Winnipeg, Manitoba, November 8, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
and
KEITH W. SCHULTZ
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Keith Schultz, the Respondent, believes that he is eligible to receive Canada Pension Plan (CPP) disability benefits. The Applicant asserts that Mr. Schultz is ineligible, by the provisions of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the CPP), to receive disability benefits.
[2] On August 27, 2003, Mr. Schultz applied for CPP disability benefits on the basis that he became unable to work due to various injuries on November 14, 1986. (His first application, which is not relevant to this application, was denied.) In a decision dated January 12, 2004, an official acting as a delegate for the Minister of Human Resources Development Canada (now the Minister of Social Development Canada and referred to in these reasons as the Minister) denied his application. A request for reconsideration was also denied (decision dated April 2, 2004). Mr. Schultz then brought an appeal to the Review Tribunal, pursuant to s. 82(1) of the CPP. In a decision dated February 15, 2005, the Review Tribunal dismissed Mr. Schultz’s appeal. As entitled pursuant to s. 83(1) of the CPP, Mr. Schultz brought an application for leave to appeal this decision to the Pension Appeals Board (the PAB). In its decision, dated December 1, 2005, the PAB allowed the leave application. The Applicant seeks judicial review of the decision to grant leave on the basis that:
- the PAB applied an incorrect test for granting leave; and
- there is no arguable case, since Mr. Schultz presented no evidence to the PAB that could establish an entitlement to disability benefits.
[3] Mr. Schultz did not file submissions or participate in this application for judicial review. He was served with the Applicant’s submissions and was afforded the opportunity to participate by telephone. Unsuccessful efforts were made to contact him prior to and at the commencement of the oral hearing. In the circumstances, I determined that the hearing should proceed notwithstanding the absence of Mr. Schultz.
Issues:
[4] The issues before me are as follows:
- Did the PAB err in law by applying the wrong test for the granting of leave?
- Based on the evidence before it, was the decision of the PAB perverse, capricious or made without regard to the evidence?
Analysis
Standard of Review
[5] The decision of the PAB to grant leave is a highly discretionary one. Thus, the decision should stand except in very limited circumstances (see Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, 44 N.R. 354, 137 D.L.R. (3d) 558 and Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1 (4)(d)). The Court should only intervene if: (a) the PAB made an error of law; or (b) its conclusion that there “may” be an arguable case was perverse or made without regard to the evidence.
Issue #1: Did the PAB apply an incorrect test for granting leave?
[6] In addition to assessing whether Mr. Schultz filed his application for leave to appeal within the prescribed 90 day period, the PAB was required to address the submissions made to it. Although no test for granting leave is set out in s. 83 of the CPP, it is reasonable to assume that the appellant seeking leave must be able to establish that he has an arguable case. That is, is there any evidence before the PAB that would support a determination that Mr. Schultz is entitled to receive CPP disability benefits?
[7] In its decision, the PAB concluded that Mr. Schultz “may have an arguable case”. The Applicant argues that the PAB applied an incorrect test for granting leave. The test, in the Applicant’s submission is not whether Mr. Schultz “may have” an arguable case but is whether he “has” an arguable case. In my view, the use of the word “may” is unfortunate. But, on its own, this word alone does not cause me to conclude that there has been an error.
[8] However, I am very concerned with the reasons of the PAB. Beyond the bald statement that there “may” be an arguable case, there is no analysis whatsoever. There is not one reference to the past determinations or any analysis of the additional evidence submitted by Mr. Schultz. The record before the PAB included significant arguments as to why Mr. Schultz was not legally entitled to disability benefits. The failure to even acknowledge any of this evidence that addressed the merits of Mr. Schultz’s claim is troubling. It appears to me that, when considering whether to grant leave, the most important question to be answered is whether there is an arguable case. While the threshold may be low, the PAB must at least consider the question. In this case, I am not persuaded that the PAB turned its mind to this critical question. On any standard of review, this failure to address the question before it provides sufficient grounds for overturning the decision.
Issue #2: Was the PAB decision perverse or made without regard to the evidence?
[9] It is not in dispute that Mr. Schultz made valid CPP contributions in the years 1967, 1968, 1971, 1972, 1975 and 1983. Because of this pattern of contributions, it is also settled that, to claim CPP disability benefits, Mr. Schultz would have to demonstrate that he had a severe and prolonged disability in or before September 1976 and that he remains disabled. Having reviewed the legislative scheme, I am satisfied that this is a correct interpretation of the CPP provisions.
[10] The evidence before the Minister and the Review Tribunal in the earlier determinations supports a conclusion that Mr. Schultz was not disabled in 1976. That, in short, was the core of the refusal of benefits by both the Minister and, on appeal, the Review Tribunal. Thus, the only way that Mr. Schultz could demonstrate to the PAB that he is eligible for CPP disability benefits would be for him to submit evidence in the leave to appeal that showed that he was disabled continuously since 1976.
[11] I turn to the evidence that he submitted to the PAB. In his application for leave, dated July 13, 2005, Mr. Schultz submitted that he was, “Taking care of parents over 65 in 1976 and due to injuries unable to work full time”. He made further submissions on September 27, 2005, in which he described his “disability” but did not provide any particulars on when the symptoms described made it impossible for him to work. A letter from a physician stated that:
Keith Schultz suffers from arthritis secondary to a foot fracture as well as chronic shoulder injury.
He finds it difficult to do any physical labor due to pain. Other than his arthritis he is generally well.
[12] In short, there is nothing whatsoever in Mr. Schultz’s submissions that makes an arguable case that he was disabled in 1976. Indeed, the evidence that was before the PAB indicates the contrary. For example, Mr. Schultz worked and made CPP contributions in 1983. Mr. Schultz’s own evidence, as contained in the Questionnaire for Disability Benefits completed in August 2003, was that he worked as a carpenter from 1971 until November 14, 1986.
[13] In addition to the inconsistency with the earlier evidence, Mr. Schultz’s claim is deficient in that an inability to work full time is not necessarily a disability within the meaning of the CPP. The letter from the physician adds nothing to his claim.
[14] Thus, the evidence before the PAB is overwhelming that Mr. Schultz did not become disabled (if he is disabled – a question that does not need to be determined) until at least 1986. It follows that the determination by the PAB that there is an arguable case that Mr. Schultz was disabled continuously since 1976 is simply perverse or made without regard to the evidence.
Conclusion
[15] For these reasons, the application for judicial review will be allowed. The Applicant does not seek costs.
ORDER
THIS COURT ORDERS THAT:
- The application for judicial review of the decision to allow leave to appeal is allowed and the matter referred back for a decision by a different member of the Pension Appeals Board.
- No costs are awarded.
“Judith A. Snider”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-231-06
STYLE OF CAUSE: Attorney General of Canada v. Keith W. Schultz
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: November 8, 2006
APPEARANCES:
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Tania Nolet Department of Justice Ottawa, Ontario
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NO APPEARANCE
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada
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NO APPEARANCE
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