Date:
20081126
Docket: A-586-06
Citation: 2008 FCA 375
CORAM: LINDEN J.A.
RYER J.A.
TRUDEL J.A.
BETWEEN:
ROBIN
SLATER
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Calgary,
Alberta, on November 26,
2008.
Judgment delivered from the Bench at Calgary, Alberta, on November 26, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: TRUDEL
J.A.
Date:
20081126
Docket:
A-586-06
Citation:
2008 FCA 375
CORAM: LINDEN J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
ROBIN SLATER
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Calgary, Alberta, on November 26,
2008)
TRUDEL J.A.
[1]
This is an application for judicial review of a decision made by the
Pension Appeals Board (the Board), CP23550, dated November 7, 2006, dismissing
the appeal from a decision of the Review Tribunal of Social Development Canada,
now Human Resources and Skills Development Canada, on the grounds that the
applicant had correctly received the maximum retroactive disability payments
allowable under the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP or the
Plan) and that an exercise of discretion under subsections 60(8) to (11) of the
Plan to award disability benefits as of April 16, 1984 was not warranted
because the applicant was not a person incapable of forming intention to apply
for benefits within the meaning of the Plan.
[2]
The applicant suffered a traumatic brain injury
as a result of a motor vehicle accident on April 16, 1984 following which she
received disability payments from her employer’s insurer who required her to
apply for CPP disability benefits. The applicant was aware of this
requirement, but appears to have taken no further steps (Reasons at paragraphs
10-11; AR at pp. 279-281 to apply at that time or thereafter until she applied
in 2001.
[3]
In May 2000, the applicant suffered a mild
closed head injury as a result of a fall and, in December, began receiving
social assistance (Ibid. at paragraphs 20-21).
[4]
On January 23, 2001, the applicant’s application
for disability benefits was received by the respondent. On January 30, 2002,
she was awarded a maximum retroactive payment for 15 months commencing in
February 2000 in accordance with section 69 of the Plan (RR, Vol. 1, Tab 1 at
pp. 79-90). Her appeals of that decision were dismissed at all levels. Hence,
the within application for judicial review.
[5]
While the applicant raises numerous points in
her memorandum of fact and law, the only issue on this application is whether
the Board made a reviewable error in concluding that the applicant was not
incapable of forming or expressing an intention to make an application for
disability benefits within the meaning of subsections 60(8) and (9) of the
Plan. The applicant’s disability is not an issue on this application because, as
previously noted, she is currently receiving disability benefits.
[6]
The approach to capacity to form or express an intention within the
meaning of subsections 60(8) and (9) of the Plan is now well-established in the
decisions of the Board and the jurisprudence of this Court.
[7]
In Morrison v. Minister of Human Resources
Development, Appeal CP04182, March 7, 1997, the Board stated that it was
necessary to look at both the medical evidence and “the relevant activities of
the individual concerned between the claimed date of commencement of disability
and the date of application which cast light on the capacity of the person
concerned during that period of so “forming and expressing” the intent” (Ibid.
at p. 5).
[8]
This approach was approved by this Court in Canada (Attorney General) v.
Danielson, 2008 FCA 78 at paragraph 7 and Canada
(Attorney General) v. Kirkland, 2008 FCA 144 at paragraph 7. The approach is also consistent with
the fact that “the capacity to form the intention to apply for benefits is not
different in kind from the capacity to form an intention with respect to other
choices which present themselves to an applicant. The fact that a particular
choice may not suggest itself to an applicant because of his world view does
not indicate a lack of capacity.” Thus, “nothing in the scheme requires us to
give to the word “capacity” a meaning other than its ordinary meaning” (Sedrak
v. Canada (Minister of Social Development), 2008 FCA 86 at paragraphs 3-4).
[9]
In light of the jurisprudence of this Court and
its own decisions, the Board correctly stated the requirements for capacity of
forming or expressing an intention within the meaning of subsections 60(8) and
(9) of the Plan.
[10]
The record of medical evidence and of the
applicant’s activities during the alleged period of disability before the Board
were sufficient for us to conclude that the Board had a reasonable appreciation
of the evidence before it and made no reviewable error in finding that the
evidence did not support a conclusion that the applicant was incapable of
forming an intention to apply for disability benefits between 1984 and 2000.
[11]
Despite
Ms. Slater’s impressive and informative presentation, unfortunately the
application will be dismissed without costs.
“Johanne
Trudel”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-586-06
APPEAL FROM A DECISION MADE BY THE
PENSION APPEALS BOARD, CP23550, DATED NOVEMBER 7, 2006.
STYLE OF CAUSE: Robin
Slater v.
Attorney General of Canada
PLACE OF HEARING: Calgary (Alberta)
DATE OF HEARING: November 26, 2008
REASONS FOR JUDGMENT OF THE COURT BY: (LINDEN, RYER, TRUDEL JJ.A.)
DELIVERED FROM THE BENCH BY: TRUDEL J.A.
APPEARANCES:
|
Robin Slater
|
ON HER OWN BEHALF
|
|
Patricia
Harewood
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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