Osborne v. Canada (Attorney General)

Osborne v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2005-12-07 Neutral citation 2005 FCA 412 File numbers A-159-05 Decision Content Date: 20051207 Docket: A-159-05 Citation: 2005 FCA 412 CORAM: ROTHSTEIN J.A. NADON J.A. PELLETIER J.A. BETWEEN: GLEN OSBORNE Applicant and THE ATTORNEY GENERAL OF CANADA Respondent Heard at Vancouver, British Columbia, on November 28, 2005. Judgment delivered at Vancouver, British Columbia, on December 7, 2005. REASONS FOR JUDGMENT BY: NADON J.A. CONCURRED IN BY: ROTHSTEIN J.A. PELLETIER J.A. Date: 20051207 Docket: A-159-05 Citation: 2005 FCA 412 CORAM: ROTHSTEIN J.A. NADON J.A. PELLETIER J.A. BETWEEN: GLEN OSBORNE Applicant and THE ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT NADON J.A. [1] The applicant, who claims that he cannot work by reason of a lower lumbar disc condition and hence, that he is entitled to a disability pension, seeks to set aside a decision of the Pension Appeals Board (the "Board") dated March 8, 2005, which dismissed his appeal from a decision of the Review Tribunal rendered on May 17, 2004, denying his claim to a disability pension. [2] I have not been persuaded that there is any basis to interfere with the Board's decision. My reasons for so concluding are the following. [3] I begin first, as I must, with the applicable standard of review. It is now trite law that the applicable standard in regard to decisions of the Board determining disability is that of patent unreasonableness (see McKerrow v. Human Resources Development, [2002] F.C.A. 433; Canada (Minister of Human Resources Development) v. Scott, [2003] F.C.A. 34; Giordano v. Canada (Attorney General), 2005 FCA 71 and Giannaros v. Canada (Minister of Social Development), (2005) 344 N.R. 40). [4] Hence, we may only interfere if the Board's decision is "clearly irrational" or "evidently not in accordance with reason" (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 52). [5] I now turn to the Board's decision. In dismissing his appeal, the Board found that although the applicant was not capable of returning to his previous employment as an ironworker, he was capable of performing lighter duties and hence, that he was not suffering from a "severe" and "prolonged" disability within the meaning of section 42 of the Canada Pension Plan. [6] In reaching this conclusion, the Board carefully considered all of the evidence before it, including the applicant's medical history and his personal characteristics. In particular, the Board noted that the applicant had done light work, between June and December 2001, following an earlier unsuccessful application for disability benefits made in October 2000, that he had twice declared, in applying for employment insurance benefits, that he "was ready, willing and able to work" (paragraph 32 of the Board's Reasons), that he had not taken full advantage of the vocational rehabilitation assistance options offered to him and that he did not wish to move from the Squamish, B.C. area. [7] The applicant makes two submissions as to why we should intervene. Firstly, he says that the Board erred when it stated, at paragraph 10 of its Reasons, that he had a grade 10 education. For this submission, the applicant relies on the affidavit which he filed in support of his judicial review application and, in particular, on paragraph 2 thereof where he asserts that according to a confidential report dated November 13, 2003, prepared for the British Columbia Workers' Compensation Board by Dr. K. Alison Fulner, R. Psych., R.R.P., he has the functional academic levels of grade 3 (written), grade 4 (reading) and grade 6 (applied math ability), a low average intellectual ability and a borderline verbal IQ. [8] However, as counsel for the respondent pointed out during the hearing, there was evidence supporting the Board's assertion that the applicant had a grade 10 education, namely a questionnaire for disability benefits under the Canada Pension Plan signed by the applicant on June 4, 2000 where, in box 2 thereof, he wrote that grade 10 was the highest grade that he had completed in school. [9] In any event, even if the Board had erred in respect of the applicant's level of education, that error would not have justified intervention on our part since the Board, in my view, properly considered his education level and cognitive abilities. After a review of the evidence, the Board concluded that although there were some cognitive difficulties, they were not such as to prevent him from regularly pursuing a substantially gainful occupation. [10] The applicant also submits that the Board erred in not considering his evidence concerning the chronic pain he suffered from and the side effects caused by his medication. [11] With respect to chronic pain, a fair reading of the Board's decision shows that the Board did consider the evidence on this issue and that it was fully aware of it in making the findings which led to its ultimate conclusion. [12] With respect to the side effects caused by his medication, although the Board did not expressly deal with this, it can easily be inferred, in my view, from the Board's overall consideration of the medical and therapeutic reports before it, that it was fully aware of the treatment modalities being used by the applicant, including his use of medication. Consequently, I see no error on the Board's part. [13] Without so saying, what the applicant is asking us is to re-weigh the evidence in a manner more favourable to his position. That, in the context of a judicial review application, we simply cannot do. [14] In the end, I am unable to conclude that the Board made any error of law, that it misapprehended the evidence or that it failed to consider relevant evidence. As a result, I see no basis for us to intervene. [15] For these reasons, I would therefore dismiss the application for judicial review. As the respondent is not seeking costs, I would make no order in that regard. "M. Nadon" J.A. "I agree. Marshall Rothstein J.A." "I agree. J.D. Denis Pelletier J.A." FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-159-05 (APPEAL FROM A DECISION OF THE PENSION APPEAL BOARD, DATED MARCH 8, 2005) STYLE OF CAUSE: GLEN OSBORNE v. A. G. C. PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: November 28, 2005 REASONS FOR JUDGMENT: Nadon J.A. CONCURRED IN BY: Rothstein J.A. Pelletier J.A. DATED: December 7, 2005 APPEARANCES: Mr. Glen Osborne APPLICANT ON HIS OWN BEHALF Mr. Marcus Davies FOR THE RESPONDENT SOLICITOR OF RECORD: John H. Sims, Q.C. Deputy Attorney-General of Canada Ottawa, Ontario FOR THE RESPONDENT