Date:
20081126
Docket:
A-146-08
Citation:
2008 FCA 366
CORAM: LINDEN J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
DEBORAH LITKE
Applicant
and
MINISTER OF HUMAN RESOURCES AND
SOCIAL DEVELOPMENT CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
LINDEN J.A.
[1]
This
is an application for judicial review of a decision of the Pension Appeals
Board (PAB), finding that the applicant was not entitled to a disability
pension under the Canada Pension Plan. The Board held that Ms. Litke was not
suffering from a “severe and prolonged” disability within the meaning of the
Plan.
[2]
From
1992 until 2003, the Ms. Litke was self-employed as a sales representative and
buyer. She stopped working on January 1, 2003, due to a number of health
problems including leg pain, fatigue, migraines, and gynaecological symptoms.
In the autumn of 2003, after she had stopped working, the applicant discovered
a lump in her leg, which was subsequently diagnosed as cancerous. Fortunately,
her cancer treatment has been successful. However, the applicant claims she has
continued to suffer from thyroid problems, psychological distress, and
gynaecological symptoms.
[3]
Ms.
Litke applied for a disability pension in 2004. Her application was denied by
the Minister, and that decision was affirmed upon reconsideration. The Review
Tribunal and the PAB also dismissed the applicant’s appeals. In this
application, she seeks judicial review of the PAB’s decision on two grounds:
that the Board erred in determining that her condition was not “severe” because
it did not consider all of the evidence, and that it further erred in holding
that a disability is not “prolonged” unless it is expected to be permanent.
[4]
It
is well-settled that the standard of review for a determination of disability
by the PAB is the new reasonableness standard enunciated by the Supreme Court
in Dunsmuir v. New Brunswick, 2008 SCC 9
(see Canada (Attorney General) v. Ryall, 2008 FCA 164 at paras. 10-11; Janzen
v. Canada (Attorney
General), 2008
FCA 150 at para. 5). It is unnecessary to engage in a full standard of review
analysis when the appropriate standard has been established by the
jurisprudence. (Dunsmuir at para. 57).
[5]
In
order to qualify for a disability pension under the Plan, a claimant must meet
two conditions: she must suffer from a “severe and prolonged” disability, and
must have made contributions to the Plan for not less than the minimum
qualifying period (MQP). A disability is “severe” within the meaning of the
plan if it renders the claimant “incapable of regularly pursuing any
substantially gainful occupation”. It is “prolonged” if it is “likely to be
long continued and of indefinite duration or is likely to result in death”.
(See s.42(2)(a)(ii), C.P.P.) It is not necessary for a disability to be
permanent.
[6]
The
parties were agreed that Ms. Litke’s MQP was December 31,
2002.
The applicant submits that in light of amendments to the Plan that came into
force in March 2008, (S.C. 2007, c.11, s.2, s.36) her MQP should be December
2003. However, the amendments stated that they would only apply to pension
applications made after they came into force, and thus do not change Ms.
Litke’s MQP. She therefore had the burden of establishing before the PAB that
she suffered from a severe and prolonged mental or physical disability on or
before December 31, 2002.
[7]
The
applicant argues that the Board’s decision was unreasonable because it failed
to mention certain evidence supportive of her claim in its reasons. While a
decision will be unreasonable if the Board ignores relevant evidence (Gould
v. Attorney General of Canada, 2004 FCA 246), it is clear that it does not
have to mention and discuss every piece of evidence placed before it in its
decision (Dossa v. Canada (Pension Appeals
Board), 2005
FCA 387). Viewing the record as a whole, we find that the Board did not err in
this regard, as it engaged in a full and meaningful review of the material
before it. Reweighing the evidence is not the province of this Court.
[8]
Further,
the Board found that Ms. Litke’s disability was not “prolonged”, because it was
clearly of a definite duration. The evidence before the Board suggested that she
was capable of returning to work following her cancer treatment,
notwithstanding her other health issues. The applicant does not seem to take
issue with this finding, but rather argues that disability pensions should be
available in cases of temporary disability. In this regard, she is asking this
Court to revisit its decision in Canada (Minister of Human Resources
Development) v. Henderson, 2005 FCA 309, in which Justice Evans stated that
the purpose of the Plan is to provide a pension where a disability forces a
claimant to leave the workforce on a long-term basis, and “not to tide
claimants over a temporary period where a medical condition prevents them from
working” (at para. 11).
[9]
There
are no circumstances here that would justify this court reversing its own
precedent. The use of the word “indefinite” in subparagraph 42(2)(a)(ii)
of the Plan makes clear that Parliament did not intend that disability pensions
would be available in cases of temporary disability. The fact that a House of
Commons Standing Committee recommended changes to this rule is not of great
weight, unless of course, their suggestions are enacted. Similarly, a
Physician’s Guide distributed by the government department is of little value
in offsetting the statutory language and the jurisprudence of this Court.
[10]
While
we are not without sympathy for the applicant’s plight, the change in the law
she is requesting must come from Parliament, not this Court.
[11]
For
the foregoing reasons, this application is dismissed, without costs.
“A.M. Linden”
_____________________________
J.A.
“I
agree.
C. Michael Ryer, J.A. ”
“I
agree.
Johanne
Trudel, J.A. ”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-146-08
(APPLICATION
FOR JUDICIAL REVIEW FROM A DECISION OF THE PENSION APPEALS BOARD DATED FEBRUARY
20, 2008 IN P.A.B. FILE NO. 23978)
STYLE OF CAUSE: DEBORAH
LITKE v.
THE MINISTER OF HUMAN RESOURCES AND SOCIAL DEVELOPMENT CANADA
PLACE OF HEARING: Edmonton,
AB
DATE OF HEARING: November 25, 2008
REASONS FOR JUDGMENT BY: Linden, J.A.
CONCURRED IN BY: Ryer,
Trudel, JJ.A.
DATED: November 26, 2008
APPEARANCES:
|
Ms. Deborah Litke
Mr. John Wodak
|
ON HER OWN BEHALF
FOR THE APPLICANT
|
|
Ms. Tania
Nolet
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
N/A
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.,
Deputy Attorney General of Canada - Ottawa ON
|
FOR THE RESPONDENT
|
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