Date: 20081229
Docket: T-425-08
Citation: 2008 FC 1414
Ottawa,
Ontario, December 29, 2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
LARRY
MITCHELL FANCY
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT CANADA (S.D.C.)
formerly Human Resources Development Canada
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application by Larry Mitchell Fancy seeking a review of a decision by a
designated member of the Pension Appeals Board (Board) denying leave to appeal to
the Board from an earlier unfavourable decision by a Canada Pension Plan Review
Tribunal (Review Tribunal).
I. Background
[2]
Larry
Fancy applied for Canada Pension Plan (CPP) disability benefits on June 7,
2006. His application was based on a work-related shoulder injury sustained on
May 13, 2004. Although Mr. Fancy’s injury was surgically repaired he has
been left with a painful, weak and restricted right shoulder which prevents him
from working in labour intensive occupations. He has been assessed by the Nova
Scotia Worker’s Compensation Board with a whole body disability rating of 2.4 %
and he receives, from that source, an earnings replacement benefit of $1,521.97
per month. The Worker’s Compensation Board decision clearly recognized Mr.
Fancy’s limitations but it also noted his ability to work in relatively
sedentary positions.
[3]
Notwithstanding
his disability, the Record also indicates that since applying for a CPP
disability benefit, Mr. Fancy had been employed on a part-time basis as a
school custodian. His duties included garbage removal and wet mopping and
buffing of floors. He had also done some work as a painter.
The Decisions Below
[4]
Mr.
Fancy’s initial application for a CPP disability benefit was denied by the
Minister because his condition was found not to be sufficiently disabling to
meet the statutory test for a severe and prolonged disability. That decision is
reflected in the following passage from the Minister’s decision letter of
August 23, 2006:
To qualify, you must be under the age of
65 and meet 2 rules:
1.
You must have
sufficient earnings and contributions to qualify for CPP
disability benefits. This means that you must have paid into the CPP for at
least 4 of the last 6 years. We can then review your medical
information to see if you meet rule number 2.
2.
You must have
a disability that is both severe and prolonged. Severe
means that you have a mental or physical disability that regularly stops you
from doing any type of work (full-time, part-time or seasonal), not just the
work you usually do. Prolonged means that your disability is likely to
be long term and of indefinite duration, or likely to result in
death.
Note: The definition of disability
under the CPP legislation is provided in the attached information sheet How
to Ask Canada Pension Plan (CPP) Disability to Reconsider Its Decision.
In your case, you have enough
contributions until December 2006. However, you do not have a disability that
is both severe and prolonged as defined under the CPP
legislation.
Reasons for the decision
We reviewed all the information and
documents in your file including all the reports you sent. These are the
reports we have on file:
·
your
application and your questionnaire
·
you family
doctor’s report dated June 4, 2006
·
your
orthopedic specialist’s reports dating from October 26, 2004 to March 24, 2005
·
a copy of
your file from the Workers Compensation Board (WCB)
We recognize that you have identified
limitations resulting from your shoulder problems. However, the following
factors were also considered.
·
According
to your family doctor’s report, although he is supportive of your application,
this does not correlate with the objective medical evidence on file.
·
According
to your orthopedic specialist’s reports sedentary work activity was
recommended.
·
According
to the information we received from WCB you have limitations with regards to
right shoulder. However, they have provided a list of jobs that are available
in you home area that suits your condition and limitations. This would not
support that you are disabled from all forms of work as per CPP criteria.
While you may not be able to do your
usual work, we concluded that you should still be able to do some type of work.
[5]
On
September 18, 2006 Mr. Fancy asked the Minister to reconsider the denial of
benefits but the initial decision was upheld.
[6]
Mr.
Fancy appealed the Minister’s decision to a Review Tribunal under ss. 82(1) of
the CPP. Following a hearing on July 17, 2007 at Bridgewater, Nova Scotia the Review
Tribunal dismissed Mr. Fancy’s appeal for the following reasons:
[19] While the Tribunal understands
that certain movements of the Appellant’s affected shoulder will cause sharp
pain, his stated need of pain relieving medications has been averaging up to
three times per week of non-prescription Tylenol only.
[20] The Tribunal found Mr. Fancy to
be a credible witness with a strong life long work ethic. His desire to be
productive within his limitations, which are beyond dispute, has resulted in a
new career as school custodian. The Tribunal was impressed that he was able to perform
a full time stint for an absent worker in 2006. That raised his 2006 earnings
as school custodian to $11,245 from a predicted part time earning of $6692. As
well, Mr. Fancy has accepted a full time painting job this summer.
[21] In response to the criteria of
‘substantially gainful’, the Tribunal found the earnings of his job with
Eisener’s Transport at $11.50 per hour comparable with his earnings painting
the school this summer full time for six to eight weeks at $12.00 per hour.
[22] While the initial injury,
followed by surgery, a complicated post operative course and subsequent therapy
was temporarily disabling, Mr. Fancy has recovered to the point where he is
able to perform modified remunerative work full time. Full time work is
contrary to the purpose of the CPP disability program. The Tribunal feels that
as he is able to perform in a full-time job satisfactorily, his disability
cannot be classified as severe and prolonged as defined by the CPP.
CONCLUSION:
[23] The Tribunal accepts Mr. Fancy’s
claim that he does experience a degree of disability following his accident of
May 13, 2004 and subsequent complicated treatment but that disability does not
meet the criteria found in the CPP at paragraph 42(2)(a) where the disability
must be severe and prolonged.
[24] The Tribunal has therefore
dismissed the Appellant’s appeal.
[7]
Mr.
Fancy was dissatisfied with the Review Tribunal decision and sought leave to
appeal to the Pension Appeals Board under s. 83(1) of the CPP. His application
for leave offered the following grounds for the proposed appeal:
·
The Review
Tribunal erred in law in finding that Mr. Fancy does not suffer from a severe
disability such that he is incapable of regularly pursuing any substantially
gainful occupation;
·
The Review
Tribunal erred in law in finding that Mr. Fancy does not suffer from a
disability that is prolonged and of indefinite duration:
·
The Review
Tribunal erred in law in failing to consider Mr. Fancy’s age, education, work
history and training in determining his ability to work, contrary to the
decision of Villani v. Canada (Attorney General), 2001 F.C.A.
248;
·
The Review
Tribunal erred in law in failing to consider the medical evidence which exists
to support Mr. Fancy’s disability as falling within the definition in s. 42(2)
of the Canada Pension Plan;
·
Such other
grounds as may appear.
No additional supporting medical
information was submitted with the application for leave beyond what was
previously available to Mr. Fancy. That medical information confirmed that he
was able to work albeit in a job that involved only “light duties”. The report
of the treating specialist, Dr. Gregory Clarke, indicated that
Mr. Fancy needed to find “more sedentary work”.
[8]
In
a decision dated February 14, 2008 the Board denied Mr. Fancy’s application for
leave to appeal by way of the following endorsement:
The Review Tribunal’s decision indicates
a correct and complete consideration of the evidence.
The fact is that the Appellant was
working as late as the summer of 2007 at a pay rate that can be considered
“substantially gainful.” The documentation sent with the Application for Leave
does not change this. There is no reasonable chance of success on appeal.
Leave is refused.
[9]
It
is from this decision that Mr. Fancy brings this application for judicial
review.
II. Issues
[10]
Did
the Board err in refusing Mr. Fancy’s application for leave to appeal?
III. Analysis
[11]
Mr. Fancy
relies upon the decision in Villani v. Canada (Attorney
General),
2001 FCA 248, [2002] 1 F.C. 130, to support his argument that the standard of
review on this application is correctness. Villani was, however, a
judicial review of a decision by the Board on the merits involving a point of
statutory interpretation. The question resolved in that case concerned the meaning
of the word “severe”. Because it was an issue that had been effectively
isolated from its factual surroundings, it was appropriately assessed on the
standard of correctness.
[12]
The
issue presented on this application is one of mixed fact and law. In
considering whether to grant leave to appeal the Board was required to assess
the factual evidence (mainly medical) against the legal test for disability
under the CPP and to decide if there was an arguable case. I adopt the
following reasoning of Justice Elizabeth Heneghan in Pannu v. Canada (Human
Resources Development), 2007 FC 1348, [2007] F.C.J. No. 1738, for the
proposition that the appropriate standard is reasonableness:
[18] The issue before the Board was
whether the Applicant had raised an arguable case in his application for leave
to appeal. This involved consideration of the evidence that had been presented
to the Review Tribunal and any new evidence that had been submitted with the
application for leave, as well as the relevant provisions of the Canada Pension
Plan. In my opinion, his application for leave to appeal raises a question of
mixed fact and law. Generally, a question of mixed fact and law will be
reviewed on the standard of reasonableness.
[13]
I
accept Mr. Power’s point that the question of whether Mr. Fancy met
the definition of disability under the CPP was required to be answered in the
context of his personal circumstances, including his limited education, his age
and the prevailing commercial realities: see Villani, above, at para. 45.
Nevertheless, the foundation for a person’s disentitlement to CPP disability
benefits is employability in any substantially gainful occupation. I do
not agree that this involves a comparative analysis of one’s current income to
that of the past and the authorities do not support such a proposition. It may
well be that Mr. Fancy is not now capable of earning as much as he did
before his injury, but the medical evidence and his actual employment history
belie any argument that he is not capable of maintaining gainful employment.
That medical evidence and employment history was before the Board when it was
asked to consider Mr. Fancy’s application for leave to appeal. On the
record that was presented to the Review Tribunal and having regard to its findings,
the Board’s conclusion that there was no arguable case to be made was not only
reasonable, it was incontrovertible.
[14]
This
application for judicial review is dismissed without costs.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed without
costs.
“ R. L. Barnes ”
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