[1] In this application, the Minister of Human Resources Development seeks judicial review of the July 14, 2000 decision of the Pension Appeals Board which found the respondent disabled as of June 19, 1996. Although the Minister made a number of arguments in his factum, in oral argument, counsel primarily focussed on one issue. That issue is whether the Pension Appeals Board erred in law in having regard to socio-economic considerations, namely that the respondent lived in a small community where the primary industry was fishing and that his possibility of obtaining employment in that community was remote if not impossible.

[2] The pertinent paragraphs of the Board's reasons are the following:

Although Reed J.'s comment was unnecessary for her decision, and therefore obiter, we adopt and adapt the comments above emphasized particularly on this set of facts, having regard to the Appellant's physical limitations as well as his lack of reading and writing ability.

We therefore hold that Mr. Rice's disability is severe, and keeping in mind that Weymouth is a small community, the primary industry being fishing, and the Minister acknowledging he cannot return to his former employment, the possibility of obtaining regular gainful employment is remote, if not impossible. (page 8)

[3] It is apparent from the words "We therefore hold that Mr. Rice's disability is severe", which follow the Board's reference to Mr. Rice's physical limitations and his lack of reading and writing ability, that the Board's finding of severity was based on those considerations. The Minister does not say that it was improper for the Board to have had regard to those considerations.

[4] However, it is the Board's subsequent reference to where the respondent lived and his possibility of obtaining employment there with which the Minister takes issue.

[5] The Board's reference to the respondent's community and his possibility of obtaining employment there were not part of its severity analysis. These observations are therefore obiter dicta. For the reasons we will give, we are of the opinion these considerations were irrelevant. However, as they did not play a part in the Board's severity analysis, they are not grounds for disturbing the Board's decision.

[6] The Minister also argued that the Board made some erroneous findings of fact. However, the Minister did not rely heavily on this argument and even though it appears that the Board may have misapprehended some relatively minor pieces of evidence, we are not prepared to say its overall factual findings were patently unreasonable justifying this Court's intervention.

[7] We would therefore dismiss the application for judicial review.

[8] However, as indicated, we would take this opportunity to make the point that indeed, as the Minister has argued, socio-economic factors such as labour market conditions are irrelevant in a determination of whether an individual is disabled pursuant to subsection 42(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8. Subsection 42(2) provides:

42 (2) For the purposes of this Act,

(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,

(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and

42(2) Pour l'application de la présente loi:

a) une personne n'est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d'une invalidité physique ou mentale grave et prolongée, et pour l'application du présent alinéa

(i) une invalidité n'est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice,

(ii) une invalidité n'est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement les décès.

(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.

b) une personne est réputée être devenue ou avoir cessé d'être invalide à la date qui est déterminée, de la manière prescrite, être celle où elle est devenue ou a cessé d'être, selon le cas, invalide, mais en aucun cas une personne n'est réputée être devenue invalide à une date antérieure de plus de quinze mois à la date de la présentation d'une demande à l'égard de laquelle la détermination a été établie.

[9] The August 3, 2001 decision of Isaac J.A. in Villani v. Attorney General of Canada (2001), 205 D.L.R. (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.

[11] While the generous interpretation afforded to subparagraph 42(2)(a)(i) and the necessity to take into account the "real world" context is a more liberal approach than may have been previously taken by some Boards, there is no suggestion in Villani that socio-economic considerations such as labour market conditions are relevant in a disability assessment. Indeed, Isaac J.A. quotes, with apparent approval the Board's decision in the Minister of National Health and Welfare v. Raymond G. Russell, CCH Employment Benefits and Pension Guide Reports, Transfer Binder 1968 - 1985 at ¶ 8684, pp.6279-6280 (June 26, 1974).

The Board has always interpreted the language of the statute to mean exactly what it says, and in many cases has had to say that the fact that suitable work has not been available to an applicant is irrelevant to the question of whether or not he qualifies. However, various circumstances have been held to bear upon this question, such as age, education and aptitude (paragraph 35).

[12] While Isaac J.A. refers to the necessity of "evidence of employment efforts and possibilities" (paragraph 50), we read these words as referring to the capacity of an individual to be employed in any substantially gainful occupation, and not to whether, in the context of the labour market, it is possible to get a job.

[13] When the words of subparagraph 42 (2)(a)(i) are considered, it is apparent that they refer to the capability of the individual to regularly pursue any substantially gainful occupation. They do not refer to labour market conditions. There is other legislation such as the Employment Insurance Act which is directed at helping individuals to cope with the fluctuations in the labour market. The disability provisions of the Canada Pension Plan have a different purpose. That purpose is to provide individuals who have been disabled in accordance with the words of that Act with a disability pension because they are incapable of regularly pursuing any substantially gainful employment. The disability provisions are not a supplementary employment insurance scheme.

[14] As we have stated, the Board in this case made reference to irrelevant considerations in referring to the location where the respondent lived and his possibility of employment there. However, as these considerations were not the basis of the Board's severity determination, they do not justify this Court interfering with the Board's decision. The application for judicial review will be dismissed.

"Marshall Rothstein"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-520-00

STYLE OF CAUSE: Minister of Human Resources Development v. Milford Rice

PLACE OF HEARING: Halifax, Nova Scotia

DATE OF HEARING: January 30, 2002

REASONS FOR JUDGMENT OF THE COURT:Desjardins, Rothstein, Noël JJ.A.

RENDERED FROM THE BENCH BY: Rothstein J.A.

DATED: January 29, 2002

APPEARANCES:

Mr. John Vaissi Nagy FOR THE APPLICANT

No one appearing FOR THE RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg FOR THE APPLICANT

Deputy Attorney General of Canada

Milford Rice FOR THE RESPONDENT

Weymouth, Nova Scotia (on his own behalf)

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Canada (Minister of Human Resources Development) v. Rice, 2002 FCA 47

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2002 FCA 47