Date: 20001218
Docket: T-1686-99
BETWEEN:
CONSTANTINOS KORESE
Applicant
- and -
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR ORDER
LEMIEUX J.:
Background
[1] In this judicial review application, Constantinos Korese (the "applicant") seeks to set aside the August 20, 1999 decision of the Honourable J.L. Boland, a member designated under section 83(2.1) of the Canada Pension Plan (the "Plan"), denying him leave to appeal to the Pension Appeals Board (the "Board") the March 8, 1999 decision of the Review Tribunal (the "Tribunal") dismissing his appeal from a decision of the Minister of Human Resources holding that he was not entitled to a disability pension for which of the applicant had applied on March 5, 1996.
[2] Paragraph 42(2)(a) of the Plan reads as follows:
(2) For the purposes of this Act,
(2) Pour l'application de la présente loi:
(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,
a) une personne n'est considérée come invalide que si elle est déclarée, de la manière prescrite, atteinte d'une invalidité physique ou mentale grave et prolongée, et pour l'application du présent alinéa:
| (i) disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and |
| (i) une invalidité n'est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice, |
| (ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; ... [Emphasis mine.] |
| (ii) une invalidité n'est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès; [C'est moi qui souligne.] |
[3] The member designate's endorsement denying leave reads:
| Having reviewed the material filed, I see no reason why the Board would interfere with the findings and conclusions of the Review Tribunal. I see no error in fact or principle on the part of the Tribunal. As well, no further material has been filed. Therefore, leave to appeal is denied. |
[4] The Tribunal formulated its assessment of the medical evidence and its conclusion in the following words:
| . . . . |
| Dr. Opper, Family Physician, appeared at the hearing and stated the Appellant suffers from osteoarthritis of the neck and shoulders with impingement of the nerve, cervical spine stenosis with nerve impingement, thoracic nerve injury and chest muscle strain. He states that the Appellant cannot move his arms over his shoulders and that even movement from the waist up causes difficulty. He states that treatment is passive and surgery is not an option. The Appellant has chronic pain even when at rest and any activity makes it worse. He states that the Appellant could not do even sedentary work and this has been the case since February 1996. |
| Dr. Koponen, Neurologist, reported on March 23, 1998 that an MRI shows moderate pyramidal stenosis with mild stenosis at C3-4. |
| Dr. Bril, Neurologist, reported on February 24, 1998 that an MRI of the cervical spine showed some spondylosis which is mild. He states an electromyographic examination showed no striking chronic neurogenic process in the muscles. The nerve conductions are unremarkable. |
| Dr. Coates, Radiologist, reports on March 7, 1998 that an MRI of the cervical spine showed mild degeneration and minimal disc bulge throughout with mild bilateral foraminal narrowing secondary to osteophytes at C3-4 and moderate narrowing at C5-6. The lumbosacral spine was normal. |
| The Panel finds the Appellant's condition is prolonged but based on the objective test the condition was not so severe as to prevent the Appellant from pursuing some substantially gainful sedentary occupation on a regular basis. [Emphasis mine.] |
The test on this review
[5] There have been a number of recent decisions in this Court on the standard of review governing judicial review applications from members designated under the Plan to determine leave applications to the Board from findings of Tribunals.
[6] Mr. Justice Malone, on behalf of the Federal Court of Appeal, in Martin v. The Minister of Human Resources Development (Docket: A-229-98, December 16, 1999) endorsed the reasons for judgment of Madam Justice Reed in Kerth v. Canada (Minister of Human Resources Development) (1999) F.C.J. No. 1252, in this way at paragraph 5:
| Justice Reed found that a leave to appeal proceeding is a preliminary step to a hearing on the merits. As such "it is a first and lower hurdle for the applicant to meet than that that must be met on the hearing of the appeal on the merits" (see page 6 of decision). The Court relied on the case of Kurniewicz v. Canada (Minister of Manpower and Immigration) (1974) 6 N.R. 225 at p. 230 (F.C.A.) for the proposition that some arguable ground upon which the proposed appeal might succeed is needed in order for leave to be granted. |
[7] Justice Malone in Martin, supra, formulated one element of the test governing this application. He wrote at paragraphs 6 and 7 of the Federal Court of Appeal reasons, the following:
| On examination of the reasons given by the PAB Vice-Chairman in refusing leave to appeal it is evident that he went much further than merely considering whether an arguable case or question of law or jurisdiction had been raised and instead considered whether the appellant could succeed on the merits. This is an error of law ... |
| We are of the respectful view that the Vice-Chairman of the PAB in making his decision applied an incorrect test and placed too heavy a burden on the appellant when assessing the application for leave to appeal. In our view, there is at least an arguable case as to the proper interpretation of subparagraph 42(2)(a)(i) of the Canada Pension Plan which requires that for a disability to be severe the claimant must be "incapable regularly of pursuing any substantially gainful occupation". The Review Tribunal, however, assumed that the appellant had to show that he is "incapable of doing any type of work". |
[8] Justice MacKay furnished another element of the test in Callihoo v. The Attorney General of Canada (Docket: T-859-99, May 12, 2000).
[9] Justice Mackay, after reviewing the evidence, concluded the review of a decision concerning an application for leave to appeal to the PAB involved two issues which he framed in these terms at paragraph 15 of his reasons:
| 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 case is raised for consideration and it warrants the grant of leave. |
[1] Justice McKeown followed Callihoo, supra, in Wihksne v. Attorney General of Canada (Docket: T-1451-99, July 21, 2000).
The Position of the parties
[2] Briefly put, counsel for the applicant argued a review of the member designate's reasons shows she adopted the wrong test - she did not consider whether the applicant had an arguable case but rather examined the leave application substantially on the merits.
[3] In his submissions, the arguable case put forward by the applicant was that the Tribunal had ignored the evidence of the only medical witness before it, Dr. Opper, who gave a prognosis, not controverted, the applicant could not do even sedentary work.
[4] Alternatively, if I came to the conclusion the member designate had considered the matter from a proper perspective, that is, whether the leave application raised an arguable case, she erred in not finding the Tribunal had committed an error of law in its formulation of an "objective" evidentiary test and its application, in this case, to the totality of the medical evidence before it.
[5] Counsel for the respondent countered by arguing the member designate had not usurped the Board's functions by examining the leave application on its merits but rather, after examining the evidence, came to the conclusion that the applicant had not satisfied her an arguable point had been raised.
[6] To the applicant's argument the Tribunal had ignored Dr. Opper's evidence, counsel for the respondent noted the evidence before the Tribunal was not limited to Dr. Opper's testimony: there were other medical reports filed before it prior to and at the hearing as well and there was the testimony of the applicant himself, who he was and what he said in his application for a permanent disability pension.
[7] Counsel for the Minister referred to the submissions which the Minister made to the Tribunal which essentially reviewed all of the medical evidence put forward by the applicant (the Minister presented no independent medical evidence) and submitted the applicant's own medical evidence pointed to his remaining functional. As counsel for the Minister put it, this was not a question of ignoring the evidence but a weighing of the evidence by the Tribunal which is its proper function in respect of which the Court will not interfere.
Analysis
[8] This is not a case where the Minister introduced independent medical evidence through a witness before the Tribunal nor is it the case where the applicant put in new evidence in support of his leave application. The applicant supported this judicial review application by a short affidavit sworn from Dr. Opper who confirmed his opinion that, considering only the physical limitations imposed by Mr. Korese's condition, he would not be able to perform even light or sedentary employment on a regular basis.
[9] Counsel for the applicant confirmed to me Dr. Opper was the only medical witness to testify before the Tribunal. The reference by the Tribunal to other medical evidence was based on reports which the applicant had filed.
[10] I also note the developments in the case law on reviewing decisions to grant or refuse leave applications to the Board are very recent and preceded the June 24, 1999 decision in this case to refuse leave.
[11] The member designate's endorsement constituting her reasons for refusing leave are very brief which makes it difficult for the reviewing Court to decide whether she viewed the leave application from a proper perspective, that is, whether an arguable point had been raised or whether she imposed too high of a burden on the applicant to satisfy her he would succeed on the merits. This difficulty was acknowledged by Mr. Justice MacKay in Callihoo, supra, at paragraph 21.
[12] In Salls v. The Minister of Human Resources (Docket: T-2204-98, June 28, 2000), Justice Rouleau set aside a member designate's leave refusal to the Board where the endorsement refusing leave read:
| Leave to appeal the Review Tribunal's decision has to be refused. It is the function of the Review Tribunal to assess the evidence, including the applicant's as it related to her disability. This it did and determined that her condition is not so severe at this time that it precludes her from engaging in gainful employment. In doing so, it exercised its function quite properly and committed no error. There is accordingly no basis for an appeal to the Pension Appeals Board. |
[13] Justice Rouleau, in examining these reasons, came to the conclusion the Chairperson of the Board, went beyond the fundamental question before him of whether an arguable case or a question of law or jurisdiction had been raised by the applicant for leave to appeal. He found the Chairperson's decision indicated "that the question he addressed was whether the Review Tribunal's decision was correct and whether the appeal would succeed if allowed to proceed. That constitutes a reviewable error or law which warrants the intervention of this Court."
[14] Justice Rouleau then, expressed himself, in this way, at paragraph 9 of his reasons in finding that there was an arguable case in the matter:
| In my view, there is at least an arguable case here with respect to the treatment given by the Review Tribunal to the only medical evidence before it, of which was the uncontroverted evidence of the applicant's physician. The Tribunal appears to have accepted that evidence but at the same time reached a conclusion that the evidence did not support. Or, it could be implied that the tribunal simply disregarded the evidence before it. |
[15] Reading the member designate's reasons for refusing leave, I have come to the conclusion she adopted the wrong test - she tested the merits of the applicant's case rather than determining whether he had raised an arguable point.
[16] First, she concluded "having reviewed the material filed, I see no reason why the Board would interfere with the findings and the conclusions of the Review Tribunal."
[17] The material which was in front of the member designate when she made her decision consisted of: all of the material in the Tribunal's hearing file including the applicant's application for disability pension and all medical reports in support, the analysis of the evidence submitted by the Minister at the hearing, the evidence adduced by the applicant at the hearing, the Tribunal's decision and the application for leave to appeal.
[18] I can only interpret the member designate's conclusion as indicating she decided, if leave was granted, the applicant would not succeed on the merits because there was no reason why the Board would interfere with the findings and conclusions of the Tribunal.
[19] My conclusion is buttressed by what she next said that "I see no error in fact or principle on the part of the Tribunal". These are findings which an appeal body would make after considering the matter on the merits when dismissing an appeal and mesh with the last comment she made that no further evidence had been filed.
[20] Focussing on the success of the applicant on appeal and not on whether an arguable point had been raised constitutes an error of law and a ground for quashing the refusal to grant leave.
[21] I see at least one arguable point and that is whether the Tribunal ignored the evidence of the only medical witness who testified as to the applicant's functional incapacity. I accept counsel for the applicant's view that this testimony was uncontroverted in the sense that no other medical witness (there were none) or any medical report in evidence before the Tribunal reached a conclusion that the applicant was able to pursue some substantially gainful sedentary occupation on a regular basis which is the statutory criteria. In the circumstances, I need not deal with the other arguable point raised by the applicant.
Disposition
[22] For all of these reasons, the decision of the member designate refusing leave to appeal to the Pension Appeals Board is set aside and the applicant's application for leave to appeal is referred back for reconsideration by a different member.
"François Lemieux"
Judge
OTTAWA, ONTARIO
December 18, 2000