Date: 20021121
Docket: A-272-01
Neutral citation: 2002 FCA 462
CORAM: LÉTOURNEAU, J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
- and -
DOLORES SHEILA ASH
Respondent
Heard at Edmonton, Alberta, on November 20, 2002.
Judgment delivered from the Bench at Edmonton, Alberta, on November 21, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU, J.A.
CONCURRED IN BY: ROTHSTEIN, J.A.
MALONE, J.A.
Date: 20021121
Docket: A-272-01
Neutral citation: 2002 FCA 462
CORAM: LÉTOURNEAU, J.A.
MALONE, J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
- and -
DOLORES SHEILA ASH
Respondent
REASONS FOR JUDGMENT OF THE COURT
[1] This is an application for judicial review of a decision of the Pension Appeals Board ("Board") rendered on February 7, 2001 in which it granted the respondent disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 ("Act").
[2] The applicant seeks an order setting aside the decision of the Board on two grounds. First, the Board erred in the interpretation of subparagraph 44(1)(b)(iv) of the Act. Second, the Board erred in finding that the respondent was disabled.
[3] With respect to the first ground of review, I have not been convinced that the decision of this Court in Canada (Minister of Human Resources Development) v. Woodcock [2002] F.C.J. No. 1085, 2002 FCA 296 is not dispositive of the issue relating to the interpretation of subparagraph 44(1)(b)(iv).
[4] Counsel for the applicant submitted with respect to the second ground of review that the Board erred in simply accepting the conclusion of the Review Tribunal that the respondent was disabled by a stroke in 1989. As it was a hearing de novo, the Board should have reviewed the medical evidence relating to the respondent and should not have refused or declined to hear Dr. Henderson who was present at the hearing to testify in support of the Minister's decision. With respect, I believe this submission ignores the conditions under which leave to appeal to the Board was granted.
[5] As a matter of fact, leave to appeal was granted on May 10, 1999 in the following terms:
"Leave to appeal to the Pensions Appeals Board is granted this day in respect only of the following issues:
(1) Was the Review Tribunal correct in its interpretation of the relevant legislation whereby it determined that the division of unadjusted pensionable earnings attributed to Appellant's credit in October 1994 does not operate to extend her qualifying period for disability benefits from December 1984 to December 1992?
(2) If the Review Tribunal was wrong in its interpretation of the effect of division of the unadjusted pensionable earnings attributed to her, is she entitled to a disability pension by reason of her June 1989 stroke (as acknowledged by the Tribunal) by reason of the application of Section 44(1)(b)(iii) and what is the effective date of the payment of the first disability benefit? (My emphasis)
[6] It is this second condition of the leave which gives rise to diverging views between the applicant and the respondent. The Board understood that the issue of the respondent's disability had been determined by the Review Board and was not the subject of the appeal. This appears clearly from paragraph 4 of the Board's decision where it wrote after quoting the decision granting leave:
"The appeal therefore is restricted to the issue of whether the contributory requirements of the Canada Pension Plan have been met."
[7] I am willing to concede that the wording of this second paragraph of the leave decision may lend itself to other interpretations or understandings. For example, one could read the words "as acknowledged by the Tribunal" as referring only to the 1989 stroke and not to the fact that the disability itself had been acknowledged by the Tribunal. However, I cannot say that the Board's reading and understanding of that second paragraph is unreasonable, let alone improper.
[8] For these reasons, I would dismiss the application for judicial review with costs.
"Gilles Létourneau"
J.A.
"I agree"
"M.E. Rothstein"
J.A.
"I agree"
"B. Malone"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: A-272-01
STYLE OF CAUSE: Minister of Human Resources Development Canada
v. Dolores Sheila Ash
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: November 20, 2002
REASONS FOR JUDGMENT OF THE COURT BY: Létourneau, J.A.
CONCURRED IN BY: Rothstein, J.A.
Malone, J.A.
DATED: November 21, 2002
APPEARANCES:
Ms. Katia Bustros FOR APPLICANT
Dolores Sheila Ash FOR RESPONDENT
Litigant in Person
SOLICITORS OF RECORD
Morris Rosenberg FOR APPLICANT
Deputy Attorney General of Canada
Litigant in Person FOR RESPONDENT