Docket:
A-47-13
Citation: 2014
FCA 95
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CORAM:
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BLAIS C.J.
SHARLOW J.A.
STRATAS J.A.
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BETWEEN:
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BIANCA TERESA D'ERRICO
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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
STRATAS J.A.
[1]
Ms. D’Errico applies for
judicial review of the Pension Appeals Board’s decision no.CP27842 dated
November 14, 2012.
A. The basic
facts
[2]
On August 12, 2004, Ms.
D’Errico was in a motor vehicle accident that caused her soft tissue injuries,
depression and myofascial pain syndrome. In 2008, she applied for a disability
pension under the Canada Pension Plan, R.S.C. 1985, c. C-8. The Minister
of Human Resources and Skills Development denied her application and her
request for reconsideration. On December 14, 2010, a Review Tribunal dismissed
her appeal, as did the Board on further appeal.
B. The Board’s
decision
[3]
The question before the
Board was whether Ms. D’Errico had a severe and prolonged disability on or
before her minimum qualifying period, which was December 31, 2009. In cursory
reasons, the Board appears to have held that Ms. D’Errico’s disability was not
“severe” as she was “capable of substantially gainful employment” (at paragraph
10). As I understand the Board’s reasons, it based its decision on the fact
that Ms. D’Errico had been taking yoga for several years to deal with her
symptoms and, near the time of the Board’s decision but well after her minimum
qualifying period, she had been employed on a minimal part-time basis as a yoga
instructor (at paragraph 9).
C. Disability benefits under the Plan: a
brief review of the law
[4]
Under subparagraph 42(2)(a)(i)
of the Plan, a person has a “severe” disability if she is “incapable
regularly of pursuing any substantially gainful occupation.” This Court has
interpreted this requirement as meaning an inability to pursue “with consistent
frequency” or “regularly” any “truly remunerative occupation”: Villani v. Canada (Attorney General), 2001 FCA 248, [2002] 1 F.C. 130 at paragraphs 38 and 42.
This legal test for severity must be “applied with some degree of reference to
the ‘real world’,” with a view to considering the claimant’s employability
based on education, employment background and daily activities: Villani
at paragraphs 38 and 39. Where there is evidence of a capacity to work, the
claimant must establish she has tried to obtain and maintain employment but has
been thwarted by her health problems: Canada (Attorney General) v.
Ryall, 2008 FCA 164 at paragraph 5.
[5]
Under subparagraph 42(2)(a)(ii),
a person’s disability is “prolonged” if it is “likely to be long continued and
of indefinite duration or is likely to result in death.”
D. How this
Court is to review the Board’s decision
[6]
In this Court, we are to
review the Board’s decision on the basis of “reasonableness,” i.e.,
whether the outcome the Board reached is acceptable and defensible on the facts
and the law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[7]
Given the wording of
subparagraphs 42(2)(a)(i) and (ii) and the case law summarized in my
review of the law, the range of outcomes that the Board can reach is somewhat
constrained: if the Board does not apply these legal standards, its decision
cannot be acceptable or defensible on the law.
E. Conducting
reasonableness review of the Board’s decision
[8]
In my view, the Board’s
decision is unreasonable.
[9]
First, in several respects,
the Board did not apply the applicable legal standards:
•
The Board (at paragraph 7)
appears to have latched onto the Review Tribunal’s reasons rather than
conducting its own de novo analysis, as it was required to do.
•
The Board (at paragraph 10)
held that Ms. D’Errico is “capable of substantially gainful employment.” It did
not ask itself whether she was capable of “regularly” pursuing substantially
gainful employment.
•
The Board did not assess
whether Ms. D’Errico had a “severe” and “prolonged” disability. Instead, the
Board fastened upon one main consideration – the fact that she had been doing
yoga – and seems to have assumed this alone meant that she did not satisfy the
applicable legal standards for disability benefits (at paragraph 9).
•
The Board failed to examine
her condition at the time of her minimum qualifying period and afterward.
