Date: 20070215
Docket: A-387-05
Citation: 2007 FCA 65
CORAM: RICHARD C.J.
SHARLOW J.A.
RYER J.A.
BETWEEN:
JOHN
D. THORNTON
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
(formerly Minister of Human
Resources Development)
Respondent
Heard at Halifax, Nova
Scotia, on February 13, 2007.
Judgment delivered at Halifax,
Nova
Scotia, on February 15, 2007.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED
IN BY:
CONCURRING
REASONS BY:
DISSENTING
REASONS BY:
Date: 20070215
Docket: A-387-05
Citation: 2007 FCA 65
CORAM: RICHARD
C.J.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
JOHN D. THORNTON
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
(formerly Minister of Human
Resources Development)
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
The
applicant Mr. John Thornton is claiming a disability pension under the Canada
Pension Plan, R.S.C. 1985, c. C-8. He is eligible for a disability pension
if, as of December 31, 2000, he had a mental or physical disability that was
“severe and prolonged” within the definition in subsection 42(2)(a) of the Canada
Pension Plan.
[2]
Mr.
Thornton’s claim was denied by the Minister and the Review Tribunal. He was
granted leave to appeal to the Pension Appeals Board (the Board). His appeal
failed because the Board concluded that at the relevant time Mr. Thornton had a
disability that was “prolonged”, but not “severe”. A person has a disability
that is “severe” within the meaning of subsection 42(2)(a) only if it renders
the person incapable regularly of pursuing any substantially gainful employment.
[3]
It has
been established that, in a case involving the determination of disability
under the Canada Pension Plan, the standard of review of a decision of
the Board is correctness on questions of law, and “patent unreasonableness” on
the determination of the existence of a disability that meets the statutory
test, which is a question of mixed fact and law. A decision is patently
unreasonable if it is clearly irrational or evidently not in accordance with
reason, or is so flawed that no amount of curial deference can justify letting
it stand: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at
paragraph 52.
Whether the Board erred in law
[4]
It is
argued for Mr. Thornton that paragraph 47 of the Board decision discloses an
error of law because it contains an inaccurate paraphrase of the statutory
definition. In my view, the reasons in their entirety establish that the Board
appreciated the correct legal definition, which is quoted at paragraph 39 of
their reasons. Paragraph 47 reflects only part of the statutory definition
because, in that part of the analysis, the Board was considering only whether
the evidence established that, at the relevant time, Mr. Thornton was capable
of a sedentary occupation.
[5]
It is also
argued for Mr. Thornton that the Board simply accepted the findings of the
Review Tribunal and did not consider the matter afresh, as it is required to
do. There is no merit in this argument. It is abundantly clear from the Board’s
reasons that it engaged in its own analysis of the evidence. It is not an error
for the Board to quote from the reasons of the Review Tribunal, or to state
that it agrees with some or all of those reasons.
Whether the Board disregarded evidence
[6]
It is
argued for Mr. Thornton that the Board failed to engage in a meaningful analysis
of certain evidence favouring Mr. Thornton’s claim, indicating that it either
disregarded relevant evidence or failed to provide an adequate explanation of
why it did not find that evidence to be determinative in Mr. Thornton’s favour.
[7]
According
to the jurisprudence of this Court, the Board’s obligation is to reach its
conclusion on the basis of all of the evidence, and to provide reasons that are
sufficient to permit meaningful judicial review. That does not imply that the
Board is necessarily obliged to address every piece of evidence that might be
inconsistent with the evidence it accepts: see Palumbo v. Canada (Attorney
General), 2005 FCA 117, Canada (Minister of Human Resources
Developments) v. Bartelds, 2006 FCA 123, McKerrow v. Canada (Minister of
Human Resource Development), 2002 FCA 433, Kellar v. Canada (Minister of
Human Resources Development), 2002 FCA 204.
[8]
Counsel
for Mr. Thornton referred in particular to two documents favouring Mr.
Thornton’s claim that he argues ought to have been specifically addressed by
the Board. One was a report dated September 30, 2002 from Mr. Tapper, a
vocational counsellor, who stated that that as of that date a “positive
vocational outcome is unlikely” without a significant improvement in Mr.
Thornton’s pain and depression. However, that same letter outlines activities
that Mr. Thornton had undertaken that would have been consistent with the
Board’s conclusion that Mr. Thornton was not severely disabled as of December
31, 2000. The other document is the extensive June 2005 report of Dr. King, a
neurologist. That report is capable of establishing Mr. Thornton’s medical
condition as of that date, but it does not purport to address his condition as
of December 31, 2000. Given the issues before the Board, neither of those
documents is of sufficient probative value to require the Board to explain
specifically why they were not found to be determinative in Mr. Thornton’s
favour.
[9]
Having
carefully reviewed all of the evidence in the record and the Board’s reasons,
it seems to me that the Board reached a conclusion that was reasonably open to
them, and provided a sufficient explanation for that conclusion.
Conclusion
[10]
For these
reasons, I would dismiss this application with costs.
"K.
Sharlow"
FEDERAL COURT OF APPEAL
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-387-05
STYLE OF CAUSE: JOHN
D. THORNTON
-
and -
MINISTER OF
SOCIAL DEVELOPMENT (formerly Minister of Human Resources Development)
PLACE OF
HEARING: HALIFAX,
NOVA SCOTIA
DATE OF
HEARING: FEBRUARY
13, 2007
REASONS FOR JUDGMENT: Sharlow J.A.
DATED: FEBRUARY
15, 2007
APPEARANCES:
|
Barry J. Mason
|
FOR THE APPLICANT
|
|
Allan Matte
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Pressé Mason
Bedford, Nova
Scotia
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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