Date: 20010618
Docket: A-218-00
Neutral citation: 2001 FCA 200
CORAM: DESJARDINS J.A.
BETWEEN:
ABEL GARCIA
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia, on Tuesday, May 8, 2001.
JUDGMENT delivered at Ottawa, Ontario, on Monday, June 18, 2001.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: DESJARDINS J.A.
ISAAC J.A.
Date: 20010618
Docket: A-218-00
Neutral Citation: 2001 FCA 200
CORAM: DESJARDINS, J.A.
ISAAC, J.A.
MALONE, J.A.
BETWEEN:
ABEL GARCIA
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
MALONE J.A.
This is an application for judicial review of a decision of the Pension Appeals Board (the "Board") dated February 29, 2000, holding that the applicant was not disabled within the meaning of subsection 42(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the "Plan").
The applicant attacks the Board's decision on various grounds including a denial of natural justice, procedural fairness, acting without jurisdiction, as well as an error of law. For convenience I will deal with these issues in sequence.
The Board did not provide a record of its proceedings; the statutory right to such a hearing record being eliminated with the repeal of subsection 83(12) of the Plan in 1991. This, says the applicant, is a denial of natural justice as it has the effect of permitting the Board to immunize itself from meaningful judicial review. Citing the Supreme Court of Canada in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, it is urged that a Board transcript is required as its absence prevents this Court from determining whether the applicant has established any grounds for review.
However, a closer reading of the C.U.P.E., Local 301 decision indicates that in the absence of a statutory right to a recording, a reviewing court must determine whether the record provided allows it to properly dispose of the application for appeal or review. In particular, the Supreme Court stated that where affidavits are offered to establish facts underlying the issues on review, the opposing party must establish some basis on which such affidavits can be rejected or ignored.
In the case before the Court, the respondent offered the affidavit of Kathia Bustros, the Minister's counsel at the hearing. The applicant never sought to cross-examine Ms. Bustros, whose affidavit described the conduct of the hearing. Nor did the applicant provide in his own affidavit any description of any evidence that was rejected or ignored by the Board. In the circumstances, I conclude that the affidavit evidence in conjunction with the application for judicial review provides an adequate record for this Court to review factual findings in order to determine whether a ground of review is well-founded.
The applicant then suggests that the Board failed to observe a principle of procedural fairness when it neglected to adequately explain to the applicant certain evidentiary rulings that were made during the course of his testimony. This was particularly so given the fact that the applicant was self- represented and was handicapped by his lack of education and command of the English language.
However, the applicant has failed to indicate what evidence, if any, was excluded by the Board during the hearing and whether any such excluded evidence was in fact relevant. The applicant states that motions were heard, directions were given, and rulings were made; however, at no time are these motions, directions and rulings ever described. Without such description, this Court is unable to review this ground of appeal. In any event, the affidavit evidence of Ms. Bustros demonstrates that the Board was careful to explain its actions and the procedure of the hearing to the applicant. In my analysis there was no failure by the Board in observing the principle of procedural fairness.
The applicant further argues that the Pension Appeals Board acted without jurisdiction by conducting the proceeding in English without offering him an interpreter. He invokes MacDonald v. City of Montreal, [1986] 1 S.C.R. 460 for the proposition that a defendant's right to a fair hearing includes the right of a defendant to understand what is going on in court and to be understood. Aspects of this right are separately entrenched in sections 7 and 14 of the Canadian Charter of Rights and Freedoms. The applicant submits that the relevant enquiry with respect to the section 14 right to the assistance of an interpreter was established in R v. Tran, [1994] 2 S.C.R. 951 as being whether there is a possibility that the individual may not have understood part of the proceeding due to his or her difficulty with the language of the proceedings.
In his affidavit, the applicant deposed that the Board never informed him of his right to an interpreter. Nor did the Board state in its reasons whether he had waived his rights. He argues that there was never any clear waiver of his right to an interpreter as described in the Tran decision. In the result, the applicant argues that the Board failed in its duty to satisfy itself at the beginning of the proceeding that he was fully conversant in the English language.
In the Tran decision, the Supreme Court was careful to limit its holding to the criminal sphere, noting that it was for future consideration whether different rules should be developed in other situations where section 14 applies, namely civil or administrative proceedings. The Court noted that, as a general rule, courts should appoint an interpreter either where it is apparent that the accused is having difficulty expressing him or herself or understanding the proceedings or where the accused or his counsel asks for an interpreter and the judge is of the opinion that the request is justified. However, the Court was careful to state that courts are not required, as a matter of course, to inform an accused of his or her right to an interpreter or to inquire as to whether an accused is having trouble understanding the proceedings (Ibid. at 242-243).