Indeed, it looked only at her more recent condition, noting (at paragraph 9) that
she has been recently employed as a yoga instructor. It did not note, however,
that this was only for a very limited time per week at $75 per week.
•
The Board did not assess
whether $75 a week was “substantially gainful” employment or Ms. D’Errico could
obtain other “substantially gainful” employment.
[10]
I acknowledge Dunsmuir,
supra at paragraph 48 and the need for this Court to uphold an outcome
on the basis of the reasons that could have been given. But I also acknowledge
the later holding in Alberta (Information and Privacy Commissioner) v.
Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paragraph
54 to the effect that the power to uphold an outcome is “not a ‘carte
blanche’ to reformulate a tribunal’s decision in a way that casts aside an
unreasonable chain of analysis in favour of the court’s own rationale for the
result.” In any event, as will be seen, I doubt whether the Board could have
reached the outcome it did on the basis of this record.
[11]
Dunsmuir, supra also makes it clear that an
administrative decision is liable to be quashed if it lacks justification. The
Board’s reasons do not show that it grappled with the medical evidence to see
if the legal test was met. Indeed, aside from fastening onto Ms. D’Errico’s
yoga activities, the Board’s reasons do not allow this Court to understand why
the Board made the decision it did on the basis of the medical evidence before
it.
[12]
In support of her submission
that the reasons of the Board showed adequate justification, counsel for the
Attorney General cited Newfoundland and Labrador Nurses' Union v. Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. In that
case, a labour arbitrator simply offered a conclusion with little, if any,
analysis on the basis of a limited record.
[13]
In my view, in these
circumstances Newfoundland Nurses is distinguishable. It is one thing
for an administrative decision-maker to issue sparse reasons to sophisticated
parties who regularly engage in labour arbitration and, thus, are familiar with
the legal and factual landscape. It is quite another to issue adverse reasons of
this sort to a person like Ms. D’Errico, on a record that calls for explanation.
F. Remedy
[14]
Ms. D’Errico asks this Court
to quash the Board’s decision and grant her disability benefits. In effect,
this is the remedy of certiorari and mandamus.
[15]
Normally, in situations such
as these, the Court grants certiorari and remits the matter to the Board
for reconsideration. It is for the Board to decide the merits of cases, not
this Court.
[16]
Normally, this Court awards mandamus
only where the outcome of the case on the merits is a foregone conclusion – in
other words the evidence can lead only to one result. However, there are exceptions
in the authorities: LeBon v. Canada (Minister of Public Safety and Emergency
Preparedness), 2013 FCA 55 and the so-called “directed verdict” cases
referred to; see also Wihksne v. Canada (Attorney General), 2002 FCA
356, Canada (Attorney General) v. Richard, 2008 FCA 69 and Canada
(Minister of Human Resources Development) v. Tait, 2006 FCA 380 where this
Court has issued directions on particular issues in conjunction with a remittal
for re-decision. One recognized exception is where there has been substantial
delay and the additional delay caused by remitting the matter to the
administrative decision-maker for re-decision threatens to bring the
administration of justice into disrepute: Pointon v. British Columbia
(Superintendent of Motor Vehicles), 2002 BCCA 516; Norgard v. Anmore
(Village), 2009 BCSC 823 at paragraph 46; LeBon, supra at
paragraph 14. In such circumstances, the Court exceptionally may direct that a
certain result be reached.
[17]
The word “exceptionally”
recognizes that administrative tribunals should be allowed another chance to
decide the merits of the matter and not have the reviewing court do it for
them. But in certain cases, the circumstances support resort to the latter
option.
[18]
Here, the threshold of
exceptionality is met. The delay is substantial – despite the fact that this is
an administrative regime intended to provide rapid determinations, Ms. D’Errico
applied for benefits some six years ago. If we remit this matter for re-decision
and if a party then applies for judicial review, a further two years could
pass, bringing the total to eight years. As we shall see, the record shows the
prejudice that would be caused by further delay and there is sparse evidence in
support of the outcome reached by the Board. Finally, Ms. D’Errico is not
guilty of any unreasonable delay.
[19]
In my view, the nature of
the benefits within this regulatory scheme also factors into our discretion.
These are benefits meant to address a very serious condition, one that prevents
the earning of meaningful income to sustain oneself. Parliament could not have
intended the final disposition of disability benefits in these circumstances to
take eight years.
[20]
Overall, as a majority of
the Supreme Court recognized in a different context, “remitting the issue to
the tribunal may undermine the goal of expedient and cost-efficient decision
making, which often motivates the creation of specialized administrative
tribunals in the first place”: Alberta Teachers’ Association, supra
at paragraph 55.
[21]
In light of these
considerations and the circumstances of this case, it is appropriate that this
Court make its own assessment on the record before it in this case and direct
the result that should follow on the facts and the law.
[22]
Here, the record shows that
Ms. D’Errico’s disability was “severe” at the time of the minimum qualifying
period. An earlier medical diagnosis shows that her extremely painful neck problem
was “chronic” and “easily aggravated” by sedentary work such as deskwork, and
later reports do not rebut this (see appeal book at page 133). Other reports include
the following comments and observations: “considerable distress and persistent
pain,” ongoing severe limitations in efforts to return to work or school, “not
fit to work,” no further improvement anticipated, difficulty in doing even
limited hours of work per week, and “a significant [negative] influence on her
job prospects and ability to partake in desk work” (see appeal book, pages 141,
149, 154, 158, 163 and 166).
[23]
In my view, one medical
report in 2012 sheds some light on her condition at the end of the minimum
qualifying period. After repeating many of the observations made by others near
the time of the minimum qualifying period, the report describes her overall
abilities as “less than sedentary.”
[24]
On balance, the medical
reports also support a finding that the disability is “prolonged” within the
meaning of the legal test. Given the minimum qualifying period of December 31,
2009, the most relevant evidence is that of Dr. Barss in his medical report
dated July 26, 2008. Dr. Barss opined that he did not anticipate any further
improvement to Ms. D’Errico’s already severe disability. While other reports before
the end of the minimum qualifying period guardedly suggest the possibility of
her condition improving, they have a speculative tone.
[25]
The record shows that
despite numerous attempts to pursue work before the minimum qualifying period, Ms.
D’Errico’s disability prevented her from pursuing on a regular basis sedentary
part-time work. The work she was able to pursue only recently – part-time yoga
instruction at $75 a week – was neither regular nor substantially gainful. Some
other work she tried to do intermittently in the year leading up to her minimum
qualifying period paid her $50-$160 per week for between 2-8 hours of work per
week. The record also shows that when she tries to work, her condition worsens
from its already poor state.
[26]
Applying a real world
perspective to the evidence around the time of her minimum qualifying period
(December 31, 2009) – i.e., Ms. D’Errico’s employability based on
education, employment background, daily activities, and, importantly in this
case, her actual real world attempts to work – Ms. D’Errico was unable to
pursue “with consistent frequency” or “regularly” any “truly remunerative
occupation.” Overall, she meets the test for disability benefits under the Plan.
In my view, especially given Dr. Barss’ July 26, 2008 medical report, Mr.
D’Errico was “disabled” within the meaning of the Plan as of her application
date, April 30, 2008.
G. Proposed
disposition
[27]
The Board no longer exists.
Its successor is the Social Security Tribunal. Therefore, in light of the foregoing
reasons, I would allow the application for judicial review, set aside the
decision of the Board and direct the appropriate division of the Social
Security Tribunal to grant Ms. D’Errico’s appeal of the decision of the Review
Tribunal and make an order granting her application for disability benefits
dated April 30, 2008 on the basis that she was disabled at that time. Ms.
D’Errico shall have her costs of the application.
"David Stratas"
“I agree
Pierre
Blais C.J.”
“I agree
K.
Sharlow J.A.”
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