Date: 20060918
Docket: T-216-06
Citation: 2006 FC 1107
Toronto, Ontario, September 18,
2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
JUDITH
ARTHURS
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
(formerly the Minister of Human
Resources Development Canada)
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application for judicial review of a decision by the Canada Pension Plan
Review Tribunal, dated July 9, 2003, which refused to reconsider the Review
Tribunal’s decision of August 30, 1999 denying the applicant disability
benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP).
[2]
The
applicant seeks an order setting aside the decision of the Review Tribunal of
July 9, 2003 and referring the matter to a differently constituted panel of the
Review Tribunal for reconsideration and with a direction that the merits of the
applicant’s claim for CPP disability benefits be heard de novo based on
all of the available evidence, including the new facts, or in accordance with
such directions as this Court considers to be appropriate.
Background
[3]
The
applicant is presently 52 years old. She completed up to grade seven education,
was married at the age of 15, and had two sons shortly thereafter. She worked
periodically while her children were growing up, but her main focus was on
raising her children. In 1984, she decided to become a real estate agent. In
1985, she obtained a real estate licence and began working as a real estate
agent in Saint
John, New
Brunswick.
She worked at Century 21 Clark and Sleigh Realty for three years, and next at
Home Life Realty for about one or two years. She then worked for Century 21
River Valley Realty.
[4]
At
Century 21 River Valley Realty, she typically worked seven days per week and
approximately 12 to 14 hours per day. In 1989 and 1990, she began to suffer
from fatigue, lack of energy, memory loss, depression, and pain in various
parts of her body. She had frequent colds, asthma and difficulties sleeping,
and was diagnosed with irritable bowel syndrome and chronic obstructional
pulmonary disease. Her ability to work as a real estate agent gradually
decreased as her condition worsened. She also had difficulties with performing
household chores and she was unable to enjoy her usual activities such as
swimming, dancing, playing with her grandchildren, going for long walks, and
volunteering at a hospital. On July 31, 1993, at the age of 39, she ceased
working as a real estate agent as she could no longer carry out her work
duties.
[5]
In
1996, the applicant and her husband moved to British Columbia. In British
Columbia,
she received care from a family physician, Dr. D.E. Read. He diagnosed her
condition as fibromyalgia and referred her to a rheumatologist, Dr. Angela R.
How, who confirmed Dr. Read’s diagnosis.
[6]
Since
she stopped working in 1993, the applicant’s condition has continued to worsen.
Her pain has increased and has spread to other parts of her body, particularly
her lower back. She requires the use of an electric wheelchair to go outside
and a cane or walker to move around the home. She has tried different
medications for her condition but none have significantly alleviated her
symptoms.
[7]
The
applicant applied for CPP disability benefits in February 1997 and again in
November 1997, describing her main disabling condition as severe asthma, prone
to pneumonia, fibromyalgia, chronic pain syndrome, irritable bowel syndrome,
and pernicious anemia. Her claim for disability benefits was denied because the
respondent was of the view that based on the medical evidence, the applicant
was capable of pursuing some type of light work suitable to her condition. This
decision was upheld by a disability adjudicator on appeal.
[8]
The
applicant then appealed to the Review Tribunal. She submitted medical reports
from Dr. How confirming the diagnosis of fibromyalgia. She also submitted
medical reports from Dr. Read stating that it was his opinion that the
applicant’s prognosis for a return to gainful employment was guarded.
[9]
After
holding an oral hearing on June 23, 1999, the Review Tribunal dismissed the
applicant’s appeal in a decision dated August 30, 1999. The Tribunal’s decision
stated in part:
The Minister denied Mrs. Arthurs’
November 19, 1997 application finding that she could still perform some type of
work, suitable to her condition and limitations, and that her condition was
expected to improve, thus finding that the disability did not meet the criteria
of “severe” and “prolonged” under the Canada Pension Plan (CPP).
. . .
Mrs. Arthurs has not worked since
moving to British Columbia, and has not sought to determine whether she could
perform any type of work. She has not sought psychotherapy to assist her in
coping with her limitations and functioning within them. There is no question
that she has physically disabling conditions, but little objective evidence of
the extent to which these conditions make it impossible for her to function in
the workplace. It is not enough to show that one has a physical disability to
qualify for disability benefits under the CPP; the Applicant must demonstrate
with objective evidence that the disability is so severe that it prevents her
regularly from performing gainful employment.
The Tribunal reviewed the
evidence in this case as contained in the Hearing Case File and presented at
the hearing and found that there was insufficient evidence that Mrs. Arthurs
suffered from a disability which was “severe and prolonged” according to the
criteria of the CPP when she last met the minimum contributory requirements.
Therefore, her appeal was dismissed.
[10]
The
applicant subsequently applied for reconsideration of the Review Tribunal’s
decision under subsection 84(2) of the CPP. She filed further medical reports
from Dr. Read (dated September 24, 2002 and January 20, 2003) and Dr. How (dated
February 8, 1999) in support of her application. On July 9, 2003, the Review
Tribunal dismissed this application. In its reasons, the Review Tribunal stated
that the test to reopen a decision given new evidence is that first, the
evidence must not have been discoverable before the original hearing by the
exercise of reasonable diligence, and second, the evidence, if admitted, would
have to be practically conclusive or at least to probably have an important
influence on the issue being considered or there must be a reasonable
possibility that the evidence could lead the Tribunal to change its original
decision. The Review Tribunal stated that it had considered the previous
decision of the Tribunal dated August 30, 1999 and the medical reports
previously submitted to that Tribunal, in addition to the applicant’s
submissions and the updated medical reports, and concluded that there were no
new facts that would warrant reconsideration.
[11]
On
January 30, 2004, the applicant was granted leave to appeal the Review Tribunal’s
decision to the Pension Appeals Board. She withdrew her appeal after she was
served with a notice of motion seeking a dismissal of her appeal on the basis
that the Pension Appeals Board lacked jurisdiction to hear the matter. She is
presently before this Court seeking judicial review of the decision of the Review
Tribunal of July 9, 2003.
Issue
[12]
The
issue to be determined is: Did the Review Tribunal err in finding that there
were no new facts to warrant reconsideration of the applicant’s claim for CPP
disability benefits?
Applicant’s
Submissions
[13]
The
applicant submitted that issues concerning the materiality of evidence and due
diligence are questions of mixed fact and law with a heavy emphasis on fact.
Discoverability is a question of fact. Thus, it was submitted that the
appropriate standard of review to apply to a Review Tribunal’s subsection 84(2)
new fact analysis is patent unreasonableness (see Taylor v. Canada
(Minister of Human Resources Development), 2005 FCA 293 at paragraph 12).
[14]
The applicant
submitted that in Kent v. Canada (Attorney General), 2004 FCA 420 at paragraphs 33 to 34,
the Federal Court of Appeal outlined a two-step test for determining whether
there are new facts:
First,
the proposed new facts must not have been discoverable, with due diligence,
prior to the first hearing. Second, the proposed new facts must be “material”: Canada (Minister of Human Resources
Development) v. Macdonald,
[2002] F.C.J. No. 197, 2002 FCA 48.
[15]
The
Federal Court of Appeal in Kent stated that evidence is
material if it is practically conclusive, in that it could reasonably be
expected to affect the result of the prior hearing.
[16]
The
applicant submitted that the test for new facts should be applied in a
sufficiently flexible manner so as to balance the Minister’s interest in the
finality of decisions and the need to encourage claimants to present all their
evidence at the earliest reasonable opportunity, against the legitimate
interest of claimants, who are usually self-represented, in having their claims
assessed fairly on the merits (see Kent, above, at paragraph 35).
[17]
The
applicant submitted that the appropriate standard in reviewing the assessment
of evidence by a Review Tribunal in a section 42 severe and prolonged
disability analysis is patent unreasonableness (see Spears v. Canada
(Attorney General), 2004 FCA 193 at paragraph 10).
[18]
The
applicant submitted that to be entitled to CPP disability benefits the claimant
must: (1) meet the contributory requirements, (2) be disabled within the
meaning of the CPP when the contributory requirements are met; and (3) be so
disabled continuously and indefinitely (see CPP, subsection 42(2), paragraph 44(1)(b)
and subsection 44(2)).
[19]
The
applicant submitted that the test for disability involves an aspect of employability,
with a consideration of the real-world context of commercial realities and the
particular circumstances of the claimant, such as age, education level,
language proficiency and past work and life experience (see Villani v. Canada
(Attorney General), 2001 FCA 248, [2002] 1 F.C. 130 at paragraphs 44 to
50). It was submitted that after the applicant’s claim for disability benefits
was denied, she tried to return to work. She tried babysitting her
grandchildren but was too physically exhausted to perform that task. She also
applied, unsuccessfully, for jobs at McDonalds and Wal-Mart. She submitted that
she does not believe any employer would hire her because she has to disclose
that she has been diagnosed with fibromyalgia.
[20]
The
applicant submitted that in light of the evidence of the functional limitations
caused by her condition, and considering her age, limited grade seven level
education, and limited work experience, it was patently unreasonable for the
Review Tribunal to conclude that the new evidence did not meet the requirement
for reconsidering whether she suffered from a severe and prolonged disability
as defined in the CPP. It was further submitted that the Review Tribunal’s
decision was patently unreasonable because the new evidence indicated that the
applicant’s condition had not improved, contrary to the respondent’s assumption
when it denied her claim for CPP disability benefits by decision dated August
30, 1999.
[21]
The
applicant submitted that the fact that she has continued to suffer from fibromyalgia
without improvement and has been unable to return to any gainful occupation,
years after the diagnoses were first made by Dr. Read and Dr. How, constitutes
a new fact. The applicant submitted that the new evidence was not discoverable
with due diligence prior to the Review Tribunal’s first hearing, and that the
new evidence is material as it could reasonably have been expected to affect
the result of the prior hearing. It was submitted that as Kent, above, made
clear, some disability claims, such as those based on physical and mental
conditions that are not well understood by medical practitioners, must be
assessed against the background of an evolving understanding of a claimant’s
condition, treatment and prognosis. The applicant submitted that fibromyalgia
by its nature cannot be proven to be disabling by objective findings. Only the
applicant’s improvement or lack thereof over the passage of time could prove
whether her condition was a severe and prolonged disability at the time her
claim was initially denied by the respondent.
[22]
For
the foregoing reasons, the applicant submitted that the Review Tribunal’s
decision not to reopen her claim for disability benefits cannot stand.
Respondent’s
Submissions
[23]
The
respondent submitted that because the CPP is a contributory scheme, disability
must have commenced within the period covered by one’s contributions, that is,
within one’s minimum qualifying period (MQP). Based on her earnings, the
applicant’s MQP ended on December 31, 1997. It was submitted that since the
date of the Review Tribunal’s hearing was after the applicant’s MQP and was
final and binding on all parties pursuant to subsection 84(1) of the CPP, the
applicant cannot be found to be disabled on a subsequent application unless she
makes additional contributions to the plan.
[24]
The
respondent submitted that it is not the role of doctors to determine whether
the applicant has a disability within the meaning of the CPP. It is the task of
the Review Tribunal to assess the evidence and determine whether the impairment
amounts to a disability (see Canada (Minister of Human
Resources Development) v. Angheloni, 2003 FCA 140 at paragraphs
36 to 44).
[25]
The
respondent submitted that it is the capacity to work and not the diagnosis or
the disease description that determines the severity of the disability under
the CPP. Disability is not based upon the applicant’s incapacity to perform her
usual job, but rather, any substantially gainful occupation (see Canada (Minister of
Human Resources Development) v. Scott, 2003 FCA 34 at paragraph
7). It was submitted that to establish a disability, medical evidence is
required, as well as evidence of employment efforts and possibilities (see Villani
v. Canada (Attorney
General),
2001 FCA 248 at paragraph 50). It was submitted that labour market conditions
are irrelevant to the analysis as to whether the individual can be employed in
a substantially gainful occupation (see Canada (Minister of
Human Resources Development) v. Rice, 2002 FCA 47 at paragraph
12).
[26]
The
respondent submitted that a Review Tribunal’s decision becomes final and
binding if no appeal has been taken to the Pension Appeals Board (see
subsection 84(1) of the CPP). An exception to this rule applies if there are
new facts within the meaning of subsection 84(2), in which case the Review
Tribunal may revisit the prior decision. It was submitted that the Pension
Appeals Board has held that the power to reopen a prior decision is to be
exercised only in the most exceptional circumstances (see MacIsaac v. The
Minister of Employment and Immigration) (15 November 1994), Appeal CP 2938
at pages 9 to 10 (Pension Appeals Board) in the respondent’s record, volume II,
tab B-15).
[27]
The
respondent submitted that while discoverability and materiality may in the
context of the CPP require a broad and generous approach, subsection 84(2)
ought not to be used as an alternative to an appeal (see Canada (Minister of
Human Resources Development) v. Landry, 2005 FCA 167). In the
present application, the applicant did not appeal the initial decision of the
Review Tribunal, but in February 2003, three and a half years after the
Tribunal’s decision, she applied to reopen the prior decision on new facts.
