Date: 20111117
Docket: A-156-11
Citation: 2011 FCA 316
CORAM: NADON
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
HARALAMBOS
KIRIAKIDIS
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on November 17, 2011)
DAWSON J.A.
[1]
The
Pension Appeals Board denied Mr. Kiriakidis’ claim for disability
benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (Plan). The
Board was not satisfied that Mr. Kiriakidis’ disability was severe within
the meaning of subparagraph 42(2)(a)(i) of the Plan as at December 31,
2001, the end of his minimum qualifying period for benefits.
[2]
Subparagraph
42(2)(a)(i) of the Plan provides:
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42.
(2) For the purposes of this Act,
(a) a
person shall be considered to be disabled only if he is determined in
prescribed manner to have a severe and prolonged mental or physical
disability, and for the purposes of this paragraph,
(i) a
disability is severe only if by reason thereof the person in
respect of whom the determination is made is incapable regularly of
pursuing any substantially gainful occupation, and [emphasis added]
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42.
(2) Pour l’application de la présente loi :
a) une
personne n’est considérée comme invalide que si elle est
déclarée, de la manière prescrite, atteinte d’une
invalidité physique ou mentale grave et prolongée, et pour
l’application du présent alinéa :
(i) une
invalidité n’est grave que si elle rend la personne
à laquelle se rapporte la déclaration régulièrement
incapable de détenir une occupation véritablement
rémunératrice, [Non souligné dans l’original.]
|
[3]
On this
application for judicial review of that decision, Mr. Kiriakidis argues that
the Board erred in law in failing to apply the principles established by this
Court in Villani v. Canada (Attorney General), [2002] 1 F.C. 130.
[4]
In Villani,
this Court held that, when applying subparagraph 42(2)(a)(i) of the Plan,
the Board is required to take a “real world” approach. This
requires the Board to determine whether an applicant, in the circumstances of
his or her background and medical condition, is capable regularly of pursuing
any substantially gainful occupation.
[5]
In our
respectful view, the Board did not err as asserted by Mr. Kiriakidis. Mr.
Kiriakidis bore the burden of establishing that he suffered from a severe and
prolonged mental or physical disability on or before December 31, 2001. For the
disability to be severe, Mr. Kiriakidis had to be incapable of “regularly
of pursuing any substantially gainful occupation.” However, the evidence
before the Board included the following:
1.
In the
Questionnaire for Disability Benefits completed by Mr. Kiriakidis, he reported
that his last day on the job was in 2003 (page 101, applicant’s record)
and it was only in 2004 that he could no longer work because of his medical
condition (page 103, applicant’s record).
2.
In a
report dated December 3, 2001, his orthopaedic specialist, Dr. Tile, advised
that:
This man returned for review. He is
expanding his business now to include renovations and luckily he has two
guys working with him.
He says it is mostly his lower back that
bothers him. He is having very little pain in his hip and doesn’t require
analgesics or Ansaids. He walks with virtually no limp.
Surprisingly therefore his x-ray shows
progression. The osteoarthritis in his right hip is showing more joint
narrowing than in March. His spinal portion of the pelvic x-ray looks quite
good. He could bend over and virtually touch the floor today. His hip is stiff
and painful.
At this time, he wishes to just carry on.
He is obviously coping very well. We did discuss the future and will wait and see what
happens.
Return in 6 mos., assessment, x-ray.
[emphasis added]
3.
In a
report dated January 21, 2003 Dr. Tile stated that:
Mr. Kiriakidis is doing reasonably well. He
is doing his renovation business with two other workmen, but he is actually
doing the work himself. He is an electrician by trade.
He walks well. He gets up out of the
chair well. He has a good range of motion.
His x-rays show progression of the
osteoarthritic right hip, but minimally so.
At this time he is coping reasonably well
and should not proceed to hip arthroplasty. He takes occasional medication.
We should follow him along. I have told
him to call me should something suddenly happen, otherwise we will see him in a
year’s time, x-ray right hip and pelvis.
[emphasis added]
[6]
On
this evidence it was reasonable for the Board to conclude that Mr. Kiriakidis “not
only had the capacity to work as of December 2001, but did work.”
(Reasons of the Board at paragraph 54).
[7]
Mr.
Kiriakidis argues that this conclusion fails to consider his testimony that his
medical condition was such that he was unable to devote enough time to his
business to make it successful, with the result that he was forced to declare
bankruptcy. It follows, he says, that the severity of his medical condition was
such that he was unable to engage in truly remunerative work with consistent
frequency. The difficulty with the submission is that the profitability of Mr.
Kiriakidis’ business venture is not necessarily an indictor of his
capacity to do work. This leaves only the evidence cited above which does
support the conclusion of the Board that he did not meet the statutory test at
the relevant time.
[8]
For
these reasons, the application for judicial review will be dismissed. The
respondent did not seek costs, no costs are awarded against the applicant.
"Eleanor R. Dawson"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-156-11
(AN APPEAL FOR JUDICIAL REVIEW OF A
DECISION OF THE PENSION APPEALS BOARD, DATED MARCH 14, 2011, DOCKET NO. PAB NO:
CP26893)
STYLE OF CAUSE: HARALAMBOS
KIRIAKIDIS v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER
17, 2011
REASONS FOR JUDGMENT OF THE
COURT BY: (NADON, SHARLOW AND DAWSON JJ.A.)
DELIVERED FROM THE BENCH BY: DAWSON J.A.
APPEARANCES:
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Yehuda Levinson
|
FOR
THE APPLICANT
|
|
Benoit Laframboise
|
FOR
THE RESPONDENT
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SOLICITORS
OF RECORD:
|
Levinson
& Associates
Barristers and
Solicitors
Toronto, Ontario
|
FOR THE APPLICANT
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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