Date: 20020509
Docket: A-672-00
Neutral citation: 2002 FCA 190
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
ADELE LUTZER
Applicant
- and -
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Heard at Toronto, Ontario, on Monday, May 6, 2002.
REASONS FOR JUDGMENT BY: LINDEN J.A.
CONCURRED IN BY: EVANS J.A.
MALONE J.A.
[1] This is an application by Adele Lutzer for the judicial review of a decision of the Pension Appeals Board, dated April 12, 2000. The Board dismissed an appeal by Ms. Lutzer from a decision by a Review Tribunal that she was not entitled to a disability pension becasue she had not proved that she had a severe disability on December 31, 1994, the date when she last met the contributory requirements, and thereafter.
[2] Ms. Lutzer had been diagnosed to have osteoarthritis of the knee, which limited to thirty minutes her ability to walk and to stand. She was also suffering from fibromyalgia. As a result, she has been incapable of working in her former occupation since at least the end of December 1994. The issue to be decided is whether, in reaching its decision that Ms.Lutzer's disabilty was not severe because she was capable of earning her living in a sedentary occupation, the Board failed to take a realistic view of the employment prospects of a person in Ms. Lutzer's circumstances.
[3] The Board rendered its decision prior to the release of the decision in Villani v.Canada (Attorney General), [2002] 1 F.C. 130 (C.A.), which clarified the test for disability set out in subsection 42(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8, namely that, a disability is only "severe" for the purpose of the Plan, if a claimant is thereby "incapable regularly of pursuing any substantially gainful occupation".
[4] The Court stated that a determination of whether a person's disability satisfied this test must be based on "real world" considerations. That is, a claimant's incapacity regularly to pursue a substantially gainful occupation must be determined by reference, not only to the existence of occupations that a person with the claimant's disability could theoretically pursue, but also to the occupations realistically open to a person in the claimant's circumstances, including (supra, at para 38) her "age, education level, language proficiency and past work and life experience."
[5] As a result of the decision in Villani, supra, some earlier decisions of the Board were withdrawn, others were sent back for re-hearing, and still others were thought to have taken into account the matters now required to be considered: see, for example, Gilson v. Canada (Minister of Human Resources Development), 2002 FCA. 101; Vogt v. Canada (Minister of Human Resources Development), 2002 FCA 52; Canada (Minister of Human Resources Development) v. Rice, 2002 FCA 47.
[6] Counsel for Ms. Lutzer argued that the Board's decision should be set aside as erroneous in law because it had not considered whether, in view of her age, limited education and health difficulties, Ms. Lutzer's disability was "severe", in that, from a practical perspective, it rendered her "incapable of regularly pursuing any substantially gainful occupation."
[7] The Board's findings of fact on the medical issues are clear and supportable on the evidence before it. In particular, it adopted the opinion of the rheumatologist who said that, while Ms. Lutzer was not able to resume work as a real estate agent, principally because of her osteoarthritic knee, she could undertake sedentary work. In addition, the Board mentions Ms. Lutzer's age and her fourteen years of employment experience as a real estate sales representative. As well, the Board noted that she had made no efforts to explore what employment opportunities might be available to her, given her particular circumstances.
[8] These are all factors that the Court in Villani, supra, said were relevant to a determination of whether a claimant's disability makes her "incapable of pursuing any substantially gainful occupation".
[9] Having made these findings, the Board simply concluded that Ms. Lutzer's disability did not meet the statutory test, which it set out. It did not explain the reasoning that led it to this conclusion. However, unlike Villani, supra, the Board in the present case did not misstate the applicable test.
[10] Despite the paucity of the Board's reasons, I am not persuaded that it misdirected itself in law or failed to have regard to matters that in the circumstances of this case it was bound to have considered. Its application of the relevant statutory provision to the facts before it was not unreasonable.
[11] For these reasons, I would dismiss the application for judicial review. Counsel for the Minister did not ask for costs and I would award none.
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-672-00
STYLE OF CAUSE: ADELE LUTZER
Applicant
- and -
MINISTER OF HUMAN RESOURCES
DEVELOPMENT
Respondent
DATE OF HEARING: MONDAY, MAY 6, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: LINDEN J.A.
CONCURRED IN BY: EVANS J.A.
MALONE J.A.
APPEARANCES BY: Mr.
For the Applicant
Mr.
For the Respondent
SOLICITORS OF RECORD:
For the Applicant
For the Respondent
FEDERAL COURT OF APPEAL
Date: 200205XX
Docket: A-672-00
BETWEEN:
ADELE LUTZER
Applicant
- and -
MINISTER OF HUMAN RESOURCES
DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
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