Date: 20020528
Docket: A-493-00
Ottawa, Ontario, May 28, 2002
Coram: DESJARDINS J.A.
NADONJ.A.
PELLETIERJ.A.
BETWEEN:
DENISE LALONDE
Applicant
and
CANADA PENSION PLAN
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
JUDGMENT
The application for judicial review is allowed with costs, the decision by the Pension Appeals Board is set aside and the matter is referred back to the Board for reconsideration before a differently constituted panel, on the basis of these reasons and in light of the record, as constituted, and any other relevant evidence that the parties may add thereto.
Costs in favour of Ms. Lalonde are fixed at $200.
Alice Desjardins
J.A.
Certified true translation
S. Debbané, LLB
Date: 20020528
Docket: A-493-00
Neutral Citation: 2002 FCA 211
CORAM: DESJARDINS J.A.
NADONJ.A.
PELLETIERJ.A.
BETWEEN:
DENISE LALONDE
Applicant
and
CANADA PENSION PLAN
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Hearing held at Ottawa, Ontario, on May 15, 2002
Judgment delivered at Ottawa, Ontario, on May 28, 2002
REASONS FOR JUDGMENT: ALICE DESJARDINS J.A.
CONCURRED IN BY: NADON J.A.
PELLETIER J.A.
Date: 20020528
Docket: A-493-00
Neutral Citation: 2002 FCA 211
CORAM: DESJARDINS J.A.
NADONJ.A.
PELLETIERJ.A.
BETWEEN:
DENISE LALONDE
Applicant
and
CANADA PENSION PLAN
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
DESJARDINSJ.A.
This is an application for judicial review of a decision by the Pension Appeals Board (the Board) confirming the decision of a Review Tribunal that had denied the applicant a disability pension on the ground that she was not disabled within the meaning of subsection 42(2) of the Canada Pension Plan (the Act), R.S.C., 1985, c. C-8.
Paragraph 44(1)(b) and subsection 42(2) of the Act read as follows:
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44. (1) Subject to this Part,
... (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.
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44. (1) Sous réserve des autres dispositions de la présente partie: ... 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 une pension n'avait pas été effectué en application des articles 55 et 55.1.
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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 prescribed manner to be the time when he became or ceased to be, as the case by 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.
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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 cesse 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. |
[Emphasis added]
(A) Introduction
Ms. Lalonde testified that she did not think she was capable of doing any further work since leaving her job as a nurse's aide in March 1996. She is 54 years old and has a grade 7 education. She has passed a one-year course as a health care aide. She claims that because of her fibromyalgia and problems with her back, legs, and hands, she is incapable of working at all. She no longer does any housework, she walks short distances, she prepares her own meals, she can drive a car, and she does her groceries, often accompanied by her husband. She says that her situation has deteriorated since December 1997, the date on which she ultimately met the requirements of the Act in respect of contributions.
In its reasons, the Board observed that the specialists, unanimously and on several occasions, recommended that she undergo physiotherapy. Ms. Lalonde contended that she had been notified by a physiotherapist at the onset of her medical problems that such treatment could be harmful to her.
The Board stated that it had conducted a thorough review of the medical reports made by Drs. P.A. Caron and F.N. Urfer, the family physicians, the reports made by Drs. M. Leftick, G.S. Dvorkin and B. Guiot, the specialists, the laboratory reports and the reports made by Dr. D.R. St-Jean, a chiropractor. It went on to summarize the medical evidence in these terms (Respondent's Application Record, vol. 1, p. 7):
[TRANSLATION]
Dr. Urfer is of the opinion that Ms. Lalonde is incapable of doing any gainful work. Nonetheless, I must note that the opinions of the specialists do not support that conclusion. Dr. Leftick, a rheumatologist, does not confirm the fibromyalgia diagnosis. Dr. Dvorkin, a neurologist who saw her in May 1998, concluded that the appellant was functional, that the clinical examination was normal, and that back surgery was not necessary for the time being. Furthermore, in April 1999, following some examinations in February 1999, Dr. B.H. Guiot, the neurosurgeon, concluded that surgery was not needed given that the pain felt by Ms. Lalonde was intermittent and there were no neurologic signs. The three doctors recommended physiotherapy and physical exercise.
