Date:
20070307
Docket: A-325-06
Citation: 2007 FCA 102
CORAM: DÉCARY J.A.
NOËL
J.A.
SEXTON J.A.
BETWEEN:
RAYMOND
ROSS
Applicant
and
MINISTER
OF HUMAN RESOURCE DEVELOPMENT
Respondent
Heard at Vancouver, British Columbia, on March 7,
2007.
Judgment delivered from the Bench at Vancouver, British Columbia, on March 7, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON
J.A.
Date:
20070307
Docket: A-325-06
Citation: 2007
FCA 102
CORAM: DÉCARY
J.A.
NOËL
J.A.
SEXTON
J.A.
BETWEEN:
RAYMOND ROSS
Applicant
and
MINISTER OF
HUMAN RESOURCE DEVELOPMENT
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on March 7,
2007)
SEXTON J.A.
[1]
The
Applicant seeks Judicial Review of a decision of the Pension Appeals Board (the
Board) which concluded that the Applicant was not severely disabled on or
before December 31, 1991 and continuously thereafter.
[2]
The
Applicant argues the Board’s decision must be set aside on two grounds. The
first is that the Board’s finding was made without regard to the material
before it. The second ground is that the Board failed to give adequate reasons
for its decision.
[3]
This
Court has held that the standard of review of decisions of the Board which
determine severe disability is patent unreasonableness.
[4]
This
Court has further held on a number of occasions that the severity of a
disability relates to the applicant’s residual capacity to work.
[5]
In
the present case, the Board referred to evidence to the effect that although
the applicant was unable to undertake heavy work, he was advised by his doctor
to seek retraining for work which would not involve physical labour. The
Applicant did not follow this advice nor did he look for another job which did
not involve physical labour. While there was a medical opinion that the
applicant could not work at all, this opinion was given after the minimum
qualifying period. There were conflicting opinions given prior to the end of
the minimum qualifying period.
[6]
For
these reasons, we are unable to say that the decision of the board that the
Applicant had failed to show that he had a severe and prolonged disability
which rendered him incapable of regularly pursuing any substantially gainful
occupation was patently unreasonable.
[7]
As
to the complaint that the reasons of the Board were not adequate, we would say
that the Board did refer to some of the medical evidence which indeed supports
its finding. In addition, the Board referred to the Applicant’s testimony, in
which he admitted that he knew career counsellors were available but he made no
attempt to make use of them. The Board is not required to advert specifically
to all of the evidence, but only to that which is determinative of the matter
to be decided. The Board said that it considered all of the evidence and we see
no reason not to accept this. The reasons themselves explain why the Applicant
was not successful.
[8]
The
application for judicial review will be dismissed without costs.
“J. Edgar
Sexton”
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-325-06
STYLE OF CAUSE: RAYMOND
ROSS v. MHRD
PLACE OF
HEARING: Vancouver, British
Columbia
DATE OF
HEARING: March
7, 2007
REASONS FOR
JUDGMENT BY: DÉCARY
J.A.
NOËL J.A.
SEXTON
J.A.
DELIVERED
FROM THE BENCH: SEXTON
J.A.
DATED: March 7, 2007
APPEARANCES:
Tim Dickson FOR
THE APPLICANT
Nicole Butcher FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
|
Farris,
Vaughn, Wills & Murphy
Barristers and
Solicitors
Vancouver, B.C.
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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