Davies v. Canada (Minister of Human Resources Development), docket T-1789-98

Date: 19991007

Docket: T-1789-98

BETWEEN:

     DANIEL DAVIES

     Applicant

     - and -

     THE MINISTER OF HUMAN RESOURCES DEVELOPMENT

     Respondent

     REASONS FOR ORDER

TEITELBAUM, J:

[1]      This is an application, pursuant to sections 18 and 18.1 of the Federal Court Act R.S.C.1985, c. F-7 for judicial review of a decision of the Vice-Chairman of the Pension Appeals Board dated July 15, 1998. In that decision, the decision of the Review Tribunal denying the applicant disability benefits under the Canada Pension Plan R.S.C.195, c. C-8 (hereinafter "CPP") was upheld and leave to appeal was refused. The applicant seeks an order quashing the decision of July 15, 1998 and an order granting leave to appeal the decision of the Pension Appeals Board pursuant to section 83 of the CPP.

[2]      In the alternative, the applicant seeks an order setting aside the decision of the Pension Appeals Board , pursuant to section 83 of the Canada Pension Plan which denied Mr. Davies" Application for leave to appeal, and an order referring the matter back to the Pension Appeals Board.

[3]      The respondent had also made an application to strike most of the allegations or statements made in the applicant"s affidavit sworn to on September 15, 1998 as containing evidence not before the decision-maker.

[4]      This matter, the application to strike, was settled between the parties. A revised affidavit was submitted by the applicant, that is to say, the same affidavit sworn to on September 15, 1998 was resubmitted with certain sentences and paragraphs struck out (see letter dated October 4, 1999 emanating from the respondent).

FACTS

[5]      The applicant was born in 1949 and earned a grade 10 education as well as a trade electrician certificate. Since the age of 19 years, the applicant has worked as a physical labourer. In September of 1991, the applicant ceased working due to a back condition and has since been diagnosed by his family physician as having a chronic back injury, namely posterolateral left disc hernation, numbness of his left leg, and blockage in one artery.

[6]      In 1989, the applicant had angioplasty to reduce the blockage of his artery and has been taking prescribed medication for this condition ever since. This condition is now stable.

[7]      The applicant also suffers from angina attacks and other medical problems but bases this application mainly on his back and heart conditions. In the past, the applicant did undergo surgeries for a ruptured spleen and a hernia. However, these conditions are not ongoing.

[8]      The applicant made an application for disability benefits which was received by the respondent on July 6, 1995. Included with his application for disability benefits, the applicant completed a questionnaire which stated that he had most recently started employment on May 23, 1995 and had terminated this employment on May 25, 1995 due to numbness of his leg. He indicated that he could no longer work as of that date. Following the hearing of the appeal, the Tribunal found that the applicant was laid off in May 1995 and had not worked since. In fact, it was the applicant who quit his job after two days.

[9]      The applicant was denied disability benefits by the Minister in a decision dated January 31, 1996. He then appealed this decision to a Review Tribunal created under the CPP.

[10]      The Review Tribunal reviewed numerous medical reports at the hearing which concerned the seriousness of the applicant"s condition. Only the applicant"s family doctor expressed the opinion that the applicant was disabled. Medical evidence presented by the specialists to whom the applicant was referred by his family physician did not support this view, that is, did not state that it was their opinion that the applicant was so disabled that he could not be gainfully employed.

[11]      On June 4, 1996 the Review Tribunal dismissed the appeal. The applicant was denied disability benefits on the basis that he was not disabled within the meaning of the Plan. In essence, the Tribunal found that his medical condition did not preclude him from performing all forms of substantially gainful employment. The reasons were stated as follows:

We are unable to conclude... that the Appellant"s "sum" total of symptoms are sufficient to satisfy this legislation. The argument, we accept, recognizes that no one problem of the Applicant is disabling, and thus seeks to invoke the totality of Mr. Davies health problems, or past events. We disagree, however, that even such sum total renders this experienced, qualified tradesman unable to perform substantially gainful employment.

[12]      The applicant applied for leave to the Pension Appeals Board (PAB) and was denied in a decision by the Vice-Chairman, Mercier J., dated July 15, 1998. His reasons denying leave stated:

"Only the Appellant"s family doctor expresses the opinion that the Appellant is disabled and his statement to that effect is not corroborated by the statements of the specialists to whom he had referred the Applicant. There is therefore no error in law or fault in the decision of the Review Tribunal and no likelihood of success of an Appeal."

[13]      The Chairman, Vice-Chairman possess the statutory authority pursuant to subsection 83(2) of the CPP to grant or refuse an application for leave to appeal.

STATUTORY PROVISIONS Federal Court Act R.S.C., 1985, c. F-7. s. 18 Extraordinary Remedies, federal tribunals - Subject to section 28, the Trial Division has exclusive jurisdiction (a) to issue an injunction, writ of ccertiorari, writ of prohibition, writ of mandamus, or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. 18.1 (1) Application for judicial review - An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. (2) Time limitation - An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. (3) Powers of Trial Division - On an application for judicial review, the Trial Division may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. (4) Grounds of review - The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. (5) Defect in form or technical irregularity - Where the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Trial Division may (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and

(b) in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from such time and on such terms as it considers appropriate. 1990, c. 8, s. 5. Canada Pension Plan, R.S.C. 1985, c. C-8 Appeal to Pension Appeals Board 83. (1) A spouse, former spouse, estate, applicant, beneficiary or beneficiary's spouse or, subject to the regulations, any person on behalf thereof, or the Minister, if dissatisfied with a decision of a Review Tribunal made under section 82, other than a decision made in respect of an appeal referred to in subsection 28(1) of the Old Age Security Act, or under subsection 84(2), may, within ninety days after the day on which that decision is communicated to the spouse, former spouse, estate, applicant, beneficiary, beneficiary's spouse, person or Minister, or within such longer period as the Chairman or Vice-Chairman of the Pension Appeals Board may either before or after the expiration of those ninety days allow, apply in writing to the Chairman or Vice-Chairman for leave to appeal that decision to the Pension Appeals Board. 83(2) Decision of Chairman or Vice-Chairman (2) The Chairman or Vice-Chairman of the Pension Appeals Board shall, forthwith after receiving an application for leave to appeal to the Pension Appeals Board, either grant or refuse that leave. 83(2.1) Designation (2.1) The Chairman or Vice-Chairman of the Pension Appeals Board may designate any member or temporary member of the Pension Appeals Board to exercise the powers or perform the duties referred to in subsection (1) or (2).

s. 18 Recours extraordinaires: offices fédéraux - Sous réserve de l"article 28, la Section de première instance a compétence exclusive, en première instance, pour: (a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition, ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral; (b) connaître de toute demande de réparation de la nature visée par l"alinéa a), et notamment de toute procédure engaggée contre le procureurgénéral du Canada afin d"obtenir réparation de la part d"un office fédéral. 18.1(1) Demande de contrôle judiciaire - Une demande de contrôle judiciaire oeut être présentée par le procureur général du Canada ou par quiconque est directement touché par l"objet de la demande. (2)Délai de présentation - Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder. (3) Pouvoirs de la Section de première instance - Sur présentation d"une demande de contrôle judiciaire, la section de première instance peut: (a)ordonner à l"office fédéral encause d"accomplir tout acte qu"il a illégalement omis ou refusé d"accomplir ou don"t il a retardé l"exécution de manière déraisonnable; (b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu"elle estime appropriées, ou prohiber ou encore restraindre toute décision, ordonnance, procédure ou tout autre acte de l"office fèdèral (4) Motifs - Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_: a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. (5) Vice de forme - La Section de première instance peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu'en l'occurrence le vice n'entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l'ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu'elle estime indiquées. 1990, ch. 8, art. 5. Régime de pension du Canada, S.R.C. c. C-8 Appel à la Commission d'appel des pensions 83. (1) Un requérant ou bénéficiaire, un conjoint, un ancien conjoint, un ayant droit ou, sous réserve des règlements, quiconque de leur part, de même que le ministre, peuvent, dans les cas où ils ne sont pas satisfaits d'une décision du tribunal de révision rendue en application de l'article 82 " autre qu'une décision portant sur l'appel prévu au paragraphe 28(1) de la Loi sur la sécurité de la vieillesse " ou du paragraphe 84(2), présenter, soit dans les quatre-vingt-dix jours suivant le jour où la décision du tribunal de révision leur est transmise, soit dans tel délai plus long qu'autorise le président ou le vice-président de la Commission d'appel des pensions avant ou après l'expiration de ces quatre-vingt-dix jours, une demande écrite au président ou au vice-président de la Commission d'appel des pensions, afin d'obtenir la permission d'interjeter un appel de la décision du tribunal de révision auprès de la Commission. 83(2) Décision du président ou du vice-président (2) Sans délai suivant la réception d'une demande d'interjeter un appel auprès de la Commission d'appel des pensions, le président ou le vice-président de la Commission doit soit accorder, soit refuser cette permission. 83(2.1) Désignation (2.1) Le président ou le vice-président de la Commission d'appel des pensions peut désigner un membre ou membre suppléant de celle-ci pour l'exercice des pouvoirs et fonctions visés aux paragraphes (1) ou (2).

PARTIES" SUBMISSIONS

Applicant"s Submissions

[14]      The applicant argues that the Pension Appeals Board erred in denying leave to appeal on the basis that it applied the wrong test or misapplied the legal test for determining disability under the CPP for the following reasons:

(a)      in finding that the Applicant was capable of performing some type of work, the Tribunal erred in assessing only the medical evidence relating to disability and ignoring the evidence concerning personal characteristics and the impact of the disability on the Applicant, and;

(b)      in deciding that the Applicant could work the Tribunal failed to consider the Applicant"s educational qualifications and the effect of the disability on these skills, and;

(c)      the Tribunal erred in finding that the Applicant"s failure to pursue surgery is evidence of the lack of severity of the disability.

[15]      It is further submitted by the applicant that the Board erred in requiring that the evidence of the family physician be corroborated by a specialist.

[16]      Lastly, the applicant argues that the Board erred in determining that there was no error of law or fault in the decision of the Tribunal as Mercier J. considered only the medical evidence and did not take into account the personal characteristics or testimony of the applicant.

Respondent"s Submissions

[17]      The respondent submits that Mercier J. applied the correct test for determining whether leave to appeal should be granted on the basis that he addressed the issue of whether the decision of the Tribunal was supported by the evidence and that no error in principle was committed.

[18]      It is the submission of the respondent that the task before Mercier J. was to determine whether the Tribunal had based its decision on the evidence presented and had not committed any error in principle. The respondent argues that Mercier J. heard and weighed all the evidence filed before him and properly considered whether leave to appeal should be granted.

[19]      It is further submitted by the respondent that the Pension Appeals Board is a highly specialized Board with expertise in weighing the evidence and assessing the issues involved. The respondent argues that a high level of deference ought to be shown to the Board due to the fact that the task in question was at the core of its expertise.

[20]      The respondent relies on Pushpanathan v. Canada, [1998] 1 S.C.R. 982 and Martin v. MHRD, (1998) FCTD Unreported as authority for the proposition that the standard of legality of the decision is the appropriate standard to be applied to the decision of the Board.

ANALYSIS

Standard of Review

[21]      The standard of review in determining whether the Court can overrule a decision of a Board has been revisited in recent decisions of the Supreme Court of Canada and of this Court. It is informed by several factors: the presence or absence of a privative clause, the expertise of the tribunal, the purpose of the Act as a whole and the provision in particular, and the nature of the question to be determined. Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and the recent decision in Baker v. The Minister of Citizenship and Immigration [1999] S.C.J. 39 discussed these at length. In addition, Madam Justice Reed in the case of Kerth v. Canada, T-1801-98, August 13, 1999, unreported, F.C.T.D., discusses this very important issue.

[22]      Beginning with the first factor to be considered, the Review Tribunal and the PAB derive their authority from subsection 84(1) of the Canada Pension Plan which reads:

Authority to determine questions of law and fact 84. (1) A Review Tribunal and the Pension Appeals Board have authority to determine any question of law or fact as to (a) whether any benefit is payable to a person, (b) the amount of any such benefit, (c) whether any person is eligible for a division of unadjusted pensionable earnings, (d) the amount of that division, (e) whether any person is eligible for an assignment of a contributor's retirement pension, or (f) the amount of that assignment, and the decision of a Review Tribunal, except as provided in this Act, or the decision of the Pension Appeals Board, except for judicial review under the Federal Court Act, as the case may be, is final and binding for all purposes of this Act.

Décision sur les questions de droit et de fait 84. (1) Un tribunal de révision et la Commission d'appel des pensions ont autorité pour décider des questions de droit ou de fait concernant_: a) la question de savoir si une prestation est payable à une personne; b) le montant de cette prestation; c) la question de savoir si une personne est admissible à un partage des gains non ajustés ouvrant droit à pension; d) le montant de ce partage; e) la question de savoir si une personne est admissible à bénéficier de la cession de la pension de retraite d'un cotisant; f) le montant de cette cession. La décision du tribunal de révision, sauf disposition contraire de la présente loi, ou celle de la Commission d'appel des pensions, sauf contrôle judiciaire dont elle peut faire l'objet aux termes de la Loi sur la Cour fédérale, est définitive et obligatoire pour l'application de la présente loi.

[23]      The privative clause found in subsection 84(1) shows that a higher level of deference should be granted to the decisions of the PAB. However, this is only the first of four factors to be considered in determining the standard of review. Although I say that a "privative" clause is found in subsection 84(1), it is a "privative clause" subject to judicial review by the Courts. Thus, one cannot say that the "private clause" in subsection 84(1) is a total or complete "privative clause" but one subject to review by a competent Court.

[24]      The applicant argues that the exercise of discretion by a member designate of the PAB on an application for leave to appeal is not a decision of the PAB and therefore this provision does not apply to an application for judicial review of a decision by the Chairman or the Vice-Chairman of the PAB on a leave to appeal application.

[25]      With all respect to the applicant, I cannot agree with this assertion. The authority cited for this proposition, Martin v. Minister of Human Resources Development, 1998, FCTD, Unreported does not state that the decision of a member of the PAB is not a decision of the PAB. In fact, Tremblay-Lamer J. affirms at paragraph 7 of her reasons:

"the proper test for determining whether the Court can overrule a decision in such cases is the legality of the decision and not the correctness. In other words, unless the Vice-Chairman considered irrelevant factors or acted contrary to the law, the Court should show deference toward its decision."

[26]      Subsections 83(1) and 83(2) of the Act, cited above, clearly provide the statutory authority for the Chairman, Vice-Chairman or member designate to make the decision of whether to grant or deny leave to appeal. The wording of these sections, combined with that of the final and binding clause in subsection 84(1) give the PAB a clear mandate to assess applications for leave to appeal.

[27]      Moving on to the second consideration, the expertise of the decision-maker, the PAB is composed of judges of the Federal Court or a superior, district, or county court. The Chairman, Vice-Chairman, and members of the PAB are the decision-makers in this case.

[28]      The members are charged with the task of hearing applications for leave to appeal decisions of the Review Tribunal by assessing the evidence and interpreting the relevant provisions of the Act. This is the process by which entitlement to disability benefits is determined. The PAB is specialized in the task of considering the evidence and assessing the relevant provisions of the Act before deciding if an individual qualifies as "disabled" under the Act. This is another factor militating in favour of granting a little higher level of deference to its decisions.

[29]      The third factor is the purpose of the provision itself and of the Act. With respect to the provision, subsection 84(1) is designed to provide the Review Tribunal with the mandate to determine if an applicant should be granted benefits and the amount of benefits, and to give the PAB discretion to determine whether leave to appeal is granted or denied to an applicant who has been refused disability benefits. The decisions of the PAB are not appealable other than by judicial review to this Court.

[30]      The purpose of the CPP as a whole is to establish a pension and benefit scheme to Canadians who have been contributors to the Plan. The Plan concerns the rights of Canadians who have contributed at some stage to recover a pension and /or benefits when the circumstances set out in the Act have been achieved.

[31]      The fourth factor for consideration is the nature of the problem in question, more particularly whether it concerns a legal or factual determination. In the case at bar, the issue is whether to grant leave to appeal a decision of the Review Tribunal denying the Applicant disability benefits. This involves a detailed inquiry into the facts of the individual case and an application of the relevant provisions in the Act. Thus, it is a mixed legal and factual question. However, in my view it is primarily a fact-based determination given the importance of the facts of the individual"s case and therefore this militates in favour of deference.

[32]      In balancing these four factors to arrive at the appropriate standard of review for a decision of the PAB, I am satisfied that a middle to lower level of deference should be accorded to decisions of the PAB. The Vice-Chairman, Mercier J. was performing a function at the core of his expertise as expressly provided for in subsection 84(1) of the Act. The "final judgment" clause clearly contemplates that the determinations of the PAB should not be lightly interfered with unless there is an error of fact or law.

[33]      As I have stated, the case of Kerth, supra, was submitted for my consideration. Counsel for the applicant suggests that the said case is on all or virtually on all fours with the case at bar.

[34]      In discussing the issue of the Standard of Review, Madam Justice Reed states, at pages 6 to 8:

[18] The factors relevant in determining the standard of review applicable in a judicial review proceeding were recently set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The overriding consideration is the intention of the legislature; did it intend that a reviewing court accord the decision under review deference, or as a full right of appeal intended, or does the relevant standard fall somewhere on the spectrum that lies between these two poles. Also, the standard of review must be determined by reference to the specific nature of the decision under review. The same standard will not necessarily apply to all decisions of the same decision-maker. The factors to be assessed according to Pushpanathan re: (1) the legislative provisions governing the review process, including whether there is a privative clause; (2) the degree of expertise of the tribunal with respect to the question in issue, as compared to the degree of expertise the reviewing court has on that subject; (3) the purpose of the legislation and the nature of the decision-maker; that is, whether the decision-maker is balancing public policy considerations (sometimes vaguely worded) as opposed to adjudicating the rights of individuals; (4) the nature of the decision under review, including whether it is a question of law or a question of fact.

[19] I turn then to these factors as they relate to the decision under review. The legislative parameters of the intended review are set out in subsection 18.1(4) of the Federal Court Act. The Plan contains no privative clause except to say that decisions of the Pension Appeals Board are final, subject only to judicial review. While there has been some indication in the jurisprudence that paragraph 18.1(4)(d) of the Federal Court Act requires "patent unreasonability", this was not the test applied in Pushpanathan , or more recently in Baker v. Canada (Minister of Citizenship & Immigration), [1999] S.C.J. No. 39. I note that the phrases in paragraph 18.1)(4)(d) are disjunctive; one asks whether the decision under review was based on a finding of fact that was made in a perverse or capricious manner or without regard for the material before the decision-maker. That is, insofar as the review of decisions by reference to their underlying facts is concerned, the statutory mandate allows for a spectrum of review from one which involves a high degree of deference (perversity or capriciousness must be shown) to one in which correctness or reasonableness may be the test (the decision-maker did not exhibit regard for the material before it). When the review relates to questions of law, however, in paragraph 18.1(4)(c) a spectrum is not provided.

[20] With respect to the relative expertise of the Board and this Court, there is not a great difference between them insofar as determining the principles applicable to leave to appeal applications. The Board members will, of course, have greater expertise in dealing with the underlying factual subject matter.

[21] With respect to the purpose of the legislation and the nature of the decision-maker, the decision is one that determines the rights of the individual (entitlement to a benefit). The decision is adjudicative in nature, not one involving discretionary public policy issues. The Board is judicial in nature, being composed of judges.

[22] With respect to the nature of the decision, it involves both a question of law and a question of fact. The question of law is whether the Board applied the right legal test. The question of fact is whether the Board"s decision is supported by the evidence.

[23] I conclude, based on the above assessment of the relevant factors, that the standard of review in this case is closer to the non-deferential end of the spectrum, rather than the deferential end.

Analysis of the Board"s Decision

[24] 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: Kurniswicz 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 attached. [Emphasis added.]

[35]      I am in complete agreement with the principles enunciated by Madam Justice Reed and believe they are applicable to the case before me except that, as I have stated, I believe the PAB has a special expertise that ordinary judges do not have.

[36]      Nevertheless, I must conclude that the decision of Mercier J. in the present case is reasonable.

[37]      In the case at bar, the applicant did not file any new evidence before the Pension Appeals Board to support his application for leave to appeal. In the Kerth case, Madam Justice Reed, at page 3 of 8 states: "The evidence before the Pension Appeals Board to support the applicant"s leave to appeal application was far more substantial than that presented to the Tribunal". As well, in paragraph 12 of her decision she states "Finally, and perhaps most importantly, the evidence included a more detailed report from Dr. Eagar (Kerth"s family physician) and a work assessment report by social worker Rebecca Milo".

[38]      Therefore, from the facts of this case, I cannot conclude that Mercier J."s decision is unreasonable based on the evidence that he had before him.

Review of the Record

[39]      In reviewing the merits of the decision of the PAB, I am bound to only consider evidence that was before the decision-maker. As the Respondent noted, this was explicitly stated in Ismaili v. Canada (Minister of Citizenship and Immigration) by Cullen J. at p. 11 of his reasons:

I find it trite law that only evidence that was before the decision-maker can be considered on judicial review.

[40]      The statements sworn to by the Applicant in the revised affidavit of September 15, 1998 and the affidavit of January 4, 1999 were the only statements considered by me for this hearing.

Establishing Disability under the Act

[41]      Section 42(2) of the Act defines "disabled" as:

When person deemed disabled 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 (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 (b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.

Personne déclarée invalide (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; b) une personne est réputée être devenue ou avoir cessé d'être invalide à la date qui est déterminée, de la manière prescrite, être celle où elle est devenue ou a cessé d'être, selon le cas, invalide, mais en aucun cas une personne n'est réputée être devenue invalide à une date antérieure de plus de quinze mois à la date de la présentation d'une demande à l'égard de laquelle la détermination a été établie.

[42]      The definition of disability cited above requires that the applicant demonstrate that a disability is severe and prolonged. To be considered severe, the disability must cause the person to be incapable of pursuing substantially gainful employment. The disability will be considered prolonged if it is long continued or of indefinite duration, or is likely to result in death.

[43]      The relevant inquiry in determining if an individual has a severe disability is whether they have the physical capacity to pursue some type of substantially gainful employment, irrespective of what their previous work experience has been. The legislation specifies that this employment be "substantially gainful" and subsection 42(2) articulates what factors will inform this assessment.

[44]      There is no ambiguity in which factors are relevant in assessing disability. The decisions of the PAB in Bains v. MHRDC, (1997) CP 4153 at pages 2 and 3, Aitkins v. MEI, (1996) CP 3408 at page 5, and Wilson v. MEI, (1996) CP 4109 at page 6 are unambiguous in stating that the applicant"s inability to perform their previous job, the availability of work, their skills and education, and other personal barriers do not form part of the consideration into the severity of the disability.

[45]      In my view, the totality of medical conditions and personal characteristics which the applicant submits as the cause for his inability to pursue substantially gainful employment do not satisfy subsection 42(2). Specifically, the applicant argues that his age and education level combined with his medical conditions lead to the conclusion that it is unrealistic to expect he can obtain employment after retraining.

[46]      However, the legislation does not provide for the consideration of age or education under subsection 42(2). The only issue is whether he is capable of obtaining some type of substantially gainful employment, not necessarily anything related to his previous job.

[47]      Secondly, the applicant argues that the oral testimony was given too little weight by the Review Tribunal and that it neglected to fully consider all the relevant factors before concluding that the disability did not conform to the criteria set out in subsection 42(2). After reviewing the decisions of the Review Tribunal and of the PAB, I must disagree. It is expressly stated in their reasons that the Tribunal concluded that the totality of conditions suffered by the applicant did not satisfy the criteria in subsection 42(2) and therefore he was denied disability benefits.

[48]      The reasons of the Review Tribunal thoroughly discuss the evidence presented and often refer to the testimony given by the applicant. Furthermore, the evidence of the applicant"s family physician as well as that of the specialists appear to have been appropriately considered and weighed.

[49]      I am unable to find that any relevant facts were ignored by the PAB in their determination that the applicant"s condition did not comply with the criteria set out in subsection 42(2) of the Act. In my view, the PAB correctly applied the test for determining disability as prescribed by the Act.

[50]      In conclusion, I am satisfied there is no reviewable error of fact or law which would allow me to interfere with the decision of the PAB and therefore the application is dismissed.

[51]      I have given the issue of costs some consideration. In the circumstances of the present case, I am satisfied that it is in the interest of justice that no costs should be allowed.

                             "Max M. Teitelbaum"

                        

                                 J.F.C.C.

Ottawa, Ontario

October 7, 1999