DONALD BOYLES Applicant And: THE PUBLIC SERVICE PENSION PLAN CORPORATION, trading as Provident 10 Respondent, 2022 NLSC 28

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Boyles v. Public Service Pension Plan Corporation (Provident 10 ) , 2022 NLSC 28 Date : February 28, 2022 Docket : 202101G6669 Between: DONALD BOYLES Applicant And: THE PUBLIC SERVICE PENSION PLAN CORPORATION, trading as Provident 10 Respondent Before: Justice Garrett A. Handrigan On Judicial Review From: A Decision of Thomas E. Williams, Q.C., Appeal Commissioner, dated October 13, 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 15, 2022

Summary: Donald Boyles worked in the public service in Newfoundland and Labrador from 1984 to 2015, when he left work because of medical problems. He applied for a medical disability retirement under the Public Service Pensions Act, 1991 . The Government of Newfoundland and Labrador rejected his application and he appealed. Eventually, his application came before an Appeal Commissioner of the Public Service Pension Plan Corporation, trading as Provident 10 , who dismissed it. He applied to this Court for judicial review of the Appeal Commissioner’s decision.

The Court reviewed the Appeal Commissioner’s decision on the standard of reasonableness and found that the Appeal Commissioner did not act reasonably when he rejected Mr. Boyles’ appeal of Provident 10 ’s refusal to accept his application for medical disability retirement in 2016. It ordered certiorari to quash the Appeal Commissioner’s decision and found that Mr. Boyles is entitled to a medical disability retirement, dating back to when he left his employment on August 11, 2015 until May 14, 2020, when he retired because of his service. It also ordered Provident 10 to pay costs. Appearances: Megan S.

Reynolds and Appearing on behalf of the Applicant Devin Drover Twila E. Reid and Appearing on behalf of the Respondent Meghan R. Foley Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Boyles v. Newfoundland and Labrador , 2020 NLSC 47 ; Winnipeg Board of Jewish Education Inc. v. Raam , 2019 MBQB 186 STATUTES CONSIDERED: Public Service Pensions Act, 1991 , S.N.L. 1991, c. 12 , as rep. by Public Service Pensions Act, 2019 , S.N.L. 2019, c. P-44.01 ; Public Service Pensions Act, 2019 , S.N.L. 2019, c. P-44.01 ; Judicature Act , R.S.N.L. 1990, c. J-4 ;

Interpretation Act , R.S.N.L. 1990, c. I-19 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Handrigan J. : INTRODUCTION [ 1 ] On November 30, 2021, Donald Boyles filed an originating application in this Court asking for a judicial review of a decision that an Appeal Commissioner of the Public Service Pension Plan Corporation, trading as Provident 10 (“Provident 10 ”), filed on October 13, 2021. Mr.

Boyles claimed that the Appeal Commissioner “… committed various grave errors which warrant review and correction by this Honourable Court” (Originating Application, paragraph 38). He offered seven examples of “errors” and requested one of two orders, preferably the first: quash the Appeal Commissioner’s decision and find in his favor; or remit the matter “…back to Provident 10 for determination with strict directions and timelines for reconsideration” (Originating Application, paragraph 39). Mr. Boyles also asked for his costs. [ 2 ] More particularly, Mr.

Boyles alleges that the Appeal Commissioner erred in concluding “… that there did not exist sufficient evidence that an erroneous decision was reached based upon the reliance by the medical expert on inaccurate medical reports”; and “…in denying [him] procedural fairness by neglecting to conduct a hearing” (Applicant’s Memorandum of Fact and Law, filed on February 8, 2022,

Part II, page 19). I heard Mr. Boyles’ application on February 15, 2022 and reserved my judgment until now. The Issues [ 3 ] Mr. Boyles’ application raises these issues: 1. What standard of review will I apply? 2. Was the Appeal Commissioner’s decision reasonable? and 3. Did the Appeal Commissioner deny Mr. Boyles procedural fairness by not conducting a hearing?

The Law Statute & Regulation [ 4 ] Mr. Boyles relies on

section 16 of the Public Service Pensions Act, 1991 , S.N.L. 1991, c. 12 , (the “ 1991 Act ”) for the substance of his application. It reads, as relevant: 16.

(1) An employee shall be retired under the pension plan (

a) where he or she…terminates employment upon reaching normal retirement age…; or (

b) where, after the employee has used up all sick leave entitlement, he or she is unable to perform efficiently the duties of his or her position or the duties of an alternative position owing to incapacity that is medically certified to the satisfaction of the corporation as likely to be permanent, from a date to be determined by the corporation. [ 5 ] I note for now that the Newfoundland and Labrador legislature repealed the 1991 Act on February 14, 2020, and replaced it with the Public Service Pensions Act, 2019 , S.N.L. 2019, c. P-44.01 . Nonetheless, the 1991 Act is still relevant, as will appear later in these reasons. [ 6 ] Mr. Boyles grounds his application for review on

section 15 of the 2019 Act , which provides, in its entirety: Appeal 15.

(1) A person may, in accordance with the pension plan, appeal a decision of the corporation in a matter related to, connected with or arising out of his or her entitlement to or payment of a pension benefit or other money under this Act.

(2) A person may apply for judicial review of a decision under subsection (1) within 60 days after receipt of the decision by filing an application with the Supreme Court. [ 7 ] I note that the word “Appeal” appears in the heading to that section. I will return to its significance, if any, later in these reasons. [ 8 ] Mr. Boyles also relies on section 34(2) (

c) of the Judicature Act , R.S.N.L. 1990, c. J-4 , which reads, as relevant: 34(2) In giving a decision or judgment upon an appeal from a court of inferior jurisdiction or a tribunal, the court … (

c) may alter, amend or modify the decision. [ 9 ] Finally, Mr. Boyles relies on Rule 54.06 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D , to support his request for certiorari to quash the Appeal Commissioner’s decision. From my review of Rule 54.06 , it appears Mr. Boyles is mistaken and that he must have intended Rule 54.02(1), which reads, as relevant: 54.02.

