Date: 20070626
Docket: T-853-06
Citation: 2007 FC 672
Ottawa, Ontario, June 26, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
WALTER
MRAK
Applicant
and
MINISTER OF HUMAN RECOURCES
AND SKILLS DEVELOPMENT styled
MINISTER OF HUMAN RESOURCES AND SOCIAL
DEVELOPMENT
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
Background
[1]
Walter
Mrak, in this judicial review proceeding, seeks to set aside the April 13,
2006, decision of the Honourable R. V. Deyell, a member of the Pension Appeals
Board (the decision-maker) who, pursuant to section 83 of the Canada Pension
Plan, (CPP or Plan) granted the Respondent Minister leave to appeal to the
Pension Appeals Board (the Board) the December 7, 2005, decision of the Review
Tribunal (the tribunal) allowing Mr. Mrak’s appeal from a determination by the
Minister of Human Resources and Skills Development (the Minister) he was not
entitled to disability payments since he had not demonstrated he was disabled
on or before December 31, 1997, which the parties accept as the time-period
when he last met the contributory requirements set out in the Plan.
[2]
Justice
Deyell granted leave to appeal based on the Minister’s ex parte written
application for leave to appeal dated March 16, 2006. Section 7 of the Pension
Appeals Board Rules of Procedure (Benefits) provides an appeal from the
decision of the tribunal to the Board must be commenced by serving the Chairman
or Vice-Chairman of the Board with a written application for leave to appeal
which is disposed of “ex parte, unless the Chairman or Vice-Chairman
otherwise directs.” No such direction was given in this case.
[3]
The
Minister’s application is a lengthy document containing the Minister’s
submissions, copies of the applicant’s application for disability payments,
copies of all numerous relevant radiological, neurological, psychological and
other medical reports as well as the applicant’s income tax returns for 1997 to
2003. In total, the Minister’s leave application contained 164 pages of
material.
[4]
The
provision in the CPP governing the applicant’s entitlement to disability
payments is subsection 42(2) of the Plan which reads:
|
When
person deemed disabled
(2)
For the purposes of this Act,
(a)
a person shall be considered to be disabled only if he is determined in
prescribed manner to have a severe and prolonged mental or physical
disability, and for the purposes of this paragraph,
(i)
a disability is severe only if by reason thereof the person in respect of
whom the determination is made is incapable regularly of pursuing any
substantially gainful occupation, and
(ii)
a disability is prolonged only if it is determined in prescribed manner that
the disability is likely to be long continued and of indefinite duration or
is likely to result in death; and
(b)
a person shall be deemed to have become or to have ceased to be disabled at
such time as is determined in the prescribed manner to be the time when the
person became or ceased to be, as the case may be, disabled, but in no case
shall a person be deemed to have become disabled earlier than fifteen months
before the time of the making of any application in respect of which the
determination is made.
|
Personne
déclarée invalide
(2)
Pour l’application de la présente loi :
a)
une personne n’est considérée comme invalide que si elle est déclarée, de la
manière prescrite, atteinte d’une invalidité physique ou mentale grave et
prolongée, et pour l’application du présent alinéa :
(i)
une invalidité n’est grave que si elle rend la personne à laquelle se
rapporte la déclaration régulièrement incapable de détenir une occupation
véritablement rémunératrice,
(ii)
une invalidité n’est prolongée que si elle est déclarée, de la manière
prescrite, devoir vraisemblablement durer pendant une période longue,
continue et indéfinie ou devoir entraîner vraisemblablement le décès;
b)
une personne est réputée être devenue ou avoir cessé d’être invalide à la
date qui est déterminée, de la manière prescrite, être celle où elle est
devenue ou a cessé d’être, selon le cas, invalide, mais en aucun cas une
personne n’est réputée être devenue invalide à une date antérieure de plus de
quinze mois à la date de la présentation d’une demande à l’égard de laquelle
la détermination a été établie.
|
[5]
As
noted, the parties agree Mr. Mrak, before the tribunal, had the burden of
establishing, he was disabled on or prior to December 31, 1997, and his
disability continued thereafter with such severity that he was “incapable
regularly of pursuing any substantially gainful occupation.”
[6]
With
respect to the Minister’s leave application , the parties also agree:
1. The test for
the grant of leave to appeal to the Board from a tribunal decision is whether
the applicant for leave, here the Minister, has raised an arguable issue or
issues. Counsel for the applicant acknowledges this test sets a low threshold
which, at the leave stage, does not encompass a determination whether, on the
merits, the Minister is likely to succeed before the Board;
2. If leave is
granted, the proceeding before the Board is de novo with either party
being at liberty to submit new or different evidence that was not before the
tribunal;
3. The
Minister’s leave application did not contain any new evidence that had not been
adduced before the tribunal;
4. The standard
of review in this judicial review application is whether the applicant has
established Justice Deyall’s decision to grant leave was unreasonable meaning
that the decision is not supported by any reasons that can stand up to a
somewhat probing examination, i.e., if no line of analysis, within the given
reasons, could reasonably lead the tribunal from the evidence before it to the
conclusion at which it arrived;
5. Justice
Deyall did not provide reasons for the grant of leave. The parties agree he
was not required to do so. Section 83(2) of the Plan requires written reasons
only in the case where leaved is refused. By contrast, subsection 83(4)
of the Plan simply provides, “Where leave to appeal is granted, the application
for leave to appeal becomes the notice of appeal….”
Facts
[7] On July 24, 2003, Mr. Mrak applied
for a disability pension. He indicated sine 1976 his work was as a real estate
salesman and the last day he actually stopped working was September 10, 2002.
[8] On May 7,
2004, his application was refused. The material part of the refusal letter
reads:
“Based on your history of payments into
the CPP, you must have had a disability in December 1997 that:
1.
stopped
you from doing any type of work on a regular basis (full-time, part-time or
seasonal), not just the work you usually did;
2.
was long
term and of unknown duration, or a disability that is likely to result in
death, and;
3.
has
stopped you from working since December 1997 and will continue to do so.
In your case, you did not meet the first rule listed
above.”
[9] In
the May 7, 2004, refusal letter, the decision-maker stated he had reviewed the
information and documents in the file including all the reports that Mr. Mrak
had sent him, namely, his application and questionnaire, his family doctor’s
report dated November 14, 2003, his Internal Medicine Report dated November 16,
2002, and his neurologist’s reports dated November 27, 1997, and April 6,
1998. The decision-maker concluded as follows:
I recognize that you have identified limitations resulting
from your traumatic brain injury. However, I have concluded that your
condition did not stop you from working since December 1997. I considered the
following factors in making the decision:
• According to yourself you were working past your last
possible date of onset.
• According to yourself and your family
doctor your brain injury occurred in 2002, five years after your last possible
date of onset.
I understand that you have limitations. However I concluded
that the information does not show that your limitations prevented you from
doing some type of work, in December 1997.
[10]
On
May 18, 2004, Mr. Mrak asked the department to reconsider its decision denying
disability benefits. On June 24, 2004, the Minister refused to change his
decision. The decision-maker repeated the statement quoted in paragraph 8 of
these reasons.
[11]
Under
Reasons for Decision, the decision-maker of the May 18, 2004 decision indicated
he had reviewed all of the information and documents on file including all
reports which he had sent with his application.
[12]
The
decision-maker stated Mr. Mrak had identified limitations resulting from his
neck and brain injuries. He stated “However, we have concluded that your
condition did not stop you from working since December 1997. He stated the
Minister came to this conclusion because:
• According to your family doctor’s report, your most recent
injury caused you your current functional difficulties however this did not
occur until 2002, years after you last qualified to receive disability
benefits.
• According to your income tax returns, you were working for
years after the date in which we must find you disabled which is December 1997.
The decision-maker also indicated the
Minister took into account the fact that his neurologist’s report had stated
Mr. Mrak was not functionally limited by his condition on April 1998, just
after he last qualified to receive disability benefits. The decision-maker
concluded “Therefore, we have concluded that you were able to do some type of
work in December, 1997.”
The Tribunal’s Decision
[13]
On
or about June 29, 2004, he appealed the Minister’s refusal to grant him
disability benefits. The matter was heard before the Tribunal in Winnipeg on October
19, 2005. On December 7, 2005, the Tribunal allowed his appeal.
[14]
The
material findings of the Tribunal may be summarized as follows:
1.
The
Tribunal recognized the issue for determination by the Tribunal “is whether the
appellant had a severe and prolonged disability on or before December 1997 and
that he remains disabled.”
2.
For the
purposes of the CPP, a disability is considered to be severe “if the appellant
is incapable of regularly pursuing any substantially gainful occupation. A
person must not only be unable to undertake his usual job, but be unable to do
any job he might reasonably be expected to. It is prolonged if it is likely to
be long, continued and of indefinite duration or is likely to result in death.”
3.
The
Tribunal summarized Mr. Mrak’s testimony and what was in the hearing case
file. It recounted his lengthy medical history, including the following facts:
•In 1971, he fractured his neck and for a
period of time was a quadriplegic. He recovered the use of his limbs.
