Date: 20080409
Docket: T-1360-07
Citation: 2008 FC 461
Vancouver,
British Columbia, April 9, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
JERRY
SAMSON
Applicant
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Introduction
[1]
Mr. Jerry Samson (the “Applicant”) seeks
judicial review of the decision of a designated member of the Pension Appeals
Board (the “Pension Appeals Board” or “the Board”) granting the Minister of
Social Development (the “Minister”) leave to appeal respecting a decision made on
February 12, 2007 by a Review Tribunal constituted under the Canada Pension
Plan, R.S.C. 1985, c. C-8 (the “CPP”). The decision to grant leave to
appeal by the Pension Appeals Board was made on June 1, 2007 and received by
the Applicant on or about July 9, 2007.
II.
Background
[2]
The Applicant applied for disability benefits
pursuant to the CPP on or about July 3, 2005. In the questionnaire that formed
part of his application, he described his most recent job position as a
Quartermaster with the Canadian Coast Guard. He indicated that his last day at
work was December 3, 2004 and the reason for his cessation of working was
stress.
[3]
By letter dated August 11, 2005, a
representative of the Minister advised the Applicant that he was ineligible for
disability benefits “because you should still be able to work.” The Applicant
was advised that if dissatisfied with the decision, he had the right to request
that it be reconsidered.
[4]
By letter dated August 22, 2005, the Applicant asked
for reconsideration of the decision. By letter dated December 13, 2005, Human
Resources Development Canada (“HRDC”) informed the Applicant that following a
review of all information and documents, including a medical report dated
November 22, 2005 and reports requested from SunLife in October 2005, the
original decision to deny disability benefits was being maintained.
[5]
By letter dated January 24, 2006, counsel for
the Applicant wrote to the Office of the Commissioner of Review Tribunals to
advise that the Applicant was appealing the decision denying him disability
benefits. By letter dated January 30, 2006, the Commissioner of Review
Tribunals advised that the letter would be accepted as a Notice of Appeal.
[6]
A hearing before the Review Tribunal was held at
St. John’s, Newfoundland and Labrador on December 21, 2006. In a
decision dated February 12, 2007, the Review Tribunal allowed the Applicant’s
appeal. It found the Applicant to be disabled as of December 2004 and said
that his disability benefits commence payment in April 2005.
[7]
On or about May 11, 2007, the Minister filed an
Application for Leave to Appeal and Notice of Appeal relative to the decision
of the Review Tribunal. That Application set forth the following ground of
appeal:
The Review Tribunal
erred in fact and in law in deciding the Respondent was entitled to a
disability pension since the Respondent was not suffering from a severe and
prolonged disability within the meaning of paragraph 42(2)(a) of the Canada
Pension Plan.
[8]
The Application for leave to Appeal alleged that
the Applicant “had earnings in the amount of $41,100.00 for the year 2005 after
the date in which he stopped working” and referred to a Record of Earnings
included at pages 2 to 12 of the documentary evidence that was submitted with
the Application for leave to Appeal and Notice of Appeal as Appendix “A”. The
documentary evidence in Appendix “A” also included medical reports that were
before the Review Tribunal.
[9]
By letter dated June 8, 2007, the Applicant was
informed that the Minister was granted leave to appeal the decision of the
Review Tribunal, pursuant to section 83 of the CPP. The Applicant filed his
Notice of Application for judicial review on July 25, 2007, seeking an order to
quash the decision granting leave to appeal to the Minister.
III.
Submissions
[10]
The Applicant submits that correctness is the
applicable standard of review to the decision of the member of the Pension
Appeals Board who decided to grant leave to appeal. He relies in this regard
upon the decision in Kerth v. Canada (Minister of Human Resources Development) (1999), 173 F.T.R. 102, where Madam Justice Reed said the following
at paragraph 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 to the deferential end.
[11]
The Applicant argues that the test for granting
leave was stated in Callihoo v. Canada, 190 F.T.R. 114, by Justice
MacKay at paragraph 15 as follows:
On the basis of this recent jurisprudence, in 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.
[12]
The Respondent submits that the Board committed
no error in granting leave to appeal.
[13]
Following the hearing on March 20, 2008, the
parties were given the opportunity to make further submissions, if they wished,
on the question of the applicable standard of review, in light of the recent
decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9. The
Applicant made no further representations. The Respondent filed a brief
submission, arguing that since the question in issue is one of mixed fact and
law, the appropriate standard of review is reasonableness.
IV.
Discussion and Disposition
[14]
I agree with the Respondent that the standard of
reasonableness applies here. The Board had to determine whether the
application for leave to appeal and Notice of Appeal raised an arguable case,
without otherwise assessing the merits of the decision under appeal, that is,
the test stated in Callihoo.
[15]
The Application for Leave to Appeal contains new
evidence, that is, a Record of Employment as of March 5, 2007. This document was
apparently generated on March 12, 2007 but it specifically refers to
information “as of 05 MAR 2007”. This document, in my opinion, is clearly new
evidence, that is, evidence that came into existence after the hearing before
the Review Tribunal in December 2006 and after the decision of that Tribunal
was delivered on February 12, 2007.
[16]
In Kerth, Madam Justice Reed commented on
the relevance of new evidence upon an application for leave to appeal to the
Pension Appeals Board at paragraph 27 as follows:
In any event,
regardless of the accuracy of the above description of the procedure, 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.
[17]
The critical question is 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.
[18]
The issue for determination when a person seeks
the award of a disability under the CPP is the existence of a disability
pursuant to subsection 42(2). That provision requires that a disability be
both severe and prolonged. Pursuant to sub-paragraph 42(2)(a)(i), “severity”
is described in terms of ability to work. In Villani v. Canada (Attorney General) (2001), 205 D.L.R. (4th) 58 (F.C.A.) at para. 38, the
Federal Court of Appeal defined a substantially gainful occupation as “any
truly remunerative occupation.”
[19]
I agree with the Respondent’s submissions that
the new evidence about the Applicant’s reported earnings for 2005 raises a genuine
doubt as to whether the Review Tribunal would have reached the same conclusion
if this record of earnings had been before it. I also agree with the
Respondent’s arguments that the decision of the Review Tribunal arguably
demonstrates a lack of analysis relative to the medical reports that were
before it.
[20]
In Canada (Attorney General) v. Fink, [2006]
F.C.J. No. 1655 (F.C.A.), the Federal Court of Appeal said that a selective
summary of evidence without explanation why a Review Tribunal prefers some medical
or opinion evidence over other such evidence establishes a reviewable error.
[21]
In this case, the member of the Pension Appeals
Board gave no reasons for his decision to grant the Minister leave to appeal
from the Review Tribunal. There is no statutory requirement that reasons be
given when leave to appeal is granted; see Mrak v. Canada (Minister of Human Resources
and Social Development), 2007 FC 672 at para. 6.
[22]
The test for obtaining leave to appeal is that
an appellant demonstrate that an arguable case arises from an application for leave
to appeal and the Notice of Appeal. I am satisfied that the application for leave
to appeal and the Notice of Appeal raise an arguable case, on the basis of the
new evidence submitted by the Minister and the arguments advanced about the
lack of analysis of the medical evidence by the Review Tribunal. There is no
basis for judicial intervention and this application for judicial review is
dismissed.
[23]
In the exercise of my discretion pursuant to the
Federal Courts Rules, SOR/98-106, I make no order as to costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application
for judicial review is dismissed; no order as to costs.
“E. Heneghan”
Email this Content