BETWEEN:
and
MINISTER OF HUMAN RESOURCE DEVELOPMENT
Heard at Vancouver, British Columbia, on March 7, 2007.
Judgment delivered from the Bench at Vancouver, British Columbia, on March 7, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Docket: A-325-06
Citation: 2007 FCA 102
CORAM: DÉCARY J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
RAYMOND ROSS
Applicant
and
MINISTER OF HUMAN RESOURCE DEVELOPMENT
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on March 7, 2007)
[1] The Applicant seeks Judicial Review of a decision of the Pension Appeals Board (the Board) which concluded that the Applicant was not severely disabled on or before December 31, 1991 and continuously thereafter.
[2] The Applicant argues the Board’s decision must be set aside on two grounds. The first is that the Board’s finding was made without regard to the material before it. The second ground is that the Board failed to give adequate reasons for its decision.
[3] This Court has held that the standard of review of decisions of the Board which determine severe disability is patent unreasonableness.
[4] This Court has further held on a number of occasions that the severity of a disability relates to the applicant’s residual capacity to work.
[5] In the present case, the Board referred to evidence to the effect that although the applicant was unable to undertake heavy work, he was advised by his doctor to seek retraining for work which would not involve physical labour. The Applicant did not follow this advice nor did he look for another job which did not involve physical labour. While there was a medical opinion that the applicant could not work at all, this opinion was given after the minimum qualifying period. There were conflicting opinions given prior to the end of the minimum qualifying period.
[6] For these reasons, we are unable to say that the decision of the board that the Applicant had failed to show that he had a severe and prolonged disability which rendered him incapable of regularly pursuing any substantially gainful occupation was patently unreasonable.
[7] As to the complaint that the reasons of the Board were not adequate, we would say that the Board did refer to some of the medical evidence which indeed supports its finding. In addition, the Board referred to the Applicant’s testimony, in which he admitted that he knew career counsellors were available but he made no attempt to make use of them. The Board is not required to advert specifically to all of the evidence, but only to that which is determinative of the matter to be decided. The Board said that it considered all of the evidence and we see no reason not to accept this. The reasons themselves explain why the Applicant was not successful.
[8] The application for judicial review will be dismissed without costs.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-325-06
STYLE OF CAUSE: RAYMOND ROSS v. MHRD
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 7, 2007
REASONS FOR JUDGMENT BY: DÉCARY J.A.
NOËL J.A.
SEXTON J.A.
DELIVERED FROM THE BENCH: SEXTON J.A.
DATED: March 7, 2007
APPEARANCES:
Tim Dickson FOR THE APPLICANT
Nicole Butcher FOR THE RESPONDENT
SOLICITORS OF RECORD:
|
Farris, Vaughn, Wills & Murphy Barristers and Solicitors Vancouver, B.C. |
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
|