Ottawa, Ontario, October 18, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
AND SKILLS DEVELOPMENT CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant is a 27 year old visually impaired student at McMaster University. He has Stargardt’s disease, a chronic condition causing significant loss of vision. The deterioration of his visual acuity began in approximately 1998. Mr. Marsden withdrew from his studies in December, 1999. Unable to cope with debt he accumulated in the course of his education and an unsuccessful painting business, Mr. Marsden declared bankruptcy. Unable to maintain employment, Mr. Marsden returned to McMaster University as a part-time student in September 2004 hoping to complete his degree.
[2] As a post-bankrupt, however, Mr. Marsden found himself ineligible for Canada Student Loans until he repaid his previous student loan debt of $1,952.50. Unemployed and dependant on Employment Insurance and Ontario Disability Support Plan benefits, Mr. Marsden applied to the Canada Student Loans Program (the CSLP) for a debt forgiveness benefit available to students with permanent disabilities. His application was denied because the CSLP determined that Mr. Marsden did not have a “permanent disability” because he was still attending school. This denial is the subject of this application for judicial review.
Background
[3] Mr. Marsden applies for a judicial review of the CSLP’s refusal on March 23, 2005 of his application for a Permanent Disability Benefit, which would have cancelled his obligation to repay student loans disbursed to him under the CSLP. Mr. Marsden obtained Canada Student Loans while studying full-time at McMaster University between September 1997 and December 1999.
[4] Subsection 11(1) of the Canada Student Financial Assistance Act (the Act) provides for the cancellation of the borrower’s repayment obligation to the lender or Minister if the borrower has a permanent disability and experiences exceptional hardship in repaying the loan due to the permanent disability.
[5] Subsection 2(1) of the Canada Student Financial Assistance Regulations (the Regulations) defines “permanent disability”:
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INTERPRETATION 2. (1) In the Act and these Regulations, […] “permanent disability” means a functional limitation caused by a physical or mental impairment that restricts the ability of a person to perform the daily activities necessary to participate in studies at a post-secondary school level or the labour force and is expected to remain with the person for the person's expected life; (invalidité permanente) |
DÉFINITIONS 2. (1) Les définitions qui suivent s'appliquent à la Loi et au présent règlement. […] « invalidité permanente » Limitation fonctionnelle causée par un état d'incapacité physique ou mentale qui réduit la capacité d'une personne d'exercer les activités quotidiennes nécessaires pour participer à des études de niveau postsecondaire ou au marché du travail et dont la durée prévue est la durée de vie probable de celle-ci. (permanent disability) |
[6] In its decision letter dated March 23, 2005, the CSLP stated:
Any definition of permanent disability must be sufficiently flexible to allow for a variety of benefits or provisions under the CSLP. To qualify for the Permanent Disability Benefit (PDB) the disability must be shown to permanently prevent the borrower from returning to school and/or functioning in the work force.
As you indicate that you are presently attending part-time studies, you cannot be assessed for a Permanent Disability while you are still attending school.
[Emphasis in original]
[7] Mr. Marsden argues that the CSLP erred in law in its interpretation and application of the expression “permanent disability” in the context of section 11 of the Act. In particular, Mr. Marsden argues that the CSLP’s interpretation of “permanent disability” is inconsistent with other provisions in the Act that expressly contemplate that students with permanent disabilities may pursue post-secondary education with the benefit of Canada Student Loans provided under the Act.
Facts
[8] Mr. Marsden first noticed problems with his vision in 1998. In September 2001, after experiencing progressive deterioration of his eyesight, Mr. Marsden was diagnosed with Stargardt’s disease. Dr. Brodie, Mr. Marsden’s family physician, described the disease in a medical report dated October 5, 2004 as “an inherited juvenile form of mascular degeneration”. Dr. Brodie indicated that Mr. Marsden was restricted in his ability to perform necessary daily activities. Dr. Brodie also stated that Mr. Marsden’s functional limitations were expected to remain with him for his expected life. Dr. Brodie’s medical report was provided to the CSLP as part of Mr. Marsden’s application for the Permanent Disability Benefit.
[9] Attached to Dr. Brodie’s medical report was a letter from Dr. Martin, the ophthalmologist who diagnosed Mr. Marsden’s condition. Dr. Martin indicated that Mr. Marsden’s visual acuity was 20/80 in both eyes when best corrected.
