Date: 20000628
Docket: T-2204-98
BETWEEN:
GILLIAN SALLS
Applicant
AND:
THE MINISTER OF HUMAN RESOURCES
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of a decision of the Pensions Appeals Board dated October 29, 1998, denying the applicant's application for leave to appeal the decision of the Review Tribunal which held that she was not disabled within the meaning of subsection 42(2) of the Canada Pension Plan Act.
[2] The applicant, Gillian Salls, made application for Canada Pension Disability Benefits on April 25, 1996. In support of her application, she submitted a report from her physician Dr. Faulder indicating that Ms. Salls suffers from severe dorsal dyphosis, which can be described as a severe hunch in the back. In the applicant's case, it prevents her from walking upright. As reported by her physician, the condition causes chest and upper back pain with any exertion. It is a permanent condition, which will become more bothersome with advancing age. There have been adverse effects to the applicant's hands, feet and elbows which require daily medication.
[3] Ms. Sall's application for benefits was denied and, after her request for reconsideration was refused by the office of Human Resources Development Canada, she appealed to the Review Tribunal. A hearing took place before the tribunal on May 13, 1997. The applicant was present but did not have a representative.
[4] By decision dated August 4, 1997, the Review Tribunal dismissed the appeal. The facts upon which the tribunal based its conclusion is stated in its reasons as follows:
| She suffers from ankylosing spondylitis which is a chronic inflammatory condition and which causes her extreme back, neck, and head pain. The condition has caused a deformity of her spine. Her family physician, Dr. Faulder, has noted that she suffers from generalized fatigue, hypertension, GERD and specific pain in her back and neck ares. He stated that :". . . The deformity is permanent and may worsen. With advancing age the problem will be more bothersome." He also stated that : ". . . (she was) unable to work. . ." and that he ". . .cannot see her being suitable for any type of employment at any time in the future..." |
[5] Based upon these facts, the Board came to the following conclusion:
| There is no question that the condition is prolonged - it has affected her since age 23. Is her condition so severe that she is disabled and thereby unable to pursue any gainful employment on a regular basis? Dr. Faulder is of the opinion that she is not employable. The Review Tribunal must consider the combination of the pain and its physical ramifications as well as her mindset to not allow herself to be handicapped as a result of her condition. Ms. Salls has an active, working mind. Her hands seem to have recovered from arthritis to the point where she has started to make furniture for dollhouses. She has made arrangements to have her crafts sold and displayed. She has decided that she cannot pursue this business as a long-term prospect, as she will not be properly compensated for her efforts. She is somewhat limited in the amount of time she can spend on any kind of work, as she has chosen to be with her daughter and to direct her care. We cannot say that her condition at present is so severe that it would preclude her from pursuing any gainful employment. |
[6] Ms. Salls filed an application for leave to appeal to the Pension Appeals Board on September 6, 1997. By decision dated October 29, 1998, the Chairman of the Pension Appeals Board refused the application, stating his reasons as follows:
| Leave to appeal the Review Tribunal decision has to be refused. It is the function of the Review Tribunal to assess the evidence, including the applicant's, as it related to her disability. This it did and determined that her condition is not so severe at this time that it precludes her from engaging in gainful employment. In doing so, it exercised its function quite properly and committed no error. There is accordingly no basis for an appeal to the Pension Appeals Board. |
[7] The function of the Pension Appeal Board in determining an application for leave to appeal is not to determine the merits of the appeal. There is accordingly, no onus on the applicant to establish that her appeal, if allowed, will be successful. Rather, the question to which the Chairperson of the Pensions Appeal Board should have directed himself is whether there exists some arguable ground upon which the proposed appeal could succeed. In Kerth v. Canada, [1999] F.C.J. No. 1252, Madame Justice Reed made the following comments with respect to these legal principles:
| A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first, and lower, hurdle for the applicant to meet than that that must be met on the hearing of the appeal on the merits. The applicant, at the leave stage, does not have to prove his or her case. For example, in the Federal Court of Appeal decisions to which counsel for the respondent referred me, dealing with old Federal Court Rule 1107(1), the following comments are found: Kurniewicz v. Canada (Minister of Manpower & Immigration)(1974), 6 N.R. 225 at 230: |
| In order for such a motion to succeed, the applicant must satisfy the Court that there is some arguable ground upon which the proposed appeal might succeed. [Emphasis added.] |
| Consumers' Association of Canada v. Hydro Electric Power Commission of Ontario (Case No. 2)(1974), 2 N.R. 479 at 482: |
| . . . before this application can be granted, the Court must be able to see a specific question of law or jurisdiction the answer to which may lead to the setting aside of the decision or order attacked. [Emphasis added.] |
[8] In the present case, the reasons of the Pensions Appeal Board for refusing leave to appeal went beyond the fundamental question before it of whether an arguable case or question of law or jurisdiction had been raised by the application for leave to appeal. Rather, the Chairperson's decision indicates that the question he addressed was whether the Review Tribunal's decision was correct and whether the appeal would succeed if allowed to proceed. That constitutes a reviewable error of law which warrants the intervention of this Court.
[9] In my view, there is at least an arguable case here with respect to the treatment given by the Review Tribunal to the only medical evidence before it, which was the uncontroverted evidence of the applicant's physician. The tribunal appears to have accepted that evidence but at the same time reached a conclusion that the evidence did not support. Or, it could be implied that the tribunal simply disregarded the evidence before it.
[10] Furthermore, I am concerned that the effect of the applicant's lack of representation throughout this entire process has affected the fairness of the procedure. Certainly, Ms. Salls could have adduced further medical evidence in support of her leave to appeal application, but as she was not represented or assisted in the matter, she was not aware of that.
[11] For these reasons, I am setting aside the decision of the Pension Appeal Board and directing that the application for leave to appeal be referred back for reconsideration by a different Board member.
JUDGE
OTTAWA, Ontario
June 28, 2000
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