Date: 20111121
Docket: A-57-11
Citation: 2011 FCA 318
CORAM: NOËL
J.A.
TRUDEL J.A.
MAINVILLE
J.A.
BETWEEN:
PATRICK BRENNAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This is an
application for judicial review of a Pension Appeals Board (Board) decision
bearing file number CP26496 (2011 LNCPEN 2) dismissing the applicant’s appeal
and denying him disability benefits under the Canada Pension Plan,
R.S.C. 1985, c. C-8 (CPP). Although I sympathise with the applicant’s plight, I
am of the view that his application cannot succeed.
[2]
In April
2007, following work-related injuries sustained in January and February 2004,
the applicant submitted an application for CPP disability benefits. His
application was denied by the Minister of Human Resources and Skills
Development Canada, both initially and upon reconsideration. His appeal was
then dismissed by a Review Tribunal which found that at the time of his minimum
qualifying period (MQP) at the end of June 2004, the applicant did not have “a
severe and prolonged disability” within the meaning of the Plan.
[3]
The
applicant was granted leave to appeal the negative decision of the Review
Tribunal. An oral hearing de novo took place before the Board, which
unanimously dismissed the applicant’s appeal. Hence, the within application for
judicial review.
[4]
The
applicant challenges the Board’s decision on two principal grounds: the first
pertains to the decision itself while the second concerns matters more of a
procedural nature. I shall address each ground in this sequence. But before, I
should reiterate what this Court has recently stated in Erickson v. Canada (Minister of Human Resources
and Skills Development),
2009 FCA 58 at paragraph 6:
It is settled that the standard of review for a
determination of disability by the Board, since Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190
(Dunsmuir), is the reasonableness standard (Canada (Attorney General) v. Ryall, 2008 FCA 164 at
paragraphs 10-11, Janzen v. Canada (Attorney General),
2008 FCA 150 at
paragraph 5).
1) The Board’s decision is reasonable
[5]
The
applicant, of course, disagrees with the Board’s decision that denied him the
benefits sought. He takes particular issue with the Board’s failure to consider
two 2008 reports: that of Dr. Peter J. Callahan, dictated in June 2008; and
that of DeAnne Vincent, dated October 10, 2008 and written in her capacity as
Case Manager with the Workplace Health Safety and Compensation Commission.
[6]
Although
it is accurate to say that the Board did not mention these two particular reports
that does not establish that the Board was not alert to the evidence as a whole
when it took its decision.
[7]
Before
reaching a conclusion, the Board does not have to address every piece of
evidence that is inconsistent with evidence it accepts (Canada (Minister of Human Resources
Development) v. Bartelds,
2006 FCA 123 at paragraph 6). The applicant has not persuaded me that the two
reports were of such importance that it amounted to an error of law not to refer
to them in its decision.
[8]
The
Board’s task was to determine whether the applicant was entitled to disability
benefits by reason of a severe and prolonged disability that existed prior
to the expiry of his MQP and continuously thereafter . I agree with the
respondent that the two reports were not helpful in that regard. Other pieces
of evidence did not clearly point in that direction either.
[9]
In light
of the record as a whole, including these two singled-out reports, it was not
unreasonable for the Board to conclude that: “… the medical evidence combined
with the evidence of the [applicant] does not support a finding that the
[applicant] suffered from a “severe and prolonged” physical or mental
disability.”
2) The Board’s decision is not otherwise flawed
[10]
In his
Memorandum of Fact and Law, the applicant asks: “Is it fair that Dr. Gonzales
make a decision on my application when she has not even examined me?” (at paragraph
5). As well, counsel for the applicant notes that Dr. Gonzales practices family
medicine, not orthopaedic medicine.
[11]
This
ground of complaint is unfounded. Dr. Gonzales was not a decision-maker in the
applicant’s case. She testified before the Board as an expert witness for the
Minister. Since 1989, she has been a Medical Advisor with the Department of
Human Resources and Skill Development Canada. As a matter of fact, her
testimony was only a small part of the extensive evidence in front of the Board
and was not specifically referred to by it.
[12]
Finally,
the applicant alleges in his affidavit (at paragraph 18) that at the hearing of
his appeal, “the female judge continuously nodded off on her chair as she was
obviously very sleepy”. There is contradictory evidence regarding this serious
allegation (affidavit of Dr. Gonzales, respondent’s record, volume 1, tab 1 at
paragraph 16), so it is of no help in assessing the merits of this application.
[13]
For these
reasons, I propose to dismiss this application without costs as none were
sought.
"Johanne
Trudel"
“I
agree
Marc Noël J.A.”
“I
agree
Robert M. Mainville J.A."
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