BETWEEN:
and
Heard at Toronto, Ontario, on October 19, 2006.
Judgment delivered at Ottawa, Ontario, on November 1, 2006.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: LINDEN J.A.
NADON J.A.
Docket: A-631-05
Citation: 2006 FCA 354
CORAM: LINDEN J.A.
NADON J.A.
MALONE J.A.
BETWEEN:
Attorney General of Canada
Applicant
and
Lorena Fink
Respondent
REASONS FOR JUDGMENT
I. Introduction
[1] This application for judicial review concerns a decision of the Pension Appeals Board (Board) dated November 8, 2005, which allowed Ms. Fink’s appeal and awarded her disability benefits under the Canada Pension Plan, R.S.C. 1985, c.C-8 (CPP).
[2] While the term ‘disability’ has different meanings under different insurance and pension plans, under the CPP, the measure is employability. To support a claim, disability must normally be demonstrated on more than the claimant’s evidence that he or she suffers pain or discomfort that prevents employment. Once evidence of employability is established, evidence that the claimant made efforts to obtain and maintain employment but failed by reason of a serious health condition is usually also required.
II. Analysis
[3] At the hearing, the Board was provided with an opportunity to review the documents forming part of the record and to listen to the oral evidence of Ms. Fink and of Dr. MacDonald, an expert witness called by the Applicant.
[4] As to the employability issue, Dr. MacDonald testified that despite a history of surgery at a young age to deal with a spinal problem, there was no indication that her spontaneous recurrence of pain in January 1996 involved further neurological compression. While medical scans confirmed post-surgical scarring, a diagnostic nerve block of the lumbar spine did not alleviate pain and hence, did not support a diagnosis of neurological pain. An MRI and clinical exam caused Dr. Taylor, a specialist in orthopaedic surgery, to conclude that the diagnosis was of mechanical low back pain arising from facet joint pathology. In her testimony, Dr. MacDonald had specifically referred to the March 1998 report of Dr. Steciuk, the family physician, and the June 2000 report of Dr. Taylor. Both the family physician and orthopaedic surgeon suggested work restrictions. This significant testimony is not referred to in the Board’s decision.
[5] During her testimony, Ms. Fink testified that her medical condition prevented her from engaging in any employment for which she was reasonably qualified. She further testified that since stopping work in 1996, she had made no attempts to upgrade her education, retrain or return to work suitable to her limitations. Ms. Fink had a grade 11 education, training as a health care aide and at that time was only twenty-one years old. This significant evidence is also not mentioned in the Board’s decision.
[6] In its reasons, the Board appears to recite a selective summary of the evidence and then states a conclusion. The Board does not analyse, accept, reject or otherwise explain why it prefers any of the medical or expert opinion evidence over others which it is required to do (see Canada (Minister of Human Resources Development) v. Quesnelle, 2003 FCA 92 at paragraph 8). The Board does not refer to the evidence of Dr. MacDonald suggesting employability. Nor does it explain why it believed that Ms. Fink met the disability test under the CPP, despite evidence from both Dr. Steciuk and Dr. Taylor, which suggested that she had maintained some functional capacity and employability.
[7] In my analysis, the Board committed an error warranting the intervention of this Court because it found without any analysis that Ms. Fink had satisfied the disability test under paragraph 42(2)(a) of the CPP. This is patently unreasonable (see Spears v. Canada, 2004 FCA 193). It is not sufficient for the Board to merely state that it took into account the totality of the evidence and then to conclude that Ms. Fink had met her burden of proof (see Gould v. Canada (Attorney General), 2004 FCA 246 at paragraph 5).
[8] One further issue bears comment. While it was argued that the reasons were inadequate, I do not accept that submission in that the current reasons, although flawed, do permit appellate review (see R. v. Sheppard, [2002] 1 S.C.R. 869).
[9] This application for judicial review should be allowed, the decision of the Board dated November 8, 2005 should be set aside and the matter should be remitted to a differently constituted Board for rehearing in accordance with these reasons.
“I agree
A.M. Linden J.A.”
“I agree
M. Nadon J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-631-05
APPEAL FROM THE DECISION OF THE PENSION APPEAL BOARD DATED NOVEMBER 8,2005,
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
v.
LORENA FINK
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 19, 2006
REASONS FOR JUDGMENT BY: Malone J.A.
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Ottawa, Ontario |
FOR THE APPLICANT
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Barrister & Solicitor, Clinton, Ontario |
FOR THE RESPONDENT
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