Date: 20110608
Docket: A-200-10
Citation: 2011 FCA 195
CORAM: BLAIS
C.J.
SHARLOW
J.A.
TRUDEL
J.A.
BETWEEN:
BALVIR GILL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
Following an
injury sustained at work in 2001, the applicant applied for a disability
pension under the Canada Pension Plan, R.S.C. 1985, c. C-8 (Plan). Her
request was denied originally and upon reconsideration by Human Resources
Development Canada. Her successive appeals to the Review Tribunal and the
Pension Appeals Board (Board) were unsuccessful. This is an application for
judicial review of the Board’s negative decision, dated April 27, 2010.
[2]
Pursuant
to subsection 42(2) of the Plan, a person can be considered disabled only if he
or she has a severe and prolonged mental or physical disability. The
onus is on the applicant to establish disability under the Plan.
The applicant’s position
[3]
Ms. Gill
was present at the hearing of this application, but her husband addressed the
Court on her behalf. The applicant raises issues of procedural fairness, as
well as other errors committed by the Board in assessing the evidence. In
particular, Ms. Gill, now for the first time, complains about interpretation
problems while in front of the Board. She states that the Punjabi interpreter
did not properly convey her testimony and position to the Board and that he interchangeably
used Punjabi and Hindi words making it difficult for her to understand the
questions she had to answer. She also feels that the respondent’s medical
expert, Dr. Rowan, was biased as “he appeared cold… treated this case as if it
was unimportant… and heavily influenced the decision of the [Board]” by giving
a “negative synopsis” [of her file] (see application for judicial review, at
paragraph 2 and applicant’s memorandum of fact and law, at paragraph 20).
[4]
On the
merits of her application, the applicant feels that the opinion of her family
doctor, Dr. Shu, should have been preferred.
Analysis
[5]
Although I
sympathise with Ms. Gill’s plight, I am of the view that her application cannot
succeed.
[6]
To begin
with, the problems of interpretation at the hearing should have been raised at
the first opportunity: Mohammadian v. Canada (Minister of Citizenship and Immigration, [2000] 3 F.C. 371.
Considering the nature of Ms. Gill’s complaint, I fail to see why she did not
immediately tell the Board that she did not understand the questions.
[7]
The
applicant’s husband, who was present and is fluent in English and Punjabi,
states that he “noticed that the interpreter (…) was not correctly translating,
[adding that] several things that my wife explained were not properly conveyed
to the Panel.” Mr. Gill also claims that he was “not allowed to speak or
correct the interpreter’s faulty translation” (applicant’s record, affidavit of
Mr. Gill, at pages 14 and following). Yet, this issue was not put to the Board
by the applicant. Moreover, there are no examples on record permitting this
Court to assess the nature of the interpreter’s alleged difficulties and their
consequences, if any, on the impugned decision. Therefore, I would not allow
the application on this ground.
[8]
Regarding
the allegations of bias directed at Dr. Rowan, I conclude that the applicant
has failed to show that Dr. Rowan had a predisposition against her that would
have tainted his objectivity resulting in the Board being misled as to the
contents of the applicant’s medical records or being negatively influenced in
its decision. Dr. Rowan was called by the respondent to provide the Board with
his assessment of the medical evidence on record. He was not asked to give his
opinion as to whether the applicant was disabled within the meaning of the Plan
and there is no evidence that he did so.
[9]
As to the
merits of Ms. Gill’s claim, the Board noted, as the Review Tribunal had before
it, that, in every year after her accident, Ms. Gill filed income tax returns
showing self-employment income earned for babysitting two grandchildren at her
home. On the basis of that evidence, the Board found that her disability was
not severe, as she was not incapable of regularly pursuing any substantially
gainful occupation. On the record, it was reasonably open to the Board to
reach that conclusion and to consider it unnecessary to conduct a detailed
review of the medical evidence.
[10]
However, I
note that the Review Tribunal, preferring “the findings of Dr. Lui and Dr. How
over the evidence of Ms. Gill concerning her symptoms,” had already concluded
that Ms. Gill’s disability was also not prolonged, that is likely to be long
continued and of indefinite duration or likely to result in death. Based on the
evidence, it found that her initial injury had been resolved (Review Tribunal’s
decision, at paragraphs 46 and 42).
Conclusion
[11]
In my
view, the Board’s decision was reasonable and fell within a range of possible
acceptable outcomes, which are defensible in respect of the facts and the
requirements of the Plan (Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R.
190, at paragraph 47). Therefore, I would dismiss the application for judicial
review, but without costs as the respondent is seeking none.
[12]
At the
request of the respondent, the style of cause has been amended to name the
Attorney General of Canada as the proper respondent.
"Johanne Trudel"
“I agree
Pierre
Blais C.J.”
“I agree
K.
Sharlow J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-200-10
STYLE OF CAUSE: Balvir
Gill v.
Attorney General of Canada
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 7, 2011
REASONS FOR JUDGMENT BY: TRUDEL J.A.
CONCURRED IN BY: BLAIS C.J.
SHARLOW J.A.
DATED: June 8, 2011
APPEARANCES:
|
Balvir Gill
|
ON
HER OWN BEHALF
|
|
Dale Noseworthy
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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