Date: 20031014
Docket: A-647-02
Citation: 2003 FCA 375
CORAM: DESJARDINS J.A.
DÉCARY J.A.
PELLETIER J.A.
BETWEEN:
PATRICK M. O'LIARI
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Halifax, Nova Scotia, on September 30th, 2003.
Judgment delivered at Ottawa, Ontario, on October 14th, 2003.
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: DÉCARY J.A.
PELLETIER J.A.
Date: 20031014
Docket: A-647-02
Citation: 2003 FCA 375
CORAM: DESJARDINS J.A.
DÉCARY J.A.
PELLETIER J.A.
BETWEEN:
PATRICK M. O'LIARI
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DESJARDINS J.A.
[1] This is an application for judicial review of a decision of the Pension Appeals Board (the "Board") which concluded that the applicant had failed to establish that he was disabled within the meaning of paragraph 42(2)(a) of the Canada Pension Plan, on or before December 31, 1997.
[2] The applicant was born on April 14, 1950. He has a Grade 12 education. Following his schooling, he attended a trade college and obtained a certificate in sheet metal. He lived in the village of Baddeck, Nova Scotia, for the past 15 years. He is married and has two children.
[3] The applicant started experiencing pain in May of 1992 when he had gout in his right big toe. An acute attack in May 1993 caused severe swelling of the toe and ankle. In the summer of 1994, he attended hospital for x-rays due to severe pain and swelling to the left wrist.
[4] The applicant is left-handed. In 1996, he worked for some seven weeks at the Cape Breton Boatyard but had to be laid off because of severe pain in his feet. He later found employment driving a lobster delivery van but had to terminate his employment because of severe wrist pain from steering the vehicle. He returned to work in 1997 at the Boatyard but had to resign in October 1997 because of a severe attack of gout. He had severe swelling in the foot and one toe as well as the knee and wrists.
[5] On his application for a disability pension, the applicant indicated that he could no longer work as of November 15, 1997 because of his medical condition. He said in his testimony that he was not interested in anything else but his trade, namely work as a tinsmith and plumbing. He added that he has no interest in retraining and that he did not look for any other type of work after November 15, 1997.
[6] No evidence was brought before the Board indicating that the applicant sought work, on any level, after he ceased to work in 1997. He still drives short distances and maintains his driver's license.
[7] The Board summarized the medical evidence that had been adduced before it. It then stated at paragraph 35 of its reasons:
All medical reports have been carefully reviewed. Unfortunately, there is a lack of medical evidence covering the crucial period, namely on or before 31 December 1997.
[8] There was evidence, which the Board acknowledged, that on December 9, 1997, the applicant's "left wrist had become acutely painful, swollen, red and hot", that on December 19, 1997, it remained "significantly swollen, painful, tender and decreased in range movement" and that on December 29, 1997, while the patient was "a bit better, ... he had some pain in the right wrist for two days and that the left wrist remains tender (but not hot) with a marked decreased range of movement" (respondent's record, volume II, p. 114).
[9] The Board noted that on January 5, 1998, 5 days after the crucial date of December 31, 1997, Dr. M. Igoe recommended that the applicant "should avoid any heavy physical work that involves use of his left hand." (paragraph 37 of its reasons)
[10] The Board then wrote the following at paragraph 39:
[39] Dr. Igoe in his report of July 16 1999 makes reference to Mr. O'Liari "uses all of his tools using his left hand and this becoming more and more difficult for him." The only inference to be taken from this statement is that the Appellant was still working at his trade in July 1999.
[11] The Board concluded that the applicant had failed to discharge the burden placed upon him, namely of proving on a balance of probabilities that he was suffering from a disability that was both severe and prolonged on or before December 31, 1997.
[12] The inference made by the Board that the applicant was still working at his trade in July 1999, which the Board characterized as "the only inference to be taken" from Dr. M. Igoe's statement, is contrary to the evidence considering that the Board had accepted that the applicant did not seek work, at any level, after he had stopped work after November 1997. The Board did not seek clarification from Dr. M. Igoe on his statement that the applicant had the use "of all of his tools using his left hand" in July 1999. It was hearsay evidence and there could have been more than one way of interpreting that statement. The Board's "only inference" could not properly be made in the circumstances.
[13] The Board, in concluding as it did, acted in a patently unreasonable manner. Its inference, based on an absence of evidence, amounts to an error of law.
[14] I would allow this application for judicial review, I would set aside the decision of the Pension Appeals Board and I would refer the matter back to the Board for a redetermination by a differently constituted panel on the basis of the record as constituted and of any relevant evidence the parties may seek to adduce.
[15] The applicant is entitled to his disbursements in an amount of $600.00.
"Alice Desjardins"
J.A.
"I agree.
Robert Décary, J.A."
"I agree.
J.D. Denis Pelletier, J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-647-02
STYLE OF CAUSE: Patrick M. O'Liari and The Attorney General of Canada
PLACE OF HEARING: Halifax, N.S.
DATE OF HEARING: September 30, 2003
REASONS FOR JUDGMENT: DESJARDINS, J.A.
CONCURRED IN BY: DÉCARY, J.A.
PELLETIER, J.A.
DATED: October 14, 2003
APPEARANCES:
SOLICITORS OF RECORD:
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Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, ON
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FOR THE RESPONDENT
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