Date: 20080627
Docket: A-171-07
Citation: 2008 FCA 225
CORAM: SEXTON
J.A.
BLAIS J.A.
EVANS
J.A.
BETWEEN:
JANUSZ J. KAMINSKI
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
BLAIS J.A.
[1] This is an
application for judicial review of a decision of the Pension Appeals Board
(PAB) dated March 6, 2007 (Appeal 24548) dismissing the appeal of Mr. Janusz J.
Kaminski (the applicant). The PAB held that the applicant failed to
substantiate his claim that he is “disabled” within the meaning of the Canada
Pension Plan, R.S.C. 1985, c. C-8. His condition was not prolonged and
severe as required by section 42.(2):
|
When
Person Deemed Disabled:
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;
|
Personne déclarée
invalide :
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
|
BACKGROUND
[2] The applicant
was born in Poland in 1951. He
worked in Poland for twelve
years as a qualified refractory bricklayer. After a short period of time in
Germany, he came to Canada in 1988, where he became a member of the bricklayers’
union with whom he worked from 1990 to 2000. Not having paid his union dues, he
was dropped from the union in September 2000. He explained that he was not
given enough work through the union to earn money to support his family and pay
the union as well. He has not been employed since 2000.
[3] The applicant was subsequently granted
an Ontario Disability Support Program (“ODSP”) benefit in August 2000. However this benefit was discontinued in
November 2002 due to his non-compliance with the Program’s guidelines and
requirements. Specifically, the applicant had refused to attempt retraining by
ODSP and had limited his search for employment to a field which would educate
him as an artist. Going forward, the applicant’s desire to become an artist
became so all consuming that he refused to consider alternative modes of
employment.
[4] On January 2, 2003, the applicant
applied for Canada Pension Plan Disability Benefits. In doing so, he indicated
that he had stopped working due to a “shortage of work”, but that as of April
2001 he felt himself incapable of working due to his medical condition. To this
end, the applicant described his disabling conditions as sharp pain in his
arms, elbows and wrists; pain in his upper and lower back, knees and ankles; as
well as cracks in every joint. His application was denied initially and upon reconsideration on
February 19, 2003 and July 21, 2003 respectively. His appeal to the Review
Tribunal (RT) was unsuccessful.
[5] The applicant was granted leave to
appeal the RT’s decision to the PAB, which, on March 6, 2007, dismissed his
appeal in a unanimous decision. In disposing of the appeal, the PAB undertook a
detailed review of the medical evidence, placing considerable emphasis on what
it viewed as the applicant’s failure to seek retraining or suitable employment,
and his general disregard for the treatments recommended to him by the various
medical professionals whom he visited. Ultimately, the PAB concluded that the
applicant’s diagnosis of fibromyalgia, either by itself or in conjunction with
osteoarthritis and/or depression, was not enough to support a finding of
disability under the Canada Pension Plan.
ISSUE
[6] The issue
raised by this application is as follows:
Did
the PAB commit a reviewable error in determining that the applicant was not
“disabled” pursuant to the Canada Pension Plan?
STANDARD OF REVIEW
[7] As a result
of the Supreme Court of Canada’s recent decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9 (QL), the two variants of reasonableness
review, patent unreasonableness and reasonableness simpliciter, have
been collapsed such that there is now only one form of “reasonableness” review.
Accordingly, in determining which of the remaining standards of review,
correctness or reasonableness, is applicable within a given set of
circumstances, the Court proposed a two step process:
First courts ascertain
whether the jurisprudence has already determined in a satisfactory manner the
degree of [deference] to be accorded with regard to a particular category of question.
Second, where the first inquiry proves unfruitful, courts must proceed to an
analysis of the factors making it possible to identify the proper standard of
review (Ibid. at paragraph 62).
[8] In light of
past jurisprudence indicating that it is “trite law that the applicable
standard in regard to decisions of the Board determining disability is that of
patent unreasonableness,” (Osborne v. Canada (Attorney General), 2005
FCA 412, [2005] F.C.J. No. 2043 (QL) at paragraph 3), I am of the view that, after
Dunsmuir, the appropriate standard of review of this question of mixed
fact and law is now reasonableness. Accordingly, the intervention of this Court
will only be warranted where the impugned decision does not fall within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law (Dunsmuir, supra at paragraph 47).
[9]
To succeed in his application, the applicant
must establish on a balance of probabilities that he has suffered from a severe
and prolonged mental or physical disability which renders him incapable of
pursuing any substantially gainful occupation pursuant to sections 42 and 44 of
the Canada Pension Plan.
[10]
The role of this Court on judicial review is not
to reweigh the evidence already assessed by the PAB but to examine if the PAB
made a reviewable error in light of the evidence that was before it.
[11]
The applicant’s minimum qualifying period (MQP)
was dated December 31, 2002. I am satisfied that on the record before it, it
was not unreasonable for the PAB to conclude that the applicant had not
established that, at that time, he suffered from a severe and prolonged
disability pursuant to the Canada Pension Plan. To this end, I note that
the PAB appropriately considered all the evidence before it, including the
objective medical evidence provided by the applicant’s treating physicians, as
well as the viva voce evidence of the applicant and the Minister’s
expert witness, Dr. Laura Heung.
[12]
Dr. Debra Feldman, the applicant’s treating
physician, noted on the medical report dated December 18, 2002 that the
applicant’s mental and physical conditions were osteoarthritis, fibromyalgia
and depression. However, in June 2002, rheumatologist Dr. Elaine Soucy had described
the applicant’s osteoarthritis as “mild and not very significant”. Moreover,
while she confirmed that the applicant did suffer from fibromyalgia, her
prescribed treatment plan was limited to exercise and a muscle relaxant; there
was no mention that the applicant was incapable of work.
[13]
The PAB did not refer in its reasons to the
statement by Dr. Feldman in a report dated December 17, 2002, that she felt
that the applicant was unable to engage in any employment because of his
disability. However, when the medical record as a whole is considered, as well
as the terse nature of Dr. Feldman’s statement, this item of evidence is not so
significant that the PAB’s failure to discuss it justifies the Court’s
intervention.
[14]
The evidence also provides that the applicant
was resistant to treatment from his treating family physician and specialists.
He did not want any medication.
[15]
In terms of the applicant’s employment
prospects, the PAB acknowledged the applicant’s failure to search for
employment from his own testimony, which was later bolstered by the testimony
of his wife, and the documentary evidence indicating his general unwillingness
to participate in job placements not related to his intention of pursuing an
artistic career. In fact, the applicant candidly recognized before the PAB that
he would have continued working as a bricklayer in 2002, if he had not been
laid off.
[16]
The law requires an inquiry into whether the individual at issue is
capable of pursuing any substantially gainful employment. Accordingly,
the applicant must be prepared to pursue employment opportunities beyond his
passion. I find the reasons of the PAB in this regard while blunt, to be
determinative:
Mr.
Kaminski may be right about his potential as an artist. However, in the “real
world” individuals must find the means to sustain themselves in a practical way
if they do not have the financial means to “follow their dreams.” One does not
always have the luxury of pursuing their employment of choice (Appeal CP
24548, supra at paragraph 34).
[17]
For these reasons, I would dismiss the
application for judicial review. The respondent did not request costs, and none
should be awarded.
“Pierre Blais”
“I
agree.
J. Edgar Sexton J.A.”
“I
agree.
John M. Evans J.A.”
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