[10] Mr. Marsden also submitted as part of his application the Canada Student Loans Program Disability Benefit Education and Employment History Questionnaire (the History Questionnaire) and the Financial Questionnaire for Permanent Disability Benefit (the Financial Questionnaire). Attached to the Financial Questionnaire were Statements of Assistance indicating benefits received under the Ontario Disability Support Program Act and Mr. Marsden’s tax return information for the 2001, 2002 and 2003 tax years.
[11] The History Questionnaire indicates that Mr. Marsden withdrew early from his studies in Commerce because of “insufficient resources and increased medical troubles”. Mr. Marsden stated in the History Questionnaire that he had been unemployed since approximately August 1, 2002. From September 2002 until July 2003, Mr. Marsden received Employment Insurance benefits totalling approximately $13,000 annually.
[12] In support of his application for judicial review, Mr. Marsden has filed additional information which may be relevant to determining the extent of his disability and the financial hardship it has caused him. However, as the respondent submits, only evidence before the decision-maker ought to be considered by a reviewing Court. Accordingly, the Court will not in its substantive review rely on information that was not before the original decision-maker.
Issues
[13] This application raises the issue: Did the Minister err in denying Mr. Marsden’s application for the Permanent Disability Benefit?
Relevant Legislation
[14] The legislation relevant to this application is:
1. the Canada Student Financial Assistance Act, S.C. 1994, c. 28; and
2. the Canada Student Financial Assistance Regulations, S.O.R./95-329.
Standard of Review
[15] Before embarking on an analysis of the issues raised in this application, it is necessary to undertake the pragmatic and functional analysis of the appropriate standard of review: Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226.
Presence of absence of a privative clause or statutory right of appeal
[16] The first factor in the pragmatic and functional analysis concerns the presence or absence of a privative clause or statutory right of appeal. The Act provides no guidance as to reviews or appeals of the Minister’s decisions.
[17] Given the discretion granted to the Court to judicially review a Minister’s decision, the first factor of the pragmatic and functional analysis suggests a low level of deference.
Relative expertise
[18] The second factor to consider is the expertise of the decision-maker relative to the Court. The finding under review involves the statutory interpretation by the Minister of the expression “permanent disability” under the Act. Relative to the reviewing judge, this decision-maker has no expertise in statutory interpretation. The Court is better able to decide questions of law than the Minister. Accordingly, this factor suggests a less deferential review.
Purpose of the legislation
[19] The third factor considers the purpose of the Act as a whole and the particular provisions engaged within it. The purpose of the Act is to provide a framework for the granting of loans and other forms of financial assistance to eligible students. Within this framework, the provisions concerning benefits for permanently disabled students is to promote the inclusion of persons with permanent disabilities in post-secondary education by accommodating disabled borrowers at both the eligibility phase and the repayment phase. Section 11 of the Act in particular charges the Minister with the task of determining whether a borrower’s permanent disability causes exceptional hardship in repaying a student loan. In doing so, the Minister is directed to take into account the borrower’s family income. The purpose of the legislation and the permanent disability provisions in particular suggests considerable deference.
Nature of the question
[20] The fourth factor to be addressed is the nature of the question: whether it is one of law, fact, or mixed law and fact. The Court will accord greater deference to the Minister’s factual findings, and less deference on questions of legal principle or interpretation. The question in this review involves the statutory interpretation of the expression “permanent disability” and the application of that definition to a specific set of facts. This is a question of mixed law and fact, which warrants deference in respect of the Minister’s factual findings and no deference on the proper statutory interpretation.
Conclusion on standard of review
[21] Having regard to all four factors, I conclude that the standard of correctness applies to the Minister’s interpretation of the expression “permanent disability” and that the standard of reasonableness applies to the Minister’s application of the expression to the specific facts of this case.
Analysis
Did the Minister err in denying Mr. Marsden’s application for the Permanent Disability Benefit?
[22] Mr. Marsden’s application for the Permanent Disability Benefit was denied because the Minister determined that Mr. Marsden did not have a permanent disability within the meaning of section 11 of the Act. Central to the Minister’s analysis is the view that a permanent disability prevents a person from studying at the post-secondary level or participating in the labour force.
[23] The decision letter, dated March 23, 2005, states:
…the disability must be shown to permanently prevent the borrower from returning to school and/or functioning in the workforce. […] As […] you are presently attending part-time studies, you cannot be assessed for a Permanent Disability while you are still attending school.