Dr. R. Simard, who testified for the respondent, concluded that despite those symptons, Ms. Lalonde still had a certain capacity to work and that she was not disabled within the meaning of paragraph 42(2)(a) of the Plan.
[Emphasis mine]
The Board concluded (Respondent's Application Record, vol. 1, at pp. 7-8):
[TRANSLATION] Although I sympathize a great deal with Ms. Lalonde and am certain that she feels pain, she did not satisfy me, on a balance of probabilities, that she is disabled within the meaning of the Canada Pension Plan, having regard to the overall evidence.
[Emphasis mine]
(B) The Applicable Standard of Review
This Court has previously held that in the case of an error of law, the applicable standard of judicial review of a decision by the Board is the standard of correctness. (See Canada (Minister of Human Resources Development) v. Skoric (C.A.), [2000] 3 F.C. 265 andVillani v. Canada (Attorney General) (C.A.), [2002] 1 F.C. 130.) With respect to questions of fact, the applicable standard of review is patent unreasonableness (Powell v. Canada (Minister of Human Ressources Development) (2000), 258 N.R. 123 (F.C.A.)).
(C) Analysis
The Board stated that it had considered the reports of Dr. St-Jean, the chiropractor, even though it did not think it was necessary to cite his conclusions. The first report, dated
July 24, 1997, contained the following recommendation (Respondent's Application Record, vol. 1 at p. 94):
Each moderate to strenuous daily activities have a wear and tear effects over the discs and posteriors structures of the spine. Consequently with the lumbar degenerative process of Mrs. Lalonde's spine. We suggest that she avoid any repetition lifting, pushing and pulling.
The second report of Dr. St-Jean, written two years lateron May 11, 1999, after 20 chiropractic treatments, states (Respondent's Application Record, vol. 1, at p. 188):
Since the last report to the C.P.P. dated of July 24th, 1997 Mrs. Lalonde received 20 chiropractic treatments due to recurrent low back pain. The pain is sometimes acute or dull depending of the type of physical activities she is doing. As we mentioned in prior report, Mrs. Lalonde is suffering of degenerative disease of the lumbar spine and she also mentioned to us that she had a scan done where it showed herniated lumbar disc (please see report of her G.P.).
Due to the above conditions effecting the lumbar spine we suggest Mrs. Lalonde avoid any repetitive lifting, pushing and pulling or any long period of time sitting or standing, which may aggravate her spinal condition.
It was open to the Board to accept the factual testimony of Dr. R. Simard, the respondent's expert witness, and the testimony of the applicant's specialists rather than that of Dr. Urfer, the family physician. Dr. Simard concluded that Ms. Lalonde [translation] "still had a certain capacity to work." However, the Board attributed to that doctor a finding that Ms. Lalonde [translation] "was not disabled within the meaning of paragraph 42(2)(a) of the Plan". That is a finding of mixed fact and law that only the Board can make. A careful examination of the record indicates however that Dr. Simard did not comment on Ms. Lalonde's disability "within the meaning of subsection 42(2) of the Plan". That portion of the penultimate paragraph of the Board's decision is undoubtedly the result of an unfortunate wording. Despite the language used, it was in fact a conclusion made by the Board, not by Dr. Simard.
The Board therefore adopted the conclusion that Ms. Lalonde "still had a certain capacity to work".
To describe a person as having "a certain capacity to work"necessarily implies that that person suffers from a certain incapacity to work.
The Board however could not leave it at that. Under subsection 83(11) of the Act, it must
notify in writing the parties to the appeal "of its decision and of its reasons therefor." Case law has established that in the presence of such a provision, the reasons must be proper, adequate and intelligible, and must enable the person concerned to assess whether he has grounds of appeal or, in this case, of judicial review (Northwestern Utilities Ltd. v. Edmonton, [1979]
1 S.C.R. 684 at p. 707). Thus, at the broadest level of accountability, the giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public (R. v. Sheppard, [2002] S.C.J. No. 30, 2002 SCC 26, paragraph 5, a criminal justice decision). Cases have also held that the administrative tribunal must meet the requirements of the Act (M.E.I. v. Carrozzella, _[1983] 1 F.C. 909; Mehterian v. Canada (Minister of Employment and Immigration) (F.C.A.), [1992] F.C.J. 545).
Under the Act, the Board was required to determine whether that physical disability the applicant was suffering from was "severe and prolonged". Subparagraph 42(2)(a)(i) of the Act states that a disability "is severe only if by reason thereof the person ... is incapable regularly of pursuing any substantially gainful occupation". The disability is "prolonged" under subparagraph 42(2)(a)(ii) of the Act "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". The Board did not refer to any analysis that it might have made in applying those statutory tests.
Villani v. Canada (Attorney General) (C.A.), [2002] 1 F.C. 130 and Canada (Minister of Human Resources Development) v. Rice (C.A.), [2002] F.C.J. No. 47 significantly clarified the interpretation of subsection 42(2) of the Act. Those decisions were made subsequent to the decision the Board made in this case. So the Board could not follow them. But since the legislation is the same in both cases, the issue calls for a review of those two decisions.
In Villani, this Court concluded, at paragraph 38 of its decision, that its analysis of subparagraph 42(2)(a)(i) of the Act:
... 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.
[Emphasis added]
This "real world" context requires that the Board give meaning to each of the words in subparagraphs 42(2)(a)(i) and (ii) of the Act. The "real world" context presupposes that the Board consider the particular circumstances of Ms. Lalonde, her age, education level, language proficiency and past work and life experience. The Board cited some of those elements. It noted that Ms. Lalonde was 54, that she had only a grade 7 education, and that she had successfully completed a one-year course as a nurse's aide. But it did not draw any inferences from those facts by reference to the law that it was required to apply.
The "real world" context, as stated in paragraph 43 of Villani (see also paragraph 37), requires that the Board consider the words "regularly", "substantially" and "gainful" that are found in the definition of severe. Thus, to meet that definition, Ms. Lalonde must be incapable of "regularly ... pursuing any substantially gainful occupation." According to the decision of this Court in Rice, the particular economic conditions in the area where Ms. Lalonde lives cannot, however, be considered.
The "real world" context also means that the Board must consider whether Ms. Lalonde's refusal to undergo physiotherapy treatment is unreasonable and what impact that refusal might have on Ms. Lalonde's disability status should the refusal be considered unreasonable.
The Board therefore did not determine whether Ms. Lalonde's physical disability was "severe and prolonged". That constitutes an error of law (Housen v. Nikolaisen, [2002] S.C.J. No. 31, 2002 SCC 33, paragraphs 8, 26 and 27) and vitiates the validity of the decision.
There are grounds for judicial intervention.
Hearings before the Board are de novo (subsection 83(11) of the Act), and it is worth recalling these words, at paragraph 50 in Villani:
This restatement of the approach to the definition of disability does not mean that everyone with a health problem who has some difficulty finding and keeping a job is entitled to a disability pension. Claimants still must be able to demonstrate that they suffer from a "serious and prolonged disability"that renders them "incapable regularly of pursuing any substantially gainful occupation". Medical evidence will still be needed as will evidence of employment efforts and possibilities. Cross-examination will, of course, be available to test the veracity and credibility of the evidence of claimants and others.
[Emphasis added]
Ms. Lalonde has the burden of proving her physical disability to the Board, in accordance with the requirements of subsection 42(2) of the Act, and the efforts she has made to find employment for herself in the circumstances (Adele Lutzer v. Minister of Human Resources Development, 2002 FCA 190, paragraphs 7 et seq.).
(D) Conclusion
I would allow the application for judicial review with costs, I would set aside the decision by the Pension Appeals Board, and I would refer the matter back to the Board for reconsideration before a differently constituted panel. That panel will have to dispose of the matter on the basis of these reasons and in light of the record, as constituted, and any other relevant evidence that the parties may add thereto.
The costs payable by the respondent to Ms. Lalonde are fixed at $200.
Alice Desjardins
J.A.
"I concur.
Marc Nadon J.A."
"I concur.
J.D. Denis Pelletier J.A."
Certified true translation
S. Debbané, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
COURT FILE NO.: A-493-00
STYLE OF CAUSE:
DENISE LALONDE v. MHRD
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MAY 15, 2002
REASONS FOR JUDGMENT: DESJARDINS J.A.
CONCURRED IN BY: NADON J.A.
PELLETIER J.A.
DATE OF REASONS: MAY 28, 2002
APPEARANCES:
Denise Lalonde FOR HERSELF
Stephan Bertrand FOR THE RESPONDENT
SOLICITORS OF RECORD:
Denise Lalonde FOR HERSELF
L'Orignal, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario