[1] This is an application for judicial review by the Minister of Social Development to set aside a decision of the Pension Appeals Board, dated October 25, 2004, in which the Board allowed an appeal by William Henderson from a decision of a Review Tribunal, dated January 9, 2001. While the Tribunal upheld the Minister's decision refusing Mr. Henderson a disability pension under the Canada Pension Plan, R.S.C. 1985, c. C-8, the Board held that he was entitled to receive a disability pension from November 1997 until October 2000.

[2] Mr. Henderson had quit work in 1995 as a marine engineer on board ships because of a serious problem with his knees. He then worked until 1997 as a truck driver but, after two accidents, his knees became so painful that he had to stop work again. His minimum qualifying period for disability pension purposes ended on December 31, 1997. The Minister concedes for the purpose of this application that, from 1997 until after his surgery, his disability was "severe" and prevented him from working.

[3] In January 1999, Dr. Martin, an orthopaedic surgeon, advised Mr. Henderson that the knee surgery that he proposed would enable Mr. Henderson, after recovery, to do light or sedentary work. Dr. Martin successfully performed the surgery in April 2000 and, in evidence to the Board, Mr. Henderson stated that he would now be able to work for four or five hours, for four or five days a week. However, he has not succeeded in finding employment.

[4] In order to qualify for disability benefit under the Canada Pension Plan claimants must establish that the disability preventing them from working is "severe and prolonged": paragraph 42(2)(a). A disability is "prolonged" for this purpose only if it is determined in prescribed manner to be "long continued and of indefinite duration or likely to result in death": subparagraph 42(2)(a)(ii)

[5] The Minister says that the Board committed a reviewable error when it concluded that Mr. Henderson's disability was "prolonged" within the meaning of paragraph 42(2)(a) of the Plan. Counsel for the Minister argued that, since the medical evidence before the Board was that Mr. Henderson's knees would be so improved by surgery that he would be able to work, the Board could not lawfully have found that his medical condition was "prolonged" because it was not determined to be of "indefinite duration".

[6] In our opinion, the question in dispute in this case involves the Board's application of paragraph 42(2)(a) of the Plan to the facts that it found and is reviewable on a standard of correctness: Villani v. Canada (Attorney General), [2002] 1 F.C. 130 (C.A.) at para. 22.

[7] We are all of the view that the decision under review must be set aside on the ground that the Board erred in concluding, on the basis of the facts that it found, that Mr. Henderson's disability was "prolonged" from the time he quit work in 1997 until he recovered from knee surgery in October 2000.

[8] For the purpose of the Plan, a disability cannot be "prolonged" unless it is determined to be of "indefinite duration". Since, prior to the operation, the medical opinion accepted by the Board was that surgery would improve Mr. Henderson's condition and enable him to work, the Board was wrong to find that the disability was "prolonged".

[9] Counsel for Mr. Henderson drew our attention to previous decisions by the Board in which it had found claimants' disability to be prolonged prior to their recovery from treatment and, as in the present case, awarded a pension for a "closed period" of time: see, for example, Minister of Human Resources Development v. Upshaw (CP 07832, January 6, 2000).

[10] However, in our view, these "closed period" decisions would appear to be distinguishable from the present case. The medical opinion prior to the prescribed treatment about the likelihood of the claimants' recovery and of their subsequent ability to work was much less clear in those cases than that accepted in Mr. Henderson's case. This point has been made by the Board in other cases, including Kinney v. Minister of Social Development (CP 21314, February 24, 2005) and Tibbo v. Minister of Social Development (CP 21704, August 23, 2004).

[11] The restrictive language of section 42 indicates that the purpose of the Plan is to provide a pension to those who are disabled from working on a long-term basis, not to tide claimants over a temporary period where a medical condition prevents them from working.

[12] For these reasons, the application for judicial review will be allowed without costs, the decision of the Board set aside, and the matter remitted to the Board for determination in accordance with these reasons.

"John M. Evans"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-709-04

STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES

DEVELOPMENT

Applicant

and

WILLIAM HENDERSON

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: SEPTEMBER 26, 2005

REASONS FOR JUDGMENT

OF THE COURT: (DESJARDINS, EVANS & SHARLOW JJ.A.)

DELIVERED FROM

THE BENCH: EVANS J.A.

APPEARANCES:

Ms. Rose-Gabrielle Birba

FOR THE APPLICANT

Mr. Terry Kirby

FOR THE RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR THE APPLICANT

Terry Kirby

St. Catherines, Ontario

FOR THE RESPONDENT

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