Date: 20020515
Docket: A-25-01
Neutral citation: 2002 FCA 204
CORAM: LINDEN J.A.
BETWEEN:
BRENDA KELLAR
Applicant
and
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Heard at Ottawa, Ontario, on May 15, 2002.
Judgment delivered from the Bench at Ottawa, Ontario, on May 15, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20020515
Docket: A-25-01
Neutral citation: 2002 FCA 204
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
BRENDA KELLAR
Applicant
and
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on May 15, 2002.)
[1] This is an application for judicial review by Brenda Kellar requesting the Court to set aside a decision of the Pension Appeals Board, dated November 24, 2000, in which the Board had dismissed her appeal from a decision by a Review Tribunal. The Tribunal had upheld the rejection by the Minister of Human Resources Development of her claim for a disability pension under subparagraph 42(2)(a)(i) and (ii) of the Canada Pension Plan, R.S.C. 1985, c. C-8, on the ground that she had not proved that she was suffering from a prolonged and severe disability that rendered her incapable regularly of pursuing any substantially gainful occupation.
[2] Despite the Board's skimpy reasons and the sloppy language in which they are expressed, we are not persuaded that the Board made a reviewable error that would warrant the intervention of this Court in setting aside the decision.
[3] Counsel for Ms. Kellar advanced a number of grounds on which the submitted that the Board's decision should be quashed; we address the most significant of them. Her principal argument focussed on the fact that the Board's reasons did not refer to two reports written by an occupational therapist and a physiotherapist who had tested Ms. Kellar's functional abilities and found them to be limited.
[4] Counsel submitted that the Court should infer from the Board's failure to address these reports that it had applied the wrong legal test of Ms. Kellar's entitlement to a pension. That is, instead of asking whether Ms. Kellar was suffering from a disability that was severe and prolonged, as defined by the Act, it had considered only whether there was a medical diagnosis that she was suffering from multiple sclerosis. Further, she argued, the Board's failure to consider these reports was an error of law because the Board was under a duty to provide an explanation for rejecting evidence that was inconsistent with that on which it based its findings.
[5] We are unable to accept these arguments. The Board correctly set out the statutory test of disability early in its reasons and we cannot infer from its failure to deal with the two reports that it did not consider whether Ms. Kellar was suffering from a severe and prolonged disability, rather than whether she was suffering from multiple sclerosis. We say this, in part, because the reports were tainted by the false assumption that Ms. Kellar had been diagnosed as suffering from multiple sclerosis, which she had not.
[6] Because of the consequently weakened probative value of the reports, we are also of the view that the Board was not obliged to explain in its reasons why it did not accept them as adequate evidence to substantiate her claim. As counsel conceded, the Board is not required to refer to every piece of evidence before it, but only to those that have significant probative value. In view of the false assumption under which the writers of the reports laboured, and the inability of the various doctors who examined her to diagnose any specific cause of the symptoms of which she complained, the Board was not obliged in law to set out its conclusions on the reports.
[7] Counsel also argued that the Board had applied the wrong legal test of disability in the final substantive paragraph of its reasons. Here, the Board stated that, if Ms. Kellar's apparent disability had some neurological cause other than multiple sclerosis, there was nothing to suggest that it was incurable and that the improvement in her condition indicated that the disability was not prolonged. However, when the evidence and the Board's reasons are read in their entirety and not, as counsel out it, microscopically, we are not persuaded that these statements demonstrate that the Board erred in the manner alleged.
[8] Finally, we cannot accept counsel's argument that the Board erred by making an adverse finding of Ms. Kellar's credibility without providing adequate reasons. In our view, the Board made no such finding, either explicitly or implicitly, although we also note the scepticism about her symptoms expressed in two reports written by doctors who examined her.
[9] For these reasons the application for judicial review will be dismissed. Costs were not requested by the respondent and none are awarded.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-25-01
STYLE OF CAUSE: BRENDA KELLAR
- AND -
THE MINISTER OF HUMAN RESOURCES
DEVELOPMENT
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MAY 15, 2002
REASONS FOR JUDGMENT OF THE COURT
(LINDEN, EVANS, MALONE JJ.A)
RENDERED FROM THE BENCH: EVANS J.A.
DATED: MAY 15, 2002
APPEARANCES:
MS. FELICITE STAIRS
MS. LAURA HUNTER
FOR THE APPLICANT
MR. MICHEL MATHIEU
MS. SHAWNA NOSEWORTHY
FOR THE RESPONDENT
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SOLICITORS OF RECORD:
RENFREW COUNTY LEGAL SERVICES
RENFREW, ONTARIO
FOR THE APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
FOR THE RESPONDENT