Date: 20000512
Docket: T-859-99
BETWEEN:
KEVIN CALLIHOO
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of a decision of the Pension Appeals Board (the "PAB") that refused the applicant leave to appeal an earlier decision of the Review Tribunal, which had rejected an appeal from the Minister who denied the applicant's claim for disability benefits. The Review Tribunal had decided, in a decision dated October 29, 1997, that the applicant was not disabled within the meaning of s-s. 42(2) of the Canada Pension Plan1 ("Plan" or the "Act"). The decision under review by a designated member of the PAB who denied leave to appeal, was dated December 8, 1998.
[2] The application for judicial review was heard in Edmonton on January 13, 2000. The applicant, who is not a lawyer, represented himself, with assistance of his wife. At the end of the hearing he adopted as his own all submissions made in support of his application. Counsel appeared on behalf of the Attorney General of Canada.
Background
[3] The applicant applied for disability benefits under the Act in 1995. He had contributed to the Plan during the years 1981 to 1992. When he applied, his most recent occupation was as a labourer. He had stopped working on August 21, 1991 following a car accident which caused injury to his neck, lower back, legs and arms.
[4] Mr. Callihoo's application for disability benefits under the Act was denied. He appealed that decision, in accord with the Act, to the Minister, and then to a Review Tribunal pursuant to s. 82 of the Plan. The Tribunal's decision, dated October 29, 1997, found there was insufficient medical evidence that his injuries resulted in the applicant being so severely disabled as required by the Act to qualify for benefits. Under the Plan s-s. 42(2) provides:
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(2) Pour l'application de la présente loi_: |
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[5] The applicant then asked for further review of his situation and the request was treated as an application for leave to appeal to the Pension Appeal Board under the Act. That application was considered by a designated member of the Board who denied leave to appeal, dismissing the application in the following terms:
| The Review Tribunal, upon hearing all the evidence adduced before it, concluded that the Appellant's back problems or his Seasonal Affective Disorder either alone, or collectively fail to meet the strict criteria that would bring Mr. Callihoo, within the definition of severely disabled as set out in the Canada Pension Plan. I have reviewed the medical reports and beleive [sic] that they do not only make the Tribunal finding a reasonable one, the preponderance of the medical opinion supports the Tribunal's conclusion. I see no error in principle on the part of the Tribunal. I do not see a proper foundation for granting leave to appeal. |
| Accordingly leave to appeal is dismissed. |
Standard of Review
[6] A Court hearing an application for judicial review under sections 18 and 18.1 of the Federal Court Act cannot simply reverse or set aside a decision of a decision maker because the Court might have come to a different outcome. Decision makers who derive their powers from statutes are entitled, in review of their decisions, to a measure of deference in most cases. How much deference is to be accorded may range from little deference where the standard is correctness to substantial deference where the standard accepts decisions unless they are patently unreasonable. At the correctness end, a reviewing Court can reverse a decision if it is found to be simply incorrect. At the other end of the spectrum the decision can only be set aside if the error made by the decision maker is so unreasonable that it is without any foundation in evidence or law. Between the extremes of the spectrum a standard of reasonableness may be appropriate where the decision under review does not concern only a question of law and it is sufficient if it be supported by reasons that can stand up to a somewhat probing analysis.2 Essentially, there must be a foundation for the decision.
[7] The measure of deference in a given case is assessed by the "pragmatic and functional" approach recently restated in Pushpanathan3 and followed in Baker.4
[8] The standard of review to be applied in relation to a decision of the PAB refusing leave to appeal has been considered in a number of recent decisions by my colleagues of this Court and by the Court of Appeal. The most recent from the Trial Division is Davies v. Canada (Minister of Human Resources Development),5 in which Mr. Justice Teitelbaum considered Madam Justice Reed's decision in Kerth v. Canada (Minister of Human Resources Development).6
[9] In both Davies and Kerth, the Court applied the Pushpanathan analysis. The two cases are in substantial agreement, except for the question of the relative expertise of the decision maker. In her decision in Kerth, Madam Justice Reed wrote at paras 18-23:
| The factors relevant in determining the standard of review applicable in a judicial review proceeding were recently set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The overriding consideration is the intention of the legislature: did it intend that a reviewing court accord the decision under review deference, or was a full right of appeal intended, or does the relevant standard fall somewhere on the spectrum that lies between these two poles. Also, the standard of review must be determined by reference to the specific nature of the decision under review. The same standard will not necessarily apply to all decisions of the same decision-maker. The factors to be assessed according to Pushpanathan are: (1) the legislative provisions governing the review process, including whether there is a privative clause; (2) the degree of expertise of the tribunal with respect to the question in issue, as compared to the degree of expertise the reviewing court has on that subject; (3) the purpose of the legislation and the nature of the decision-maker; that is, whether the decision-maker is balancing public policy considerations (sometimes vaguely worded) as opposed to adjudicating the rights of individuals; (4) the nature of the decision under review, including whether it is a question of law or a question of fact. |
| I turn then to these factors as they relate to the decision under review. The legislative parameters of the intended review are set out in subsection 18.1(4) of the Federal Court Act. The Plan contains no privative clause except to say that decisions of the Pension Appeals Board are final, subject only to judicial review. While there has been some indication in the jurisprudence that paragraph 18.1(4)(d) of the Federal Court Act requires "patent unreasonability", this was not the test applied in Pushpanathan, or more recently in Baker v. Canada (Minister of Citizenship & Immigration), [1999] S.C.J. No. 39. I note that the phrases in paragraph 18.1(4)(d) are disjunctive; one asks whether the decision under review was based on a finding of fact that was made in a perverse or capricious manner or without regard for the material before the decision-maker. That is, insofar as the review of decisions by reference to their underlying facts is concerned, the statutory mandate allows for a spectrum of review from one which involves a high degree of deference (perversity or capriciousness must be shown) to one in which correctness or reasonableness may be the test (the decision-maker did not exhibit regard for the material before it). When the review relates to questions of law, however, in paragraph 18.1(4)(c) a spectrum is not provided. |
| With respect to the relative expertise of the Board and this Court, there is not a great difference between them insofar as determining the principles applicable to leave to appeal applications. The Board members will, of course, have greater expertise in dealing with the underlying factual subject matter. |
| With respect to the purpose of the legislation and the nature of the decision-maker, the decision is one that determines the rights of the individual (entitlement to a benefit). The decision is adjudicative in nature, not one involving discretionary public policy issues. The Board is judicial in nature, being composed of judges. |
| With respect to the nature of the decision, it involves both a question of law and a question of fact. The question of law is whether the Board applied the right legal test. The question of fact is whether the Board's decision is supported by the evidence. |
| I conclude, based on the above assessment of the relevant factors, that the standard of review in this case is closer to the non-deferential end of the spectrum, rather than to the deferential end. |
[10] In Kerth, relying upon an earlier decision of the Court of Appeal7 in relation to the appropriate test for assessing leave to appeal, Madam Justice Reed concluded that in the case before her the decision maker erred by considering the wrong test, i.e. by considering the merits of the leave application and not, as should have been considered, whether the application raised an arguable case. In Kerth the application for leave raised new or additional evidence not considered by the Review Tribunal, and open for consideration in de novo proceedings before the Appeal Board. In Reed J.'s view where the ground for leave is primarily the existence of additional evidence, the issue to be considered in relation to the leave application is whether it raises a genuine doubt as to whether the Tribunal would have reached the decision it did if the additional evidence had been before it.
[11] In Davies, while Mr. Justice Teitelbaum also concluded that the appropriate standard of review of a decision on the leave application was close to correctness, because of the relative expertise of the PAB, somewhat more deference was warranted than Reed J. had acknowledged. He found that the leave application raised no additional evidence in Davies, and that the decision there denying the leave application was not unreasonable. Moreover, on his own review of the record of the Review Tribunal's decision, it was reasonable on the evidence before the Tribunal. Thus he declined to intervene.
[12] Two decisions of the Court of Appeal, both decided in December 1999, reached somewhat different decisions, for different reasons. In Gramaglia v. Canada (Attorney General),8 that Court dismissed an appeal from the decision9 of Rothstein J., as he then was, who had dismissed an application for judicial review of the decision of the Vice-Chairman of the PAB refusing leave to appeal the decision of a Review Tribunal where no new evidence was adduced with the application for leave, and the evidence before the Vice-Chairman, and the evidence before the Review Tribunal, had been considered by each of them and their conclusions could not be said to be unreasonable. The Court of Appeal was not persuaded that Rothstein J. had erred in principle or in law or that he misapprehended the facts of the application, and it dismissed the appeal.
[13] In Martin v. Canada (Minister of Human Resources Development)10 the Court of Appeal allowed an appeal from the decision11 of Madam Justice Tremblay-Lamer who had dismissed an application for judicial review in relation to a decision by the Vice-Chairman of the PAB denying leave to appeal from a decision of the Review Tribunal. She had identified the appropriate test for the reviewing court as one requiring deference, unless the decision maker considered irrelevant factors or acted contrary to the law. The Court of Appeal, reviewing the Vice-Chairman's decision and referring to Madam Justice Reed's decision in Kerth and her identification of the appropriate test for a Court reviewing a decision concerning an application for leave to appel, found that in Martin the leave decision maker went further than merely considering whether an arguable case or question of law or jurisdiction had been raised. In its view, in that case the Vice-Chairman had erred by considering whether the applicant for leave could succeed on the merits of the application. There the Court of Appeal found there was an arguable case concerning the proper interpretation of subparagraph 42(2)(a)(ii) of the Canada Pension Plan, which requires, for a disability to be severe, that the claimant be "incapable regularly of pursuing any substantially gainful employment". The Court of Appeal found the Review Tribunal, and the decision maker considering the leave application assumed the appellant had to show that he is "incapable of doing any type of work". Thus in the view of the Court of Appeal the application for leave raised an arguable issue.
