HARALAMBOS KIRIAKIDIS Applicant v. ATTORNEY GENERAL OF, 2011 FCA 316

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20111117 Docket: A-156-11 Citation: 2011 FCA 316 CORAM: NADON J.A. SHARLOW J.A. DAWSON J.A. BETWEEN: HARALAMBOS KIRIAKIDIS Applicant and ATTORNEY GENERAL OF CANADA Respondent Heard at Toronto, Ontario , on November 17, 2011. Judgment delivered from the Bench at Toronto, Ontario , on November 17, 2011. REASONS FOR JUDGMENT OF THE COURT BY: DAWSON J.A. Date: 20111117 Docket: A-156-11 Citation: 2011 FCA 316 CORAM: NADON J.A. SHARLOW J.A. DAWSON J.A. BETWEEN: HARALAMBOS KIRIAKIDIS Applicant and ATTORNEY GENERAL OF CANADA

Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on November 17, 2011) DAWSON J.A. [1] The Pension Appeals Board denied Mr. Kiriakidis’ claim for disability benefits under the Canada Pension Plan, R.S.C.1985, c. C-8 (Plan). The Board was not satisfied that Mr. Kiriakidis’ disability was severe within the meaning of subparagraph 42(2)(a)(

i) of the Plan as at December 31, 2001, the end of his minimum qualifying period for benefits. [2] Subparagraph 42(2)(a)(

i) of the Plan provides: 42.

(2) For the purposes of this Act, (

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

i) a disability is severe only if by reasonthereof the person in respect of whomthe determination is made is incapableregularly of pursuing any substantiallygainful occupation, and [emphasisadded] 42.

(2) Pour l’application de la présenteloi :

a) une personne n’est considérée commeinvalide que si elle est déclarée, de lamanière prescrite, atteinte d’uneinvalidité physique ou mentale grave etprolongée, et pour l’application duprésent alinéa : (

i) une invalidité n’est grave que si ellerend la personne à laquelle se rapporte ladéclaration régulièrement incapable dedétenir une occupation véritablementrémunératrice, [Non souligné dansl’original.] [3] On this application for judicial review of that decision, Mr. Kiriakidis argues that the Board erred in law in failing to applythe principles established by this Court in Villani v. Canada (Attorney General), 2001 FCA 248 , [2002] 1 F.C. 130. [4] In Villani, this Court held that, when applying subparagraph 42(2)(a)(

i) of the Plan, the Board is required to take a “realworld” approach. This requires the Board to determine whether an applicant, in the circumstances of his or her background and medicalcondition, is capable regularly of pursuing any substantially gainful occupation. [5] In our respectful view, the Board did not err as asserted by Mr. Kiriakidis. Mr. Kiriakidis bore the burden of establishing thathe suffered from a severe and prolonged mental or physical disability on or before December 31, 2001. For the disability to be severe,Mr.

Kiriakidis had to be incapable of “regularly of pursuing any substantially gainful occupation.” However, the evidence before theBoard included the following: 1. In the Questionnaire for Disability Benefits completed by Mr. Kiriakidis, he reported that his last day on the job was in2003 (page 101, applicant’s record) and it was only in 2004 that he could no longer work because of his medical condition (page 103,applicant’s record). 2. In a report dated December 3, 2001, his orthopaedic specialist, Dr. Tile, advised that: This man returned for review.

He is expanding his business now to include renovations and luckily he has two guys working with him. He says it is mostly his lower back that bothers him. He is having very little pain in his hip and doesn’t require analgesics or Ansaids. Hewalks with virtually no limp. Surprisingly therefore his x-ray shows progression. The osteoarthritis in his right hip is showing more joint narrowing than in March. His

spinal portion of the pelvic x-ray looks quite good. He could bend over and virtually touch the floor today. His hip is stiff and painful. At this time, he wishes to just carry on. He is obviously coping very well . We did discuss the future and will wait and see what happens. Return in 6 mos., assessment, x-ray. [emphasis added] 3. In a report dated January 21, 2003 Dr. Tile stated that: Mr. Kiriakidis is doing reasonably well. He is doing his renovation business with two other workmen, but he is actually doing the work himself . He is an electrician by trade. He walks well. He gets up out of the chair well.

He has a good range of motion . His x-rays show progression of the osteoarthritic right hip, but minimally so. At this time he is coping reasonably well and should not proceed to hip arthroplasty . He takes occasional medication. We should follow him along. I have told him to call me should something suddenly happen, otherwise we will see him in a year’s time, x-ray right hip and pelvis. [emphasis added] [ 6 ] On this evidence it was reasonable for the Board to conclude that Mr. Kiriakidis “not only had the capacity to work as of December 2001, but did work.” (Reasons of the Board at paragraph 54). [ 7 ] Mr.

Kiriakidis argues that this conclusion fails to consider his testimony that his medical condition was such that he was unable to devote enough time to his business to make it successful, with the result that he was forced to declare bankruptcy. It follows, he says, that the severity of his medical condition was such that he was unable to engage in truly remunerative work with consistent frequency. The difficulty with the submission is that the profitability of Mr. Kiriakidis’ business venture is not necessarily an indictor of his capacity to do work.

This leaves only the evidence cited above which does support the conclusion of the Board that he did not meet the statutory test at the relevant time. [ 8 ] For these reasons, the application for judicial review will be dismissed. The respondent did not seek costs, no costs are awarded against the applicant. "Eleanor R. Dawson" J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-156-11 (AN APPEAL FOR JUDICIAL REVIEW OF A DECISION OF THE PENSION APPEALS BOARD, DATED MARCH 14, 2011, DOCKET NO. PAB NO: CP26893) STYLE OF CAUSE: HARALAMBOS KIRIAKIDIS v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: NOVEMBER 17, 2011 REASONS FOR JUDGMENT OF THE COURT BY: (NADON, SHARLOW AND DAWSON JJ.A.) DELIVERED FROM THE BENCH BY: DAWSON J.A. APPEARANCES : Yehuda Levinson FOR THE APPLICANT Benoit Laframboise FOR THE RESPONDENT SOLICITORS OF RECORD : Levinson & Associates Barristers and Solicitors Toronto , Ontario FOR THE APPLICANT

Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT