Date: 20070731
Docket: T-267-06
Citation: 2007 FC 805
Ottawa, Ontario, July 31, 2007
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
HARBANS
KHOTA
Applicant
and
MINISTER
OF HUMAN RESOURCES AND SKILLS DEVELOPMENT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a Review Tribunal,
constituted under section 82 of the Canadian Pension Plan, R.S.C. 1985,
c. C-8 (CPP). The decision was dated April 29, 2002 and it dismissed an
appeal from the Respondent’s refusal to award the Applicant a long term
disability pension (the Decision). The Applicant seeks an order from the Court
setting aside the Decision and remitting the matter back to a newly constituted
Review Tribunal for re-determination.
BACKGROUND
[2]
Ms.
Harbans Khota (the Applicant) was born in India in 1950 and
immigrated to Canada in 1970.
Between 1975 and 1995 she was employed in a variety of positions including
seasonal berry picking and dishwashing. In the fall of 1995, she became unable to
work due to a number of physical and mental ailments.
[3]
The
Applicant has thrice applied for a CPP disability pension. Her initial
application was made on June 3, 1996. On that application form the
Applicant stated that constant back problems prevented her from working. The Respondent
(the Minister) denied this application and the Applicant did not seek a
reconsideration. The Applicant applied the second time
on August 25, 1997. Again she indicated that she stopped working in
September 1995 due to back problems. In the questionnaire which accompanied her
application, the Applicant described her main disabling conditions as problems
with her “spinal disk” [sic], arthritis in her joints, low sugar level, “ritus
hestimy [sic] taken out right side no ovary”. She also wrote that she was
seeking medical attention for depression. Importantly, no mention was made of
osteoarthritis of her cervical spine.
[4]
The Minister denied the second application both
initially and after reconsideration, on the ground that the Applicant had
failed to establish that her disability was “severe and prolonged” within the
meaning of subsection 42(2) of the CPP.
[5]
On April 22, 1998, the Applicant appealed
this decision to the Review Tribunal. At its hearing on August 26, 1998,
the Applicant testified that her main medical condition was lower back pain. The
medical evidence in the form of a report dated August 13, 1997 from her family
physician, Dr. MacCharles, confirmed that her medical problems were chronic
lower back pain caused by degenerative disc disease and depression. No mention
was made of osteoarthritis of the cervical spine.
[6]
In a decision dated November 6, 1998, the Review
Tribunal upheld the Minister’s decision and concluded that neither her lower back
problems nor her depression prevented the Applicant “from some regular gainful
work, even on a part time basis” (the First RT Decision). The Applicant applied
for leave to appeal this decision but on August 27, 1999, the Pension
Appeals Board refused leave.
[7]
The Applicant’s third application for a CPP
disability benefit was made on January 6, 2000. The Minister denied the
third application, both initially and after reconsideration, and the Applicant
again appealed the Minister’s decision to the Review Tribunal. At the hearing,
the Applicant was self-represented. The Review Tribunal heard the appeal on
March 7, 2002 and, on its own motion, decided to treat the appeal as an
application under subsection 84(2) of the CPP to amend the First RT Decision
based on new fact evidence.
[8]
The new evidence took the form of two medical
reports. One was a letter from Dr. George MacCharles dated
March 4, 2002 (the MacCharles’ Letter). It mentioned osteoarthritis of the
cervical spine for the first time and reads, in part, as follows (the passage
in italics was handwritten on the original):
This patient has
refractory mental illness. She has been diagnosed with depression and
dysthymia. It’s refractory to all forms of treatment. Because of this, I
believe her pain thresholds are lower and she doesn’t have energy. It is
suspected she has fibromyalgia and chronic fatigue syndrome, however specialty
referrals for this are pending.
She also has
osteoarthritis of her cervical spine causing symptoms related to this. This is
unresponsive to medical therapy. This is a new finding based on Xrays but
likely has been present for many years. There are some findings in a 1997 neck
Xray.
[9]
Based on the MacCharles’ Letter, the Applicant
says that she presented the Review Tribunal with new evidence of fibromyalgia,
chronic fatigue syndrome (CFS) and cervical osteoarthritis.