[Emphasis in original]
The statutory framework
[24] The Regulations provide:
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INTERPRETATION 2. (1) In the Act and these Regulations, […] “permanent disability” means a functional limitation caused by a physical or mental impairment that restricts the ability of a person to perform the daily activities necessary to participate in studies at a post-secondary school level or the labour force and is expected to remain with the person for the person's expected life; (invalidité permanente) |
DÉFINITIONS 2. (1) Les définitions qui suivent s'appliquent à la Loi et au présent règlement. […] « invalidité permanente » Limitation fonctionnelle causée par un état d'incapacité physique ou mentale qui réduit la capacité d'une personne d'exercer les activités quotidiennes nécessaires pour participer à des études de niveau postsecondaire ou au marché du travail et dont la durée prévue est la durée de vie probable de celle-ci. (permanent disability) |
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[25] The Permanent Disability Benefit, as it has come to be known, is authorized under section 11 of the Act:
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DEATH OR DISABILITY OF BORROWER […] Permanent disability of borrower 11. (1) All rights of the lender against a borrower in respect of a student loan prescribed by regulations made under paragraph 15(j) terminate if the Minister is satisfied, on the basis of information specified by the Minister and provided to the Minister by or on behalf of the borrower, that the borrower, by reason of the borrower’s permanent disability, is or will be unable to repay the student loan without exceptional hardship, taking into account the borrower’s family income, and in that event the Minister shall pay to the lender the amounts referred to in subparagraph 5(a)(iii). Time of disability (2) For the purposes of subsection (1), the permanent disability must occur (a) in the case of a full-time student, before the first day of the seventh month after the month in which the borrower ceases to be a full-time student; and (b) in the case of a part-time student, before the day on which the lender and the borrower enter into the student loan agreement.
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DÉCÈS OU INVALIDITÉ DE L’EMPRUNTEUR […] 11. (1) Dans le cas d’un prêt d’études visé par les règlements pris en vertu de l’alinéa 15j), les droits du prêteur à l’égard de l’emprunteur s’éteignent lorsque, sur communication par celui-ci — ou en son nom — des renseignements qu’il détermine, le ministre est convaincu que ce dernier, en raison d’une invalidité permanente et compte tenu du revenu familial, ne peut ou ne pourra rembourser son prêt sans privations excessives; le ministre effectue alors le paiement visé au sous-alinéa 5a)(iii). Conditions de l’extinction et du paiement (2) Pour l’application du paragraphe (1), l’extinction des droits ne se réalise que si l’invalidité permanente survient : a) dans le cas d’un prêt consenti à un étudiant à temps plein, avant le premier jour du septième mois suivant celui où il a cessé de l’être; b) dans le cas d’un prêt consenti à un étudiant à temps partiel, avant la conclusion du contrat de prêt simple.
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[26] The Court is of the view that the definition of “permanent disability” has not been correctly interpreted. The respondent admits that the decision letter incorrectly states that the permanent disability must be shown to permanently “prevent” the borrower from returning to school. Rather, the definition requires only that the permanent disability “restrict” the ability of the person to participate in studies at a post-secondary level. In fact, the Act contemplates in other sections that a person with a permanent disability can be a “full-time student”. Accordingly, the respondent’s interpretation of the definition is incorrect.
[27] Moreover, the evidence demonstrates that the applicant originally withdrew from his university studies in December, 1999 partly because of his permanent disability. He has now returned on a restricted basis because of his disability. Accordingly, the decision was not reasonable in concluding that his permanent disability has not restricted his ability to attend university.
Conclusion
[28] The Minister’s decision to refuse Mr. Marsden’s application was based on an incorrect interpretation of the relevant law, and an unreasonable finding of mixed fact and law. It follows that the Minister’s delegate erred in law in refusing Mr. Marsden’s application for a Permanent Disability Benefit.
[29] For these reasons, I would allow the application for judicial review, set aside the Minister’s decision denying Mr. Marsden’s application for the Permanent Disability Benefit, and remit it to a different medical officer for reconsideration.
Costs
[30] Mr. Marsden has asked for costs. As a self-represented lay litigant, he is entitled to be paid his disbursements by the respondent, including filing fees, photocopying and travel expenses to Court.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
- This application for judicial review is allowed, the Respondent’s decision dated March 23, 2005 is set aside, and the matter is remitted to a different medical officer for re-determination based on the original application for the Permanent Disability Benefit and the updated material filed by the applicant in this application; and
- The applicant is entitled to his costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1451-05
STYLE OF CAUSE: DALE MARSDEN v. THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 11, 2006
APPEARANCES:
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Mr. Dale Marsden
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(SELF-REPRESENTED)
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Mr. Derek Edwards
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SOLICITORS OF RECORD:
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Dale Marsden Hamilton, ON
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(SELF-REPRESENTED) |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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