DONALD BOYLES Appellant And: GOVERNMENT OF NEWFOUNDLAND v. LABRADOR, 2020 NLSC 47

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Boyles v. Newfoundland and Labrador , 2020 NLSC 47 Date : March 17, 2020 Docket : 201601G6108 Between: DONALD BOYLES Appellant And: GOVERNMENT OF NEWFOUNDLAND AND LABRADOR First Respondent And: MINISTER OF FINANCE Second Respondent And: THE PUBLIC SERVICE PENSION PLAN CORPORATION trading as PROVIDENT 10 Third Respondent Before: Justice Deborah J. Paquette On Appeal From: A Decision of Donna Brewer, CPA, CA, Deputy Minister of Finance, Government of Newfoundland and Labrador, pursuant to subsection 16(1) (

b) of the Public Service Pensions Act, 1991 , dated the 25th day of July, 2016. Place of Hearing: St. John’s, Newfoundland and Labrador

Date(

s) of Hearing: January 18, 2019; May 1, 2019; June 7, 2019; and June 20, 2019 Appearances: Philip G. Warren, Q.C. Appearing on behalf of the Appellant Suzanne M. Orsborn Appearing on behalf of the First and Second Respondents Twila E. Reid Appearing on behalf of the Third Respondent Authorities Cited: CASES CONSIDERED: Eastisle Restaurants

(1986) Ltd. v. Prince Edward Island (Minister of Finance) (1990), (PE SCTD), 82 Nfld. & P.E.I.R. 48, 257 A.P.R. 48 (P.E.I. S.C. (T.D.)); Coombs v. Placentia (Town), 2018 NLSC 53; Dawe v.Newfoundland (Minister of Finance) (1996), (NL SC), 147 Nfld. & P.E.I.R. 94, 459 A.P.R. 94 (Nfld. S.C. (T.D.));Nash v. Mutual Life of Canada (1999), (NL SC), 178 Nfld. & P.E.I.R. 26, 544 A.P.R. 26 (Nfld. S.C. (T.D.));Dunsmuir v. New Brunswick, 2008 SCC 9. STATUTES CONSIDERED: Public Service Pensions Act, 1991, S.N.L. 1991, c. 12, as amended by S.N.L. 2014, c. 30; Revenue TaxAct, R.S.P.E.I. 1988, c.

R-14; Municipalities Act, 1999, S.N.L. 1999, c. M-24; Teachers’ Pensions Act, S.N.L. 1991, c. 17. RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. REASONS FOR JUDGMENT Paquette, J.: Issue [1] This is an appeal from the denial of a medical disability retirement pursuant to subsection 16(1)(

b) of the Public ServicePensions Act, 1991, S.N.L. 1991, c. 12, as amended by S.N.L. 2014, c. 30 (the “Act”). [2] Subsection 16(1)(

b) of the Act authorizes medical disability retirement for public employees as a statutory right provided therequirements of subsection 16(1)(

b) are met: 16.

(1) Every employee shall be retired under the pension plan … (

b) where, after the employee has used up all sick leave entitlement, he or she is unable to perform efficiently the duties of his orher position or the duties of an alternative position owing to incapacity that is medically certified to the satisfaction of the corporation aslikely to be permanent, from a date to be determined by the corporation. [3] The statutory language that the condition is “likely to be permanent” is repeated in the ASSESSMENT FOR MEDICALDISABILITY RETIREMENT forms which are provided to the assessing physicians: “A pre-requisite for medical retirement is that theplan member is unable to perform efficiently the duties of his/her position or the duties of an alternate position owing to a condition that

is medically certified as likely to be permanent.” [ 4 ] The test employed for this pension entitlement therefore is that an employee is medically certified to the satisfaction of the decision-maker as having a condition which is “likely to be permanent”. Background [ 5 ] The appellant joined the public service as Junior Auditor in 1987 advancing to Senior Auditor by 1997.

That same year he became Manager of Insurance with Service NL and by 2004 was appointed Deputy Superintendent of Real Estate Agents and Salespersons, Deputy Registrar of Mortgage Brokers and the Administrator of Consumer Protection Fund for Prepaid Funeral Services. In 2009, he was appointed Deputy Superintendent of Securities. [ 6 ] He explained that he became ill in 2012 and took a continuous sick leave from 6 April 2012 to 21 August 2012 to address anxiety, depression and exhaustion. He returned to work in the fall of 2012 but was advised by his doctor to take leave until April 2013.

