Date: 20030507
Docket: A-488-02
Citation: 2003 FCA 213
CORAM: LINDEN J.A.
BETWEEN:
MARIA OLIVEIRA
Applicant
- and -
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Heard at Toronto, Ontario, on May 7, 2003.
Judgment delivered from the Bench at Toronto, Ontario,
on May 7, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A.
Date: 20030507
Docket: A-488-02
Citation: 2003 FCA 213
CORAM: LINDEN J.A.
BETWEEN:
MARIA OLIVEIRA
Applicant
- and -
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario,
on May 7, 2003)
[1] Pursuant to paragraph 18.1 (4)(d) of the Federal Court Act, this Court may allow an application for judicial review where the Pension Appeals Board (Board) based its decision without regard to all the material before it.
[2] The decision of the Board makes no mention of the fact that Dr. David Bell, a rheumatology specialist, testified at the hearing. While the Board was not bound to accept his evidence, Dr. Bell did specifically comment that, in his opinion, by November of 1997, that Maria Oliveira's condition namely, scleroderma and musculoskeletal pain had progressed to a point that she could no longer be gainfully employed and that her condition was permanent. The Board was required to consider that evidence. We infer that this evidence was ignored, because the Board stated that the only relevant evidence was that of Dr. Dukelow, the family physician. That is simply not so. (see Canada (Ministry of Human Resources Development v. Doyle [2002] F.C.A. 280)
[3] We acknowledge that the Board need not make express reference in its reasons to all the oral and documentary evidence presented. However, here, it is apparent on the face of the reasons that it actually ignored this oral evidence. (see National Corn Growers Assn. v. Canada [1990] 2 S.C.R. 1324 at page 1370).
[4] We would also note that the decision of this Court in Villani v. Canada (Attorney General) [2001] F.C.A. 248 dealing with the legal test of the severity of a disability under subparagraph 42(2) (a) (i) of the Plan was released before the decision of the Board now under review. The Villani decision is relevant to this application.
[5] The application for judicial review will be allowed and the decision of the Pensions Appeal Board set aside. The matter will be remitted to a differently constituted panel for rehearing in accordance with these reasons.
[6] Costs will be set at $3000.00 inclusive of disbursements and G.S.T..
"B. Malone"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: A-488-02
STYLE OF CAUSE: MARIA OLIVEIRA
Applicant
- and -
THE MINISTER OF HUMAN RESOURCES
DEVELOPMENT
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MAY 7, 2003
REASONS FOR JUDGMENT
OF THE COURT BY: MALONE J.A.
DATED: WEDNESDAY, MAY 8, 2003
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON MAY 7, 2003.
APPEARANCES BY: Paul Hosack
For the Appellant
Florence Clancy
Shawna Noseworthy
For the Respondent
SOLICITORS OF RECORD: Cline, Backus, Nightingale & McArthur LLP
Barristers & Solicitors
Simcoe, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent