BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
and
Heard at Edmonton, Alberta, on March 22, 2006.
Judgment delivered at Edmonton, Alberta, on March 22, 2006.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: SEXTON J.A.
MALONE J.A.
Docket: A-353-04
Citation: 2006 FCA 123
CORAM: SEXTON J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
JOAN ELIZABETH BARTELDS
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Edmonton, Alberta, on March 22, 2006)
EVANS J.A.
[1] This is an application for judicial review by the Minister of Human Resources Development to set aside a decision of the Pension Appeals Board, dated May 12, 2004. Reversing a decision of the Review Tribunal, the Board held that, as of December 31, 1997, Joan Bartelds was suffering from a prolonged and severe physical or mental disability which prevented her from pursuing substantially gainful employment. Accordingly, the Board concluded, she was eligible for disability benefits pursuant to section 42 of the Canada Pension Plan, R.S.C. 1985, c. C-8.
[2] Prior to November 1996 Ms Bartelds had been employed as a property inspector, but had left her employment because weakness in her legs prevented her from doing the walking and other physical activities which her job required. She returned to work for the same employer in November 1997 and quit in November 1998, as a result of increasing weakness in her hips and legs. While she was employed in this period under reduced working conditions, she had a good attendance record and there was no evidence that any special accommodation was made for her. No definitive medical diagnosis was made of Ms Bartelds' apparently neurological condition.
[3] Counsel for the Minister says that the Board's finding that Ms Bartelds was disabled from work was patently unreasonable, and that it erred in law by failing to provide adequate reasons for its decision as required by subsection 83(11) of the Plan. He argues that the Board's brief reasons do not address important items of evidence that would appear to be inconsistent with its conclusion that Ms Bartelds' disability precluded her from employment.
[4] In particular, the Board's reasons do not mention the fact that she was working in the 11 months following the end of her minimum qualifying period in December 1997. In addition, while the Board relied on a report from a Dr Witt, a neurologist, to support its decision, it did not mention two letters by the same doctor, to the effect that Ms Bartelds was capable of desk work, and that he denied having said that she was totally disabled.
[5] We agree with these submissions. Given the above evidence, it is simply impossible to tell from the Board's reasons why it reached the decision that it did. It is well established by the jurisprudence of this Court that, as a matter of procedural fairness, parties are entitled to know on what basis the Board resolved serious conflicts in the evidence: see, for example, Garcia v. Canada (Attorney General), 2001 FCA 200. This is not to say, of course, that the Board must address every piece of evidence that is inconsistent with evidence that it accepts. In this case, however, the omitted evidence was of such importance that the Board erred in law in not discussing it.
[6] For these reasons, the application will be allowed, the Board's decision set aside, and the matter remitted to the Board differently constituted for re-determination in accordance with these reasons.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-353-04
(APPLICATION FOR JUDICIAL REVIEW IN RESPECT OF A DECISION OF THE PENSION APPEALS BOARD MADE ON MAY 12, 2004)
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT and JOAN ELIZABETH BARTELDS
PLACE OF HEARING: EDMONTON, AB
DATE OF HEARING: MARCH 22, 2006
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON, EVANS, MALONE JJ.A.
DELIVERED FROM THE BENCH BY: EVANS, J.A.
APPEARANCES:
| FOR THE APPLICANT
|
|
| FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
DEPUTY ATTORNEY GENERAL OF CANADA Ottawa, Ontario
|
FOR THE APPLICANT
|
| FOR THE RESPONDENT |