Date: 20050406
Docket: A-335-04
Citation: 2005 FCA 117
CORAM: DÉCARY J.A.
BETWEEN:
CARMINA PALUMBO
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario on April 5th, 2005.
Judgment delivered from the Bench at Toronto, Ontario on April 5th, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20050406
Docket: A-335-04
Citation: 2005 FCA 117
CORAM: DÉCARY J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
CARMINA PALUMBO
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on April 5th, 2005)
[1] This an application for judicial review by Carmina Palumbo requesting that the Court set aside a decision of the Pension Appeals Board, dated May 7, 2004. The Board dismissed an appeal by Ms Palumbo from a decision of the Review Tribunal, upholding the refusal of the Minister of Human Resources Development Canada to award her a long term disability pension, on the ground that she had not established that, by December 31, 2001, at the latest, she 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.
[2] Ms Palumbo had worked for 11 years in an accounting firm. She said that during, and before, this employment, she had experienced various physical symptoms, including pain, stiffness, fatigue, nausea, and fevers. She said that they became progressively worse and eventually caused her to take sick leave in 1999. Since then, she has not been employed, although she has done some book keeping work from home. Ms Palumbo last met the contributory requirements of the Plan on December 31, 2001.
[3] Ms Palumbo, who represented herself very ably in both her written and oral submissions, advanced four arguments in support of her application.
[4] First, she says that the Board erred in law because it provided no explanation in its reasons for finding that she did not strike it as a credible witness in describing the nature and scope of her physical complaints.
[5] We disagree. It is clear from the paragraphs in the Board's reasons following its non-credibility finding that the Board was unable to accept her evidence because it was not supported by three medical specialists who had examined her. Their tests and examinations revealed no abnormalities that would disable her from pursuing employment.
[6] Second, Ms Palumbo argues that the Board erred in law by ignoring in its reasons reports from a physiotherapist and a chiropractor that were favourable to her claim.
[7] We do not agree. In order to discharge its duty to give adequate reasons for its decision, the Board was not required to refer to every one of the considerable number of reports before it. In our view, the reports of the physiotherapist and chiropractor on which Ms Palumbo relies were not of such probative significance that the Board erred in law by omitting a discussion of them from its reasons.
[8] Third, Ms Palumbo submits that the Board erred in law by requiring a "definite diagnosis" before finding a medical condition to be severe and prolonged, a requirement, she says, that the Plan does not contain.
[9] We disagree. Ms Palumbo had the burden of proving that, no later than December 31, 2001, she was suffering from a medical condition, which, for the foreseeable future, disabled her from pursuing any substantially gainful occupation. The Board simply decided that the reports and other evidence on which Ms Palumbo relied did not discharge her burden of proof. The Board also noted that, since 1999, Ms Palumbo had not sought other employment which, despite her medical problems, she might have been able to handle.
[10] Fourth, Ms Palumbo criticised the Board for attaching too much weight to some reports and not enough to others.
[11] It is not the function of the Court on an application for judicial review to re-weigh the evidence. The Board stated clearly why it preferred some reports to others. Indeed, the Board's analysis of the evidence in this case was carful and nuanced. We are not persuaded that the Board's conclusion on the basis of the evidence before it was patently unreasonable for the purpose of paragraph 18.1(4)(1)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7.
[12] For these reasons, the application for judicial review will be dismissed. Counsel for the Minister did not seek costs and none will be awarded.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-335-04
STYLE OF CAUSE: CARMINA PALUMBO
Appellant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 5, 2005
REASONS FOR JUDGMENT
OF THE COURT BY: DECARY J.A.
APPEARANCES BY:
Carmina Palumbo FOR THE APPELLANT
Arielle Elbaz FOR THE RESPONDENT
SOLICITORS OF RECORD:
Carmina Palumbo
Hamilton, Ontario FOR THE APPELLANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT