” to the Tribunal. Before the Board, the applicant submitted that Nova
Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers'
Compensation Board) v. Laseur, 2003 SCC 54, a Supreme Court of Canada
decision that post-dated the Minister’s assessment in her case, constituted
“new facts” that showed that fibromyalgia is a condition that can be recognized
as a disability under the Plan.
[49]
The
Court finds that the Board reasonably concluded that the applicant did not
raise an arguable case on that ground. First, the Martin case dealt with
a challenge to a provision of the Nova Scotia Workers’
Compensation Act, S.N.S. 1994-95, c. 10, which expressly prevented chronic
pain sufferers from collecting workers’ compensation benefits. The Supreme
Court ruled that the provision was unconstitutional because it violated the
equality guarantee of section 15 of the Canadian Charter of Rights and
Freedoms.
[50]
No
similar provision affected the assessment of the applicant’s application for
benefits under the Plan. As stated above, the factors critical to determining
whether an applicant suffers from a disability such as to entitle her to
disability benefits under the Plan relate to the impact of the applicant’s
disability on her capacity to work and not on the name attributed to the
symptoms from which she suffers. In this case, the Tribunal accepted that the
applicant suffered from chronic pain and fibromyalgia, but found that the evidence
failed to show that this disability was severe or prolonged enough to qualify
her to receive disability benefits, because it found that she should still be
able to perform some work. In fact, the Tribunal has, in the past, found
persons with fibromyalgia and chronic pain are entitled to a disability pension
in certain cases.
[51]
Moreover,
the Court accepts the respondent’s position that a new Supreme Court decision
cannot constitute “new facts” for the purposes of section 84(2) of the Plan.
[52]
The
second ground upon which the applicant submits that the Board was unreasonable
in concluding that she had no arguable case, was in its finding that she had
failed to present new facts to the Tribunal. Although she did not pursue this
argument at the Board, the Board did consider this question. Before this Court,
the applicant has submitted that the additional documents that she provided to
the Tribunal support her submission that her disability is severe and prolonged
and that she therefore qualifies for disability benefits.
[53]
The
Court repeats that there is a two-part test that must be met in order for
evidence to be considered “new facts” for the purpose of section 84(2): the
evidence must not have been discoverable at the time of the original hearing,
and the evidence must be material.
[54]
The
Court finds that the Board reasonably concluded that the applicant did not have
an arguable case for appeal, because she had failed to present new facts before
the Tribunal.
[55]
As
stated above, the test for “new facts” is that the facts must relate to a
condition that existed during the applicant’s qualifying period (that is, no
later than December 31, 1998) but not have been discoverable at the time of the
original hearing, and the facts must be material to the outcome of the application.
[56]
In
this case, the documents provided by the applicant to the Tribunal were
numerous medical reports relating to her condition. The Court finds that the
Tribunal reasonably concluded that those documents that pre-dated the original
March 6, 2001 hearing date could not constitute “new facts” because they were
discoverable by the applicant at that time.
[57]
With
regard to the documents post-dating the March 6, 2001, hearing, the Tribunal
found that the evidence related to conditions that had arisen subsequent to the
end of the applicant’s minimum qualifying period:
¶18. All the other documents
submitted as new facts were created after the March 6, 2001 hearing and contain
information which did not exist at the time of the Applicant’s MQP, or at the time
of the first hearing. Therefore, none of those reports can be characterized as
new facts.
[58]
The
Federal Court of Appeal established the circumstances in which medical reports
that post-date the hearing will be considered “new facts” in Canada
(Attorney General) v. MacRae, 2008 FCA 82:
¶17. Consequently,
Courts have considered medical reports written after the original hearing of
the application to be admissible pursuant to subsection 84(2) of the CPP where,
for example, the condition which they attest to exists at the time of the
original hearing but could not have been diagnosed or known to the applicant
through the exercise of due diligence by the applicant (see e.g. Kent, supra;
Macdonald, supra). However, in cases where the medical reports
reiterate what is already known or has been diagnosed, the reports will not be
considered as evidencing "new facts" (Taylor v. Canada (Minister
of Human Resources Development), 2005 FCA 293, [2005] F.C.J. No. 1532
(F.C.A.) ).
[59]
The
Court finds that the Tribunal’s conclusion regarding the reports that post-date
the original March 6, 2001 hearing date was unclear, but that its overall
analysis demonstrates that it correctly understood the law with respect to what
constitutes a “new fact” and was reasonable in how it applied this law to the
applicant’s evidence. In particular, the Tribunal’s analysis demonstrates that
it understood the above law that medical reports that post-date the original
hearing may be considered “new facts” where they add something to the material that
was initially presented, regarding the condition that existed at the time of
the hearing.
[60]
In
this case, however, none of the reports that post-date the decision add
anything to the conditions that were thoroughly considered in the original
March 6, 2001 decision that the applicant’s condition was not such as to
prevent her from being able to return to some sort of employment. The March 6,
2001 decision accepted that the applicant suffered from chronic pain and
fibromyalgia. The applicant has submitted only more evidence of the same. The
applicant did not demonstrate to the Tribunal that any of the new evidence
added insight into why she could not work, as suggested by the initial finding.
CONCLUSION
[61]
The
Court finds that the Board’s decision to refuse the application for leave to
appeal was reasonable. The Board reasonably found that the Tribunal had made no
error of fact or law in its decision that there were no new facts before it
upon which to re-open its March 6, 2001 decision.
[62]
The
Court emphasizes that the applicant’s burden before the Tribunal, Board and
this Court was to demonstrate the existence of “new facts” as described above.
These applications are not appeals of the initial decision of the Tribunal
denying the applicant’s application for disability benefits under the Plan.
That decision was final when the applicant chose not to appeal it, and could
only be re-visited were new facts to arise.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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