BETWEEN:
Applicant
and
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Heard at Calgary, Alberta, on November 15, 2005.
Judgment delivered at Calgary, Alberta, on November 16, 2005.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: LINDEN J.A.
ROTHSTEIN J.A.
Docket: A-657-04
Citation: 2005 FCA 387
CORAM: LINDENJ.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
SHAFIK DOSSA
Applicant
and
PENSION APPEALS BOARD
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondents
REASONS FOR JUDGMENT
[1] This is an application for judicial review by Shafik Dossa requesting that the Court set aside a decision of the Pension Appeals Board (the Board) dated October 28, 2004. The Board dismissed an appeal by Mr. Dossa from a decision of the Review Tribunal, upholding the refusal of the Minister of Human Resources Development (Minister) to award him a long term disability pension. The ground for refusal was that he had not established that on or before December 31, 1990, he was suffering from a medical condition that was severe and prolonged within the meaning of subsection 42(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the Plan).
[2] The issues raised by the applicant centre on the fairness of the Board's procedure, its acceptance of certain evidence and its rejection of other evidence and documents referred to by Mr. Dossa. In particular, the errors are said to be as follows:
a) preferring the evidence of the Minister's expert witness Dr. Baribeau over the evidence of Dr. Bhullar, who is Mr. Dossa's family physician. Dr. Baribeau had never met or examined the applicant;
b) admitting hearsay evidence from Dr. Baribeau;
c) ignoring favourable medical reports from Dr. Bergen, Dr. Miller, Dr. Fanel and the medical findings of the Victoria Pain Clinic;
d) failing to conduct its own investigation and instead relying on experts who had used reports previously prepared for a worker's compensation claim;
e) placing undue influence on Mr. Dossa's personal credibility;
f) refusing Mr. Dossa an opportunity to provide further direct and rebuttal evidence on his current condition.
[3] The standard of review to be applied by this Court on an application for judicial review of a Board decision is correctness for questions of law. On matters of fact, the standard of review is patent unreasonableness (see Canada(Minister of Human Resources Development) v. Anghiloni, [2003] F.C.J. No. 473 (C.A.)). The standard of review for findings of disability by the Pension Appeal Board is patently unreasonable (see Spears v. Canada (Attorney General), [2004] F.C.J. No. 854 at paragraph 10 (C.A) (QL); Inclima v. Canada(Attorney General), [2003] F.C.J. No. 378 at paragraph 4 (C.A.) (Q.L.)).
[4] In my analysis there are no legal or procedural errors that warrant the intervention of this Court. The Board is not required or expected to refer to every report. Furthermore, it is entitled to prefer some evidence over other evidence, as long as that evidence is not of such probative significance that doing so would amount to a failure to discharge its elementary duty to engage in a meaningful analysis of the evidence (see Palumbo v. Canada (Attorney General), [2005] F.C.J. No. 557 at paragraphs 4-5 (C.A.) (QL)). It is not the function of this Court on appeal to re-weigh the evidence and retry the case.
[5] As for the complaint concerning a lack of procedural fairness, there is no specific indication of the evidence that the applicant was intending to adduce that would have assisted him. Nor is there any evidence in his affidavit of specific facts concerning the so called 'closed door conference' at the Workmen's Compensation Board and why it was improper for the Board to use it. Further, there is no bar to the Board relying on hearsay evidence as long as it is not unfairly used.
[6] Mr. Dossa had the burden of proving that no later than December 31, 1990, he was suffering from a medical condition, which disabled him from pursuing any substantial gainful employment. The Board simply decided that the reports and other evidence on which Mr. Dossa relied did not discharge his burden of proof. The Board also noted that the applicant failed to attempt light duty employment and failed to take advantage of retraining opportunities. Taken together, the Board was not satisfied that Mr. Dossa suffered from disabilities which in the 'real world' sense rendered him incapable from pursuing any substantially gainful employment (see Villani v. Canada (Attorney General), [2002] 1 F.C. 130 at paragraphs 44-46 (QL)). Based on the extensive record, I am unable to say that this decision is patently unreasonable.
[7] For these reasons, the application for judicial review should be dismissed with costs.
"B. Malone"
J.A.
"I agree.
A. M. Linden J.A."
"I agree.
Marshall Rothstein J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-657-04
STYLE OF CAUSE: SHAFIK DOSSA v.
PENSION APPEALS BOARD
and MINISTER OF HUMAN
RESOURCES DEVELOPMENT
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 15, 2005
REASONS FOR JUDGMENT BY: MALONE J.A..
ROTHSTEIN J.A.
DATED: November 16, 2005
APPEARANCES:
| FOR THE APPLICANT
|
|
| FOR THE RESPONDENTS
|
SOLICITORS OF RECORD:
|
Calgary, Alberta
|
FOR THE APPLICANT
|
|
Deputy AttorneyGeneral of Canada Ottawa Ottawa |
FOR THE RESPONDENTS
|