Date: 20110208
Docket: A-127-09
Citation: 2011 FCA 47
CORAM: BLAIS
C.J.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
EMILY JANE BUNGAY
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
This is an
application for judicial review from the decision of the Pension Appeals Board,
dated January 20, 2009. For the reasons below, I would quash the decision of
the Board and remit this matter to a differently constituted panel of the
Board.
A. The Board’s decision
[2]
The Board
dismissed the applicant’s claim for disability benefits under section 42 of the
Canada Pension Plan, R.S.C. 1985, c. C-8. It found that the applicant’s
disability was not “severe,” as section 42 requires.
[3]
The
Board’s decision was a split decision. Justice Platana, with Justice Riordon
concurring, wrote for the majority. One member of the three person panel,
Justice Chapnik, dissented, finding that the applicant’s disability was severe.
B. Standard of review
[4]
In this
Court, the parties agree that this Court is to review the Board’s decision
under the deferential standard of “reasonableness.”
[5]
Under this
standard, I am not to fact-find, weigh evidence or substitute my decision for
the Board. Rather, my task is to ask myself this question: did the Board’s
decision fall within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law? (See Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008
SCC 9 at paragraph 47).
[6]
Specifically
in this case, my task is to focus on the majority’s determination that the
applicant’s disability was not “severe.” The question is whether the majority
adopted a definition of “severe” that was defensible on the law, whether it
applied that definition to the evidence before it, and whether, overall, it
made findings and conclusions that were within a range of rational outcomes
available to it.
C. The definition of “severe”
disability in the Act
[7]
Paragraph
42(2)(a) of the Act defines disability as “severe” when it affects the
claimant’s employability: the claimant must be “incapable regularly of pursuing
any substantially gainful occupation.”
[8]
The
leading case on the interpretation of “severe” is Villani v. Canada (AG),
2001 FCA 248, [2002] 1 F.C. 130. Villani, at
paragraphs 32 and 38, stands for the proposition that in assessing whether a
disability is severe, the Board must adopt a “real world” approach. This “real world” approach
requires it to determine whether an applicant, in the circumstances of his or
her background and medical condition, is employable, i.e., capable
regularly of pursuing any substantially gainful occupation. Employability is not to be
assessed in the abstract, but rather in light of “all of the circumstances.”
The circumstances fall into two categories:
(a)
The
claimant’s “background.”
Matters such as “age, education level, language proficiency and past work and
life experience” are relevant here (Villani, supra at paragraph
38).
(b)
The
claimant’s “medical condition.” This is a broad inquiry, requiring that the claimant’s
condition be assessed in its totality. All of the possible impairments of the
claimant that affect employability are to be considered, not just the biggest
impairments or the main impairment. The approach of assessing the claimant’s
condition in its totality is consistent with section 68(1) of the Regulations,
which requires claimants to submit highly particular information concerning
“any physical or mental disability,” not just what the claimant might believe
is the dominant impairment.
D. Analysis of the decision of the
majority of the Board
[9]
In my
view, in considering the applicant’s claim for disability benefits, the decision
of the majority of the Board was not defensible on the law as set out above. The
applicant’s condition was not assessed using the “real world” approach. All of
her various impairments were not taken into account.
[10]
The
majority decision focused on the applicants’ condition of severe osteoporosis
(see paragraph 37 of its reasons): “[t]he severe and prolonged disability
relied upon in this case is severe osteoporosis.” Having identified that as the
impairment for analysis, the reasons go on to ask whether, in light of that
impairment “she was disabled to the extent necessary within section 42 of the
Act” (at paragraph 37).
[11]
Four
paragraphs follow, analyzing various diagnoses of her osteoporosis, but only
her osteoporosis and no other medical conditions. There is an indication in the
reasons that other medical conditions are left unmentioned because they had no
relationship to her job loss (at paragraph 39). Further, aside from brief
mention of the applicant’s work history, there is no mention of her age,
education level, language proficiency and past life experience at all or in any
detail as required by Villani, supra.
[12]
Further, at
a key part of the analysis in the reasons, an issue of credibility is left
unaddressed. The reasons mention that the applicant filled out an application
for employment insurance benefits, stating that she was available to work. This
becomes a very significant part of the analysis of the majority (at paragraph
41) – her statement suggests that in fact she was capable of working and, therefore, not
seriously disabled. In this context, there is brief mention of the applicant’s
testimony explaining her statement as something counseled by a nurse
practitioner. However, her explanation is rejected only because the nurse
practitioner was not called as a witness. In my view, in these circumstances, the
weight, if any, to be given to the applicant’s testimony should have been
assessed, including making any necessary observations about the applicant’s credibility.
In any event, even if the applicant’s explanation about her statement in her
application were disbelieved, the applicant’s disability must still be assessed
in accordance with the standards set out in Villani.
[13]
The
dissenting member of the panel found that the applicant suffered from a broader
array of medical conditions, including hyperparathyroidism, multiple endocrine
neoplasia, polydipsia and depression (see paragraph 2 of her reasons). A review
of the record shows that this finding of multiple medical conditions is amply
supported.
[14]
The
dissenting member charged herself properly as to the law as set out in Villani
(at paragraph 14):
The Villani ([2002] 1 F.C. 130)
test and the case law requires the Tribunal and this Board to examine an
individual’s entire physical condition, age, level of education, employability
and so on.
The dissenting member then applied this approach and examined
the applicant’s entire “real world” condition in detail, with frequent
reference to the evidence.
[15]
On the
issue of the applicant’s statement on the application form, the dissenting
member found that the applicant’s testimony about why she filled out the form
in the way she did was credible. Overall, she found that the applicant “gave
her evidence in a forthright, yet understated manner” (at paragraph 14). She
added that “[t]he fact that the applicant may have filled out unemployment
forms indicating a willingness to work does not, in itself, change the fact of
her disability” (at paragraph 15). The focus of her analysis was the “real
world” condition of the applicant, taking into account her entire condition,
and not just severe osteoporosis. Based on that analysis, she concluded that
the applicant “has satisfied the onus to show that her condition was severe and
prolonged such as to render her incapable of regularly pursuing any type of
employment, prior to December 2004 and continuing.” As a result, she found her
disability to be severe and prolonged within the meaning of paragraph 42(2)(a)
of the Act.
[16]
It is not
for this Court to determine the applicant’s entitlement to benefits under
paragraph 42(2)(a) of the Act. It is not for this Court to choose
between the result reached by the majority members and the dissenting member of
the Board. Rather, this Court is restricted to reviewing what the Board has
done on the deferential standard of reasonableness.
[17]
In
reviewing what the Board has done on the basis of the deferential standard of
reasonableness, for the foregoing reasons I conclude that the majority decision
is unreasonable and should be quashed. A new panel of the Board must reconsider
this matter applying the Villani test. In particular, that new panel of
the Board must examine the “real world” condition of the applicant, taking into
account her entire condition, and not just severe osteoporosis.
[18]
Therefore,
I would grant the applicant’s application for judicial review, quash the
decision of the Board, and remit the matter to a newly constituted panel of the
Board. The applicant shall be entitled to her costs.
"David
Stratas"
“I
concur
Pierre Blais C.J.”
“I
agree
Eleanor R. Dawson J.A.”
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