Martin v. Canada ( Minister of Human Resources Development )
A-229-98
Malone J.A.
16/12/99
4 pp.
Appeal from Trial Division decision ((1998), 153 F.T.R. 124) dismissing application for judicial review of Pensions Appeal Board (PAB) Vice-Chairman decision refusing appellant leave to appeal to PAB-Citing Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639, Trial Division held legality of decision proper test for determining whether Court can overrule decision in such cases, not correctness-Appeal allowed-In Kerth v. Canada (Minister of Human Resources Development), [1999] F.C.J. No. 1252 (T.D.) (QL), Reed J. held proper test some arguable ground upon which proposed appeal might succeed needed in order for leave to be granted-PAB ViceChairman herein erred in law in refusing leave to appeal as went much further than merely considering whether arguable case or question of law or jurisdiction had been raised and instead considered whether appellant could succeed on merits-Applied incorrect test and placed too heavy burden on appellant when assessing application for leave to appeal-At least arguable case as to proper interpretation of Canada Pension Plan, s. 42(2)(a)(i) which requires that for disability to be severe claimant must be incapable regularly of pursuing any substantially gainful occupation-Review Tribunal, however, assumed appellant had to show incapable of doing any type of work-Canada Pension Plan, R.S.C., c. C-5, s. 42(2)(a)(i) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 12).