[1] This is an application for judicial review to set aside the decision of the Pension Appeals Board ("Board") (dated December 3, 2003 and reported as CP-21089). The majority of the Board members concluded that Coralie Garrett was not disabled within the meaning of subsection 42(2) of the Canada Pension Plan, R.S.C. 1985, c. c-8 (the Plan).

[2] Subparagraph 42(2)(a)(i) of the Plan requires the person to be "incapable regularly of pursuing any substantially gainful occupation." Isaac J.A. in Villani v. Canada (Attorney General), [2002] 1 F.C. 130, considered these words and concluded at paragraph 38 as follows:

This analysis of subparagraph 42(2)(a)(i) 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 in original]

[3] In the present case, the majority failed to cite the Villani decision or conduct their analysis in accordance with its principles. This is an error of law. In particular, the majority failed to mention evidence that the applicant's mobility problems were aggravated by fatigue and that she would have to alternate sitting and standing; factors which could effectively make her performance of a sedentary office or related job problematic. This is the 'real world' context of the analysis required by Villani.

[4] I would allow the application for judicial review with costs, set aside the decision of the Pension Appeals Board dated December 3, 2003, and remit the matter back to a differently constituted Board for redetermination in accordance with these reasons.

"B. Malone"

J.A.

"I agree

Marshall Rothstein"

"I agree

K. Sharlow"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-74-04

STYLE OF CAUSE: CORALIE GARRETT

Applicant

and

MINISTER OF HUMAN RESOURCES DEVELOPMENT

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: MARCH 1, 2005

REASONS FOR JUDGMENT: MALONE J.A.

CONCURRED IN BY: ROTHSTEIN J.A.

SHARLOW J.A.

DATED: MARCH 3, 2005

APPEARANCES BY:

Carl E. Fleck, Q.C. FOR THE APPLICANT

Adrian Bieniasiewicz FOR THE RESPONDENT

SOLICITORS OF RECORD:

Fleck & Daigneault

Point Edward, Ontario FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

Toronto, Ontario FOR THE RESPONDENT

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