Miller v. Canada (Attorney General), 2007 FCA 237

Date: 20070614

Docket: A-541-05

Citation: 2007 FCA 237

 

CORAM:       DÉCARY J.A.

                        SEXTON J.A.

                        PELLETIER J.A.

 

BETWEEN:

SHARON MILLER

Applicant

 

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

 

 

Heard at Calgary, Alberta, on June 12, 2007.

Judgment delivered at Calgary, Alberta, on June 14, 2007.

 

REASONS FOR JUDGMENT BY:     DÉCARY J.A.

CONCURRED IN BY:                        SEXTON J.A.

                                                            PELLETIER J.A.

Date: 200706

Docket: A-541-05

Citation: 2007 FCA 237

 

CORAM:       DÉCARY J.A.

                        SEXTON J.A.

                        PELLETIER J.A.

 

BETWEEN:

SHARON MILLER

Applicant

 

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

 

 

REASONS FOR JUDGMENT

 

 

DÉCARY J.A.

 

[1]               This application for judicial review is with respect to a decision of the Pension Appeals Board rendered October 7, 2005.  The Board confirmed the decision of the Review Tribunal issued May 27, 2004 finding that Ms. Miller did not meet the definition of disability when she last qualified in late 2000.

[2]               The evidence before the Board indicated that Ms. Miller had returned to employment and reported earnings of some $10,000.00 and $38,000.00 for the years 2003 and 2004.  The Board reached the following conclusion:

[11]      Under the circumstances, the Board is unable to conclude that her physical limitation caused by the fibromyalgia and chronic fatigue syndrome rendered her incapable regularly of engaging in reasonably remunerative employment for a long and undetermined period of time.

 

[12]      The legislation in these circumstances precludes a disability determination.  The capacity to regularly engage in remunerative employment is the very antithesis of a severe and prolonged disability, as set out in the legislation.

 

 

 

[3]               It is now trite law that the standard of review for decisions of the Board determining disability is patent unreasonableness (Osbourne v. Canada (Attorney General), [2005] F.C.J. No. 2043 (CA).

 

[4]               In the case at bar, the Board’s decision is clearly supported by the evidence and, as it rightly points out, the capacity of an applicant for a disability benefit to regularly engage in remunerative employment is the very antithesis of a severe and prolonged disability.

 

[5]               That ground of judicial review cannot therefore succeed.

 

 

[6]               Ms. Miller also made reference to the reinstatement provisions of the Canada Pension Plan Regulations, particularly section 71(1).  These provisions have no application in this case as the present matter relates to an initial application.

 

[7]               Finally, Ms. Miller submits that she did not get a fair hearing before the Board.  The evidence before us indicates that she was given a reasonable opportunity to submit her case.

 

[8]               I would dismiss the application for judicial review.  No costs were sought by the Respondent.

 

 

 

 

 

                                                                                                _______”Robert Décary”_________

                                                                                                                        J. A.

 

“I agree

  J. Edgar Sexton JA”

 

“I agree

  J. D. Denis Pelletier JA”

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-541-05

 

 

STYLE OF CAUSE:                                                              Sharon Miller v.

                                                                                                Attorney General of Canada

 

 

PLACE OF HEARING:                                                        Calgary, Alberta

 

 

DATE OF HEARING:                                                          June 12, 2007

 

 

REASONS FOR JUDGMENT OF THE COURT BY:       Décary J.A.

                                                                                                Sexton J.A.

                                                                                                Pelletier J.A.

 

DELIVERED FROM THE BENCH BY:                            Décary J.A.

 

 

 

APPEARANCES:

 

 

Ms. Sharon Miller	FOR THE APPLICANT
Ms. Jennifer Hockey	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Ms. Sharon Miller Monarch, Alberta	FOR THE APPLICANT
Mr. John H. Sims, Q. C. Deputy Attorney General of Canada	FOR THE RESPONDENT