Date: 20120308
Docket: A-197-11
Citation: 2012 FCA 82
CORAM: BLAIS
C.J.
EVANS
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
CHRISTINA SIMPSON
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Vancouver, British Columbia, on March 8, 2012)
EVANS J.A.
[1]
This is an
application for judicial review by Christina Simpson to set aside a decision of
the Pension Appeals Board (Board), dated March 30, 2011. Allowing an appeal by
the Minister of Social Development Canada from a decision of the Review
Tribunal, the Board held that Ms Simpson had not established on a balance of
probability that she was entitled to disability benefits under the Canada
Pension Plan, R.S.C. 1985, c. C-8 (CPP).
[2]
It is not
disputed that the Board applied the correct legal test: has Ms Simpson
continuously suffered from a medical condition as from December 2001, her
Minimum Qualifying Period (MQP), that is severe and prolonged within the
meaning of subsection 42(2) of the CPP? The Board reviewed a great number of medical
reports written by different medical specialists over a period of more than ten
years. It concluded that the evidence did not establish that, as from December
2001, Ms Simpson’s medical condition was “severe” in the sense that it made her
incapable regularly of pursuing substantially gainful employment, whether
full-time or part-time.
[3]
Ms Simpson
left full-time employment as a credit manager in 1999 for health reasons. She
was diagnosed at that time as suffering from fibromyalgia; she also had a
number of other medical problems. Nonetheless, she did not apply for disability
benefits until 2007, when she was permitted to make a late application. Ms
Simpson stated in her application that pain prevented her from sitting for more
than an hour, and from standing for more than thirty minutes without changing
position. In addition, she had difficulty in concentrating, remembering, and
sleeping when she was experiencing pain.
[4]
We can
accept that Ms Simpson’s medical problems now render her incapable of work. However,
in order to qualify for disability benefits, she had to demonstrate that her
incapacity dated back to December 2001. In this respect, there were important
weaknesses in the evidence that the Board reviewed in its reasons.
[5]
First,
there is very little medical evidence on her condition as from her MQP,
December 2001; most of the reports address her medical problems as of a
significantly later date and therefore are of limited probative value in
supporting her claim that she has been unable to pursue substantially gainful
employment since December 2001 because of her condition.
[6]
Second,
for the most part the reports on which she relies describe her medical
condition, but do not also say that it prevented her from working. Indeed, Ms
Simpson says in her affidavit that for some time she did not tell her
physicians that she was incapable of work.
[7]
Third, Ms
Simpson did in fact work after 2001. In 2007, she worked as a cashier at a
supermarket, but was dismissed after a short time because of her performance.
She also made soap and candles for sale, and ran an artisans’ craft store from
2001 to 2004. Medical reports dated 2002, 2007, and 2008 speak of her as having
residual capacity for work: Respondent’s Record, pp. 189, 289, and 349.
[8]
Counsel
for Ms Simpson agreed that, absent any legal error (and none was alleged), this
Court may only set the Board’s decision aside if its application of the law to
the facts was unreasonable. The Board’s decision might also be set aside if it
ignored important evidence that indicated that Ms Simpson was in fact unable to
work as from December 2001.
[9]
In her
written submissions, counsel for Ms Simpson identified seven reports which, she
said, the Board either ignored, attached too much weight to, misunderstood, or
misinterpreted. We are not persuaded that either
individually or collectively these criticisms undermine the reasonableness of
the Board’s ultimate conclusion.
[10]
First, a
tribunal need not refer in its reasons to each and every piece of evidence
before it, but is presumed to have considered all the evidence. Second,
assigning weight to evidence, whether oral or written, is the province of the
trier of fact. Accordingly, a court hearing an appeal or an application for
judicial review may not normally substitute its view of the probative value of
evidence for that of the tribunal that made the impugned finding of fact. Third,
even if we assume for the purpose of argument that the Board “misapprehended”
some of the evidence as alleged, those mistakes, if mistakes they were, would
not have made good the pervasive evidential weaknesses in Ms Simpson’s case
that we have already identified.
[11]
In short,
on the basis of the evidence before the Board, it could reasonably find that Ms
Simpson had not proved on a balance of probability that from December 2001 she
has suffered continuously from a severe and prolonged medical condition within
the meaning of subsection 42(2) of the CPP that has prevented her from engaging
in substantially gainful employment.
[12]
While we
are alive and sympathetic to the medical difficulties that continue to face Ms
Simpson, her application for judicial review will be dismissed for the reasons
we have given. Counsel for the Respondent requested no costs and none will be
awarded.
"John M. Evans"
Email this Content