• In 1973, he was injured again in a motor
vehicle accident which caused him to be hospitalized for approximately 2
months;
• In 1990, he
tripped on stairs and hit his head on concrete;
• In 1997, he fell from a ladder into a
wall and through drywall. He hit his head and injured his tailbone. On his
doctor’s advice, he significantly limited his activities. He testified to
working from the couch at home from that point onward. He began to work
strictly from home. His medications increased after October 1997. He began
using a leg brace that same year;
• In the
autumn of 2002, he tripped in a parking lot and fell.
[15]
The
tribunal then analysed Mr. Mrak’s income tax returns for 1996, 1997, and 1998.
Those returns showed significant gross income in 1996 and 1997, but declining
substantially after that, causing him to be in a net loss position because of
high business expenses incurred.
[16]
The
tribunal reviewed the submissions of the parties identifying the thrust of the
Minister’s arguments were to the effect Mr. Mrak was not eligible to receive
benefits because he was not continuously disabled from December, 1997.
According to the Minister, Mr. Mrak himself stated he only stopped working in
2002, had substantial gross income in 1997, 1998, and 1999 and pointed to the
medical evidence from Dr. Slusky although he suffered several head injuries,
his functional ability was not affected until 2002.
[17]
According
to the tribunal, counsel for Mr. Mrak argued from 1997 to 2002, Mr. Mrak did
hope he could return to substantially gainful employment but was not the test
under the Act. The test was not whether Mr. Mrak worked, but rather,
whether his income tax returns showed he was incapable regularly of pursuing
substantial gainful employment. His income tax returns showed he could not,
she argued. In terms of the medical evidence, his counsel argued it showed he
was disabled on or before December, 1997. His medical conditions were
affecting his ability to function and were in existence long before that date.
[18]
In
its analysis, the tribunal acknowledged it was abundantly clear after his fall
in 2002, Mr. Mrak was incapable regularly of pursuing any substantially gainful
employment. It also acknowledged, “the more difficult issue for the tribunal
is determining Mr. Mrak’s capacity for employment in December, 1997”
indicating, at that time, although he was attending doctors appointments
regularly for pain in his neck, head, back and tailbone “there is no
comprehensive medical evidence addressing the effect of his organic brain
disorder”, adding, “the evidence however shows that the effects of it have been
a concern for Mr. Mrak since the 1970’s, and he has struggled to cope in spite
of it.”
[19]
The
tribunal then stated it agreed with counsel for Mr. Mrak’s argument the medical
evidence just before and after December, 1997, “does show Mr. Mrak had chronic
pain syndrome and weekly migraine headaches.” Of Dr.Slusky’s evidence the
tribunal wrote at page 31:
“Dr. Slusky’s evidence does appear to show that Mr. Mrak’s
more serious brain disorder difficulties did not begin until 2002. Dr. Slusky
however did not see Mr. Mrak until May of 2004. He does also indicate that Mr.
Mrak’s conditions may be the result of numerous previous injuries.
Unfortunately, Dr. Slusky was not able to assess Mr. Mrak in 1997, and
accordingly the evidence is difficult to weigh.” [Emphasis mine]
[20]
The tribunal expressed its conclusions in the following manner.
“The tribunal finds that considering a real world context,
the appellant was incapable regularly of pursuing any substantially gainful
employment in December of 1997 and thereafter. He was disabled after his fall
in October of 1997.”
Analysis
[21] This case is unusual in that all
of the jurisprudence cited by both parties dealt with cases where the decision
sought to be judicially reviewed and quashed under section 18 of the Federal
Courts Act was one where leave to appeal had been refused not as, in
this case, where leave was granted and where no reasons are statutorily
required.
[22] Nevertheless, both parties agree
the jurisprudence developed in the context of a judicial review of a decision
refusing leave should be applicable to one where the grant of leave is sought
to be quashed.
[23] In particular, counsel for both
parties adopt the test formulated by Justice MacKay in Callihoo v. Canada
(Attorney General) [2000] F.C.J. No. 612, where he expressed the view a
decision concerning an application for leave to appeal to the Board involved
two issues:
1.
Whether
the decision-maker has applied the correct 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. [Emphasis mine]
[24] I also refer to Justice Reed’s
decision in Kerth v. Canada (Minister of Human
Resources Development) [1999] FCJ No. 1252 dealing, once again, with a
judicial review application challenging the refusal to grant leave to the Board
from a decision of the Review Tribunal. She wrote as follows in the first
paragraph in her analysis of the decision under review:
“A leave to appeal a 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 which must be met on the hearing of an appeal on the merits.
The applicant at the leave stage does not have to prove his or her case.”
