Toris v. Canada (Attorney General)

Toris v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2003-05-15 Neutral citation 2003 FCA 231 File numbers A-599-02 Decision Content Date: 20030515 Docket: A-599-02 Citation: 2003 FCA 231 CORAM: STONE J.A. EVANS J.A. SHARLOW J.A. BETWEEN: KONSTANDINA TORIS Applicant - and - ATTORNEY GENERAL OF CANADA Respondent Heard at Toronto, Ontario, on May 15, 2003. Judgment delivered from the Bench at Toronto, Ontario, on May 15, 2003. REASONS FOR JUDGMENT OF THE COURT: STONE J.A. Date: 20030515 Docket: A-599-02 Citation: 2003 FCA 231 CORAM: STONE J.A. EVANS J.A. SHARLOW J.A. BETWEEN: KONSTANDINA TORIS Applicant - and - ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario on May 15, 2003) STONE J.A. [1] This application is to review and set aside a decision of The Pension Appeals Board dated May 7, 2002 upholding the unanimous decision of a "Review Tribunal" which found that the applicant was not "disabled" within the meaning of paragraph 42(2)(a) of the Canada Pension Plan. [2] The applicant sustained a back injury at her work place in 1993 which she aggravated in November 1996. The record discloses that, as a result of her injury, the applicant lost a considerable range of motion in her cervical and lumbar spine. [3] The Board agreed that there was evidence of disability as of the spring of 1998 but no evidence of disability before the cut-off date of December 31, 1997. At paragraph 31 of its decision, the Board observed that the applicant's Orthopaedic Surgeon, Dr. Charendoff, felt "in May 1998" that "the appellant should be assessed for a permanent pension due to being disabled on account of chronic low back pain, chronic tendinitis and bursitis". In point of fact, the letter to which the Board referred while dated May 11, 1998 contains the following opinion which appears to have been based on a consultation of December 22, 1997: This patient is disabled on account of chronic low back pain due to an unresolved lumbosacral strain and, in addition, she has developed chronic tendinitis and bursitis of the right shoulder which is also contributing to her disability. She has been off work for more than one year from her regular job and is unable to perform light or modified duties due to restrictions imposed upon her physical activities, such as standing, bending, lifting and reaching overhead with her right arm. Accordingly, I believe that the patient should be assessed for a permanent pension. [4] We are all of the view that the Board thereby misapprehended this evidence and, accordingly, that it should redetermine the applicant's appeal and claim to disability in the light of this evidence which pre-dated the cut-off date of December 31, 1997. [5] The Board's decision will be set aside and the matter referred back to the Board for redetermination by a differently constituted panel in a manner consistent with these reasons. The applicant shall have her reasonable out-of-pocket disbursements related to this application. "A. J. Stone" J.A. FEDERAL COURT OF CANADA APPEAL DIVISION Names of Counsel and Solicitors of Record DOCKET: A-599-02 STYLE OF CAUSE: KONSTANDINA TORIS Applicant - and - ATTORNEY GENERAL OF CANADA Respondent DATE OF HEARING: MAY 15, 2003 PLACE OF HEARING: TORONTO, ONTARIO REASONS FOR JUDGMENT OF THE COURT BY: STONE J.A. DATED: MAY 15, 2003 APPEARANCES BY: Ms. Konstandina Toris For the Applicant, on her own behalf Ms. Tania Nolet For the Respondent SOLICITORS OF RECORD: Konstandina Toris Toronto, Ontario For the Applicant, on her own behalf Morris Rosenberg Deputy Attorney General of Canada For the Respondent