Date: 20020912
Docket: A-52-02
Neutral citation: 2002 FCA 321
Present: Décary J.A.
Sharlow J.A.
Pelletier J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
SYLVIA HARMER
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario on September 12, 2002.
REASONS FOR ORDER BY: SHARLOW J.A
CONCURRED IN BY: DÉCARY J.A.
PELLETIER J.A.
Date: 20020912
Docket: A-52-02
Neutral citation: 2002 FCA 321
Present: Décary J.A.
Sharlow J.A.
Pelletier J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
SYLVIA HARMER
Respondent
REASONS FOR ORDER
Sharlow J.A.
[1] I have concluded, based on the following reasons, that this application for judicial review should be dismissed as moot.
[2] The respondent Sylvia Harmer was born on January 12, 1937. On reaching 60 years of age in 1997, she applied for and was granted a reduced retirement pension under the Canada Pension Plan, R.S.C. 1985, c. C-8 (a full pension not being available to her until age 65). In June of 1998, Ms. Harmer applied for a disability pension, which would have been greater than her retirement pension. The provisions of the Canada Pension Plan provide that a person cannot receive a retirement pension and a disability pension at the same time. Ms. Harmer was apparently unaware of that provision, but eventually it was determined that if she was found to be entitled to a disability pension, she would be able to request cancellation of the retirement pension.
[3] The basis of Ms. Harmer's claim for a disability pension was that she suffered pain in her knee, hip and lumbar spine that apparently originated with a fall in November of 1996. In November of 1997, she could no longer bear the pain and quit working. In late November she fell again and broke her hip. At that time she was almost 60 years of age. There was some evidence that she might have been able to undertaken sedentary work despite her injury, but no such work was available in the area where she lived.
[4] Generally, a person is entitled to a disability pension if they meet certain statutory conditions, one of which is the existence of a "severe and prolonged disability", a phrase that is defined in the Canada Pension Plan. The leading case on the meaning of "severe and prolonged disability" is Villani v. AGC, [2002] 1 F.C. 130, (2001), 275 N.R. 324, 205 D.L.R. (4th) 58 (C.A.). The Pension Appeals Board, citing that case, indicated that it considered Ms. Harmer's age, past work, life experience, employment efforts and employment possibilities. In a decision dated October 18, 2001, the Pension Appeals board concluded that as of August 31, 1997, Ms. Harmer met the statutory requirements for a disability pension.
[5] On January 31, 2002, the Minister commenced an application for judicial review of the decision of the Pension Appeals Board on the basis that the Pension Appeals Board erred in law in determining that Ms. Harmer was disabled, and also erred in law in taking into account socio-economic conditions as relevant considerations for determining disability under the "Canada Pension Plan." Ms. Harmer filed a notice of appearance, signifying her intention to oppose the application. Ms. Harmer is not represented by counsel.
[6] For reasons that are not now relevant, the Minister failed to file an affidavit within the time permitted by the Federal Court Rules, 1998, SOR/98-106. On May 8, 2002, the Minister filed a notice of motion seeking an extension of time to file an affidavit.
[7] According to the material filed in support of that motion, Ms. Harmer had by then received a retroactive disability pension payment but her disability pension had ceased when she became 65 years of age and again became entitled to a retirement pension. Therefore, Ms. Harmer has no concern about any continuing eligibility for disability benefits. Her only practical concern, if the decision of the Pension Appeals Board is set aside, would be that the Minister could require her to repay the disability benefits she has received. However, according to a letter to Ms. Harmer from counsel for the Minister, the Minister has undertaken not to seek repayment of her disability benefits, whatever the outcome of the judicial review. On the strength of that undertaking, Ms. Harmer consented to the extension of time for the filing of the affidavits.
[8] The motion for an extension of time came before Mr. Justice Décary on May 15, 2002. He did not deal with the motion. Instead, he made the following direction:
| As the applicant has undertaken not to seek repayment of the disability benefits money received by the respondent, this proceeding appears to be moot. Please obtain counsel's view on this subject without proceeding further in this file.
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[9] On August 9, 2002, counsel for the Minister submitted a letter to the Court which states in part as follows:
| ... the undertaking to not seek repayment of the disability benefits money received by the Respondent does not render the proceedings moot in that it continues to represent a live controversy.
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The Applicant submits that where an error of law is alleged, the right to seek judicial review is not eliminated simply because the Minister invokes his discretion to not stay benefits pending judicial review pursuant to section 86.1 of the Canada Pension Plan or its discretion not to seek repayment of monies paid to the Respondent or does not contest her appeal confirming her entitlement to a disability benefit. In this particular matter, the Minister's position remains that the Board erred in law in considering socio-economic factors as relevant considerations for the purposes of determining disability under section 42 of the Canada Pension Plan.
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The Applicant wishes to proceed with its application for judicial review solely on the grounds that the Pension Appeals Board erred in law in considering socio-economic factors as relevant considerations. Being mindful of the concern for judicial economy, the Applicant seeks to have the matter resolved on consent. This is proposed on the basis that the Minister would not contest disability at the Pension Appeals Board. The Minister submits that the benefits of clarifying the law, in this expeditious manner, is a prudent use of judicial resources with respect to an issue that is not entirely confined to the particular facts of this judicial review and to the evidence before the Court.
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[10] I assume from these comments that the Minister continues to stand by the undertaking not to seek repayment of Ms. Harmer's disability benefits.
[11] Submitted with this letter is a form of order to which Ms. Harmer has signified her consent. The order reads as follows:
| 1. The decision of the Pension Appeals Board dated October 18, 2001, and communicated to the Applicant on or about January 3, 2002, permitting the Respondent's appeal and awarding disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 for reasons rendered on the same date from the Pension Appeals Board be set aside, on the basis of an error of law in considering socio-economic factors as relevant considerations for the purposes of determining disability under the Canada Pension Plan.
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2. This matter is referred back for re-determination by a differently constituted panel of the Pension Appeals Board.
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3. The Pension Appeals Board shall be provided with a copy of the Order issued by this Honourable Court by the Applicant.
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[12] Thus, the Minister wishes to have the decision of the Pension Appeals Board quashed on the basis of a single ground, which is that the Pension Appeals Board erred in law in taking into account the socio-economic conditions as relevant considerations for determining disability under the Canada Pension Plan.
[13] Having considered carefully the submissions of counsel for the Minister, I have concluded that this application for judicial review is moot. The decision of the Pension Appeals Board is that Ms. Harmer is entitled to a disability pension as of August 31, 1997. According to the Minister, Ms. Harmer has been paid the disability pension to which she was legally entitled by virtue of the decision of the Pension Appeals Board. The Minister, by undertaking not to seek repayment of the disability benefits, does not seek to reverse the practical effect of the decision. With that undertaking in hand, Ms. Harmer has no further interest in this litigation. Therefore, as a matter of fact, there is in fact no live controversy between the Minister and Ms. Harmer.
[14] However, the Minister wishes to establish that in finding Ms. Harmer to have a disability that was "severe and prolonged" the Pension Appeals Board should not have considered socio-economic factors. The question, then, is whether the Minister's application for judicial review ought to be dismissed for mootness or allowed to continue (in which case there would appear to be no reason not to allow the application and make the order requested by the Minister and consented to by Ms. Harmer).
[15] The Court may, in its discretion, permit a proceeding to continue despite its mootness if circumstances warrant: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46. It seems to me that the most important factors to be considered in determining whether this application should be dismissed for mootness are the presence of an adversarial context and the concern for judicial economy.
[16] There is no adversarial context in this case. Ms. Harmer, because of the expiry of her entitlement to the disability pension upon attaining the age of 65, and because of the Minister's undertaking not to seek repayment of disability benefits paid to her, has no pecuniary or other real interest in the legal issue that the Minister considers to be so important. Whether or not the Minister succeeds in this application is of no concern to her. This matter will not be argued, in this Court or in a new proceeding in the Pension Appeals Board, by two parties who are clearly adverse in interest.
[17] As to judicial economy, it is true that allowing the application on the basis of the consent order would remove the file from this Court, but it would require the Pension Appeals Board to conduct a new hearing on a matter that will have no practical consequences to the parties.
[18] I have not ignored the Minister's concern about the importance of the principle the Minister seeks to establish, which is that for purposes of the Canada Pension Plan, socio-economic (or labour market) factors are not relevant to the determination of a "severe and prolonged disability". However, I find it impossible to believe that this issue will not arise in the context of future cases. The Minister should take considerable comfort from the following comments of this Court in Canada (Minister of Human Resources Development) v. Rice (2002), 288 N.R. 34 (C.A.) at paragraphs 8 to 13:
| [8] ... 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:
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| 42 (2) For the purposes of this Act,
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42(2) Pour l'application de la présente loi:
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(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,
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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
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(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
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(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,
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(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
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(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.
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(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.
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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.
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| [9] The August 3, 2001 decision of Isaac J.A. in Villani v. Attorney General of Canada (2001), 205 D.L.R. (4th) 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.
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[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.
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[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 para. 8684, pp. 6279-6280 (June 26, 1974).
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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).
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[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.
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[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.
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[19] Taking all of these considerations into account, I would dismiss the Minister's motion for an extension of time for filing the affidavits and I would dismiss this application for judicial review on the ground of mootness.
"K. Sharlow"
J.A.
"I agree
Robert Décary J.A."
"I agree
J.D.Denis Pelletier J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-52-02
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT and SYLVIA HARMER
DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER BY: The Honourable Justice Sharlow
DATED: September 12, 2002
WRITTEN REPRESENTATIONS BY:
Julie Adair For the Appellant
Sylvia Harmer On her own behalf
SOLICITORS OF RECORD:
MORRIS ROSENBERG For the Appellant
DEPUTY ATTORNEY GENERAL
OTTAWA, ONTARIO
SYLVIA HARMER For the Respondent (On her own behalf)
PEMBROKE, ONTARIO
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