Toronto, Ontario, March 17, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In
2005, Ms. Theresa Murphy asked a Review Tribunal to consider additional
evidence to support her claim for disability benefits under the Canada
Pension Plan, R.S.C. 1985, c. C-8. The Tribunal had previously dismissed her
claim in 1999 on the basis that the evidence did not show that her
circumstances fell within the definition of a disability under s. 42(2) of the
CPP (provisions cited are set out in an Annex).
[2]
The
Tribunal found that the evidence Ms. Murphy put before it did not constitute
new evidence and refused to reconsider its earlier decision denying her claim.
[3]
Ms.
Murphy argues that the Tribunal’s conclusion was unreasonable and asks me to
order it to consider her supplementary evidence. However, I can find no basis
for overturning the Tribunal’s decision and must, therefore, dismiss this
application for judicial review.
I. Issue
[4]
Was
the Review Tribunal’s conclusion that Ms. Murphy’s evidence was not “new”
unreasonable?
II. Analysis
1. Factual
Background
[5]
For
many years, Ms. Murphy worked as a waitress in the military. In 1996, she
accepted a government buy-out offer and has not worked since.
[6]
Since
the early 1990s, Ms. Murphy has had trouble with her knees. She has been
examined, diagnosed and treated by various physicians over the years. In her 1998
claim for disability benefits, she presented reports from her family physician,
a rheumatologist, an orthopaedic surgeon and a psychiatrist. The Tribunal
considered this evidence and found that Ms. Murphy could not be considered
disabled. It relied particularly on the opinion of Dr. Kevin Orell, the
orthopaedic surgeon, who stated that Ms. Murphy “would have difficulty with a
job that involved long standing or posturing in one position for a great deal
of time” and “would have trouble with lifting or heavy labour”. The CPP states
that a person is “disabled” if he or she has a “severe and prolonged”
disability, rendering him or her “incapable regularly of pursuing any
substantially gainful occupation” for a long period of time or indefinitely (s.
42(2)(a)). In light of this evidence and Dr. Orell’s opinion, the Review
Tribunal denied Ms. Murphy’s claim.
[7]
In
2005, Ms. Murphy asked the Review Tribunal to exercise its authority under s.
84(2) of the CPP to rescind its earlier order on the basis of “new facts”. She
had gathered additional medical records from the 1990s and another opinion from
Dr. Orell. The Review Tribunal concluded that this evidence did not disclose
any “new facts” because it did not add anything to what was considered by the
Tribunal in 1999.
2. Legal
Framework
[8]
Ms.
Murphy’s qualifying period for disability benefits expired on December 31,
1998. The issue before the Tribunal in 1999, therefore, was whether Ms. Murphy
was disabled on or before that date. As mentioned, the Tribunal can subsequently
consider new facts and rescind a previous decision, but the essential question
remains whether Ms. Murphy was disabled at the end of 1998.
[9]
There
are two criteria for determining whether facts should be considered “new” for
purposes of s. 84(2) of the CPP. First, the evidence put forward by the
applicant must not have been discoverable with due diligence prior to the first
hearing. Second, the evidence must be material in the sense that it could
reasonably be expected to affect the outcome of the previous hearing (Kent v. Canada
(Attorney General) (2004), 248 D.L.R. (4th) 12; Mazzotta
v. Canada (Attorney
General),
[2007] F.C.J. No. 1209 (F.C.A.) (QL)).
[10]
The
Tribunal accepted that the first criterion was met here, so it is not in issue.
The only question is whether the evidence Ms. Murphy provided in 2005 could
reasonably be expected to affect the earlier conclusion that she was not
disabled in 1998.
3. The
Evidence
[11]
The
evidence Ms. Murphy provided in 2005 consisted primarily of medical records
from the 1990s. These records showed that Ms. Murphy had been having knee
trouble since the early 1990s, and that her situation was worsening over time.
These records were reviewed by Dr. Orell who prepared a second opinion on March
8, 2005 in which he stated:
It was my opinion that this lady was significantly disabled in 1998. I felt that the arthritis that was seen radiologically as well as viewed during the arthroscopic procedure was sufficient to explain why this lady was having difficulty with activities of daily living in her own home. I did feel that she was so uncomfortable with everyday ordinary activities that she would find it very difficult to perform any type of gainful employment. It was my opinion that she was disabled.
In fact, it was my opinion that this lady
was totally disabled when I first evaluated her in August, 1998.
[12]
In
my view, the medical records supplied by Ms. Murphy did not disclose “new
facts”. They simply reveal that she was having serious knee problems in the
1990s for which she sought medical attention. The Tribunal was well aware of
that back in 1999; these additional records could not reasonably affect the
earlier decision.
[13]
As
for Dr. Orell’s second opinion, I note a striking difference between it and his
earlier report. He had stated in 1998, in effect, that Ms. Murphy could work
but not in any strenuous vocation. In 2005, he revised that opinion and claimed
that Ms. Murphy had been totally disabled and incapable of any gainful
employment as of the date he had first examined her in August 1998. He did not
cite any basis for revising his assessment of Ms. Murphy’s ability to work. In
these circumstances, the Tribunal’s conclusion that Dr. Orell’s second opinion
was unlikely to affect the outcome of its earlier decision was reasonable.
[14] Accordingly, I must dismiss this application for judicial review with costs.
JUDGMENT
1. The application for judicial review is dismissed with costs.
“James W. O’Reilly”
Annex “A”
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Canada Pension Plan, R.S.C. 1985, c. C-8
When a person deemed disabled 42 (2) For the purposes of this Act, (a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph, (i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and (ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and (b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
Rescission or amendment of decision
84 (2) The Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding subsection (1), on new facts, rescind or amend a decision under this Act given by him, the Tribunal or the Board, as the case may be. |
Régime de pension du Canada, L.R.C. 1985, ch. C-8
Personne déclarée invalide 42 (2) Pour l’application de la présente loi : a) une personne n’est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d’une invalidité physique ou mentale grave et prolongée, et pour l’application du présent alinéa : (i) une invalidité n’est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice, (ii) une invalidité n’est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès; b) une personne est réputée être devenue ou avoir cessé d’être invalide à la date qui est déterminée, de la manière prescrite, être celle où elle est devenue ou a cessé d’être, selon le cas, invalide, mais en aucun cas une personne n’est réputée être devenue invalide à une date antérieure de plus de quinze mois à la date de la présentation d’une demande à l’égard de laquelle la détermination a été établie.
Annulation ou modification de la décision
(2) Indépendamment du paragraphe (1), le ministre, un tribunal de révision ou la Commission d’appel des pensions peut, en se fondant sur des faits nouveaux, annuler ou modifier une décision qu’il a lui-même rendue ou qu’elle a elle-même rendue conformément à la présente loi. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1704-06
STYLE OF CAUSE: MURPHY v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Sydney, Nova Scotia
DATE OF HEARING: March 12, 2008
APPEARANCES:
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Vincent A. Gillis |
|
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Tania Nolet |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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VINCENT A. GILLIS INC. Sydney, NS
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|
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JOHN SIMS, Q.C. DEPUTY ATTORNEY GENERAL Toronto, ON |