Spears v. Canada (Attorney General), 2004 FCA 193

Date: 20040513

Docket: A-336-03

Citation: 2004 FCA 193

CORAM:        STONE J.A.

LÉTOURNEAU J.A.

EVANS J.A.

BETWEEN:

                                                          CATHERINE SPEARS

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                           Heard at Halifax, Nova Scotia, April 28, 2004.

                                  Judgment delivered at Ottawa, Ontario, on May 13, 2004.

REASONS FOR JUDGMENT BY:                                                                                  STONE J.A.

CONCURRED IN BY:                                                                                        LÉTOURNEAU J.A.

                                                                                                                                        EVANS J.A.

Date: 20040513

Docket: A-336-03

Citation: 2004 FCA 193

CORAM:        STONE J.A.

LÉTOURNEAU J.A.

EVANS J.A.

BETWEEN:

                                                          CATHERINE SPEARS

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

STONE J.A.

[1]         This application is to review and set aside a decision of The Pension Appeals Board dated May 29, 2003, dismissing the applicant's appeal from a decision of the Review Tribunal. The Board found that the applicant did not have "a severe...physical disability" that rendered her "incapable regularly of pursuing any substantially gainful occupation" within the meaning of subparagraph 42(2)(a)(i) of the Canada Pension Plan, R.S.C. 1985, c. C-8.

Factual background

[2]         The applicant was born in 1952 and holds two university degrees including a Master's degree in Education. The nature of her physical problems was succinctly described by the Board in paragraph 4 of its reasons:

[4] In March 1995 she had suddenly experienced hearing loss in her right ear with associated tinnitus and dizziness. Audiometry in May 1996 had shown significant hearing loss in her right ear together with tinnitus in that ear. A brain angiogram taken at this time established fibromuscular dysphasia. This had contributed to dizziness which she experienced if she raised herself from a crouched position too quickly and turned too quickly.

[3]         At the time of onset of this condition, the applicant had been teaching school for some 26 years and was acknowledged by the School Board to be a dedicated teacher. As a result of her medical condition, she decided to reduce her hours of teaching to four days per week, commencing in September 1996. The applicant also consulted a number of physicians, including specialists at home and abroad in the field of diseases of the ear, with a view to diagnosing the condition and to seeking a remedy. She was found by her medical advisors to be profoundly deaf in her right ear and to have minimal loss of hearing in her left ear. Unfortunately, her condition did not improve and was such that in April 2001 the applicant resigned her teaching position because of hearing impairment. In view of this impairment, the applicant approached the School Board requesting work in guidance counselling or resource teaching. None was available. She submitted an application to the Minister for a disability pension dated January 22, 2001. Her application was rejected.

[4]         In supporting her claim for a disability pension under the Plan, the applicant filed the reports and opinions of the several physicians who had examined her. In support of her appeal to the Board she submitted the opinion of Dr. C.C. Cron, a specialist in otolaryngology, dated March 4, 2003, based on an examination of February 24, 2003. Dr. Cron was of the opinion that the applicant "is not able to be employed in a gainful occupation and certainly would appear to be entitled to a disability benefit". The applicant's family physician (Dr. Hanley), who had been treating her since May 1995, expressed a similar opinion in his report dated January 20, 2003. In his words, the applicant "is not capable of performing her job or any other job". Dr. Hansen, a psychiatrist, was of the view that because of her medical problem "it is unlikely that she will be able to find and keep a job in the regular job market". In addition Leslie Pratt, an audiologist, was of the opinion that "any type of interactive occupation would be very difficult if not impossible for her".

[5]         The applicant appeared before the Review Tribunal on January 31, 2002 in an appeal from the Minister's decision. The Review Tribunal found that she was "very capable in presenting testimony" and was "clear and articulate in providing her evidence". The Tribunal also noted that "she already possesses the work history, educational experience and skills to find a job within a work environment suitable to her hearing disability". Accordingly, it dismissed her appeal. That decision was the subject of a further appeal to the Board whose own decision is here under review.

