Date: 19991216
Docket: A-229-98
CORAM: STRAYER J.A.
ROBERTSON J.A.
MALONE J.A.
BETWEEN:
MERVYN K. MARTIN
Appellant
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario on December 16, 1999.)
MALONE J.A.
[1] This is an appeal pursuant to section 27 of the Federal Court Act from the order of Madame Justice Tremblay-Lamer dated March 6, 1998. Madame Justice Tremblay-Lamer dismissed an application for judicial review of the decision of the Vice-Chairman of the Pensions Appeal Board ('PAB") dated November 26, 1996 who had refused the appellant's leave to appeal to the PAB.
[2] Briefly the facts relevant to this appeal as found by the motions judge are as follows:
| The Applicant has worked all his life as a physical labourer. He has a grade 8 education. In September 1994, he applied for disability benefits. He was forced to stop working in June 1993 after experiencing severe back pain. His doctors advised him to avoid bending, lifting or twisting, and to walk 2 or 3 miles a day to help alleviate the pain. The Applicant contends that his pain is constant and, in order to obtain relief, he must lie down on two to three occasions a day for approximately one half-hour at a time. The pain also interferes with his sleep. |
| The Minister refused to pay the Applicant benefits. An appeal of the Minister's decision was filed with the Review Tribunal, which eventually dismissed it. The Tribunal held that the Applicant was not entitled to disability benefits because there was no objective medical evidence that he was incapable of doing any type of work. In fact, most of the medical reports indicated that he was capable of doing some kind of work. |
| The Applicant appealed the decision to the Pension Appeals Board. However, leave was denied by the Vice-Chairman who felt that the Board could not come to any different conclusion from that reached by the Review Tribunal. Specifically, he stated: |
| The medical evidence does not support the contention that the applicant is incapable regularly of pursuing any gainful occupation. It shows he is limited as to what work he can do, but supports the Minister's contention that less physically demanding work would be within his capacity. As to the applicant's educational qualifications, any limitations flowing from the that consideration are not based on disability. |
[3] In dismissing the application for judicial review Madam Justice Tremblay-Lamer held that the proper test for determining whether the Court can overrule a decision in such cases is the legality of the decision and not its correctness, citing [1980] 1 S.C.R. 639">Ernewein v. Minister of Employment and Immigration [1980] 1 S.C.R. 639. In other words, unless the Vice-Chairman considered irrelevant factors or acted contrary to law, the Court should show deference towards its decision (MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, at p. 507. Based on the foregoing principles Madam Justice Tremblay-Lamer concluded:
| I do not agree with the Applicant that the Review Tribunal applied the wrong test in determining whether he was deemed disabled. While the Review Tribunal did not mention the specific words "substantially gainful occupation", it does not necessarily mean that it did not apply the correct test. In my opinion, when it stated that there was no objective medical evidence that the Applicant was incapable of doing 'any type of work", it was referring to sedentary work as opposed to manual labour. The Applicant's medical condition does not restrict him from pursuing sedentary work. |
| The fact that the Vice-Chairman refused to grant leave because the medical evidence supported the conclusion that less demanding work would be within the Applicant's capacity was not unreasonable. I find that there was sufficient material to support his conclusion. |
[4] Subsequent to the above decision, Madam Justice Reed in Kerth v. Canada (Minister of Human Resources Development) [1999] F.C.J. No. 1252, August 13, 1999, also considered the standard of review to be applied by the Federal Court of Canada, Trial Division in reviewing decisions relative to leave to appeal applications to the PAB.
[5] Justice Reed found that a leave to appeal proceeding is a preliminary step to a hearing on the merits. As such "it is a first and lower hurdle for the applicant to meet than that that must be met on the hearing of the appeal on the merits" (see page 6 of decision). The Court relied on the case of Kurniewicz v. Canada (Minister of Manpower and Immigration) (1974) 6 N.R. 225, at p. 230 (F.C.A.) for the proposition that some arguable ground upon which the proposed appeal might succeed is needed in order for leave to be granted.
[6] On examination of the reasons given by the PAB Vice-Chairman in refusing leave to appeal it is evident that he went much further than merely considering whether an arguable case or question of law or jurisdiction had been raised and instead considered whether the appellant could succeed on the merits. This is an error of law. The Vice-Chairman stated (Appeal Book, page 60):
| It is difficult to see how the Board could come to any different conclusion from that reached by the Review Tribunal. The medical evidence does not support the contention that the applicant is incapable regularly of pursuing any gainful occupation. It shows he is limited as to what work he can do, but supports the Minister's contention that less physically demanding work would be within his capacity. As to the applicant's education qualifications, any limitation flowing from that consideration are not based on disability. Leave to appeal cannot be justified. |
[7] We are of the respectful view that the Vice-Chairman of the PAB in making his decision applied an incorrect test and placed too heavy a burden on the appellant when assessing the application for leave to appeal. In our view there is at least an arguable case as to the proper interpretation of subparagraph 42(2)(a)(i) of the Canada Pension Plan which requires that for a disability to be severe the claimant must be "incapable regularly of pursuing any substantially gainful occupation". The Review Tribunal, however, assumed that the appellant had to show that he is "incapable of doing any type of work".
[8] The appeal should be allowed and the order of Madam Justice Tremblay-Lamer dated March 6, 1998 set aside. The application for judicial review shall be allowed and the application for leave to appeal to the PAB should be remitted for reconsideration.
(B. Malone)
Malone J.A.
Date: 19991216
Docket: A-229-98
CORAM: STRAYER J.A.
ROBERTSON J.A.
MALONE J.A.
BETWEEN:
MERVYN K. MARTIN
Appellant
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Heard at Ottawa, Ontario, on December 16, 1999.
Reasons for Judgment of the Court delivered from the Bench at Ottawa, Ontario, on December 16, 1999.
REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A.
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