MINISTER OF HUMAN RESOURCES DEVELOPMENT Applicant - v. -, 2003 FCA 140

Date: 20030321 Docket: A-244-02 Neutral citation: 2003 FCA 140 CORAM: DESJARDINS J.A. LÉTOURNEAU J.A. EVANS J.A. BETWEEN: MINISTER OF HUMAN RESOURCES DEVELOPMENT Applicant - and - CROCE ANGHELONI Respondent Heard at Toronto, Ontario, on Monday, February 17, 2003. Judgment delivered at Ottawa, Ontario, on Friday, March 21, 2003. REASONS FOR JUDGMENT BY: DESJARDINS J.A. CONCURRED IN BY: EVANS J.A. CONCURRING REASONS BY: LÉTOURNEAU J.A. Date: 20030321 Docket: A-244-02 Neutral citation: 2003 FCA 140 CORAM: DESJARDINS J.A. LÉTOURNEAU J.A. EVANS J.A.

BETWEEN: MINISTER OF HUMAN RESOURCES DEVELOPMENT Applicant - and - CROCE ANGHELONI Respondent REASONS FOR JUDGMENT DESJARDINS J.A. [ 1 ] This is an application for judicial review of a decision of the Pension Appeals Board (the "Board") holding that the respondent was qualified for disability benefits under the Canada Pension Plan , R.S.C. 1985, c. C-8 (the " Plan " or the " Act "). [ 2 ] At issue is whether the Board erred in interpreting and applying the test for determining whether the respondent qualifies for disability benefits under the Plan .

More specifically, the issue is whether she qualifies under the definition of "severe" disability within the meaning of subparagraph 42(2) (a)(

i) of the Act . The Facts

[ 3 ] The respondent, Croce Angheloni, is 51 years old. She has a Grade 5 education in Italy, the equivalent of a Grade 8 education in Canada. She worked as a machine operator for Certified Brakes, a Mississauga-based brake factory, from August 1976 to November 1992. [ 4 ] In 1989, while working at the factory, she suffered a knee injury which required orthoscopic surgery. [ 5 ] In 1992, the factory closed. The respondent looked for work without success and went on unemployment insurance for some time.

According to the application and the accompanying questionnaire which was filed, she stopped work in November 1992 at age 40. She stated that she stopped working because of "bad health and shortage of work" (Applicant's Record, Volume 1, p.82). [ 6 ] On January 8, 1997, the respondent applied for disability benefits. She was unsuccessful initially and upon her reconsideration request.

She subsequently appealed the rejection of her application to the Review Tribunal. [ 7 ] On August 23, 1999, the Review Tribunal held that she was not entitled to disability benefits as her disability did not meet the definition of "severe" and "prolonged" set out in the statute. The respondent appealed the decision of the Review Tribunal to the Board. [ 8 ] The Board allowed the respondent's appeal on February 13, 2002. The applicant, the Minister of Human Resources Development Canada (MHRD) is now seeking judicial review of this decision. The Relevant Legislation [ 9 ] Paragraph 42(2) (

a) of the Act reads: 42(2) For the purposes of this Act , (

a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph, (

i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and (ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and 42(2) Pour l'application de la présente loi _ :

a) une personne n'est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d'une invalidité physique ou mentale grave et prolongée, et pour l'application du présent alinéa _ : (

i) une invalidité n'est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice, (ii) une invalidité n'est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès; The Standard of Review [ 10 ] Pursuant to the powers set out in subsection 83(11) and

section 84 of the Act , proceedings before the Board are in the nature of de novo proceedings. The Board must therefore apply the same criteria as if it were hearing the matter in the first instance. In order to determine her entitlement to benefits, the Board needs only to be satisfied, on a balance of probabilities, that the respondent suffers from a disability that is both severe and prolonged. [ 11 ] The standard of review to be applied by this Court on an application for judicial review of a decision of the Board stands at the correctness end of the spectrum on matters of law.

On matters of fact, the standard of review is that of patent reasonableness ( Villani v. Attorney General of Canada , 2001 FCA 248 (CanLII) , [2002] 1 F.C. 130; Canada v. Skoric , 2000 CanLII 17109 (FCA) , [2000] 3 F.C. 265; Powell v. Canada (Minister of Human Resources Development ) (2000), 258 N.R. 123 (F.C.A.) ; Lalonde v. Canada 2002 FCA 211 (CanLII) , 2002 F.C.A. 211, [2002] F.C.J. No. 809 (F.C.A.) (QL)). Analysis [ 12 ] The Canada Pension Plan is a contributory regime. Applicants are only eligible for disability benefits if they have made a minimum number of years of contribution to the Plan .

This requirement is known as the Minimum Qualifying Period (the "MQP"), and is calculated according to the provisions of the Plan at the relevant time. On the basis of her contributory history, the respondent was only entitled to a disability pension if she became disabled as defined by subsection 42(2) of the Act on or before December 31, 1997. [ 13 ] At the outset of its reasons, the Board referred to the case of Villani , supra , where this Court held that the words in subparagraph 42(2) (a)(

i) of the Act must be interpreted in a "real world" context. The Board quoted parts of that subparagraph where it is said that "a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable of regularly pursuing any substantially gainful occupation". The Board added that "'economic conditions' in the area in which the respondent has been employed must also be a factor to be taken into consideration".

[ 14 ] The Board erred in law in adding economic conditions as a relevant consideration. In Minister of Human Resources Development v. Rice , 2002 FCA 47 (CanLII) , 2002 F.C.A. 47, [2002] F.C.J. No. 170 (F.C.A.) (QL), this Court made it clear, in paragraph 13 of the decision, that subparagraph 42(2) (a)(

i) refers to the capability of the individual to regularly pursue any substantially gainful occupation and not to labour market conditions. [ 15 ] This error is difficult to understand considering that the Board's attention was brought to the Rice decision at the hearing. The Board knew or ought to have known that it was bound by Rice and should not have engaged on a frolic of its own. It is unclear however whether this error had any effect on the decision itself. No evidence was adduced on the economic conditions prevailing at the time in the Mississauga area where the respondent resides.

The Board itself referred to none. [ 16 ] In order to meet her burden of proof, the respondent filed an impressive number of medical reports for consideration by the Board. The Board summarized this evidence. But it did so incompletely. [ 17 ] The Board referred in detail to the numerous reports by Dr. M. Roscoe, an orthopaedic surgeon, and to his conclusion of October 16, 1996, that the respondent's disability and symptoms would continue on a long term basis (Applicant's Record, Volume 1, p.110). [ 18 ] The Board then referred to the report of Dr. Joel E.

Maser, an internist to the Income Securities Programs Branch dated April 1, 1997. The Board reported what Dr. Maser had to say about the respondent's health when he saw her on September 16, 1996. The Board however failed to report Dr. Maser's letter of May 2001 where Dr. Maser noted, after seeing the respondent in April 1998: Ms. Angheloni is a bright woman who is capable of working. However I do not think that she could work at her former job or any job which involves standing all day or climbing and descending stairs.

There is a risk that if she did these activities or if she operated machinery, and if her leg gave way, an accident could result. (Applicant's Record, Volume 1, p.145) [ 19 ] At paragraph 19 of its decision, the Board summarized the report of Dr. M. Samways of April 27, 1998, in the following manner: [19] Then there is the independent medical report of Dr. M. Samways given to the Appeals Division. Dr. Samways is a physical medicine and rehabilitation consultant.

He found that the Appellant perceived a disability and that her reported abilities on sitting and standing and walking as well as her ability to carry, lift and hold two pounds would enable her to do light sedentary work with regular change of position. But the doctor does not say what kind of work would be expected of the Appellant. [ 20 ] The Board did not refer to that part of the report of Dr.

Samways (Applicant's Record, Volume 1, p. 128) which indicated that the respondent, by her own admission, limited all her activities secondary to pain and that it would be in her best interest to attend a chronic pain program where cognitive and behavioural strategies are used. The focus of these types of programs, he explained, was to increase functional activities despite persisting discomfort. Function, he added, is therefore promoted and there is an attempt to extinguish pain behaviour. In addition, Dr.

Samways explained that there was an extensive body of evidence to support active exercise in knee osteoarthritis and that it would be appropriate to encourage the respondent to adopt a regular walk program. The prognosis of "curing" persisting pain was low. However, the approach of a chronic pain program had been proven to increase function and decrease perceived disability (underlined in the text). Dr. Samways concluded: Mrs. Augheloni [sic] perceived disability is extensive.

Her reported abilities on sitting and standing and walking as well as ability to carry, lift and hold 2 lbs would unable her to do light sedentary work with regular change of position. Give Mrs. Augheloni's [sic] perceived disability due to her pain, she herself would not likely perceive this as an option. In a letter dated January 30, 2002, Dr. Samways characterised the word "unable" as a typographical error and replaced it by the word "enable" (Applicant's Record, Volume 1, p. 205). [ 21 ] The respondent's family doctor, Dr. Lorne Sokol, wrote numerous letters and reports supporting the respondent's position.

In his report of January 18, 2002, (Applicant's Record, Volume 1, pp. 160 and 164) he reviewed in detail the respondent's medical file. He failed however to mention Dr. Maser's report filed August 2001, where Dr. Maser stated that the respondent was a bright woman capable of working although not in her former employment (Applicant's Record, Volume 1, p. 145). Dr. Sokol also failed to mention the report of Dr. Samways of April 27, 1998, referred to above. Both Dr. Maser and Dr. Samways were more optimistic about the respondent's capacity to work. The Board never commented on the failure of Dr.

Sokol to report the views of these doctors. [ 22 ] The Board also did not deal either with that part of the report of Dr. R. Arbitman, a psychiatrist, of August 2001 where Dr. Arbitman said that the respondent had a global assessment of functioning of around 65 from a diagnostic point of view, according to the DSM-IV (Applicant's Record, Volume 1, pp.138-139). [ 23 ] Dr. Frederick Forbes, advisor to the Canada Pension Plan , attempted to explain what was meant by a global assessment of functioning or GAF of around 65.

He wrote that "[t]his by definition in the DSM-IV is equivalent to some mild symptoms or some difficulty in social, occupational or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships" (Applicant's Record, Volume 1, p. 203). The Board did not inquire further as to the consequence of a GAF of around 65.

[ 24 ] In his affidavit of June 6, 2002, Dr. Frederick Forbes wrote that the respondent was asked in cross-examination at the hearing before the Board whether, since 1992, she had taken any steps to retrain, upgrade her education or look for lighter employment. The respondent, he stated, "responded 'no' to each of these questions, she had taken no steps to retrain, no steps to update her education, nor any steps to look for lighter employment" (Applicant's Record, Volume 1, p. 208). [ 25 ] It is evident therefore that, throughout its

summary of the medical evidence, the Board discarded elements in the evidence which tended to establish a lack of effort on the part of the respondent to manage her pain or find suitable work considering her condition. [ 26 ] After having summed up the evidence, the Board said at paragraph 22 of its reasons: I do not think that "objective" medical evidence is necessarily the criterion. The question is whether the Board believes the Appellant when she says she is suffering. All the doctors seem to agree that she is although there is very little objective medical evidence to support that conclusion.

I believe her when she says that she suffers from the disabilities. So did the Review Tribunal. But the Tribunal said that her disabilities were insufficient to disable her from doing something - whatever that was. [ 27 ] It is unclear what the Tribunal and the Board meant by "objective" medical evidence. They might simply have referred to x- rays, lab tests, or other clinical evidence. Or they might have opposed "objective" medical evidence to the subjective evidence given by the respondent herself. The suffering of the respondent, however, is not an element on which the test of "disability" rests.

The Board must be satisfied that the respondent suffers from disabilities which, in a "real world" sense, render her incapable regularly of pursuing any substantially gainful occupation. [ 28 ] The Board finally made important findings of fact in paragraph 23 of its reasons when it said: She suffers from a right hand disability which prevents her from using that hand. She also has a knee that locks in position that might well cause a serious accident. I think it unlikely that she can be retrained given her lack of education.

For these reasons the appeal is allowed. [ 29 ] Although the Board noted that the respondent had a knee that locks in position "that might well cause a serious accident", what Dr. Maser had said was that "if her leg gave way, an accident could result" (Applicant's Record, Volume 1, p.145). [ 30 ] But with or without this slight exaggeration, the Board never determined in what manner these findings affected the respondent's ability to work. Conclusion [ 31 ] The reasons given by the Board for its decision indicate that the Board failed to analyse the evidence adequately.

It considered some medical reports and ignored others. It came to a conclusion on disability without explaining the factors on which it had based its conclusion. In brief, the Board failed to conduct an inquiry that was tailored to the requirements of the statutory test provided in paragraph 42(2) (

c) of the Act . [ 32 ] The Board's analysis of the evidence is inadequate. Its decision must therefore be set aside. In Minister of Human Resources Development v. Quesnelle , 2003 FCA 92 , [2003] F.C.J. No. 267 (F.C.A.) (QL), this Court stressed the important public interest at stake in matters such as this where public funds are engaged. The Board moreover is under a statutory duty to provide the parties with reasons for its decision ( subsection 83(11) of the Act ).

The reasons given in this case are not adequate to discharge its statutory duty to explain the basis of its decision. [ 33 ] I would therefore allow this application for judicial review, I would set aside the decision of the Board and I would refer the matter back to the Board for a redetermination by a differently constituted panel on the basis of the record as it exists and any other evidence the parties may wish to adduce. The applicant is not asking for costs. "Alice Desjardins" J.A. "I agree John M.

Evans" LÉTOURNEAU J.A. (Concurring) [ 34 ] I have had the benefit of reading my colleague's reasons and I fully agree with them. I simply want to refer to an additional factor that, in my view, the Board should have taken into account in its assessment of the evidence. [ 35 ] Before I do, I wish to add the following with respect to the suffering alleged by the respondent. As my colleague pointed out, in coming to its conclusion that the respondent was disabled, the Board relied heavily upon the suffering expressed by the respondent in her testimony and downplayed the role of objective medical evidence.

Yet, as regards the chronic pain syndrome alleged by the respondent, it is interesting to note that Dr. Samways, a specialist in physical medicine and rehabilitation, found numerous

inconsistencies in his physical examination of the respondent and her reports of pain: see the Appellant's Record, page 60. No mention of these inconsistencies and their impact is found in the Board's decision. [ 36 ] I now turn to the role actually played by Dr. Sokol throughout the process. Dr. Sokol was the family doctor of the respondent upon whom the Board also relied for its decision. Understandably, perhaps, he tried to assist the respondent in her attempt to obtain disability benefits. Laudable as this may be on the part of Dr.

Sokol, there is, however, involved in this approach, a risk of impinging one's credibility or of creating an appearance of lack of objectivity. This happens, in my view, when the involvement goes beyond the mere usual assistance and enters the realm of advocacy: see Blaskiw v. Metro Cab Co. , [1967] O.J. 216, at paragraph 5 (Ont. S. Ct.) ; R. v. Lebeau , [1999] O.J. No. 4207 (Ont. S. Ct.) ; Bent v. MHRD , October 13, 2000; and Calamusa v. MHRD , November 22, 1999, two decisions of the Board mentioned in G. Killeen and A.

James, Annotated Canada Pension Plan and Old Age Security Act , CCH Canadian Ltd., Toronto, 2001, page 64. With respect, I believe the record in the present instance clearly demonstrates that Dr. Sokol went beyond his role of treating physician and became an advocate of the respondent's claim. [ 37 ] Indeed, on July 7, 1997, Dr.

Sokol wrote, on the respondent's behalf, to the Director of the Appeals and Reconsideration Division of Human Resources Development Canada (HRDC) stating that she "should be considered totally and permanently disabled from the work force": see the Applicant's Record, pages 92-94. [ 38 ] On October 9, 1998, after the respondent had been informed that she had failed on her reconsideration request, he wrote a substantially similar letter, albeit updated, to the Reconsideration branch of HRDC: see the Applicant's Record, page 129.

He initiated the reconsideration. [ 39 ] On November 6, 1998, he again wrote a letter on her behalf, this time in order to commence an appeal to the Review Tribunal: see the Applicant's Record, page 96. [ 40 ] On March 30, 1999, he wrote to the Commissioner of the Review Tribunals, again re-iterating that the respondent should be considered totally and permanently disabled from the work force: see the Applicant's Record, page 133. [ 41 ] On November 17, 1999, after the decision of the Review Tribunal had been rendered, he wrote a lengthy letter to the Pensions Appeal Board making the case that the respondent met the criteria for CPP benefits and stating that she "will never return to the work force": see the Applicant's Record, pages 23-26. [ 42 ] On January 18, 2002, he wrote to the Registrar of the Board with his opinion of the respondent's medical condition for the purposes of the Board's determination: see the Applicant's Record, page 160. [ 43 ] In his letter of March 30, 1999, Dr.

Sokol cited, in support of the respondent's disability, the statement of Dr. Samways' report that her reported abilities "would unable her to do light sedentary work with regular change of position". This was an obvious typographical error to note for anyone reading Dr. Samways' report, especially a doctor. The conclusion of Dr. Samways, as my colleague pointed out, was that her reported abilities "would e nable her to do light sedentary work with regular change of position". In his subsequent correspondence, Dr. Sokol made no reference in any manner whatsoever to Dr.

Samways' report which was adverse to the respondent. Nor did he mention in his letter of January 18, 2002, addressed to the Board, the positive Global Assessment of Functioning test performed on the respondent by Dr. Arbitman while referring to excerpts in Dr. Arbitman's report that were favourable to his patient's claim for disability. [ 44 ] In

summary, I believe the Board must be vigilant in assessing the documentary evidence of a family doctor, especially one who did not testify at the hearing, where there are indicia that his required and expected neutrality has been lost. I am not satisfied that the Board, in the present instance, addressed its mind to the advocacy role played throughout by Dr. Sokol. [ 45 ] I would dispose of this application for judicial review as proposed by my colleague. "Gilles Létourneau" J.A. FEDERAL COURT OF CANADA APPEAL DIVISION Names of Counsel and Solicitors of Record DOCKET: A-244-02 STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA -and-

CROCE ANGHELONI PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: FEBRUARY 17, 2003 REASONS FOR JUDGMENT BY : DESJARDINS J.A. CONCURRED IN BY: LÉTOURNEAU J.A. EVANS J.A. DATED: MARCH 21, 2003 APPEARANCES : Mr. Stuart Herbert For the Applicant Mr. Tony Afecto For the Respondent SOLICITORS OF RECORD : MORRIS ROSENBERG Deputy Attorney General of Canada For the Applicant MOSTYN & MOSTYN Barristers & Solicitors 845 St. Clair Avenue West 4 th Floor Toronto, ON M6C 1C3 For the Respondent