Date: 20000721
Docket: T-1451-99
OTTAWA, ONTARIO THIS 21ST DAY OF JULY, 2000
PRESENT: THE HONOURABLE MR. JUSTICE McKEOWN
BETWEEN:
THOMAS WIHKSNE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review is dismissed.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
July 21, 2000
Date: 20000721
Docket: T-1451-99
BETWEEN:
THOMAS WIHKSNE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
McKEOWN, J.
The Applicant seeks judicial review of a decision of the Pensions Appeal Board (the "Board") that refused the Applicant leave to appeal a decision of the Review Tribunal (the "Tribunal") dated August 28, 1998. The Tribunal had decided that the Applicant was not disabled within the meaning of subsection 42(2) of the Canada Pension Plan (the "Plan" or the "Act"), R.S.C. 1985, c. C-8.
The primary issue is whether the Board failed to apply a proper standard of review in determining whether to allow leave to appeal. Other subsidiary issues are whether a decision made by the Board without an oral hearing denied the Applicant procedural fairness, or whether the lack of a transcript or tape of the Review Tribunal"s proceedings denied procedural fairness. The August 28, 1998 Review Tribunal decision was not signed by any of the three members and the Applicant claims this was a jurisdictional error. There were also issues arising out of the medical evidence and questions of new evidence.
Facts
The Applicant is a 54 year old pipe fitter suffering from multiple disabilities. On June 10, 1995, he applied for disability benefits under the Canada Pension Plan. By letter dated February 6, 1997, the Applicant was advised by Human Resources Development Canada that his application for CPP disability benefits was denied.
On February 19, 1997, a reconsideration application was filed. By letter dated September 16, 1997, the Minister requested that the Applicant be examined by Physical and Rehabilitation Medicine Specialist Dr. Alan Bass. Dr. Bass submitted a report dated November 20, 1997.
The Minister advised the Applicant that his reconsideration application was denied. Dr. Bass"s November 20, 1997 report was not mentioned in the letter. The Applicant appealed that decision to the Review Tribunal and an oral hearing of one hour was held in Vancouver on June 17, 1998.
The Review Tribunal, in a three page decision, dated August 28, 1998, dismissed the Applicant"s appeal and confirmed the Minister"s decision. The Tribunal commenced its reasons by stating on page 1 of its decision:
| "A person can be considered disabled only if he is determined in a prescribed manner to have a severe and prolonged mental or physical disability. A disability is considered to be severe within the meaning of the Canada Pension Plan (CPP) only if the disability makes it impossible for a person to regularly pursue any substantially gainful occupation. A disability is prolonged only if it is determined that it is likely to be long continued and of indefinite duration, or is likely to result in death." |
The Tribunal reviewed some of the medical evidence and concluded by stating:
| "The Tribunal found that the evidence in its totality did not support Mr. Wihksne"s contention that he could not perform any type of work suitable to his condition. He was interested in retraining for computer work in 1994, but testified that he had not pursued this avenue. He was unable to testify to any attempts to determine what he could do. He is able to function at his own pace on his property. He suggested that even if he could find suitable work, he had no way of getting there because driving in his condition was too dangerous. This factor in itself does not make him incapable of work". |
The Applicant filed an application with the Board for leave to appeal and the leave application was denied by a designated member whose reasons are as follows:
| "The Review Tribunal considered all the evidence and said "the evidence in its totality did not support Mr. Wihksne"s contention that he could not perform any type of work suitable to his condition." |
| The Tribunal obviously considered Mr. Wihksne"s personal evidence. The weight of the subjective evidence is decided on a case by case basis. It is noted that there is considerable evidence stating that he is capable of some work. It is the Applicant for the pension who must prove his case, and after weighing the evidence it was decided he had not done so. |
| The "new evidence" proffered with the Notice of Appeal is in fact old evidence already considered by the Tribunal. |
| There is no error demonstrated and leave is refused." |
I must first determine what measure of deference should be applied in reviewing the decision of the Board to refuse leave to appeal. As stated by MacKay, J in Callihoo v. The Attorney General of Canada, [2000] F.C.J. No. 612 (T.D.) at paragraph 6:
| "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". |
MacKay, J continued that:
| "The measure of deference in a given case is assessed by the "pragmatic and functional" approach recently restated in Pushpanathan and followed in Baker". |
In my view, in the present case, the standard review should be reasonableness simpliciter.
MacKay, J in Callihoo, supra went on to consider recent jurisprudence of this Court concerning applications for leave to appeal to the Board and decided that judicial review of such applications generally involve 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". |
In deciding whether the Board applied the right test, i.e. whether the application raised an arguable case, I am of the view that it did and the Board did not otherwise assess the merits of the application.
The Applicant submits that the case before me is similar to Martin v. The Minister of Human Resources Development (1999), 252 N.R. 141, [1999] F.C.J. No. 1972 (C.A.), where the Court found that the Board in that case had placed too heavy a burden on the appellant when assessing the application for leave to appeal. In that case, Malone, JA found:
| "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"." |
The Tribunal at page 3 of its decision (reproduced on page 14 of the Applicant"s Record), uses similar language when it states:
| "The Tribunal found that the evidence in its totality did not support Mr. Wihksne"s contention that he could not perform any type of work suitable to his condition" |
However, earlier in its decision, the Tribunal quoted the test under the Canada Pension Plan properly when it stated that:
| "disability makes it impossible for a person to regularly pursue any substantially gainful occupation" |
While the designated member of the Board, in the case before me, did not make any mention of the words in the statute, he indicated that the decision was based on the weight of the evidence, that the laws were established, that the weight is a matter for the Tribunal hearing the case and that this is not an arguable case in which one can say that the weight should have been otherwise.
I am most troubled by the statement made by the designated member of the Board that "there is considerable evidence stating that he is incapable of some work." This phrase is different from that used in the Act, where the claimant must be "incapable regularly of pursuing any substantial gainful occupation."
In my view, the Board is not restricted to using the exact words of the statute. There is a considerable difference between saying that the person "is incapable of some work" to saying he is "incapable of doing any type of work". Accordingly, I am satisfied that the Board considered whether the application raised an arguable case rather than assessing the merits of the application.
I now proceed to the second issue discussed by Justice MacKay in Callihoo, supra. In my view, none of the matters raised by the Applicant would lead me to find that the Board made an error of law, or of the appreciation of facts in its determination of whether an arguable case is raised.
The Applicant also made submissions regarding the medical evidence that was submitted to the Board, evidence that was not available to the Review Tribunal. It does not raise any materially new information with respect to the Applicant"s medical condition. The medical evidence includes a subsequent report by the plastic surgeon, Dr. Hollis. There is also a subsequent Workers" Compensation Board BC Pension Calculation Sheet Functional Loss document, which indicated that the total disability for BC Workers" Compensation Board purposes had increased from 1.79% to 3.47%, a change resulting in a $46.00 a month increase in the amount of pension. In my opinion, this does not amount to a significant factual change as set out by Reed, J in Kerth v. Canada (Minister of Human Resources Development) (1999), 173 F.T.R. 102, [1999] F.C.J. No. 1252 (T.D.).
Dr. Trottershaw, a family physician, produced a new report from his previous reports which were before the Review Tribunal. The only new information presented by Dr. Trottershaw was an indication that the Applicant had been referred to Dr. Kemble, a neurologist, on April 30, 1998 for the nerve conduction and EMB studies that Dr. de Champlain had also suggested earlier. However, the report states that "Dr. Kemble concluded neurologically and electrodiagnostically Mr. Wihksne was normal". In my view, none of this constituted evidence which would have reasonably changed the result of the Tribunal"s review.
The Applicant claimed that he was denied procedural fairness because of the lack of an oral hearing before the Board. In my view, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, makes it clear that an oral hearing is not required. The Federal Court of Appeal arrived at the same result in Nuosci v. Canada (Royal Canadian Mounted Police) (1994), 167 N.R. 153, [1994] F.C.J. No. 243.
The Applicant had also suggested that the decision was in error or invalid because it was not signed by any of the three members. Under s. 82 of the Canada Pension Plan, the Commissioner of the Review Tribunal is required to give notice of the decision and the reasons for the decision to the Minister and the other parties. This was done in this case. Rothstein, J found similarly in Gramaglia v. The Attorney General of Canada, [1998] F.C.J. No. 1834 at paragraph 10.
The Applicant submits that the Review Tribunal misconstrued Dr. Bass"s report when the Tribunal states, on pages 2 and 3 of the decision, that "Dr. Bass concludes that Mr. Wihksne can work, but that his passive approach and his attitude will likely prevent him from ever again engaging in work." Dr. Bass stated in his report "the most I can recommend at the present time is that he should be considered partially disabled with the provisio that this label should not be applied until after an EMG examination and psychiatric evaluation have been carried out." This report by Dr. Bass was said to have been produced at the Minister"s request. The onus is on the Applicant to prove his case. If he wished to follow up on these two conditions, he could have done so. In reviewing the entire report of Dr. Bass, the Review Tribunal"s conclusion would certainly be open to it.
In my view, none of the matters raised by the Applicant amounted to an error in law, or in appreciation of the facts.
Accordingly, the application for judicial review is dismissed.
"W.P. McKeown"
| Judge |
OTTAWA, Ontario
July 21, 2000