Vancouver, British Columbia, May 31, 2007
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] A designated member of the Pension Appeals Board (Board) rejected the Applicant’s application for leave to appeal the decision of the Review Tribunal. The Review Tribunal had denied the Applicant’s appeal for disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8.
[2] The 43-year-old Applicant contributed to the Canada Pension Plan (CPP) from 1983 to 2003. In addition to various jobs he held as a young man, between 1991 and November 2001 he worked as a labourer for the City of Vancouver. The Applicant could no longer work for the City as a result of neck, shoulder and back pain. He has suffered numerous work-related injuries and has undergone three surgeries. The Applicant continues to have chronic pain and numbness, limited mobility and concentration problems.
[3] On November 15, 2002, the Applicant applied for CPP disability benefits. On February 17, 2003, the Minister of Social Development denied his application. A subsequent request for reconsideration was denied on October 1, 2003.
[4] The Applicant appealed the Minister’s decision to the Tribunal. On December 23, 2004, the Tribunal dismissed the appeal. The Applicant applied to the Board for leave to appeal the Tribunal’s decision listing numerous grounds of review. On March 1, 2005, the Board dismissed the Applicant’s request for leave. The Board’s decision reads:
The Review Tribunal considered the evidence.
The Tribunal included members with legal and health sciences background. After reviewing the numerous reports the Tribunal concluded that the Applicant’s condition did not meet the legislated test for severe disability in that other avenues of treatment and employment were open to him but not pursued.
There was no demonstrated error on the part of the Tribunal or new evidence put forward that may likely lead to a different conclusion on appeal.
I am not persuaded therefore that leave should be granted.
Leave to appeal is refused.
[5] The first issue is whether the Board applied the proper test in reaching its decision to refuse the application for leave to appeal. As this is a question of law, both parties submit and I agree that the standard of correctness is the appropriate standard of review (Callihoo v. Canada (Attorney General), [2000] F.C.J. No. 612 (F.C.T.D.) (QL).
[6] In Martin v. Canada (Minister of Human Resources Development), [1999] F.C.J. No. 1972 (F.C.A.), Justice Malone for the Federal Court of Appeal articulated the “arguable case” test which the Board must apply in deciding an application for leave to appeal. He stated at paragraph 5:
Justice Reed [in Kerth v. Canada (Minister of Human Resources Development), [1999] F.C.J. No. 1252] found that a leave to appeal proceeding is a preliminary step to a hearing on the merits. As such “it is a first and lower hurdle for the applicant to meet than that that must be met on the hearing of the appeal on the merits” … [S]ome arguable ground upon which the proposed appeal might succeed is needed in order for leave to be granted.
[7] In Callihoo at paragraph 15, Justice McKay observed that two issues are involved when reviewing a Board’s decision on an application for leave to appeal:
1. whether the decision maker has applied the right test – that is, whether the application raises an arguable case without otherwise assessing the merits of the application, and
2. whether the decision maker has erred in law or in appreciation of the facts in determining whether an arguable case is raised. If new evidence is adduced with the application, if the application raises an issue of law or of relevant significant facts not appropriately considered by the Review Tribunal in its decision, an arguable issue is raised for consideration and warrants the grant of leave.
[8] In the present case, the Board found “[t]here was no demonstrated error on the part of the Tribunal or new evidence put forward that may likely lead to a different conclusion on appeal.”
[9] In Grenier v. Canada (Minister of Human Resources Development), [2001] F.C.J. No. 1447 (F.C.), Justice O’Keefe had occasion to consider language very similar to the language used by the Board in this case. He stated at paragraph 14:
It is clear from the jurisprudence of this Court that it is not my role to assess the merits of the application. The Member Designate stated that in order for him to grant leave to appeal, it “requires a demonstrated error on the part of the Review Tribunal or additional evidence that may lead to a different conclusion on appeal ….” According to the Martin, supra decision and the Callihoo, supra decision, this is not the test to be applied. The test is whether or not the application raises an arguable issue. The Member Designate made an error by applying an incorrect test when determining whether or not to grant leave.
[10] I agree with Justice O’Keefe. The “demonstrated error” test used by the Board in this case is a more onerous test to meet than the “arguable case” test established in Martin. Accordingly, I conclude that the Board did not apply the correct test in reaching its decision.
[11] With regard to the second issue referred to by Justice MacKay in Callihoo, the Applicant lists a host of issues that in his view meet the threshold of an arguable case. While it is not the function of this Court to assess the merits of these issues, in my opinion, the application for leave to appeal does raise, at least, the following arguable issues: that in determining whether the Applicant’s disability is severe as required by section 42(2)(a)(i) of the Plan the Tribunal failed to apply the “real world” test found in Villani v. Canada (Attorney General) 2001 FCA 248; the Tribunal applied the incorrect test “capable of working at light duties” instead of the statutory test of “incapable of regularly pursuing any substantially gainful occupation”; and in stating that the Applicant had not exhausted “all reasonable forms of investigation and treatment”, the Tribunal imposed a requirement not found in the Plan.
[12] For these reasons, the application for judicial review is allowed with costs to the Applicant.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the decision of the designated member of the Board dated March 1, 2005, is set aside.
2. The matter is remitted for re-determination by a different member of the Board.
3. The Applicant is awarded costs to be assessed at the mid-range of Column III of Tariff B.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-589-05
STYLE OF CAUSE: JOHN FALBO v. AGC
PLACE OF HEARING: Vancouver, BC
AND JUDGMENT: HANSEN J.
APPEARANCES:
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Mr. Craig Paterson
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Ms. Tania Nolet
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SOLICITORS OF RECORD:
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Paterson & Associates Vancouver, BC
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John H. Sims, Q.C. Deputy Attorney General of Canada
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