Date: 20030305
Docket: A-171-02
Neutral citation: 2003 FCA 117
SEXTON J.A.
PELLETIER J.A.
BETWEEN:
JOSEPH INCLIMA
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, Tuesday, March 4, 2003.
Judgment delivered from the Bench at Toronto, Ontario,
on Tuesday, March 4, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A.
Date: 20030305
Docket: A-171-02
Neutral citation: 2003 FCA 117
SEXTON J.A.
PELLETIER J.A.
BETWEEN:
JOSEPH INCLIMA
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, March 4, 2003.)
[1] This is an application for judicial review of a decision of the Pension Appeal Board. The issue is whether the applicant is severely disabled within the meaning of the Canada Pension Plan R.S.C. 1985 c. C-8. The Review Tribunal found that he was not and, on appeal, the Pension Appeal Board came to the same conclusion. The applicant seeks to have the Pension Appeal Board's decision set aside.
[2] Subsection 42(2) of Canada Pension Plan, supra, says that a person is severely disabled if that person " is incapable regularly of pursuing any substantially gainful occupation". In Villani v Canada [2002] 1 F.C. 130 at paragraph 38, this court indicated that severe disability rendered an applicant incapable of pursuing with consistent frequency any truly remunerative employment.
[3] This was put into context in paragraph 50 of the same decision where the following appears:
This restatement of the approach to the definition of disability does not mean that everyone with a health problem who has some difficulty finding and keeping a job is entitled to a disability pension. Claimants still must be able to demonstrate that they suffer from a "serious and prolonged disability" that renders them "incapable regularly of pursuing any substantially gainful occupation". Medical evidence will still be needed as will evidence of employment efforts and possibilities. (emphasis added)
Consequently, an applicant who seeks to bring himself within the definition of severe disability must not only show that he (or she) has a serious health problem but where, as here, there is evidence of work capacity, must also show that efforts at obtaining and maintaining employment have been unsuccessful by reason of that health condition.
[4] In this case, the Pension Appeal Board reviewed a mass of medical evidence and
concluded that even though it showed that the applicant suffered from fibromyalgia and chronic pain disorder, he retained the capacity to work at light to moderate levels. The medical evidence, as is usually the case, was not all to the same effect. It was for the Board to assess that evidence and we find that its conclusion was not unreasonable.
[5] The Board also noted the applicant's failure to attempt to find light duty employment and
his failure to take advantage of retraining opportunities.
[6] Taking these elements together, we find that the Pension Appeal Board's application of
the statutory test was not unreasonable . Consequently the application for judicial review must be dismissed.
"J. D. Denis Pelletier"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-171-02
STYLE OF CAUSE: JOSEPH INCLIMA
Applicant
-and-
ATTORNEY GENERAL OF CANADA
Respondent
DATE OF HEARING: MARCH 4, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: PELLETIER J.A.
DATED: WEDNESDAY, MARCH 5, 2003
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON MARCH 4, 2003.
APPEARANCES BY:
Ms. Roseanne Trivieri For the Applicant
Mr. Michel Mathieu For the Respondent
SOLICITORS OF RECORD:
Ms. Roseanne Trivieri
Chown, Cairns
Barristers & Solicitors St. Catherines, Ontario For the Applicant
Mr. Morris Rosenberg
Deputy Attorney General of Canada For the Respondent