Date: 20070706
Docket: T-573-05
Citation: 2007 FC 722
Ottawa, Ontario, July 6,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
HARRY
DEAN
Applicant
and
OFFICE OF THE COMMISSIONER OF
REVIEW TRIBUNALS
and the MINISTER OF SOCIAL DEVELOPMENT CANADA (SDC),
formerly HUMAN RESOURCES DEVELOPMENT CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application for judicial review of a decision by the Canada Pension Plan
Review Tribunal dated March 1, 2005, which refused to reconsider the Review
Tribunal’s decision of August 25, 1997, which denied the applicant disability
benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP).
[2]
The
applicant requests that the Court set aside the March 1, 2005 decision of the
Review Tribunal, and order that a new hearing take place in order to determine
the merits of his appeal. In the alternative, the applicant requests that the
application be allowed and that the Court set aside the March 1, 2005 decision
of the Review Tribunal and refer the matter back for redetermination.
Background
First CPP Application
[3]
The
applicant, Harry Dean, first applied for disability benefits under the CPP
in 1996, when he was thirty-five years old. He had worked as a quality control
inspector from 1987 until he was laid off in April 1994. He claimed to be
suffering from anxiety, depression and post-traumatic stress disorder as a
result of the death of his father. The applicant was involved in a car accident
in June 1996, when an intoxicated driver rear-ended his car. As a result, he
experienced constant headaches and back pain. His application for disability
benefits under the CPP was denied both initially, and upon reconsideration. The
applicant appealed the decision to the Review Tribunal and the appeal was heard
on June 10, 1997. The appeal was dismissed on August 25, 1997.
First Review Tribunal
Decision: August 25, 1997
[4]
The
Review Tribunal found that the applicant’s condition was not severe and
prolonged as defined in subsection 42(2) of the CPP. The applicant’s evidence
indicated that his daily life was affected by his health conditions; however,
he could drive, exercise and walk without difficulty. Dr. Levy provided a
medical report dated February 1996, in which he diagnosed the applicant with anxiety
and depression. The applicant’s prognosis was described as fair. Dr.
Waldenberg, a psychiatrist, provided a report dated March 1996, which indicated
that the applicant was reluctant to seek treatment for excessive drinking and
as such, could not be helped.
[5]
The
Review Tribunal concluded that the preponderance of the medical evidence did
not support functional impairment that would prevent the applicant from
pursuing any substantially gainful occupation. His prognosis was “fair” and he
led an active lifestyle. There was no evidence that the applicant had a
psychiatric disorder precluding gainful employment.
Second CPP Application
[6]
The
applicant made a second application for disability benefits under the CPP in
November 2002. He described his medical conditions as severe sadness,
depression and “also physical.” The applicant was employed as a courier driver
from March 2000 until March 2001, when he stopped working due to health
problems. His second application for disability benefits was denied both initially
and upon reconsideration. The applicant appealed the decision to the Review
Tribunal. On January 12, 2005, the Review Tribunal held a new facts hearing
with respect to the applicant’s first CPP application (1997 decision), and an
appeal hearing with respect to his second application (2002 decision).
Second Review Tribunal
Decision: March 1, 2005
[7]
Despite
the fact that he did not formally complete an application to re-open the 1997
decision of the Review Tribunal under subsection 84(2) of the CPP, the second
Review Tribunal applied the following test for new facts to the additional
material submitted by the applicant:
First,
the evidence must not have been discoverable before the original hearing by the
exercise of reasonable diligence, and second, there must be reasonable
possibility as opposed to probability that the evidence, if admitted, could
lead the Review Tribunal to change its original decision.
[8]
The
minimum qualifying period (MQP) was December 31, 1997; therefore the applicant
had to be found to be disabled before that date, and the additional information
had to relate to his medical condition on or before December 31, 1997. The
Review Tribunal noted the following:
-
A
2002 report form Dr. Tysdale showed no evidence of neurological disorder or obsessive
compulsive disorder. The report noted that the applicant was “fairly disabled”
and not ready to move into the workforce. The prognosis was “guarded.”
