Giordano v. Canada (Attorney General), 2005 FCA 71

Date: 20050216

Docket: A-301-04

Citation: 2005 FCA 71

CORAM:        ROTHSTEIN J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

                                                            PAOLA GIORDANO

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                          Heard at Toronto, Ontario, February 16, 2005.

                     Judgment delivered from the Bench at Toronto, Ontario, February 16, 2005.

REASONS FOR JUDGMENT OF THE COURT BY:                                            ROTHSTEIN J.A.

Date: 20050216

Docket: A-301-04

Citation: 2005 FCA 71

CORAM:        ROTHSTEIN J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

                                                            PAOLA GIORDANO

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                     REASONS FOR JUDGMENT OF THE COURT

                       (Delivered from the Bench at Toronto, Ontario, February 16, 2005)

ROTHSTEIN J.A.

[1]                The thrust of the applicant's arguments in this application for judicial review is that the reasons of the Pension Appeals Board were inadequate. It is true that the Board's reasons do not contain an extensive analysis of the applicant's personal circumstances and the various medical reports that were before it. However, it appears to us that, in the circumstances of this case, such an extensive analysis was unnecessary.

[2]                From the Board's reasons, it is apparent that what was of concern to the Board was the applicant's failure to seek any type of work after 1997, except at the factory where she was previously working and where there was no sedentary work available, that she still drives a car, and that, contrary to the advice of her doctor, she does not do exercise. The Board quoted passages from various medical reports and it is obvious that it preferred the evidence of the orthopaedic surgeon, which was that she could perform sedentary-type work to that of the family physician, which was that she was unable to do any permanent or effective, productive work. The Board focussed on the relevant date for determining the applicant's disability, which was December 31, 1998, and therefore discounted evidence of subsequent evaluations of the applicant.

[3]                The applicant argued that the Board erred by not linking her disability to her employability but rather only to her medical condition. However, as we have explained above, we are satisfied that the Board's consideration of her disability was indeed in the context of her employability.

[4]                In these circumstances, we are not persuaded that the Board's reasons are inadequate, that it erred in law, or that its conclusion that the applicant was not disabled within the meaning of the Canada Pension Plan, R.S., c. C-5, s. 1, was patently unreasonable.

[5]                The appeal will be dismissed.

                                                                                                                             "Marshall Rothstein"         

                                                                                                                                                      J.A.

                                                  FEDERAL COURT OF APPEAL

                       NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                 A-301-04

STYLE OF CAUSE:                                 PAOLA GIORDANO

                                                                            Applicant

v.

THE ATTORNEY GENERAL

OF CANADA

                                                                                                                                          Respondent

PLACE OF HEARING:                           TORONTO, ONTARIO

DATE OF HEARING:                             FEBRUARY 16, 2005       

REASONS FOR JUDGMENT

OF THE COURT:                                   (ROTHSTEIN, SEXTON & EVANS JJ.A.)

RENDERED FROM THE

BENCH BY:                                              ROTHSTEIN J.A.

APPEARANCES:

Mr. Hossein Niroomand                              FOR THE APPLICANT

Mr. Marcus Davies                                      FOR THE RESPONDENT

SOLICITORS OF RECORD

Hossein Niroomand                                     FOR THE APPLICANT

Toronto, Ontario                                                                      

John H. Sims,Q.C.                                      FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario