Date: 20080128
Docket: A-32-06
Citation: 2008 FCA 33
CORAM: RICHARD
C.J.
DESJARDINS J.A.
NADON
J.A.
BETWEEN:
RENÉ KLABOUCH
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
The
applicant has been a bus driver with OC Transpo since November 1986. Because of
pain in his right ischial area, i.e. in his right buttock, he has not worked
since July 2000. On November 23, 2001, he applied for a disability pension, alleging
that the pain prevented him from performing any work whatsoever. His
application was denied by the Minister of Social Development (Minister), a decision
which the Review Tribunal confirmed on September 24, 2003. The applicant
appealed this decision to the Pension Appeals Board (Board), which dismissed
his appeal on November 3, 2005.
[2]
Although
it recognized that the applicant was suffering hardship by reason of his
condition, the Review Tribunal concluded that he had not established that he
was disabled within the meaning of the Canada Pension Plan, R.S.C. 1985,
c. C-8 (CPP). In the Review Tribunal’s view, the applicant “could pursue a
gainful occupation suitable to his situation (i.e. part-time, sedentary)” (page
3 of its decision).
[3]
The Board
dismissed the applicant’s appeal because, in its view, he had failed to show
that, as of December 31, 2002, i.e. the minimum qualifying period under the
CPP, he was suffering from a disability that was both “severe” and “prolonged”.
In so concluding, the Board pointed to the fact that none of the medical
doctors who had examined the applicant, with the possible exception of Dr.
Bourque, a neurosurgeon, had expressed the view that the applicant could not
work in positions which did not require him to remain seated for long periods.
The Board further noted that the applicant had brought no evidence to show that
he had searched for employment appropriate to his condition, i.e. which did not
require him to spend too much time sitting.
[4]
The Board
also relied on a Functional Abilities Evaluation Report, dated March 28, 2005,
carried out by the CBI Physiotherapy and Rehabilitation Centre (CBI Report), which
concluded, at page 8 (p. 349 of the Respondents’ Record), with the following
recommendations:
Based on the results of
the Functional Abilities Evaluation, Mr. Klabouch would be capable of working
at the Sedentary level of strength at a job that allows him the opportunity to
alternate sitting with standing or walking. Continued exploration
of seating options may facilitate an increase in sitting tolerance. You may
consider a trial of a Roho wheelchair cushion; however, given the duration of
this client’s pain and the level of perceived disability, the prognosis remains
poor.
[Emphasis
added]
[5]
For the
reasons that follow, I am of the opinion that this judicial review application
should be dismissed.
[6]
The
applicant makes a number of submissions in support of his judicial review
application. First, he submits that the Board erred in law by applying the
wrong legal test for determining disability under the CPP, in that it focussed
on whether he lacked motivation to get better and hence return to work, rather
than on the criteria provided for in paragraph 42(2)(a) of the CPP, i.e.
whether his disability was “severe” and “prolonged”.
[7]
Second,
the applicant submits that the Board erred in law and ignored principles of
natural justice by failing to make a clear adverse finding of credibility
against him before rejecting his testimony and by failing to provide sufficient
reasons.
[8]
Third, the
applicant submits that the Board erred in basing its decision on an erroneous
finding of fact made in a perverse or capricious manner or without regard to
the material before it. More particularly, the applicant submits that the Board
ignored the evidence of Drs. Chow, Kissick, Bourque, Robinson, Langlois,
Bertrand, the diagnosis of chronic pain syndrome, and the fact that he had
tried alternate work.
[9]
In my
view, all of these submissions are without merit. First, I am satisfied that
the Board made no error with respect to the applicable legal test for the
determination of whether the applicant was disabled within the meaning of
paragraph 42(2)(a) of the CPP. To be entitled to a disability pension,
an applicant must demonstrate that he has made valid contributions to the CPP
for a minimum qualifying period and that his or her disability is “severe” and “prolonged”.
The term “severe” requires that the disability render the person incapable of
regularly pursuing any substantially gainful occupation, while the term “prolonged”
requires that the disability be either likely to be of indefinite duration or
likely to result in death. This test, in my view, was correctly identified by
the Board.
[10]
The fact
that the Board primarily concentrated on the “severe” part of the test and that
it did not make any finding regarding the “prolonged” part of the test does not
constitute an error. The two requirements of paragraph 42(2)(a) of the
CPP are cumulative, so that if an applicant does not meet one or the other
condition, his application for a disability pension under the CPP fails.
[11]
The
applicant’s second challenge to the Board’s decision is that it erred in failing
to make a clear adverse finding of credibility against him before rejecting his
testimony and by failing to provide adequate Reasons.
[12]
With
respect to the adequacy of the Board’s Reasons, I see no merit to the
applicant’s submission. The Board’s Reasons are clearly sufficient. I also see
no merit in the applicant’s submission that the Board erred by failing to make
an adverse finding of credibility against him. As the Minister argues, the
Board neither rejected his testimony nor did it question it. The Board was
simply not persuaded by the evidence before it that the criteria required under
paragraph 42(2)(a) of the CPP had been met. Consequently, the Board’s
determination was not premised on the applicant’s credibility, but rather on
its assessment of the evidence.
[13]
I now turn
to the applicant’s third ground of attack, i.e. that the Board, in reaching its
conclusion, disregarded the evidence before it. However, before addressing the
merits of this challenge, it is important to have in mind a number of principles
which have been enunciated by both the Supreme Court of Canada and this Court
in dealing with disability pension applications under the CPP.
[14]
First, the
measure of whether a disability is “severe” is not whether the applicant
suffers from severe impairments, but whether his disability “prevents him from
earning a living” (see: Granovsky v. Canada (Minister of Employment and Immigration), [2001] 1 S.C.R. 703,
paragraphs 28 and 29). In other words, it is an applicant’s capacity to work
and not the diagnosis of his disease that determines the severity of the
disability under the CPP.
[15]
Second, as
a corollary to the above principle is the principle that the determination of
the severity of the disability is not premised upon an applicant’s inability to
perform his regular job, but rather on his inability to perform any work, i.e.
“any substantially gainful occupation” (see: Canada (Minister of Human
Resources Development) v. Scott, 2003 FCA 34, at paragraphs 7 and 8).
[16]
Third,
this Court has consistently held that an applicant must adduce before the Board
not only medical evidence in support of his claim that his disability is
“severe” and “prolonged”, but also evidence of his efforts to obtain work and
to manage his medical condition. In Villani v. Canada (Attorney General), 2001 FCA 248, Isaac C.J., at
paragraph 50, expressed the following opinion:
[50] This
restatement of the approach to the definition of disability does not mean that
everyone with a health problem who has some difficulty finding and keeping a
job is entitled to a disability pension. Claimants still must be able to
demonstrate that they suffer from a “serious and prolonged disability” that
renders them “incapable regularly of pursuing any substantially gainful
occupation”. Medical evidence will still be needed as will evidence of
employment efforts and possibilities. …
[Emphasis
added]
[17]
In the
same vein, in Inclima v. Canada (A.G.), 2003 FCA 117, Pelletier J.A.,
after quoting the above passage from Isaac C.J.’s pronouncement in Villani,
supra, made the following remarks at paragraph 3:
[3] … an applicant
who seeks to bring himself within the definition of severe disability must not
only show that he (or she) has a serious health problem but where, as here,
there is evidence of work capacity, must also show that efforts at
obtaining and maintaining employment have been unsuccessful because of that
health condition.
[Emphasis
added]
[18]
I now turn
to the Board’s assessment of the evidence which, the applicant submits, constitutes
an error because it ignored relevant medical evidence.
[19]
In its
Reasons, the Board makes reference to or reproduces some portions of the
opinions of the applicant’s treating physicians, as well as those of
specialists retained on his behalf. More particularly, the Board considered the
evidence of Drs. Kissick, Robinson, Chow, Langlois, Bourque, Hardy and Bertrand
(see paragraphs 6 though 19 of the Board’s Reasons)”. The reports and opinions
of the medical doctors discuss the applicant’s condition, his treatment and, in
some cases, his ability to work. Further, the Board had before it the evidence
of Dr. Jewer, the Minister’s expert. As is often the case, the medical evidence
was not entirely ad idem and was not entirely clear one way or the
other.
[20]
In its
Reasons, the Board addressed the applicant’s condition, his work history, his
medical evidence and his personal circumstances. Although the evidence proved
that the applicant had chronic pain, there was nothing in the evidence, in the
Board’s opinion, that established that the pain prevented him from regularly
pursuing any substantially gainful occupation. Although the applicant was, for
a short period, put on lighter duties by his employer in 1997, there was no
evidence to show that he had worked or sought other employment possibilities
that were appropriate to his condition after July 2000.
[21]
In my
view, there can be no doubt that the Board clearly considered the totality of
the medical evidence in rendering its decision. To this, I would add that the
issue as to whether the applicant attempted to find alternative work or lacked
motivation to do so was clearly a relevant consideration in determining whether
his disability was “severe”.
[22]
In making
his argument that the Board disregarded relevant evidence, the applicant further
says that the Board ignored the evidence of Dr. Bertrand who, in a letter dated
August 29, 2005, criticised the CBI Report for its failure to understand that
his disability stemmed “from a problem with pain … in the right buttock, not
from a low back problem, which appears to be the basis of the evaluation
performed at the CBI Physiotherapy and Rehabilitation Centre”.
[23]
Although
the Board did not expressly refer to Dr. Bertrand’s letter, it noted, at
paragraph 6 of its Reasons, that the applicant did not agree with the CBI
Report because “they were concerned about his ‘lower back pain’, which he does
not have, rather than his buttock pain”. This is precisely the nature of the
criticism found in Dr. Bertrand’s letter of August 29, 2005.
[24]
It therefore
cannot be said, in my view, that the Board was not aware of possible
shortcomings in the CBI Report. Consequently, I am not prepared to find that
the Board’s failure to refer to Dr. Bertrand’s letter constitutes a reviewable
error.
[25]
In the
end, what the applicant is asking us is to reassess the evidence that was
before the Board and to reach a different conclusion regarding the “severe”
part of the disability test. Such an exercise is not open to us on a judicial
review application.
[26]
To
conclude, the applicant has not persuaded me that the Board erred in law, that
it misapprehended the evidence or that it failed to consider relevant evidence
in reaching its conclusion. As a result, I see no basis for us to intervene.
[27]
For these
reasons, I would dismiss this judicial review. As the respondent does not seek
costs, no such order will be made.
“M.
Nadon”
“I.
agree.
J.
Richard C.J.”
“I
agree.
Alice
Desjardins J.A.”
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