Date: 20050428
Docket: A-423-04
Citation: 2005 FCA 147
CORAM: ROTHSTEIN J.A.
NADON J.A.
MALONE J.A.
BETWEEN:
CARL BOLHUIS
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
Respondent
Heard at Ottawa, Ontario, on April 20, 2005.
Judgment delivered at Ottawa, Ontario, on April 28, 2005.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A.
Date: 20050428
Docket: A-423-04
Citation: 2005 FCA 147
CORAM: ROTHSTEIN J.A.
NADON J.A.
MALONE J.A.
BETWEEN:
CARL BOLHUIS
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] The applicant was granted a disability pension in February 1978, with an onset date of August 1976. In March 1997, the respondent terminated his disability pension payments, on the ground that he was gainfully employed from January 1, 1985 to December 31, 1990.
[2] The applicant challenged the respondent's decision and, on September 19, 2002, a Review Tribunal concluded that although the applicant had received income from employment in Barbados during the period of September 1984 to February 15, 1991, he was neither working nor capable of working during that period. Hence, the Review Tribunal held that the applicant's condition was disabling continually from 1976.
[3] The respondent appealed the Review Tribunal's decision and, on July 27, 2004, the Pension Appeals Board (the "Board") allowed the appeal in part. The Board upheld the respondent's decision to terminate the applicant's disability pension payments and benefits.
[4] The applicant, by his judicial review application, seeks an order setting aside the Board's decision. For the reasons that follow, I am of the opinion that his application must be dismissed.
[5] The Board concluded, as it did, primarily on the basis of evidence from employees of Cave Shepherd & Co. Ltd., a large Barbados department store, to the effect that the applicant worked for Cave Shepherd in Barbados from September 10, 1984, until he resigned on February 15, 1991. More particularly, according to Mr. Alec R. McKenzie, Cave & Shepherd's Personnel Manager, the applicant worked at Cave Shepherd as an inventory control manager at the monthly income of US $1,500. Further, according to Mr. McKenzie, the applicant worked 40 hours per week and was absent from work from October 10, 1990 to February 15, 1991.
[6] In response to this evidence, the applicant, although acknowledging that he had received the payments which Mr. McKenzie indicated had been made to him by Cave & Shepherd, testified, inter alia, that he was never employed by Cave & Shepherd. Rather, he was the beneficiary of a charitable gesture posed by the owners of Cave & Shepherd, Mr. & Mrs. Cave, who were long-time friends of his family.
[7] Unfortunately for the applicant, the Board preferred the Minister's evidence over his and, as a result, concluded that he had regained the capacity to work during the period of January 1, 1985 to December 31, 1990. The Board also concluded that the applicant had failed to show that he was disabled within the meaning of the Plan during that period.
[8] I have not been persuaded that, in so concluding, the Board made any error of law or any error in its assessment of the facts. Consequently, I see no basis for us to intervene. As counsel for the respondent indicated to us that he was not seeking costs, I would therefore dismiss the applicant's judicial review application, but without costs.
"M. Nadon"
J.A.
"I agree.
Marshall Rothstein J.A."
"I agree.
B. Malone J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-423-04
STYLE OF CAUSE: CARL BOLHUIS v. MINISTER OF SOCIAL DEVELOPMENT
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 20, 2005
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A.
DATED: April 28, 2005
APPEARANCES:
Mr. Carl Bolhuis Applicant on his own behalf
Mr. Michel Mathieu For the Respondent
SOLICITORS OF RECORD:
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
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