Date: 20011120
Docket: A-501-00
Neutral citation: 2001 FCA 351
CORAM: STRAYER J.A.
BETWEEN:
DENNIS J. HOLLOWAY
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Heard at Winnipeg, Manitoba, on November 20, 2001
Delivered orally from the Bench at Winnipeg, Manitoba, on November 20, 2001
REASONS FOR JUDGMENT BY: LINDEN J.A.
Date: 20011120
Docket: A-501-00
Neutral citation: 2001 FCA 351
CORAM: STRAYER J.A.
BETWEEN:
DENNIS J. HOLLOWAY
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
(Delivered orally from the Bench at Winnipeg, Manitoba,
on November 20, 2001)
[1] This application for judicial review of a determination of the Pension Appeals Board dated December 14, 1999 was decided before this Court's decision in Villani v. Canada [2001] F.C.J. No. 1217, which clarified the definition of disability contained in s. 42(2) of the Canada Pension Plan. The Board, therefore, did not have the benefit of the reasons in Villani and, hence, did not apply the proper test. The application for judicial review must be allowed on that basis alone.
[2] Consequently, there is no need to consider the natural justice issue concerning the lack of cross-examination of Dr. Hoy.
[3] The matter will be remitted for a new hearing by a differently constituted panel in order to assess the applicant's disability in accordance with the test in Villani, as of December 31, 1997, the last date on which he could qualify for benefits. The new panel may rely on evidence already before the Board, and may also permit any new oral or documentary evidence which it feels would be of assistance in making its determination. Costs to the Applicant.
"A.M. Linden"
J.A.
Winnipeg, Manitoba
November 20, 2001
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-501-00
STYLE OF CAUSE: Dennis J. Holloway v. Minister of Human Resources Development
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: November 20, 2001
REASONS FOR JUDGMENT : LINDEN J.A.
DATED: November 20, 2001
APPEARANCES:
Joe Aiello FOR THE APPLICANT
Voula Karlaftis
Prakash Diar FOR THE RESPONDENT
Department of Justice
Human Resources Development Canada
333 River Road, Tower A
Vanier, Ontario K1A 0L1
SOLICITORS OF RECORD:
Phillips, Aiello FOR THE APPLICANT
Barristers & Solicitors
200 - 668 Corydon Avenue
Winnipeg, Manitoba R3M 0X7
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT