[1] This is an application for judicial review by the Minister of Human Resources Development to set aside a decision of the Pension Appeals Board, dated May 21, 2002, in which the Board held that the Katherine Quesnelle was entitled to a disability pension on the ground that, from at least the last day of her minimum qualifying period, December 31, 1997, she has been suffering from a severe and prolonged disability within the meaning of subparagraph 42(2)(a)(i) of the Canada Pension Plan, R.S.C. 1985, c. C-8. The Board thereby reversed a decision of the Review Tribunal that Ms. Quesnelle's disability was not "severe" because it did not render her "incapable regularly of pursuing any substantially gainful occupation".

[2] Ms. Quesnelle has been diagnosed as suffering from fibromyalgia, apparently as a result of sustaining soft tissue injuries when she was involved in a motor vehicle accident in December 1990. Her symptoms have included pain and stiffness in her neck, back, arm, hip and knee, headaches, dizziness, fatigue and depression. The Minister does not take issue with the diagnosis of Ms. Quesnelle's medical condition.

[3] At the time of the accident Ms. Quesnelle was employed as a junior draftsperson in the design of automotive parts using a computer assisted design program. She returned to work after the accident, but eventually had to quit on health grounds in July 1993. She applied for disability benefits in 1995. She was then 33 years old.

[4] There was a voluminous record before the Board, including more than thirty reports from a dozen or so physicians practising in various medical specialties, and from rehabilitation specialists who had evaluated her functional capacity. Many of these reports had been obtained in connection with the personal injury litigation instituted by Ms. Quesnelle as a result of the accident and predated December 31, 1997.

[5] The preponderance of the evidence contained in these reports was that Ms. Quesnelle's disability did not prevent her from working, although it is conceded that she could not return to her previous job. Seven doctors (including an orthopedist, physiatrists, an internist and a psychiatrist) stated that in their opinion Ms. Quesnelle could work again. A report from a rehabilitation clinic identified nine jobs that a person of Ms. Quesnelle's age, education, skills and medical condition could realistically be expected to be able to perform. Some reports suggested that she could obtain part-time employment or work from home. Her former employer offered to re-hire her and to provide her with work that would accommodate her physical difficulties.

[6] On the other hand, Dr. Leung, a rheumatologist, and Dr. McTavish, Ms. Quesnelle's family physician, were of the opinion that her disability was severe and that she could undertake no kind of work. Another doctor thought that she could work for no more than two hours a day. Others expressed no opinion on the functional severity of her disability.

[7] In its reasons, the Board briefly described the conclusions of six doctors who had submitted reports or given oral testimony expressing a variety of views. The Board also referred to the testimony of Ms. Quesnelle respecting her attempts to resume work, her symptoms and her strategies for reducing pain. It noted that there was strong evidence on both sides and that cases of fibromyalgia present difficulties for the Board, although it has "the responsibility of deciding whether the Appellant suffers from fibromyalgia which is debilitating to the point where the Appellant can no longer work at a job which will provide an appropriate livelihood." After stating that it had considered all the evidence, the Board allowed the appeal, because it "found the testimony of the Appellant and Dr. Leung to be credible". This is the totality of the Board's explanation of the basis of its decision.

[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.

[9] This is not to say that it was not open to the Board to find on the evidence before it that Ms. Quesnelle was suffering from a severe disability within the meaning of subparagraph 42(2)(a)(i): a careful analysis of the evidence might have led the Board to the same conclusion that it reached. However, in the absence of any indication in the Board's reasons that it engaged in a meaningful analysis of the evidence, its decision cannot stand.

[10] Counsel for Ms. Quesnelle suggested that the Board is not under a duty to provide full reasons when it is deciding an appeal in favour of a claimant. Since the content of the duty to give reasons depends on how seriously an adverse decision will affect a party, the Board must give more extensive reasons when deciding against a claimant than when deciding against the Minister.

