CHRISTIAN TOLKSDORF Appellant v. ATTORNEY GENERAL OF CANADA, 2019 FCA 158

Date: 20190521 Docket: A-111-18 Citation: 2019 FCA 158 CORAM: NEAR J.A. RENNIE J.A. LOCKE J.A. BETWEEN: CHRISTIAN TOLKSDORF Appellant and ATTORNEY GENERAL OF CANADA Respondent Heard at Ottawa, Ontario, on May 16, 2019 (via teleconference call with appellant in Surrey, British Columbia) Judgment delivered at Ottawa, Ontario, on May 21, 2019. REASONS FOR JUDGMENT BY: LOCKE J.A. CONCURRED IN BY: NEAR J.A. RENNIE J.A. Date: 20190521 Docket: A-111-18 Citation: 2019 FCA 158 CORAM: NEAR J.A. RENNIE J.A. LOCKE J.A.

BETWEEN: CHRISTIAN TOLKSDORF Appellant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT LOCKE J.A. [ 1 ] This is an appeal from an Order of the Federal Court (per Martineau J.) dated March 6, 2018 (T-1697-17) which summarily dismissed Christian Tolksdorf’s (the appellant’

s) application for judicial review. The subject of that judicial review application was a decision by the Social Security Tribunal – Appeal Division (SST-AD) refusing leave to appeal a decision of the Social Security Tribunal – General Division (SST-GD). [ 2 ] The SST-GD decision refused to alter the denial of the appellant’s request for a disability pension under the Canada Pension Plan , R.S.C. 1985, c. C-8 [ CPP ]. The appellant had claimed that he qualified for a disability pension on the basis of a severe and prolonged

disability resulting from severe spinal pain as well as overwhelming anxiety and depression, including phobias and fear of commonplaces. The SST-GD was not convinced that the appellant’s disability was "“severe”" as defined in subparagraph 42(2)(a)(

i) of the CPP:"“a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly ofpursuing any substantially gainful occupation.”" The SST-GD acknowledged that the appellant faces challenges participating in theworkforce, but found the evidence insufficient to conclude that he could not perform some type of job. Specifically, the SST-GD statedas follows: [32] The difficulty here is that very little is being done to treat the Appellant.

This indicates either a lack of severity, or afailure on his part to seek out and participate in reasonable treatment options. He has tried a variety of medications and isunhappy with them because of their side-effects. However, he visits his family doctor rarely. Whatever psychotherapy he hasreceived has been from his family doctor rather than a specialist, and there is no evidence that he has received any treatmentof this type at least since September 2011. He has not been referred to a psychiatrist or to group therapy. [33] There is nothing in Dr.

Dang’s clinical notes to indicate that more intensive treatment is required, and that theAppellant is unable to access it because of his condition or for other reasons beyond his control. Dr. Dang has not stated thatthe Appellant needs to see him more often. While Dr. Dang’s report gave the Appellant’s diagnosis, it did not indicate thatthe Appellant was disabled from working because of it, nor did Dr. Dang describe impairments that would necessarilypreclude the Appellant from pursuing some type of substantially gainful occupation.

Indeed, he was able to work for almosta year after his anxiety grew worse, and there is no evidence that he stopped working because of his health. [3] Before the SST-AD, the appellant sought leave to appeal the SST-GD’s decision. The SST-AD refused leave, finding that theappellant had failed to explain how, in his view, the SST-GD had erred in rendering its decision. The SST-AD examined the record andconcluded that the SST-GD had not overlooked or misconstrued any of the evidence. [4] The appellant then commenced his application for judicial review of the SST-AD’s decision before the Federal Court.

On review ofthe appellant’s notice of application, the respondent formed the view that it was insufficient and irregular in that it failed to comply withthe requirement of Rule 301(

e) of the Federal Courts Rules, SOR/98-106, to set out "“a complete and concise statement of the groundsintended to be argued.”" The respondent moved for an Order requiring the appellant to provide an amended notice of application.Prothonotary Mandy Aylen granted the respondent’s motion, ordering that the appellant "“serve and file an amended Notice ofApplication that sets out a complete and concise statement of the grounds for judicial review that the [appellant] intends to argue at thehearing of the application.”" The prothonotary’s Order was not appealed and is not in dispute in the present appeal. [5] The appellant filed an amended notice of application, but the respondent took the position that it remained deficient.

This time, therespondent moved to strike (summarily dismiss) the application. It is the Order granting that motion that is the subject of the presentappeal. That Order found that both notices of application were deficient, and concluded that "“it would not be in the best interest ofjustice to allow the application to proceed further”" since the appellant had been allowed full opportunity to correct the deficiencies. [6] The decision of a judge to grant or refuse a motion to strike is discretionary.

This Court will defer to such a decision on appeal in theabsence of an error of law, a misapprehension of the facts, a failure to give appropriate weight to all relevant factors, or an obviousinjustice: Canadian Imperial Bank of Commerce v. Canada, 2013 FCA 122 at para. 5; Apotex Inc. v. Canada (Governor in Council),2007 FCA 374 at para. 15. [7] Though the judge’s analysis was brief, I am satisfied that he did not err. In my view, the

summary dismissal of the application forjudicial review before the Federal Court was justified on the basis that the application for judicial review was so clearly improper as tobe bereft of any chance of success: see Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 atpara. 47; David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., (FCA), [1995] 1 F.C. 588 at page 600 (C.A.). [8] The appellant’s failure to comply with the Federal Courts Rules gave the judge the discretion to dismiss the application: see Rule59(c).

More importantly, the appellant has failed to indicate any basis on which he might reasonably expect to succeed in an appeal fromthe decision of the SST-GD. Without such a basis, the decision of the SST-AD refusing leave to appeal appears to be reasonable, and theapplication for judicial review appears to be bound to fail. My own review of the documents on record, including the extract from theSST-GD’s decision quoted in paragraph 2 above, has not revealed any basis to expect otherwise. In my view, the application for judicialreview was indeed bound to fail. [9] I would dismiss the present appeal.

Since the respondent does not seek costs, none will be awarded. "George R. Locke" J.A. “I agree. D. G. Near J.A.” “I agree. Donald J. Rennie J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket: A-111-18 (APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE MARTINEAU DATED MARCH 6, 2018 (DOCKET NUMBER T-1697-17)) STYLE OF CAUSE: CHRISTIAN TOLKSDORF v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: May 16, 2019 REASONS FOR JUDGMENT BY: LOCKE J.A. CONCURRED IN BY: NEAR J.A. RENNIE J.A. DATED: May 21, 2019 APPEARANCES : CHRISTIAN TOLKSDORF for the appellant SELF REPRESENTED SYLVIE DOIRE For The Respondent SOLICITORS OF RECORD : Nathalie G. Drouin Deputy Attorney General of Canada For The Respondent