PENSIONS |
Callihoo v. Canada (Attorney General)
T-859-99
MacKay J.
12/5/00
15 pp.
Judicial review of Pension Appeals Board's refusal to grant leave to appeal Review Tribunal's decision applicant not disabled within meaning of Canada Pension Plan (CPP), s. 42(2)--Applicant, labourer, sustaining injuries to neck, lower back, legs, arms in car accident in 1991--Applied for benefits under CPP in 1995--Tribunal holding insufficient medical evidence injuries resulted in applicant being so severely disabled as required by Act to qualify for benefits--Leave to appeal to Pension Appeal Board denied--Standard of review--Measure of deference in given case assessed by "pragmatic and functional" approach recently restated in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, followed in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817--Based on recent case law, review of decision concerning application for leave to appeal to PAB involving two issues: (1) whether decision maker applied right test, i.e. whether application raising arguable case without otherwise assessing merits of application; and (2) whether decision maker erred in law or in appreciation of facts in determining whether arguable case raised; if new evidence adduced, or if application raising issue of law or fact not appropriately considered by Review Tribunal, arguable issue raised for consideration, warranting grant of leave--Applicant raising one additional item of "evidence" not raised before Review Tribunal when reached its decision, but submitted subsequent to application for leave to appeal i.e. that applicant awarded benefit under Alberta Insured for the Severely Handicapped (AISH)--Decision to deny leave not referring to that fact--Applicant submitting error to ignore this information when requirement of severe disability under AISH program same as that under CPP--Not adducing any further evidence of nature of provincial plan--Without further evidence, no significant additional evidence raised by application for leave--Further reference in written grounds for application for judicial review not providing "evidence" warranting Court's intervention--That similarities between concepts in definition of "severe handicap" in provincial regulations, and CPP, s. 42(2) not meaning qualification for benefit under provincial legislation raising arguable issue concerning decision similar evidence not qualifying for benefit under another statute--If one member of Tribunal demonstrating little or no knowledge of one of conditions claimed to affect applicant, not providing ground for finding bias; member's decision not based on own understanding of medical conditions, but upon assessment of reports of medical examiners--Concern insufficient attention paid to certain medical reports concern about weight given by Tribunal to particular aspects of evidence; any such factual errors not basic to ultimate decision--Tribunal relied upon, applied definition of "disabled" under CPP, s. 42(2) as required to do--Leave application assessed by proper test, i.e. whether raised arguable case, without considering merits of application--No basis for Court to intervene--Application dismissed--Canada Pension Plan, R.S.C., 1985, c. C-8, s. 42(2) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 12; S.C. 1992, c. 1, s. 23).