Date: 20040915
Docket: A-658-02
Citation: 2004 FCA 292
CORAM: DESJARDINS J.A.
BETWEEN:
DANIEL DOUCETTE
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Heard at St. John's, Newfoundland and Labrador, on June 24, 2004.
Judgment delivered at Ottawa, Ontario, on September 15, 2004.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: PELLETIER J.A.
DISSENTING REASONS BY: DESJARDINS J.A.
Date: 20040915
Docket: A-658-02
Citation: 2004 FCA 292
CORAM: DESJARDINS J.A.
BETWEEN:
DANIEL DOUCETTE
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] The applicant, Daniel Doucette, seeks an order setting aside a decision of the Pensions Appeal Board (the "Board") dated August 26, 2002, which concluded that he was not severely disabled within the meaning of the Canada Pension Plan, R.S.C. 1985, c-8 (the "Plan").
[2] I am unable to agree with my colleague Desjardins J.A. that the application for judicial review should be allowed. Unlike her, I believe that the Board applied the "real world" approach prescribed by this Court in Villani v. Canada (Attorney General), [2002] 1 F.C. 130, and I also believe that the Board's reasons are sufficient to allow us to discharge our review function.
[3] It is not necessary for me to recite the relevant facts, as they are thoroughly set out in Desjardins J.A.'s reasons.
[4] Relying on this Court's decision in Canada (Minister of Human Resources Development) v. Quesnelle, 2003 F.C.J. 267 (Q.L.) and on the Supreme Court's decision in R. v. Sheppard, [2002] 1 S.C.R. 869, the applicant submits that the Board failed to give adequate reasons.
[5] The Board's reasons are said to be deficient because of its failure to indicate or to make explicit the concerns which Dr. Noftall had expressed in his letter of December 2, 1999, and its failure to explain in what respect these concerns were pertinent to the applicable criteria. It is true that the Board's reasons are laconic in terms of the reasoning underlying its conclusions. After quoting from Dr. Noftall's report, the Board concludes that "with greater effort at the time, Mr. Doucette might well be working today." (Respondent's Application Record p.14). Later on, after referring to the Villani and Rice decisions, the Board concludes that none of the medical reports or the evidence before it "indicate a 'severe' disability, as of December 31,1997, as required by the legislation."
[6] In Sheppard, supra, Mr. Justice Binnie, writing for a unanimous Supreme Court, stated that a court of appeal could intervene where, in its opinion, deficiencies in the reasons were such so as to prevent meaningful appellate review of the correctness of the decision. Where that occurs, the court below has made an error of law. However, Mr. Justice Binnie made it clear that an appellate court could not intervene "simply because it thinks the trial court did a poor job of expressing itself" (para 26). At paragraph 28 of his reasons, after reviewing the various policy arguments in favour of reasons, Binnie J. Laid out a functional test for intervention where reasons are deficient:
28. It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge's reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (I) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge's decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.
[7] In the case of the Pension Appeal Board, the duty to give reasons arises from subsection 83(11) of the statute. In this case, reasons have been given; the issue is the adequacy of those reasons. Sheppard, supra, provides one basis upon which to assess those reasons. Do the Board's reasons provide a sufficient basis for this court to exercise its review function? An example of reasons which did not meet that test is found in Canada (Minister of Human Resources Development) v. Quesnelle [2003] F.C.J. No. 267:
[8] The Board is under a statutory duty to provide the parties with reasons for its decision: Canada Pension Plan, subsection 83(11). In my opinion, in omitting to explain why it rejected the very considerable body of apparently credible evidence indicating that Ms. Quesnelle's disability was not "severe", the Board failed to discharge the elementary duty of providing adequate reasons for its decision. The size and complexity of the record before it called for an analysis of the evidence that would enable the parties and, on judicial review, the Court, to understand how the Board reached its decision despite the mound of apparently credible evidence pointing to the opposite conclusion.
[8] In this case, the Board quotes the report of Dr. Noftall, an orthopaedic surgeon, and then comments that the report "reveals serious concerns held by Dr. Noftall". It is true that the Board does not identify the serious concerns which it saw in Dr. Noftall's report, but the report itself is relatively clear as to Dr. Noftall's reservations about the case:
...
The difficulty with this gentleman is that he has such diffuse symptoms, I do not think they can be explained, based on cervical spine problems only. ... All I am able to state is that this gentleman says from a subjective point of view, that he is incapable of performing any activity and therefore feels he deserves a pension based on his symptoms. One has to take this at face value and obviously there is always an issue of credibility with respect to the claims of an individual such as this. I have no reason to doubt Mr. Doucette's claim based on his symptoms. He does have objective findings to support his symptoms ...However, there is no neurological deficit able to be demonstrated. He is obviously fixated on the degree of symptoms that he experiences, as well. As I see these cases, it comes down to the fact that they are multi-factorial in nature. Not only are there physical aspects to this gentleman's problem but there is also emotional and educational issues with respect to Canada Pension. All I am able to state is that in my opinion, he does have physical findings and physical complaints that would prevent him from performing his old job. ... I will see him once more but there is really nothing Orthopaedic that we can do to help this individual.
[9] A fair reading of these comments suggests that Dr. Noftall cannot explain all of Mr. Doucette's symptoms by reference to his orthopaedic problems. Since there is no demonstrated neurological deficiency, some of Mr. Doucette's symptoms remain unexplained. Dr. Noftall notes that Mr. Doucette is preoccupied with his symptoms and believes that he is entitled to a pension. He comments that there are obviously credibility issues. In Dr. Noftall's experience cases like Mr. Doucette's have emotional and educational components. There is nothing that Dr. Noftall can do for Mr. Doucette. Put another way, there are physical findings which justify the conclusion that Mr. Doucette cannot return to his old job. There is an absence of physical findings which would justify a conclusion of severe (or total) disability.
[10] This reasoning leads to the Board's conclusion that with a greater effort on his part prior to December 31, 1997, Mr. Doucette might well be working now. Obviously, if Mr. Doucette were working now, he would not be severely disabled. If severe disability can be avoided by means of a greater effort on the part of the applicant, it stands to reason that the physical condition which prevents the applicant from returning to his old job does not explain his inability to pursue substantially gainful employment. If that is so, his disability is not severe within the meaning of subparagraph 42(2)(a)(I).
[11] It is obvious that the Board could have explained its reasoning more fully, but one can nonetheless discern the Board's reasoning from the language it has used. Consequently, as I am satisfied that the Board's reasons allow us to exercise our review function, I have no difficulty concluding that they are adequate.
[12] To conclude on this point, I would add that our Court, like other courts of appeal, must be mindful of Binnie, J.'s remarks in Sheppard, supra, that we should not intervene because we are of the opinion that the courts below failed to express themselves in a way acceptable to us. The reasons under review should be fairly considered and in performing that exercise, we should, as Binnie J. suggests, examine the record on which the decision under review is based. We must guard ourselves from being too eager to conclude that reasons do not pass muster.
[13] The second issue is the Board's application of the "real world" test in regard to which the applicant makes two submissions. Firstly, he argues that the Board failed to determine how his education level, language proficiency and past work and life experience affected his capacity to regularly pursue any substantially gainful occupation. Secondly, the applicant argues that the Board failed to consider on the basis of the "real world" test developed by this Court in Villani, supra, those limitations and restrictions highlighted in the reports in of Ms. Hunt and Ms. Simmons.
[14] The Board was keenly aware of our decision in Villani, supra, to which it referred at paragraph 13 of its reasons and which led it to make the following remarks at paragraph 14:
14. There has to be an air of reality in assessing whether an applicant is incapable regularly of pursuing any substantially gainful occupation.
[15] With these remarks in mind, the Board went on to conclude at paragraph 18 of its reasons, that it was not satisfied, on a balance of probabilities, that the applicant suffered from a severe disability as of December 31, 1997.
[16] There is evidence in the record capable of supporting the Board's view that the true cause of the applicant's inability to return to work was his failure to make greater efforts between the time of his accident and his Minimum Qualifying Period. Given that conclusion, there is no need to make an in-depth analysis of the constraints posed to the applicant's capacity to return to the work force by his educational level, language proficiency and past work and life experience.
[17] The evidence in support of the Board's conclusion includes Dr. Noftall's reports and, in particular, the assertion found in his December 2, 1999 report, where he states that "... There is no neurological deficit able to be demonstrated. He [the applicant] is obviously fixated on the degree of symptoms that he experiences, as well." Dr Noftall makes it clear in his report that he is of the view that the applicant is unable to perform his "old job". With respect to sedentary or light work, he does not give any opinion, save for his comments that "all I am able to state is that this gentleman says, from a subjective point of view, that he is incapable of performing any activity and therefore feels he deserves a "pension based on his symptoms".
[18] The Board's conclusion also finds support in the fact that an X-ray of June 14, 1995 of the cervical spine showed minimal encroachment upon the inter-vetebral neural foramen by osteophyte formation. Also, a bone scan of August 1995 was normal and further X-rays taken in October 1995 of the cervical spine revealed that the height of the body of C6 was reduced in relation to the adjacent vertebrae.
[19] In other words, the Board found that there was no objective medical evidence of any serious physical condition to support the applicant's contention that he was unable to perform light or sedentary types of work. Indeed, the evidence on which the Board relies is in line with the conclusion reached by Ms. Simmons in her October 1, 1997 report, where she concludes at page 8 that the applicant "is competitively employable, over an eight-hour workday, within the classification of sedentary or light work." In a further report dated January 5, 2000, Ms. Simmons, responding to the applicant's request for a clarification of her report of October 1, 1997, makes the following remarks at page 2:
In conclusion, based on the various assessments that have been completed on Daniel [the applicant] and his current status with regard to vocational potential, it would appear that he does have significant barriers to returning to the work force, without ideal situations and more aggressive job search strategies than he is currently utilizing. Given the physical and psychological profile that have been documented in various reports, it is uncertain whether his status would change without any further direction or support from outside agencies. Daniel is of the mindset that no employment opportunities exist for him. He will therefore have significant difficulty with making use of available resources in the community. Significant assistance in rehabilitation will be required to shift his focus. Depending upon his level of comfort and understanding with this process, it may or not be successful. [Emphasis added]
[20] On the basis of this evidence, the Board was of the view that there was insufficient evidence to justify a conclusion of severe disability. That is why, in my view, the Board concluded at paragraph 11 of its reasons that with greater effort at the relevant time, the applicant "might well be working today". Like the Board, the Review Tribunal came to a similar conclusion when it stated at page 4 of its decision of March 8, 2000:
We do not doubt that Mr. Doucette has medical problems. However, there seems to be too much emphasis on his inability to retrain. The Appellant was very well spoken before the Tribunal, and it was very apparent that he has made up his mind that he will never be able to work again. The Tribunal, regrettably from Mr. Doucette's standpoint, is not as convinced of this finding and we cannot reasonably conclude that Mr. Doucette had a severe and prolonged disability in December 1997 which has continued. The medical evidence does not support this conclusion.
[...]
We must agree with the position taken by the Minister. There is insufficient objective medical evidence of functional limitations show, on a balance of probabilities, to be of such significance as to preclude Mr. Doucette from all types of work at his Minimum Qualifying Period of December 1997.
