Date:
20120928
Docket:
T-1914-11
Citation: 2012
FC 1150
Ottawa, Ontario,
September 28, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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CHERYLL A. BEST
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Pension Appeals
Board (PAB) dated October 5, 2011, in which a designated member (the member)
denied the applicant leave to appeal the decision of the Review Tribunal (RT)
rendered on July 28, 2011. The dispute concerns disability benefits conferred
under the Canada Pension Plan, RSC 1985, c C-8 (CPP).
[2]
The
applicant was self-represented at hearing before this Court.
Factual
Background
[3]
Ms.
Cheryll A. Best (the applicant) was employed as a kitchen worker until
September 3, 2007, when she stopped working, stating retirement as the reason
for work cessation (Respondent’s Record, Volume I, pp 59 and 179). The
applicant underwent surgery for carpal tunnel release in September 2007. In a
report dated October 22, 2007, her surgeon stated that she was healing well and
could return to work the following week wearing a brace (Review Tribunal’s
decision, para 20).
[4]
The
applicant applied for a CPP retirement pension on February 4, 2008 and received
her first payment on February 2, 2009.
[5]
The
applicant was training on the job at Aramark from July 7, 2008 until July 14,
2008, when she lifted a deep-fryer full of fries and injured herself. The
applicant claims not to have had pain in her left wrist prior to that injury.
She had to discontinue work and seek out physiotherapy, which she alleges did
not help (Respondent’s Record, Volume I, p 104). The applicant has not returned
to work since the injury (Respondent’s Record, Volume I, p 108).
[6]
The
applicant applied for disability pension on February 17, 2010, claiming her
left hand rendered her disabled. The applicant’s disability application was
initially refused by letter dated May 17, 2010, because the medical adjudicator
did not believe that the applicant had a disability that was both severe and
prolonged, as required by subsection 42(2) of the CPP (Respondent’s Record,
Volume I, pp 46-47). Pursuant to subsection 81(1) of the CPP, the applicant
asked for reconsideration of this original decision by letter dated May 21,
2010, in which she reiterated that she only has 23% of use of her left hand and
must wear a brace at all times (Respondent’s Record, Volume I, p 48). The
applicant was denied CPP disability again in a letter dated September 16, 2010
(Respondent’s Record, Volume I, p 52) because the medical adjudicator found
that the applicant, although having limitations, did not have a disability that
is severe and prolonged. Pursuant to subsection 82(1) of the CPP, the applicant
requested an appeal of this reconsideration to the RT by letter dated September
24, 2010. The hearing was held on June 14, 2011, before three tribunal members.
[7]
The
RT indicated that, in order to cancel a retirement pension in favour of a
disability pension, one must be disabled prior to the month when the early
retirement pension was received. In the present case, this requirement would be
fulfilled by determining that the applicant was disabled by January 31, 2009,
since her first early retirement payment was made on February 2, 2009. In order
to qualify for the disability pension, an applicant must meet the requirements
set out in paragraph 44(1)(b) of the CPP, namely: be under sixty-five,
not have retirement pension payable, be disabled and have made sufficient valid
contributions to the CPP. As required by subsection 42(2) of the CPP, a person
is “disabled” if he or she has a severe (incapable of pursuing any
substantially gainful occupation) and prolonged (likely to be long, continued
and of indefinite duration or to result in death) mental or physical
disability.
[8]
The
RT considered several medical reports pertaining to the applicant, including an
October 13, 2009 report from her former family physician, Dr. Maidment, stating
that she was unable to return to any gainful employment; several X-rays and
bone scans; documentation pertaining to her carpal tunnel syndrome before and
after her surgery (RT’s decision, paras 16-20); and a report from the Workers’
Compensation Board of Nova Scotia (WCB) summarizing an examination by Dr. Koshi
on December 4, 2008, and concluding that she could return to work immediately
(Respondent’s Record, Volume I, pp 101-16). The RT also referred to a November
14, 2008 report from Dr. Maidment stating that the applicant is only capable of
sedentary duties and cannot lift more than 10 pounds (Respondent’s Record,
Volume I, pp 132-35).
[9]
During
the RT hearing, the applicant gave oral evidence to the fact that her main
problem is her left wrist as a result of the injury on July 14, 2008. She
stated that she is able to do household chores, but cannot lift without her
brace. She reported that she could work if she wore her brace, but feels that
no one will hire her because of the brace. She gave a demonstration that she
could lift a full pitcher of water with her left hand when wearing her brace.
The RT found the applicant to be forthcoming and credible; however, it was
ultimately not convinced, on a balance of probabilities, that the applicant’s
disability was severe and prolonged in such a way to prevent her from all types
of employment as of January 31, 2009.
[10]
The
RT’s decision dismissing the applicant’s appeal was made on July 28, 2011 and
was communicated to the applicant on August 2, 2011. Finally, pursuant to
subsection 83(1) of the CPP, the applicant applied for leave to appeal to the
PAB on August 2, 2011 (Respondent’s Record, Volume I, p 11). Leave to appeal
was denied by the PAB member in a decision dated October 5, 2011. This last
decision is the one under review before this Court.
The Issues
[11]
The
issue in this case is whether the PAB member’s decision refusing leave to
appeal to the PAB was reasonable.
[12]
The
review of a decision to grant or deny leave to appeal to the PAB involves the
assessment of two issues: (1) whether the correct test of arguable case was
applied by the PAB member and (2) whether an error was committed in determining
whether an arguable case arose (Callihoo v Canada (Attorney General),
[2000] FCJ No 612 (QL) at para 15, 97 ACWS (3d) 159 [Callihoo]).
Standard of
Review
[13]
The
respondent claims that both these issues are reviewable on a standard of
reasonableness (citing Alberta (Information and Privacy Commissioner) v
Alberta Teachers’ Association, 2011 SCC 61 at para 39, [2011] 3 S.C.R. 654 and
Canada (Canadian Human Rights Commission) v Canada (Attorney General),
2011 SCC 53 at para 24, [2011] 3 S.C.R. 471). The Court agrees that when a
decision-maker is interpreting and applying its own statute, or has developed a
particular expertise in applying a general common law principle in a specific
context, a decision-maker should be allowed deference by applying the standard
of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 54,
[2008] 1 S.C.R. 190 [Dunsmuir]). The question of which test was applied is
purely a question of law that remains reviewable on a standard of correctness (Dunsmuir,
above). Its application, however, is reviewable on a standard of
reasonableness.
[14]
Hence,
the first issue of whether the correct test was applied is therefore reviewable
on a standard of correctness, while the proper application of this test is
reviewable on a standard of reasonableness (Canada (Attorney General)
v Zakaria, 2011 FC 136 at para 15, [2011] FCJ No 189 (QL) [Zakaria]).
[15]
Pursuant
to Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 20-22, [2011] 3 S.C.R. 708 [NL Nurses],
the adequacy of reasons must not be evaluated as a potential breach of
procedural fairness, but rather be subsumed under the reasonableness analysis.
Indeed, the Supreme Court of Canada has stated that “[w]here there are no
reasons in circumstances where they are required, there is nothing to review.
But where … there are reasons, there is no such breach. Any challenge to
the reasoning/result of the decision should therefore be made within the
reasonableness analysis.” (NL Nurses, above, at para 22).
Statutory
Provisions
[16]
Several
statutory provisions are relevant in this case. They are presented in the Annex
to this judgment.
Analysis
[17]
As
a preliminary note, the Court agrees with the respondent that the applicant’s
Exhibit “H”, a letter from Dr. Maidment dated July 15, 2009, does not appear to
have been before the RT nor the PAB. In the context of judicial review, this
new evidence cannot be considered by the Court (Davies v Canada (Minister of
Human Resources Development), [1999] FCJ no 1514 (QL) at para 39, 92 ACWS
(3d) 162 [Davies]) and will be struck from the record.
[18]
The
legislative scheme, as it pertains to benefits under the CPP, grants applicants
a reconsideration of the initial medical adjudicator’s decision as of right
(subsection 81(1) of the CPP), as well as an appeal of that reconsideration to
the RT, also as of right (subsection 82(1) of the CPP).
[19]
In
order to move on to the next step, appealing the RT’s decision to the PAB, the
legislator has determined that it is necessary to first obtain leave to appeal
by applying in writing (ss 83(1) of the CPP). The specific content of this
written application are set out in section 4 of the PAB Rules.
[20]
In
the present case, the applicant’s application for leave to appeal is deficient
and does not meet the requirements set out in section 4 of the PAB Rules (Respondent’s
Record, Volume I, p 11). Although the applicant used the correct form (Schedule
1 of the PAB Rules), she failed to indicate the grounds upon which she
would rely to obtain leave to appeal as required by paragraph 4(d) of
the PAB Rules. She also failed to include a statement of allegations of
fact, statutory provisions and reasons in support of her appeal as requires
paragraph 4(e) of the PAB Rules.
[21]
An
application for leave to appeal must demonstrate an arguable case (Kerth v
Canada (Minister of Human Resources Development), [1999] FCJ no 1252 at
para 24 (QL), 173 FTR 102; Callihoo, above, at para 15).
[22]
When
assessing whether or not to grant leave to appeal, the PAB member must evaluate
if there is an arguable case (Zakaria, above; Callihoo, above).
The Court agrees with the observations made by Justice de Montigny in
Zakaria at para 39:
Although a leave to appeal application is a first,
and lower, hurdle to meet than that which must be met at the hearing of the
appeal on the merits, the application must still raise some arguable ground
upon which the proposed appeal might succeed. …
[23]
In
this case, there is no arguable case that can be identified on the face of the
application for leave to appeal. The applicant raises no grounds for appeal
before the PAB. She identified no errors of relevant significant fact or errors
of law and adduced no new evidence. It follows that the only conclusion the PAB
member could have drawn is that the applicant does not raise an arguable case
since she does not raise any case whatsoever, arguable or not. The Court is
satisfied that the PAB member applied the correct test in this case.
[24]
Subsection
83(3) of the CPP expressly provides for written reasons when leave is denied.
In the case at bar, the Court is satisfied that the PAB member did provide some
reasons and more specifically referred to paragraph 42 of the RT decision. The
RT reviewed the evidence, considered the oral testimony and made factual
findings (RT’s decision at paras 2, 3, 10, 11, 20 and 39). There is no error in
the RT’s decision that would raise an arguable case warranting the grant for
leave.
[25]
On
the basis of the evidence in the case at bar, the conclusion that no arguable
case was raised is thus a “result (that) falls within a range of possible
outcomes” (NL Nurses, above, at para 14).
[26]
As
much as the Court sympathizes with the applicant, it nevertheless finds that
the PAB member did not err in dismissing leave to appeal in light of the record
before him. The Court’s intervention is not warranted and the application for
judicial review is dismissed.
[27]
The
Attorney General of Canada did not ask for costs. The Court will therefore not
grant costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1. The
application for judicial review be dismissed.
2. Exhibit
“H” to the applicant’s affidavit is to be struck from the record.
3. No
costs.
“Richard Boivin”
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