PENSIONS |
Garcia v. Canada (Attorney General)
A-218-00
2001 FCA 200, Malone J.A.
18/6/01
8 pp.
Judicial review of Pensions Appeal Board's decision applicant not disabled within meaning of Canada Pension Plan, s. 42(2)--Applicant alleging: (1) Board's failure to provide record of proceedings denial of natural justice; (2) Board's failure to explain to applicant certain evidentiary rulings made during course of testimony breach of procedural fairness, particularly as applicant self-represented; (3) Board acted without jurisdiction when failed to inform him of right to interpreter; and (4) Board erred in law when implicitly imposed as precondition to award of disability pension duty to submit to all possible cures--(1) Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 indicating in absence of statutory right to recording, reviewing court must determine whether record provided allowing it to properly dispose of application for appeal or review--Affidavit of Minister's counsel at hearing and application for judicial review providing adequate record for Court to review factual findings in order to determine whether ground of review well-founded--(2) Without description of motions, directions, rulings applicant referring to, Court unable to review whether breach of procedural fairness--(3) R. v. Tran, [1994] 2 S.C.R. 951, invoked by applicant as establishing relevant enquiry with respect to right to interpreter, expressly limited to criminal cases--Court therein careful to state courts not required, as matter of course to inform accused of right to interpreter or to inquire as to whether accused having trouble understanding proceedings--Applicant proceeded in English without either mentioning language difficulties or requesting interpreter--No basis on which to find Board acted without jurisdiction--(4) Board quoted from report by general practitioner assessing applicant's condition for British Columbia Worker's Compensation Board (BCWCB)--Emphasized passage from report by disability awards medical adviser for BCWCB--Cited second report of general practitioner and testimony of physician called as witness on behalf of Minister to review medical reports--Impossible to determine from Board's reasons extent to which may have imposed upon applicant duty to pursue any, all possible treatment or therapy--Without ruling on point, and without determining whether, to what extent such duty applicable to applicant in circumstances, Board's decision containing another fatal procedural defect in that merely quoting from three medical reports, citing brief oral opinion--Not accepting, rejecting, analysing evidence, but simply concluding that in its opinion applicant not meeting strict requirements of Act--Board's reasoning leading to final disposition must be fully explained because of importance to applicant--S. 83(11) expressly imposing upon Board obligation to notify in writing parties to appeal of decision and of reasons therefor--Board's failure to give reasons for conclusion in circumstances, reviewable error warranting intervention of Court--Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 42(2) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 12; S.C. 1992, c. 1, s. 23), 83(11) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45).