Date: 20010227
Docket: T-1462-99
Citation: 2001 FCT 127
BETTY BURLEY
Applicant
- and -
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR ORDER AND ORDER
Muldoon, J.
[1] The applicant seeks judicial review in respect of the decision of a member designate of the Chair of the Pension Appeals Board under section 83(2.1) of the Canada Pension Plan R.S.C. 1985, c. C-8 rendered on June 22, 1999, and delivered on July 6, 1999. This decision denied leave to appeal to the Pension Appeals Board (PAB). This application for judicial review was heard in Toronto, on May 2, 2000.
[2] The application is brought under sections 18 and 18.1(3) of the Federal Court Act, R.S.C. 1985, c. F-7, and requests this Court to set aside the July 6, 1999 decision and to order that the applicant be granted leave to appeal to the Pensions Appeals Board. In the alternative, the applicant seeks an order remitting the matter to the member designate of the Chair or Vice-Chair of the PAB for a determination in accordance with this court's judgment. This Court will allow the application in part for the following reasons.
Background
[3] The applicant is a fifty-three year old woman, with a grade six education, who worked for nearly twenty-three years as a cleaner. The applicant states she stopped working May 11, 1995 because of pain and fatigue, which rendered her unable to perform her duties.
[4] The applicant suffers from fibromyalgia, as well as sleep and bowel disorders. In April 1995, the Applicant was examined by Dr. Bagg of the Physical Medicine Clinic at St. Mary's Hospital's Department of Rehabilitation Medicine. Dr. Bagg diagnosed the applicant with chronic fibromyalgia, which is resistant to tricyclic antidepressant medications. In a letter, dated April 24, 1995, Dr. Bagg described the applicant as a patient who had at least an eight-year history of persistent aching and numbness, many years of a non-restorative sleep pattern, and a medical history of bowel disorder.
[5] In May 1995, the applicant applied to the Canada Pension Plan for disability benefits. The applicant's medical doctor, Dr. Pettis, completed the medical report portion of the application and confirmed the applicant's chronic fibromyalgia diagnosis, with a long history of arm and leg pain accompanied by chronic fatigue and poor sleep patterns. Dr. Pettis' prognosis of the chronic fibromyalgia is that it is unresolving and resistant to medication.
[6] In November, 1995, the Canadian Pension Plan office advised the applicant her application for disability benefits was denied, having determined she was able to do other work suitable to her condition on a regular basis. The applicant's request for reconsideration was denied so she appealed to the Review Tribunal. (Tribunal).
[7] The Tribunal hearing took place on November 9, 1995 in Kingston, Ontario. In support of her submission that she was unable to work due to her medical conditions, the applicant gave oral testimony and medical reports from six medical doctors, five of them specialists. The Tribunal's August 21, 1998 decision indicated that the Applicant was not disabled within the meaning of the Canada Pension Plan.
[8] On November 10, 1998, the applicant's solicitors filed an application with the PAB for leave to appeal from the Tribunal's decision, citing the following grounds:
| (a) the Tribunal based its consideration on irrelevant considerations; |
| (b) the Tribunal attached significant weight to evidence that ran counter to the applicant's medical evidence of pain and fatigue and to the applicant's testimony; |
| (c) the Tribunal ignored relevant evidence; |
| (d) the Tribunal erroneously concluded that the applicant had not followed a specialist's advice to work up "a good sweat"; and |
| (e) the Tribunal failed to apply the correct tests for entitlement to a disability benefit, by not taking into account the applicant's incapacity to look for substantially gainful employment. |
.
[9] On June 1 and 2, 1999, the applicant underwent a functional abilities evaluation at the Ontario March of Dimes in Kingston, Ontario. The resulting Functional Abilities Evaluation Report, dated June 7, 1999, concluded the applicant's options for finding suitable gainful employment were limited. The report's final of nine recommendations is as follows:
| Based on Ms. Burley's performance, she presently does not demonstrate the ability of regularly pursuing any substantially gainful occupation. At best, she can likely work 2 hours per day in a sedentary type job. Her past work experience has been in the cleaning industry and her education level is grade 7. Both of these factors limit greatly her options of securing an occupation suitable to her functional capacities.1 |
[10] The report was submitted to the Pension Appeals Board on June 8, 1999 as additional medical evidence in support of the applicant's application for leave to appeal.
