Van De Wetering v. Canada (Attorney General), 2003 FCT 588

Date: 20030513

Docket: T-1225-02

Neutral citation: 2003 FCT 588

BETWEEN:

                                                        TONIA VAN DE WETERING

                                                                                                                                                       Applicant

                                                                              - and -

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

GIBSON J.

INTRODUCTION

[1]                 These reasons follow the hearing at Vancouver on Thursday, the 8^th of May 2003, of an application for judicial review of a decision of the Honourable D.H. Medhurst, a member of the Pension Appeals Board designated under subsection 83(2.1) of the Canada Pension Plan^[1], wherein he denied the Applicant's Application for Leave to Appeal from a decision of the Review Tribunal dated the 29^th of June 2001. The decision under review is dated the 2^nd of April 2002.

[2]                 The substance of the decision under review is in the following terms:

First of all one must sympathize with the problems that the Appellant has had with her health and with the Department.

The issue on this appeal however is simply whether the Appellant is receiving her correct combined retirement and survivor's benefit. The retirement benefit is calculated in accordance with Section 46(1) and (2) of the Canada Pension Plan. The formula is 25% of the total adjusted pensionable earnings in the contributory period. This is reduced by .5% for the number of months under age 65 at the time of commencement. This we are told amounts to $267.10.

The survivor's benefit again is calculated in accordance with Section 58(2)(c). This is 60% of $232.97 reduced by 40% and equals $83.87. I find no error in the method or the amount of the calculation so leave to appeal is denied.^[2]

BACKGROUND

[3]                 The Applicant was born in Holland in April 1935. She came to Canada in 1971. She worked and made contributions under the Canada Pension Plan for 25 years. In 1995, she ceased her employment to care for her ailing common-law husband who died in the following year. The Applicant applied for and received a Canada Pension Plan survivor's benefit effective May 1996.

[4]                 On the 24^th of April 1996, shortly after her husband's death, the Applicant sustained serious head injuries as a result of an assault. She has not worked since.

[5]                 The Applicant applied for a retirement pension in October 1999 with a requested effective date of April 2000. Her request was approved and she was granted a combined survivor's benefit and retirement benefit in the amount of $454.11 per month. In May 2000, the month after the Applicant turned 65, her combined benefit amount was reduced to $350.97 per month.

[6]                 The Applicant was of the view that her reduced combined benefit amount was incorrectly calculated, in particular in that the calculation of her "contributory period" failed to take into account her continuing disability following the assault to which she was subjected. The Applicant pursued her concerns with Human Resources Development Canada and later with the Review Tribunal, in each case emphasizing her disability, and in each case without success.

[7]                 There followed her application for leave to appeal to the Pension Appeals Board which led to the decision which is here under review.

[8]                 In her application for leave to appeal, the Applicant noted:

I believe the Pension calculations are incorrect because the time since my injury in April 1996 has not been dropped out of the calculation of my contributory period.

If leave is granted, the following is a statement of the allegations of fact, the summary provisions and the reasons which I intend to submit in support of my appeal to establish that the decision should be reversed or amended.

                                                                           . . .

4.              I have been disabled from employment since the accident [the assault], and I have not worked and I believe I meet the test for disabled under the Canada Pension Plan. So, I think the months from April 1996 onward should be dropped out of the calculations and that my entitlement [should be] adjusted.

5.              I am attaching my Doctor's letter of March 20, 2001 and other supporting documents.^[3]

THE ISSUE ON THIS APPLICATION FOR JUDICIAL REVIEW

[9]                 The sole issue raised on behalf of the Applicant was whether or not the decision-maker erred in a reviewable manner in failing, in his decision quoted above, to address the issue raised by the Applicant, namely, whether she was entitled to have the 48 months between April 1996 and March 2000, excluded from her contributory period for purposes of calculation of her retirement benefit in accordance with paragraph 49(c) of the Canada Pension Plan, because of her disability during that period.

ANALYSIS

[10]            In Callihoo v. Canada (Attorney General)^[4], Justice MacKay wrote at paragraph 15:

On the basis of this recent jurisprudence, in my view the review of a decision concerning an application for leave to appeal to the PAB [the Pension Appeals Board] involves two issues,

1. Whether the decision maker has applied the right test - that is, whether the application raises an arguable case without otherwise assessing the merits of the application, and

2. Whether the decision maker has erred in law or in appreciation of the facts in determining whether an arguable case is raised. If new evidence is adduced with the application, if the application raises an issue of law or of relevant significant facts not appropriately considered by the Review Tribunal in its decision, an arguable issue is raised for consideration and it warrants the grant of leave.

