Date: 20100122
Docket: T-1099-09
Citation: 2010 FC 74
Ottawa, Ontario, January 22,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
TRAVIS
HARVEY
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, of a decision of a member of the Canada
Pension Plan Pension Appeals Board (the Board) dated June 9, 2009, which denies
the Applicant’s application for leave to appeal a decision of the Canada
Pension Plan Review Tribunal.
Factual Background
[2]
Mr.
Travis Harvey (the Applicant) was injured in June 2006 in the course of his
employment as a construction labourer and suffers from a resulting back injury.
He left work definitively in August 2006 and claims that he has not been able
to work since due to his back problems and the ensuing pain. He is said to
still be unable to sit or stand for long periods of time and unable to lift any
weight. Furthermore, he alleges that his sleep is curtailed due to his back
pain and he is unable to accomplish basic household tasks.
[3]
The
Applicant is 44 years old, has a grade 7 education and has spent most of his
working life as a labourer.
[4]
The
Applicant applied for disability benefits under the Canada Pension Plan,
R.S.C. 1985, c. C-8 (the CPP) in September 2007. His application was denied and
he applied for a reconsideration which was also denied. Subsequently, in April
2008, he applied to the Canada Pension Plan Review Tribunal (the Review
Tribunal).
[5]
The
Review Tribunal held a hearing where both the Applicant and his wife testified.
It issued written reasons in April 2009, where it denied the appeal and held
that the Applicant’s disability did not meet the definition found under
subsection 42(2) of the CPP in that “his disability is not as severe and
prolonged so as to render him incapable regularly of pursuing substantially
gainful employment” (Review Tribunal Decision at paragraph 32).
[6]
He
then made an application for leave to appeal of the Review Tribunal’s
decision to the Board. Included in that application, along with a brief letter
of appeal was a document titled “Permanent Impairment and Extended Earnings
Replacement Benefit Decision” issued by the Worker’s Compensation Board of Nova
Scotia (the W.C.B. decision). On June 9, 2009, the Board refused the
application for leave to appeal and that decision is now subject to this
judicial review.
Impugned Decision
[7]
The
Board’s decision, in its entirety, reads as follows:
[1] The Review Tribunal’s decision
is based on a reasonable interpretation of the medical evidence presented. In
his application for leave to appeal the Appellant files a copy of a W.C.B.
decision and nothing else.
[2] The W.C.B. decision indicates,
if anything, that the Appellant does not suffer from a disability as defined in
the Canada Pension Plan and there is no arguable case left to be
presented on appeal from the Review [T]ribunal’s decision.
[3] Leave is refused.
Issues
[8]
The
questions at issues are as follows:
a. Were the
reasons provided by the Board adequate?
b. Did the Board
apply the correct test in determining whether to grant the leave to appeal?
c. Did the Board
err in law or in its appreciation of the facts in determining whether an
arguable case was raised?
[9]
The
application for judicial review shall be dismissed for the following reasons.
Relevant
Legislation
[10]
Canada Pension Plan, R.S.C.
1985, c. C-8.
|
83.
(1) A party 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 was communicated to
the party 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.
(…)
(3)
Where leave to appeal is refused, written reasons must be given by the person
who refused the leave.
|
83.
(1) La personne qui se croit lésée par 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), ou, sous réserve des règlements, quiconque de sa
part, de même que le ministre, peuvent présenter, soit dans les
quatre-vingt-dix jours suivant le jour où la décision du tribunal de révision
est transmise à la personne ou au ministre, 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.
(…)
(3)
La personne qui refuse l’autorisation d’interjeter appel en donne par écrit
les motifs.
|
Applicant’s Submissions
Sufficiency of reasons
[11]
The
Applicant submits that the written reason provided by the Board, as required
under subsection 83(3) of the CPP, are insufficient and the decision should be
quashed as a result.
[12]
The
Applicant alleges that the Board’s decision is completely insufficient
to enable the Court to determine whether the Board’s decision to deny leave to
appeal was correct as there is no explanation of how the Board came to its
conclusion.
[13]
The
Applicant urges that the Board’s statement that the Review Tribunal’s decision
was based on a “reasonable interpretation” of the medical evidence is
unhelpful. The Board also states that the W.C.B. decision indicates that the
Applicant does not suffer a disability as defined in the CPP, but provides no
analysis as to why of how it comes to this conclusion. Furthermore, the
Applicant characterizes the reasons, due to the lack of explanation, as being “so
general as to be meaningless” and submits that the use by the Board of the
phrase “there is no arguable case left to be presented on appeal” amounts to a
repetition of the appropriate test but there is no explanation or rationale for
that conclusion.
