Connolly v. Canada (Attorney General)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Dawson, Webb and Scott, JJ.A.
• Citation: (2014), 466 N.R. 44 (FCA),2014 FCA 294
• Date: 05 November 2014

Connolly v. Can. (A.G.) (2014), 466 N.R. 44 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2014] N.R. TBEd. DE.018

Raymond Connolly (applicant) v. Attorney General of Canada (respondent)

(A-546-12; 2014 FCA 294; 2014 CAF 294)

Indexed As: Connolly v. Canada (Attorney General)

Federal Court of Appeal

Dawson, Webb and Scott, JJ.A.

December 12, 2014.

Summary:

Connolly applied for disability benefits under the Canada Pension Plan. The Review Tribunal concluded that Connolly was not eligible for benefits. Connolly appealed. The Pension Appeals Board determined that Connolly was not eligible for benefits because he had not established that his disability was severe as of the minimum qualifying period. Connolly applied for judicial review and moved to introduce additional evidence.

The Federal Court of Appeal dismissed the motion and the application.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - Connolly applied for judicial review of the November 2012 Pension Appeals Board (PAB) decision which determined that he was not eligible for disability benefits under the Canada Pension Plan because his disability was not severe as of the minimum qualifying period - He moved to adduce additional evidence, including documents dated 2008, 2009 and 2010 which related to tests done at his former place of employment and his dismissal from employment by his former employer - The Federal Court of Appeal dismissed the motion - The documents were available at the time of the hearing before the PAB but Connolly chose not to attempt to introduce them - The documents did not assist in understanding the issue that was before the PAB, which was whether Connolly was disabled as of December 2011 - The issue was not what might have caused his medical problems - See paragraph 8.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - Connolly applied for judicial review of the November 2012 Pension Appeals Board (PAB) decision which determined that he was not eligible for disability benefits under the Canada Pension Plan because his disability was not severe as of the minimum qualifying period - He moved to adduce additional evidence, including a letter from his physiotherapist dated May 2014 - The Federal Court of Appeal dismissed the motion - The issue before the PAB was Connolly's medical condition as of December 2011 - The letter did not provide any information concerning this issue - See paragraph 9.

Government Programs - Topic 1222.2

Canada Pension Plan - Entitlement - Disability benefits - [See both Government Programs - Topic 1226 ].

Government Programs - Topic 1225

Canada Pension Plan - Entitlement - Appeals and judicial review - [See both Government Programs - Topic 1226 ].

Government Programs - Topic 1226

Canada Pension Plan - Entitlement - Evidence - Connolly applied for judicial review of the November 2012 Pension Appeals Board (PAB) decision which determined that he was not eligible for disability benefits under the Canada Pension Plan because his disability was not severe as of the minimum qualifying period - He argued that the PAB's decision was unreasonable because it did not refer to a November 2010 letter from Dr. McCarthy - The Federal Court of Appeal dismissed the application - Dr. McCarthy's November 2010 letter was a clarification of a September 2010 letter which the PAB did refer to - The PAB also referred to the report of another doctor which had referred to Dr. McCarthy's November letter - Thus, the PAB acknowledged the opinion of Dr. McCarthy but preferred the evidence of other practitioners - As a result, the PAB's failure to specifically refer to the November letter did not render its decision unreasonable - See paragraphs 18 to 25.

Government Programs - Topic 1226

Canada Pension Plan - Entitlement - Evidence - Connolly applied for judicial review of the November 2012 Pension Appeals Board (PAB) decision which determined that he was not eligible for disability benefits under the Canada Pension Plan because his disability was not severe as of the minimum qualifying period - He argued that the PAB's decision was unreasonable because it misquoted a sentence from the February 2009 report of Dr. Duguid - The PAB mistakenly quoted Dr. Duguid as stating that Connolly's chest pains had improved since he stopped working, but Dr. Duguid had actually stated that Connolly's sinus problems had improved - The Federal Court of Appeal dismissed the application, stating "The error made by the PAB in misstating the reference by Dr. Duguid to Mr. Connolly's improving conditions, does not render the decision of the PAB unreasonable. The issue for the PAB was whether he was disabled, not whether his conditions were improving. As well, the test under the CPP is whether Mr. Connolly is capable of any employment, not just the same employment that he was carrying on previously." - See paragraphs 26 to 29.

Cases Noticed:

Forest Ethics Advocacy Association et al. v. National Energy Board et al., [2014] N.R. Uned. 46; 2014 FCA 88, refd to. [para. 6].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 7].

Nahajowich v. Canada (Attorney General) (2011), 426 N.R. 97; 2011 FCA 293, refd to. [para. 14].

Barrington et al. v. Institute of Chartered Accountants (Ont.) (2011), 279 O.A.C. 148; 2011 ONCA 409, refd to. [para. 20].

Inclima v. Canada (Attorney General), [2003] N.R. Uned. 54; 2003 FCA 117, refd to. [para. 23].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 24].

Counsel:

The applicant was self-represented;

Martin Kreuser, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application for judicial review was heard at St. John's, N.L., on November 5, 2014, before Dawson, Webb and Scott, JJ.A., of the Federal Court of Appeal. Webb, J.A., delivered the following judgment for the court at Ottawa, Ontario, on December 12, 2014.