[6]         On March 28, 2003, Dr. Kennedy O'Brien, a specialist in occupational medicine, testified as an expert witness on behalf of the Minister at the Board's hearing in Halifax, N.S. Dr. O'Brien's curriculum vitae was filed with the Board and made available to the applicant on March 7, 2003, some three weeks before he was called to testify. Two days prior to the hearing, the applicant was provided with a four page "Testimonial Summary" prepared by Dr. O'Brien which was filed at the hearing where Dr. O'Brien testified. In that summary, Dr. O'Brien reviewed the various medical opinions, but not that of Dr. Cron, submitted by the applicant in support of her appeal. He specifically mentioned Dr. Hansen's opinion, and stated: "The question is really whether she has tried to look for alternate work of a suitable nature". Dr. O'Brien concluded his summary as follows:

The claimant indeed has a hearing impairment ie she is "hard of hearing" but she is not deaf. She will have difficulty in noisy interactive environments or groups. She should seek employment as a tutor (quiet one on one teaching situations) or set up in business for such purpose. Alternatively the Provincial and Federal employers represent affirmative action environments which are not usually noisy or distracting bureaucratic settings. She is well educated, very experienced in her field and relatively young; education policy or programs, private teaching/tutoring are suitable alternate job settings. There are many hard of hearing people who work for themselves or such employers and indeed totally deaf people who are working.

[7]         In determining that the applicant was not eligible for a disability pension under the Plan, the Board stated at paragraphs 17 to 21 of its reasons:

[17] Counsel for the Appellant relied upon the appellant's evidence and upon the opinions expressed in the reports of some of the doctors, particularly Dr. Hanley and Dr. Cron, to support his submission that her disabilities were so severe that she was incapable of pursuing any gainful occupation.

[18] We are unable to accept that submission. In view of her education and professional achievements, her evidence that she was unable to obtain employment as a student tutor or in a similar position, is not persuasive.

[19] Dr. K. O'Brien, a specialist in occupational medicine called by the Respondent, testified that in his experience, a person with the training and experience of the Appellant, who had the impaired hearing difficulties of the Appellant would readily find employment with an "affirmative action" type employer such as the Federal Government of Canada, particularly in an occupation listed by the Public Service Commission of Canada. He considered that the Appellant could obtain employment in a management or research position. The evidence of the Appellant showed that she had not attempted to look for, or find employment of this type, from an affirmative action employer.

[20] After considering the evidence of some doctors, particularly Doctors Cron and Hanley, that she was not able to be employed in a gainful occupation, we accept the evidence of Dr. O'Brien that the Appellant could probably find employment with an affirmation action type employer.

[21] While we sympathise with the Appellant over her hearing disabilities, we are not persuaded that she is incapable regularly of pursuing any substantially gainful employment.

Relevant statutory provisions

[8]         Paragraph 44(1)(b) of the Plan provides that "a disability pension shall be paid to a contributor who has not reached sixty-five years of age...who is disabled...". Subparagraph 42(2)(a)(i) and paragraph 42(2)(b) read:

Analysis

[9]         On an application of this kind, the Court is not to determine the merits of an applicant's pension request, but only to decide whether any of the grounds listed in subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7 are established so as to warrant the return of the matter to the Board for redetermination: Brychka v. Canada (Attorney General) (1998), 141 F.T.R. 258 (T.D.), at paragraph 27. In making that decision, the Court must apply the appropriate standard of review to the issues raised by a Board decision. It has been held that the determination of the meaning of "severe" disability under subparagraph 42(2)(a)(i) of the Plan - a question of law - is to be reviewed on a standard of correctness: Villani v. Canada (Attorney General), [2002] 1 F.C. 130, 2001 FCA 248, at paragraph 22.