[28]
The
respondent submitted that the new facts test requires the applicant to prove on
a balance of probabilities that the new evidence could not have been
discoverable with reasonable diligence and that if it had been made available
to the first Review Tribunal, it would be practically conclusive, meaning that
it could probably change the result (see Varette v. Sainsbury (1927),
[1928] S.C.R. 72 and 671122 Ontario Ltd. v. Sagaz Industries Canada
Inc., 2001 SCC 59 at paragraphs 59 to 62). The respondent noted that in Kent v. Canada (Attorney
General),
2004 FCA 420, Justice Sharlow stated that the practically conclusive test may
be met if the proposed new facts may reasonably be expected to affect the
outcome. However, the respondent submitted that the preferred test for
“practically conclusive” is whether the new evidence would have probably changed
the result at trial (see Sagaz, above).
[29]
The
respondent submitted that Dr. Read’s letter of September 24, 2002 does not meet
the new facts test as it reiterates the opinion expressed in his previous
reports that were considered by the Review Tribunal before it rendered its
decision dated August 30, 1999.
[30]
In
his addendum report dated January 20, 2003, Dr. Read stated that although there
are few objective clinical signs, it was his opinion that the applicant’s
disability is severe and prolonged. The respondent submitted that since the
source of this evidence comes from the applicant, it cannot be said that Dr.
Read’s observations contain new facts with respect to her condition in December
1997.
[31]
The
respondent submitted that the applicant has provided no explanation as to why
the report of Dr. How dated February 8, 1999 was not discoverable, since it
predates the Review Tribunal hearing, or why it is material, since it postdates
the applicant’s MQP. In any event, the respondent submitted that the same
information contained in that report is repeated in a letter from Dr. How dated
March 9, 1999, which was previously before the Review Tribunal.
[32]
The
respondent submitted that it was not patently unreasonable for the Review
Tribunal to determine that the reports of Dr. Read and Dr. How were not new
facts.
Analysis and
Decision
Standard of
Review
[33]
The
Review Tribunal’s decision pursuant to subsection 84(2) of the CPP on whether
to reconsider an earlier decision, given new facts, is reviewable on a standard
of patent unreasonableness (see Taylor v. Canada (Minister of Human
Resources Development), 2005 FCA 293 at paragraph 12).
[34]
Issue
Did the
Review Tribunal err in finding that there were no new facts to warrant
reconsideration of the
applicant’s claim for CPP disability benefits?
To be
eligible for disability benefits under the CPP, the claimant must be disabled
within the meaning of the CPP and must have made valid contributions to the CPP
for a MQP before becoming disabled.
[35]
Subsection
42(2) of the CPP provides that
an individual is disabled if he or she has a mental or physical disability that
is both severe and prolonged. The definition of a severe and prolonged
disability is set out in paragraph 42(2)(a), as follows:
(i)
a disability is severe only if by reason thereof the person in respect of whom
the determination is made is incapable regularly of pursuing any substantially
gainful occupation, and
(ii)
a disability is prolonged only if it is determined in prescribed manner that
the disability is likely to be long continued and of indefinite duration or is
likely to result in death; . . .
[36]
On
August 30, 1999, the Review Tribunal decided that the evidence did not
demonstrate, at the time the applicant last met her MQP on December 31, 1997,
that the applicant suffered from a disability that was so severe that it
prevented her from performing gainful employment. The applicant applied for
reconsideration under subsection 84(2) of the CPP, and on July 9, 2003, the
Review Tribunal refused the application as the applicant had not submitted any
evidence that would constitute new facts.
[37]
In
Kent v. Canada (Attorney General), 2004 FCA 420 at paragraphs 33
to 36, Madame Justice Sharlow for the Federal Court of Appeal reviewed the test
for determining whether there are new facts to justify reconsideration of a
prior decision on a disability pension claim:
[33]
The jurisprudence of this Court has established a two step test for the
determination of whether there are new facts. First, the proposed new facts
must not have been discoverable, with due diligence, prior to the first
hearing. Second, the proposed new facts must be “material”: Canada (Minister of Human Resources
Development) v. Macdonald,
2002 FCA 48.
[34]
Whether a fact was discoverable with due diligence is a question of fact. The
question of materiality is a question of mixed fact and law, in the sense that
it requires a provisional assessment of the importance of the proposed new
facts to the merits of the claim for the disability pension. The decision of
the Pension Appeals Board in Suvajac v. Minister of Human Resources
Development (Appeal CP 20069, June 17, 2002) adopts the test from Dormuth
v. Untereiner, [1964] S.C.R. 122, that new evidence must be practically
conclusive. That test is not as stringent as it may appear. New evidence has
been held to be practically conclusive if it could reasonably be expected to
affect the result of the prior hearing: BC Tel v. Seabird Island
Indian Band (C.A.), [2003] 1 F.C. 475. Thus, for the purposes of subsection
84(2) of the Canada Pension Plan, the materiality test is met if the proposed
new facts may reasonably be expected to affect the outcome.
[35]
In the context of an application to reconsider a decision relating to
entitlement to benefits under the Canada Pension Plan, the test for the
determination of new facts should be applied in a manner that is sufficiently
flexible to balance, on the one hand, the Minister’s legitimate interest in the
finality of decisions and the need to encourage claimants to put all their
cards on the table at the earliest reasonable opportunity, and on the other
hand, the legitimate interest of claimants, who are usually self-represented,
in having their claims assessed fairly, on the merits. In my view, these
considerations generally require a broad and generous approach to the
determination of due diligence and materiality. This is consistent with the
words of Isaac C.J. at paragraph 27 of Villani (cited above):
[27] In Canada,
courts have been especially careful to apply a liberal construction to
so-called “social legislation”. In Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at paragraph 36, the Supreme Court emphasized that
benefits-conferring legislation ought to be interpreted in a broad and generous
manner and that any doubt arising from the language of such legislation ought
to be resolved in favour of the claimant.
[36]
For most disabling conditions, it is reasonable to expect the claimant to
present a complete picture of his or her disability at the time of the first
application, or on a first appeal to the Review Tribunal or the Pension Appeals
Board. However, there are some disability claims, such as those based on
physical and mental conditions that are not well understood by medical
practitioners, that must be assessed against the background of an evolving
understanding of a claimant’s condition, treatment and prognosis. It is
especially important in such cases to ensure that the new facts rule is not
applied in an unduly rigid manner, depriving a claimant of a fair assessment of
the claim on the merits.
[38]
Justice
Sharlow allowed Ms. Kent’s application for judicial review because there
was a new medical opinion that made a formal diagnosis of depression for the
first time. The medical opinion suggested that it may be the depression that
made it difficult for Ms. Kent to recover from her other conditions.
Justice Sharlow found that this medical evidence satisfied the test for new
facts.
[39]
In
support of her application for reconsideration, the applicant submitted letters
from Dr. Read dated September 24, 2002 and January 20, 2003. She also submitted
a letter from Dr. How dated February 8, 1999. The question that must be
determined is whether this further evidence satisfies the requirements of the
test for new facts under subsection 84(2) of the CPP.
[40]
The
respondent submitted that the report of Dr. How dated February 8, 1999 did not
meet the discoverability requirement because it predates the hearing of the
Review Tribunal which was held on June 23, 1999. I agree with the respondent
and therefore, the report of Dr. How dated February 8, 1999 does not meet the
test for new facts.
[41]
As
noted, Dr. Read submitted two letters. The new letters show that the
applicant’s condition has not improved but has worsened. She has not worked
since 1993 and is unable to obtain employment at McDonald’s or Wal-Mart. On
page 3 of the September 24, 2002 report, Dr. Read stated in part as follows:
Due to her medical condition, this
patient has been unable to be employed and pursue a substantially gainful
occupation. Historically, this patient has been unable to work since
approximately 1993 and in my opinion, has a prolonged medical disability
relating to her fibromyalgia diagnosis which is considered severe. Given the
duration of this patient’s symptoms and the severity experienced, this has been
a long term illness and is expected to continue for the foreseeable future. It
is possible that in future there will be some remission in symptoms but there
is no way to predict this.
And in his January 20, 2003 addendum
report, he stated at page 1:
In terms of the duration of symptoms
experienced by this patient, they predated her first visit to me in May of 1996
and I note that in July of 1996 I placed her on a trial of Flexeril (a muscle
relaxant) for management of a suspected diagnosis of fibromyalgia. Certainly
therefore this patient’s symptoms covered the period from December 1997 to the
present.
And at page 2:
As stated in my previous report to you,
this patient’s disability certainly is severe and prolonged, extending over
many years and of significant severity precluding gainful employment. Given the
duration of this patient’s symptoms, I feel it is unlikely that she will be
able to return to work in the future. . . .
[42]
Certainly,
neither evidence relating to lack of improvement in the applicant’s condition nor
evidence of the applicant’s inability to obtain work was available prior to
the previous hearing. Therefore, the first part of the new facts test has been
satisfied for these facts.
[43]
The
second part of the new facts test states that new facts must be material to the
outcome of the claim. The issue of materiality is a question of mixed fact and
law, as it requires a provisional assessment of the importance of the proposed
new facts to the merits of the claim for disability benefits.