-
A
1997 report from psychologist Dr. Goldberg, which indicated that the applicant
was capable of handling the mental demands of his previous work, and there was
no evidence that he had disabling levels of emotional impairment.
-
A
1998 report from rehabilitation consultant T.D. Pearce, which suggested a
referral to a chronic pain program. The applicant attended for two weeks and
left without explanation.
-
The
applicant worked from March 20, 2000 until March 16, 2001; therefore he was
capable of being employed. His employer reported that he worked about 28 hours
weekly and worked properly.
[9]
The
Review Tribunal concluded that there were no new facts to allow it to amend or
rescind the 1997 decision of the first Review Tribunal. The Review Tribunal
also considered whether the applicant had become disabled after his hearing in
June 1997, and before the end of his MQP in December 1997. It was found that
the applicant did not meet the definitions of severe and prolonged during that
period; therefore the appeal was dismissed.
[10]
The
applicant applied for judicial review of the Review Tribunal’s decision, dated March
1, 2005, that there were no new facts warranting the reopening of the 1997
decision. This is the judicial review of the Review Tribunal’s decision in this
regard.
Issues
[11]
The
applicant submitted the following issue for determination:
Did the Review Tribunal apply
the wrong test, misapply the legal test or address the wrong question when
assessing the applicant’s application to re-open the 1997 hearing based on new
facts?
[12]
I
would rephrase the issue as follows:
Did the Review Tribunal err in
finding that there were no “new facts” warranting the re-opening of the 1997
decision of the first Review Tribunal?
Applicant’s Submissions
[13]
The
applicant applied the pragmatic and functional approach to the determination of
the standard of review, and submitted that the standard applicable to the
second Review Tribunal’s decision regarding whether there were new facts within
the meaning of subsection 84(2) of the CPP, was closer to correctness. At the
hearing, the applicant used the standard of patent unreasonableness.
[14]
It
was submitted that the test for new facts was: (1) the evidence must not have
been discoverable before the original hearing by the exercise of reasonable
diligence; and (2) the evidence must be material (see Canada (Minister of
Human Resources Development) v. MacDonald, 2002 FCA 48). The
applicant submitted that the first part of the test was met. It was noted that
most of the medical information submitted to the Review Tribunal in 2005 did
not exist prior to the original 1997 hearing. The applicant saw the
psychiatrist and was diagnosed with temporomandibular joint disorder after the
June 1997 hearing; therefore the evidence could not have been discovered prior
to that hearing.
[15]
The
applicant submitted that the Review Tribunal erred in its application of the
second part of the test for new facts. It was submitted that the Review
Tribunal should have looked at the evidence as a whole and determined whether
it raised a reasonable possibility that it could have changed the original
decision (see Kent v. Canada (Attorney General) (2004), 248
D.L.R. (4th) 12, 2004 FCA 420). The applicant noted that in Kent, the new
facts admitted by the Court were reports about medical conditions that were
undiagnosed at the time of the original hearing.
[16]
The
applicant submitted that the Review Tribunal failed to look at all of the
evidence in making the determination as to new facts. The Review Tribunal did
not mention any of the conditions identified by the applicant’s dental
specialists, and these conditions were undiagnosed at the time of the original
hearing in 1997. Further, it was submitted that the Review Tribunal erred in
finding that the applicant’s employment in 2000 and 2001 disposed of the new
facts application. The applicant submitted that having found a new fact, the
Review Tribunal had to determine the appeal on its merits.
[17]
The
applicant submitted that the new facts shed light on the disabilities he
suffered from, and that the evidence did not exist at the time of the original
1997 hearing. It was submitted that the facts were not discoverable but were
material, and were therefore new facts pursuant to subsection 84(2) of the CPP.
