http://decisions.fca-caf.gc.ca/site/fca-caf/decisions/en/item/64648/index.do 
Dauti v. The Queen[1] (November 12, 2013) was an application for judicial review of a decision of the Pension Appeals Board (“PAB”). The PAB found that Mrs. Dauti, the applicant, was not disabled within the meaning of subsection 42(2) of the
Canada Pension Plan.[2] Mrs. Dauti, who was self-represented, took this application in front of the Federal Court of Appeal (a procedure which must have appeared extremely daunting to a non-professional).
Mrs. Dauti had suffered two successive injuries during the course of her employment:
[3] Mrs. Dauti suffered injuries in two separate workplace accidents that led her to claim disability benefits. In the first accident she suffered physical injuries, including injuries to her right knee, back and ribs. In the second accident, while disposing of hazardous waste materials she suffered an acute onset of dizziness, fatigue and lightheadedness, followed by a fall. This is known as a syncope episode. Thereafter, Mrs. Dauti continued to suffer such episodes.
Not to put too fine a point on it, the PAB appears to have either ignored or misapprehended the evidence before it:
[5] The Board then commenced its analysis of the evidence, concluding that the physical injuries Mrs. Dauti suffered had been “sufficiently if not entirely resolved” prior to her minimum qualifying period (December 31, 2009). This conclusion was based upon the Board’s finding that such injuries were not referred to in medical reports after February 2008. In fact, in a report dated January 7, 2010, Mrs. Dauti’s family doctor referred to her ongoing joint and muscle pain (page 206 of the respondent’s record). This report contradicted the Board’s finding that Mrs. Dauti’s physical injuries were not referred to in reports subsequent to February 2008.
[6] The Board then turned to consider Mrs. Dauti’s psychological or neurological symptoms. The Board referred to a report dated January 7, 2008 said to be from Mrs. Dauti’s family doctor which stated that she could do sedentary limited work at that time. It also referenced a report prepared in January 2008, by a doctor of internal medicine which according to the Board stated Mrs. Dauti could do “sedentary limited work of modified type”. The Board ultimately found the fainting spells and syncope episodes did not prevent Mrs. Dauti from pursuing “regular gainful employment most of the time”.
[7] The difficulty with this conclusion is twofold. First, the Board misapprehended the evidence. No physician ever provided an opinion which stated that Mrs. Dauti was capable of doing sedentary or limited work. The January 7, 2008 report referenced by the Board was not from Mrs. Dauti’s family doctor. Rather, it was from a physiotherapist who was not treating Mrs. Dauti for her syncope episodes. Further, the report of the doctor of internal medicine said nothing of Mrs. Dauti’s capacity to work. It is difficult to assess the impact of these errors on the Board’s decision.
[8] The second difficulty is the Board’s conclusion that Mrs. Dauti was not disabled was reached without consideration of the combined effect of the physical and psychological / neurological symptoms. This resulted from the Board’s erroneous conclusion that the physical injuries had resolved prior to the minimum qualifying period. The failure to consider the combined effect of Mrs. Dauti’s injuries was an error that rendered the Board’s decision unreasonable.
The Federal Court of Appeal allowed the application for judicial review, set aside the decision of the PAB and remitted Mrs. Dauti’s claim to the PAB, or its designate, to be re-determined by a differently constituted panel.
Comment: I do not normally blog disability cases since they tend to be very fact specific, similar to tort claims. I have made an exception here because this case is close to a classic example of how such judicial review applications are supposed to work. The Court of Appeal clearly studied the record more carefully than the PAB. In deciding to order the matter reheard by a differently constituted panel the Court of Appeal delivered a mild, but pointed, rebuke to the PAB. It is particularly satisfying to see such a result in the case of an unrepresented litigant.
[1] 2013 FCA 259.
[2] R.S.C. 1985, c. C-8.