Date:
20111013
Docket: A-318-10
Citation: 2011 FCA 281
CORAM: NADON J.A.
SHARLOW J.A.
DAWSON J.A.
BETWEEN:
BARBARA EVANS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
SUSAN KOROTASH
Respondent
and
MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT
Respondent
Heard at Edmonton, Alberta, on October
12, 2011.
Judgment delivered at Edmonton,
Alberta, on October
13, 2011.
REASONS FOR JUDGMENT BY:
DAWSON J.A.
CONCURRED
IN BY:
NADON J.A.
SHARLOW J.A
Date:
20111013
Docket: A-318-10
Citation: 2011 FCA 281
CORAM: NADON
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
BARBARA EVANS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
SUSAN KOROTASH
Respondent
and
MINISTER OF HUMAN RESOURCES AND SKILLS
DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] The Pension Appeals Board
(Board) in Appeal CP25866 determined that Barbara Evans had not cohabited with
a deceased contributor to the Canada Pension Plan, R.S.C. 1985, c. C-8
(Plan) continuously in a conjugal relationship for 12 months prior to the
contributor’s death. In consequence, Ms. Evans did not fall within the
definition of “common-law partner” contained in subsection 2(1) of the Plan. As
a result, pursuant to subsection 42(1) of the Plan, the Board concluded that
the deceased contributor’s separated legal spouse was entitled to survivor’s
benefits under the Plan.
[2] Ms.
Evans did not appear at the hearing of this application and for that reason the
Court relied solely upon her written submissions. Both respondents appeared by
counsel. On this application for judicial review of the Board’s decision
Barbara Evans argues that the Board:
a. used the wrong legal test in defining “common
law partner” by using the wrong definition of “cohabitated”;
b. failed to give proper weight to the
evidence before it; and
c. imputed that she was not credible because
she didn’t appear at the hearing.
[3] Central to the Board’s
decision was its finding that:
Ms. Evans chose not to attend
either this hearing or the proceedings before the Review Tribunal; nor did she
appoint a representative in spite of bearing the onus of proving her claim.
Consequently, this panel could only look at the documents she submitted to
consider whether she met the evidentiary onus of establishing her claim to have
cohabited continuously with the deceased for at least 12 months up to the date
of his death. Without having the benefit of observing how such sometimes
inconsistent and contradictory statements would stand up to cross-examination,
this panel is unable to accord much weight to that evidence.
[4] Ms. Evans has not shown
this finding to be unreasonable. There was conflicting evidence before the
Board concerning when Ms. Evans resumed her relationship with the deceased
contributor. The Board was entitled to weigh the evidence and find that Ms.
Evans had not met the onus of proof upon her when she did not attend before it
to resolve the conflicting documentary evidence she had submitted in support of
her claim. For this reason, contrary to Ms. Evans’ submissions, the Board
neither failed to give proper weight to the evidence before it, nor made any
credibility finding against Ms. Evans.
[5] It is
not necessary to consider Ms. Evans’ submission that the Board applied the
wrong legal test by using an incorrect definition of “cohabited” because the
Board made no error of law when it stated that Ms. Evans bore the evidentiary
onus of establishing that she cohabited continuously with the deceased for at
least 12 months prior to his death. The Board’s finding that Ms. Evans failed
to meet her evidentiary burden because she failed to resolve inconsistencies
and contradictions in the documents she had submitted was fatal to her claim.
[6] For
these reasons, I would dismiss the application for judicial review with costs
payable by Ms. Evans to the respondent Susan Korotash. The Attorney General of
Canada did not seek costs and no costs should be awarded to him.
“Eleanor R. Dawson”
“I
agree
M.
Nadon J.A.”
“I
agree
K.
Sharlow J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-318-10
STYLE OF CAUSE:
BARBARA EVANS v.
ATTORNEY GENERAL OF
CANADA et al.
PLACE OF HEARING: Edmonton,
Alberta
DATE OF HEARING: October 12, 2011
REASONS FOR JUDGMENT BY: DAWSON J.A.
CONCURRED IN BY: NADON J.A.
SHARLOW J.A.
DATED: October 13, 2011
APPEARANCES:
|
No Appearance
|
FOR
THE APPELLANT
|
|
Mr. Michael Stevenson
|
FOR
THE RESPONDENT ATTORNEY GENERAL OF CANADA
AND OTHER FEDERAL RESPONDENTS
|
Ms. Lesley Tough
FOR THE RESPONDENT SUSAN
KOROTASH
SOLICITORS
OF RECORD:
|
N/A
|
FOR THE APPELLANT
(self-represented)
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT ATTORNEY GENERAL OF CANADA AND OTHER FEDERAL
RESPONDENTS
|
Loewen & Martens
Barristers and Solicitors FOR THE RESPONDENT SUSAN
Winnipeg, Manitoba
KOROTASH
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