(1) An order in the nature of…certiorari…may be granted by the Court upon an originating application. Case Law Standard of Review [ 10 ] In 2019, the Supreme Court of Canada used the “… opportunity to re-examine its approach to judicial review” that Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , and “its companion cases” provided (paragraph 1).

In particular, the court “…address[ed] two key aspects of the current administrative law jurisprudence which require[d] reconsideration and clarification”: 2 …First, we will chart a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision.

Second, we will provide additional guidance for reviewing courts to follow when conducting reasonableness review…. [ 11 ] Vavilov starts with the presumption that reasonableness is the appropriate standard of review in all cases and derogates from that presumption only in exceptional cases or when there are clear variances. Those exceptions include constitutional questions, general questions of law which are centrally important to the legal system, and questions that relate to jurisdictional boundaries between several administrative bodies ( Vavilov , paragraph 17 ); none of which pertain here.

[ 12 ] The presumption may also be displaced by variances such as statutory provisions, which state a standard of review other than reasonableness, or for matters that proceed as statutory appeals; again, neither of which applies here ( Vavilov , paragraphs 17 and 33 ). I note for completeness that Mr. Boyles contends his application should proceed by statutory appeal. I reject his submission and will explain why later in these reasons. [ 13 ] Overall, for present purposes, let me say that reasonableness is the appropriate standard of review in this case and Mr. Boyles has not rebutted the presumption that it is.

I look to Vavilov now for guidance on how to apply reasonableness to Mr. Boyles’ application. Paragraphs 12-15 (inclusive) of Vavilov pertain, confirming that appropriate deference is due to administrative bodies which apply it: 12 …Reasonableness review is methodologically distinct from correctness review.

It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court…. [R]easonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions…. 13 Reasonableness review is…meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.

It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber- stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. 14 On the one hand, courts must recognize the legitimacy and authority of administrative decision makers within their proper spheres and adopt an appropriate posture of respect.

On the other hand, administrative decision makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be “justified to citizens in terms of rationality and fairness …”… 15 In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.

What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. [ 14 ] I note the following additional points: • The onus is on the party challenging a decision to show that it is unreasonable ( Vavilov at para. 100 ); • Two types of flaws may lead to an unreasonable decision: “…a failure of rationality internal to the reasoning process”; and “…[if] a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it” ( Vavilov at para. 101 ); • “…[W]ritten reasons given by an administrative body must not be assessed against a standard of perfection” ( Vavilov at para. 91 ); • “…[F]ormal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given …” ( Vavilov at para. 103 ); • “A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken…or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point” ( Vavilov at para. 103 ); and • “…[T]he internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise.

This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians” ( Vavilov at para. 104 ). [ 15 ] This is the law I will apply to the first and second issues that I stated earlier. As will appear by these reasons, I decline to address the third issue because of my findings on the second issue. I turn now to analyze the first and second issues starting with the background to them. Analysis Background [ 16 ] Donald Boyles was born March 1, 1965, and is fifty-seven years old. Mr. Boyles lives in St. John’s, NL.

He completed high school and a two-year accounting course at what was then the College of Trades and Technology in St. John’s, which he followed up with a 15-course Certified Management Accounting program at Memorial University of Newfoundland. He hired on with the Government of Newfoundland and Labrador as a Junior Accountant in 1984 and stayed in its employ until August 11, 2015, when he left work at mid-day and never returned. [ 17 ] Mr. Boyles retired from the public service on May 15, 2020.

He had reached the “normal” retirement age of fifty-five by then, and he now receives a pension based on his years of service. His retirement is that contemplated by section 16(1)(

a) of the 1991 Act : “An employee shall be retired under the pension plan (

a) where he or she…terminates employment upon reaching normal retirement age”. [ 18 ] While in the public service, Mr. Boyles progressed steadily on a notable career path. He started as a Clerk II in 1984 and

transferred to the Auditor General’s Office in 1987 as a Junior Auditor. In the next 10 years with the Office, he progressed through the levels of Auditor I, Auditor II, and Auditor III, until he became a Senior Auditor. Mr. Boyles shifted to the position of Manager of Financial Analysis and Investigations with Service NL in 1997 and eventually assumed the duties of Deputy Superintendent of Securities in 2009. [ 19 ] At that point, in addition to being Deputy Superintendent of Securities, Mr. Boyles was Deputy Superintendent of Real Estate Agents and Salespersons and Deputy Registrar of Mortgage Brokers.

He was also assigned responsibility for managing, administering, and paying out monies from the Consumer Protection Fund for Prepaid Funerals. [ 20 ] I provide this brief history of Mr. Boyles’ time in the public service simply as background to this application. These proceedings relate more particularly to the five years between August 2015 and May 2020 when Mr. Boyles was off work continuously, generally without income. [ 21 ] Mr. Boyles applied for a medical disability retirement pension under section 16(1)(

b) of the 1991 Act , in October 2015. He bears the onus, of course, of proving that he (to quote the words of the section), “…ha[d] used up all [his] sick leave entitlement,…[and was] unable to perform efficiently the duties of his…position or the duties of an alternative position owing to incapacity that is medically certified to the satisfaction of the corporation as likely to be permanent, from a date to be determined by the corporation”. [ 22 ] Mr. Boyles submitted his application for medical retirement on October 29, 2015. His family doctor, Dr.

Paul Jackman, completed the Assessment for Medical Disability Retirement that accompanied the application and stated that the cause of Mr. Boyles’ disability was “depression”. Dr. Jackman noted that signs of Mr. Boyles’ depression began to present in early 2011, and the condition was well-established by 2014. By August 11, 2015, when Mr. Boyles left work, Dr. Jackman regarded Mr. Boyles as “totally disabled” and “can’t work at all” (Record of Authority, Tab 5). [ 23 ] Dr. Anthony D. Walsh, Psychiatrist, saw Mr.

Boyles in person on January 12, 2016, to assess him and to “…gather information that would be prepared into a report and sent to…[Dr. Charles McVicker of Atlantic Offshore Medical Services] to be used to assist in determination of eligibility for pension benefit”. Dr. Walsh concluded that Mr. Boyles was not “…totally and permanently disabled from his job. With active treatment intervention, one can expect improvement that could allow for efforts to return to employment” (Record of Authority, Tab 6). [ 24 ] Dr.

McVicker wrote to the Pensions and Group Insurance Administration Division of the Department of Finance on February 8, 2016, advising that “[t]he medical information presently on file does not support that Mr. Boyles is permanently and totally disabled from returning to work” (Record of Authority, Tab 7). The Deputy Minister of Finance wrote to Mr. Boyles on February 22, 2016, rejecting his application and advising him that there was “insufficient evidence to justify a permanent disability as required under the Act ” (Applicant’s Memorandum of Fact and Law, Tab D). [ 25 ] Mr.

Boyles did not appeal the Deputy Minister’s decision. Rather, he solicited a report from Ms. Susan Stone, a registered psychologist, whom he first consulted in 2012 and periodically over the intervening years. On April 2, 2016, Ms. Stone provided a comprehensive report of her findings from her consultations with Mr. Boyles.

She diagnosed him as showing neurodevelopmental disorders, ADHD (Attention Deficit Hyperactivity Disorder) and LD (Learning Disabilities), in particular, as well as Dyslexia; and concluded thus (Record of Authority, Tab 8): In short, behavioural, cognitive, and affective domains are impacted, with moderate to severe anxious distress which has been present for a prolonged period. Neurodevelopmental disorder diagnoses are considered lifelong disabilities. Symptoms of ADHD fall within the severe range for this gentleman.

The secondary depression with anxious distress, as a likely result of inadequate work performance and occupational problems, has been present with little remission for 3-5 years now and therefore, could also be expected to be of indefinite duration. [ 26 ] Mr. Boyles submitted a second application for medical disability retirement to the Minister of Finance on April 10, 2016. He supported this application with Ms.

Stone’s report in which she documented her diagnoses of ADHD, LD and “major depressive disorder, with anxious distress (moderate-severe)” and then offered the following, in “lay persons” terms, to describe Mr. Boyles’ disability (Applicant’s Memorandum of Fact and Law, Tab E): Despite medical and psychological intervention, the applicant’s major depressive disorder (MDD) has not remitted or improved significantly since 2011.

The combination of MDD with anxious distress on top of existing neurodevelopmental disabilities (dyslexia and ADHD) cause significant impairment in the performance of active employment. [ 27 ] The Minister again referred Mr. Boyles’ second application to Dr. McVicker of Atlantic Offshore Medical Services who asked Dr. Anthony Walsh to review the application and Ms. Stone’s report which accompanied it. Dr. Walsh wrote to Dr.

McVicker on June 24, 2016 noting (Record of Authority, Tab 9): Further active treatment, both pharmacologically and psychologically can assist in providing and optimizing overall long-term improvement and at this time would suggest further period of active intervention before considering total and permanent disability. [ 28 ] Dr. McVicker advised the Deputy Minister of Finance accordingly on July 16, 2016, and she wrote to Mr.

Boyles on July 24, 2016, rejecting his application for that the medical information accompanying his application did not support his claim that he was “permanently and totally disabled from continuing work at this point” (Applicant’s Memorandum of Fact and Law, Tab E). [ 29 ] Mr. Boyles appealed the Deputy Minister’s decision to this Court and Paquette J. heard it over several days in 2019. She filed her decision on March 17, 2020, ( Boyles v.

Newfoundland and Labrador , 2020 NLSC 47 ) and concluded at paragraph 35 that: … [the Deputy Minister of Finance] erred in applying the wrong test for entitlement to the medical disability retirement as set out in subsection 16(1)(

b) of the…[ Public Service Pensions Act, 1991 ], and the decision is set aside. The appellant’s application for medical disability retirement is remitted to the third respondent [The Public Service Pension Plan Corporation, trading as Provident 10 …for

reconsideration. [ 30 ] After Paquette J.’s decision, Provident 10 ’s solicitors asked Fit For Work to review Mr. Boyles’ file and express an opinion about his ability to “…perform the duties of his position and alternative position owing to incapacity as likely to be permanent”. Counsel provided Fit For Work with 14 documents pertinent to Mr. Boyles’ application, ranging from his first application in October 2015 to a functional abilities form that his family doctor, Dr. Paul Jackman, completed on January 7, 2019. It also included, of course, all the earlier correspondence that I have set out above from Drs.

Walsh and McVicker, and Ms. Susan Stone, as well as Mr. Boyles’ second application and his application to the Canada Pension Plan for disability benefits (Applicant’s Memorandum of Fact and Law, Tab G and Supplemental Record of Authority, Tab 1). [ 31 ] Dr. Sujay Patel, Psychiatrist, of Fit For Work reviewed the materials counsel submitted and offered his opinion without meeting Mr. Boyles. He reported to Provident 10 ’s solicitors on December 18, 2020 (Record of Authority, Tab 11): … I can not conclude that: Mr.

Boyles was unable to perform efficiently in the duties of his previous position, and suitable alternative positions, owing to incapacity as likely to be permanent. In fact, the continued work may have provided him with improved self- confidence, meaningful daytime routine and behavioral activation – all elements that can assist in improving one’s mental well-being.

Furthermore, with the diagnoses of ADHD and Dyslexia, especially if untreated, could impact individuals in their vocational function this world be apparent early on in one’s job role and would likely improve with successful treatment and/or accommodations. [Emphasis in original.] [ 32 ] On March 21, 2021, Jason Durdle of Provident 10 wrote to Mr. Boyles rejecting the two applications for medical disability retirement that he submitted on October 29, 2015 and April 10, 2016. He noted Dr. Patel’s report and its findings (Record of Authority, Tab 3): According to Dr.

Patel’s report, you are not medically certified as unable to perform efficiently the duties of your position or the duties of an alternative position. As of your most recent assessment, there were multiple available evidence-based treatment options. As such, it could not have been considered that you reached maximum psychiatric recovery, and therefore, you did not have a permanent incapacity. (Emphasis in original.) [ 33 ] Mr. Durdle advised Mr.

Boyles that this was a “final decision” and that he had the “…right to appeal this decision within 60 days of the date of this letter, in accordance with Provident10‘s appeal process”. [ 34 ] Mr. Boyles appealed Mr. Durdle’s “final decision” on April 23, 2021. He set out two grounds of appeal (Record of Authority, Tab 12): 1. The Medical Expert relied on medical reports that were inaccurate; and 2. Provident 10 failed to inform me that my application for a disability pension was dependent on completion of the “multiple available evidence-based treatment options”. [ 35 ] Provident 10 ’s appeal process to which Mr.

Durdle referred Mr. Boyles when he submitted his “final decision” to him on March 21, 2021, involves two stages. In the first instance, it goes to a Review Officer, and in the second to an Appeal Commissioner. Lisa Blundon is a Review Officer with Provident 10 . She received Mr. Boyles’ appeal dated April 23, 2021, and responded to it on May 17, 2021. [ 36 ] Ms. Blundon rejected Mr. Boyles’ appeal (Record of Authority, Tab 4): After reviewing the details of this case, including medical documents and opinions submitted by Dr. McVicker, Dr. Walsh, Dr. [sic]. Stone, Dr. Jackman and Dr.

Patel, it is concluded that Provident 10 accurately exercised its discretion in determining that you are not medically certified as unable to perform efficiently the duties of your position or the duties of an alternate position owing to incapacity that is medically certified as likely to be permanent. The decision of denial is therefore justified. [ 37 ] Ms. Blundon, like Mr. Durdle, also advised Mr.

Boyles that “[i]n the event you are dissatisfied with the outcome of this review, you have the right to appeal this decision within 60 days of the date of this letter in accordance with Provident 10 ’s appeal process”. [ 38 ] On July 13, 2021, Mr. Boyles appealed Ms. Blundon’s decision, relying on the same grounds of appeal that he submitted to Ms. Blundon on April 23, 2021. Jason Durdle forwarded the appeal to the Appeal Commissioner on August 6, 2021. The Appeal Commissioner conducted a paper review of the materials in Mr.

Boyles’ file and released his decision based on that review on October 13, 2021. [ 39 ] As to Mr. Boyles’ first ground of appeal – the medical expert relied on medical reports that were inaccurate – the Appeal Commissioner reviewed Dr. Patel’s medical report but also said that he considered the earlier medical reports from Drs. Jackman and Walsh and Ms. Susan Stone. He concluded “…having taken into consideration all the relevant evidence in relation to this ground of appeal, including the representations made by the Appellant [Mr.

Boyles], I am not satisfied that there exists sufficient evidence, that an erroneous decision was reached based upon the reliance by the medical expert on inaccurate medical reports” (Record of Authority, Tab 1).

[40] As to Mr. Boyles’ second ground of appeal – failure to inform him that his application depended on completion of the“multiple available evidence-based treatments [sic] options” – the Appeal Commissioner found that there was no “…obligation on Provident10 “…to inform the Appellant to complete multiple evidence-based treatment options”. Then the Appeal Commissioner rejected the argument because it would be tantamount to finding that “…Provident10 [had a positive obligation]…to provide some form ofstatutory

interpretation of the relevant provisions of the Public Service Pensions Act, 1991 so as to meet the requirements outlinedtherein”; and that could not possibly be so: “I find that there are no reasonable grounds in which to allow the appeal on the grounds putforth. I therefore dismiss the appeal in full and the March 25, 2021 decision of Jason Durdle stands” (Record of Authority, Tab 1). [41] Before proceeding further to discuss Mr. Boyles’ appeal, let me digress briefly to discuss the legislative framework for it. UntilFebruary 14, 2020, Mr.

Boyles was governed both substantively and procedurally by the 1991 Act. On February 14, 2020, theGovernment of Newfoundland and Labrador replaced the 1991 Act with the 2019 Act. Thus, the 1991 Act is described as “repealed orspent since 2020-02-14” and this caption appears in red on the website where it may be found [42] However, the matter is a tad more complicated: The 1991 Act still operates as to Mr. Boyles’ appeal because practically allsubstantive events relevant to it occurred before February 14, 2020, but the 2019 Act governs his appeal procedurally. That is why Iconsider

section 15 of the 2019 Act to address the standard of review that applies to it. [43] This is the background to the issues I stated earlier. I turn now to discuss the issues, starting with the standard of review. Issue No. 1: Standard of Review [44] The Appeal Commissioner reviewed Mr. Durdle’s decision on the standard of reasonableness. He made no specific finding thathe would apply that standard of review, but it is clear from the deference he showed in reviewing Mr. Durdle’s decision that he appliedthat standard.

He also noted that Paquette J. applied reasonableness when she reviewed the Deputy Minister of Finance’s decision toreject Mr. Boyles’ application on July 24, 2016, and he ultimately found that “… there are no reasonable grounds in which to allow theappeal…” (underlining mine) (Record of Authority, Tab 1). [45] Mr. Boyles acknowledges the presumption that reasonableness is the default standard of review, as the Supreme Court ofCanada stated in Vavilov, but he also notes that the “presumptive standard” is rebuttable where one of three criteria is met.

He urges the“second” category on me: “b. the legislature has provided for a statutory appeal mechanism from an administrative decision to a court (inwhich case appellate standards of review apply)”.

He states these as the appellate standards of review that I should apply here: • for questions of law, correctness; • for questions of fact, “palpable and overriding error”; • for questions of mixed fact and law and inferences of fact, generally “palpable and overriding error”, but this may vary,depending on the inferences or the mixture of fact and law. (Applicant’s Memorandum of Fact and Law and Authorities, page 22). [46] Mr. Boyles premises his submission that appellate standards of review apply here on the wording of

section 15 of the 2019 Act.It reads: 15. Appeal 15

(1) A person may, in accordance with the pension plan, appeal a decision of the corporation in a matter related to, connected with orarising out of his or her entitlement to or payment of, a pension benefit or other money under the Act.

(2) A person may apply for judicial review of a decision under subsection (1) within 60 days of after receipt of the decision by filingan application with the Supreme Court. [Underling mine.] [47] Mr. Boyles relies on the word “Appeal” in the heading to

section 15 of the 2019 Act, as well as the word “appeal” where itappears in subsection 15(1). As to the relevance of the heading,

section 15 of the

Interpretation Act, R.S.N.L. 1990, c. I-19, states that,“The marginal notes and headings in the body of

an Act and the reference to former enactments do not form part of the Act and shall beconsidered to be inserted for convenience of reference only” (underlining mine). [48] Despite the clear statement in

section 15, the interpretative value of headings and marginal notes to legislation remainssomewhat obscure. Some courts say they may be used to provide context or to assist in understanding the meanings of the words used,while others disagree. I prefer the middle ground where headings or marginal notes may be used to assist in interpreting the legislation ifit is ambiguous;

just as Greenberg J. of the Manitoba Court of Queen’s Bench said in Winnipeg Board of Jewish Education Inc. v. Raam , 2019 MBQB 186 , “Headings in legislation are aids to

interpretation where the words of the statute are ambiguous.” [ 49 ] Greenberg J. also noted that there was no ambiguity in the legislation he was interpreting, so he did not have to consider the heading. I find the same here:

Section 15 of the 2019 Act is not ambiguous. It provides two opportunities for a person to review decisions related to “his or her entitlement to or payment of a pension benefit or other money under the Act”, one addressed in subsection 15(1), referred to as an “appeal” and the other in subsection 15(2), referred to as a “judicial review”. [ 50 ] In this case, Mr. Boyles’ application to review the Appeal Commissioner’s decision falls under section 15(2) so it proceeds as a “judicial review”.

There is no ambiguity in the legislation simply because the legislature clearly differentiated the process by using the words “appeal” and “judicial review” in the two contexts contemplated by subsections (1) and (2). Describing the process available in section 15(2) as a “judicial review” leaves no doubt, in the first instance, about the legislature’s intent for the procedure that an applicant under that

section has available and at the same time dispenses with the option of an appeal. [ 51 ] But regardless of how

section 15 reads, the standard of review I must apply is reasonableness, not statutory appeal. Let me explain. [ 52 ] Mr. Boyles asked the Appeal Commissioner to undertake a comprehensive review of his file. As I noted earlier, Mr. Boyles filed his own notice of appeal and set out two grounds to support his request to overturn the Appeal Commissioner’s decision: 1. The Medical Expert relied on medical reports that were inaccurate; and 2.

Provident 10 failed to inform me that my application for a disability pension was dependent on completion of the “multiple available evidence-based treatment options”. [ 53 ] On their face, these two grounds appear discreet. But Mr. Boyles did not limit himself to simply stating his grounds of appeal. On April 23, 2021 and July 13, 2021, he drafted two “letters of appeal” to accompany his requests for appeals to Mr. Durdle and the Appeal Commissioner.

His letters, particularly from April 23, 2021, go into detail, canvassing the full history of his efforts to obtain a medical retirement disability (Record of Authority, Tabs 12 and 13). [ 54 ] Additionally, Mr. Boyles prepared a lengthy “Submissions of the Appellant Donald Boyles” in which he addressed in detail Dr. Patel’s review of his application on August 11, 2015 (Record of Authority, Tab 14). In that document, he challenges, amongst other things, the two letters that Dr. Anthony Walsh wrote to Dr. McVicker in 2016 and conducts a detailed analysis of Dr. Walsh’s findings and tries to refute them.

These letters and Mr. Boyles’ submissions were available to the Appeal Commissioner. [ 55 ] Mr. Boyles’ representations in his appeals, and before this Court as well, do not lend themselves to a correctness review. They are multi-faceted and incorporate broad issues for consideration that can only be reviewed on a reasonableness standard. Paquette J. applied reasonableness when she dealt with Mr. Boyles’ appeal in 2020.

I note as well what the Supreme Court of Canada says in Vavilov about the elements that “will generally be relevant in evaluating whether a decision is reasonable” (paragraph 106): 106 … namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies…. [ 56 ] Most of these “elements” are relevant to Mr. Boyles’ application to this Court and he expended great effort in his “Submissions” to focus Mr. Durdle and the Appeal Commissioner on them.

I will apply reasonableness as the standard of review to the Appeal Commissioner’s decision. [ 57 ] I note the guidance the Supreme Court of Canada provided in Vavilov at paragraph 100 for how to apply the reasonableness standard: 100 The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency.

Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep.

Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable. [ 58 ] I discern from this quotation that I review the Appeal Commissioner’s decision to see if it bears the “hallmarks of reasonableness”, which are justifiability, intelligibility and transparency ( Vavilov at para. 99 ).

Issue No. 2: Was the Appeal Commissioner’s decision reasonable? [ 59 ] The Appeal Commissioner concluded his decision with these paragraphs (Record of Authority, Tab 1): While the Appeals Commissioner is sympathetic to the plight of the Appellant in these circumstances, there remains an obligation on any Appeals Commissioner to give a complete and thorough review of all the evidence and arguments put forth by the parties and to reach a fair and justifiable decision based upon the merits of same.

Having undertaken such a review in this case and based upon all the evidence before me as well as the pertinent statutory requirements of the governing legislation, I find that there are no reasonable grounds in which to allow the appeal on the grounds put forth. I therefore dismiss the appeal in full and the March 25, 2021, decision of Jason Durdle stands.

[ 60 ] It seems from his statement that the Appeal Commissioner was alive to his duty to consider all the evidence, the statutory context for the decision under review, and the views of the parties; and to reach a “fair and justifiable decision” based on that review. It is equally clear from reviewing his decision that the Appeal Commissioner did not do that. Let me explain. [ 61 ] Mr.

Boyles put two grounds before the Appeal Commissioner for his consideration: the medical reports the medical expert relied on were inaccurate; and Provident 10 failed to inform him that his eligibility for a disability pension depended on completing the “multiple available evidence-based options”. [ 62 ] To address the first ground of appeal, the Appeal Commissioner reviewed the following evidence, albeit in the context of the other material that was available to him as he set out in his decision: • Psychiatric Assessment by Dr. Anthony Walsh – January 19, 2016. • Psychological [sic] Assessment of Dr.

Charles McVicker – February 8, 2016. • Psychological Assessment of Susan Stone, Registered Psychologist – April 2, 2016. • Updated Psychiatric Assessment of Dr. Anthony Walsh – June 24, 2016. • Letter from Dr. Charles McVicker – July 16, 2016. • Assessment for Medical Disability of Dr. Paul Jackman – October 27, 2016. • Psychiatric Paper Review of Dr. Sujay Patel – December 18, 2020. [ 63 ] Based on his review, the Appeal Commissioner made these findings: • “…[T]he conclusions reached by Dr. Patel are based in part upon a review and consideration and the opinions expressed by other practitioners involved in Mr.

Boyle’s case in addition to Dr. Anthony Walsh, those being Dr. Paul Jackman, Family Physician and Susan Stone, Psychologist. It would be factually incorrect to suggest it was solely the January 19, 2016 and June 24, 2016 reports of Dr. Anthony Walsh the form the basis of Dr. Patel’s conclusions. It is apparent from a review of Dr.

Patel’s 12-page medical report that numerous considerations were at play in reaching his final conclusion.” • …I am satisfied that the Appellant’s submissions [in response to the Patel Report dated February 18, 2021] were taken into consideration by Provident 10 in reaching its decision. • I am satisfied that…should Dr.

Patel have been of the professional opinion that he was unable to reach the conclusion he did based upon the lack of documentation provided or some other relevant concern, then he would have readily stated the same. • I am not satisfied that there exists sufficient evidence, that an erroneous decision was reached based upon the reliance by the medical expert on erroneous medical reports. (Record of Authority, Tab 1) [ 64 ] In responding to the first ground of appeal, the Appeal Commissioner declined to deal with Mr. Boyles’ claim that “…Dr.

Walsh did not consider the correct statutory test in reaching his conclusion”. He noted that “…this factor is not what is currently under appeal, it is the May 17, 2021 decision of Review Officer Lisa Blundon which [is] presently being reviewed and therefore this issue does not warrant further comment …”. [ 65 ] Of course, Mr. Boyles’ first ground of appeal is before me just as it was before the Appeal Commissioner. For completeness, however, and unlike the Appeal Commissioner, I will briefly review the medical evidence that Dr. Patel relied on to express this opinion about Mr.

Boyles’ ability to perform his duties: “ I can not conclude that: Mr. Boyles was unable to perform efficiently in the duties of his previous position, and suitable alternative positions, owing to incapacity as likely to be permanent” (emphasis in original) (Record of Authority, Tab 11). [ 66 ] In support of his opinion, Dr. Patel had the following: • Dr. Walsh’s opinion of January 19, 2016, following an in-person meeting with Mr. Boyles, that Mr. Boyles was not “… totally and permanently disabled from his job.

With active treatment intervention, one can expect improvement that could allow for efforts to return to employment” (Record of Authority, Tab 6). Dr. Walsh’s opinion of June 24, 2016, from reviewing Mr. Boyles’ second application and Susan Stone’s report of April 2, 2016, that “[f]urther active treatment, both pharmacologically and psychologically can assist in providing and optimizing overall long-term improvement and at this time would suggest further period of active intervention before considering total and permanent disability” (Record of Authority, Tab 9). [ 67 ] To the contrary, Dr.

