PENSIONS |
Burley v. Canada (Minister of Human Resources Development)
T-1462-99
2001 FCT 127, Muldoon J.
27/2/01
9 pp.
Judicial review of Chair of Pension Appeals Board's decision denying leave to appeal to Pension Appeals Board (PAB)--Applicant, 53-year-old woman with grade six education, worked as cleaner for 23 years--Stopped working in 1995 because of pain, fatigue--Eight-year history of persistent aching, numbness--Diagnosed as having chronic fibromyalgia--Application for Canada Pension Plan benefits denied--Request for reconsideration denied--On appeal, Review Tribunal holding applicant not disabled within meaning of Canada Pension Plan--Applicant filed application for leave to appeal from Tribunal's decision--Subsequent Functional Abilities Evaluation Report prepared by Ontario March of Dimes concluding applicant's options for finding suitable gainful employment limited--Report submitted to Pension Appeals Board as additional medical evidence in support of application for leave to appeal--Chair refused leave to appeal, citing evidence supporting Tribunal's decision; stating application not revealing new medical evidence probably leading to conclusion on appeal differing from that of Tribunal--Whether applied correct legal test in denying leave application question of law, as decision adjudicative of applicant's rights for which PAB having no special expertise--Not protected by privative clause--Standard of review correctness--Proper test for deciding application for leave to appeal to PAB whether or not arguable case raised: Martin v. Canada (Minister of Human Resources Development) (1999), 252 N.R. 141 (F.C.A.)--Reasons for refusing leave to appeal suggesting Chair went beyond merely considering whether arguable case to considering possibility of success on merits of applicant's case, exceeded jurisdiction--Stepped into role of PAB, reviewing merits of application once leave granted--Error of law--Unmentioned Functional Abilities Evaluation Report alone indicated arguable case as to whether applicant meeting criteria of s. 42(2)(a)(i) i.e. claimant must be incapable regularly of pursuing any substantial gainful occupation for disability to be severe--Chair applied incorrect test, placed too heavy burden on applicant when assessing application for leave to appeal--Applicant not required to prove case at this point in proceedings--Leave to appeal preliminary step to hearing on merits--Application allowed--Matter remitted to different member of PAB for adjudication in manner consonant with these reasons--Canada Pension Plan, R.S.C., 1985, c. C-8, s. 42(2)(a)(i) (as am. by R.S.C., 1985, c. 30, s. 12).