[14] Finally, in Minister of Human Resources v. Skoric,12 the Minister sought judicial review and the setting aside of a decision of the PAB which had reversed the decision of a Review Tribunal and upheld a claim for a disability beneficiary's surviving spouse's benefit, under s-s. 44(1) of the Canada Pension Plan. The application for review turned on the law and its application to undisputed facts, where the Act had been amended. Clearly the issue was a legal one and the standard of review required little deference to the PAB decision in the opinion of Mr. Justice Evans writing for the Court of Appeal. That conclusion, he noted, is consistent with that concerning the standard of review articulated by Reed J. in Kerth, though I note the Court in Skoric was considering the decision of the PAB itself on its merits, circumstances distinguishable from those in Kerth and in this case where the issue arises in relation to the standard of review of a decision in regard to an application for leave to appeal.
[15] On the basis of this recent jurisprudence, in my view the review of a decision concerning an application for leave to appeal to the PAB involves two issues,
| 1. whether the decision maker has applied the right test - that is, whether the application raises an arguable case without otherwise assessing the merits of the application, and |
| 2. whether the decision maker has erred in law or in appreciation of the facts in determining whether an arguable case is raised. If new evidence is adduced with the application, if the application raises an issue of law or of relevant significant facts not appropriately considered by the Review Tribunal in its decision, an arguable issue is raised for consideration and it warrants the grant of leave. |
[16] In the case at bar the applicant raises one additional item of "evidence" that was not before the Review Tribunal when it reached its decision in September 1997, but was submitted subsequent to his application for leave to appeal by a letter, sent by fax, undated but received by the PAB on July 17, 1998. The letter briefly advised that as of July 1, 1998 the applicant was awarded "AISH disability", and asked that this be considered when decisions are made in regard to his file. The decision to deny leave makes no reference to this information, and the applicant urges that the decision was in error in ignoring this. Particularly, it was urged when this application for judicial review was heard, that the error is obvious when the requirement of severe disability under the province of Alberta AISH program is said to be the same as that under the Canada Pension Plan. Indeed, Mr. Callihoo bases his application for judicial review upon the following grounds:
| 1. The Applicant has satisfied the criteria of disability as defined by the Alberta Insured for the Severely Handicapped.13 |
| 2. The definition of disabled as employed by AISH is similar to the definition and criteria contemplated by Canada Pension Plan. |
[17] While the text of the Alberta legislation was not introduced before me, and it would be surprising if the provincial legislation simply duplicated qualifications for benefits for those who also qualified as disabled under the Canada Pension Plan, the issue thus raised was not fully developed and no further evidence of the nature of the provincial plan was adduced in relation to either the application for leave or this application for judicial review. Without further evidence than the brief reference in the fax letter there is not, in my opinion, any significant additional evidence raised by the application for leave when it was considered by the designated PAB member. The further reference in the written grounds for this application for judicial review, and the applicant's comments when this matter was heard, were not "evidence" before the leave decision maker; and they do not provide "evidence" warranting the Court intervening to set aside the decision refusing leave.
[18] I have myself checked the Alberta Regulation 203/99, Assured Income for the Severely Handicapped, made pursuant to the Alberta statute with the same title. The plan there sets out provision of a monthly payment of benefits determinable under the regulations for one who has a "severe handicap", a term defined as follows:
| (c) "severe handicap" means an impairment of mental or physical functioning or both that, in the opinion of the Director after considering any relevant medical or psychological reports, causes substantial limitation in the person's ability to earn a livelihood and is likely to continue to affect that person permanently because no remedial therapy is available that would materially improve the person's ability to earn a livelihood or improve the person's mental or physical functioning;14 |
There are concepts in this definition somewhat similar to those in s-s. 42(2) of the Plan, but there are differences as well. Moreover, it does not simply follow that qualification for a benefit provided under the provincial legislation raises an arguable issue concerning a decision that similar evidence does not qualify for benefit under another statute, in this case the Canada Pension Plan.
[19] I turn to consider other matters raised by the application for leave to appeal. In the applicant's undated eight page letter, received by the PAB which was accepted as an application for leave to appeal, the applicant raised the following principal concerns.
| 1. One member of the Review Tribunal appeared to be "totally unknowledgeable" about the disease SAD (seasonal affective disorder), a condition that the applicant claims to experience, so that it appeared to Mr. Callihoo that that member could not have made an impartial decision. |
| 2. The decision of the Review Tribunal, in the applicant's view, was based more on earlier rather than later medical reports, and questions of the Tribunal members about his physical activities failed to deal with matters that would support some of the conclusions of the Tribunal about the extent and continuity of his activities. In another context, the Tribunal assumed that certain light treatment for SAD would assist the applicant, but it had been tried before the Tribunal considered his case, and had not helped and was discontinued. |
| 3. Reviewing the facts of his case and some aspects of the Tribunal's report that are said to be in error, the applicant believes that he qualifies as disabled as that word is defined in the dictionary. When this application was heard, this concern was underlined by his subsequent qualification for benefits under the Alberta program for support of those who are disabled. The applicant expressed concerns about the definition of disabled relied upon by the tribunal. |
[20] In review of these concerns in relation to the decision of the Tribunal, without considering the merits of the leave application except to assess whether it raises an arguable case, it is my opinion that:
| 1. Even if one member of the Tribunal demonstrated little or no knowledge of one of the conditions claimed to affect the applicant, that in itself raises no grounds for finding bias or a lack of impartiality on the part of that one member or of the three person tribunal. There is no requirement that a member of the tribunal have knowledge of each of the many conditions that underlie a claim for disability benefits. A member's decision is not based on his or her own understanding of medical conditions, but upon his or her assessment of the reports of medical examiners, reports which are provided in the main by the applicant for benefits. |
| 2. The concern that insufficient attention was paid to the later and to certain medical reports is in essence a concern about the weight given by the Tribunal to particular aspects of the evidence before it. Insofar as the concern relates to particular factual references in the Tribunal's decision, in my opinion any such factual errors by the Tribunal are not basic to its ultimate decision, which is dependent upon the medical evidence in the record. |
| 3. Finally, the Tribunal relied upon and applied the definition of "disabled" as provided under the Plan by s-s. 42(2), as it is required to do, whatever other definitions there may be by dictionaries or even by other statutes, for example the Alberta legislation. |
[21] A final consideration in these Reasons must concern the decision by which the application for leave was refused, the decision set out in paragraph 5 of these Reasons. Counsel for the respondent, the Attorney General of Canada, urged that the decision, in particular the portion stating "I see no error in principle on the part of the Tribunal. I do not see a proper foundation for granting leave to appeal", makes clear that the designated member was properly considering whether the application for leave had raised an arguable case, without considering the merits of the application. That line may be difficult to draw in a given case, I acknowledge, but I am persuaded that in this case the leave application was assessed by the proper test, i.e. whether it raised an arguable case, without considering the merits of the application.
[22] In the absence of significant new or additional evidence not considered by the Review Tribunal, an application for leave may raise an arguable case where the leave decision maker finds the application raises a question of an error of law, measured by a standard of correctness, or an error of significant fact that is unreasonable or perverse in light of the evidence. The decision maker here found no such error is raised by the application for leave. That decision on the leave application does not contain an error that would be a basis for the Court to intervene.
Conclusion
[23] It may be that officers of the department of National Health and Welfare concerned with administration of the Canada Pension Plan can examine the Alberta legislation and explain to Mr. Callihoo why, if he qualified for disability benefits under that program, he does not simultaneously qualify for disability benefits under the Canada Pension Plan.
[24] Whether or not that is done, there is no basis for the Court to intervene and set aside the decision of the designated member of the PAB refusing Mr. Callihoo's application for leave to appeal. An order goes dismissing the application for judicial review and an order for other requested relief, i.e. setting aside the decision refusing leave to appeal, and a declaration that the applicant is entitled to disability benefits under the Plan.
[25] When this application was heard counsel for the respondent the Attorney General affirmed that he was not asking for costs in this case. Each party shall bear its own costs.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
May 12, 2000
__________________1 R.S.C. 1985, c. C-8, as amended.
2 Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 per Iacobucci J.
3 Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998]1 S.C.R. 982, 160 D.L.R. (4th) 193.
4 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 195.
5 [1999] F.C.J. No. 1514 (T.D.).
6 [1999] F.C.J. No. 1252 (T.D.).
7 Kurniewicz v. Canada (Minister of Manpower and Immigration) (1974) 6 N.R. 225 at 230 (F.C.A.).
8 [1999] F.C.J. No. 1913 (F.C.A.).
9 [1998] F.C.J. No. 1384 (T.D.).
10 [1999] F.C.J. No. 1972 (F.C.A.).
11 [1998] F.C.J. No. 287 (T.D.).
12 [2000] F.C.J. No. 193 (C.A.).
13 Referring to the Assured Income for the Severely Handicapped Act , R.S.A. 1980, c. A-48.