Date: 20000511 Docket: A-865-97
PRESENT: THE CHIEF JUSTICE LINDEN J. A. ROBERTSON J. A.
BETWEEN: THERESA M. PETERS
Applicant
-and
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA Respondent
Heard at Fredericton, New Brunswick, Thursday, May 11, 2000
Judgment delivered at Fredericton, New Brunswick, Thursday, May 11, 2000
REASONS FOR JUDGMENT BY: THE CHIEF JUSTICE
Date: 20000511 Docket: A-865-97
CORAM: THE CHIEF JUSTICE LINDEN J.A. ROBERTSON J.A.
BETWEEN:
THERESA M. PETERS
Applicant
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA
Respondent
REASONS FOR JUDGMENT (Delivered from the Bench at Fredericton, New Brunswick on Thursday, May 11, 2000)
[1] This is an application for judicial review under section 28 of the Federal Court Act, to
review and set aside, a decision of the Pension Appeals Board dated October 30, 1997 which held that the applicant was not disabled pursuant to the Canada Pension Plan, (the "Plan").
[2] The Pension Appeals Board dismissed the appeal on the basis that the applicant failed to prove that her disability was severe as defined in the Plan.
[3] The Board had before it a number of medical reports and based its decision on these reports.
-and
Page: 2
[4] The issue before this Court is whether the Board made a palpable and overriding error which affected its assessment of the facts.
[5] Applying this test to the present case, we have concluded that the Board made the following errors in reaching its decision.
[6] In its decision, the Board found "It is interesting and significant that all these medical
reports do not identify a functional incapacity or impairment."
[7] However, the records discloses that Dr. Kay in a letter dated March 26, 1996 concluded that the applicant's condition was "severe and prolonged" and that she was "unable to tolerate even light office types of work". He added that even the regular daily house work can bring on severe pain in her shoulder and neck area. He could not be certain when she would be able to go back to work.
[8] In an earlier letter dated March 30, 1995, Dr. Kay stated that "Her functioning level is
very poor."
[9] Finally, Dr. Kay's medical report in support of the applicant's claim states: "She has
been unable to do any work since the car accident in 1988. She is living with pain everyday. "
Page: 3
[10] In its decision, the Board stated that there was no evidence that surgery was undertaken
for the shoulder.
[11] However, the record discloses that the applicant underwent a left shoulder acromioplasty and decompression of the rotator cuff in 1992. In 1995 she was placed under general anesthesia
for arthroscopy of the left shoulder. The surgeon reported the applicant had a very large
shoulder capsule and was unlikely to be helped with further surgery.
[12] In its decision, the Board found that the applicant had a soft tissue injury after a motor vehicle accident in 1988.
[13] While the early report from her family doctor could indicate a soft tissue injury, the subsequent medical reports identify the condition as a large shoulder capsule with multidirectional instability.
[14] We have reached the conclusion, based on the examination of the record before the Board and the issue it was called upon to determine that these palpable and overriding errors could reasonably be considered to have affected the Board's assessment of the facts and, therefore, it's ultimate decision.
[15] The decision of the Board will be quashed and the matter remitted for a new hearing.
[16] Costs will be awarded to the applicant.
John D. Richard
C.J.
FEDERAL COURT OF CANADA APPEAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-865-97
STYLE OF CAUSE: THERESA M. PETERS
- and -
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA
| PLACE OF HEARING: |
Fredericton, New Brunswick |
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| DATE OF HEARING: |
May 11, 2000 |
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| REASONS OF JUDGMENT |
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| OF THE COURT: |
THE CHIEF JUSTICE |
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| APPEARANCES: |
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| Mr. Richard Bell |
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for the Applicant |
| Ms. Mary Tobin Oates |
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for the Respondent |
| SOLICITORS OF RECORD: |
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| Mr. B. Richard Bell |
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| 570 Queen Stre ° t |
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| Fredericton, NB |
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| E313 5A6 |
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for the Applicant |
| Ms. Mary Tobin Oates |
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| c/o Department of Justice |
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| 6th Floor, Tower "A" |
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| Vanier, ONT |
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| KlA OL1 |
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for the Respondent |