Date: 20100223
Docket: A-134-09
Citation: 2010 FCA 59
CORAM: NOËL
J.A.
PELLETIER J.A.
TRUDEL
J.A.
BETWEEN:
LINDA GAUDET
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This is an
application for judicial review following a decision of the Pension Appeals
Board (the Board), which found that the evidence that Ms. Gaudet submitted for
consideration under subsection 84(2) of the Canada Pension Plan, R.S.C.
1985, c. C-8 (the Plan), did not meet the “new fact” test to establish the
applicant’s disability and occupational capacity as at the minimum qualifying
period (MQP) date of December 31, 1997.
[2]
Although
I am sympathetic to Ms. Gaudet’s plight, her application cannot succeed. The
question here is not whether Ms. Gaudet suffers from fibromyalgia, but rather
whether, as of December 31, 1997 she was suffering from a severe and prolonged
medical condition of indefinite duration which precluded her from regularly
pursuing any substantially gainful occupation (see paragraph 42(2)(a) of
the Plan).
[3]
This
Court has often enunciated the two-part test for evidence to be admissible as a
“new fact”: (1) it must establish a fact (usually a medical condition in the
context of the Plan) that existed at the time of the original hearing but was
not discoverable before the original hearing by the exercise of due diligence
(the “discoverability test”), and (2) the evidence must reasonably be expected
to affect the result of the prior hearing (the “materiality test”) (Canada
(Attorney General) v. MacRae, [2008] F.C.J. No. 393 (MacRae), at
paragraph 16; see also Kent v. Canada (Attorney General), [2004] F.C.J.
No. 2083, at paragraphs 33-35 [Kent]; Canada (Minister of Human
Resources Development) v. Macdonald, [2002] F.C.J. No. 197, at paragraph 2;
Mazzotta v. Canada (Attorney General), [2007] F.C.J. No. 1209, at
paragraph 45). It is not contested that the Board has correctly identified both
prongs of this test. This application for judicial review concerns principally
the first prong – the discoverability branch and the Board’s appreciation of
the evidence relating to it.
[4]
The
determination of whether there are “new facts” within the meaning of subsection
84(2) of the Plan is reviewable on a standard of reasonableness (Taylor v. Canada (Minister of
Human Resources Development), 2005 FCA 293, at paragraph 12. Accordingly,
this Court is “concerned with whether the decision of the Board falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, at paragraph 47).
[5]
The
facts reveal that in 1998, the applicant made an unsuccessful application for
disability benefits to the Minister of Human Resources and Skills Development
alleging mainly sarcoidosis as the cause of her disability. Her request for
reconsideration was denied. Ensued the applicant’s appeal to the Review
Tribunal. On August 4, 1999, it found that the reports of the rheumatologist
fell short of indicating disability as defined under the Plan. The applicant
made, and subsequently withdrew an application for leave to appeal this
decision. Then, in June 2004, she launched a second application, but also
withdrew it in July 2006.
[6]
Finally, in August of
2006, the applicant applied to re-open the 1999 Review Tribunal decision
pursuant to subsection 84(2) of the Plan on the basis of “new fact” evidence
that she was also suffering from fibromyalgia as of 1997. In an April 2007
decision, a newly constituted Review Tribunal accepted the application on that
basis but concluded that the existence of fibromyalgia at the time of her MQP
was unproven and that her disabilities were not so severe as to warrant
entitlement to a pension.
[7]
As
stated previously, on appeal before the Board, the applicant’s allegations that
she was suffering from fibromyalgia at the time of her MQP were found not to
constitute new fact evidence. The Board held that the existence of fibromyalgia
at the time of the MQP had not been proven and was, therefore, unlikely to
affect the outcome of the case (Board’s decision, at paragraph 2). As a result,
the Board concluded that Ms. Gaudet’s request to reopen on the basis of new
fact evidence had failed on both conditions (Board’s decision, at paragraph 2).
Therefore, the Review Tribunal decision of 1999 remained final and binding (ibidem,
at paragraph 3).
[8]
The
applicant’s position can be summarized as follows: In a case like fibromyalgia,
where symptoms are purely subjective, insufficient objective evidence may not
necessarily be determinative (applicant’s memorandum of fact and law, at
paragraph 53). The applicant submits that fibromyalgia being an evolutive
condition, a “change in diagnosis may be probative, and even pivotal to the
determination of whether the applicant is suffering from a severe, prolonged
disability or not (ibidem, at paragraph 56). In support of her thesis,
the applicant cites MacRae (supra) and Kent (supra)
where our court expressed the view that for some disability claims, such as
those based on physical and mental conditions that are not well understood by
medical practitioners, the new facts rules is better applied with a broad and
generous approach to the determination of due diligence and materiality so as
not to deprive a claimant of a fair assessment of the claim on the merits (see Kent,
at paragraphs 32 and 36). For the applicant, it is “conceivable that [she] was
either misdiagnosed with sarcoidosis in 1995, or that sarcoidosis became the
focus” of the treating physicians while fibromyalgia was effectively ignored,
much like the competing diagnosis of back pain and depression in MacRae,
or fibromyalgia and depression in Kent (applicant’s memorandum of fact
and law, at paragraph 55).
[9]
In
that vein, the applicant is highly critical of the Board’s assessment of the
evidence that she produced, including medical reports from rheumatologists Dr.
Ecker and Dr. Docherty and from her general practitioner, Dr. Park.
[10]
I
am of the view that the criticism is unwarranted. Firstly, the principle
enunciated in Kent (supra) and relied upon in MacRae
(supra) is not at play. In the present file, no symptoms were ignored.
On the contrary, the applicant’s symptoms were well canvassed and fully
investigated.
[11]
Secondly,
the Board carefully reviewed the medical evidence and preferred that of the rheumatologists,
which it was entitled to do. Dr Docherty had signed a report in December 1997
stating that “most of the [applicant’s] findings were limited to the foot (…).
There are no other active joints. Linda is doing well” (appeal book, volume 1,
at page 43).
[12]
Further
reports by the rheumatologists, starting in 2000, alluded to symptoms being in
the “realm of fibromyalgia” without any definite finding as to the onset of the
condition (appeal book, at Tab I). In 2008, Dr. Docherty was of the opinion
that the fibromyalgia had evolved over a few years prior to 2005 (appeal book,
volume 1, at Tab Q-1). As stated by the Board, “the only evidence which might
conceivably set a date prior to the MQP” is that of Dr. Park who first
concluded to the existence of fibromyalgia as of 1999, only to move the date
back to 1994, once informed of the correct MQP date. The Board did not accept
Dr. Park’s opinion on that point (Board’s decision, paragraph 6). This was not
an unreasonable conclusion. At the end of the day, identifying the medical
condition as sarcoidosis or fibromyalgia in and of itself would not bring the
applicant closer to a disability pension in the absence of persuasive evidence
that the applicant was disabled within the meaning of the Plan as of the MQP
date.
[13]
Accordingly,
I find that the Board’s decision is supported by the evidentiary record and
that it falls within a range of acceptable outcomes which are defensible in
respect of the facts and the law.
[14]
Therefore,
I would dismiss the application for judicial review without costs.
"Johanne
Trudel"
“I
agree
Marc
Noël”
“I
agree
J.D.
Denis Pelletier”
Email this Content