Federal Court of Appeal - Mitcham v. Canada (Attorney general)

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Date: 20030917

Docket: A-616-02

Citation: 2003 FCA 340

CORAM: LINDEN J.A.

ROTHSTEIN J.A.

SEXTON J.A.

BETWEEN:

RONALD R. MITCHAM

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

Heard at Vancouver, British Columbia on September 16, 2003.

Judgment delivered at Vancouver, British Columbia on September 17, 2003.

REASONS FOR JUDGMENT BY: LINDEN J.A.

CONCURRED IN BY: ROTHSTEIN, SEXTON J.J.A.

Date: 20030917

Docket: A-616-02

Citation: 2003 FCA 340

CORAM: LINDEN J.A.

ROTHSTEIN J.A.

SEXTON J.A.

BETWEEN:

RONALD R. MITCHAM

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT

LINDEN J.A.

[1] This is an application for judicial review, seeking review of a decision of the Pension Appeals Board dated April 3, 2002, which found that the applicant, Ronald Mitcham, was not entitled to a disability pension under the Canada Pension Plan (the "Plan") as his disability was not severe as of December 31, 1997 when his qualifying period expired.

[2] The applicant was last employed as a shipper/receiver and stopped working in April 1994 when his employer went bankrupt. He was involved in a car accident in March 1995 and has suffered from severe headaches as well as back and neck pain since that time. Mr. Mitcham did not apply for CPP disability benefits until January 1999, after his benefits from ICBC ran out. In February of that year, his original application was denied. He requested a reconsideration under s. 81(1) of the Plan and the denial of benefits was confirmed. The applicant then appealed to the Review Tribunal which rejected the appeal on April 3, 2000.

[3] Mr. Mitcham appealed to the Pension Appeals Board which held a hearing de novo. In addition to testifying personally before the Board, the applicant submitted letters from doctors who examined him in October 1998, July 1999 and February 2000. He also submitted letters from a number of medical practitioners who had dealt with him between 1995 to 1997. There was other evidence of family and friends introduced. The Board found that none of this evidence demonstrated that Mr. Mitcham was incapable regularly of pursuing substantial gainful employment. While there was a letter from a Dr. Nunn to the effect that he was disabled on February 29, 2000, the Board, nevertheless, held that there was insufficient evidence that Mr. Mitcham suffered from a severe and prolonged disability as of December 31, 1997, and dismissed his appeal on April 3, 2002.

[4] The only issue before this Court is whether the Board erred in deciding that Mr. Mitcham's disability was not "severe" within the meaning of s. 42(2) of the Plan as of December 31, 1997, when his qualifying period expired.

[5] The Board made no error of law, correctly setting out the statutory test in paragraph 3 of its reasons.

[6] Whether the standard of review is patent unreasonableness or reasonableness simpliciter need not be decided because under either test the judicial review fails.

[7] The Board carefully considered all the evidence before it and gave 16 pages of reasons. While Mr. Mitcham is now diagnosed as having fibromyalgia symptoms, the Board, weighing the evidence on a balance probabilities, held that he was more likely than not capable of regularly pursuing substantially gainful employment on December 31, 1997 and dismissed his appeal. There is no basis for this Court to interfere with that decision.

[8] The application will be dismissed.

(Sgd.) "Allen M. Linden"

J.A.

"I agree"

(Sgd.) "Marshall Rothstein"

J.A.

"I agree"

(Sgd.) "J. Edgar Sexton"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-616-02