Date: 20000623
Docket: A-472-98
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
McDONALD J.A.
BETWEEN:
LORRIE POWELL
Applicant
- and -
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Heard at Vancouver, British Columbia, on Thursday, May 4, 2000
Judgment rendered at Ottawa, Ontario, on Friday, June 23, 2000
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
McDONALD J.A.
Date: 20000623
Docket: A-472-98
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
McDONALD J.A.
BETWEEN:
LORRIE POWELL
Applicant
- and -
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
DESJARDINS J.A.
This is an application for judicial review of a decision of the Pension Appeals Board (the "Board") which held that the applicant did not suffer from a disability which is both severe and prolonged as required under paragraph 42(2)(a ) of the Canada Pension Plan1 (the "Plan"). The Board thus reversed an earlier decision of the Review Tribunal (the "Tribunal") which held that Mrs. Powell met the requirements of the Plan.
Paragraph 42(2)(a) of the Plan provides:
| 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 ... |
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; ... |
The facts
The applicant, Mrs. Powell, was working as a sales clerk at the Canex store at C.F.B. Esquimalt from July 1993 to the date of her accident on December 19, 1993. On that night, Mrs. Powell was at a public place with her husband and two other friends when she stepped off a raised area which was in darkness and suffered a displaced fracture of the tibial plateau of the left knee. She underwent an open reduction of the fracture with screws inserted into the tibia just below the knee joint. Her surgeon was Dr. H.J. Calder. After five days, she returned home and noticed that the severe pain in her left leg was not diminishing.
In May 1994, Dr. Calder carried out a manipulation of her knee under general anaesthetic in an attempt to improve her range of motion in her left knee. In September 1994, the screws were removed from the upper tibia. Mrs. Powell began attending physiotherapy for approximately two years, for the first four months at a rate of approximately five times a week. In October 1994, she was referred to Dr. William Davis, an anaesthetist specializing in acute and chronic back management. She was then transferred to another anaesthetist, Dr. Leslie S. Bowers, on December 1, 1994.
Dr. Bowers suspected Mrs. Powell as having reflex sympathetic dystrophy (RSD) and performed injections on her.2 He then referred her to Dr. May Ong, a specialist in clinical pharmacology, diagnosis and pain management. She also believed Mrs. Powell was suffering with RSD and ordered further testing.3 A triple phase bone scan of the left knee was performed on April 26, 1996. There was increased activity in the medial tibial plateau compatible with the previous fracture through that area, although the picture was not typical of RSD. A MRI was recommended due to the possibility of debris or granulomatous material at the fracture site.4 Dr. Ong then referred Mrs. Powell to Dr. Simon Horlick, an orthopaedic surgeon in Vancouver. The latter confirmed the RSD diagnosis.5
By an application received on October 18, 1994, Mrs. Powell applied for a disability pension under the Plan. That application was denied. She then brought an appeal before the Tribunal on June 6, 1996; that appeal was allowed.6 The respondent appealed that decision to the Board on June 11, 1998. The Board allowed the respondent"s appeal on July 20, 1998.7
In order to qualify for disability benefits under the Plan, the applicant must satisfy two requirements: (1) she must meet a minimum contributory requirement by having made valid contributions to the Plan for a minimum qualifying period and (2) she must be disabled within the meaning of the Plan at a time when she meets the minimum contributing requirements.
The Board found that, based on her attributions, the applicant must be found to have been disabled before May 1994. Counsel for the respondent represented, however, that the cutting date should have been December 1993. He admitted that nothing turned on this since the applicant, in either case, met the minimum contributory requirements. We proceeded on the basis that it is common ground that the applicant satisfies the first requirement under the Plan.
The second issue is whether the Board erred in rejecting the applicant"s claim.
The applicant claims that the Board ignored relevant pieces of evidence in addressing paragraph 42(2)(a) of the Plan with the result that it based its decision on erroneous findings of facts made "without regard to the material before it". This requires that I address first the applicable standard of judicial review.
In Canada (Minister of Human Resources Development) v. Skovic,8 Evans J.A., for the Court, found that the balance of the factors in the pragmatic or functional mix favoured little deference to the Board"s interpretation of its constitutive legislation. The issue was whether the applicant"s entitlement to a surviving spouse"s benefit was governed by the law as it was before January 1987, or by later amendments. Evans J.A. concluded that the standard of review applicable was at the correctness end of the spectrum. He was careful, however, to point out that his conclusion was consistent with that reached by Reed J. in Kerth v. Canada (Minister of Human Resources Development) .9 There, at paragraphs 18-23, Reed J. concluded, on the basis of a pragmatic or functional analysis, that the standard applicable to reviewing the propriety of the test used by a member of the Board when determining a request for leave to appeal to the Board was "closer to the non deferential end of the spectrum".
In the case of Pushpanathan v. Canada (Minister of Citizenship and Immigration),10 Bastarache J. made it clear that the focus of the inquiry must be on the particular provision being invoked and interpreted by the Tribunal. Some provisions within the same legislation may require greater curial deference than others, depending on the factors that must be taken into account in determining the appropriate standard of judicial review. He divided the factors to be taken into account into four categories, namely: (i) the privative clauses, (ii) the expertise of the Tribunal, (iii) the purpose of the legislation as a whole, (iv) the "nature of the problem; a question of law or fact".