[14]
In
support of his arguments, the Applicant relies on Supreme Court of Canada’s
decision in R. v. Sheppard, 2002 SCC 26, [2002] 1
S.C.R. 869 at paragraphs 25 to 32 where it was held that reasons must be
sufficient to enable meaningful appellate review of a decision. Along with the
decisions of the Federal Court of Appeal and the Federal Court in Marrone v.
Canada (Attorney General), 2008 FCA 216, [2008] F.C.J. No. 1007 (QL) and Canada
(Attorney General) v. Kermenides, 2009 FC 429, [2009] F.C.J. No. 973 at
paragraph 9 (QL)).
The test for granting
leave
[15]
On
the standard of review, the Applicant submits that the question as to whether
or not the Board applied the correct test in refusing the leave to appeal is a
decision that should be held to correctness (Canada (Attorney General) v.
Landry, 2008 FC 810, 334 F.T.R. 157 (QL)).
[16]
The
Applicant contends that there are two issues to be determined when
reviewing a Board’s decision on an application for leave to appeal as set out
in Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114 at paragraph
15 (F.C.T.D.) (QL), where Justice Mackay stated:
… [I]n my view the review of a decision
concerning an application for leave to appeal to the PAB involves two issues,
1. whether the decision maker has
applied the right test - that is, whether the application raises an arguable
case without otherwise assessing the merits of the application, and
2. whether the decision maker has erred
in law or in appreciation of the facts in determining whether an arguable case
is raised. If new evidence is adduced with the application, if the application
raises an issue of law or of relevant significant facts not appropriately
considered by the Review Tribunal in its decision, an arguable issue is raised
for consideration and it warrants the grant of leave.
[17]
As
for the issue of the appropriate test, the Applicant submits that the Board
must determine if there is an “arguable case” on the application for leave and
that this is a lower hurdle to meet than determining the appeal on the merits (Kerth
v. Canada (Minister of Human Resources Development) (1999), 173 F.T.R. 102
(F.C.T.D.) (QL)); Callihoo at paragraph 15). The Applicant emphasizes
that the Board must not otherwise assess the merits of the application.
[18]
The
Applicant argues that the Board applied the test incorrectly although it
stated that there was “no arguable case left to be presented on appeal”. He
urges that the reasons suggest that the Board actually based its decision on
its assessment of the merits of the case. This approach is clear from the
Board’s statement that the Review Tribunal’s decision is based on a reasonable
interpretation of the medical evidence. Also, the comment on the W.C.B.
decision would suggest that the Board did not look at whether the information
in the decision raised an arguable case, but instead came to a conclusion on
the interpretation of the evidence.
[19]
Therefore,
the Applicant advances that the Board’s use of the phrase "no
arguable case" cannot save its decision in light of the balance of the
reasons that would suggest that the Board decided the application on its
merits.
Errors in determining
whether there is an arguable case
[20]
The
Applicant submits that this issue is the second question to be determined
according to the approach set out in Callihoo and that there are
numerous errors in the case at bar.
[21]
The
first alleged error is that the Board failed to appreciate the new evidence
(the W.C.B. decision) provided by the Applicant with his application for leave.
Relying on Samson v. Canada (Attorney General), 2008 FC 461, [2008]
F.C.J. No. 588 (QL), the Applicant outlines that the review Court must ask
itself whether the leave application raises a genuine doubt whether the Review
Tribunal would have reached the same decision if the new evidence had been
presented to it.
[22]
The
Applicant submits that an analysis of the W.C.B. decision does not support the
Board’s conclusion that the he does not suffer from a disability as defined in
the CPP. He points to the conclusions reached on the medical evidence and the
discussion with respect to the availability of suitable work in the W.C.B.
decision along with the fact that the decision concluded to his entitlement to
a long term earnings replacement benefit due to his injury.
[23]
He
emphasizes that the W.C.B. decision reached the conclusion that he is only
capable of four to five hours of sedentary work according based on a Functional
Assessment dated February 9, 2009, which contrasts the information on his
functional capacity relied upon by the Review Tribunal in its decision. The
Applicant acknowledges that the W.C.B. decision is not conclusive
evidence that he is disabled within the meaning of the CPP but urges that the
Review Tribunal would have reached a different decision if this document had
been before them.
[24]
The
second alleged error is that the Board failed to recognize that there was an
arguable case that the Review Tribunal misapplied the “real world” test for
determining whether the Applicant suffers from a severe disability under subsection
42(2) of the CPP.
[25]
The
Applicant alleges that the Review Tribunal misapplied the test set out in Villani
v. Canada (Attorney General), 2001 FCA 248, [2002] 1 F.C. 130 (QL) as it
did not look at the question of his ability to regularly pursue any
substantially gainful occupation in the context not only of his injury, but
also his particular circumstances, especially his past work experience and
education level. He also adds that the Review Tribunal engaged in exactly the
sort of analysis that was determined in Villani to be inappropriate by
coming to the conclusion that the barrier to his obtaining employment is not
his physical disability but his low academic function and lack of education.
[26]
The
third alleged error is that the Board erred in failing to recognize that there
was an arguable case that the Review Tribunal misinterpreted the medical
evidence regarding the nature and severity of the Applicant’s disability.
[27]
The
Applicant points to evidence before the Review Tribunal and submits that
the Review Tribunal erred by understating the severity of his condition and the
impact on him by concluding that he “experienced certain physical discomfort
and limitation due to a back complaint, which was not medically assessed as
severe or due to a severe condition” (Review Tribunal’s decision at paragraph 32).
[28]
The
fourth alleged error is that the Board failed to recognize that the Review
Tribunal gave insufficient or no weight to the oral evidence presented at the
hearing.
[29]
The
Applicant urges that the Review Tribunal placed undue weight on the medical
reports, focused on whether or not there was an objective basis for his
disability and did not assess the subjective impact of his condition on him. He
submits that the Review Tribunal had an obligation to consider all of
the evidence, including the oral evidence presented by himself and his wife, in
assessing whether he is disabled. He also argues that the Board had the same
obligation in determining whether there is an arguable case on appeal and erred
when it referred to the Review Tribunal’s decision being based on a reasonable
interpretation of the medical evidence without reference to the oral evidence.
Respondent’s Submissions
[30]
The
Respondent submits that no reviewable error was committed in refusing the leave
application and that the decision is reasonable. Furthermore, the Respondent
argues that in light of the decisions in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 (QL) and Samson at paragraph 14, the
standard of review of a decision of the Board granting leave to appeal is
reasonableness.
[31]
In
written submissions, the Respondent did not argue directly on the issues raised
by the Applicant, including the sufficiency of the reasons, but did put forward
arguments that go to the reasonableness of the decision.
Disability
under the CPP
[32]
The
Respondent makes the following general submissions as to the requirements under
the CPP - in order to be entitled to a disability pension a person must satisfy
three requirements: meet the contributory requirements; be disabled within the
meaning on the CPP when the contributory requirements are met; and be so
disabled continuously and indefinitely (subsections 42(2) and 44(2) and
paragraph 44(1)(b)). Subsection 42(2) of the CPP provides that a person shall
be considered to be disabled only if he is determined to have a severe and
prolonged mental or physical disability. A disability is not based upon the
applicant’s incapacity to perform his usual job, but rather any substantially
gainful occupation and that where there is evidence of work capacity, must show
that efforts at obtaining and maintaining employment have been unsuccessful by
reason of that health condition (Villani at paragraph 50; Inclima v.
Canada (Attorney General), 2003 FCA 117, [2003] F.C.J. No. 378 at paragraphs
3 and 4 (QL)).
[33]
Not
everyone with a health problem who has some difficulty finding and keeping a
job is entitled to a disability pension under CPP. An applicant must
demonstrate that he suffers from a serious and prolonged disability that
renders him incapable regularly of pursuing and substantially gainful
occupation. Thus medical evidence is required, as is evidence of employment
efforts and possibilities (Villani at paragraphs 44-46 and 50).
The test for granting
leave
[34]
The
Respondent also outlines that an application for leave to appeal to the
Board must demonstrate an arguable case or put in another way, some arguable
ground on which the proposed appeal might succeed (Kerth at paragraph
24; Callihoo at paragraph 15). Like the Applicant, the Respondent
submits that there are two issues that must be determined in reviewing the
decision of the Board concerning an application for leave to appeal as set out
in Callihoo at paragraph 15.
[35]
The
Respondent contends that the Applicant did not present an arguable case as the
application for leave to appeal does not allege an error of law or an error in
the appreciation of the evidence, nor did it raise relevant significant facts
not appropriately considered by the Review Tribunal. The Respondent points to
the application for leave to appeal where the Applicant simply indicated that
he was seeking leave to appeal on the basis that he had “been pensioned off on
WCB” after the Review Tribunal’s decision (Application for Leave to Appeal to
the Pension Appeals Board (May 22, 2009), Respondent’s Record, Volume 1, page
12).
