Date:
20091026
Docket: A-354-07
Citation: 2009 FCA 310
CORAM: SHARLOW J.A.
LAYDEN-STEVENSON J.A.
RYER J.A.
BETWEEN:
PATRICIA
MAIDWELL
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Toronto,
Ontario, on October 26,
2009.
Judgment delivered from the Bench at Toronto, Ontario, on October 26, 2009.
REASONS FOR JUDGMENT OF THE COURT BY: RYER
J.A.
Date:
20091026
Docket:
A-354-07
Citation:
2009 FCA 310
CORAM: SHARLOW
J.A.
LAYDEN-STEVENSON
J.A.
RYER
J.A.
BETWEEN:
PATRICIA
MAIDWELL
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on October 26, 2009)
RYER J.A.
[1]
This is an application for judicial review of a
decision (CP24077) of the Pension Appeals Board in which Ms. Patricia Maidwell
was determined not to be entitled to a disability pension, pursuant to
paragraph 44(1)(b) of the Canada Pension Plan, R.S.C. 1985, c.
C-8 (the “Plan”).
[2]
To succeed, Ms. Maidwell was required to
establish, on a balance of probabilities, that she was disabled, within the
meaning of paragraph 42(2)(a) of the Plan, at the end of a minimum
qualifying period as determined in accordance with subsection 44(2) of the
Plan.
[3]
Ms. Maidwell stopped work in 1990 and it is
agreed that her minimum qualifying period ended in December of that year. She
brought her application for a disability pension on November 10, 2003, almost
thirteen years after the end of her minimum qualifying period.
[4]
In her application for benefits, Ms. Maidwell
stated that the illness that prevented her from working was chemical
sensitivities. She also stated that she suffered from a rare and untreatable
lung disease – minute pulmonary chemodectomata.
[5]
In its decision, the Board referred to medical
evidence from several doctors – Dr. Marian Zazula, Dr. E.S. Lilker, Dr. J.R.
Zownir and Dr. N. Ranganathan – all of whom had provided reports with respect
to Ms. Maidwell’s condition. The Board concluded that this medical evidence did
not demonstrate that her medical condition at the end of her minimum qualifying
period met the test of severity in the definition of disability in paragraph
42(2)(a) of the Plan.
[6]
The question of whether an applicant suffers
from a severe disability focuses upon her capacity to regularly pursue any
substantially gainful occupation. This is a question of mixed fact and law that
is reviewable by this Court on a standard of reasonableness.
[7]
Based upon the medical evidence that was
presented by the applicant, we are of the view that it was open to the Board to
find that she had not established, on a balance of probabilities, that her
medical condition at the end of her minimum qualifying period was severely
disabling. Accordingly, we find no basis upon which to interfere with that
decision.
[8]
For these reasons, the application will be
dismissed.
"C.
Michael Ryer"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-354-07
AN APPLICATION FOR JUDICIAL REVIEW OF A
DECISION DATED JUNE 20, 2007, WHEREBY THE APPLICATION FOR CPP DISABILITY
BENEFITS WAS DENIED PER FILE: CP24077
STYLE OF CAUSE: PATRICIA
MAIDWELL v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 26, 2009
REASONS FOR JUDGMENT OF THE COURT BY: (SHARLOW, LAYDEN-STEVENSON & RYER JJ.A.)
DELIVERED FROM THE BENCH BY: RYER J.A.
APPEARANCES:
|
Patricia Jeanette
Maidwell
|
FOR THE APPLICANT
(SELF-REPRESENTED)
|
|
Nicole
Butcher
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
N/A
|
FOR THE
APPLICANT
(SELF-REPRESENTED)
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE
RESPONDENT
|
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