Docket:
A-500-12
Citation:
2013 FCA 254
CORAM:
STRATAS
J.A.
WEBB
J.A.
NEAR
J.A.
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BETWEEN:
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TANYA GAUDET
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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
STRATAS J.A.
[1]
Ms. Gaudet applies to quash the decision dated
August 22, 2013 of the Pension Appeals Board. The Board denied her application
for disability benefits under the Canada Pension Plan, R.S.C. 1985, c.
C-8.
[2]
Originally, the respondent was named as the
Minister of Human Resources and Skills Development. Under Rule 303(2), the
respondent should be the Attorney General of Canada. Accordingly, at the outset
of the hearing, the Court amended the title of proceeding.
[3]
At the outset of the hearing, Ms. Gaudet sought
permission to file a new, unsworn document to provide information about her
recent condition and to give some background to a medical report in the record.
The respondent objected to its admission.
[4]
The respondent’s objection is well-founded: even
if sworn, documents like this are not normally admissible on an application for
judicial review (see, e.g., Association of Universities and Colleges
of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012
FCA 22, 428 N.R. 297). Even if the document were admissible, it would not have
affected the outcome of this application for judicial review.
[5]
Under subsection 42(2) of the Plan, an
applicant for disability benefits must demonstrate, among other things, that
her disability is “severe and prolonged” such that she could not pursue
regularly any substantially gainful occupation by the end of her minimum
qualifying period under the Plan, here December 2001.
[6]
Many applicants for disability benefits are
suffering pain and discomfort at the time of the Board’s proceedings and the
judicial review in this Court. Many are unsuccessful. This is no reflection on
them or their condition. It is a reflection only of the difficult standard
applicants must meet in order to demonstrate their disability is “severe and
prolonged” within the meaning of subsection 42(2) of the Plan.
[7]
In this case, the Board found that most of the
medical evidence on file was dated 2004 or later – well after the relevant
December 2001 date. Further, in its view, this evidence fell short of the difficult
“severe and prolonged” standard under the Plan.
[8]
In particular, based on the medical and other
evidence before it, the Board held that by the relevant time, December 2001, Ms.
Gaudet did not have a “severe” disability within the meaning of the Plan
and associated case law. The Board conceded that Ms. Gaudet’s medical condition
today might be “severe,” but the medical reports did not support severity as of
December 2001.
[9]
In an application for judicial review, this
Court’s powers are limited. We are not allowed to retry the factual issues,
reweigh the evidence or re-do what the Board did. Rather, we are to assess
whether the Board reached an outcome that was acceptable and defensible on the
facts and the law: Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 47.
This is a deferential standard. In a case like this, where the decision is
mainly factual, the range of defensible and acceptable outcomes available to
the Board is relatively wide: First Nations Child and Family Caring Society
of Canada, 2013 FCA 75 at paragraph 13.
[10]
In my view, the Board examined the evidence before
it and reached an outcome that was acceptable and defensible on the facts and
the law. There is no basis upon which this Court can intervene. In saying this,
I do not minimize at all the pain and discomfort Ms. Gaudet has been and is now
experiencing. This Court is simply bound by the wording of subsection 42(2) of
the Plan, the associated case law, and its limited powers on an application for
judicial review.
[11]
Accordingly, despite the informative and
eloquent submissions of Ms. Gaudet, I would dismiss the application. In these
circumstances, the Crown has not asked for its costs and so none shall be
awarded.
"David Stratas"
“I agree
WymanW. Webb J.A.”
“I agree
D.G. Near J.A.”
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