Date: 20101110
Docket: A-49-10
Citation: 2010 FCA 302
CORAM: DAWSON J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
MARY J. GILROY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
This is an
application for judicial review of a decision of the Pension Appeals Board
dated January 8, 2010. The Board declined to re-open its previous decision,
dated June 19, 2006. In this previous decision, the Board denied the applicant
disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8.
[2]
The Board
declined to re-open this previous decision because there were no new facts that
would have affected its previous decision denying disability benefits. For the
reasons set out below, I conclude that there are no grounds for this Court to
intervene. Therefore, I would dismiss the application.
A. Background
[3]
On January
24, 2003, the applicant applied for disability benefits under subsection 44(2)
of the Canada Pension Plan. Under that subsection, a person is
considered to be disabled only if the person has a “severe and prolonged mental
or physical disability.” Under paragraph 44(2)(a), a disability is
“severe” if the person is “incapable regularly of
pursuing any substantially gainful occupation.” The inability to pursue any substantially
gainful occupation must be present at a time known as the “minimum qualifying
period.” In
the applicant’s case, the end of the minimum qualifying period was December 31,
2004.
[4]
The
Minister dismissed the applicant’s claim for disability benefits. The applicant
appealed to the Board. The Board assessed her medical condition as of December
31, 2004 on the basis of the evidence before it. It accepted that the applicant
had pain in various parts of her body. It noted that the applicant had been
diagnosed as having repetitive strain injury resulting in fibromyalgia and
myofascial pain. However, as of December 31, 2004, the applicant had exhibited
no objective signs of disease. The Board also found that, as of that time, the
applicant could work in a sedentary environment that did not involve highly
repetitive arm movement. For those reasons, the Board dismissed the applicant’s
appeal.
[5]
The
applicant then applied to this Court for judicial review. During the hearing on
April 1, 2008, she submitted that her medical condition had deteriorated since
December 31, 2004 and that she was now in constant pain and could no longer work.
[6]
This Court
dismissed her application for judicial review: 2008 FCA 116. It explained (at
paragraph 2) that “the Court has a limited function on an application for
judicial review: to determine whether the Board made any reviewable error on
the evidence before it concerning the severity of her disability at the end of
December 2004.” This Court noted (at paragraph 3) that “[t]he Board [had] carefully
reviewed the various medical reports before it” and had found that the evidence
did not establish a disability that was “severe” as of December 31, 2004. There
was nothing to suggest that the Board’s fact-finding was perverse in any way.
Therefore, the Board’s decision denying benefits to the applicant was left
undisturbed.
[7]
One year
later, the applicant applied to the Board to reopen the matter on the basis of
new evidence. The new evidence consisted of two letters from a doctor, a radiology
report, a letter written by the Worker’s Compensation Board and an
electromyography report. The Board also heard evidence from the applicant and,
in response, a doctor. Before the Board, the applicant testified that her
condition had deteriorated since December 31, 2004: her condition had
progressed to spondylosis, causing severe pain in her back that has
significantly changed her lifestyle and has left her completely disabled. The
doctor testified in response that there was nothing in the new evidence that
was different from the evidence that was originally before the Board. The
doctor testified that the applicant had spondylosis before December 31, 2004,
but in milder form.
[8]
The Board
concluded that the appellant’s condition has become more disabling since its
original decision. However, in its view, the new evidence would not have
affected the original decision. The evidence did not show that the appellant
was suffering a “severe” disability as of December 31, 2004. From this
decision, the applicant applies to this Court for judicial review.
B. Analysis
[9]
As this
Court has done before, I would emphasize to the applicant that this Court has a
limited function on an application for judicial review. This Court only has the
power to review – not redo – the Board’s decision in light of the factual
findings it made. The Supreme Court tells us that in reviewing the decision, we
are to ask ourselves this question: did the Board’s decision fall within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and the law? (See Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, 2008 SCC 9 at paragraph 47).
[10]
In this
case, this
means that this Court looks at all of the evidence that was before the Board,
and considers whether the decision that the Board made was one that was within
the range of possibilities available to it.
[11]
As
mentioned in paragraph 3, above, the applicant had to establish that she was not able to
pursue any substantially gainful occupation as of December 31, 2004. The Board found
that the new evidence offered by the applicant could not establish that. It
noted that the new evidence did show that her condition has gotten worse since
December 31, 2004. However, the new evidence did not establish that the applicant was unable to
pursue any substantially gainful occupation as of December 31, 2004. The new
evidence offered by the appellant had to create a reasonable probability that
the Board’s original decision might be different: Mazzotta v. Canada (Attorney General), 2007 FCA 297, 286 D.L.R.
(4th) 163. The Board found that the new evidence did not do that.
[12]
In my
view, these conclusions were open to the Board based on the law and the
evidence before it. No error has been shown that would allow us to quash the
Board’s decision.
[13]
This
Court is very sympathetic to the applicant’s medical problems. Based on the
evidence in this record, we believe the applicant when she submitted to us that
she is experiencing great pain and significant impairment of the quality of her
life today. We believe the applicant when she told us that her pain and
impairment is getting worse. We know that the applicant is deeply frustrated
with her condition. We know that she feels that she should get benefits, as a
matter of common sense.
[14]
But
both the Board and this Court must follow the law exactly as written by
Parliament, and nothing else. The law written by Parliament tells us that
benefits are payable only if, among other things, the applicant could not pursue any substantially
gainful occupation as of a time in the past (in this case, December 31, 2004), not
today. The new evidence does not establish this. Therefore, under the law written
by Parliament, the applicant is not entitled to disability benefits.
C. Disposition
[15]
I would
dismiss the application for judicial review. The respondent does not seek its
costs, and so I would award none.
"David
Stratas"
“I
agree
Eleanor R. Dawson J.A.”
“I
agree
Carolyn Layden-Stevenson J.A.”
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