[10]       However, the principal issue in the present case involves the application of the statute to the facts, and not its interpretation. Consequently, whether Ms. Spears' disability is "severe" for the purpose of subparagraph 42(2)(a)(i) of the Plan is a question of mixed law and fact. Since the determination of this question has a high factual component, the jurisprudence of this Court establishes that it is reviewable on a standard of patent unreasonableness: Canada (Attorney General) v. Hutchison, 2004 FCA 105, at paragraph 3, Wilganowski v. Canada, 2002 FCA 373, at paragraph 4, McKerrow v. Canada (Minister of Human Resources Development), 2002 FCA 433, at paragraph 3, Vogt v. Canada (Minister of Human Resources Development), 2002 FCA 52, at paragraph 4.

[11]       What constitutes "patent unreasonableness" in a decision of a tribunal was the subject of a recent comment of Binnie J. in Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29">2003 SCC 29, at paragraph 164:

However, applying the more deferential patent unreasonableness standard, a judge should intervene if persuaded that there is no room for reasonable disagreement as to the decision maker's failure to comply with the legislative intent. In a sense, like the correctness standard, the patently unreasonable standard admits only one answer. A correctness approach means that there is only one proper answer. A patently unreasonable one means that there could have been many appropriate answers, but not the one reached by the decision maker.

[12]       The applicant contends that the Board erred in finding that she was not disabled because the Board misinterpreted the statutory test for "severity". The jurisprudence of this Court has since reiterated that the requirements of subparagraph 42(2)(a)(i) are to be applied in a "real world" context: Villani, supra. This point was re-emphasized and further explained by this Court in Canada ( Minister of Human Resources Development) v. Rice, 288 N.R. 34, 2002 FCA 47, where Rothstein J.A. stated at paragraphs 9 and 10:

9. The August 3, 2001 decision of Isaac J.A. in Villani v. Attorney General of Canada (2001), 205 DLR (4^th) 58 (F.C.A.) is dispositive. Villani instructs that while subparagraph 42(2)(a)(i) should be given a generous construction, the definition of a severe disability is one that must be contained in the language of that provision (paragraph 29). Nothing in the language of subparagraph 42(2)(a)(i) suggests that labour market conditions are relevant in a disability assessment.

10. Further, the severity requirement is to be applied in a "real world" context. This means that the "hypothetical occupation which a decision maker must consider cannot be divorced from the particular circumstances of the applicant, such as age, education level, language proficiency and past work and life experience (paragraph 38)". Isaac J.A.'s reference to "the hypothetical occupation" makes it clear that what is relevant is any substantially gainful occupation having regard to the individual's personal circumstances, but not whether real jobs are available in the labour market.

Other more recent decisions of this Court are to the same effect. See e.g. Canada (Minister of Human Resources Development) v. Scott, 300 N.R. 136, 2003 FCA 34. An examination of the Board's reasons in light of this case law does not reveal that it misapplied the test for severity under subparagraph 42(2)(a)(i) of the Plan.

[13]       In arriving at its conclusion that the applicant was not severely disabled, the Board considered the applicant's medical evidence including that of Dr. Cron dated March 4, 2003. It also considered the opinion of the respondent's expert, Dr. O'Brien. While Dr. O'Brien made no reference to Dr. Cron's report in his "Testimonial Summary", that report was before him when he testified at the hearing before the Board on March 28, 2003. The Board clearly found support for its conclusion in the whole of Dr. O'Brien's testimony, including that which was contained in the "Testimonial Summary". It is clear that the applicant's medical record was not ignored by the Board and that it also had regard to the evidence of Dr. O'Brien. That medical record was before the Board and was considered at some length in the decision here under review. Some of that evidence supported the applicant's claim. In the final analysis, it was for the Board to weigh that evidence along with the balance of the appeal record and to base its decision thereon. It does not appear that the decision arrived at by the Board was patently unreasonable.