[25] Justice Reed then went on to cite
Federal Court of Appeal jurisprudence to the effect in order for a leave to
appeal motion to succeed, the applicant must satisfy the Court there is some
arguable ground upon which the proposed appeal might succeed.
[26] In Martin
v. Canada (Minister of Human Resources Development) [1999] F.C.J. No.
1972 (F.C.A.) Justice Malone, on behalf of the Federal Court of Appeal quoted
with approval Justice Reed’s decision in Kerth, above, coming to the
conclusion the Vice-Chairman of the Board had applied an incorrect test and
placed too heavy a burden on the appellant when assessing the application for
leave to appeal. He held there was at least an arguable case as to the proper
interpretation of the provision of the Plan that requires for a disability to
be severe, the claimant must be “incapable regularly of pursuing any
substantially gainful occupation” which is the section which this case is
concerned with.
[27] I am prepared
to accept the parties submission the test in Callihoo, above, is
appropriate in the context of an application for judicial review challenging
the grant of leave but I would go further and add an additional requirement
that the applicant must establish special circumstances to justify such a
judicial review because the grant of leave is an interlocutory proceeding which
does not decide the merits of an appeal which, itself, in the case of the Board
is conducted de novo.
[28] The policy of
the law is that unless there are special circumstances there should not be an
appeal or immediate judicial review of an interlocutory judgment. See the
Federal Court of Appeal’s decision in Szczecka v. Canada (Minister of
Employment and Immigration) (F.C.A.) [1993] F.C.J. No. 934.
[29] While Justice
Deyell did not provide written reasons for his grant of leave, I hold, for the
purposes of this judicial review application, the Minister’s identification of
arguable issues in his ex parte written application for leave to appeal
are deemed to be the reasons for the grant of leave. In my view, such a finding
is warranted by the very terms of section 83 of the Act which, as noted,
provides where leave is granted the application for leave to appeal becomes the
notice of appeal.
[30] The principal
argument advanced by counsel for the Mr. Mrak is that one cannot find anywhere
in the Minister’s leave application a demonstration or identification of an
arguable issue. Read as a whole, she argues the application for leave is
simply an expression of dissatisfaction by the Minister of the tribunal’s
decision as the leave application evidences no error of law or fact and no new
evidence was put before the leave judge. The review tribunal’s decision simply
involved the application of the proper statutory definition of disability to
the evidentiary findings of the tribunal.
[31] Counsel for the
Minister replies by stating the leave application identified two arguable
issues. The first arguable issues she says raised in the leave application is
whether Mr. Mrak’s post-December 1997 earnings demonstrate capacity to engage
in substantial gainful employment. She cites the Federal Court of Appeal’s
decision in Villani v. Canada (Attorney General) [2001]
F.C.J. No. 1217 at paragraph 38 for the proposition that to be disabled Mr.
Mrak had to be incapable of pursuing, with consistent frequency, any truly
remunerative occupation. The second arguable issue she identifies is
whether the medical evidence supports a finding of disability as of December.
1997.
[32] I agree with
counsel for the Minister, based on the contents of the leave application, it
cannot be seriously maintained Justice Deyell’s decision to grant leave was
unreasonable.
[33] On the medical
evidence, a review of the tribunal’s decision shows it made no analysis of Dr.
Ilse’s two reports. The first is dated November, 1997, which found Mr. Mrak to
be constitutionally well on examination and his neurological examination was no
different from what had been previously reported.
[34] His further
report of April 6, 1998, found Mr. Mrak had responded well to medication and
his headaches had decreased in frequency, duration, and severity. The tribunal
did comment on Dr. Slusky’s report but really did not come to grips with it,
finding his report “difficult to weigh.” The tribunal’s treatment of the
medical evidence raises an arguable issue.
[35] On the income
issue, Mr. Mrak did report in 1997, 1998, and 1999 gross income from his work.
The tribunal found these earnings were not evidence of a substantial gainful
occupation because of the unusually high business expenses incurred. Yet, once
again, the tribunal did not conduct any significant analysis on the point the
level of business expenses precluded gainful employment.
[36] Finally, this
decision being an interlocutory one, the applicant has failed to satisfy me
special circumstances are present in this case to allow immediate judicial
review.
[37] Counsel for Mr.
Mrak raised a third point which I need not discuss which related to a breach of
the duty of fairness in not providing written reasons for the grant of leave.
In argument, counsel for Mr. Mrak conceded no duty had breached but that the
lack of reasons resulted in an unfairness to Mr. Mrak. For reasons stated
above, there is no merit to this point.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
this judicial review application is dismissed.
“François
Lemieux”
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