Date: 20080417
Docket: A-286-07
Citation: 2008 FCA
144
CORAM: LÉTOURNEAU J.A.
SHARLOW J.A.
TRUDEL J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
LINDA KIRKLAND
Respondent
Heard at Toronto, Ontario, on April 16, 2008.
Judgment delivered at Toronto,
Ontario, on April 17, 2008.
REASONS FOR JUDGMENT BY:
LÉTOURNEAU J.A.
CONCURRED
IN BY:
SHARLOW J.A.
TRUDEL
J.A.
Date: 20080417
Docket: A-286-07
Citation: 2008 FCA 144
CORAM: LÉTOURNEAU
J.A.
SHARLOW
J.A.
TRUDEL
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
LINDA KIRKLAND
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
I am of
the view that this application for judicial review must be allowed.
[2]
The
Pension Appeals Board (Board) determined that Ms. Kirkland, who has been
self-represented throughout these proceedings, was incapable of forming the
intention to apply for disability benefits prior to March 31, 2002. Yet, the
uncontradicted evidence in the record shows that she signed her application for
benefits on January 13, 2002.
[3]
In
addition, the Board ruled that her disability benefits be made retroactive to
March 31, 1996.
[4]
I agree
with counsel for the applicant that these two conclusions are unexplained in
the reasons, unsupported by and indeed contrary to the evidence. For example,
in order for the respondent to be entitled to benefits as of March 31, 1996,
this means that the Board would have had to find her disabled as of November
1995. Yet, she worked until December 1995.
[5]
I also
agree with the applicant that the reasons given by the Board for its conclusion
on the respondent’s incapacity to form an intention to apply for benefits do
not adequately deal with the evidence that Ms. Kirkland had some
decision-making capacity prior to March 2002.
[6]
I note
that the Board did not have, at the time, the benefit of the decisions of this
Court in Sedrak v. Canada (Minister of Social Development), 2008 FCA 86
and Canada (Attorney General) v.
Danielson,
2008 FCA 78.
[7]
One
decision stands for the principle that the activities of a claimant during an
alleged period of incapacity “may be relevant to cast light on his or her
continuous incapacity to form or express the requisite intention and ought to
be considered: see Danielson, supra, at paragraph 7. The
other holds 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”: see Sedrak, supra,
at paragraph 3.
[8]
There was
ample evidence of relevant activities of the respondent in this case that the
Board either ignored or failed to consider.
[9]
I should
add that the issue in this case is not about whether the respondent is disabled
or not. As we explained to her at the hearing when she appeared to be
relitigating that issue, she has been found to be disabled and she is receiving
disability benefits. Rather, it is about the extent of the retroactivity of
these benefits and the time and length of the respondent’s incapacity to apply
for them.
[10]
For these
reasons, I would allow this application for judicial review, set aside the
decision of the Board and refer back the matter for reconsideration by a
differently constituted panel. The applicant did not seek costs and
consequently no order as to costs will be issued.
“Gilles
Létourneau”
“I
agree
K.
Sharlow J.A.”
“I
agree
Johanne
Trudel J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-286-07
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA v.
LINDA KIRKLAND
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: April 16, 2008
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: SHARLOW J.A.
TRUDEL J.A.
DATED: April 17, 2008
APPEARANCES:
|
Jacques-Michel Cyr
|
FOR
THE APPLICANT
|
|
Linda Kirkland
|
ON
HER OWN BEHALF
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR
THE APPLICANT
|
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