Date:
20080228
Docket:
A-368-07
Citation:
2008 FCA 78
CORAM: DÉCARY
J.A.
LÉTOURNEAU
J.A.
SHARLOW
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
LESLIE
DANIELSON
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Winnipeg, Manitoba, on February 28, 2008)
LÉTOURNEAU
J.A.
[1]
Mr.
Justice Décary and myself are of the view that this application for judicial
review must be allowed.
[2]
The
Pension Appeals Board (Board) ruled that the respondent had established on a
balance of probabilities that he was incapable of forming or expressing an
intention to make an application for a disability pension from July 1997 until
the Review Tribunal hearing held on November 21, 2006.
[3]
The
Board came to that conclusion on the basis of medical evidence and the
testimony of the respondent. However, according to the applicant, the Board
misapplied the legal test in its consideration of whether the respondent was
incapable of forming or expressing an intention to make an application for
disability benefits within the meaning of subsections 60(8) and 60(9) of the Canada
Pension Plan, R.S.C. 1985, c. C-8 (Plan).
[4]
The
alleged error of law, the applicant says, consisted in the Board’s omission to
consider the respondent’s activities during the alleged period of incapacity
which, he says, were relevant to the determination of the issue of the
respondent’s capacity to form or express an intention to apply for benefits.
[5]
Section
60 of the Plan was considered by the Board in an earlier decision, Morrison
v. The Minister of Human Resources Development, Appeal CP 04182, March 7,
1997. In that case, the Board wrote that section 60 “is precise and narrow”. We
would rather say precise and focused in that, as the Morrison Board
appropriately said, “it does not require consideration of the capacity to make,
prepare, process or complete an application for disability benefits, but only the
capacity, quite simply, of ‘forming or expressing an intention to make an
application’”.
[6]
In
determining that issue, the Morrison Board, at pages 5 and 6 of its
decision, then expressed the need to look at the medical evidence as well as
“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”.
[7]
We
agree with the Morrison Board that the activities of a claimant during
that period may be relevant to cast light on his or her continuous incapacity
to form or express the requisite intention and ought to be considered.
[8]
In
the case at bar, after a careful reading of the Board’s decision, we agree with
the applicant that the respondent’s activities which could be of assistance in
determining whether the legal test in section 60 has been properly applied were
not addressed by the Board.
[9]
The
applicant in his memorandum of fact and law, at paragraphs 63 to 75, listed a
number of these activities which he claims are relevant and should have been
considered.
[10]
We
are content to give a few examples. The respondent:
a)
entered a drug rehabilitation program in Minnesota in February
1996;
b) liquidated and consolidated his
assets in 1996;
c) applied for private disability
benefits pursuant to an accident;
d) battled with insurance companies
for those benefits for several years to obtain them;
e)
hired and instructed legal counsel to pursue his insurance claims as
early as October 16, 1998;
f) authorized the preparation of
independent medical assessments in that context;
g)
from 1997 sought out medical reports on his own initiative to support
his pursuit of disability benefits;
h)
entered into a franchised business venture and started that venture in 2001;
and
i) declared personal bankruptcy in
September 2001.
[11]
These
facts were before the Board and the Review Tribunal. A few were mentioned by
the Board but no analysis was made of them or of other relevant activities of
the respondent by the Board in its decision. In fact, the respondent was
questioned on these events that the Board mentions at paragraphs 20 to 24 of
the decision. The Board concluded that the respondent had a vague or poor
recollection of these events. But the questioning took place in 2007. What the
Board should have looked at is whether these events at the time they occurred
evidenced a capacity to form or express an intention to make an application for
benefits. The omission by the Board to do that and consider other relevant
activities of the respondent resulted, in our respectful view, in a
misapplication of the legal test.
[12]
For
these reasons, the application for judicial review will be allowed, the
decision of the Board dated June 28, 2007 will be set aside and the matter
referred back to a differently constituted panel for re-determination.
“Gilles Létourneau”
DISSENTING REASONS OF
SHARLOW J.A.
[13]
I
respectfully disagree with my learned colleagues. Based on my review of the
record, I cannot conclude that the Board misapplied the legal test because it
failed to consider relevant evidence. Although the Board’s analysis does not
deal specifically with some of the factual allegations now made by the
applicant, the evidence of those factual allegations is based for the most part
on inferences the applicant draws from statements in the expert reports – the
same reports that the Board describes in its reasons. It seems to me improbable
that the Board read those reports but failed to notice the factual elements
cited by applicant.
[14]
I
am not persuaded that the decision of the Board discloses any error of law or
any other error that warrants the intervention of this Court. I would dismiss
the application with costs.
“K. Sharlow”
FEDERAL
COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-368-07
(JUDICIAL
REVIEW OF A DECISION OF THE PENSION APPEALS BOARD DATED JUNE 28, 2007)
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA v.
LESLIE DANIELSON
PLACE OF HEARING: Winnipeg, MB
DATE OF HEARING: February
28, 2008
REASONS FOR JUDGMENT DELIVERED
FROM THE BENCH BY: Létourneau
J.A.
CONCURRED IN BY: Décary
J.A.
DISSENTING REASONS BY: Sharlow J.A.
APPEARANCES:
|
James
Gray
Carole
Vary
|
FOR
THE APPLICANT
|
|
Madeline
Low
|
FOR
THE RESPONDENT
|
|
|
|
SOLICITORS
OF RECORD:
|
John
H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa, ON
|
FOR
THE APPLICANT
|
|
Hill
Dewar Vincent
Winnipeg,
MB
|
FOR THE RESPONDENT
|
Email this Content