Docket: A-387-05
Citation: 2007 FCA 65
BETWEEN:
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
(formerly Minister of Human Resources Development)
Respondent
Heard at Halifax, Nova Scotia, on February 13, 2007.
Judgment delivered at Halifax, Nova Scotia, on February 15, 2007.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY:
CONCURRING REASONS BY:
DISSENTING REASONS BY:
Docket: A-387-05
Citation: 2007 FCA 65
CORAM: RICHARD C.J.
SHARLOW J.A.
RYER J.A.
BETWEEN:
JOHN D. THORNTON
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
(formerly Minister of Human Resources Development)
Respondent
REASONS FOR JUDGMENT
[1] The applicant Mr. John Thornton is claiming a disability pension under the Canada Pension Plan, R.S.C. 1985, c. C-8. He is eligible for a disability pension if, as of December 31, 2000, he had a mental or physical disability that was “severe and prolonged” within the definition in subsection 42(2)(a) of the Canada Pension Plan.
[2] Mr. Thornton’s claim was denied by the Minister and the Review Tribunal. He was granted leave to appeal to the Pension Appeals Board (the Board). His appeal failed because the Board concluded that at the relevant time Mr. Thornton had a disability that was “prolonged”, but not “severe”. A person has a disability that is “severe” within the meaning of subsection 42(2)(a) only if it renders the person incapable regularly of pursuing any substantially gainful employment.
[3] It has been established that, in a case involving the determination of disability under the Canada Pension Plan, the standard of review of a decision of the Board is correctness on questions of law, and “patent unreasonableness” on the determination of the existence of a disability that meets the statutory test, which is a question of mixed fact and law. A decision is patently unreasonable if it is clearly irrational or evidently not in accordance with reason, or is so flawed that no amount of curial deference can justify letting it stand: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 52.
Whether the Board erred in law
[4] It is argued for Mr. Thornton that paragraph 47 of the Board decision discloses an error of law because it contains an inaccurate paraphrase of the statutory definition. In my view, the reasons in their entirety establish that the Board appreciated the correct legal definition, which is quoted at paragraph 39 of their reasons. Paragraph 47 reflects only part of the statutory definition because, in that part of the analysis, the Board was considering only whether the evidence established that, at the relevant time, Mr. Thornton was capable of a sedentary occupation.
[5] It is also argued for Mr. Thornton that the Board simply accepted the findings of the Review Tribunal and did not consider the matter afresh, as it is required to do. There is no merit in this argument. It is abundantly clear from the Board’s reasons that it engaged in its own analysis of the evidence. It is not an error for the Board to quote from the reasons of the Review Tribunal, or to state that it agrees with some or all of those reasons.
Whether the Board disregarded evidence
[6] It is argued for Mr. Thornton that the Board failed to engage in a meaningful analysis of certain evidence favouring Mr. Thornton’s claim, indicating that it either disregarded relevant evidence or failed to provide an adequate explanation of why it did not find that evidence to be determinative in Mr. Thornton’s favour.
[7] According to the jurisprudence of this Court, the Board’s obligation is to reach its conclusion on the basis of all of the evidence, and to provide reasons that are sufficient to permit meaningful judicial review. That does not imply that the Board is necessarily obliged to address every piece of evidence that might be inconsistent with the evidence it accepts: see Palumbo v. Canada (Attorney General), 2005 FCA 117, Canada (Minister of Human Resources Developments) v. Bartelds, 2006 FCA 123, McKerrow v. Canada (Minister of Human Resource Development), 2002 FCA 433, Kellar v. Canada (Minister of Human Resources Development), 2002 FCA 204.
[8] Counsel for Mr. Thornton referred in particular to two documents favouring Mr. Thornton’s claim that he argues ought to have been specifically addressed by the Board. One was a report dated September 30, 2002 from Mr. Tapper, a vocational counsellor, who stated that that as of that date a “positive vocational outcome is unlikely” without a significant improvement in Mr. Thornton’s pain and depression. However, that same letter outlines activities that Mr. Thornton had undertaken that would have been consistent with the Board’s conclusion that Mr. Thornton was not severely disabled as of December 31, 2000. The other document is the extensive June 2005 report of Dr. King, a neurologist. That report is capable of establishing Mr. Thornton’s medical condition as of that date, but it does not purport to address his condition as of December 31, 2000. Given the issues before the Board, neither of those documents is of sufficient probative value to require the Board to explain specifically why they were not found to be determinative in Mr. Thornton’s favour.
[9] Having carefully reviewed all of the evidence in the record and the Board’s reasons, it seems to me that the Board reached a conclusion that was reasonably open to them, and provided a sufficient explanation for that conclusion.
Conclusion
[10] For these reasons, I would dismiss this application with costs.
FEDERAL COURT OF APPEAL
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-387-05
STYLE OF CAUSE: JOHN D. THORNTON
- and -
MINISTER OF SOCIAL DEVELOPMENT (formerly Minister of Human Resources Development)
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: FEBRUARY 13, 2007
REASONS FOR JUDGMENT: Sharlow J.A.
APPEARANCES:
|
Barry J. Mason
|
|
|
Allan Matte
|
SOLICITORS OF RECORD:
|
Pressé Mason Bedford, Nova Scotia |
|
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John H. Sims, Q.C. Deputy Attorney General of Canada
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