Date: 20110606
Docket:
A-249-10
Citation:
2011 FCA 189
CORAM: NADON
J.A.
EVANS
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
THOMAS WALKER
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1] Mr.
Walker seeks judicial review of a decision of the Pension Appeals Board (the
PAB) determining that a recent diagnosis of sleep apnea submitted for
consideration under subsection 84(2) of the Canada Pension Plan, R.S.C.
1985, c. C-8 (the CPP) did not meet the test for “new facts” required to
re-open its previous decision that Mr. Walker was not suffering from a severe
and prolonged disability as of the minimum qualifying period (MQP), December
31, 1998.
[2] Mr.
Walker first applied for disability benefits nearly 11 years ago. For present
purposes, I need only refer to the PAB decision dated June 5, 2006 (the 2006
decision) dismissing his application. Judicial review of that decision was
dismissed by this Court. Subsequently, he unsuccessfully applied again.
[3] On June 4,
2009, Mr. Walker requested reconsideration of the 2006 decision on the basis of
“new facts”, specifically the diagnosis of Dr. Rick Balys contained in a
medical report dated May 27, 2009. Dr. Balys diagnosed Mr. Walker as suffering
from severe sleep apnea. Dr. Balys indicated that he suspected the condition
had existed for 10 years and would have been diagnosed before the 2006 hearing,
had appropriate sleep studies been undertaken.
[4] Mr. Walker
also provided a letter from his long-standing family physician, Dr. M. Teresa
Dykeman. She explained that sleep apnea “was not truly appreciated as a
diagnosis” and “wasn’t in vogue” at the time of Mr. Walker’s car accident in
1997, but in retrospect, “he had symptoms of this since 1997.”
[5] Subsection
84(2) of the CPP permits the PAB to rescind or amend a decision on the basis of
“new facts”. There are specific requirements that must be met for evidence to
constitute “new facts”. Mr. Walker must meet the two-part test most recently
articulated in Gaudet v. Canada (Attorney General), 2010
FCA 59 (Gaudet). First, it is necessary to establish a fact (usually a
medical condition in the context of the Plan) that existed at the time of the
original hearing, but was not discoverable before the original hearing by the
exercise of due diligence (the discoverability test). Second, the fact must
reasonably be expected to affect the result of the prior hearing (the
materiality test). Both parts of the test must be satisfied to meet the
definition of “new facts” within the meaning of the CPP.
[6] The PAB
dismissed the “new facts” application by relying on the test in Gaudet.
It noted several references to Mr. Walker’s sleeping difficulties in the 2006
record and it relied on the evidence of the respondent’s witness, Dr.
Gonsalves, who testified that sleep apnea had in fact been in the medical
literature since 1965, with successful therapy being used since 1995. On that
basis, the PAB concluded, “it has not been demonstrated that sleep apnea would
not have been discovered with due diligence.” With respect to whether Mr.
Walker’s diagnosis of sleep apnea would have materially affected the outcome of
the 2006 decision, the PAB found, “on the contrary, an early diagnosis would
likely have served to advance his treatment and decrease his disability.”
[7] Mr. Walker
attacks the PAB decision on two fronts. First, he asserts error in the
application of the two-part test. He argues that the PAB erred in preferring
the evidence of Dr. Gonsalves over his own doctor’s testimony and further erred
in penalizing him for his doctor’s failure to diagnose his sleep apnea in 1997.
He maintains that discoverability should have been considered only from his
perspective as a claimant. In assessing materiality, Mr. Walker claims the PAB
erred by basing its conclusion on a generic view that any prior evidence of
sleep deprivation would have rendered the diagnosis of sleep apnea irrelevant
to the 2006 decision. In doing so, it contravened the “broad and generous
approach” to new facts advocated in Kent v. Canada (Attorney General),
2004 FCA 420 and Canada (Attorney General) v. MacRae, 2008
FCA 82.
[8] Second, in
his written submissions, he argues that the reasons are inadequate because the
PAB failed to provide a full written explanation for its decision. According to
Mr. Walker, there is insufficient explanation in the decision to determine
whether the PAB properly applied the test. This argument was not pursued at the
hearing.
[9] The standard
of review applicable to a decision of the PAB regarding “new facts” under
subsection 84(2) of the CPP is reasonableness: Gaudet; Higgins v.
Canada (Attorney General), 2009 FCA 322. To be reasonable, the PAB’s
decision must demonstrate “justification, transparency and intelligibility in
the decision making process” and fall “within the range of possible, acceptable
outcomes”: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190.
[10] At the
hearing, the respondent’s counsel advised that he was not arguing the
discoverability aspect of the test, but was relying on the PAB’s finding with
respect to materiality. Therefore, I will assume, for purposes of this appeal,
that Mr. Walker is correct in relation to discoverability. However, I find the PAB’s
conclusion with respect to the materiality aspect of the test to be reasonable.
Further, the PAB’s reasons do reveal a consideration as to whether the
diagnosis of sleep apnea could have impacted the 2006 decision with respect to
the level of disability prior to the date of the MQP. Consequently, the
conclusion that Mr. Walker’s recent diagnosis of sleep apnea does not
constitute “new facts” for the purpose of subsection 84(2) of the CPP was
reasonable.
[11] Mr. Walker
does not dispute the finding that the 2006 record was replete with references
of problematic sleep patterns and sleep deprivation. Although the initial claim
for benefits was centered on Mr. Walker’s back and muscle problems, it cannot
be said that the inability to consider a diagnosis of sleep apnea
prevented him from presenting a complete account of his disability at the time
of the application. As the PAB noted, “it is not the diagnosis of sleep apnea
that is material, but rather the impact of the lack of restorative sleep on the
applicant’s capacity to work.”
[12] Further, as
stated by the PAB, the current diagnosis is not in question. The issue (in
relation to materiality) concerns the potential for the sleep apnea diagnosis
to affect the 2006 decision that a severe and prolonged disability had not been
established by the MQP date of December 31, 1998. In this respect, the medical
opinions do not strongly point to a condition that could have materially
affected an assessment of Mr. Walker’s work capacity on that date. Dr. Balys
put forth a suspicion and Dr. Dykeman offered a rather oblique comment that “in
retrospect he had symptoms of this since 1997.”
[13] Most
significantly, the medical opinion of Dr. Balys indicates that Mr. Walker is
“very responsive” to his sleep apnea treatment and, since his diagnosis, “his
mood and energy is improving and they will continue to do so.” Mr. Walker
acknowledges that since beginning his treatment, he is “finally able to get
some sleep after many long years (probably decades) of sleepless nights.”
Although this evidence speaks directly to the issue before the PAB in 2006
(whether a severe and prolonged disability existed as of the MQP date of
December 31, 1998), it would not have affected, let alone advanced, Mr.
Walker’s claim for benefits. As the PAB correctly noted, “an early diagnosis
would likely have served to advance his treatment and decreased his
disability.”
[14] I acknowledge
and appreciate Mr. Walker’s frustration. It is difficult for him to accept the
finality of the 2006 decision, which he views as wrong. However, unless he can
establish “new facts”, the 2006 decision must stand. This Court must defer to
the PAB’s decision on “new facts” unless it is unreasonable.
[15] The PAB did
not err in concluding that Mr. Walker did not meet the materiality aspect of
the test to establish “new facts” within the meaning of subsection 84(2) of the
CPP. Nor do I believe that its reasons fail to demonstrate justification,
transparency and intelligibility in the decision making process.
[16] For these
reasons, I would dismiss the application for judicial review without costs.
“Carolyn Layden-Stevenson”
“ I
agree
M. Nadon J.A.”
“I
agree
John M. Evans J.A.”
Email this Content