[14]       The applicant also attacks the Board's decision on the ground that the Board acted beyond its jurisdiction by ignoring various procedural requirements. The suggested failures are that the Board neglected the requirement contained in paragraph 42(2)(b) of the Plan that a pension disability be determined in the "prescribed manner"; that the Board erred in relying essentially on the testimony of Dr. O'Brien, an expert who "unlike her own medical advisers never examined or treated the applicant and who had no expertise in audiology or otolaryngology"; that the Board erred by relying on Dr. O'Brien's testimony in determining that the applicant was not severely disabled instead of limiting the use of his testimony to assisting the Board in interpreting the applicant's medical evidence.

[15]       These arguments are not meritorious. The first one relies on the requirements of section 68 of the Canada Pension Plan Regulations, C.R.C., c. 385 (1978) which prescribes the manner in which an applicant must establish his or her disability under subsection 42(2) of the Plan. Section 68 requires that applicants supply the Minister with the information referred to in subsection 68(1) of the Regulations. In addition, subsection 68(2) enables the Minister to require an applicant to "undergo such special examinations and to supply such reports as the Minister deems necessary for the purpose of determining the disability". The applicant argues from this that Dr. O'Brien's evidence could not be lawfully received by the Board at the hearing of the appeal unless it was given in compliance with subsection 68(2) of the Regulations.

[16]       This suggestion misunderstands the stated purpose of subsection 68(2), which is to enable the Minister to require a pension applicant to submit to a special examination and to supply such reports as the Minister deems necessary for the purpose of determining the disability of that person. The subsection is not a barrier to the adducing of expert evidence by the Crown at the appeal from a witness such as Dr. O'Brien. Indeed, subsection 16(1) of The Pension Appeals Board Rules of Procedure (Benefits), C.R.C., c. 390 (1978) expressly authorizes the Board to "summon before it by subpoena any person and require him to give evidence on oath and to produce such documents as it deems requisite". That rule provides the Board with ample authority to require the testimony of a witness such as Dr. O'Brien at the hearing of an appeal.

[17]       Only one further procedural argument merits consideration. It is based on a statement made by the applicant in paragraph 5 of her supporting affidavit of August 13, 2003 that "one or more of the members of the Pension Appeals Board before Dr. K. O'Brien testified, stated that the only purpose of Dr. K. O'Brien's testimony was to assist the Board in the interpretation of the medical record". The applicant contends that the use of Dr. O'Brien's testimony by the Board to support its finding that the applicant was not severely disabled is at odds with the more limited purpose indicated by the statement she imputes to Board members, and that she was thereby denied an opportunity to effectively challenge Dr. O'Brien's opinion. It must be noted again that the applicant was made aware as early as March 7, 2003 that Dr. O'Brien would appear at the hearing as an expert witness for the Crown. Moreover, counsel acknowledged that at least two days prior to the hearing of the appeal he was provided with a copy of Dr. O'Brien's "Testimonial Summary". The lines of Dr. O'Brien's testimony, made apparent in that document, were surely not limited in the way suggested by the applicant. In any event, the stated purpose of assisting the Board in "the interpretation of the medical record", although perhaps ambiguous, would not necessarily signify that Dr. O'Brien would be confining his testimony to that of interpreting the reports of the applicant's medical advisors or that he would not suggest for the Board's consideration possible alternative employment for the applicant in the labour market. He had already telescoped his views in this regard in his "Testimonial Summary".

[18]       In summary, the applicant has failed to demonstrate any error in the decision of the Board that would warrant this Court's intervention. That decision was supported by the material in the record. Accordingly, the application should be dismissed. As costs are not requested, none should be awarded.

                                                                                     "A.J. STONE"                          

                                                                                                      J.A.

"I agree

    Gilles Létourneau J.A."

"I agree

    John M. Evans J.A."                   

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       A-336-03

STYLE OF CAUSE: Catherine Spears v. The Attorney General of Canada

PLACE OF HEARING:                                             Halifax, Nova Scotia

DATE OF HEARING:                                               April 28, 2004

REASONS FOR JUDGMENT:                    STONE J.A.   

CONCURRED IN BY:                                  LÉTOURNEAU and EVANS JJ.A.

DATED:                     May 13, 2004                

APPEARANCES:

SOLICITORS OF RECORD: