Docket: A-546-12
Citation: 2014 FCA 294
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CORAM:
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DAWSON J.A.
WEBB J.A.
SCOTT J.A.
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BETWEEN:
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RAYMOND CONNOLLY
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Applicant
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And
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT
WEBB J.A.
[1]
Raymond Connolly has filed an application for
judicial review of the decision of the Pension Appeals Board (PAB) dated
November 28, 2012 (CP28018). The PAB determined that Mr. Connolly was not
eligible for disability benefits under the Canada Pension Plan, R.S.C.
1985, c. C-8, (CPP) because he had not established that, as of his
minimum qualifying period (MQP), his disability was severe, as determined for
the purposes of the CPP. The PAB dismissed his appeal from the decision
of the Review Tribunal dated April 21, 2011. The Review Tribunal had also
concluded that he was not eligible for disability benefits under the CPP.
[2]
Raymond Connolly also brought a motion to
introduce additional evidence at the hearing of his application for judicial
review. This evidence was not before the PAB when it considered his appeal from
the Review Tribunal.
[3]
For the reasons that follow, I would dismiss his
motion to introduce additional evidence and I would dismiss his application for
judicial review, all without costs.
Motion to Introduce Additional Evidence
[4]
Raymond Connolly was seeking to introduce copies
of the following:
•
his application requesting leave to appeal to
the appeal division of the Social Security Tribunal;
•
the Arbitration Award dated June 8, 2009 in
which the arbitrator found that Raymond Connolly’s employer had just cause to
dismiss him;
•
a report entitled “Air Quality Report Robinson-Blackmore Building” dated October 2008 including appendices and photographs;
•
a letter from Eastern Health dated May 6, 2014;
and
•
a Reply of Transcontinental (a division of
Optipress GP) dated February 18, 2010 that appears to be in relation to a
complaint under the Occupational Health and Safety Act, R.S.N.L. 1990,
c. O-3.
[5]
Since this is an application for judicial review
and not an appeal, the applicable Rule under the Federal Courts Rules is
Rule 312:
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312.With leave of the Court, a party may
(a) file affidavits additional
to those provided for in rules 306 and 307;
(b)
conduct cross-examinations on affidavits additional to those provided for in
rule 308; or
(c)
file a supplementary record.
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312. Une partie peut, avec l’autorisation de la
Cour :
a) déposer des affidavits complémentaires en plus de ceux visés
aux règles 306 et 307;
b) effectuer des contre-interrogatoires au sujet des affidavits en
plus de ceux visés à la règle 308;
c) déposer un dossier complémentaire.
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[6]
In Forest Ethics Advocacy Assn. v. Canada (National Energy Board), 2014 FCA 88, [2014] F.C.J. No. 356, Stratas J.A.
outlined the requirements that must be satisfied to obtain an Order under Rule
312:
4 At
the outset, in order to obtain an order under Rule 312 the applicants must
satisfy two preliminary requirements:
(1) The evidence must be admissible on
the application for judicial review. As is well known, normally the record
before the reviewing court consists of the material that was before the decision-maker.
There are exceptions to this. See Gitxsan Treaty Society v. Hospital
Employees' Union, [2000] 1 F.C. 135 at pages 144-45 (C.A.); Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22.
(2) The evidence must be relevant to an
issue that is properly before the reviewing court. For example, certain issues
may not be able to be raised for the first time on judicial review: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association,
2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654.
5 Assuming
the applicants establish these two preliminary requirements, they must convince
the Court that it should exercise its discretion in favour of granting the
order under Rule 312. The Court exercises its discretion on the basis of the
evidence before it and proper principles.
6 In
Holy Alpha and Amega Church of Toronto v. Canada (Attorney General), 2009 FCA
101 at paragraph 2, this Court set out the principles that guide its discretion
under Rule 312. It set out certain questions relevant to whether the granting
of an order under Rule 312 is in the interests of justice:
(a) Was the evidence sought to be
adduced available when the party filed its affidavits under Rule 306 or 308, as
the case may be, or could it have been available with the exercise of due
diligence?
(b) Will the evidence assist the Court,
in the sense that it is relevant to an issue to be determined and sufficiently
probative that it could affect the result?
(c) Will the evidence cause substantial
or serious prejudice to the other party?
[7]
In Association of Universities and Colleges
of Canada and the University of Manitoba v. The Canadian Copyright Licensing
Agency Operating as “Access Copyright”, 2012
FCA 22; [2012] F.C.J. No. 93, Stratas J.A. discussed the differing roles of
administrative decision makers and the courts that review their decisions. With
respect to the admission of additional evidence by the reviewing court (that
was not before the administrative decision maker) Stratas J.A. noted that:
19 Because
of this demarcation of roles between this Court and the Copyright Board, this
Court cannot allow itself to become a forum for fact-finding on the merits of
the matter. Accordingly, as a general rule, the evidentiary record before this
Court on judicial review is restricted to the evidentiary record that was
before the Board. In other words, evidence that was not before the Board and
that goes to the merits of the matter before the Board is not admissible in an
application for judicial review in this Court. As was said by this Court in Gitxsan
Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135 at pages
144-45 (C.A.), "[t]he essential purpose of
judicial review is the review of decisions, not the determination, by trial de
novo, of questions that were not adequately canvassed in evidence at the
tribunal or trial court." See also Kallies v. Canada, 2001
FCA 376 at paragraph 3; Bekker v. Canada, 2004 FCA 186 at paragraph 11.
20 There
are a few recognized exceptions to the general rule against this Court
receiving evidence in an application for judicial review, and the list of
exceptions may not be closed. These exceptions exist only in situations where
the receipt of evidence by this Court is not inconsistent with the differing
roles of the judicial review court and the administrative decision-maker
(described in paragraphs 17-18, above). In fact, many of these exceptions tend
to facilitate or advance the role of the judicial review court without
offending the role of the administrative decision-maker. Three such exceptions
are as follows:
(a) Sometimes this Court will receive an
affidavit that provides general background in circumstances where that
information might assist it in understanding the issues relevant to the
judicial review: see, e.g., Estate of Corinne Kelley v. Canada,
2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada (Attorney General),
2005 FC 1013 at paragraphs 39-40; Chopra v. Canada (Treasury Board)
(1999), 168 F.T.R. 273 at paragraph 9. Care must be taken to ensure that the
affidavit does not go further and provide evidence relevant to the merits of
the matter decided by the administrative decision-maker, invading the role of
the latter as fact-finder and merits-decider. In this case, the applicants
invoke this exception for much of the Juliano affidavit.
(b) Sometimes affidavits are necessary
to bring to the attention of the judicial review court procedural defects that
cannot be found in the evidentiary record of the administrative decision-maker,
so that the judicial review court can fulfil its role of reviewing for
procedural unfairness: e.g, Keeprite Workers' Independent Union v.
Keeprite Products Ltd. (1980) 29 O.R. (2d) 513 (C.A.). For example, if it
were discovered that one of the parties was bribing an administrative
decision-maker, evidence of the bribe could be placed before this Court in
support of a bias argument.
(c) Sometimes an affidavit is received
on judicial review in order to highlight the complete absence of evidence
before the administrative decision-maker when it made a particular finding: Keeprite,
supra.
[8]
In this case, the documents (except the leave to
appeal application and the letter from Eastern Health) could be considered
background information related to tests done at his former place of employment
or actions related to his dismissal from employment by his former employer.
These documents were available at the time of the hearing before the PAB but
Raymond Connolly chose not to attempt to introduce them. These documents,
however, do not assist in understanding the issue that was before the PAB. The
issue before the PAB was whether Raymond Connolly was suffering from a severe
and prolonged mental or physical disability as of December 31, 2011, not what
might have caused his medical problems. These documents are of no assistance in
determining whether he was disabled as of December 31, 2011.
[9]
The letter from Eastern Health is from his
physiotherapist. This letter is dated May 6, 2014 (almost two and half years
after December 31, 2011) and does not provide any information concerning his
medical condition as of December 31, 2011 (which was the issue before the PAB).
[10]
His leave to appeal application was necessarily
created after the PAB rendered its decision and is also of no assistance in understanding
the issues in this judicial review.
[11]
As a result, I would dismiss Raymond Connolly’s
motion to introduce additional evidence, without costs.
Decision of the PAB
[12]
The PAB reviewed the testimony of Raymond
Connolly and the medical evidence that was before it. The PAB noted that:
[27] The Board has held consistently that
the term “severe” relates to the capacity
of an applicant to work. The test is not whether an applicant can do his or her
former job, but rather it is whether he or she has the ability to perform some
meaningful employment, even part time or sedentary.
[13]
The PAB concluded that Raymond Connolly had “failed to establish that as of the MQP date his disability was
‘severe’ as that term is defined in the CPP” (paragraph 28 of the
decision of the PAB).
Standard of Review
[14]
In this case there was no argument that the PAB
did not apply the correct test to determine if Raymond Connolly’s disability
was severe for the purposes of the CPP. The standard of review
applicable to the factual findings made by the PAB is reasonableness. This
Court will not reweigh the evidence and can only interfere with the decision of
the PAB if the decision is unreasonable (Nahajowich v. Canada (Attorney General), 2011 FCA 293, [2011] F.C.J. No. 1474).
Issues
[15]
Raymond Connolly’s memorandum of fact and law is
essentially a request for this Court to reweigh the evidence and arrive at a
different conclusion than the PAB. However, as noted above this is not the role
of this Court.
[16]
In his memorandum Raymond Connolly did, however,
raise the issue that the PAB did not refer to the letter from his doctor, Dr.
McCarthy, dated November 3, 2010. It also appeared from the hearing that the
PAB misquoted a sentence from the report of Dr. Duguid dated February 2, 2009. The
issue for this Court is whether this omission and this misstatement render the
decision of the PAB unreasonable.
[17]
Raymond Connolly, in his memorandum of fact and
law, also submitted that the PAB had erred by “disregarding
Dr. Baribeau’s potential bias” since “he is an
employee of HRDC”. If the PAB would have considered the evidence of Dr.
Baribeau, this would be a question of what weight should be given to his
testimony. However, the PAB does not refer to the evidence of Dr. Baribeau in
its reasons. There is no basis for this argument of Raymond Connolly.
Analysis
[18]
The PAB referred to various reports and letters
from Dr. McCarthy. The most recent correspondence cited by the PAB was the
letter dated September 21, 2009 (the September Letter) to Service Canada that
she wrote in support of Raymond Connolly’s application for a disability
pension. In her concluding paragraph she stated that:
Mr. Connolly’s diagnosis for full recovery is
guarded. It appears that he has had chest wall pain for a number of years which
has not improved. Potentially he may have some stabilization of his symptoms if
he is able to obtain further treatment perhaps in the form of active release
therapy or acupuncture. I think it highly unlikely that he will recover to the
extent of being able to work in any capacity.
[19]
The last sentence was quoted by the PAB in
paragraph 16 of its reasons. Dr. McCarthy also wrote another letter dated
November 3, 2010 (the November Letter) which was presented to the PAB. The PAB
did not refer to this subsequent letter in its reasons. In this letter Dr.
McCarthy stated that:
As you are aware, Mr. Connolly has applied for
CPP disability benefits and long term disability from Manulife Financial. I
understand you are writing for clarification regarding a report sent to Service
Canada on September 21, 2009. At this time, I indicated that I thought it was
highly unlikely that Mr. Connolly would recover to the extent of being able to
work in any capacity. Certainly, Mr. Connolly’s symptoms have been of a long term
nature. I did state that he may potentially have some stabilization of his
symptoms if he was able to obtain further treatment, for example, physiotherapy
or active release therapy or acupuncture. Mr. Connolly has been unsuccessful in
obtaining these treatments through Worker’s Health and Safety as well as other
avenues. Given the length of time that has elapsed since the beginning of his
symptoms, he would be an unlikely candidate for full recovery. Therefore, I can
say with confidence that Mr. Connolly’s disability is prolonged.
The other aspect of disability is the severity
of the patient’s symptoms. Mr. Connolly has had severe chest and back pain
which prevents him from doing many daily duties as well as any gainful
employment. His work related and environmental sensitivities and allergies are
severe and prevent him from returning to his previous employment in any
capacity.
[20]
In Barrington v. Institute of Chartered Accountants of Ontario, 2011 ONCA 409, [2011] O.J. No. 2378, Karakatsanis J.A.
(as she then was), writing on behalf of the Ontario Court of Appeal stated
that:
114 A tribunal
is not required to refer to all the evidence or to answer every submission. In
the words of this Court in Clifford v. Ontario Municipal Employee Retirement
System (2009), 98 O.R. (3d) 210 (C.A.), at para. 29, leave to appeal
refused [2009] S.C.C.A. No. 461, the DC was required to identify the "path" taken to reach its decision. It
was not necessary to describe every landmark along the way.
[21]
Therefore it is not necessary for the PAB to
refer to each document that was presented to it. It should also be noted that
the November Letter was a clarification of the September Letter. The only
additional fact that was included in the November Letter was that Mr. Connolly
was unable to obtain the treatments that Dr. McCarthy had referred to in the
September Letter.
[22]
Dr. Thomas Loane had been retained to provide an
independent medical report on Raymond Connolly. As part of his report, dated
July 20, 2011, Dr. Loane was asked to provide his “opinion
as to the diagnosis, course of treatment, and prognosis” submitted by
Dr. McCarthy. In his response, Dr. Loane referred to the November Letter. After
reviewing this letter and the other documents that were submitted to him and
examining Mr. Connolly, Dr. Loane concluded, at page 16 of his report (page 298
of the Respondent’s Motion Record) that:
…In general, however, I do not see any
significant illness or injury that should prevent him from working. Initially,
there may be some modifications for heavier lifting activities until his
condition is appropriately treated.
[23]
The PAB referred to the report of Dr. Loane and
in particular quoted the summary which included these last two sentences. In Inclima
v. Canada (Attorney General), 2003 FCA 117, [2003] F.C.J. No. 378,
Pelletier J.A., on behalf of this Court, stated that:
2 Subsection
42(2) of Canada Pension Plan, supra, says that a person is
severely disabled if that person " is
incapable regularly of pursuing any substantially gainful occupation".
In Villani v Canada [2002] 1 F.C. 130 at paragraph 38, this court
indicated that severe disability rendered an applicant incapable of pursuing
with consistent frequency any truly remunerative employment.
3 This
was put into context in paragraph 50 of the same decision where the following
appears:
This restatement of the approach to the
definition of disability does not mean that everyone with a health problem who
has some difficulty finding and keeping a job is entitled to a disability
pension. Claimants still must be able to demonstrate that they suffer from a
"serious and prolonged disability" that renders them "incapable
regularly of pursuing any substantially gainful occupation". Medical evidence
will still be needed as will evidence of employment efforts and possibilities.
(emphasis in original)
Consequently, an applicant who seeks to bring
himself within the definition of severe disability must not only show that he
(or she) has a serious health problem but where, as here, there is evidence of
work capacity, must also show that efforts at obtaining and maintaining
employment have been unsuccessful by reason of that health condition.
[24]
Therefore there was evidence before the PAB that
would support a finding that Mr. Connolly was capable of some form of
employment. The PAB acknowledged the contrary opinion of Dr. McCarthy in
paragraph 24 of its reasons but accepted the evidence of the other medical
practitioners and found that Mr. Connolly had failed to establish that his
disability was severe for the purposes of the CPP. As noted above, it is
not our role to reweigh the evidence. A reasonableness standard means that
there may be more than one possible conclusion that could be considered to be
reasonable (Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1
S.C.R. 761, at paragraph 41). Accepting the evidence of certain witnesses over
that of other witnesses does not render the decision unreasonable.
[25]
As a result, the failure of the PAB to
specifically refer to the November Letter would not render the decision of the
PAB unreasonable.
[26]
Raymond Connolly also referred to the following
comments of the PAB in relation to the report of Dr. Nigel Duguid:
[14] On February 2, 2009, Dr. Nigel
Duguid, a respirologist, was consulted for the Appellant’s chest pain of five
years duration. He noted that since Mr. Connolly quit work, these symptoms have
improved considerably….
[27]
This comment of Dr. Duguid is at the end of the
first paragraph of his report. The statement should be viewed in the context of
the entire first paragraph, which was as follows:
He has in the past been working as a printer
and approximately eight years ago he developed symptoms of itching and welts of
an urticarial nature on his arms. These bothered him over a number of years and
he has had allergy testing with no allergens being identified and is shortly
scheduled to see one of the dermatologists. For about five years now he has
been complaining of chest pains. These chest pains sound musculoskeletal in
type. They are present on an almost daily basis and is located in the left
chest. It appears that there are three different locations in the left chest
where he has symptoms. There is sometimes chest wall tenderness. His chest may
be particularly bad in the morning when he wakens, they tend to be aggravated
by deep inspiration and relieved by ice. They are really very chronic. He has
had problems with his nose and indeed was having problems with bloody nasal
discharge. He has subsequently seen Dr. Lee and has been told that he has
vasomotor rhinitis. Since moving out of the workplace there has been
considerable relief of these symptoms. (emphasis
added)
[28]
The reference to his symptoms improving in Dr.
Duguid’s report appears to relate to Mr. Connolly’s problems with his nose, not
his chest pains. Dr. Duguid’s final conclusion was that he “would be very pessimistic that he could reasonably be expected
to resume work in similar environments” (page 2 of the report of Dr.
Duguid, page 208 of the Respondent’s Motion Record).
[29]
The error made by the PAB in misstating the reference
by Dr. Duguid to Mr. Connolly’s improving conditions, does not render the
decision of the PAB unreasonable. The issue for the PAB was whether he was
disabled, not whether his conditions were improving. As well, the test under
the CPP is whether Mr. Connolly is capable of any employment, not just
the same employment that he was carrying on previously.
[30]
The failure of the PAB to specifically refer to
the November Letter and the misstatement by the PAB in relation to comments of
Dr. Duguid on his improving condition do not, individually or collectively,
render the decision of the PAB unreasonable. There was medical evidence before
the PAB to support their conclusions.
[31]
As a result, I would dismiss Raymond Connolly’s
application for judicial review. Since the Respondent has asked that this
application be dismissed without costs, no costs will be awarded.
"Wyman W. Webb"
“I agree
Eleanor
R. Dawson J.A.”
“I agree
A.F. Scott J.A.”
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