Respondent’s Submissions
[18]
The
respondent submitted that where the correct legal test was applied, the
standard of review applicable to a determination of new facts under subsection
84(2) of the CPP was patent unreasonableness (see Jones v. Canada (Attorney
General),
2006 FC 1366).
[19]
Pursuant
to subsection 42(2) of the CPP, a person is disabled only if he or she is determined
“in a prescribed manner” to have a severe and prolonged mental or physical
disability. Pursuant to section 68 of the Canada Pension Plan Regulations,
C.R.C., c. 385 (the Regulations), an applicant must provide objective medical
evidence of impairment and the resulting limitations. It was submitted that
doctors did not determine whether an individual was disabled, and should not
become advocates on behalf of their patient’s claims (see Canada (Minister of
Human Resources Development), v. Angheloni (2003), 50 Admin.
L.R. (3d) 165, 2003 FCA 140).
[20]
The
respondent submitted that it was capacity to work, not the diagnosis that
determined the severity of disability under the CPP (see Minister of Human
Resources v. Scott (2003), 300 N.R. 136, 2003 FCA 34). It was
submitted that applicants must demonstrate that they suffer from a serious and
prolonged disability that renders them incapable of pursuing any substantially
gainful occupation (see Villani v. Canada (Attorney
General),
[2002] 1 F.C. 130, 2001 FCA 248).
[21]
The
respondent submitted that the new facts test required the applicant to prove on
a balance of probabilities that the new evidence which existed at the time of
the original hearing could not have been discovered with reasonable diligence,
and that had it been made available to the first Review Tribunal, it would
probably have changed the result. It was submitted that the new evidence had to
be material to the issue of whether the applicant was disabled within the
meaning of the CPP when he last met the MQP in December 1997. In Taylor v.
Canada (Minister of Human Resources Development) (2005), 340 N.R.
290, 2005 FCA 293), the Court found that new evidence based on previously
available and known clinical data failed to meet this test.
[22]
The
respondent submitted that the first Review Tribunal was correct in finding that
the evidence did not establish that the applicant was incapable of regularly
pursuing any substantially gainful occupation. It was submitted that the only
new evidence before the second Review Tribunal were the reports of Dr.
Goldberg, dated May 20, 1997, and Dr. Stechey, dated September 1997, since the
remaining evidence post-dated the first Review Tribunal’s decision and related
to his medical condition at the time the documents were prepared.
[23]
Dr.
Goldberg reported that the applicant was capable of handling the demands of his
previous work and that there was no evidence that he had disabling levels of
emotional impairment. Dr. Stechey, saw the applicant for routine dental
cleaning and evaluations. His report indicated that the applicant’s teeth were
still heat and cold sensitive, although most were no longer a problem. The
report noted that the temperomandibular joint had resolved reasonably well with
analgesics and anti-inflammatory. The dentist concluded that the applicant
would need on-going monitoring and treatment.
[24]
The
respondent submitted that the Review Tribunal was correct in determining that
the evidence did not meet the criteria for new facts under subsection 84(2) of
the CPP. It was submitted that the Review Tribunal was correct in finding that
the new evidence that existed at the time of the first Review Tribunal hearing
did not provide new information that might have changed the decision. The
respondent submitted that the Review Tribunal’s decision was not patently
unreasonable.
Analysis and Decision
Standard of Review
[25]
The
Review Tribunal’s decision pursuant to subsection 84(2) of the CPP regarding
whether to reconsider an earlier decision on the basis of new facts, is
reviewable on the standard of patent unreasonableness (see Taylor
above).
[26]
Issue
Did the Review Tribunal err
in finding that there were no “new facts” warranting the re-opening of the 1997
decision of the first Review Tribunal?
Pursuant to
subsection 84(2) of the CPP, a Review Tribunal may, notwithstanding subsection
84(1), on new facts, rescind or amend a decision under the CPP given by the
Tribunal. The applicant submitted that there were new facts that warranted the
re-opening of the decision made by the first Review Tribunal in August 1997. The
respondent submitted that the second Review Tribunal was correct in determining
that the evidence provided by the applicant did not meet the criteria for new
facts.
New Facts Test
[27]
The
second Review Tribunal set out the test for new facts as follows:
First, the evidence must not have been
discoverable before the original hearing by the exercise of reasonable
diligence.
Second, there must be reasonable
possibility as opposed to probability that the evidence, if admitted, could
lead the Review Tribunal to change its original decision.
[28]
In
Kent above,
Justice Sharlow, speaking for the Court, described the test for new evidence as
follows:
33. The jurisprudence of this Court has
established a two-step test for the determination of whether there are new
facts. First, the proposed new facts must not have been discoverable, with due
diligence, prior to the first hearing. Second, the proposed new facts must be
"material": Canada (Minister of Human Resources Development)
v. MacDonald, 2002 FCA 48, 112 A.C.W.S. (3d) 177.
34. Whether a fact was discoverable with due
diligence is a question of fact. The question of materiality is a question of
mixed fact and law, in the sense that it requires a provisional assessment of
the importance of the proposed new facts to the merits of the claim for the
disability pension. The decision of the Pension Appeals Board in Suvajac
v. Minister of Human Resources Development (Appeal CP 20069, June 17,
2002) adopts the test from Dormuth v. Untereiner, [1964] S.C.R.
122, 43 D.L.R. (2d) 135, that new evidence must be practically conclusive. That
test is not as stringent as it may appear. New evidence has been held to be
practically conclusive if it could reasonably be expected to affect the result
of the prior hearing: BC Tel v. Seabird Island Indian Band
(Assessor), [2003] 1 F.C. 475, 216 D.L.R. (4th) 70 (C.A.). Thus, for the
purposes of s. 84(2) of the Canada Pension Plan, the materiality test is met if
the proposed new facts may reasonably be expected to affect the outcome.
Applying this jurisprudence to this case, I
am of the view that the Review Tribunal applied the proper test.
[29]
The
following portion of the Review Tribunal’s decision deals with the application
of the test for new facts in this case:
The Appellant at the Hearing submitted a
report of his doctor, Dr. A. T. Tysdale, dated November 21, 2002, which is
marked Exhibit A1 and a list of medications that the Appellant has taken for a
considerable period of time which is marked as Exhibit A2.
The report of Dr. Tysdale indicates no
evidence of neurological disorder nor an obsessive compulsive disorder – the
report does state that he sees the Appellant as “fairly disabled” and not ready
to move into the workforce. He stated that his prognosis is “guarded.” Dr.
Goldberg, a psychologist, in his report of May 20, 1997, indicated that the
Appellant is capable of handling the mental demands of his previous work. As
well, he stated there is no evidence on psychometric measures that he has disabling
levels of emotional impairment.
T.D. Pearce, Rehabilitation Consultant,
in his report dated November 9, 1998 (page B-27), suggests a referral to the
chronic pain program at Chedoke
McMaster Hospital. The Appellant did attend for
the pain program, but left after 2 weeks with no explanation given.
The review of the additional medical
information did not provide new information that could provide a reasonable
possibility that if admitted could lead the Review Tribunal to change its
original Decision. Underscoring all of the new information is the fact that the
Appellant had valid earnings and contributions in the year 2000 which indicated
he was capable of performing a substantially gainful occupation. He worked from
the 20th of March 2000, to 15th of March, 2001 (page 54).
The work report of his employer, Laserage
Inc., indicated he was working part-time approximately 28 hours weekly. The
quality of his work, according to his employer, was that he completed his work
properly and customers liked him (page 55).
In conclusion, the Review Tribunal finds
that there are no “new facts” to allow this Tribunal to amend or rescind the
previous Decision of the Review Tribunal held on June 10, 1997.
[30]
I
have reviewed the proposed new facts submitted by the applicant and I cannot
conclude that the Review Tribunal’s decision was patently unreasonable. It made
reference to the reports of Dr. Tysdale, Dr. Goldberg and T. D. Pearce. The
applicant submitted that the Review Tribunal did not specifically mention or
deal with the reports of Dr. Stechey. However, the Review Tribunal did state
above that it reviewed the additional medical information, and that it did not
contain new information that could provide a reasonable possibility that if
admitted, could lead the Review Tribunal to change its original decision. Thus,
the second part of the new facts test was not met by the evidence provided by the
applicant.
