Date: 20070531
Docket: T-589-05
Citation: 2007 FC 578
Vancouver, British Columbia, May 31, 2007
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
JOHN
FALBO
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] A designated member of the Pension Appeals Board (Board)
rejected the Applicant’s application for leave to appeal the decision of the
Review Tribunal. The Review Tribunal had denied the Applicant’s appeal for
disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8.
[2] The
43-year-old Applicant contributed to the Canada Pension Plan (CPP) from 1983 to
2003. In addition to various jobs he held as a young man, between 1991 and
November 2001 he worked as a labourer for the City of Vancouver. The Applicant
could no longer work for the City as a result of neck, shoulder and back pain.
He has suffered numerous work-related injuries and has undergone three
surgeries. The Applicant continues to have chronic pain and numbness, limited
mobility and concentration problems.
[3] On
November 15, 2002, the Applicant applied for CPP disability benefits. On
February 17, 2003, the Minister of Social Development denied his application. A
subsequent request for reconsideration was denied on October 1, 2003.
[4] The
Applicant appealed the Minister’s decision to the Tribunal. On December 23,
2004, the Tribunal dismissed the appeal. The Applicant applied to the Board for
leave to appeal the Tribunal’s decision listing numerous grounds of review. On
March 1, 2005, the Board dismissed the Applicant’s request for leave. The
Board’s decision reads:
The Review Tribunal considered
the evidence.
The Tribunal included members
with legal and health sciences background. After reviewing the numerous reports
the Tribunal concluded that the Applicant’s condition did not meet the
legislated test for severe disability in that other avenues of treatment and
employment were open to him but not pursued.
There was no demonstrated error
on the part of the Tribunal or new evidence put forward that may likely lead to
a different conclusion on appeal.
I am not persuaded therefore that
leave should be granted.
Leave to appeal is refused.
[5] The
first issue is whether the Board applied the proper test in reaching its
decision to refuse the application for leave to appeal. As this is a question
of law, both parties submit and I agree that the standard of correctness is the
appropriate standard of review (Callihoo v. Canada (Attorney
General), [2000] F.C.J. No. 612 (F.C.T.D.) (QL).
[6] In
Martin v. Canada (Minister of Human Resources Development),
[1999] F.C.J. No. 1972 (F.C.A.), Justice Malone for the Federal Court of Appeal
articulated the “arguable case” test which the Board must apply in deciding an
application for leave to appeal. He stated at paragraph 5:
Justice Reed [in Kerth v. Canada
(Minister of Human Resources Development), [1999] F.C.J. No. 1252] found
that a leave to appeal proceeding is a preliminary step to a hearing on the
merits. As such “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” … [S]ome
arguable ground upon which the proposed appeal might succeed is needed in order
for leave to be granted.
[7] In
Callihoo at paragraph 15, Justice McKay observed that two issues are
involved when reviewing a Board’s decision on an application for leave to
appeal:
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 warrants the grant of leave.
[8] In
the present case, the Board found “[t]here was no demonstrated error on the
part of the Tribunal or new evidence put forward that may likely lead to a
different conclusion on appeal.”
[9] In
Grenier v. Canada (Minister of Human Resources Development),
[2001] F.C.J. No. 1447 (F.C.), Justice O’Keefe had occasion to consider
language very similar to the language used by the Board in this case. He stated
at paragraph 14:
It is clear from the
jurisprudence of this Court that it is not my role to assess the merits of the
application. The Member Designate stated that in order for him to grant leave
to appeal, it “requires a demonstrated error on the part of the Review Tribunal
or additional evidence that may lead to a different conclusion on appeal ….”
According to the Martin, supra decision and the Callihoo, supra
decision, this is not the test to be applied. The test is whether or not the
application raises an arguable issue. The Member Designate made an error by
applying an incorrect test when determining whether or not to grant leave.
[10] I
agree with Justice O’Keefe. The “demonstrated error” test used by the Board in
this case is a more onerous test to meet than the “arguable case” test
established in Martin. Accordingly, I conclude that the Board did not
apply the correct test in reaching its decision.
[11] With
regard to the second issue referred to by Justice MacKay in Callihoo,
the Applicant lists a host of issues that in his view meet the threshold of an
arguable case. While it is not the function of this Court to assess the merits
of these issues, in my opinion, the application for leave to appeal does raise,
at least, the following arguable issues: that in determining whether the
Applicant’s disability is severe as required by section 42(2)(a)(i) of the Plan
the Tribunal failed to apply the “real world” test found in Villani v.
Canada (Attorney General) 2001 FCA 248; the Tribunal applied the incorrect
test “capable of working at light duties” instead of the statutory test of
“incapable of regularly pursuing any substantially gainful occupation”; and in
stating that the Applicant had not exhausted “all reasonable forms of
investigation and treatment”, the Tribunal imposed a requirement not found in
the Plan.
[12] For
these reasons, the application for judicial review is allowed with costs to the
Applicant.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The application for judicial review is allowed and the decision
of the designated member of the Board dated March 1, 2005, is set aside.
2.
The matter is remitted for re-determination by a different member
of the Board.
3.
The Applicant is awarded costs to be assessed at the mid-range of
Column III of Tariff B.
"Dolores
M. Hansen"
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