Date: 20050512
Docket: T-224-05
Citation: 2005 FC 687
Ottawa, Ontario, May 12, 2005
Present: The Honourable Madam Justice Heneghan
BETWEEN:
ANGELA ENQUIST
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mrs. Angela Enquist (the "Applicant") seeks judicial review of the decision of the Honourable Justice R.V. Deyell, a member of the Pension Appeals Board (the "Board"), designated under section 83(2.1) of the Canada Pension Plan Act, R.S.C. 1985, c. C-8, as amended (the "Act"). In that decision, dated August 13, 2004, the Board refused leave to the Applicant to appeal to the Pension Appeals Board from the decision of the Review Tribunal, dated June 4, 2004.
[2] The Applicant suffers from a number of ailments including loss of concentration, sleep and bowel disorders, memory loss, hyperactivity, depression and schizophrenia. On March 6, 2003, she applied for disability benefits from the Canada Pension Plan. Her application was supported by a medical report from her then physician, Dr. Hepburn, dated December 31, 2002.
[3] In response to a request for more information for the periods 1992 and 1994, Dr. Hepburn provided a second report dated June 6, 2003. Dr. Hepburn reviewed information from the records of Dr. Kolkind, the Applicant's family physician during that period and provided the following diagnosis of the Applicant's condition:
...Angela Enquist has suffered from recurrent bouts of depression/anxiety with a possible diagnosis of bipolar disorder and also a possibility of a personality disorder. Between 1992 and 1994, upon reviewing the chart notes, her anxiety and depression were not a prominent complaint. In the last few years, she has been stable on medications. She remains somewhat impulsive and unreliable and may, therefore, have difficulty maintaining employment.
[4] On July 12, 2003, the Applicant was advised that her application for disability benefits was refused on the basis that she had failed to show that she was disabled as of December 31, 1993. That date was determined as the date for her minimum qualifying period ("MQP") within the meaning of the Act, for the purpose of obtaining disability benefits.
[5] The Applicant sought reconsideration of this decision and that request was denied on October 10, 2003. She then appealed to the Review Tribunal. On June 3, 2004, the Tribunal held that the Applicant did not suffer from a severe and prolonged disability in 1993, that is when she met the MQP date, and continuously after that date. According to its decision, the Review Tribunal considered the medical evidence submitted by the Applicant, as well as her oral testimony and said the following:
The Appellant Mrs. Angela Enquist testified. Her main problem was depression. She was disabled from post partum depression from August 10, 1986. She had income in the years 1989 and 1990 for child care and 1992 from cleaning houseboats. Her current family physician is Dr. Bahtt [sic] and he has not given any report on her medical condition. She is currently taking only Lithium and Lorazepam medications. She does all the household chores. She currently feels good. She has not looked for any job. She is receiving welfare benefits from the Provincial Government.
[6] The Applicant sought leave to appeal the decision of the Review Tribunal by application dated June 14, 2004. Together with her application, she submitted further medical reports. The first report dated March 5, 2004 provided details about the Applicant's history of bowel disorder and confirmed the previous diagnosis of bipolar disorder and hyper- cholesterolemia. The second report, dated March 22, 2004 provided an assessment of the pathology report for a colon biopsy. The third report, dated June 8, 2004 from the Applicant's current family physician, Dr. Bhatt including a report, dated June 8, 2004, from her current family physician, Dr. Bhatt recorded that he had been meeting the Applicant for approximately two years and noted that during this time, she had been mostly stable, despite her history of bipolar disorder. He said that she "is probably not employable, and if she is, will require major occupational retraining."
[7] The Honourable Justice R.V. Deyell, sitting as a designated member of the Board, refused to grant leave to appeal. He made the following finding:
The Tribunal decision established that the date of her minimum qualifying period (M.Q.P.) was December 1993.
The medical reports filed by the Applicant do not alter that date. The Applicant has not provided reports that support her application in the relevant time frame.
The application is denied.
[8] The decision here under judicial review is one involving the exercise of discretion by the designated member of the Board, in deciding whether an appeal will proceed before the Board. In Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114 (T.D.), the Court commented on the issues involved in an application for leave to appeal to the Board. The first issue is whether the leave judge has applied the right test, that is whether the application raises an arguable case without otherwise assessing the merits of the application. The second issue is whether the decision-maker erred in law or in appreciation of the facts in determining whether an arguable case is raised. In deciding whether an arguable case is demonstrated, the leave judge may consider any new evidence submitted by an applicant.
[9] In her application for leave to appeal, the Applicant requested that the Board review her medical history and that it contact her family doctor as of the MQP, that is as of December 31, 1993.
[10] The question arising in reviewing the decision to deny leave to appeal is whether the new evidence provided by the Applicant raises an arguable case. Section 42(2)(a) of the Act provides as follows:
| (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 ...
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(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 le décès; ...
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[11] The Applicant is not challenging the determination that December 31, 2003 is her MQP date. The question is whether the decision to deny leave was reasonable in light of the new medical reports.
[12] In my opinion, there is nothing in the three new medical reports that supplements the evidence that was before the Review Tribunal in the first place. These additional reports corroborate the medical reports that were considered by the Tribunal. This medical evidence was found to be insufficient to demonstrate that the Applicant was disabled as of December 31, 1993. In his decision denying leave, the Honourable Justice Deyell found that nothing in the three new medical reports supported her application in the relevant time frame.
[13] The reasons demonstrate that the designated member concluded that the new evidence submitted by the Applicant did not give rise to an arguable case. That was the standard he was required to consider. In my opinion, the designated member considered and applied the correct test and, having regard to all the medical evidence, his conclusion is reasonable. The designated member was not required to use the words "arguable case" in reaching his decision; see Lima v. Canada (Minister of Human Resources Development), [2001] F.C.J. No. 220 (T.D.) (Q.L.).
[14] The application for judicial review is dismissed, no order as to costs.
ORDER
The application for judicial review is dismissed, no order as to costs.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-224-05
STYLE OF CAUSE: ANGELA ENQUIST
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 4, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Heneghan
DATED: May 12, 2005
APPEARANCES:
Mrs. Angela Enquist On her own behalf
Mr. Adrian Joseph For the Respondent
SOLICITORS OF RECORD:
Mrs. Angela Enquist On her own behalf
John H. Sims, Q.C.
Deputy Attorney General
of Canada For the Respondent
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