[31]
The
applicant also submitted that the Review Tribunal used the fact that the
applicant was employed from March 2000 to March 2001 to decide the new facts
issue. I do not agree the Review Tribunal made a reviewable error in this
respect. It merely noted as a supporting factor that the applicant was employed
in this period.
[32]
The
application for judicial review is therefore dismissed.
JUDGMENT
[33]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Canada Pension Plan, R.S.C. 1985, c. C-8.:
|
42. . . .
(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
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.
|
42.
. . .
(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;
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.
|
The Canada Pension Plan Regulations, C.R.C., c. 385:
|
68(1) Where an applicant claims that he or some other
person is disabled within the meaning of the Act, he shall supply the
Minister with the following information in respect of the person whose
disability is to be determined:
(a) a report
of any physical or mental impairment including
(i) the
nature, extent and prognosis of the impairment,
(ii) the
findings upon which the diagnosis and prognosis were made,
(iii) any
limitation resulting from the impairment, and
(iv) any other
pertinent information, including recommendations for further diagnostic work
or treatment, that may be relevant;
(b) a
statement of that person’s occupation and earnings for the period commencing
on the date upon which the applicant alleges that the disability commenced;
and
(c) a
statement of that person’s education, employment experience and activities of
daily life.
(2) In addition to the requirements of
subsection (1), a person whose disability is to be or has been determined
pursuant to the Act may be required from time to time by the Minister
(a) to supply
a statement of his occupation and earnings for any period; and
(b) to undergo
such special examinations and to supply such reports as the Minister deems
necessary for the purpose of determining the disability of that person.
(3) The
reasonable cost of any examination or report required under subsection (2)
shall be
(a) paid by
way of reimbursement or advance, as the Minister deems fit;
(b) paid out
of the Consolidated Revenue Fund; and
(c) charged to
the Canada Pension Plan Account as a cost of administration of the Act.
(4) For the purposes of this section,
"cost" includes travel and living expenses that the Minister deems
necessary of the person whose disability is to be determined and of a person
to accompany that person.
|
68(1)
Quand un requérant allègue que lui-même ou une autre personne est invalide au
sens de la Loi, il doit fournir au ministre les renseignements suivants sur
la personne dont l’invalidité est à déterminer:
a)
un rapport sur toute détérioration physique ou mentale indiquant
(i)
la nature, l’étendue et le pronostic de la détérioration,
(ii)
les constatations sur lesquelles se fondent le diagnostic et le pronostic,
(iii)
toute incapacité résultant de la détérioration, et
(iv)
tout autre renseignement qui pourrait être approprié, y compris les
recommandations concernant le traitement ou les examens additionnels;
b)
une déclaration indiquant l’emploi et les gains de cette personne pendant la
période commençant à la date à partir de laquelle le requérant allègue que
l’invalidité a commencé; et
c)
une déclaration indiquant la formation scolaire, l’expérience acquise au travail
et les activités habituelles de la personne.
(2)
En plus des exigences du paragraphe (1), une personne dont l’invalidité reste
à déterminer ou a été déterminée en vertu de la Loi, peut être requise à
l’occasion par le ministre
a)
de fournir une déclaration de ses emplois ou de ses gains pour n’importe
quelle période; et
b)
de se soumettre à tout examen spécial et de fournir tout rapport que le
ministre estimera nécessaire en vue de déterminer l’invalidité de cette
personne.
(3)
Le coût raisonnable de tout examen ou rapport requis en application du
paragraphe (2) sera
a)
payé par remboursement ou avance, selon l’avis du ministre;
b)
payé à même le Fonds du revenu consolidé; et
c)
imputé au compte du régime de pensions du Canada comme frais d’application de
la Loi.
(4)
Aux fins du présent article, les «frais» comprennent les dépenses
de voyage et de séjour que le ministre estime nécessaires pour la personne
dont l’invalidité doit être déterminée et pour celle qui doit l’accompagner.
|
Email this Content