[11] In a June 22, 1999 decision sent on July 6, 1999, the Honourable W. J. Wallace of the Pension Appeal Board, (Appeal CP 11663), refused the applicant leave to appeal, stating:
| A review of the medical evidence before the Review Tribunal reveals that there is evidence which supports the Tribunal's decision. The record does not reveal any error in principle or in law on the part of the Tribunal. The Application for Leave to Appeal does not reveal new medical evidence that would probably lead to a conclusion on appeal differing from that of the Tribunal. |
| Accordingly, I refuse this Application for Leave to Appeal. |
[12] The applicant submits that Justice Wallace made two errors in law when assessing her application for leave to appeal. First, he applied the wrong legal test by asking whether or not the application would probably succeed, instead of asking whether or not that applicant had raised an arguable case. So, she alleges, Mr. Justice Wallace asked the wrong question, and placed too high a burden on the applicant when considering her application for leave.
[13] The second alleged error is that Mr. Justice Wallace's assessment does not clearly indicate that he considered the Functional Abilities Evaluation Report as new evidence in support of the applicant's claim for a disability pension. Mr. Justice Wallace's failure to address that report's evidentiary value expressly suggests that it was not considered at all. Further, had Mr. Justice Wallace considered the report, the applicant claims he would have decided the matter in her favour. The claim states that these issues give rise to a reviewable error on the face of the record.
[14] With respect to the applicable standard of review, counsel relied on the functional and pragmatic analysis per Pushpanathan1 and Baker1. Counsel for the applicant submits leave to appeal decisions under the Canada Pension Plan concern questions of mixed law and fact and affect individual rights. These matters require no expertise unique to the PAB. Counsel submits, in the absence of a privative clause, the appropriate standard of review is correctness.
[15] The respondent submits that Justice Wallace did not err in denying leave, and argues the Court should accord high deference to his decision. The respondent's counsel argues that although leave to appeal decisions under the Canada Pension Plan concerns questions of mixed fact and law, which are adjudicative of individual rights, and not protected by a privative clause, these decisions should nonetheless be accorded deference, given the PAB's specialized expertise. Further, a leave to appeal decision should be accorded deference by its very nature. Relying on the "Ernewein principle"1, which holds that the purpose of requiring permission for launching appeals is to conserve an appellate structure's limited resources, counsel submits this court should restrict its review to the "reasonableness simpliciter" standard, for fear of making the leave to appeal provision of the Canada Pension Plan illusionary.
[16] The respondent submits that there is no evidence Mr. Justice Wallace erred egregiously by applying the wrong test in denying the leave application. The de novo nature of a PAB hearing required Mr. Justice Wallace to review the evidence in determining the existence of a seriously arguable ground. In this regard, the respondent states that the Review Tribunal made the appropriate finding. Therefore, in point of fact and law, neither the Review Tribunal nor the Chairman, Mr. Justice Wallace, erred in denying the applicant's claim for a disability pension, according to the respondent.
Analysis
Standard of Review
[17] The sole issue for this court is whether the Honourable Mr. Justice Wallace committed a reviewable error in denying the applicant's application for leave to appeal.
[18] Whether Mr. Justice Wallace applied the correct legal test in denying the leave application is a question of law. It is a decision that is adjudicative of the applicant's rights for which the PAB has no special expertise. It is not protected by a privative clause. The applicable standard of review is therefore correctness.1
Was leave properly denied?
[19] The proper test for deciding an application for leave to appeal to the PAB is whether or not an arguable case has been raised. In Martin v. Canada (Minister of Human Resources Development)1, the Federal Court of Appeal held as follows
| 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. The Vice-Chairman stated: |
| It is difficult to see how the Board could come to any different conclusion from that reached by the Review Tribunal. The medical evidence does not support the contention that the applicant is incapable regularly of pursuing any gainful occupation. It shows he is limited as to what work he can do, but supports the Minister's contention that less physically demanding work would be within his capacity. As to the applicant's education qualifications, any limitation flowing from that consideration is not based on disability. Leave to appeal cannot be justified. |
| 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". |
[20] Subsections 83 of the Canada Pension Plan permits applicants for disability pensions to apply for leave to appeal a decision of the Tribunal to the PAB. Paragraphs (1) to (3) of section 83 of the Canada Pension Plan proceed as follows:
| 83. (1) A spouse, former spouse, estate, applicant, beneficiary or beneficiary's spouse or, subject to the regulations, any person on behalf thereof, or the Minister, if dissatisfied with a decision of a Review Tribunal made under section 82, other than a decision made in respect of an appeal referred to in subsection 28(1) of the Old Age Security Act, or under subsection 84(2), may, within ninety days after the day on which that decision is communicated to the spouse, former spouse, estate, applicant, beneficiary, beneficiary's spouse, person or Minister, or within such longer period as the Chairman or Vice-Chairman of the Pension Appeals Board may either before or after the expiration of those ninety days allow, apply in writing to the Chairman or Vice-Chairman for leave to appeal that decision to the Pension Appeals Board. |
| 83(2) The Chairman or Vice-Chairman of the Pension Appeals Board shall, forthwith after receiving an application for leave to appeal to the Pension Appeals Board, either grant or refuse that leave. |
| 83(2.1) The Chairman or Vice-Chairman of the Pension Appeals Board may designate any member or temporary member of the Pension Appeals Board to exercise the powers or perform the duties referred to in subsection (1) or (2). |
| 83 (3) Where leave to appeal is refused, written reasons must be given by the person who refused the leave. |
[21] In her application for leave to appeal to the PAB, the applicant submits the Review Tribunal applied the wrong legal test for entitlement to a disability benefit and misconstrued the evidence before it. A Functional Abilities Evaluation Report accompanied these arguments as new evidence in support of her claim that she suffered from a pensionable disability. Nevertheless, Mr. Justice Wallace denied the application, holding in part that there was evidence supporting the Tribunal's decision and the "Application for Leave to Appeal does not reveal new medical evidence that would probably lead to a conclusion on appeal differing from that of the Tribunal".
[22] Examination of Mr. Justice Wallace's reasons for refusing leave to appeal suggests that he went beyond merely considering whether an arguable case or question had been raised, to considering the possibility of success on the merits of the applicant's case. In so doing, Mr. Justice Wallace exceeded his jurisdiction; he stepped into the role of the PAB, reviewing the merits of the application once leave had been granted. This is an error of law.1
[23] The unmentioned Functional Abilities Evaluation report alone indicated there is an arguable case as to whether the applicant meets the criteria of subparagraph 42(2)(a)(i) of the Canada Pension Plan. This section requires that for a disability to be severe the claimant must be "incapable regularly of pursuing any substantial gainful occupation". It therefore appears that Mr. Justice Wallace applied the incorrect test and placed too heavy a burden on the applicant when assessing the application for leave to appeal. The applicant is not required to prove her case at this point in the proceedings. A leave to appeal proceeding is a preliminary step to a hearing on the merits, which "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".1
[24] As a consequence, the appeal is allowed and the June 22, 1999 order of Mr. Justice Wallace is set aside. The application for judicial review is allowed and the application for leave to appeal to the PAB shall be remitted for prompt reconsideration. At both parties' request, no costs are to be awarded. The respondent's counsel asserted that this application, if allowed, should be remitted to a different member designate. The Court will do that, but with direction to adjudicate the simple question in a manner consonant with these reasons which should result in a disposition much more favourable to the applicant.
Ottawa, Ontario,
February 27, 2001
O R D E R
The application for judicial review is granted and Mr. Justice Wallace's decision (Appeal CP 11663) rendered on June 22, 1999, is quashed and set aside; the applicant's application for leave to appeal to the Pension Appeal Board is remitted unto it for the prompt attention of a different member designated under subsection 83 (2.1) of the Canada Pension Plan, to be adjudicated in a manner consonant with the above expressed reasons of even date herewith. No costs are awarded.
Judge
__________________1 Functional Abilities Evaluation Report, Ontario March of Dimes, 7 June 1999.
2 Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
3 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
4 Ernewein v. Minister of Employment and Immigration [1980] 1 S.C.R. 639.
5 Canada (Minister of Human Resources Development) v. Skoric [2000] 3 F.C. 265 (FC/A); Calihoo v. Canada (Attorney General) T-859-99 (May 12, 2000)(T.D.); Kerth v. Canada (Minister of Human Resources Development) (1999) 173 F.T.R. 102 (T.D.)
6 Martin v. Canada (Minister of Human Resources Development) (1999) 252 N.R. 141 (F.C./A.)
7 Martin v. Canada (Minister of Human Resources Development) (1999) 252 N.R. 141 (F.C.A.); Kerth v. Canada (Minister of Human Resources Development) supra fn.5; Paproski v. Canada (Minister of Human Development), T-1959-99 (June 13, 2000) (T.D.)
8 Kerth v. Canada (Minister of Human Resources Development) (1999) F.T.R.102.