Date: 20010614
Docket: T-1842-99
Neutral Citation: 2001 FCT 638
Between:
MANJIT KAUR BAGRI
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] The applicant seeks judicial review of a decision made by Mr. Justice Kinsman, a member of the Pension Appeals Board (the PAB) dated June 29, 1999, refusing leave to appeal a decision of the Pension Review Tribunal (the PRT), dated August 11, 1998. The applicant's application for disability benefits was denied on February 25, 1997.
[2] The applicant appealed to the Minister of Human Resources Development and the appeal was dismissed on May 21, 1997. The applicant then appealed to the PRT, where her appeal was dismissed on August 11, 1998. The PRT held that the applicant was not disabled within the meaning of subsection 42(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the CPP). All of these denials were based on the finding that the applicant did not have a "severe and prolonged" disability as of April 1994 because she was not kept from "working regularly at any job" at that time. The applicant finally sought leave to appeal the decision of the PRT, which was denied by Mr. Justice Kinsman on June 29, 1999.
[3] The relevant paragraphs of the impugned decision read as follows:
I have carefully reviewed the facts and medical reports presented to the Tribunal, as well as the grounds of Application for Leave to Appeal.
As the Tribunal has pointed out, she is required under the provisions of the Canada Pension Plan to establish she was disabled in April 1994 to be eligible for pension.
The medical evidence and indeed her own evidence is that she worked eight hours a day as a normal employee from October to December in the years 1994 and 1995, and although she states this was for rehabilitative purposes, nevertheless, she was capable of carrying out these duties after the expiry of her eligibility period.
No reversible error is indicated on the part of the Tribunal.
[4] The applicant essentially argues that the PAB erred in finding that there was no possible reversible error. The applicant also submits that the PAB erred in failing to address the medical evidence that corroborated the applicant's oral evidence that the return to work was for medical purposes.
[5] The disability pension replaces income for those contributors determined to be "disabled" within the statutory definition. A person is disabled in the sense contemplated by subsection 42(2) of the CPP if he or she is determined to have a "severe and prolonged mental or physical disability". A disability will be deemed "severe" where a person is incapable "regularly of pursuing any substantially gainful occupation". Subsection 42(2) reads:
| 42. (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
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| 42. (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,
[. . .]
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[6] Pursuant to subsections 83(1) and 83(2) of the CPP, the Chairman or the Vice-Chairman of the PAB have the statutory authority to grant or refuse leave to appeal. A decision rendered in this respect is a discretionary one which, to the extent that the tribunal acts within the bounds of its jurisdiction, merits a high degree of deference: [1980] 1 S.C.R. 639">Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639 at 647 and MacDonald v. City of Montreal, [1986] 1 S.C.R. 460 at 507. Differently put, unless the PAB considered irrelevant factors or acted in some way contrary to the law, the Court should treat its decision with deference: Martin v. The Minister of Human Resources Development (March 6, 1998), T-2588-97.
[7] In Callihoo v. Canada (Attorney General), [2000] F.C.J. No. 612 (T.D.) (QL), after an extensive review of the case law, MacKay J. states at paragraph [22]:
In the absence of significant new or additional evidence not considered by the Review Tribunal, an application for leave may raise an arguable case where the leave decision maker finds the application raises a question of an error of law, measured by a standard of correctness, or an error of significant fact that is unreasonable or perverse in light of the evidence. The decision maker here found no such error is raised by the application for leave. That decision on the leave application does not contain an error that would be a basis for the Court to intervene.
[8] In the case at bar, I cannot agree that the PAB erred in refusing to grant leave to appeal. Contrary to the applicant's view, I believe that the PRT did ask itself the "correct" question, that is, whether the applicant was "capable of regularly pursuing a substantially gainful occupation". However, in light of the uncontradicted evidence on the record showing that the applicant did regularly and successfully work from October 17, 1994 to November 30, 1995, for eight hours a day, 40 hours a week, with "(g)ood attendance" and "(n)o absences for medical reasons", it simply concluded that the answer to that question was "yes". As such, I find no reviewable error in the PAB refusing to grant leave on that basis.
[9] Furthermore, in light of the PAB's repeated reference to "the medical evidence" I find no basis for the applicant's contention that it disregarded evidence on file when it observed: "although she (the applicant) states this was for rehabilitative purposes".
[10] For all the above reasons, the intervention of this Court is not warranted and the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
June 14, 2001
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