Kerth v. Canada ( Minister of Human Resources Development )
T-1801-98
Reed J.
13/8/99
13 pp.
Application for judicial review of decision by member of Pension Appeals Board refusing applicant's request for leave to appeal decision of Pension Review Tribunal to Pension Appeals Board-Tribunal's decision denying disability pension on ground applicant did not meet definition of disabled in Canada Pension Plan as still considered to be employable-Applicant 61-year-old man who has worked as truck driver for 40 years-In 1996, no longer able to drive truck due to physical disabilities, serious back and neck pain-Application for disability benefits dismissed by Review Tribunal-Tribunal concluding applicant capable of performing light, non-demanding work-Applicant seeking leave to appeal Review Tribunal's decision to Pension Appeals Board-Evidence before Pension Appeals Board to support applicant's leave to appeal application far more substantial than that presented to Tribunal-Whether applicant disabled within meaning of Plan, s. 42(2)-Disability must be severe, prolonged-Standard of review herein closer to non-deferential end of spectrum, rather than to deferential end-When ground of application for leave to appeal primarily existence of additional evidence, question to be asked whether new evidence filed in support of leave application such that it raises genuine doubt as to whether Tribunal would have reached decision it did, if additional evidence had been before it-Board member, in making decision under review, asked himself wrong question (considered merits of application), placed too heavy burden on applicant when assessing application for leave to appeal-Application allowed-Canada Pension Plan, R.S.C., 1985, c. C-8, s. 42(2) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 12; S.C. 1992, c. 1, s. 23).