[11] While the importance of the interests at stake, and the seriousness of the adverse effect on a party of a negative decision, may be relevant to determining the content of the duty of fairness and the adequacy of a tribunal's reasons, this does not justify applying a double standard to the adequacy of a tribunal's reasons depending on which way it decides a dispute. In this case, the Minister represents the public interest in the financial integrity of the Canada Pension Plan and its due administration according to law, and there is a public interest in ensuring that claimants are not paid benefits to which they are not entitled. Both parties are entitled to a fair hearing before the Board and, without reasons that adequately explain the basis of a decision, neither party can be assured that, when a decision goes against it, its submissions and evidence have been properly considered. Moreover, without adequate reasons, the losing party may be effectively deprived of the right to apply for judicial review.

[12] In any event, the only justification provided by the Board for its decision was that it found the testimony of Ms. Quesnelle and Dr. Leung to be credible. This does not pass muster as "reasons" on any standard of adequacy.

[13] Counsel also suggested that it would impose an undue burden on the Board to provide more by way of reasons than was provided in this case. I disagree. For one thing, counsel conceded that, if the Board's decision had been adverse to her client, the work involved in giving more extensive reasons would not have excused their inadequacy. And, as I have already indicated, when it comes to determining the adequacy of a tribunal's reasons, what is sauce for the goose is sauce for the gander as well.

[14] In addition, the fact that the Pension Appeals Board comprises serving and former federally appointed judges (subsections 83(5)-(5.5)) is an indication that Parliament expected more by way of reasons than the Board provided in this case. Unlike many of those serving on administrative tribunals, the members and temporary members of the Pension Appeals Board are not unfamiliar with the writing of reasons for decision in matters where a careful analysis of the law and conflicting evidence is required. I recognize that members of the Board may be called upon to hear a relatively large number of appeals. Nonetheless, many of the cases that they hear are fairly straightforward and the work load can be shared among the three members who comprise a panel of the Board.

[15] This is sufficient to dispose of this application for judicial review. However, I would note that counsel for the Minister also argued that the Board committed an error of law when it stated that the question that it had to decide was whether "the Appellant suffers from fibromyalgia which is disabiliting to the point where the Appellant can no longer work at a job which will providean appropriate livelihood". The emphasis is mine. Counsel submitted that, since the relevant statutory test is whether the claimant is "incapable regularly of pursuing any substantially gainful occupation", the Board asked itself the wrong question when it referred to her ability to earn an "appropriate livelihood", a much more subjective concept.

[16] Although this Court in Vilanni v. Canada (Attorney General), [2002] 1 F.C. 130 (C.A.) emphasised (at para. 38) the importance of attaching meaning to each and every word in the eligibility definition in subparagraph 42(2)(a)(i), I am not convinced that the Board erred in law in paraphrasing as it did, especially since it had correctly stated the legal test earlier in its reasons. Nonetheless, in my opinion, it is generally unwise for the Board to formulate in words other than those contained in the statute the legal test that it is applying.

[17] For these reasons, I would allow the application for judicial review without costs, set aside the decision of the Pension Appeals Board and remit the matter for redetermination by a differently constituted Board.

"John M. Evans"

J.A.

"I agree

Alice Desjardins"

J.A.

I agree

Gilles Létourneau"

J.A.

FEDERAL COURT OF CANADA

APPEAL DIVISION

Names of Counsel and Solicitors of Record

DOCKET: A-415-02

STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT

Applicant

- and -

KATHERINE QUESNELLE

Respondent

DATE OF HEARING: MONDAY, FEBRUARY 17, 2003

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR JUDGMENT BY: EVANS J.A.

CONCURRED IN BY: DESJARDINS J.A.

LÉTOURNEAU J.A.

DATED: THURSDAY, FEBRUARY 20, 2003

APPEARANCES BY: Stephen Latté

For the Applicant

Lisa Belcourt

Kristen Douglas

For the Respondent

SOLICITORS OF RECORD: MORRIS ROSENBERG

The Deputy Attorney General of Canada

For the Applicant

FERGUSON & BOECKLE

531 King Street

Midland, Ontario

L4R 3N6

For the Respondent

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Canada (Minister of Human Resources Development) v. Quesnelle, 2003 FCA 92

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2003 FCA 92