[10]
The second medical report which the Applicant
said included new facts was a letter from Dr. Sohal of March 5, 2002
(the Sohal Letter). It introduced Dyspepsia and Dyslipidemia as new conditions
but provided no information about the timing of their development or their
severity. The letter reads, in part, as follows:
This is to
inform you that Ms. Khota is under my care since March 2001. She is suffering
from several medical problems including diabetes mellitus, dyslipidemia,
dyspepsia, menopausal symtoms [sic], anxiety and depression. She is also
suffering from fatigue and musculoskeletal pain. She is taking several
medications including metformin, elavil, clonazepam, zantac, lipitor, naprosyn
and premarin.
At present Ms.
Khota is unable to do any meaningful [sic] because of her multiple medical
problems.
THE ISSUES
[11]
The following are the issues:
(i)
Did the Tribunal err in concluding that the
MacCharles’ Letter did not contain evidence of new facts about CFS and
Fibromyalgia?
(ii)
Did the Tribunal err in concluding that the Sohal
letter did not contain evidence of new facts about Dyspepsia and Dyslipidemia?
(iii)
Was there a breach of the requirement of
procedural fairness because the Decision failed to include adequate reasons?
THE LAW
[12]
Subsection
42(2) of the CPP establishes the requirement for a severe and prolonged
disability. It says:
|
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;
|
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;
|
[13]
Subsection
84(2) of the CPP deals with new fact evidence. It says:
|
84(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.
|
84(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.
|
[14]
In Minister of Human Resources v. Macdonald,
[2002] F.C.J. No. 197 at paragraph 2, the Federal Court of Appeal said that for
the purposes of subsection 84(2) of the Act, new facts “…must not have been
previously discoverable with reasonable diligence and must be material”.
STANDARD OF
REVIEW
[15]
In Taylor v. Canada (Minister of Human Resources Development), 2005 FCA 293, at paragraph 12, the Federal Court of Appeal
described the standard of review applicable to a determination about new facts
under subsection 84(2) of the Act. It said:
Materiality and
due diligence are questions of mixed fact and law with a heavy emphasis on
fact. Discoverability is obviously a question of fact. The standard of review
for types of questions such as this is patent unreasonableness …
[16]
Accordingly, issues (i) and (ii) will be
reviewed on standard of patent unreasonableness. However, in my view, issue
(iii) does not require a pragmatic and functional analysis because the adequacy
of reasons is a question of procedural fairness and is therefore not a subject
on which deference is shown.
DISCUSSION
[17]
No information was provided by Dr. Sohal about
when the Applicant’s ailments were first noticed and the diagnoses of CFS and
fibromyalgia in the MacCharles Letter were only “suspected”. This meant that there
was no evidentiary basis in either the MacCharles Letter or the Sohal Letter for
considering fibromyalgia, CFS, Dyspepsia and Dyslipidemia as new fact evidence.
Accordingly, the Decision with respect to these ailments was not patently
unreasonable.
[18]
The Review Tribunal properly focussed its
attention on the cervical osteoarthritis mentioned in the MacCharles’ Letter.
In that regard, the MacCharles’Letter said that, although not diagnosed in 1997,
neck Xrays in that year indicated that osteoarthritis had been present.
Further, it was not responding to treatment in March of 2002.
[19]
Unfortunately, with regard to this evidence, the
Decision simply said:
The Tribunal has
some reservations as to whether the above evidence falls within the parameter
of “new fact” evidence, the Tribunal is of the view that it would probably fail
on the second element of the legal test, that is to say, it probably would not
have had an important influence on the first Tribunal’s decision.
[20]
The Applicant submits that the Decision does not
give reasons why the cervical osteoarthritis would probably not have been
material.
[21]
Given that the condition apparently existed at
the material time (i.e. before December 31, 1997 when the Applicant’s
qualifying period expired) it is my view that it was incumbent on the Review
Tribunal to address the severity and duration of the Applicant’s cervical
osteoarthritis in order to support its conclusion about materiality. In the
absence of reasons dealing with these issues, the Decision is inadequate.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
the Decision is set aside only as it relates to
cervical osteoarthritis.
The question of whether there
is new fact evidence within the meaning of subsection 84(2) of the Act relating
to cervical osteoarthritis is sent back for reconsideration de novo by
another Review Tribunal. The parties are entitled to submit further evidence about
the cervical osteoarthritis mentioned in the MacCharles Letter if they choose
to do so.
“Sandra
J. Simpson”
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