Date: 20100219
Docket: A-614-08
Citation: 2010 FCA 53
CORAM: LÉTOURNEAU J.A.
NADON J.A.
DAWSON J.A.
BETWEEN:
DENNIS
GERVAIS
Applicant
and
THE MINISTER
OF SOCIAL DEVELOPMENT
Respondent
Heard at Regina, Saskatchewan, on February
17, 2010.
Judgment delivered at Ottawa,
Ontario, on February
19, 2010.
REASONS FOR JUDGMENT BY:
DAWSON J.A.
CONCURRED
IN BY: LÉTOURNEAU
J.A.
NADON J.A.
Date: 20100219
Docket: A-614-08
Citation: 2010 FCA 53
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
DAWSON J.A.
BETWEEN:
DENNIS GERVAIS
Applicant
and
THE MINISTER OF SOCIAL
DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
The Issue in this Proceeding
[1] This is an application for judicial review of a
unanimous decision of the Pension Appeals Board (Board) dated November 4,
2008. The issue before us is whether the Board erred when it determined that
the Minister of Social Development (Minister) had properly terminated Mr. Gervais'
disability pension benefits.
The
Board’s Decision
[2] The Board found the termination of disability
pension benefits to be proper because the Minister had met the onus of
establishing, on a balance of probabilities, that as of April, 1984, Mr.
Gervais was no longer disabled within the meaning of the Canada Pension Plan,
R.S.C. 1985, c. C-8 (Plan).
[3] Paragraph 42(2)(a) of the Plan provides that
a person is deemed to be disabled in the following circumstances:
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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
(ii) a disability is prolonged only if it is determined
in prescribed manner that the disability is likely to be long continued and
of indefinite duration or is likely to result in death.
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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,
(ii) une invalidité n’est prolongée que si elle est
déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une
période longue, continue et indéfinie ou devoir entraîner vraisemblablement
le décès.
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[4] The Board found that Mr. Gervais' serious back
ailment had improved to the extent that by April of 1984 he was capable of
regularly engaging in a substantially gainful occupation. The Board further
found the evidence to establish that, prior to the termination of benefits, Mr. Gervais
worked regularly in a grocery store doing such things as training staff,
working the cash register and meeting sales representatives. The Board
concluded that, notwithstanding the limitations flowing from his back
condition, as of April, 1984 Mr. Gervais had retained work capacity and was
capable of pursuing with consistent frequency a remunerative occupation, namely
assisting in the family grocery store.
The Standard
of Review
[5] The standard of review to be applied to the Board's
decision is reasonableness. See: Erickson v. Canada
(Minister of Human Resources and Skills Development),
2009 FCA 58.
Analysis
of the Board’s Decision and the Applicant’s Submissions
[6] Mr. Gervais submits that the Board erred by:
1.
Ignoring his testimony that the income he received from the
operation of the grocery store was based upon his ownership interest in the
store. Mr. Gervais states that that income was not remuneration for services
that he provided.
2.
Considering events that occurred subsequent to the
termination of benefits.
[7] The reasons of the Review Tribunal show that Mr.
Gervais testified before the Review Tribunal that he attended at the grocery
store seven days a week. While there, Mr. Gervais functioned as an owner/operator,
able to perform most of the day to day tasks of the business.
[8] The Board referred to "undisputed
evidence" that Mr. Gervais worked regularly in the grocery store. In his
affidavit filed in support of this application, Mr. Gervais admits that he
performed a number of functions at the store, but states that he would only
attend when his condition would allow.
[9] There was also evidence before the Board that prior
to the termination of benefits, Mr. Gervais was head instructor of a
boxing club with a grueling training schedule, was a member of a championship
bowling team and played fastball in the physically demanding role of pitcher.
One orthopedic surgeon reported that he had "a lot of questions and doubt
about the degree of difficulty and pain that this patient does have."
[10] There was evidence to support the Board’s conclusion
that Mr. Gervais' back ailment had improved to the extent that he was capable
of regularly engaging in a substantially gainful occupation as of April, 1984.
In substance, Mr. Gervais is asking this Court to reweigh the evidence and come
to the opposite conclusion from that reached by the Board. That is not the
function of this Court on an application for judicial review.
[11] With respect to the second asserted error, the
consideration of events that post-dated the termination of disability, the
Board’s reasons, particularly at paragraph 33, show that the Board was very
conscious of the relevant time for assessing the existence of disability.
Thus, the Board did not err as asserted by Mr. Gervais. The fact that Mr.
Gervais remained gainfully employed following April of 1984 is consistent with
the conclusion that the Minister properly denied disability benefits for the
entire period beginning in April, 1984 and so was a relevant consideration for
the Board.
[12] The Board's decision was supported by the evidence
and Mr. Gervais has not demonstrated any reviewable error. For these reasons,
I would dismiss the application.
[13] The respondent did not seek costs and so I would not
award costs.
“Eleanor
R. Dawson”
“I
agree
Gilles
Létourneau J.A.”
“I
agree
M.
Nadon J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-614-08
STYLE OF CAUSE: DENNIS
GERVAIS v.
THE MINISTER OF SOCIAL
DEVELOPMENT
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: February 17, 2010
REASONS FOR JUDGMENT BY: DAWSON J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NADON
J.A.
DATED: February 19, 2010
APPEARANCES:
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Dennis Gervais
|
SELF-REPRESENTED
|
|
Allan Matte
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
|
|
|
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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