A 54 year old man applied for judicial review of a decision of the Employment and Assistance Appeal Tribunal, which had upheld the decision of the Minister of Social Development denying him a 'persons with disabilities' designation. His petition was dismissed.

[2012] B.C.J. No. 1805

2012 BCSC 1276

British Columbia Supreme Court

D. Kloegman J.

August 29, 2012

A 54 year old man ("Garbutt") applied for judicial review of a decision of the Employment and Assistance Appeal Tribunal (the "Tribunal") which had upheld the decision of the Minister of Social Development (the "Minister") denying him a persons with disabilities ("PWD") designation. Garbutt's petition was dismissed.

Garbutt suffered from Hepatitis C, disc disease in his back, chronic pain in his right shoulder and chronic knee pain. He was receiving income assistance under the Employment and Assistance Act, S.B.C. 2001, c. 40, but was seeking a PWD designation, so that he could receive more income assistance and reduce his obligation to find employment.

In January 2012, an adjudicator dismissed his application for PWD status because his ability to perform daily living activites was not significantly restricted and he did not require significant help or supervision of another person to perform them. Further, he did not have a severe physical or mental impairment.

A reconsideration of the decision also denied his application for PWD status. Garbutt appealed to the Tribunal. He ws permitted to introduce written argument from an advocate and a new letter from another treating physician. An oral hearing was held and the Tribunal confirmed the reconsideration decision as reasonably supported by the evidence.

On judicial review, Garbutt argued that the Tribunal's decision was not communicated through adequate reasons. Garbutt tried to argue that the standard of review for reasons should be one of correctness, since fulfilling the requirements of the Employment and Assistance Regulation with respect to a written determination is a question of law. Section 87 of that Regulation mandates that "the written determination must summarize the issues and relevant facts considered in the appeal and set out the reasons on which the Tribunal basis its determination."

The Minister and the Tribunal submitted that the review of adequacy of reasons should be part of the substantive judicial review. In their view, the standard of review should be one of reasonableness and perhaps of patent unreasonableness.

The Court did not determine the standard of review, but only said that whether the standard of correctness or the standard of patent unreasonableness applied, the reasons could not be viewed as inadequate. According to the Supreme Court of Canada's decision in Newfoundland and Labrador Nurses' Union and Newfoundland and Labrador (Treasury Board), 2011 SCC 62, the test should be whether the reasons allow a reader to understand why the Tribunal made its decision, and to permit the Court to determine whether the conclusion is within a range of acceptable outcomes.

The Court held that the reasons given by the Tribunal met this standard. Despite an opinion from Garbutt's treating physician that he had several physical impairments that were severe, the Minister would not be bound by that finding and must only consider it. The conclusion that Garbutt's limitations were consistent with a moderate degree of impairment, rather than a severe degree of impairment was reasonable, and information was set out to explain that conclusion.

Garbutt argued that the Tribunal applied the term "severe" in a certain way, although it was not defined anywhere in the Act. The Court held that it was not encumbent upon the Tribunal to state what they would consider "severe"; it was enough to state what was not severe. They concluded that Garbutt's condition impaired him to some degree and impacted some of his daily living activities, but that he was able to perform the majority of those activities independently, meaning that his limitations were more moderate than severe.

Garbutt went on to argue that the findings that he had no severe impairment and no significant restriction on his daily living activities were patently unreasonable. The Court applied the Administrative Tribunals Act standard of patent unreasonableness and found that, even though a lay person, judge, or even a doctor, may consider the evidence of impairment to be "severe", it is for the Tribunal to make determination of impairment, and deference must be afforded to the Tribunal's opinion.

The Act required an opinion from a medical practitioner in regard to whether Garbutt's condition was likely to continue for two or more years. However, the Act did not require a medical practitioner's opinion as to the degree of severity of impairment. The Court held that it is the Minister who must be satisfied as to the severity of the impairment and not medical practitioners who have seen or examined the petitioner.

Although Garbutt's physician confirmed that he had continuing restriction in housework and daily shopping, and a nurse had confirmed that he needed continuous assistance with laundry, basic housecleaning and carrying purchases home from shopping, it was available to the Tribunal to consider that two daily living activities of the Petitioner were only continuously restricted under the major headings of personal care, basic housekeeping, shopping, meals, pay rent and bills, medication and transportion. That is, being continuously restricted in individual tasks itemized under these headings was not sufficient to meet the threshold that two or more daily living activities were significantly restricted. It was not patently unreasonable for the Tribunal to conclude that because only basic housekeeping and one out of five shopping tasks were problematic for Garbutt, he did not meet the criteria for PWD designation.

Garbutt's petition was dismissed.