Docket: A-305-14
Citation:
2015 FCA 66
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CORAM:
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PELLETIER J.A.
WEBB J.A.
BOIVIN
J.A.
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BETWEEN:
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KIRSTEN KIRALY
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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 OF THE COURT
[1]
This is an application for judicial review of a
decision of the Social Security Tribunal, Appeal Division (SST) dated May 22,
2014. Pursuant to subsection 84(1) of the Canada Pension Plan, R.S.C.,
1985, c. C-8 (CPP) as it read immediately before April 1, 2013, the SST
conducted a de novo review of the appeal of Ms. Kirsten Kiraly (the
applicant) from a November 12, 2012 decision of the Review Tribunal. The SST
came to the same conclusion as the Review Tribunal and determined that the
applicant did not qualify for disability benefits under paragraph 44(1)(b) of
the CPP.
[2]
Our Court recently reviewed for the first time
the standard of review applicable to a decision of the SST in Atkinson v.
Canada (AG), 2014 FCA 187 at paras 22-33, [2014] F.C.J. No. 840 (QL) [Atkinson]).
It is noteworthy that the Atkinson decision involved the same
transitional procedure from the former Pension Appeal Board system to the SST
and specifically considered the definition of disability found at paragraph
42(2)(a) of the CPP which also applies in this case. Our Court found that
decisions of the SST are to be reviewed under the reasonableness standard. The
SST decision will therefore be reviewed under that standard.
[3]
The issue before the SST was whether the
applicant had a physical disability that was severe and prolonged as of the
agreed minimum qualifying period (MQP) of December 31, 2011.
[4]
In Villani v. Canada, 2001 FCA 248, [2002]
1 F.C.R. 130 [Villani] our Court found that severity must be assessed in
the “real world” context of the applicant,
considering factors such as the applicant’s age, education, language, and work
and life experience. A severe disability makes it impossible for a person to do
any type of remunerative work (Klabouch v. Canada, 2008 FCA 33, 372 N.R.
385). The threshold for an applicant to demonstrate that his or her disability
is “severe and prolonged” within the meaning of
subsection 42(2) of the CPP is thus a highly restrictive one (Atkinson,
supra, at para 3).
[5]
Although the SST accepted the medical evidence
of the applicant’s condition and her subjective experience of pain, the SST
found that the applicant had a residual capacity to work. She therefore had to
show that her medical condition prevents her from obtaining and maintaining
substantial gainful employment (Inclima v. Canada, 2003 FCA 117 at para
3, 121 A.C.W.S. (3d) 363).
[6]
The SST reached its conclusion on the basis of
the evidence adduced. It found that the applicant failed to meet her legal
obligation, as she has not sought work within her limitation that does not
involve repetitive use of her hands. The SST rejected the applicant’s
contention that the respondent must demonstrate what job the applicant is
capable of performing. It also held that the applicant bears the legal burden
throughout the proceeding. The SST finally found, on a balance of
probabilities, that the applicant’s disability was not severe, and therefore
did not consider it necessary to address the prolonged aspect of the test for
disability.
[7]
On appeal before this Court, the applicant
essentially submits that the SST acceptance of the medical evidence that she
cannot regularly use her hands in any repetitive capacity precluded its subsequent
conclusion that the applicant has some capacity to work. The applicant further
contends that this finding contradicts the analytical framework set out by our
Court in Villani, supra. Accordingly, the SST decision is unreasonable
as it fails to consider the “real world”
employment opportunities available to the applicant, given her education, past
work and life experience, and ability to regularly perform work.
[8]
With respect, I am not persuaded by the
applicant’s arguments for the following reasons.
[9]
The present case is mostly fact driven. The
record includes significant medical documentation of the applicant’s condition
both before and after she ceased to work. The SST heard, reviewed and
considered the evidence including the applicant’s testimony:
She [the applicant] testified that she was
the main caregiver for her horses, and was able to ride her horse. She also
testified, however, that she groomed the horses when she was able to. She was
not clear about how often she did this. Based on the Appellant’s [applicant’s]
evidence and the medical reports I find that the Appellant [applicant] had some
capacity to work at the MQP.
(SST decision, Applicant’s Record, vol. 1 at
para 49)
[10] While the applicant disputes the SST’s assessment of the evidence
with respect to her residual capacity to work, the applicant is essentially
attempting to convince our Court to re-weigh the evidence. This is beyond the
role of this Court on judicial review. I would also add that, contrary to the
applicant’s submissions, Villani does not stand for the proposition that
the Minister or the SST is required to identify what other employment may be within
the applicant’s limitations. (Villani at para 45 and 50).
[11] Although I am sympathetic to the applicant’s situation, I am of the view
that the SST’s decision to deny her disability benefits is not unreasonable.
The SST examined the evidence and its decision falls within the range of
possible, acceptable outcomes defensible on the facts and the law (Dunsmuir
v. New Brunswick, 2008 SCC 9 at paras 47-49, [2008] 1 S.C.R. 190).
[12]
For the above reasons, I would dismiss the
application. The respondent has not asked for its costs and so none should be
awarded.
"Richard Boivin"
“I agree
J.D. Denis Pelletier J.A.”
“I agree
Wyman W. Webb J.A.”
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