Date:
20100623
Docket: A-364-09
Citation: 2010 FCA 172
CORAM: BLAIS
C.J.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
BARBARA FLEWIN
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] This
is an application for judicial review of a unanimous decision of the Pension
Appeals Board (Board) made pursuant to subsection 84(2) of the Canada
Pension Plan, R.S. 1985, c. C-8 (Plan). The determinative issue on this
appeal is whether Ms. Flewin established the existence of "new facts"
that would allow the Board to rescind or amend a prior, final decision of a
Review Tribunal that had concluded Ms. Flewin was not disabled within the
meaning of the Plan.
Facts and Procedural History
[2] The
operative provisions of the Plan were described by this Court in Higgins v. Canada (Attorney General) (2009), 395 N.R. 344
(F.C.A.). To qualify for disability benefits under the Plan an individual
must:
i.
meet the
contributory requirements;
ii.
be
determined to be disabled within the meaning of the Plan when the contributory
requirements were met; and
iii.
continue
to be disabled.
See: subsection 42(2), paragraph 44(1)(b) and
subsection 44(2) of the Plan.
[3] Here,
Ms. Flewin was required to establish that she was disabled as of December 31,
2002.
[4] The
definition of "disability" is contained in paragraph 42(2)(a)
of the Plan which provides that 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." The provision goes on to state
that “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."
[5] Ms.
Flewin applied for disability benefits in September of 2001. She described her
principal disabling conditions as: depression, irritable bowel syndrome,
bursitis in left knee, back problems, sciatic nerve, carpal tunnel syndrome in
both hands, migraine headaches, rotator cuff difficulties in her right
shoulder, tendinitis in the right arm and heel, and panic attacks. Her application
was denied at both the initial and reconsideration stages. An appeal to a
Review Tribunal was heard on February 19, 2003 and dismissed on April 7, 2003
on the ground that the Review Tribunal was of the view that Ms. Flewin was
capable of sedentary work. Leave to appeal to the Board was denied on December
1, 2003.
[6] On
May 9, 2005, Ms. Flewin applied to the office of the Commissioner of Review
Tribunals to reopen the decision of the Review Tribunal. A second Review
Tribunal heard Ms. Flewin's application. The second Review Tribunal allowed
Ms. Flewin to reopen the prior final decision and found Ms. Flewin to be
disabled as of December 31, 2002. It is this decision that the Minister of
Human Resources and Skills Development appealed to the Board.
The Decision of the Board
[7] The
issue before the Board was whether Ms. Flewin's case should be reopened on the
basis of the existence of new facts, as contemplated by subsection 84(2) of the
Plan. Subsection 84(2) provides:
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84(2) The
Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding
subsection (1), on new facts, rescind or amend a decision under this Act
given by him, the Tribunal or the Board, as the case may be.
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84(2) Indépendamment
du paragraphe (1), le ministre, un tribunal de révision ou la Commission
d’appel des pensions peut, en se fondant sur des faits nouveaux, annuler ou
modifier une décision qu’il a lui-même rendue ou qu’elle a elle-même rendue
conformément à la présente loi.
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[8] The
Board correctly articulated the two-part test to be applied when considering
whether new facts have been established. First, the evidence must establish a
fact existed at the time of the original hearing which was not discoverable
before the original hearing by the exercise of due diligence. Second, the new
fact must reasonably be expected to affect the result of the prior hearing.
See: Higgins at paragraph 8.
[9] The
Board applied the two-part test as follows:
9. The
medical evidence here confirms that the Respondent had a condition, COPD, at
the time of the hearing in 2003, but unfortunately the condition was not
definitely diagnosed by Dr. Homik until April 2003; in other words, after the
hearing. Clearly what we have here is the doctor suspects that she had COPD,
wants to do more testing but unfortunately only confirms the diagnosis after
the hearing. This is not a situation where the new medical reports reiterate
what is already known. Rather, it is the confirmation of a diagnosis of COPD
after further testing.
10. We
are of the view that the medical evidence before us meets that test as set out
by the courts in interpreting Section 84(2) of the Plan. All of the
evidence before us confirms she was suffering from COPD at the time of the
first hearing in 2003. Unfortunately, the tests were not completed until after
the hearing. The diagnosis of COPD was only confirmed in a report dated April
1, 2003. That is exactly the situation referred to in the McCrea decision
(supra). Finally, there is no doubt this evidence is material.
The Asserted Errors
[10] The
Attorney General asserts that in so concluding the Board erred in two
respects. First, it is argued that the Board erred in finding the evidence
established any new fact. Second, it is said that the Board failed to provide
adequate reasons for its conclusion that the new evidence was material. For
the purpose of this application for judicial review it is not necessary to
consider other matters raised at the hearing by the Attorney General.
The Standard of Review
[11] Whether
a case should be reopened on the basis of new facts is a question of mixed fact
and law that attracts review on the reasonableness standard. See: Higgins
at paragraph 35.
Application of the Standard of Review
[12] After
briefly describing the oral evidence before it, the Board referenced four
medical reports in evidence. They were:
i.
