Date: 20090529
Docket: A-297-08
Citation: 2009 FCA
178
CORAM: NADON J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
ARCHIE
PATTERSON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Halifax, Nova
Scotia, on May 28, 2009.
Judgment delivered at Halifax,
Nova Scotia, on May 29, 2009.
REASONS FOR JUDGMENT BY: TRUDEL
J.A.
CONCURRED
IN BY: NADON
J.A.
PELLETIER
J.A.
Date: 20090529
Docket: A-297-08
Citation: 2009 FCA 178
CORAM: NADON
J.A.
PELLETIER J.A.
TRUDEL
J.A.
BETWEEN:
ARCHIE PATTERSON
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This is an
application for judicial review of a decision of the Pension Appeals Board (the
Board), CP24415, dated October 26, 2007. The Board allowed the appeal by the
respondent, set aside the decision of the Review Tribunal and affirmed the
decision of the Minister of Human Resources and Skills Development, concluding
that the applicant was not disabled within the meaning of the Canada Pension
Plan, R.S.C. 1985, c. C-8 (the Plan) and therefore did not qualify
for disability benefits.
[2]
Pursuant
to subsection 42(2) of the Plan, the applicant can be considered disabled
only if he has a severe and prolonged mental or physical disability. A
disability is severe only if the applicant is incapable regularly of pursuing
any substantially gainful occupation, and a disability is prolonged only if the
disability is likely to be long continued and of indefinite duration or is
likely to result in death. Severe disability is not
based upon the applicant’s incapacity to perform his or her ordinary
occupation, but rather any substantially gainful occupation that is suitable to
his condition (Villani v. Canada (Attorney General), 2001 FCA 248 at
paragraphs 45-46).
[3]
On the basis
of the medical reports filed, the evidence and submissions of the parties, the
Board was not persuaded that the applicant was disabled by reason of his
sensitivity to chemical products. The Board found that the applicant “has retained the
capacity for work suitable to his conditions and limitations” and that he “did
not pursue diligently his alleged medical problems” (Reasons for Judgment at
paragraphs 52 and 57). The Board therefore concluded that the applicant
“has failed to establish on a balance of probabilities that he was disabled
within the meaning of the [Plan] on or before the date of the hearing, namely,
September 17, 2007.” (Ibid. at paragraph 60.)
[4]
We have
not been persuaded that the Board’s decision was unreasonable. The Board had
to determine de novo the merits of the
applicant’s case on the basis of all the evidence presented to it (Villani,
supra at paragraph 49). The record before this Court confirms that
there was sufficient evidence before the Board to conclude as it did. While the
applicant’s situation is unfortunate, it is not open to this Court to reweigh
the evidence that was before the Board.
[5]
Therefore,
this application for judicial review will be dismissed, but without costs as
the respondent is not seeking costs.
“Johanne
Trudel”
“I
agree.
M.
Nadon”
“I
agree.
J.D.
Denis Pelletier”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-297-08
STYLE OF CAUSE: Archie
Patterson v. Attorney General of Canada
PLACE OF HEARING: Halifax,
Nova Scotia
DATE OF HEARING: May 28, 2009
REASONS FOR JUDGMENT BY: TRUDEL J.A.
CONCURRED IN BY: NADON J.A.
PELLETIER J.A.
DATED: May 29, 2009
APPEARANCES:
|
Archie Patterson
|
ON HIS OWN
BEHALF
|
|
Dale
Noseworthy
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
|
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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