[44]
In Kent, (see above) the Federal Court of Appeal acknowledged
that certain disabling conditions are difficult to evaluate in the context of a
disability claim. In applying this jurisprudence to the new evidence under
consideration, I am of the view that the new facts are material.
[45]
I agree with the applicant that her condition of fibromyalgia is
difficult to prove by objective findings. Therefore, the test for new facts
should be applied less rigidly in order to fairly assess her disability claim.
[46]
The applicant submitted that the facts relating to her condition’s lack
of improvement, and her inability to obtain work, satisfied the materiality
requirement of the test for new facts. I agree with the applicant that these
facts are material, as they could reasonably have affected the Review
Tribunal’s prior decision.
[47]
In its prior decision, the Review Tribunal found that there was
insufficient evidence that the applicant suffered from a disability which was
severe, prolonged, and precluded her from becoming employed. It is clear from
this finding that new evidence confirming the applicant’s inability to work,
and her condition’s lack of improvement, would be material to her claim.
[48]
Upon review of its prior decision, the Review Tribunal found that the
applicant’s new evidence regarding her condition and employment status did not
constitute new facts. I am of the view that the Review Tribunal’s decision that
this evidence did not meet the test for new facts was patently unreasonable.
[49]
As noted above, the new evidence found in Dr. Read’s letters of
September 24, 2002, and January 20, 2003, meets the discoverability requirement
of the new facts test. In my opinion, the applicant’s new evidence is also
material in that it is important to the merits of her claim. It is possible
that the Review Tribunal’s prior decision could have been different had it been
provided with evidence that the applicant’s condition would not improve over
time, and that she would remain unable to obtain employment. I therefore find
that the new evidence meets both requirements of the test for new facts.
[50]
The Review Tribunal thus committed a patently unreasonable error in
finding that there were no new facts warranting the reconsideration of the applicant’s
claim for CPP disability benefits.
JUDGMENT
IT IS ADJUDGED that the application for judicial review is
allowed and the matter is referred back to the Review Tribunal for
redetermination.
“John
A. O’Keefe”
ANNEX
The
relevant provisions of the Canada Pension Plan, R.S.C. 1985, c. C-8 are
as follows:
|
42. . . .
(2) For the
purposes of this Act,
(a) a person
shall be considered to be disabled only if he is determined in prescribed
manner to have a severe and prolonged mental or physical disability, and for
the purposes of this paragraph,
(i) a
disability is severe only if by reason thereof the person in respect of whom
the determination is made is incapable regularly of pursuing any
substantially gainful occupation, and
(ii) a
disability is prolonged only if it is determined in prescribed manner that
the disability is likely to be long continued and of indefinite duration or
is likely to result in death; and
(b) a person
shall be deemed to have become or to have ceased to be disabled at such time
as is determined in the prescribed manner to be the time when the person
became or ceased to be, as the case may be, disabled, but in no case shall a
person be deemed to have become disabled earlier than fifteen months before
the time of the making of any application in respect of which the
determination is made.
44. (1)
Subject to this Part,
(a) a
retirement pension shall be paid to a contributor who has reached sixty years
of age;
(b) a
disability pension shall be paid to a contributor who has not reached
sixty-five years of age, to whom no retirement pension is payable, who is
disabled and who
(i) has made
contributions for not less than the minimum qualifying period,
(ii) is a
contributor to whom a disability pension would have been payable at the time
the contributor is deemed to have become disabled if an application for a
disability pension had been received before the contributor’s application for
a disability pension was actually received, or
(iii) is a
contributor to whom a disability pension would have been payable at the time
the contributor is deemed to have become disabled if a division of unadjusted
pensionable earnings that was made under section 55 or 55.1 had not been
made;
(iv)
[Repealed, 1997, c. 40, s. 69]
(c) a death
benefit shall be paid to the estate of a deceased contributor who has made
contributions for not less than the minimum qualifying period;
(d) subject to
subsection (1.1), a survivor’s pension shall be paid to the survivor of a
deceased contributor who has made contributions for not less than the minimum
qualifying period, if the survivor
(i) has
reached sixty-five years of age, or
(ii) in the
case of a survivor who has not reached sixty-five years of age,
(A) had at the
time of the death of the contributor reached thirty-five years of age,
(B) was at the
time of the death of the contributor a survivor with dependent children, or
(C) is
disabled;
(e) a disabled
contributor’s child’s benefit shall be paid to each child of a disabled
contributor who
(i) has made
contributions for not less than the minimum qualifying period,
(ii) is a
contributor to whom a disability pension would have been payable at the time
the contributor is deemed to have become disabled if an application for a
disability pension had been received before the contributor’s application for
a disability pension was actually received, or
(iii) is a
contributor to whom a disability pension would have been payable at the time
the contributor is deemed to have become disabled if a division of unadjusted
pensionable earnings that was made under section 55 or 55.1, had not been
made; and
(iv)
[Repealed, 1997, c. 40, s. 69]
(f) an
orphan’s benefit shall be paid to each orphan of a deceased contributor who
has made contributions for not less than the minimum qualifying period.
. . .
(2) For the
purposes of paragraphs (1)(b) and (e),
(a) a
contributor shall be considered to have made contributions for not less than
the minimum qualifying period only if the contributor has made contributions
on earnings that are not less than the basic exemption of that contributor,
calculated without regard to subsection 20(2),
(i) for at
least four of the last six calendar years included either wholly or partly in
the contributor’s contributory period or, where there are fewer than six
calendar years included either wholly or partly in the contributor’s
contributory period, for at least four years, or
(ii) for each
year after the month of cessation of the contributor’s previous disability
benefit; and
(b) the
contributory period of a contributor shall be the period
(i) commencing
January 1, 1966 or when he reaches eighteen years of age, whichever is the
later, and
(ii) ending
with the month in which he is determined to have become disabled for the
purpose of paragraph (1)(b),
but excluding
(iii) any
month that was excluded from the contributor’s contributory period under this
Act or under a provincial pension plan by reason of disability, and
(iv) in
relation to any benefits payable under this Act for any month after December,
1977, any month for which the contributor was a family allowance recipient in
a year for which the contributor’s unadjusted pensionable earnings are less
than the basic exemption of the contributor for the year, calculated without
regard to subsection 20(2).
84. (1) A
Review Tribunal and the Pension Appeals Board have authority to determine any
question of law or fact as to
(a) whether
any benefit is payable to a person,
(b) the amount
of any such benefit,
(c) whether
any person is eligible for a division of unadjusted pensionable earnings,
(d) the amount
of that division,
(e) whether
any person is eligible for an assignment of a contributor’s retirement
pension, or
(f) the amount
of that assignment,
and the
decision of a Review Tribunal, except as provided in this Act, or the
decision of the Pension Appeals Board, except for judicial review under the
Federal Courts Act, as the case may be, is final and binding for all purposes
of this Act.
(2) The
Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding
subsection (1), on new facts, rescind or amend a decision under this Act
given by him, the Tribunal or the Board, as the case may be.
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42. . . .
(2)
Pour l’application de la présente loi:
a)
une personne n’est considérée comme invalide que si elle est déclarée, de la
manière prescrite, atteinte d’une invalidité physique ou mentale grave et
prolongée, et pour l’application du présent alinéa:
(i)
une invalidité n’est grave que si elle rend la personne à laquelle se
rapporte la déclaration régulièrement incapable de détenir une occupation
véritablement rémunératrice,
(ii) une
invalidité n’est prolongée que si elle est déclarée, de la manière prescrite,
devoir vraisemblablement durer pendant une période longue, continue et
indéfinie ou devoir entraîner vraisemblablement le décès;
b)
une personne est réputée être devenue ou avoir cessé d’être invalide à la
date qui est déterminée, de la manière prescrite, être celle où elle est
devenue ou a cessé d’être, selon le cas, invalide, mais en aucun cas une
personne n’est réputée être devenue invalide à une date antérieure de plus de
quinze mois à la date de la présentation d’une demande à l’égard de laquelle
la détermination a été établie.
44.
(1) Sous réserve des autres dispositions de la présente partie:
a) une pension
de retraite doit être payée à un cotisant qui a atteint l’âge de soixante
ans;
b)
une pension d’invalidité doit être payée à un cotisant qui n’a pas atteint
l’âge de soixante-cinq ans, à qui aucune pension de retraite n’est payable,
qui est invalide et qui:
(i)
soit a versé des cotisations pendant au moins la période minimale
d’admissibilité,
(ii) soit est
un cotisant à qui une pension d’invalidité aurait été payable au moment où il
est réputé être devenu invalide, si une demande de pension d’invalidité avait
été reçue avant le moment où elle l’a effectivement été,
(iii)
soit est un cotisant à qui une pension d’invalidité aurait été payable au
moment où il est réputé être devenu invalide, si un partage des gains non
ajustés ouvrant droit à pension n’avait pas été effectué en application des
articles 55 et 55.1;
(iv) [Abrogé,
1997, ch. 40, art. 69]
c) une
prestation de décès doit être payée à la succession d’un cotisant qui a versé
des contributions pendant au moins la période minimale d’admissibilité;
d)
sous réserve du paragraphe (1.1), une pension de survivant doit être payée à
la personne qui a la qualité de survivant d’un cotisant qui a versé des
cotisations pendant au moins la période minimale d’admissibilité, si le
survivant:
(i)
soit a atteint l’âge de soixante-cinq ans,
(ii)
soit, dans le cas d’un survivant qui n’a pas atteint l’âge de soixante-cinq
ans:
(A) ou bien
avait au moment du décès du cotisant atteint l’âge de trente-cinq ans,
(B)
ou bien était au moment du décès du cotisant un survivant avec enfant à
charge,
(C) ou bien
est invalide;
e)
une prestation d’enfant de cotisant invalide doit être payée à chaque enfant
d’un cotisant invalide qui:
(i)
soit a versé des cotisations pendant au moins la période minimale
d’admissibilité,
(ii)
soit est un cotisant à qui une pension d’invalidité aurait été payable au
moment où il est réputé être devenu invalide, si une demande de pension
d’invalidité avait été reçue avant le moment où elle l’a effectivement été,
(iii)
soit est un cotisant à qui une pension d’invalidité aurait été payable au
moment où il est réputé être devenu invalide, si un partage des gains non
ajustés ouvrant droit à pension n’avait pas été effectué en application des
articles 55 et 55.1;
(iv) [Abrogé,
1997, ch. 40, art. 69]
f) une
prestation d’orphelin doit être payée à chaque orphelin d’un cotisant qui a
versé des cotisations pendant au moins la période minimale d’admissibilité.
. .
.
(2)
Pour l’application des alinéas (1)b) et e):
a)
un cotisant n’est réputé avoir versé des cotisations pendant au moins la
période minimale d’admissibilité que s’il a versé des cotisations sur des
gains qui sont au moins égaux à son exemption de base, compte non tenu du
paragraphe 20(2), selon le cas:
(i)
soit, pendant au moins quatre des six dernières années civiles comprises, en
tout ou en partie, dans sa période cotisable, soit, lorsqu’il y a moins de
six années civiles entièrement ou partiellement comprises dans sa période
cotisable, pendant au moins quatre années,
(ii) pour
chaque année subséquente au mois de la cessation de la pension d’invalidité;
b)
la période cotisable d’un cotisant est la période qui:
(i)
commence le 1er janvier 1966 ou au moment où il atteint l’âge de dix-huit
ans, en choisissant celle de ces deux dates qui est postérieure à l’autre,
(ii) se
termine avec le mois au cours duquel il est déclaré invalide dans le cadre de
l’alinéa (1)b),
mais ne
comprend pas:
(iii)
un mois qui, en raison d’une invalidité, a été exclu de la période cotisable
de ce cotisant conformément à la présente loi ou à un régime provincial de
pensions,
(iv) en ce qui
concerne une prestation payable en application de la présente loi à l’égard
d’un mois postérieur à décembre 1977, un mois relativement auquel il était
bénéficiaire d’une allocation familiale dans une année à l’égard de laquelle
ses gains non ajustés ouvrant droit à pension étaient inférieurs à son
exemption de base pour l’année, compte non tenu du paragraphe 20(2).
84.
(1) Un tribunal de révision et la Commission d’appel des pensions ont
autorité pour décider des questions de droit ou de fait concernant:
a) la question
de savoir si une prestation est payable à une personne;
b) le montant
de cette prestation;
c)
la question de savoir si une personne est admissible à un partage des gains
non ajustés ouvrant droit à pension;
d) le montant
de ce partage;
e)
la question de savoir si une personne est admissible à bénéficier de la
cession de la pension de retraite d’un cotisant;
f) le montant
de cette cession.
La décision du
tribunal de révision, sauf disposition contraire de la présente loi, ou celle
de la Commission d’appel des pensions, sauf contrôle judiciaire dont elle
peut faire l’objet aux termes de la Loi sur les Cours fédérales, est
définitive et obligatoire pour l’application de la présente loi.
(2)
Indépendamment du paragraphe (1), le ministre, un tribunal de révision ou la
Commission d’appel des pensions peut, en se fondant sur des faits nouveaux,
annuler ou modifier une décision qu’il a lui-même rendue ou qu’elle a
elle-même rendue conformément à la présente loi.
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