Report of
Ms. Flewin's family doctor, Dr. Dhanjal, dated January 30, 2002.
ii.
Report of
Ms. Flewin's respiratologist, Dr. Homik, dated November 25, 2002.
iii.
Report of
Dr. Dhanjal dated January 31, 2003.
iv.
Report of
Dr. Homik dated April 1, 2003.
[13] The
first three reports were in evidence before the first Review Tribunal. They
established that:
i.
Ms. Flewin
suffered from the conditions set out in her application for disability benefits
ii.
Dr.
Dhanjal believed that Ms. Flewin's condition was deteriorating and so he
referred her to Dr. Homik.
iii.
Dr. Homik
assessed Ms. Flewin for obstructive airway disease. He reported that Ms. Flewin
had noticed a progression in exertional shortness of breath and this had become
"quite bothersome" in the last two to three months. Having conducted
physical examinations and mechanical tests the doctor stated "[i]n
assessment, I suspect there may be a combination of asthma and [chronic
obstructive pulmonary disorder (COPD)]."
iv.
On January
31, 2003, Dr. Dhanjal described Ms. Flewin's most significant medical problem
to be "asthma/COPD".
[14] It is
the fourth report that formed the basis of the Board's conclusion that new
facts had been established. The Board found this report to be significant
because it contained Dr. Homik’s formal diagnosis of COPD.
[15] Before
considering the medical evidence in more detail, it is important to remember
that what is relevant under the Plan is the effect of a disability. The
question to be answered is whether the disability renders a person incapable
regularly of pursuing any substantially gainful occupation. This was explained
by this Court in the following way in Klabouch v. Canada (Minister of Social
Development)
(2008), 372 N.R. 385 at paragraph 14:
First, the measure of whether a disability is "severe"
is not whether the applicant suffers from severe impairments, but whether his
disability "prevents him from earning a living" (see: Granovsky v. Canada (Minister of Employment and Immigration),
[2000] 1 S.C.R. 703, paragraphs 28 and 29). In other words, it is an
applicant's capacity to work and not the diagnosis of his disease that
determines the severity of the disability under the CPP. [Emphasis added.]
[16] Returning
to the evidence, the Board made no mention of Dr. Homik’s report of January 22,
2003. This report was provided to the first Review Tribunal. In it, Dr. Homik
reported on a reassessment conducted on January 15, 2003 "with regards to
airflow obstruction suspected as representing both asthma and COPD."
After reporting on the results of his examination, Dr. Homik advised that
"[h]er spirometry will be repeated in 2 months to assess if there is
further improvement in lung function or if she has achieved best possible
control."
[17] Turning
to the April 1, 2003 report of Dr. Homik, there the doctor reported about a
reassessment conducted on March 31, 2003 "with regards to chronic airflow
obstruction." He went on to state that a new inhaler he had prescribed
"was of no further benefit improving symptoms or lung function." He
recommended discontinuance of the particular inhaler.
[18] In my
respectful view, the Board misapprehended the significance of the April 1, 2003
report. It did not establish that further testing established a diagnosis not
available with reasonable diligence at the first hearing before the Review
Tribunal. Nor did it establish any change in Ms. Flewin’s capacity to
work. Rather, read with the January 22, 2003 report, it showed that Ms. Flewin
was known to suffer from airflow obstruction at the time of the first Review
Tribunal hearing. What was unknown was whether there would be any further
improvement in lung function “or if [Ms. Flewin] had achieved best possible
control.” Unfortunately, the subsequent April 1, 2003 report showed no further
benefit. Her capacity to work was unchanged.
[19] When a
decision is judicially reviewed on the standard of reasonableness, the
reviewing court considers the existence of justification, transparency and
intelligibility in the underlying decision and whether the decision falls
within the range of possible, acceptable outcomes that are defensible on the
basis of the facts and law.
[20] Despite
the able submissions of counsel for the respondent, and the sympathy we feel
for Ms. Flewin, the Board's misapprehension of the effect of the April 1, 2003
report renders its decision unjustified and unreasonable, and cause it to reach
a conclusion that was outside the range of possible, acceptable outcomes. For
that reason, I would allow the application for judicial review.
[21] It is
not necessary to consider the second asserted error with respect to the
adequacy of the Board’s reasons.
[22] Costs
are not sought by the applicant and I would award no costs.
“Eleanor R.
Dawson”
“I agree.
Pierre Blais C.J.”
“I agree.
David Stratas J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-364-09
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA v. BARBARA FLEWIN
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: June 21, 2010
REASONS FOR JUDGMENT BY: Dawson J.A.
CONCURRED IN BY: Blais C.J.
Stratas J.A.
DATED: June 23, 2010
APPEARANCES:
|
Bahaa I. Sunallah
|
FOR
THE APPLICANT
|
|
Shirley Van Schie
|
FOR
THE RESPONDENT
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SOLICITORS
OF RECORD:
|
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE APPLICANT
|
|
Shirley Van Schie
Barrister & Solicitor
Winnipeg, Manitoba
|
FOR THE RESPONDENT
|
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