Date: 20130704
Docket: T-1370-12
Citation:
2013 FC 746
Ottawa, Ontario,
July 4, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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HARRY DEVLIN
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Applicant
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and
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THE 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 pursuant to the Federal Courts Act, RSC
1985,
c F-7, section 18.1(4), of a
decision refusing to grant leave to appeal a finding that the applicant did not
qualify under section 42(2)(ii) of the Canada Pension Plan act, RSC
1985, c C-8 [CPP] for a disability pension by reason of a severe and prolonged
disability.
[2]
The
applicant, Mr. Devlin, stated that he was injured on the job on August 28,
2000. He applied for disability benefits on August 10, 2009. The Minister
denied the application on April 28, 2010 and denied it again upon reconsideration
on December 3, 2010. Mr. Devlin appealed to the Review Tribunal. On November
29, 2011, the Review Tribunal also dismissed his application. Mr. Devlin sought
leave to appeal the Tribunal decision. On May 15, 2012, a Designated Member,
the vice-chairman of the Pension Appeals Board, refused leave.
[3]
Mr.
Devlin represented himself in his application for leave and on this
application. While his written reasons for seeking leave were scant, he ably
reviewed the history of his application for benefits in his oral submissions to
the Court and candidly acknowledged that information he had previously provided
pertaining to his work history was incorrect. He also candidly reviewed the
history of his prior applications for benefits and substance abuse.
DECISION UNDER REVIEW:
[4]
In
his decision, the Designated Member reviewed the history of the case. He
described the Tribunal’s decision, commenting that it had conducted a lengthy
and detailed review of the evidence, and that it had correctly identified the
criterion under s 42(2)(ii) of the CPP and had decided that the requirements
were not met. He cited Callihoo v Canada (Attorney General), [2000] FCJ
No 612 (QL) (TD) for the test for granting leave to appeal and Canada (Attorney General) v Carroll, 2011 FC 1092 at para 14 for the test for
an arguable case:
14 The
PAB also has a duty to apply the correct test for granting leave to appeal. The
test is whether the applicant requesting leave has raised an arguable case (Callihoo v Canada (Attorney General),
[2000] FCJ No 612
(TD)). An applicant will raise an arguable case if she puts forward new or
additional evidence (not already considered by the RT), raises an issue not
considered by the RT, or can point to an error in the RT's decision.
[5]
The
Designated Member found that Mr. Devlin had not identified any error of law nor
specified what important information had been overlooked. No new or additional
evidence had been presented and no new issues were raised. He refused leave to
appeal.
ISSUE:
[6]
The
issue is whether the
Designated Member made unreasonable findings based on the evidence before him.
STANDARD
OF REVIEW:
[7]
The applicant
is not arguing that the wrong legal test was applied, but that the
determination of whether his application raised an arguable case was in error. The standard of review is therefore reasonableness (Canada (Attorney General) v Zakaria, 2011 FC 136, at paras 14-15). Applying
that standard, the Court may not interfere with the decision if it was justified,
transparent, and intelligible, and fell within the range of possible,
acceptable outcomes which were defensible in respect of the facts and the law.
APPLICABLE LEGISLATION:
Canada Pension Plan
R.S.C., 1985, c. C-8
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Régime de pensions du Canada
L.R.C. (1985), ch. C-8
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42. (1) In
this Part,
[. .
.]
(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
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42. (1) Les
définitions qui suivent s’appliquent à la présente partie.
[. . .]
(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;
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ANALYSIS:
[8]
The
applicant argued that the Review Tribunal had misinterpreted the facts. He relied
on his affidavit and a new occupational rehabilitation report dated 2011/07/11
to demonstrate that he was not fit to work due to his back problems, and was
disabled well before December 31, 2002, the agreed minimum qualifying period
(MQP) date.
[9]
The
respondent submitted that an “arguable case” was akin
to a “reasonable chance of success”, although the hurdle for leave was lower
than that for success at the hearing on the merits (Canada (Attorney General) v Zakaria, 2011 FC 136 at paras 37, 39). An arguable case
required the applicant to put forward new or additional evidence, raise an
issue not considered by the tribunal, or point to an error in the tribunal
decision (Canada (AG) v Carroll, 2011 FC 1092 at para 14). The
respondent argued that the applicant had done none of these. The occupational
rehabilitation report the applicant was relying upon was not before the
Designated Member and related to an assessment in July 2011, long after the
qualifying period and the application. The respondent submitted that even if
this report was considered, it did not raise an arguable case. The late
identification of a Hepatitis C infection was unrelated to the accident in 2000
nor was it connected to an earlier injury in 1985 in the medical reports before
the review tribunal. The effect of the medication the application was taking to
manage his pain on his ability to work was a relevant consideration that the
Review Tribunal had been aware of.
[10]
I
find that the Designated Member’s determination was made according to the tests
prescribed by the jurisprudence and the record before him and was reasonable. While
the Member erred in stating the year of the injury giving rise to the
application, it was clear from his decision as a whole that he was aware that
the correct date was 2000. While it is the Member’s decision that is under
review in this application, I am also satisfied that there were no errors
warranting intervention made by the Review Tribunal.
[11]
The
claim that the applicant was not employable in his previous occupation or any
other job was not before the Designated Member but was considered by the Review
Tribunal. The Tribunal considered the applicant’s medical reports up to seven
years after the MPQ date and thoroughly reviewed the applicant’s history,
including his short lived efforts to work at other occupations. The Tribunal
noted the diagnosis of multiple ailments in 2009 and other reports including
those by the neurosurgeons concerning the possible exacerbation of earlier
injuries, degenerative disc disease and observed improvements from therapy. The
finding that the applicant did not suffer a severe and prolonged injury as of
the MQP date was open to the Tribunal on the record before it. It may have been
unreasonable for the Tribunal to consider the applicant’s use of a motorcycle,
which he indicated had been acquired as a restoration project and was driven
only occasionally, but this was not a significant factor in the outcome.
[12]
The
applicant raised no new issues in his application for leave
and the Member reasonably concluded that the Tribunal had weighed the evidence
diligently and made acceptable findings. The new medical report dated after the
Tribunal decision does not appear to me to change the situation. I
acknowledge that this may be difficult for the applicant to accept given the
pain that he continues to experience.
CONCLUSION:
[13]
The
application is denied. No costs are awarded.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is denied.
“Richard G. Mosley”
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