In the case at bar, the applicant claims that the Board, while embarked on a paragraph 42(2)(a) analysis, ignored "the material before it". Her argument is based on paragraph 18.1(4)(d ) of the Federal Court Act. The standard applicable for this statutory review is the same as the standard of patent unreasonableness.11
The applicant made a number of submissions to us. Her main attack, and the one we find determinative, is directed at the following conclusion of the Board"s reasons:
| Having considered all the evidence, we come to the conclusion supported by the bulk of the medical opinions that with proper exercises and improvement of her general fitness she should be able to return to work similar to what she was doing. She is not suffering from a disability which is both severe and prolonged as defined in the Act. |
The Board"s finding with regard to the applicant"s ability to return to work similar to what she was doing is not confirmed by the medical evidence. Further, in this respect, the Board did not address the most recent diagnosis of RSD.
On September 22, 1994, the applicant"s family physician, Dr. W.R. Salmaniw, wrote that Mrs. Powell would likely be permanently unfit to walk any distance or stand, and that she would likely be limited to complete sedentary activities.12
In June 1995, Dr. Calder, her surgeon, stated that until that time, the applicant had been unable to resume her work as a sales clerk. He then wrote:
| It may still be possible for her to do so within the next six months to a year although I cannot be certain of this. [My emphasis] |
He recommended that she embark on an exercise program and then stated:13
| If she is successful in these endeavours, this will improve her functional recovery and increase the likelihood that she will be able to resume employment, but this does not seem possible at the present time. [My emphasis] |
On July 15, 1995, she was seen by Dr. Davis, an anesthesiologist who concluded that Mrs. Powell was exhibiting features of a chronic pain syndrome. It was not his impression, however, that she was permanently disabled, but he recognized that Dr. Calder would be best able to give an update on this.14
On May 21, 1996, Dr. Ong, an internist, stated that given the clinical picture she observed and Mrs. Powell"s resistance to various past treatments, she did not believe that Mrs. Powell would be gainfully employable for a prolonged period of time of indefinite duration.15
On May 7, 1997, Dr. Salmaniw, her family physician, reviewed her entire file and stated:16
| ... At the present time, I cannot imagine Lorrie returning to any form of normal employment. The best I could see is the possibility of Lorrie working at her own pace at home. This would have to involve strictly a sedentary type work with the provision for frequent breaks as well as provision for being away from her work for days on end when her symptoms warrant. There is no doubt that Lorrie is not a candidate for any type of work of a physical nature nor any that require standing or sitting in the conventional manner. |
He further said:17
| Of course Lorrie will continue to need the knee brace (Generation II Brace), which will at regular intervals be replaced as they wear out. I suspect that this will occur, approximately every one to three years. She will likely also in the future require the use of a cane, possibly crutches, and a walker. In the future she will also likely require the use of a scooter, and/or a wheel chair. |
Also relevant to the issue is the evidence of Mr. Derek M. Nordin which was before the Board and which the Board seems to have ignored. Mr. Nordin is not a doctor, but a rehabilitation counsellor who was consulted, on July 8, 1997, with a view to determining what employment, if any, would now be open to Mrs. Powell given the restrictions described by Dr. Salmaniw in his report of May 7, 1997. He reviewed her file and concluded:18
| In my opinion, her education and work history have not provided her with any transferable skills which she could realistically utilized in any home based employment. Given her lack of education and transferable skills and taking into consideration Dr. Salmaniw"s restrictions, I am unable to identify any employment that would be realistically available to this woman as she currently presents. Consequently, based on the information available at this time, I would have to conclude that Ms. Powell is not competitively employable, in any capacity. |
Considering the evidence on record, it is difficult to understand how the Board could state in its conclusion that "[h]aving considered all the evidence, we come to the conclusion supported by the bulk of the medical opinions that with proper exercises and improvement of her general fitness she should be able to return to work similar to what she was doing..." The Board"s decision cannot stand. It is patently unreasonable.
I would allow this application for judicial review, I would set aside the decision of the Board and I would refer the matter back to a differently constituted panel of the Board for a rehearing and a redetermination on the basis of the record as constituted and other evidence that the parties may wish to adduce and that the new panel of the Board will consider relevant.
The whole with costs.
"Alice Desjardins"
J.A.
"I agree
| Gilles Létourneau J.A." |
"I agree
| F. Joseph McDonald J.A." |
__________________
2See Applicant"s Record at 47.
3See Applicant"s Record at 53, 56 and 70.
4See Applicant"s Record at 77.
5See Applicant"s Record at 77.
6See Applicant"s Record at 90.
9(13 August 1999), T-1801-98 (F.C.T.D.).
10[1998] 1 S.C.R. 982 at para. 28.
11Stelco Inc. v. Canada (Canadian International Trade Tribunal), [1995] F.C.J. No. 831, para. 2 (F.C.A.); Canada Pasta Manufacturers" Assn v. Aurora Importing & Distributing Ltd., [1997] F.C.J. No. 115, para. 7 (F.C.A.); Toronto (City) Board of Education v. O.S.S.T.F. District 15, [1997] 1 S.C.R. 487 at para. 34 to 46.
13Applicant"s Record at 45, Respondent"s Record at 135..