[21] It is no doubt true that Mr. Doucette suffers from educational and cognitive deficiencies which put him at a disadvantage in terms of seeking employment. But within those limitations, the evidence was that there was work which he could do. The Board had before it the Psycho-Vocational Assessment prepared by Ms. Hunt. That report concluded that Mr. Doucette had the capacity for jobs such as gas station attendant, dispatcher or telemarketer though he would not likely "achieve job satisfaction or attain the salary level associated with his previous employment...". Unfortunately for all concerned, there are many people working in such jobs who are not achieving job satisfaction or meeting their salary expectations. Mr. Doucette's misgivings about these occupations, while understandable, do not change the fact that he is capable of undertaking those occupations, even when his personal limitations are taken into account.
[22] In the end result, the Board concluded that Mr. Doucette could have returned to the labour market had he made a greater effort. That conclusion is not one which the "real world" analysis urged upon us by counsel addresses. Consequently, I find no fault with the Board's analysis .
[23] I would therefore dismiss the applicant's application for judicial review, but in the circumstances, without costs.
(s) "M. Nadon"
J.A.
"I concur.
J.D. Denis Pelletier J.A."
[24] This is an application for judicial review of a decision of the Pension Appeals Board (the Board) which dismissed the applicant's application for a disability pension on the basis that he failed to show a "severe" disability, within the meaning of paragraph 42(2)(a) of the Canada Pension Plan [R.S. 1985, c. C-8] (the Plan), on or before his minimum qualifying period of December 31, 1997.
[25] I find that the Board erred in law by failing to make a proper analysis of the "real world" in which the applicant finds himself (Villani v. Canada (Attorney General) (C.A.), [2002] 1 F.C. 130, paragraph 38 (Villani)) .
1. The Facts
[26] The applicant, born on September 17, 1959, applied for a disability pension on March 5, 1999, describing his main disability condition as "problems with back, neck, shoulder and left leg as a result of a car accident". He was last employed as an environmental service worker at the Salvation Army Grace General Hospital. His duties included garbage collection, mopping floors and heavier cleaning activities. The car accident occurred on May 5, 1995. The applicant stopped working May 13, 1995, after an unsuccessful attempt to return to his earlier position.
[27] The applicant was seen on the day of the accident at an emergency department where he was diagnosed as having sustained a whiplash injury and concussion. He was prescribed pain medication and released.
[28] A cervical spine x-ray taken June 14, 1995, revealed "straightening and ... some reversal of the inferior portion of the cervical curve", as well as "some minimal encroachment upon the intervertebral neutral foramen by osteophyte formation". (Applicant's Record, Volume 1, Tab 2(d), p. 210.)
[29] A cervical spine x-ray taken October 26, 1995, showed "the height of the body of C6 is reduced in relation to the adjacent vertebra. There is also evidence of anterior wedging at this level" (Applicant's Record, Volume 1, Tab 2(c), p. 61).
[30] Physiotherapy and chiropractic therapy were undertaken on the referral of Dr. Andrew Hutton, who has been the applicant's family doctor since approximately 1990. After two periods of physiotherapy and one period of chiropractic treatment, the therapies were discontinued due to lack of functional improvement.
[31] The reports of the physiotherapist, Eric Lamme, dated February 5, 1996, and April 15, 1996, confirm that any attempt to increase physical activity resulted in a consistent worsening of symptoms. Mr. Lamme wrote that the applicant's activities of daily living and overall quality of life continued to be "considerably compromised". (Applicant's Record, Volume 1, Tab 2(d), pp. 216 and 217.)
[32] The applicant saw Dr. N.S. Turner, an orthopaedic surgeon, in May, 1996. Dr. Turner reported that Mr. Doucette seemed to "hold his head deviated to the right, which seemed to be an involuntary position", and that "he seems quite sincerely disabled by the positional problems of his head and pain". (Applicant's Record, Volume 1, Tab 2(d), p. 219.)
[33] In December of 1996, the applicant again saw Dr. Turner, who reported that "Mr. Doucette's symptoms remain about the same, as when I saw him in May. He continues to complain of neck pain, pain in the mid-thoracic spine and pain in the posterior aspect of the right hip, with radiation down to the left knee. He also voiced a new complaint today, that of a ringing in his ear, which occurs if he forward flexes. This apparently has been present intermittently since his accident". (Applicant's Record, Volume 1, Tab 2(d), p. 221.)
[34] On January 30, 1997, a functional capacity evaluation was carried out by Jane Simmons of Integrated Occupational Health Services (IOHS). Following this half day assessment, she stated that the applicant was functioning within the sedentary, light or medium classification of work. (Applicant's Record, Volume 1, Tab 2(d), pp. 224 to 240, at 224.)
[35] The applicant saw Dr. Frank Noftall, an orthopaedic surgeon, in March, 1997. In his report of March 25, 1997, Dr. Noftall questioned the conclusion of the functional capacity evaluation that the applicant is capable of light to moderate occupations. He stated his opinion that the applicant "will have to find some form of sedentary position. If he is not educated to do this, he would have to be retrained". Dr. Noftall went on to state "I feel that Mr. Doucette's situation is permanent and I feel that he will have to learn to work around his discomfort. To what extent he can do an occupation or activity will be based on the symptoms that he is experiencing and his tolerance of those symptoms." (Applicant's Record, Volume 1, Tab 2(d), pp. 241A to 243, at 242.)
[36] Dr. Noftall further clarified in his report of August 1, 1997, that the likelihood of surgical intervention was quite low. (Applicant's Record, Volume 1, Tab 2(d), p. 245.)
[37] The applicant commenced a work hardening program with Jane Simmons of IOHS on June 24, 1997. He attended for 12 days and the program was discontinued on July 10, 1997. Following discontinuance, Ms. Simmons revised her conclusion and predicted that Mr. Doucette was competitively employable over an eight hour workday within the classification of sedentary or light work. (Applicant's Record, Volume 1, Tab 2(d), pp. 266 to 273, at 273.)
[38] The applicant never actually progressed beyond 3 hours per day in the work hardening program, and Ms. Simmons noted in her Work Hardening Discharge Report that his symptoms "progressively increased as the program continued". (Applicant's Record, Volume 1, Tab 2(d), pp. 266 to 273, at 266.) In her Initial Assessment Progress Report of June 11, 1997, Ms. Simmons reported that during the program, "objective signs of swelling and tightness were apparent in lateral aspect of left neck region". (Applicant's Record, Volume 1, Tab 2(d), p. 213.)
[39] Gertie Hunt, a registered psychologist, completed a psycho-vocational assessment of the applicant on August 4, 1997. At the time of the report, Ms. Hunt concluded that the applicant's "career options are very limited" and that he "is not a good candidate for retraining given his educational difficulties and would need on-the-job training". (Applicant's Record, Volume 1, Tab 2(d), pp. 247 to 262, at 260.)
[40] She administered the General Aptitude Test Battery which, according to her report, is a widely used assessment measure for determining an individual's ability to perform job related activities. The applicant's scores in general learning ability, verbal aptitude, numerical aptitude and form perception were low, with the exception of motor-coordination, finger dexterity and manual dexterity, which were average to above average score. (Applicant's Record, Volume 1, Tab 2(d), p. 255.)
[41] Ms. Hunt also administered the WJ-R Tests of Achievement which provide information about achievement in traditional academic areas. She noted that the applicant reported having completed a grade twelve equivalency and therefore his grade equivalent scores (at the level of elementary school) were much lower than expected. His math performance was stronger than his reading and writing performance. However, his low scores were consistent with reported difficulties and it was possible, she wrote, that the applicant had difficulty retaining what he learned. When reading comprehension was assessed, he was observed to misinterpret the meaning through substituting words (e.g., "largest for longest"). Vocabulary skills (word pronunciations and meanings) interfered with reading comprehension. (Applicant's Record, Volume 1, Tab 2(d) p. 256.)
[42] The applicant saw the physiotherapist, Eric Lamme, again on September 14, 1999. The physiotherapist, in his correspondence of September 20, 1999, stated that "[o]verall, his symptoms had remained the same in character and continued to severely compromise his quality of life". (Applicant's record, Volume 1, Tab 2(c), pp. 42 and 43.)
[43] Andrea Hutchens, occupational therapist, carried out a functional capacity evaluation of the applicant on June 19, 25 and 27, 2002. She wrote that it was doubtful that the applicant would be capable of sustaining full-time employment at even a sedentary level. (Applicant's Record, Volume 1, Tab 2(h), pp. 299 to 312.)
[44] The applicant obtained leave to appeal the decision of the Review Tribunal which had dismissed his application. The hearing before the Board took place on July 23, 2002.
[45] The Board dismissed the appeal on October 11, 2002. The reasons for the Board's decision were dated August 26, 2002. (Applicant's Record, Volume 1, Tab 2(d), pp. 9 to 21.)
2. The decision of the Board
[46] The Board stated at the outset that to be eligible for a disability pension, the applicant was obligated to satisfy two basic requirements. He must have made valid contributions to the Plan for a minimum qualifying period which, in his case, was December 31, 1997, and he must prove that his disability (physical or mental) was "severe and prolonged" as defined in paragraph 42(2)(a) of the Plan. To be classified as severe, the Board wrote, the disability must be such as
renders him incapable regularly of pursuing any substantially gainful occupation; and "prolonged" only if it is determined to be long continued and of an indefinite duration or is likely to result in death.
[47] The Board summarized the medical evidence including a very thorough functional capacity evaluation done in January of 1997 by Jane Simmons, an occupational therapist, who concluded that although the applicant would be unable to return to his previous employment, he was functioning within the sedentary, light and not quite medium classification of work. The applicant was seen again by her in October 1997, following a work hardening program, which turned out to be too demanding on the applicant. She then revised her conclusion, stating that Mr. Doucette could perform sedentary or light work and be competitively employable over a eight-hour work day.
[48] The Board noted at paragraph 8 of its reasons that Jane Simmons had before her a psycho-vocational assessment report of Gertie Hunt, a registered psychologist, dated August 4, 1997, in which Ms. Hunt concluded that the applicant's career options were "very limited given his physical limitations and educational history". The Board quoted Ms. Hunt, who stated:
It is the opinion of this examiner that Daniel's reasonable employment prospects in today's labour market are very limited because of his injury and his strong orientation to REALISTIC occupations which usually involve moderate to heavy physical activity.
[49] The Board wrote at paragraph 9 of its reasons that "[a]lthough various assessments including Jane Simmons and Gertie Hunt (who testified before us) appear to believe now that Mr. Doucette fits the required definition of disability, we are more persuaded by the reports made immediately prior to the minimum qualifying period".
[50] The Board said it was particularly drawn to that of orthopaedic surgeon Dr. Frank Noftall, dated December 2, 1999, who had also seen the applicant in February, March and August 1997. On these occasions, the Board wrote, Dr. Noftall reported that Mr. Doucette ought to attempt to maximize his level of activity and would have to endure his discomfort and seek out sedentary work.
[51] The Board then quoted this long extract of Dr. Noftall's letter of December 2, 1999:
I saw this gentleman in my office today, November 24, 1999, at your request. You are well aware of his symptomatology and his situation. He settled his case with the lawyers but is now in the process of an appeal to Canada Pension.
He feels he is getting worse with time. He now has some symptoms that are a bit of a concern. He describes deafness that comes on when he puts his neck in certain positions. Obviously, the concern here is that he is having vertebral artery occlusion and I gather he has been assessed by ENT from the point of view of getting further investigations in the form of a MRI. I personally have no problem with this being done.
The difficulty with this gentleman is that he has such diffuse symptoms, I do not think they can be explained, based on cervical spine problems only. There is no doubt that the issue is level of function that he is capable of performing, based on his symptoms and this is always a contentious issue with Canada Pension and this is obvious. All I am able to state is that this gentleman says from a subjective point of view, that he is incapable of performing any activity and therefore feels he deserves a pension based on his symptoms. One has to take this at face value and obviously there is always an issue of credibility with respect to the claims of an individual in a situation such as this. I have no reason to doubt Mr. Doucette's claim, based on his symptoms. He does have objective findings to support his symptoms, especially in his C-Spine with limitation of range of motion and postural changes. However, there is no neurological deficit able to be demonstrated. He is obviously fixated on the degree of symptoms that he experiences, as well. As I see these cases, it comes down to the fact that they are multifactorial in nature. Not only are there physical aspects to this gentleman's problem but there is also emotional and educational issues with respect to Canada Pension. I am not able to comment any further on his educational or emotional aspects of his problem. All I am able to state is that in my opinion, he does have physical findings and physical complaints that would prevent him from performing his old job. He has been assessed by an occupational therapist and he does have some contentious issues with respect to that assessment, due to the fact that he feels that he was given a level of function that he feels he is not capable of performing. From an historical point of view, this gentleman does sound completely disabled. His examination is really non contributory today. As far as I am concerned, he is left with a permanent situation and I doubt that anything will show up from the point of view of positive MRI findings. However, I suggested that after he gets this scan, I will see him once more in clinic. If something does show up on his MRI Scan, then the most appropriate consultation would be to a neurosurgeon. I will see him once more but there is nothing in Orthopaedic that we can do to help this individual.
[52] The Board then said, at paragraph 10:
In our view, this report not only succinctly summarizes Mr. Doucette's plight, it reveals serious concerns held by Dr. Noftall. It should be noted that the MRI report of April 7, 2000 simply concluded: "Small predominantly central disc protrusions at C5-C6 and minimally at C6-C7 levels." These findings confirm Dr. Noftall's earlier conclusions.
[53] The Board concluded at paragraph 11 of its reasons:
The reality is that because he has been out of work for so long, the likelihood of Mr. Doucette returning to the workforce in any capacity is low. Nevertheless, focusing on his condition prior to December 31, 1997 we have concluded, with greater effort at the time, Mr. Doucette might well be working today.
[54] The Board stated the law as found in Villani, supra, and in Canada (Minister of Human Resources Development) v. Rice, [2002] F.C.J. No. 170. It dismissed, at paragraph 18 of its reasons, the applicant's claim on the ground that the evidence did not indicate, on a balance of probabilities, that a "severe" disability existed as of December 31, 1997.
3. The standard of review
[55] There is no question that if the Board erred in law, the standard of review is that of correctness, Canada (Minister of Human Resources Development) v. Skoric (C.A.), [2000] 3 F.C. 265, at paragraph 15, Villani, supra, at paragraph 22. This would be particularly true if, as claimed by the applicant, the Board ignored relevant evidence that the law requires it to consider. Then the Board would have erred in law Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 41. The proposition is also true if the Board erred in failing to make a full analysis of each and every criteria in subparagraph 42(2)(a)(i) of the Plan.
[56] If, on the other hand, as claimed by the respondent, the Board did not ignore relevant evidence but weighed it in applying the statute to the facts, the question is one of mixed fact and law. Considering that the determination of such a question has a high factual component, the Court could only intervene if, in doing so, the Board acted in a patently unreasonable manner (Spears v. Canada, [2004] F.C.J. No. 854, paragraphs 9 to 11).
4. Relevant statutory provisions
[57] It is appropriate to keep in mind paragraph 44(1)(b) of the Plan, which provides that:
|
DIVISION A BENEFITS PAYABLE
Benefits payable 44. (1) Subject to this Part,
(a) a retirement pension shall be paid to a contributor who has reached sixty years of age;
(b) a disability pension shall be paid to a contributor who has not reached sixty-five years of age, to whom no retirement pension is payable, who is disabled and who
(i) has made contributions for not less than the minimum qualifying period,
(ii) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if an application for a disability pension had been received before the contributor's application for a disability pension was actually received, or
(iii) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if a division of unadjusted pensionable earnings that was made under section 55 or 55.1 had not been made;
(iv) [Repealed, 1997, c. 40, s. 69]
...
[My emphasis.] |
SECTION A PRESTATIONS PAYABLES
Prestations payables 44. (1) Sous réserve des autres dispositions de la présente partie :
a) une pension de retraite doit être payée à un cotisant qui a atteint l'âge de soixante ans;
b) une pension d'invalidité doit être payée à un cotisant qui n'a pas atteint l'âge de soixante-cinq ans, à qui aucune pension de retraite n'est payable, qui est invalide et qui :
(i) soit a versé des cotisations pendant au moins la période minimale d'admissibilité,
(ii) soit est un cotisant à qui une pension d'invalidité aurait été payable au moment où il est réputé être devenu invalide, si une demande de pension d'invalidité avait été reçue avant le moment où elle l'a effectivement été,
(iii) soit est un cotisant à qui une pension d'invalidité aurait été payable au moment où il est réputé être devenu invalide, si un partage des gains non ajustés ouvrant droit à pension n'avait pas été effectué en application des articles 55 et 55.1;
(iv) [Abrogé, 1997, ch. 40, art. 69]
...
[Soulignements ajoutés.] |
[58] Subparagraph 42(2)(a) and paragraph 42(2)(b) read:
|
PART II PENSIONS AND SUPPLEMENTARY BENEFITS
Interpretation
Definitions
When person deemed disabled
(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.
...
[My emphasis.]
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PARTIE II PENSIONS ET PRESTATIONS SUPPLÉMENTAIRES
Définitions et interprétation
Définitions
Personne déclarée invalide
(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.
...
[Soulignements ajoutés.] |
5. The legal framework
[59] In Villani, supra, (paragraph 29), this Court established that "[t]he definition of a severe disability in the Plan is clearly a qualified one which must be contained by the actual language used in subparagraph 42(2)(a)(i)". The meaning of the words used in that provision "must be interpreted in a large and liberal manner and any ambiguity flowing from those words should be resolved in favour of a claimant for disability benefits".
[60] The Court, at paragraph 32, found inspiring the more liberal approach adopted by the Board in what it characterized as a "real world" approach to the application of the severity requirement. "This approach", wrote the Court, "requires the Board to determine whether an applicant, in the circumstances of his or her background and medical condition, is capable regularly of pursuing any substantially gainful occupation". The Court referred to an earlier decision of the Board in Leduc, Edward v. Minister of National Health and Welfare (1988), C.E.B. & P.G.R. 8546 (P.A.B.) and stated, at paragraph 33:
The "real world" approach was first adopted by the Board in Leduc, Edward v. Minister of National Health and Welfare (1988), C.E.B. & P.G.R. 8546 (P.A.B.). In that case, the Board found for the applicant on the following basis [at page 6022]
The Board is advised by medical authority that despite the handicaps under which the Appellant is suffering, there might exist the possibility that he might be able to pursue some unspecified form of substantially gainful employment. In an abstract and theoretical sense, this might well be true. However, the Appellant does not live in an abstract and theoretical world. He lives in a real world, people [sic] by real employers who are required to face up to the realities of commercial enterprise. The question is whether it is realistic to postulate that, given all of the Appellant's well documented difficulties, any employer would even remotely consider engaging the Appellant. This Board cannot envision any circumstances in which such might be the case. In the [page 149] Board's opinion, the Appellant, Edward Leduc, is for all intents and purposes, unemployable.
[My emphasis.]
[61] The Court (at paragraph 39) endorsed the conclusion and reasons given by the Board in the case of Barlow v. Minister of Human Resources Development (1999), C.E.B. & P.G.R. 8846 (P.A.B.), where an analysis was made of each relevant word of subparagraph 42(2)(a)(I). The Court reproduced this analysis at page 37 of its reasons, which read:
Is her disability sufficiently severe that it prevents her from regularly pursuing any substantially gainful occupation?
To address this question, we deem it appropriate to analyze the above wording to ascertain the intent of the legislation:
[page 151]
Regular is defined in the Greater Oxford Dictionary as "usual, standard or customary".
Regularly -- "at regular intervals or times."
Substantial -- "having substance, actually existing, not illusory, of real importance or value, practical."
Gainful -- "lucrative, remunerative paid employment."
Occupation -- "temporary or regular employment, security of tenure."
[62] The Court then wrote, at paragraph 38:
This analysis of subparagraph 42(2)(a)(i) strongly suggests a legislative intention to apply the severity requirement in a "real world" context. Requiring that an applicant be incapable regularly of pursuing any substantially gainful occupation is quite different from requiring that an applicant be incapable at all times of pursuing any conceivable occupation. Each word in the subparagraph must be given meaning and when read in that way the subparagraph indicates, in my opinion, that Parliament viewed as severe any disability which renders an applicant incapable of pursuing with consistent frequency any truly remunerative occupation. In my view, it follows from this that the hypothetical occupations which a decision-maker must consider cannot be divorced from the particular circumstances of the applicant, such as age, education level, language proficiency and past work and life experience.
[My emphasis.]
6. The applicant's submission
[63] The applicant submits that while the Board did refer to the real world test set out in Villani, the Board erred in that it did not make any attempt to apply this test to the applicant. The Board, says the applicant, failed to consider how the particular circumstances of the applicant and, most significantly, his learning disability, affect the "hypothetical occupations which a decision-maker must consider" (as stated in Villani, supra, at paragraph 38). In doing so, the applicant submits the Board made an error which involved the interpretation and application of the definition of a severe disability and its decision should be reviewed on a standard of correctness.
[64] The applicant further submits that the Board erred in law in its interpretation of how labour conditions affect the real world test in Villani. While the availability of work in the applicant's location is irrelevant to the question of whether the applicant is disabled, as held in Minister of Human Resources Development v. Rice, supra, whether or not he is capable of employment in the "real world" is relevant.
[65] I agree.
[66] The legal analysis of the "real world" is a demanding one which the Board is duty-bound to address its mind to. If it fails to make this analysis, the Board fails to properly apply the law to
the facts before it. In doing so, it errs in law. The standard of review in the case at hand is that of correctness.
7. Analysis
[67] The pivots of the Board's decision are the pre-December 31, 1997, written reports of Jane Simmons, an occupational therapist, dated January 30, 1999, and October 1, 1997, and the psycho-vocational assessment of Gertie Hunt dated August 4, 1997, together with the letter of Dr. Noftall dated December 2, 1999. The Board indicated his preference with the written reports of Jane Simmons and Gertie Hunt rather than their testimonies at the hearing. Dr. Noftall did not testify.
[68] A close examination of the written reports of these two experts is in order.
[69] Gertie Hunt's psycho-vocational assessment of August 4, 1997 (Applicant's Record, Volume 1, Tab 2(d), pp. 247-262), spoke about the applicant's attitude, learning disability and interests in the following manner (at 258-259):
Daniel reported that he has been experiencing a great deal of physical pain and discomfort since the time of the accident and feels a sense of hopelessness about his condition expecting that it will only worsen. In addition to having to cope with the effects of his injury on employment and every day living, he has had to cope with major stressors this year including the death of his father and nephew.
...
An assessment of Daniel's intellectual ability as measured by the WAIS-R determined his verbal intelligence score to be in the low average range relative to his age group, his non-verbal intelligence score to be average and his full scale score to be low average. A difficult school history and limited reading activity, in addition to discomfort impacting on concentration, may have lowered some of his subtest scores. Non-verbal skills (visual motor, ability to interpret and organize visually perceived materials, visual attention to detail) can be considered areas of relative strength for him. Verbal or language skills and concentration were identified as deficit areas.
...
Educational achievement, as measured by the Woodcock-Johnson Tests of Achievement identified reading, writing and math skills to be at the level of an elementary school student. Daniel's scores were lower than expected given that he completed a high school education through upgrading and given his intellectual ability as measured by the WAIS-R. These inconsistencies suggest that Daniel may have a specific learning disability which was not identified when he was in school (individuals with learning disabilities are of average intelligence but are unable to achieve to the level of their potential without specific accommodations in an academic environment). Throughout testing, Daniel displayed low confidence in academic-related tasks.
Daniel's interests, as explored through the Self-Directed Search, were largely associated with occupations in the Realistic category; these occupations are of a technical and mechanical nature. It was quite evident, however, that Daniel's scores were being influenced by a very limited knowledge of the world of occupations and perceived strengths only in mechanical and manual skills, and in understanding other people.
[My emphasis.]
[70] Based on the applicant's profile of abilities, interests, education (high school graduation) and physical limitations, Ms. Hunt was able to draw a list of 57 careers generated by the CHOICES computer program. She then stated (at page 260):
It is important to note that, although the educational requirement listed in the CHOICES program is high school graduation, most employers now require some combination of experience and training and are able to do so given the number of people seeking jobs in these areas
[My emphasis.]
[71] She then made this statement, found at page 260 of the Applicant's Record, which the Board referred to and reproduced, in part, in its reasons:
Daniel's career options are very limited given his physical limitations and educational history and it is likely that he would start at minimum wage in any occupation. He is not a good candidate for retraining given his educational difficulties and he would need on-the-job training. While he might consider minimum wage jobs such as gas station attendant, dispatcher and telemarketer, he would likely not achieve job satisfaction or attain the salary level associated with his previous employment at the Grace Hospital. It is the opinion of the examiner that Daniel's reasonable employment prospects in today's labour market are very limited because of his injury and his strong orientation to REALISTIC occupations which usually involve moderate to heavy physical activity.
[My emphasis.]
[72] The Board did not refer to a long list of the applicant's personal frustrations and limitations observed by Ms. Hunt, which followed immediately (at page 261):
Based upon the results of this assessment, the following is recommended:
* Retraining cannot be considered a good choice for Daniel given his long history of educational difficulties. Daniel would be better suited to on-the-job training where he learns through demonstration and oral instructions. A work environment best suited to his abilities and interests is one which would involve hands-on types of work using his skills at "putting things together and taking them apart". An office environment would not be a suitable option for Daniel.
* It is important that the following be provided to assist Daniel in making a career transition: counselling for career exploration (to learn about occupations and awareness of strengths and interests), and occupational therapy services to evaluate and assist with making physical adjustments. A job trial and job shadowing as recommended by Ms. Simmons can be considered important in determining whether a particular job or work environment can meet his physical needs, and whether he is capable of working on a full or part time basis.
* It is important that Daniel not feel rushed into any particular occupation. He reported a great deal of physical and psychological stress which has been ongoing for the past two years. He also feels a loss of control over events in his life; therefore it is important that he feels very much a part of any process and having some control over the outcomes.
* Should Daniel decide to pursue some retraining or upgrading of his skills in the future, he might consider some additional assessment to clarify the nature of a possible learning disability. Such an assessment would provide recommendations to address learning problems. Also, Daniel might wish to improve on some of the basic skills in reading, math and writing as they may have an impact in employment situations.
* Some counselling to address pain management, current stressors and lifestyle management would be beneficial for Daniel. He might also learn ways of managing pain through occupational therapy. While a pain management program for groups of individuals might be beneficial at a future time, Daniel might not be comfortable with a group situation at the present time.
* Daniel might look into programs available through government for individuals with disabilities. One such program is the "Opening Door Program", an employment equity program for disabled individuals (brochures are attached). Consultation with Jim MacDonald who coordinates the program revealed that there are difficulties in placing unskilled workers. However, the program may be of some benefit.
[73] In summary, she wrote that retraining could not be considered a good choice for the applicant considering his long history of educational difficulties. She said the applicant would be better suited to on-the-job training in an environment which would involve hands-on types of work. She said he would need assistance to make a career transition. She suggested counselling and, perhaps, a job trial or job shadowing might be in order to see if the work met his physical needs and whether he was capable of working on a full- or part-time basis. She addressed the applicant's psychological stress, his learning problems, and his pains.
[74] She finally suggested the applicant might look into programs available through government for individuals with disabilities. She said she had consulted Jim MacDonald of the
"Opening Doors Program" . She wrote that while the program revealed difficulties in placing unskilled workers, the program may be of some benefit.
[75] Jane Simmons' Work Hardening Discharge Report dated October 1, 1997, also referred to by the Board, contains important qualifiers to her statement that the applicant was competitively employable, over an 8-hour day, with the classification of sedentary or light work. (Applicant's Record, Volume 1, Tab 2(d), p. 273). She wrote:
In summary, it is the writing therapist's opinion that Dan is competitively employable, over an 8 hour day, within the classification of sedentary or light work. Careful job matching to positions which meet his physical capabilities, along with his psychological profile, would be of benefit. Pain management counselling, as has been recommended by the Psychologist would also appear indicated. Although Dan may benefit from some type of group programming, as was apparent in the Work Hardening environment, given his current frustrations and agitation with his disability at present, a group environment was not beneficial and conducive to rehabilitation. In the future, however, this may improve and may be possible to consider. The Opening Doors Program, as was recommended by the Psychologist would be one definite option for Dan to consider in seeking alternate employment.
[My emphasis.]
[76] The applicant explored the possibilities available under the Opening Doors Program with Mr. James McDonald of the Government of Newfoundland and Labrador. He received a letter dated July 13, 2000, indicating they were next to nil under the Program. Although this letter is post-December 31, 1997, Mr. McDonald's position was known to Ms. Hunt since she referred, in her assessment of August 4, 1997, to consultation she had with Mr. McDonald, which, she said, revealed difficulties in placing unskilled workers. Mr. McDonald's letter states (Applicant's Record, Volume 1, Tab 2(c), pp. 112-113):
July 13, 2000
Dear Mr. Doucette:
Re.: APPLICATION FOR INCLUSION ON THE OPENING DOORS CLIENT REGISTRY
Further to our recent meeting regarding your application for inclusion on the Opening Doors Client Registry and your referral on public sector open/public competitions, I am writing to advise you that your application is accepted and will be included on our Client Registry. However, as I indicated during our meeting, it is highly unlikely that you will be successful in securing employment in the public sector through our program, given your educational level and physical and psychological limitations.
A review of your application indicates you have completed Grade 12 through Adult Basic Education and that your work experience has been limited to jobs of unskilled labour. However, the majority of positions to which this division refers its clients require some degree of post-secondary training and involves office related, technical or professional work.
Further, regarding my suggestion that you consider pursuing post-secondary training so as to become more competitive in the labour market, you suggested I contact Ms. Jane Simmons, Occupational Therapist with Integrated Occupational Health Services. Ms. Simmons forwarded to me the enclosed documents which indicate the only type of work you can physically do is in keeping with the classification of Sedentary to Light work, e.g., general office work which would require that you do some additional training. However, the assessment also indicates that such training would not be suitable given the low range of your intellectual ability.
Therefore, although you qualify for inclusion on the Opening Doors Client Registry, I would suggest it is very unlikely you will be successful in obtaining employment through this program. Please advise me if you wish to have your application kept on file or returned to you and should you have any further questions regarding this matter, please do not hesitate to contact me.
Sincerely,
JAMES MCDONALD Manager, Employment Equity and Strategic Initiatives
[My emphasis.]
[77] The Board never determined how the evidence related to the educational level, language proficiency and past work and life experience of the applicant affected his capacity to regularly pursue any substantially gainful occupation.
[78] The Board failed to examine the numerous limitations and restrictions flagged by Ms. Hunt and Ms. Simmons so as to determine the "real world" in which the applicant finds himself and whether "in the hypothetical occupations which a decision-maker must consider" (Villani at paragraph 38) "any employer would even remotely consider engaging" the applicant (Leduc, referred to in Villani at paragraph 33).
[79] But there is more to this.
[80] This Board, pursuant to subsection 83(11) of the Plan, is under a statutory duty to give reasons (Canada (Minister of Human Resources Development) v. Quesnelle, [2003] F.C.J. No. 267). These reasons must be adequate since reasons for judgment are the primary mechanism by which the Board, just like any court of law, accounts to the parties and to the public for the decisions it renders (see R. v. Sheppard, [2002] 1 S.C.R. 869, at paragraph 15).
[81] The Board failed to do so when it assessed Dr. Frank Noftall's letter of December 1, 1999. The Board referred to the "serious concerns" of the physician. The Board gave no indication of the type of concerns it noted in the physician's letter or how these concerns related to the applicable criteria.
[82] This case should therefore be referred back for a rehearing and redetermination since it contains no analysis of whether the applicant, in the "real world" (Villani, paragraph 38), is capable or "incapable regularly of pursuing any substantially gainful occupation" within the meaning of subparagraph 42(2)(a)(i) of the Plan.
8. Conclusion
[83] This application for judicial review should be allowed, the decision of the Pension Appeals Board should be set aside and the matter should be referred back to a differently constituted Board for a rehearing and a redetermination on the basis of the record as constituted and any other evidence the parties may wish to adduce and the new panel of the Board may consider relevant.
[84] The applicant should have his costs.
(s) "Alice Desjardins"
J.A.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-658-02
STYLE OF CAUSE: DANIEL DOUCETTE v. MINISTER
OF HUMAN RESOURCES DEVELOPMENT
PLACE OF HEARING: St. John's, Newfoundland and Labrador
DATE OF HEARING: June 24, 2004
REASONS FOR JUDGMENT: NADON J.A.
CONCURRED IN BY: PELLETIER J.A.
DISSENTING REASONS BY: DESJARDINS J.A.
DATED: September 15, 2004
APPEARANCES:
Ms. Marina Whitten for the Applicant
Mr. Stuart Herbert for the Respondent
SOLICITORS OF RECORD:
Aylard, Chislett & Whitten for the Applicant
St. John's, NL
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General of Canada