He again attempted a return to the workplace. He states that over the course of the next year, he used his paid leave entitlement frequently to cope with stressors at work, particularly from May 2014 onwards. He left work for the final time in August 2015. The Court was informed that he used 100 days of sick leave to cope with the pressures of working in a position which required a high level of decision-making. [ 7 ] Mr. Boyles had first applied for a medical retirement pension in October 2015. The Deputy Minister of Finance sought advice from the Province’s medical advisor, Dr.

Charles McVicker, who in turn arranged an independent psychiatric assessment by Dr. A. Walsh on 12 January 2016. This resulted in a written report dated 19 January 2016 in which Dr. A. Walsh concluded that Mr. Boyles was not “totally and permanently disabled”, adding that further treatment could support his return to work. Dr. McVicker in turn advised the Deputy Minister on 8 February 2016 that, “The medical information presently on file does not support that Mr.

Boyles is permanently and totally disabled from returning to work.” The Deputy Minister wrote to the appellant on 22 February 2016, rejecting his application, explaining that there was “insufficient evidence to justify a permanent disability as required under the Act .” He was informed that he could appeal the decision in accordance with sections 35 and 36 of the Act . This decision was not appealed. [ 8 ] Mr. Boyles’s second application for medical disability retirement, dated 10 April 2016, the subject of this appeal, was supported by an Assessment for Medical Disability Retirement referring to Dr. P.

Jackman’s medical records and attaching a psychological Assessment Report prepared by his treating psychologist, S. Stone dated 15 March 2016. [ 9 ] Dr. McVicker again consulted with Dr. Walsh who concluded on the basis of his review of the S. Stone report that he did “not feel that Mr. Boyles is permanently and totally disabled at this point” (Report, 24 June 2016). Dr. McVicker thereupon wrote to the Pension Insurance Administration Division on 16 July 2016 that, “The medical information presently on file does not support that Mr.

Boyles is permanently and totally disabled from returning to work secondary to a psychiatric illness.” In her decision dated 25 July 2016, the Deputy Minister found that his application did not support that he was “permanently and totally disabled from continuing work at this point”. Preliminary Considerations [ 10 ] Preliminary considerations include:

(1) Whether the first and second respondents were proper parties in this appeal;

(2) Whether correspondence related to subsequent federal Canada Pension Plan application could be admitted as fresh evidence on this appeal; and

(3) The appropriate standard of review on appeal. Government’s Application to Withdraw as a Party [ 11 ] The first and second respondents applied to be removed as parties in these proceedings asserting that the third respondent was the decision-making authority and any involvement in the relevant timeframe was on behalf of the third respondent. I denied their application to withdraw, taking into consideration the following. [ 12 ] Over the course of the appellant’s employment, the administration of the statutory public pension regime had been the responsibility of the second respondent.

Within this framework, eligibility for the medical pension was delegated to the office of the Deputy Minister of Finance, who in turn consulted with medical practitioners, in this case, psychiatrists. [ 13 ] At the relevant time, however, pension administration was undergoing statutory change, substituting the third respondent as administrator of the plan.

The Province and the third respondent entered into an agreement dated 31 March 2015, the “Pension Administration And Investment Management Services Agreement” establishing that the Province would continue to provide the pension administration and management services for a period of time.

This Agreement terminated on 31 March 2017, following which the third respondent assumed responsibility for the administration of these services. [ 14 ] In practical terms, this meant that the office of the Deputy Minister would continue to participate in the administration of eligibility for the pension program until 31 March 2017, and it was through applications to her office that claims were either approved or denied.

[ 15 ] I rejected the third respondent’s submission that the Deputy Minister was without authority or functus officio when she considered Mr. Boyles’s April 2016 application. It was a new application containing additional medical information and was accepted by the office of the Deputy Minister.

Further, it was not disputed by the first, second or third respondents that individuals seeking disability pensions may reapply. [ 16 ] As to their role in this appeal, entitlement to pension raises public policy considerations and the first and second respondents were best-placed to assist the Court and in turn the public, in understanding the framework of the pension plan, both before and following transition to the third respondent by legislative amendment and during the phase covered by the agreement between the respondents.

The fact that the appellant’s claim and ultimate rejection by the Deputy Minister fell within this unique and unprecedented transition period also supported my view that a role for government in these proceedings could not be ruled out in advance of the appeal hearing. [ 17 ] Further, the Act itself contemplates a role for the second respondent, who, pursuant to subsection 35(2) , is to be served with “a written notice” of an employee’s “intention to appeal to a judge of the Trial Division”. [ 18 ] As it turned out, the first and second respondents’ contribution to the legal issues arising in this statutory appeal afforded the opportunity for full discussion.

Whether they would be considered parties in subsequent appeals is not decided here. Whether Correspondence related to the Appellant’s Canada Pension Plan Entitlement could be Admitted as Fresh Evidence on this Appeal [ 19 ] The appellant has since been approved (26 February 2018) for long term disability within the meaning of the Canada Pension Plan ( CPP ). He sought leave of the Court to introduce a copy of his application for CPP disability benefits and his approval letter. He also sought leave to introduce a report from Dr. Jackman which confirms that he remains disabled.

He advanced that the Canada Pension Plan uses a “severe” and “prolonged” test for establishing medical disability and asserts that this holds relevance to the test to be considered in his entitlement to medical disability under the provincial legislation. The documents sought to be introduced postdated his provincial application. [ 20 ]

Section 36 of the Act sets out the procedure on an appeal: 36.

(1) The employee or other person shall, within 14 days after service of the notice of appeal under subsection 35(2), apply to the judge for the appointment of a day for the hearing of the appeal, and shall, not less than 14 days before the hearing, serve upon the corporation a written notice of the day appointed for the hearing.

(2) The judge shall hear the appeal and the evidence adduced before him or her by the employee or other person and by the corporation in a

summary manner and shall decide the matter of the appeal.

(3) The corporation shall cause to be produced before the judge on the hearing of the appeal all papers and documents in the corporation's possession affecting the matter of the appeal.

(4) The costs of the appeal are in the discretion of the judge who may make an order respecting them in favour of or against the corporation and may fix the amount of the costs.

(5) An appeal may be taken from an order or decision of the judge to the Court of Appeal upon a point of law raised on the hearing of the appeal, and the rules governing appeals to that Court from an order or decision of a judge of the Trial Division apply to appeals under this subsection. [ 21 ] The record was provided to the Court in compliance with subsection 36(3) of the Act . The statute authorizes the Court to “hear the appeal and the evidence adduced … by the employee … and by the corporation in a

summary manner” (subsection 36(2)). Proceeding in a

summary manner in the context of this appeal with its medical evaluations dispels the notion of a new trial. [ 22 ] The Court is empowered by Rule 58.17(1) of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D , to permit new evidence as it considers appropriate: 58.17

(1) Unless a statute provides otherwise, a judge may do any one or more of the following on the hearing of an appeal: (

a) direct the rehearing of witnesses, the retaking of evidence, or the taking of further and other evidence by the decision- making authority;

(

b) require the report of all evidence taken by the decision-making authority; (

c) require the production and examination of a witness already examined or of persons who have not been already examined;and (

d) refer the proceeding back to the decision-making authority for further consideration in whole or in part. [23] The Prince Edward Island Supreme Court decision, Eastisle Restaurants

(1986) Ltd. v. Prince Edward Island (Minister ofFinance) (1990), (PE SCTD), 82 Nfld. & P.E.I.R. 48, 257 A.P.R. 48 (P.E.I. S.C. (T.D.)), considered similar wordingin that province’s Revenue Tax Act, R.S.P.E.I. 1988, c. R-14: “The judge shall hear the appeal and the evidence adduced before him in asummary manner and shall decide the matter of the appeal” (at paragraph 2). Eastisle explains that evidence will normally only bepermitted on a statutory appeal where it was either unavailable or arose after the date of the original hearing. In any such case, specialleave is required for its admission. [24] Coombs v. Placentia (Town), 2018 NLSC 53, at paragraph 18, also considered a

summary appeal process. In Coombs, theCourt considered subsections 410(

b) and (

c) of the Municipalities Act, 1999, S.N.L. 1999, c. M-24, expressly authorizing the Court tosubstitute its own decision: 410.

(6) A judge shall hear the appeal and the evidence brought forward by the appellant and the council in a

summary manner andmay … (

b) uphold, amend or rewrite the resolution made under subsection 206(2); or (

c) make another decision that he or she considers to be appropriate in the circumstances. [25] The Court wrote at paragraph 18: 18 Subsection 410(6) of the Act states that the Court shall hear the appeal and the evidence brought forward in a

summary manner.This seems to contemplate a de nova hearing and many appeals pursuant to 410(6) have proceeded in that manner. In such a case, therewould be little, if any, deference required to be given to Council’s decision. In this case, there was no dispute in the facts and, inparticular, the facts pertinent to this issue being Coombs’ actions in the aftermath of declaring a conflict of interest. As such, the appealproceeded more in keeping with a review. In addressing this issue, Council had to apply the undisputed facts to determine whether thestatutory factual requirement of “discussion” had been met.

As such, Council’s conclusion involved drawing a factual inference andtherefore is reviewable on a standard of reasonableness. [26] Similar statutory language was also considered in Dawe v. Newfoundland (Minister of Finance) (1996), (NL SC), 147 Nfld. & P.E.I.R. 94, 459 A.P.R. 94 (Nfld. S.C. (T.D.)), on an appeal of the Teachers’ Pensions Act, S.N.L. 1991, c. 17. The Court reviewed the record but did not conduct a new trial. [27] I allowed the application under Rule 58.17(1).

The appellant was permitted to file the additional evidence, which related toqualification under the federal plan for medical disability to supplant his legal submissions, without request from the other parties to seekto file further evidence. While Mr. Boyles intended to refer to the documents, it was understood that a decision-maker cannot be faultedfor failing to consider information never disclosed and not in existence at the time of the application process, and he was cautioned thatthe documentary evidence may garner no weight on the appeal.

Standard of Review [28] The test for medical disability retirement set out in subsection 16(1)(

b) of the Act falls within the decision-maker’s homestatute. In the circumstances presenting here, I conclude that the

interpretation and application of this provision attracts a standard ofreview of reasonableness. [29] In brief, the appellant asserts that the decision-maker denied his entitlement to a medical disability retirement in her relianceupon a more stringent test than statutorily authorized. At no time, he submits, did the Deputy Minister seek advice from the medicaladvisors as to whether the test of “likely to be permanent” had been met. [30] The appellant referred to Nash v. Mutual Life of Canada (1999), (NL SC), 178 Nfld. & P.E.I.R. 26, 544A.P.R. 26 (Nfld.

S.C. (T.D.)), as illustrative of language engaged where the requirement of only a “total disability” triggers entitlement tolong term disability benefits under an employment insurance scheme. In the assessment of whether “total” disability is made out, theCourt writes at paragraphs 83 to 85: 83 On a review of all the medical and related evidence I am unable to conclude on a balance of probabilities that Mr. Nash is totally

disabled from performing a sedentary occupation such as his work at Newfoundland Telephone. 84 The evidence of total disability comes from Dr. Perkins, Dr. Wanda Parsons, Dr. Roger Butler and from Mr. Nash himself. The doctors, including Dr. Perkins agree with the other medical evidence that there are no objective findings which would support total disability, however they accept the subjective reporting of Mr. Nash himself, to the extent that they believe he is unable to work or probably unable to work. Nevertheless the language of Dr.

Perkins is very tentative: I think it is likely that he has a permanent disability ... I really believe that he probably is not capable of getting back to any useful form of full time work. 85 From such wording I am left in doubt as to Dr. Perkins degree of conviction as to total disability. [ 31 ] The third respondent asks the Court to find that the decision-maker’s decision was reasonable as falling within the range of reasonable outcomes, relying upon Dunsmuir v.

New Brunswick , 2008 SCC 9 , at paragraph 47 : 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 32 ] The third respondent maintains that the Deputy Minister had conflicting medical opinions and her decision was reasonable. [ 33 ] The third respondent’s position fails, however, because the reasonableness of outcomes cannot be assessed in circumstances where the wrong test is used to evaluate them. The Legislature could have adopted a total disability test as did the insurer in Nash but did not.

At no point did the medical advisors address the test of likelihood of total disability and the Deputy Minister did not ask them to weigh in on the statutory test before making her decision to reject Mr. Boyles’s claim. [ 34 ] I find that it was unreasonable that the Deputy Minister failed to do so. DISPOSITION [ 35 ] The standard of review is reasonableness. The statutory decision-maker erred in applying the wrong test for entitlement to the medical disability retirement as set out in subsection 16(1) (

b) of the Act , and the decision is set aside. The appellant’s application for medical disability retirement is remitted to the third respondent for reconsideration. [ 36 ] There shall be no order as to costs. _____________________________ Deborah J. Paquette Justice