Date: 20041101
Docket: T-1586-03
Citation: 2004 FC 1540
Ottawa, Ontario, this 1st day of November, 2004
Present: CHIEF JUSTICE ALLAN LUTFY
BETWEEN:
MARIA OLIVEIRA
Applicant
and
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR ORDER AND ORDER
[1] Maria Oliveira, 45, has lived with fibromyalgia for several years, with no expectation of any substantial recovery.
[2] In July 1999, her request for a disability pension under the Canada Pension Plan, R.S.C. 1985, c. C-8, was refused by the respondent, even after reconsideration under subsection 81(2). The relevant provisions of the Plan are set out in Schedule A to these reasons.
[3] In April 2000, the Review Tribunal, acting as one constituted under sections 2 and 82 of the Plan, dismissed Ms. Oliveira's appeal from the respondent's negative decision. The Review Tribunal found the applicant's disability to be "prolonged" but that there was insufficient evidence to prove her disability to be "severe", within the meaning of section 42 of the Plan.
[4] In April 2002, a second and differently constituted Review Tribunal, this one acting under subsection 84(2) of the Plan, denied Ms. Oliveira's application to rescind the negative decisions of July 1999 and April 2000 on the basis of "new facts". According to subsection 84(2), a Review Tribunal may on "new facts" rescind an earlier decision under the Plan.
[5] Ms. Oliveira now seeks judicial review of this second decision which denied the reopening of her case. The application in the Federal Court was kept in abeyance pending the outcome in a related proceeding in the Federal Court of Appeal, Oliveira v. Canada (Minister of Human Resources Development, 2004 FCA 136.
[6] In section 2 of the Plan, a Review Tribunal is defined as one "established under section 82". In Canada (Minister of Human Resources Development) v. Fleming, 2004 FCA 288, at paragraph 9, Justice Décary noted that "[t]here is no such thing, in the Plan, as a tribunal constituted under subsection 84(2)". Fleming was decided after the hearing and the filing of supplementary written submissions in this proceeding. In this case, the two panels were composed of different members. Neither party raised whether the panel which considered the application under subsection 84(2) was properly constituted. As this application for judicial review will be granted on other grounds, it is preferable that I not deal with this issue and leave the matter for the consideration of the Commissioner. In these reasons, "the second Review Tribunal" refers the one constituted for the purposes of Ms. Oliveira's application under subsection 84(2).
Analysis
[7] In the first Review Tribunal decision of April 2000, the panel noted that, according to Ms. Oliveira, her "sole disabling condition is fibromyalgia". The panel further found that Ms. Oliveira had not been treated by a psychiatrist or a psychologist and was not taking any medication for a psychological condition or depression.
[8] The second Review Tribunal, in its decision of April 2002, took note of this finding by the first panel: "An earlier Review Tribunal ... determined that the Applicant was not disabled due to her fibromyalgia which was her sole disabling condition at that time".
[9] In urging the second Review Tribunal to reopen her case, the applicant presented three medical reports to meet the "new facts" test. Two psychiatric opinions were sought by Ms. Oliveira's family doctor, Dr. Bruce B. Lanktree, who in turn prepared a third report based on his review of the first two.
[10] On August 14, 2000, Dr. Shreekant Sharma prepared his psychiatric assessment. He diagnosed a depression secondary to a medical condition.
[11] On May 25, 2001, with apologies for his delay, Dr. Jose Silveira, a clinical director in mental health and addiction services at the Toronto Western Hospital, confirmed the applicant's history of fibromyalgia and added that "... she also quite clearly has a Major Depressive Disorder".
[12] On February 9, 2002, after reviewing the two psychiatric reports, Dr. Lanktree noted that the applicant's "...clinical picture has not changed since 1997".
[13] On the basis of these three reports, it would have been open to the second Review Tribunal, had it chosen to do so, to conclude that Ms. Oliveira suffered from both fibromyalgia and depression prior to the end of her minimum qualifying period. Put differently, the applicant presented a factual basis upon which one could find that she had two, and not one, disabling conditions at the relevant time period.
[14] The second Review Tribunal, characterized the psychiatric evidence as new because it had not been previously introduced. However, it found that the applicant did not meet the "new facts" test, apparently because she did not see a psychiatrist until July 2000, subsequent to her minimum qualifying period. Also, in a separate analysis of Dr. Lanktree's report, the panel found that his opinion of February 9, 2002 did not constitute "new facts" because it did not vary from his earlier opinion of January 29, 1998.
[15] In my opinion, the applicant's main argument is dispositive of this proceeding. I agree that the Review Tribunal was patently wrong, within the meaning of paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, in failing to consider the three new medical reports as a whole. Ms. Oliveira relied on all three reports which, in her view, when read together constituted evidence of "new facts". Instead, the panel made two separate "new facts" assessments, one with respect to the two psychiatric reports and the second concerning Dr. Lanktree's report of February 9, 2002.
[16] The seriousness of the second Review Tribunal's error is readily demonstrable.
[17] According to the two psychiatric reports, Ms. Oliveira suffered from fibromyalgia and depression. After reviewing these two reports, Dr. Lanktree stated that her clinical condition had not changed since 1997, prior to the minimum qualifying period. Were a panel to read these three reports together and as a whole, a determination might be formed that Ms. Oliveira had two disabling conditions at the relevant time. Such a finding would differ from the original Review Tribunal's statement that "her sole disabling condition is fibromyalgia".
[18] If it had concluded that new evidence had established a second disabling condition, the same panel would then be required to assess whether the new evidence was "material": Canada (Minister of Human Resources Development) v. Macdonald, 2004 FCA 48 at paragraph 2.
[19] In summary, the second Review Tribunal was aware that the fibromyalgia was the sole disabling condition noted by the first Review Tribunal. The psychiatrists both noted Ms. Oliveira's condition of depression. Dr. Lanktree's statement that the applicant's "clinical picture has not changed since 1997" links the psychiatrists' diagnosis of depression to the period prior to the applicable minimum qualifying. If it had assessed the three reports as a whole, the second Review Tribunal may have concluded that the additional evidence pointed to two disabilities which, depending on its assessment of "materiality" within the meaning of Macdonald, could have constituted "new facts". By failing to consider the three reports together as a package of new evidence, the panel could not make the relevant inquiry concerning the "new facts" test. This failure constitutes a reviewable error in the circumstances of this case which requires the Court's intervention. Accordingly, this application for judicial review will be granted.
ORDER
IT IS HEREBY ORDERED THAT:
1. This application for judicial review is granted.
2. The decision of the Review Tribunal dated April 6, 2002 is set aside and the matter referred for a new determination by a Review Tribunal constituted in accordance with the Canada Pension Plan for the purposes of subsection 84(2) of the Plan.
(s) "Allan Lutfy"
The Chief Justice
SCHEDULE A
| 2.(1) In this Act,
...
"Review Tribunal" means a Canada Pension Plan -- Old Age Security Review Tribunal established under section 82; |
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2.(1) Les définitions qui suivent s'appliquent à la présente loi. ...
« tribunal de révision » Tribunal de révision Régime de pensions du Canada -- Sécurité de la vieillesse constitué en application de l'article 82. |
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| 81.(2) The Minister shall forthwith reconsider any decision or determination referred to in subsection (1) and may confirm or vary it, and may approve payment of a benefit, determine the amount of a benefit or determine that no benefit is payable, and shall thereupon in writing notify the party who made the request under subsection (1) of the Minister's decision and of the reasons therefor. |
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81.(2) Le ministre reconsidère sur-le-champ toute décision ou tout arrêt visé au paragraphe (1) et il peut confirmer ou modifier cette décision ou arrêt; il peut approuver le paiement d'une prestation et en fixer le montant, de même qu'il peut arrêter qu'aucune prestation n'est payable et il doit dès lors aviser par écrit de sa décision motivée la personne qui a présenté la demande en vertu du paragraphe (1).
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| 82.(1) A party who is dissatisfied with a decision of the Minister made under section 81 or subsection 84(2), ... may appeal the decision to a Review Tribunal in writing within 90 days, or any longer period that the Commissioner of Review Tribunals may, either before or after the expiration of those 90 days, allow, after the day on which the party was notified in the prescribed manner of the decision or the person was notified in writing of the Minister's decision and of the reasons for it.
(2) A Review Tribunal shall be constituted in accordance with this section. ...
(11) A Review Tribunal may confirm or vary a decision of the Minister made under section 81 or subsection 84(2) or under subsection 27.1(2) of the Old Age Security Act and may take any action in relation to any of those decisions that might have been taken by the Minister under that section or either of those subsections, and the Commissioner of Review Tribunals shall thereupon notify the Minister and the other parties to the appeal of the Review Tribunal's decision and of the reasons for its decision.
... |
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82.(1) La personne qui se croit lésée par une décision du ministre rendue en application de l'article 81 ou du paragraphe 84(2) ... peut interjeter appel par écrit auprès d'un tribunal de révision de la décision du ministre soit dans les quatre-vingt-dix jours suivant le jour où la première personne est, de la manière prescrite, avisée de cette décision, ou, selon le cas, suivant le jour où le ministre notifie à la deuxième personne sa décision et ses motifs, soit dans le délai plus long autorisé par le commissaire des tribunaux de révision avant ou après l'expiration des quatre-vingt-dix jours.
(2) Un tribunal de révision est constitué conformément au présent article. ...
(11) Un tribunal de révision peut confirmer ou modifier une décision du ministre prise en vertu de l'article 81 ou du paragraphe 84(2) ou en vertu du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse et il peut, à cet égard, prendre toute mesure que le ministre aurait pu prendre en application de ces dispositions; le commissaire des tribunaux de révision doit aussitôt donner un avis écrit de la décision du tribunal et des motifs la justifiant au ministre ainsi qu'aux parties à l'appel.
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| ...84.(2) The Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding subsection (1), on new facts, rescind or amend a decision under this Act given by him, the Tribunal or the Board, as the case may be. |
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84.(2) Indépendamment du paragraphe (1), le ministre, un tribunal de révision ou la Commission d'appel des pensions peut, en se fondant sur des faits nouveaux, annuler ou modifier une décision qu'il a lui-même rendue ou qu'elle a elle-même rendue conformément à la présente loi. |
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FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1586-03
STYLE OF CAUSE: MARIA OLIVEIRA V. MINISTER OF HUMAN RESOURCES DEVELOPMENT
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 22, 2004 (Supplementary written submissions received July 15, 2004)
REASONS FOR ORDER
AND ORDER: LUTFY C.J.
DATED: November 1, 2004
APPEARANCES:
Mr. Carl Symondson FOR THE APPLICANT
Ms. Tania Nolet FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waterloo Regional Community Legal Services
Kitchener, Ontario FOR THE APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General
Ottawa, Ontario FOR THE RESPONDENT