Johnson v. Canada (Attorney General), 2007 FCA 66

Date: 20070215

Docket: A-304-06

Citation: 2007 FCA 66

CORAM:       RICHARD C.J.

                        SHARLOW J.A.                   

                        RYER J.A.

BETWEEN:

HAROLD JOHNSON

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

Heard at Halifax, Nova Scotia, on February 12, 2007.

Judgment delivered at Halifax, Nova Scotia, on February 15, 2007.

REASONS FOR JUDGMENT BY:     SHARLOW J.A.

CONCURRED IN BY:

CONCURRING REASONS BY:

DISSENTING REASONS BY:

Date: 20070215

Docket: A-304-06

Citation: 2007 FCA 66

CORAM:       RICHARD C.J.

                        SHARLOW J.A.                   

                        RYER J.A.

BETWEEN:

HAROLD JOHNSON

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT

SHARLOW J.A.

[1]               In 2000, the applicant Mr. Johnson applied for a disability pension under the Canada Pension Plan, R.S.C. 1985, c. C-8, on the basis of back pain. Mr. Johnson is illiterate and has a grade 4 education. The only work he has ever done is heavy work in the woods, using a chain saw to cut lengths of wood. He last did that kind of work for a short period in 1998, but was compelled to quit because of back pain. He has not worked since. He has not sought retraining or other work.

[2]               It is common ground that Mr. Johnson is entitled to a disability pension if he had a severe and prolonged mental or physical disability as of December 31, 1997. The relevant question is whether his condition was such, as of that date, to render him incapable of pursuing with consistent frequency any truly remunerative occupation, taking into consideration Mr. Johnson’s age, education level, language proficiency and past work and life experience: Villani v. Canada (Attorney General), 2001 FCA 248, at paragraph 38.

[3]               Mr. Johnson’s claim for a disability pension was denied, and his appeals to the Review Tribunal and the Pension Appeals Board were dismissed. He now seeks judicial review of the decision of the Pension Appeals Board.

[4]               The reasons contain a summary of the evidence and a conclusion, at paragraph 16, which states that, “having regard to the evidence of employment in 1998 and the weight of the medical evidence”, Mr. Johnson had failed to prove that he was suffering from the requisite degree of disability as of December 31, 1997. The evidence about Mr. Johnson’s 1998 employment, which the Pension Appeals Board characterized (at paragraph 14 of their reasons) as “the most telling evidence” against his claim, was that he worked for two short periods of time in early 1998 and quit working on both occasions because of back pain. The Pension Appeals Board did not say or suggest that Mr. Johnson’s evidence on this point is not credible.

[5]               Counsel for Mr. Johnson has put forward a number of grounds upon which the decision of the Pension Appeals Board should be set aside.  In my view it is necessary to consider only one, which his whether the reasons for the decision are adequate.

[6]               The test for the adequacy of reasons is whether the reviewing court is in a position to undertake a meaningful review of the decision against the appropriate standard of review.  In this case, the standard of review is “patent unreasonableness”, which means that the decision cannot stand if it is clearly irrational or evidently not in accordance with reason, or is so flawed that no amount of curial deference can justify letting it stand: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.FR. 247, at paragraph 52.

[7]               There is no medical evidence dating from 1997 or 1998. A report from a general practitioner in 2000 confirms that Mr. Johnson was then unable to handle the heavier aspects of his previous job in the woods, but also says that there is no alternate work available to him. The same doctor in 2001 suggested that Mr. Johnson might be capable of light work, but noted that Mr. Johnson’s ability to find work would be limited by his locality and lack of reading and writing skills. In the same year, a specialist wrote an opinion that he could find no physical basis for Mr. Johnson’s back pain. In 2006, another doctor said that Mr. Johnson was then disabled from heaving manual work or from any occupation that would require prolonged standing, walking, sitting, repetitive bending or lifting.

[8]               Thus, while none of the evidence directly addressed Mr. Johnson’s condition in 1997, there was some evidence that, taken in conjunction with Mr. Johnson’s own uncontested evidence of his work experience in early 1998 and the reason he gave for being unable to continue working at that time, could have been interpreted to favour Mr. Johnson’s claim. The Pension Appeals Board did not explain why they chose not to interpret the evidence that way, and I am unable to discern from the record why they made that choice. I am compelled to conclude that this is one of those rare instances where it is not possible to conduct a meaningful judicial review.

[9]               For that reason I would allow this application for judicial review with costs, set aside the decision of the Pension Appeals Board, and refer Mr. Johnson’s appeal back to the Pension Appeals Board for reconsideration by a differently constituted panel.

“K. Sharlow”

FEDERAL COURT OF APPEAL

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-304-06

STYLE OF CAUSE:                          HAROLD JOHNSON

                                                            - and -

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                    Halifax, Nova Scotia

DATE OF HEARING:                      February 12, 2007

REASONS FOR ORDER

AND ORDER OF:                            Sharlow J.A.

DATED:                                             February 15, 2007

APPEARANCES:

SOLICITORS OF RECORD: