Date:
20080218
Docket:
A-31-05
Citation:
2008 FCA 64
CORAM: DESJARDINS
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
GERALDINE
GALLANT
Applicant
and
MINISTER OF
HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Fredericton, New Brunswick, on February 18,
2008)
DESJARDINS
J.A.
[1]
This is an
application for judicial review of a decision of the Pension Appeals Board
(PAB) which found that the applicant did not have a disability as defined in
paragraph 42(2)(a) of the Canada Pension Plan, R.S.C. 1985, c. C-8, at
the minimum qualification period of December 31, 1996.
[2]
The applicant
applied for a Canada Pension Plan disability benefit on July 14, 2000. She
states that she was last employed as an office clerk and stopped working in
November, 1975 due to pregnancy. She indicates that her main disabling
conditions were chronic fatigue syndrome and multiple food and chemical
allergies.
[3]
Until the
applicant became ill, she was healthy, outgoing and very energetic. On account
of her illness, she abandoned exercising. Her walks are now limited to around
the block. She lacks energy.
[4]
The
applicant claims that the PAB’s decision is patently unreasonable considering
that all the medical evidence points to the fact that she is suffering from an
ailment that prevents her from obtaining any substantially gainful occupation.
[5]
The Board
considered not only the medical evidence but all the evidence, and concluded at
para. 36-38:
[36] I
bear these factors in mind: Mrs. Gallant retired from the work force in 1975 to
bear and raise her children; with the assistance of her husband, she did all of
the housework; she was engaged, to a limited degree, in society outside of her
home; she was actively engaged in the teaching of scripture to her daughter and
other young women in her church; she furthered her education by taking the
business course in 1975 and the upgrading of her high school credits in
1994-95; and in July, 1998, Dr. McKelvey, a neurologist, recommended that she
maintain and increase her physical and mental activity, indicated that she was
successful on her minimental status examination, that she did fairly well
remembering elements of short paragraphs put to her, and that she performed
fairly well on the Stroup test, a fairly demanding test of concentration. On
this last aspect of the matter, Dr. Renaud explained the tests administered by
Dr. McKelvey’s and the results of those tests.
[37] There
was no evidence of any attempt by the Appellant to obtain employment at or
about the MQP or at any time after that, or of any attempt by her to retrain so
that she could apply for employment although it is apparent from her evidence
that she is educable.
[38] In
the main, I agree with the Review Tribunal. In my opinion Mrs. Galland,
whatever the state of her health may be now, did not have a disability as
defined in Paragraph 42(2)(a) of the Plan at the MQP, i.e., December,
1996.
[6]
In Inclima
v. Canada (Attorney General), 2003 FCA 117, Pelletier
J.A., for the Court stated:
¶ 2 Subsection
42(2) of Canada Pension Plan, supra, says that a person is
severely disabled if that person “is incapable regularly of pursuing any
substantially gainful occupation”. In Villani v Canada [2002] 1
F.C. 130 at paragraph 38, this court indicated that severe disability rendered
an applicant incapable of pursuing with consistent frequency any truly
remunerative employment.
¶ 3 This
was put into context in paragraph 50 of the same decision where the following
appears:
This restatement of the
approach to the definition of disability does not mean that everyone with a
health problem who has some difficulty finding and keeping a job is entitled to
a disability pension. Claimants still must be able to demonstrate that they
suffer from a “serious and prolonged disability” that renders them “incapable
regularly of pursuing any substantially gainful occupation”. Medical
evidence will still be needed as will evidence of employment efforts and
possibilities. (emphasis added)
Consequently,
an applicant who seeks to bring himself within the definition of severe
disability must not only show that he (or she) has a serious health problem but
where, as here, there is evidence of work capacity, must also show that efforts
at obtaining and maintaining employment have been unsuccessful by reason of
that health condition.
(italics
in original, underline is my emphasis)
[7]
The Board
first found the applicant was educable and thus she had not discharged her
burden of bringing forward evidence to support a finding that, on or prior to
December 31, 1996, she was suffering from a severe and prolonged medical
condition of indefinite duration which precluded her from regularly pursuing
any substantially gainful occupation.
[8]
This is
not a case which warrants our intervention. We are incapable of finding that
the Board rendered a patently unreasonable decision in concluding as it did.
This application will be
dismissed. The respondent is not asking for costs.
"Alice
Desjardins"
Email this Content