[1] The applicant, who claims that she cannot work by reason of fibro myalgia and major depression and, hence, that she is entitled to a disability pension, seeks to set aside a decision of the Pension Appeals Board (the "Board") dated May 3, 2004, which dismissed her appeal from a decision of a Review Tribunal rendered on March 7, 2001.

[2] The Review Tribunal found that there was no objective medical evidence to support the applicant's claim to disability and, as a result, concluded that her disability was not "severe and prolonged", as required by paragraph 42(2)(a) of the Canada Pension Plan (the "Plan").

[3] The Board dismissed the applicant's appeal because, in its view, she had failed to show that, as of December 31, 1995, the minimum qualifying period under the plan, she was suffering from a disability that was both severe and prolonged. In so concluding, the Board made it clear that it was not satisfied that the applicant had made reasonable efforts to participate in the various programs and treatments recommended to her by some of the physicians whom she had consulted. In that respect, the Board noted that the applicant had failed to wear both her lumbar and neck braces, and that she had failed to lose weight and to exercise in a reasonable manner.

[4] The applicant seeks to set aside the Board's decision on a number of grounds. Firstly, she says that in omitting to consider "a considerable body of credible evidence" that was adduced in support of the proposition that her disability was severe and prolonged, the Board had failed to provide adequate reasons for its decision.

[5] Secondly, the applicant argues that the Board failed to properly consider the totality of the evidence in concluding that only one doctor had directed his mind to the fact that she was unable to work in 1995.

[6] Thirdly, the applicant submits that the evidence clearly showed that she was disabled as of December 31, 1995, and hence, that she could not work.

[7] Finally, the applicant submits that the Board erred in law by failing to make a proper analysis of the "real world" in which the applicant found herself (see Villani v. Canada (Attorney General), [2002] 1 F.C. 130, para. 38).

[8] In my view, notwithstanding Ms. Cohen's forceful arguments on her behalf, the applicant cannot succeed.

[9] Firstly, I see no merit in the applicant's submission that the Board's reasons are not adequate. In Doucette v. Minister of Human Resources and Development, 2004 FCA 292, dated September 15, 2004, writing for a majority of the Court, I dealt with an argument similar to the one put forward by the applicant herein. At paragraphs 7, 11 and 12, I explained, in the following terms, the Board's duty to provide reasons:

[7] In the case of the Pension Appeal Board, the duty to give reasons arises from subsection 83(11) of the statute. In this case, reasons have been given; the issue is the adequacy of those reasons. Sheppard, supra [R. v. Sheppard, [2002] 1 S.C.R. 859], provides one basis upon which to assess those reasons. Do the Board's reasons provide a sufficient basis for this court to exercise its review function? An example of reasons which did not meet that test is found in Canada (Minister of Human Resources Development) v. Quesnelle [2003] F.C.J. No. 267:

[8] The Board is under a statutory duty to provide the parties with reasons for its decision: Canada Pension Plan, subsection 83(11). In my opinion, in omitting to explain why it rejected the very considerable body of apparently credible evidence indicating that Ms. Quesnelle's disability was not "severe", the Board failed to discharge the elementary duty of providing adequate reasons for its decision. The size and complexity of the record before it called for an analysis of the evidence that would enable the parties and, on judicial review, the Court, to understand how the Board reached its decision despite the mound of apparently credible evidence pointing to the opposite conclusion.

...

[11] It is obvious that the Board could have explained its reasoning more fully, but one can nonetheless discern the Board's reasoning from the language it has used. Consequently, as I am satisfied that the Board's reasons allow us to exercise our review function, I have no difficulty concluding that they are adequate.

[12] To conclude on this point, I would add that our Court, like other courts of appeal, must be mindful of Binnie, J.'s remarks in Sheppard, supra, that we should not intervene because we are of the opinion that the courts below failed to express themselves in a way acceptable to us. The reasons under review should be fairly considered and in performing that exercise, we should, as Binnie J. suggests, examine the record on which the decision under review is based. We must guard ourselves from being too eager to conclude that reasons do not pass muster.

[10] Whether one agrees or not with the Board's reasons, they are, in my view, sufficiently developed for us to fully understand why it reached the conclusion that it did.

[11] Secondly, I am of the view that there is also no merit in the applicant's second and third submissions to the effect that the Board failed to consider those medical reports which she says support her claim that her disability is severe and prolonged, and that the Board did not properly assess the evidence before it.

[12] A fair reading of the Board's reasons easily dispels these contentions. There can be no doubt that the Board thoroughly reviewed and considered all of the medical evidence prior to reaching its conclusion. What the applicant, in reality, is asking us is to reweigh the evidence in a manner more favourable to her position. That, in the context of a judicial review application, we obviously cannot do.

[13] I am satisfied that it was reasonably open for the Board to conclude, as it did, that the evidence was not sufficiently strong to justify a conclusion that the applicant was, as of December 31, 1995, suffering from a severe and prolonged disability, which would have entitled her to a disability pension under the Plan.

[14] I now turn to the applicant's last submission, which is based on our Court's decision in Villani, supra. Specifically, the applicant argues that the Board erred in omitting to consider her personal characteristics, such as age, education, language skills, capacity to retrain, etc. In my view, in the circumstances of this case, this last submission cannot possibly succeed. In Villani, supra, at para. 50, our Court stated unequivocally that a claimant must always be in a position to demonstrate that he or she suffers from a severe and prolonged disability which prevents him or her from working:

[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. Cross-examination will, of course, be available to test the veracity and credibility of the evidence of claimants and others.

[15] As the Board was not persuaded that the applicant suffered from a severe and prolonged disability, as of December 31, 1995, there was, in my view, no necessity for it to apply the "real world" approach.

[16] 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.

[17] As the respondent is not seeking costs, I would therefore dismiss the application for judicial review, but without costs being awarded.

"M. Nadon"

J.A.

"I agree.

Marshall Rothstein J.A."

"I agree.

K. Sharlow J.A."

FEDERAL COURT OF APPEAL

Names of Counsel and Solicitors of Record

DOCKET: A-319-04

STYLE OF CAUSE: GIANNAROS v. M.H.R.D.

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: THURSDAY, APRIL 28, 2005

REASONS FOR JUDGEMENT : NADON J.A.

CONCURRED IN BY: ROTHSTEIN J.A.

SHARLOW J.A.

DATED: MONDAY, MAY 16, 2005

APPEARANCES BY:

Ms. Joy-Ann Cohen FOR THE APPLICANT

Ms. Sandra Gruescu FOR THE RESPONDENT

SOLICITORS OF RECORD:

JOY-ANN COHEN FOR THE APPLICANT

Barrister & Solicitor

Toronto, Ontario

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

Deputy Attorney General of Canada

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Giannaros v. Canada (Minister of Social Development), 2005 FCA 187

Citations2005 FCA 187

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2005 FCA 187