Date: 20060405
Docket: A-367-05
Citation: 2006 FCA 134
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
MANJIT BAGRI
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia, on April 3, 2006.
Judgment delivered at Vancouver, British Columbia, on April 5, 2006.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: LÉTOURNEAU, NOËL JJ.A.
Date: 20060403
Docket: A-367-05
Citation: 2006 FCA 134
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
MANJIT BAGRI
Applicant
and
ATORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] This is an application for judicial review by Manjit Bagri to set aside a decision of the Pension Appeals Board, dated, July 15, 2005. The Board dismissed Ms Bagri's appeal from a decision of the Review Tribunal, concluding that she was not entitled to long term disability benefit. On the basis of the medical evidence before it, the Board held that Ms Bagri had not established that, as of April 1994, the end of her minimum qualifying period ("MQP"), she was suffering from "a severe and prolonged mental or physical disability" within the meaning of subsection 42(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8 ("CPP").
[2] Despite the plethora of issues raised by counsel on behalf of Ms Bagri, I am not persuaded that, in making this decision, the Board committed any reviewable error. In oral argument, counsel advanced five principal arguments in support of the application for judicial review.
[3] First, he said that the Board erred in law by holding that medical reports concerning Ms Bagri made after April 1994 were inadmissible. In fact, it is clear from its reasons that the Board admitted the reports, but assigned little probative value to them. I am not persuaded that the Board's conclusion on such an essentially factual question was patently unreasonable.
[4] Second, he argued that the reasons of the Board were punitive in tone and failed fairly to assess the evidence. I disagree. The Board correctly noted that the medical reports which pre-dated the end of Ms Bagri's MQP, April 30, 1994, did not suggest that she was suffering from a mental or physical disability which rendered her incapable of work. It also observed that there were no medical reports between 1992 and 1996, and that, on the advice of her doctor, Ms Bagri had taken seasonal employment in 1994 and 1995 in less physically demanding work than she had previously had.
[5] In these circumstances, it was open to the Board to attach little weight, if any, to the medical reports written in 1996 and subsequently. While, on occasion, the Board may have expressed itself bluntly, counsel was unable to point to any material mischaracterization of the facts in the reasons.
[6] Third, counsel submitted that, as a matter of procedural fairness, the Board was required to record the hearing. In the absence of a statutory duty, the failure of an administrative tribunal to make a recording of its proceeding is not a breach of the duty of a fairness, provided that the reviewing court is able to dispose of the grounds on which the applicant has challenged the decision under review: Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at para. 81 and following.
[7] Counsel submitted that the Board made no reference to Ms Bagri's oral testimony and, without a transcript of the hearing, the Court could not determine if it thereby erred. I do not agree. The principal substantive issues in this case concern the adequacy of the medical evidence relevant to Ms Bagri's claim that she qualified for long term disability benefit as of April 1994 at the latest. Counsel did not persuade me that the absence of a record of Ms Bagri's oral testimony prevents the Court from determining whether the written material before the Board was sufficient to provide a rational basis for its decision.
[8] Fourth, counsel submitted that the Board erred in law by placing on Ms Bagri the burden of proving that, at the relevant time, she was disabled within the meaning of the CPP. Again, I must disagree. It is trite law in this Court that claimants for long term disability benefit must prove their entitlement (see, for example, Kent v. Canada (Attorney General), 2004 FCA 420 at para. 4), and that the normal civil standard, the balance of probabilities, is the applicable standard of proof.
[9] Fifth, counsel argued that the delay in these proceedings rendered the Board's decision unfair and that the Court should uphold her claim to long term disability benefit. The Review Tribunal dismissed Ms Bagri's appeal from the refusal of her claim for long term disability benefit in June 1998. The subsequent delay is attributable in large part to an appeal and application for judicial review by Ms Bagri prior to the present proceedings
[10] Unfortunate as it may be that this matter was not disposed of sooner, the time taken to bring it to a conclusion following the previous appeal and judicial review does not warrant setting aside for unfairness the Board's dismissal of Ms Bagri's appeal. Much less does it entitle her to a determination by this Court that she qualifies for long term disability benefit.
[11] For these reasons, I would dismiss the application for judicial review, without costs.
"John M. Evans"
"I agree"
"Gilles Létourneau"
"I agree"
"Marc Noël"
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