[11]            Before me, the Applicant's representative urged that the decision-maker simply failed to address the first issue identified by Justice MacKay, that is to say whether the Applicant herein raised an arguable case in relation to the calculation of her contributory period. The Applicant's representative urged that the decision-maker, apart from expressing sympathy for the Applicant, simply ignored the basis of her application for leave and certainly failed to analyse in any meaningful way, if at all, whether the basis presented by the Applicant raised an arguable case.

[12]            I agree with the submissions presented on behalf of the Applicant.

[13]            In Lima v. The Minister of Human Resources Development Canada^[5], Justice Nadon, then of the Trial Division of this court, concluded in the following terms:

Therefore, the question which had to be addressed by the PAB member was whether the applicant had an arguable case that he is suffering from chronic pain syndrome and that, as a result, he can no longer pursue a substantially gainful occupation. On my reading of the reasons given by the Honourable K.E. Meredith, in denying the applicant leave to appeal, I cannot conclude that he addressed nor considered that question in making his determination.

I will therefore allow the applicant's judicial review application and send the matter back to the PAB for reconsideration. It goes without saying that I am not concluding, nor am I suggesting, that there is an arguable case. That is for the PAB member to decide on the evidence before him.

[14]            I am satisfied that precisely the same could be said on the facts of this matter.

[15]            Counsel for the Respondent referred me to Attorney General of Canada v. Storto^[6] where Justice Desjardins, on behalf of a panel of the Federal Court of Appeal wrote:

Contrary to what the Board understood, there was no specific finding of disability under the Act and, therefore, the deceased contributor was never determined to be disabled pursuant to paragraph 42(2)(a) of the Act [the Canada Pension Plan].

Later in her reasons, Justice Desjardins concluded:

It is clear to us that the Board could not apply paragraph 49(c) of the Act to the circumstances of this case. Since the deceased contributor was never determined to be disabled, it was not open to the Board to subtract from the contributory period required for a death benefit and survivor's pension "any month that was excluded from the contributor's contributory period under the Act...by reason of disability."

                                                                                                              [Emphasis in the original]

[16]            Counsel for the Respondent urged that Justice Desjardins's reasoning was equally applicable on the facts of this matter and I accept that that is in fact the case. Nonetheless, since the Applicant herein raised the issue of her disability and its impact on the calculation of the Applicant's contributory period, I am satisfied that it was incumbent on officials and tribunals concerned with the administration of the Canada Pension Plan to arrive at a determination as to whether the Applicant was in fact disabled in a manner that impacted on the calculation of her contributory period, whether or not the Applicant who, throughout much of the saga regarding determination of her entitlements under the Canada Pension Plan represented herself, complied with every technical detail of the procedure to ensure that such a determination was made.

[17]            Thus, I am satisfied that, on the facts before me, the decision of the Court of Appeal in Storto, supra, is not binding on me and that the reasoning of Justice Nadon in Lima, supra, is applicable on the facts of this matter.

CONCLUSION

[18]            In the result, I will allow this application for judicial review and refer the decision under review back to the Pension Appeals Board for reconsideration of the question of leave. As Justice Nadon noted in the quotation above from Lima, supra, it goes without saying that I am not concluding, nor am I suggesting, that there is, on the facts of this matter, an arguable case that would justify the granting of leave in favour of the Applicant. That being said, I regard it as incumbent on the member of the Pension Appeals Board who reconsiders the Applicant's application for leave that he or she address the issue of the impact on the Applicant's contributory period of her alleged disability and, if it be necessary for that purpose, whether, on all the facts before the Pension Appeals Board, the Applicant should be, or should have been, determined to have been disabled throughout the relevant period. It might well be that the response to that issue would be determinative on the application for leave to appeal to the Pension Appeals Board and on any appeal before that Board. I do not read the Storto decision, supra, as precluding such a result.

[19]            The Applicant will be entitled to her costs of this application determined on the ordinary

scale.

(Sgd.) "Frederick E. Gibson"

Judge

Vancouver, B.C.

May 13, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-1225-02

STYLE OF CAUSE: Tonia Van De Wetering v. The Attorney General of

Canada

PLACE OF HEARING:                                   Vancouver, B.C.

DATE OF HEARING:                                     May 8, 2003

REASONS FOR ORDER:                           GIBSON J.

DATED:                      May 13, 2003

APPEARANCES:

Mr. Andrew Pavey                                               FOR APPLICANT

Ms. Tania Nolet                                                   FOR RESPONDENT

SOLICITORS OF RECORD:

Mr. Morris Rosenberg                                                     FOR RESPONDENT

Deputy Attorney General of Canada