Patel had the following: • Dr. Paul Jackman’s on Mr. Boyles’ application for medical disability retirement of October 27, 2015, that Mr. Boyles was “totally disabled” and “can’t work at all” (Record of Authority, Tab 5). • Susan Stone’s report on April 2, 2016, based on her work with Mr. Boyles over several years, from which she diagnosed him with ADHD, LD, Dyslexia, and secondary depression with anxious distress (Record of Authority, Tab 8). [ 68 ] As to Ms. Stone, Dr. Patel dismissed her opinions about Mr. Boyles’ disabilities summarily, with this appraisal of her: “While I

cannot comment on Ms. Stone’s diagnoses as her scope of practice would be more limited than a doctorate level psychologist or psychiatrist …”. As to Dr. Jackman, Dr. Patel was certainly aware of his opinions about Mr. Boyles, but he no more than noted them in his review. [ 69 ] When Dr. Jackman completed Mr.

Boyles’ “Assessment for Medical Disability Retirement” on October 27, 2015, he noted the following, in responding to the questions on the form: • Diagnoses – Depression. • When did symptoms first appear – early 2011 . • Date total disability commenced – August 2015. • Is disability due to injury or sickness resulting from the applicant’s employment – No, but work stressor. • Physical impairment – can’t work. • Please explain the extent to which the applicant’s disability affects his/her capacity to: Perform his/her regular duties – can’t focus adequately for the responsibilities of his job. • Please explain the extent to which the applicant’s disability affects his/her capacity to: Perform duties of an alternate work position for which the applicant may be qualified – can’t work at all. • If this disability is stress related due to employment, would an alternate position relieve symptoms – No . • Does disability prevent the applicant from ever performing the duties of his/her regular occupation – Yes . • Does disability prevent the applicant from ever performing the duties of an alternate position – Yes . • Please indicate the date of total disability – August 11, 2015 to indefinite . • Is the applicant a suitable candidate for trial employment, Regular Occupation – No , Alternate Position – No .

If “no” please explain – Pt. is now permanently disabled . • Briefly state in “lay persons” terms why you feel this applicant’s disability will prevent his/her return to active employment – several attempts at meds/counselling have not resolved the case. Specialist wait list 2 years. • Dr. Jackman signed the assessment, noting that he was not a “certified specialist” but had been Mr. Boyles’ “ family doctor for 23 years ”. (Dr. Jackman’s answers are italicized.) (Record of Authority, Tab 5). [ 70 ] For her part, Ms. Stone began working with Mr. Boyles in 2012. Additionally, she had counselled one of Mr.

Boyles’ sons and an ex-common law spouse, during a separation and later for individual consultations. Ms. Stone provided a comprehensive report of April 2, 2016 to accompany Mr. Boyles’ second application. I quoted salient comments from that report earlier in these reasons and need not repeat them here. Suffice it to say that she believed that his “[p]rognosis for return to work is guarded”. [ 71 ] Neither Dr. Jackman’s views about the severity of Mr. Boyles’ disability nor Ms.

Stone’s “guarded prognosis” for his return to work, figures consequentially in subsequent assessments of his eligibility for a medical disability retirement, right up to the Appeal Commissioner. They receive passing references in Dr. Patel’s “psychiatric paper review” in December 2020 but no more than that. Yet, Dr. Jackman and Ms. Stone both had long-term associations with Mr. Boyles and each knew intimately his family background, his personal history, his work history, and his general milieu. [ 72 ] Dr. Anthony Walsh met with Mr. Boyles in clinic on January 12, 2016.

He compiled his report on January 19, 2016, based on that single meeting. Dr. Walsh agreed that “…[Mr.Boyles’] presentation and history is [sic] consistent with major depressive episode but there are associated psychosocial factors and occupational problem contributing to emotional difficulty” (Record of Authority, Tab 6). [ 73 ] Dr. Walsh provided a second report on June 24, 2016, to respond to Mr. Boyles’ second application. He did this without meeting Mr. Boyles as he had done just six months earlier, and he maintained the opinion about Mr.

Boyles’ disability that he expressed in the earlier report: “I would not consider this gentleman totally and permanently disabled for his job” (Record of Authority, Tab 9). [ 74 ] No other medical personnel met with Mr. Boyles in the five years from when he filed his second application to when his matter came before the Appeal Commissioner in 2021. Dr. Patel did a “paper review” of Mr. Boyles’ file in December 2020, rejecting his claim that Mr. Boyles was disabled, expressing it this way: “ I can not conclude that : Mr.

Boyles was unable to perform efficiently in the duties of his previous position, and suitable alternative positions, owing to incapacity as likely to be permanent ” (emphasis in original) (Record of Authority, Tab 11). [ 75 ] Let me now consider the “reasonableness” of the Appeal Commissioners’ decision in this context. Dr. Walsh’s opinion has permeated this file for six years and those “decision makers” who have dealt with it in the intervening years – the Deputy Minister of Finance in 2016 or Jason Durdle, Lisa Blundon and the Appeal Commissioner in 2021 – have relied on it to reject Mr. Boyles’ claim. Dr.

Walsh’s opinion was also critical to the conclusions that Dr. Charles McVicker and Dr. Patel came to about Mr. Boyles. [ 76 ] I do not question the validity of Dr. Walsh’s opinion, as far as it went, but it is only part of the context that Mr. Boyles’ application occupies that is relevant to his request for medical disability retirement. Dr. Jackman and Ms. Stone are also a relevant part of that context, as is the notable fact the Canada Pension Plan (“CPP”) accepted his application for a disability benefit in 2018, making it retroactive to 2016. [ 77 ] I note that Dr. Jackman supported Mr.

Boyles’ application for the CPP disability and stated the following for Mr. Boyles’ prognosis: “After a 4.5 yr. battle with this – it will be chronic. He has already seen a psychiatrist. Not capable of gainful employment. Sad case/had functioned at a high level finance. Now financially destitute. Please approve” (Record of Authority, Tab 18). [ 78 ] The Appeal Commissioner knew this context just as Mr. Durdle and Ms. Stone did and it behove him, as it did them, to take those factors into account. It does not appear by the record that he did.

The hallmarks of a reasonable decision are, as I noted earlier: its justifiability, its intelligibility, and its transparency. Deciding to reject Mr. Boyles’ application, supported only by the thin line of authority that emanated from Dr. Walsh in 2016, does not meet those criteria. [ 79 ] The Appeal Commissioner failed to consider as fulsomely as needed the lingering concerns that pervade this file: What did Dr. Jackman and Ms. Stone know about Mr. Boyles’ disability and why were they so convinced he was unable to work? Why did their reports not receive greater consideration than it appears they did?

Why did the other specialists who were engaged over the last six years, including Dr. Patel, not meet in person with Mr. Boyles and assess him before them, rather than just do paper reviews of his file? [ 80 ] Overall, I find that the Appeal Commissioner did not act reasonably when he rejected Mr. Boyles’ appeal of Provident 10 ’s refusal to accept his application for medical disability retirement in 2016. Issue No. 3: Did the Appeal Commissioner deny Mr. Boyles procedural fairness by not conducting a hearing? [ 81 ] This finding addresses the merits of Mr. Boyles application and allows me to give him a remedy.

Thus, I will not consider the third issue that he raised. Remedy [ 82 ] Mr. Boyles asks for alternative relief, either certiorari to quash the Appeal Commissioner’s decision and a finding that Mr. Boyles was medically certified as unable to perform efficiently the duties of his position or of an alternative position in accordance with section 16(1)(

b) of the 1991 Act ; or an order remitting the matter back to Provident 10 for determination. [ 83 ] I order certiorari and quash the Appeal Commissioner and find that Mr. Boyles is entitled to a medical disability retirement, dating back to when he left work on August 11, 2015 up to May 14, 2020, when he retired because of his service. Let me explain why. [ 84 ] In the first instance, I am doubtful that Provident 10 would deal with the matter differently than it has done in the past if I remit it for their further consideration, regardless of what I might direct them to do.

But more importantly, this matter has languished too long already, and it should be dealt with in as timely a manner as possible. [ 85 ] I note that the Supreme Court of Canada declined to remit Mr. Vavilov’s matter to the Canadian Registrar of Citizenship when it concluded that the Registrar had acted unreasonably by finding that Mr. Vavilov was not a Canadian citizen and canceling his certificate of citizenship.

The Court explained its decision, at paragraph 195, not to remit the matter to the Registrar this way: As noted above, we would exercise our discretion not to remit the matter to the Registrar for redetermination. Crucial to our decision is the fact that Mr. Vavilov explicitly raised all of these issues before the Registrar and that the Registrar had an opportunity to consider them but failed to do so. She offered no justification for the

interpretation she adopted except for a superficial reading of the provision in question and a comment on part of its legislative history. [ 86 ] I alluded to similar concerns here in preceding paragraphs. But there is more. Mr. Boyles left work at noon on August 11, 2015, and never returned. He retired from the position on May 15, 2020, and now receives a regular retirement pension. August 2015 to April 2016 is the relevant period to this application, especially the time between when he left work in August and when he filed his first application in October 2015. [ 87 ] Mr.

Boyles’ health, especially his mental health, at that time are critically important to this process and his medical records for that time are fixed and impermeable. Nothing new can be added to them by looking back to that time. It was opportune to have looked more carefully at his circumstances then and it was not done. His condition six or seven years ago and the context of his application cannot be replicated in any satisfactory manner, this far out from the event. The time is gone and the opportunity it presented past. The record as it was then is all that is available now on which to reassess Mr.

Boyles’ eligibility for a medical disability retirement when he applied for it. I found that record to be inadequate and reliance on it unreasonable. Costs [ 88 ] I see no reason to depart from the usual rule that costs follow the cause. Accordingly, I order Provident 10 to pay Mr. Boyles’ costs to be taxed under Column 3 of the Scale of Costs.

Summary and Disposition [ 89 ] Donald Boyles worked in the public service in Newfoundland and Labrador from 1984 to 2015, when he left work because of medical problems. He applied for a medical disability retirement under the Public Service Pensions Act, 1991 . The Government of Newfoundland and Labrador rejected his application and he appealed. Eventually, his application came before an Appeal Commissioner

of the Public Service Pension Plan Corporation, trading as Provident 10 , who dismissed it. He applied to this Court for judicial review of the Appeal Commissioner’s decision. [ 90 ] The Court reviewed the Appeal Commissioner’s decision on the standard of reasonableness and found that the Appeal Commissioner did not act reasonably when he rejected Mr. Boyles’ appeal of Provident 10 ’s refusal to accept his application for medical disability retirement in 2016. It ordered certiorari to quash the Appeal Commissioner’s decision and it found that Mr.

Boyles is entitled to a medical disability retirement, dating back to when he left his employment on August 11, 2015, until May 14, 2020, when he retired because of his service. It also ordered Provident 10 to pay costs. Order [ 91 ] In the result, I order that: 1. Certiorari issue quashing the decision of the Appeal Commissioner on October 13, 2021 and finding that Donald Boyles is entitled to a medical disability retirement from the Public Service Pension Plan Corporation, trading as Provident 10 , effective August 11, 2015 to May 14, 2020; and 2.

The Public Service Pension Plan Corporation, trading as Provident 10 pay Donald Boyles’ costs to be taxed under Column 3 of the Scale of Costs. _____________________________ Garrett A. Handrigan Justice