Quiring v. Canada (Attorney General), 2005 FCA 294

Date: 20050915

Docket: A-581-04

Citation: 2005 FCA 294

CORAM:        DÉCARY J.A.

LINDEN J.A.

SEXTON J.A.

BETWEEN:

                                                         CORNELIUS QUIRING

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                              Heard at Vancouver, British Columbia, on September 12, 2005.

                    Judgment delivered at Vancouver, British Columbia, on September 15, 2005.

REASONS FOR JUDGMENT BY:                                                                               DÉCARY J.A.

CONCURRED IN BY:                                                                                                   LINDEN J.A.

                                                                                                                                     SEXTON J.A.

Date: 20050915

                                                                                                                              Docket: A-581-04

                                                                                                                     Citation: 2005 FCA 294

CORAM:        DÉCARY J.A.

LINDEN J.A.

SEXTON J.A.

BETWEEN:

                                                         CORNELIUS QUIRING

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

DÉCARY J.A.

[1]                The applicant is seeking to review a decision of the Pension Appeals Board (the Board) which determined that he was out of time to cancel his retirement pension in favour of a disability benefit.

[2]                The Canada Pension Plan (the Plan) provides for the cancellation of a retirement pension in favour of a disability benefit provided the pensioner is under 65 years of age, met the contributory requirement for a disability benefit and is deemed to have become disabled before the month the retirement pension became payable (sections 66.1, 70(3) and 44(6)(b) of the Plan). The Plan also stipulates that in no case shall a person be deemed to have become disabled earlier than fifteen months before the time the application is made (paragraphs 42(2)(b) of the Plan). Only the third requirement of the test is at issue in these proceedings.

[3]                The applicant's pension became payable the month following his sixtieth birthday, that is, February 2001. He filed his application for disability benefits on July 25, 2002. Based on an application date of July 2002, the earliest deemed date of disability is April 2001, which is after the retirement pension commenced in February 2001.

[4]                The only way the applicant can succeed is if he were able to satisfy the Minister, under subsection 60(9) of the Plan, that he had been incapable of forming or expressing an intention to make an application before the day on which the application was actually made.

[5]                The Board found, at paragraph 10 of its reasons, that the applicant "was far from incapacitated" during the relevant period. That finding is amply supported by the evidence and can simply not be interfered with by a court of appeal, whatever standard of review is applied.

[6]                Despite the sympathy I feel for the applicant's case, the application cannot but be dismissed. The respondent was gracious enough not to seek costs.

[7]                I would therefore dismiss the application, without costs.

"Robert Décary"