On the record before the Court, the applicant proceeded in English in each step on the way to the Board hearing without mentioning any language difficulties. The applicant was able to present his case with success before the Review Tribunal and did not ask for the assistance of an interpreter. He never asked for an interpreter at the Board hearing and it is not apparent that he needed assistance. Indeed, nowhere in his affidavit does the applicant complain that he did not understand the proceedings. Accordingly, I find no basis on which to determine that the Board acted without jurisdiction.
In his final submission, the applicant raises what he alleges is an error of law. This error is said to have arisen when the Board implicitly imposed, as a precondition to the award of a disability pension, a duty to submit to all possible cures, and avenues of medical intervention. The applicant points to the Plan where there is no explicit duty on an applicant to undertake all manner of medical treatment. He also cites the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 (at paragraph 60) for the proposition that every Canadian has the right to determine his or her own course of health care.
In its decision, the Board quoted from a report by Dr. J.R. Havens, a general practitioner. Dr. Havens had assessed the applicant's condition for the British Columbia Worker's Compensation Board ("BCWCB"). The Board noted that Dr. Havens, upon whose testimony the Review Tribunal had relied, recommended that efforts to retrain the applicant should be undertaken if he lost use of his right hand.
The Board then emphasized a passage from a report by Dr. J.G. Munro, a Disability Awards Medical Adviser for the BCWCB, in which Dr. Munro speculated that the applicant's reluctance to actively rehabilitate his injured thumb, probably due to pain, had largely contributed to its redundancy. The Board also cited a subsequent report of Dr. Havens in which Dr. Havens felt a reluctance on the applicant's part to proceed aggressively with physiotherapy and other measures that physicians and therapists had recommended to get him back in active life.
The Board proceeded to cite the testimony of Dr. Wayne Howell, who was called as a witness on behalf of the Minister to review these medical reports. Dr. Howell agreed with Dr. Havens' observation that the applicant was significantly disabled because of his hand and shoulder problems, but there were other functions the applicant could perform. The Board noted that the BCWCB had awarded compensation to the applicant based on his partial disability. The Board then concluded that the applicant's disability, though prolonged, was only limited and therefore not severe within the meaning of the Plan. The Board reversed the Review Tribunal's decision and denied the applicant a disability pension.
It is impossible to determine from the Board's reasons the extent to which it may have imposed upon the applicant a duty to pursue any and all possible treatment or therapy. Without ruling on this point and without determining whether and to what extent such a duty is applicable to the applicant in the circumstances, I am of the view that the decision of the Board contains another procedural defect. It merely quotes from the three medical reports of Dr. Havens and that of Dr. Munro. It then cites the brief oral opinion given by Dr. Howell. It goes on to note the finding of the BCWCB that its compensation was based on partial disability. It does not accept, reject, or analyse any of this evidence, but simply concludes that in its opinion the applicant does not meet the strict requirements of the Act. No explanation for the conclusion is expressly stated.
The Court's concern regarding the apparent inadequacy of the Board's reasons was communicated to counsel for the parties at the hearing of the application. Counsel for the respondent requested the opportunity to prepare written submissions to address those concerns. The request was granted, and both parties filed submissions on the issue.
Having reviewed these submissions, I am of the view that the Board's failure to provide a full written explanation for its decision breaches the Board's duty of procedural fairness owed to the applicant and constitutes a reviewable error (see Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817). In the present circumstances, the Board's reasoning leading to the final disposition must be fully explained because of its importance to the applicant. As was observed by L'Heureux-Dubé in the Baker decision (at paragraph 43):
It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
With respect, I cannot agree with the respondent's submission that the defects in the Board's decision are not fatal because, according to Baker (at paragraph 40), any reasons requirement under the duty of fairness leaves sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient. The Board is made up of judges and former judges and operates in a court-like fashion according to its own rules of procedure (Rules of Procedure of the Pension Appeals Board, C.R.C. 1978, c. 390, as amended). Furthermore, subsection 83(11) of the Plan expressly imposes upon the Board the obligation to notify in writing the parties to the appeal of its decision and of its reasons therefor. I am accordingly of the opinion that the failure of the Board in giving reasons for its conclusion constitutes, in the circumstances of this case, a reviewable error that warrants the intervention of this Court.
I would allow the application for judicial review with costs awarded to the applicant, set aside the decision of the Pension Appeals Board dated February 29, 2000, and refer the matter back to the Board for a redetermination by a different panel on the basis of the record as constituted and other evidence of a relevant nature that the parties may wish to adduce.
(B. Malone)
J.A.
I agree
Alice Desjardins
J.A.
I agree
Julius Isaac
J.A.