[36]
As
to the new evidence submitted, the Respondent alleges that the W.C.B. decision
is irrelevant since the test used pursuant to the provincial statute is
different from that under the CPP (Callihoo at paragraphs 18 and 20).
Furthermore, the document cannot be said to be significant simply because it
refers to the functional assessment dated February 9, 2009. Finally, the
Respondent underlines that the W.C.B. decision does not raise an arguable case
as it indicates that the Applicant retains a capacity to work and a person with
a residual capacity to work does not suffer from a disability as defined in the
CPP (some examples are cited in Janzen v. Canada (Attorney General),
2008 FCA 150, [2008] F.C.J. No. 667 (QL); Warren v. Canada (Attorney
General), 2008 FCA 377, [2008] F.C.J. No. 1802 (QL)). Thus it was
reasonable to refuse leave.
Analysis
Standard of review
[37]
In
Dunsmuir, the Supreme Court of Canada clearly identified two standards –
correctness and reasonableness, and that different issues will attract a
different standard. Questions of fact and questions of mixed fact and law are
held to a standard of reasonableness; whereas questions of law can attract
either a standard of reasonableness or correctness depending on certain
factors. Guidance with regards to the appropriate factors can be found in
existing case law and an extensive review need not be conducted every time.
[38]
Turning
now to the questions at issue in this case, the first question is one of
procedural fairness and thus attracts a standard of correctness (Sonier v. Canada (Attorney
General),
2007 FC 1278, 332 F.T.R. 127 (QL)). The second question is a determination as
to whether the Board applied the right test and is held to a standard of
correctness (Mcdonald v. Canada (Minister of Human
Resources and Skills Development), 2009 FC 1074, [2009] F.C.J. No. 1330 at
paragraph 6 (QL)). The third involves questions of fact and questions of mixed
fact and law. Accordingly, it will be reviewed on a standard of reasonableness
(Landry at paragraph 18).
[39]
Reasonableness
is concerned mostly with the existence of justification, transparency and intelligibility
within the decision-making process. The Court will also look to whether the
decision falls within a range of possible, acceptable outcomes that are
defensible in respect of the facts and law (Dunsmuir at paragraph 47).
Were the reasons provided
by the Board adequate?
[40]
The
Applicant claims that the reasons provided by the Board are so deficient that
they breach the principles of natural justice. I do not agree.
Admittedly, the reasons are brief but they are acceptable considering the
circumstances of this case.
[41]
In
the present case, the sole new piece of evidence put forward on the application
for leave was the W.C.B. report and no other ground of appeal was raised.
[42]
In
the reasons, the Board does address that W.C.B. report and concludes that it
does not meet the test to grant the leave to appeal. The reasons under review
must be fairly considered and should examine the record on which the decision
is based (Doucette v. (Minister of Human Resources Development), 2004
FCA 292, [2005] 2 F.C.R. 44 (QL)). There was very little contradictory evidence
in the record before the Review Tribunal as detailed in its reasons and one can
understand from the reasons given by the Board that the new document did not,
in its opinion, provide new information that was different than that was already
on the record. This is not a case where the Applicant submitted new or complex
evidence that might have led the Board to grant the application. I am satisfied
that, in the face of the sole document put before the Board, the reasons are adequate
and show a sufficient analysis.
[43]
As
Justice Binnie stated in Sheppard and the Federal Court of Appeal
reiterated in Doucette, the courts must not intervene simply because the
reasons are not expressed in a way that is acceptable to them (Doucette
at paragraph 12). The reasons given by the Board, although brief, cannot be
said to breach natural justice and the Court will not intervene.
Did the Board apply the
correct test in determining whether to grant the leave to appeal?
[44]
Both
parties agree, and rightly so, that the Board must determine if there is an “arguable
case” on the application for leave and that this is a lower hurdle to meet than
determining the appeal on the merits. In Kerth, the Court granted
judicial review where the Board had used language such as “the medical reports
establish the Tribunal’s findings as a reasonable one” and “the application
offers no new evidence that would shift the balance in favour of a different
result” as it appeared that the Board made a decision on the merits (at paragraph
25). The Applicant likens this case to that in Kerth and, similarly,
argues that the language used by the Board indicates that it decided the case
on the merits rather than the correct test of an arguable case.
[45]
As
Justice Reed said in Kerth at paragraph 27:
… when the ground of an application for
leave to appeal is primarily the existence of additional evidence, the question
to be asked, in my view, is whether the new evidence filed in support of the
leave application is such that it raises a genuine doubt as to whether the
Tribunal would have reached the decision it did, if the additional evidence had
been before it.
[46]
Accordingly,
one must expect that in applying the test to grant leave, the Board will
comment on the merits of the evidence to some extent in explaining its
reasoning in answering this question. Therefore, commenting on the evidence and
its value cannot be conclusive in deciding whether or not the Board applied the
correct test.
[47]
In
the case at bar, the application for leave was based solely on the W.C.B.
decision which was not before the Review Tribunal. The Board clearly was not of
the opinion that this additional piece of evidence raised even an arguable case
as to the Review Tribunal’s decision or that it might have been different. I
acknowledge, as the Court did in Callihoo, that it can be difficult to
draw the line as to whether or not the Board applied the correct test,
particularly where the Board uses the type of language that it did here.
Although the language used is similar to that in Kerth, I am persuaded
that the Board did apply the test correctly in deciding whether or not to grant
the application and the Applicant was not held to a heavier burden than he
should have been. The information contained in the W.C.B. decision was not very
different from that already submitted to the Review Tribunal and did not
provide any new information that would meet the arguable case test threshold.
Did the Board err in law
or in its appreciation of the facts in determining whether an arguable case is
raised?
[48]
With
regard to the second issue set out in Callihoo, the Applicant has
brought forward four issues that, in his view, meet the threshold of an
arguable case. While it is well established that it is not the mandate of this
Court to assess the merits of these issues, I will comment on them briefly in
explaining the reasons why I have found that there was no error.
[49]
On
the first issue of the appreciation of the evidence by the Board, it is
important to note that the provincial pension regime does not set out the same
requirements as the federal legislation that is before me, thus the W.C.B.
decision is not determinative in this case.
[50]
In
the W.C.B. decision, the Applicant was given a pension for a permanent
impairment of 5% and an extended earnings replacement benefit based on the
conclusion that there was no suitable alternative employment available to him
in his area. However, the W.C.B. decision does not provide any new information
that would reasonably lead one to conclude that the Review Tribunal decision
might have been different.
[51]
The
record does not indicate clearly if the functional assessment dated February 9,
2009 included in the W.C.B. decision (page 14, Applicant's record) was before
the Review Tribunal but the mention in the Transferable Skills Analysis and
CAAT Report (page 42, Respondent’s record, volume 1, dated February 13, 2009)
that has been considered by the Review Tribunal shows the following “FCE
(Functional Capacity Evaluation): Revealed that he was functioning at the
sedentary to light level”. Even if the Court would assume that the document
dated February 9, 2009 was not in front of the Review Tribunal, the Court does
not see any significant differences between the two conclusions reached.
[52]
The
Review Tribunal’s decision as a whole clearly demonstrates that the tribunal
was aware of the Applicant’s claim that he could not do more than sedentary
work. I am satisfied that the Board reached a reasonable conclusion and that
the information in the W.C.B. decision does not raise an arguable case.
[53]
As
for the second, third and fourth issues raised before this Court, it bears
noting that the Applicant did not raise these issues before the Board. There is
an authority that indicates that the burden is on the Applicant to set out
grounds in the application for leave (Barcellona v. Canada (Attorney
General),
2007 FC 324, [2007] F.C.J. No. 443 at paragraph 31 (QL)). However, I am
concerned by the fact that the Applicant was self-represented in all proceedings
except the one before this Court. As a result, I have reviewed these alleged
errors and am satisfied that none of them would have met the arguable case
threshold even if they had been raised before the Board.
[54]
A reading of the Review Tribunal decision, particularly
paragraphs 26 to 31, shows that the Applicant’s particular circumstances were
taken into consideration. The Review Tribunal explicitly references the test
set out in Villani and then goes on to apply it and balances the medical
evidence with the “real world factors” in reaching its conclusion. Furthermore,
the third and fourth alleged errors essentially amount to asking this Court to
reevaluate and reweigh the evidence that was put before the Review Tribunal.
The Review Tribunal provided an extensive review of the medical evidence and
drew upon it in reaching its conclusions. It also referred to the oral
testimony of both the Applicant and his wife and clearly took into account the
Applicant’s own opinion of his condition. There is nothing on the record to
indicate that there was an arguable case that there was an error of fact
committed by the Review Tribunal.
[55]
In
light of the above analysis, the Court considers that its
intervention is not warranted.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. The Respondent did not seek costs.
“Michel
Beaudry”
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