Rochford v. Canada (Minister of Human Resources Development), 2004 FCA 294

Date: 20040914

Docket: A-522-03

Citation: 2004 FCA 294

CORAM:        ROTHSTEIN J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                      CATHERINE ROCHFORD

Applicant

and

MINISTER OF HUMAN RESOURCES DEVELOPMENT

Respondent

                                      Heard at Toronto, Ontario, on September 13^th, 2004.

                            Judgment delivered at Toronto, Ontario, on September 14^th, 2004.

REASONS FOR JUDGMENT BY:                                                                           SHARLOW J.A.

CONCURRED IN BY:                                                                                            ROTHSTEIN J.A.

                                                                                                                                    MALONE J.A.

Date: 20040913

Docket: A-522-03

Citation: 2004 FCA 294

CORAM:        ROTHSTEIN J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                      CATHERINE ROCHFORD

Applicant

and

MINISTER OF HUMAN RESOURCES DEVELOPMENT

Respondent

                                                    REASONS FOR JUDGMENT

SHARLOW J.A.

[1]                The applicant Catherine Rochford seeks judicial review of a decision of the Pension Appeals Board dated October 17, 2003. The Board dismissed her appeal from a decision of the Review Tribunal, which had rejected her claim for a disability pension under the Canada Pension Plan, R.S.C. 1985, C. c-8. Ms. Rochford claims to be unable to work because of severe and debilitating neck pain which she says began in 1996. In 1999, the cause of her neck pain was diagnosed as cervical dystonia.

[2]                The question before the Board was whether, on December 31, 1997, Ms. Rochford had a disability that met the conditions in paragraph 42(2)(a) of the Canada Pension Plan ("a severe and prolonged mental or physical disability"). According to subparagraph 42(2)(a)(i), a disability is "severe" if it renders the applicant "incapable regularly of pursuing any substantially gainful occupation". The Board found that the statutory test was not met. It is argued for Ms. Rochford that the decision of the Board should be set aside because it is based on a patently unreasonable factual conclusion, or alternatively because it is based on an incorrect interpretation of the statutory definition of "severe": Villani v. Canada (Attorney General) (C.A.), [2002] 1 F.C.130.

[3]                Counsel for Ms. Rochford argues that Ms. Rochford did not have the capacity, after 1997, to pursue any substantially gainful occupation. In support of that argument, he cited a large body of medical evidence that was before the Board, as well as Ms. Rochford's own evidence that, although she attempted to work in 1997, 1998 and 1999, she was unable to do so for more than approximately 3 hours per day or 8 hours per week because of neck pain. She earned income of only $1,504 in 1997, $1,745 in 1998 and $412 in 1999. It is argued that this amount of work cannot be considered a "substantially gainful occupation".

[4]                Most of the medical evidence presented by Ms. Rochford was not helpful in relating her medical condition to an inability to work as of the end of 1997. The most cogent evidence relating to her ability to work was a report prepared in 2002 that did not, and could not have, assessed her work capacity in prior years. More importantly, the report concludes only that Ms. Rochford was incapable of performing certain work said to be at a "medium" level. She was not assessed for her ability to perform light duties or sedentary work. In addition, Ms. Rochford's oral evidence concerning her work history was characterized by the Board as "confusing and inconsistent." Simply put, the evidence did not persuade the Board, on a balance of probabilities, that it was the pain of cervical dystonia that caused Ms. Rochford to work very little after 1997.

[5]                After a careful review of the record and the submissions, I am unable to find any error of fact or law that warrants the intervention of this Court. I would dismiss this application with costs.

                                                                                                                              "Karen R. Sharlow"                    

                                                                                                                                                      J.A.                          

"I agree

    Marshall Rothstein"    

                             J.A.

"I agree

              B. Malone"        

                             J.A.

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       A-522-03

STYLE OF CAUSE:                         CATHERINE ROCHFORD

Applicant

and

MINISTER OF HUMAN RESOURCES

DEVELOPMENT

                                                                                                                                       Respondent

PLACE OF HEARING:                                 TORONTO, ONTARIO

DATE OF HEARING:                                   SEPTEMBER 13, 2004

REASONS FOR JUDGMENT BY: SHARLOW J.A.

CONCURRED IN BY:                                  ROTHSTEIN J.A.

MALONE J.A.

DATED:                                                          SEPTEMBER 14, 2004

APPEARANCES:

Mr. Mark Grossman

FOR THE APPLICANT

Mr. Stuart Herbert                                            FOR THE RESPONDENT

SOLICITORS OF RECORD:

Shuh, Cline and Grossman

Toronto, Ontario                                               FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

Ottawa, Ontario

FOR THE RESPONDENT