Date: 20070620
Docket: T-403-06
Citation: 2007
FC 663
Vancouver, British
Columbia,
June 20, 2007
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
DANIEL
VAILLANCOURT
Applicant
and
MINISTRY
OF HUMAN RESOURCES
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
The Applicant, Daniel Vaillancourt, seeks judicial review of the January 18,
2006, decision by the Minister of Social Development (the Minister) under
subsection 84(2) of the Canada Pension Plan, R.S., 1985, c. C-8 (the
CPP) not to reopen and review the August 27, 1998 decision to terminate
the Applicant’s disability pension as of May 1998.
II. Facts
[2]
The Applicant became disabled in 1989 as a result of a
failed three-level discectomy of his lumbar spine and arachnoiditis. The
physical disability is allegedly incurable and permanent, and he claims, as a
consequence, to be unable to sustain regular employment.
[3]
The Applicant first applied for disability benefits in
December 1990. His application was approved with the payment of benefits commencing
in October 1990.
[4]
In January 1998, the Applicant obtained his life insurance
sales license and attempted self-employment as an insurance broker. He advised
the Canada Pension Plan office of this fact as required by the CPP.
[5]
On January 26, 1998, the Applicant’s wife, who was also
receiving CPP disability benefits, informed the Respondent that she and her
husband were considering starting a business. On February 25, 1998, the
Respondent sent a Disability Reassessment Questionnaire and an Authorization to
Disclose Medical Information to the Applicant. The forms were not received
because of a change of address and were re-sent on March 26, 1998. The
Applicant sought clarification in respect of these forms and eventually the
Applicant’s wife informed the Respondent that the Applicant was working at that
time as a Life Insurance Policy Salesman and doing well.
[6]
On May 1, 1998, the Respondent again wrote to the Applicant
seeking a response to the February 25 and March 26 letters. Eventually, the
Applicant responded advising that he had returned to work in January 1998 and
that he would not be providing the information requested by the Respondent for
the review. In his April 11, 1998 letter the Applicant wrote in part:
After a great many
inquiries to CPP I have finally discovered that I make too much money to
continue to qualify for benefits [sic]. It would seem impractical to
sift through 10 years of medical information for benefits [sic] that I
no [sic] longer qualify for and would be redundant to ask the tax
payers, the Drs [sic] and yourselves to spend the time and money to
process the information.
[7]
On May 28, 1998, and again on August 14, 1998, the
Respondent sought confirmation that the Applicant was capable of returning to
work. In a fax dated August 25, 1998, the Applicant confirmed that he had
returned to work in January 1998, and noted that he worked two to three hours
per day, earning an average monthly commission of $2000.00 to $2500.00.
[8]
The review of the Applicant’s eligibility for disability
benefits was completed and the Respondent determined that the Applicant was no
longer disabled as defined in the CPP by reason of his return to work and his
monthly earnings. The Applicant was allowed a three-month trial work period
form January to April 1998, during which time benefits continued. Benefits
eventually ceased as of April 30, 1998.
[9]
By letter dated September 18, 1998, the Applicant was
informed of the decision to cease benefits and that he could appeal the
decision by asking that the decision be reconsidered within 90 days. The
Applicant did not appeal the decision.
[10]
On May 10, 1999, the Respondent wrote the Applicant asking
for repayment of the $695.19, representing disability benefits for May 1998, which
the Applicant was not entitled to receive. The Applicant’s wife authorized a
$25.00 deduction from her benefits to be applied against the overpayment debt.
[11]
The Applicant made his second application for disability
benefits on January 27, 2004. The application was deemed to have been made on
March 18, 2003, the “protected date”, since this is the date the Applicant’s
M.P. had first made an inquiry on behalf of the Applicant. In this second
application, the Applicant submitted that he was working one to three days per
week for one to three hours per day as an insurance salesman and that his
ongoing chronic conditions prevented him from working more.
[12]
The Applicant’s second application was allowed. The
“fast-track” provisions, a program which allows for a finding of disability to
be made up to 12 months prior to the receipt of the application, resulted in the
Applicant's claim being backdated to March 2002, 12 months prior to the
protected date. Disability payments commenced in April 2002. The Applicant was
informed of this decision on April 3, 2004. He continues to receive these
benefits today.
[13]
On June 3, 2004, the Applicant wrote the Respondent
appealing the decision determining the effective date for the commencement of
payments. The Applicant requested that the payment of benefits commence as of
May 1998, when the benefits he received as a result of his first application
were terminated by the Respondent.
[14]
On September 27, 2004, the Respondent informed the
Applicant that the maximum amount of retroactivity allowed has already been
awarded in his case. The Applicant was then informed that he could appeal the
decision to the Office of the Commissioner of Review Tribunals (OCRT).
[15]
In a letter dated October 4, 2004, the Applicant informed
the Respondent of his intention to appeal the Respondent’s decision. The letter
was forwarded to the OCRT on October 8, 2004, and on November 2, 2004, the OCRT
informed the Respondent that the Applicant’s letter had been accepted as a
Notice of Appeal.
[16]
On June 9, 2005, the OCRT informed the Applicant that it
did not have jurisdiction to backdate the commencement of his CPP benefits and
suggested, as a possible recourse, that he proceed under subsections 66(4) or
84(2) of the Act, the “administrative error” and “new facts” provisions.
[17]
The Applicant subsequently requested that the Respondent
exercise discretion under subsection 66(4) of the CPP on the grounds of
administrative error. On August 9, 2005, the Respondent informed the Applicant
of the Minister’s decision that no administrative error had been made. The
Applicant was also informed that he could seek judicial review of this
decision. No application seeking judicial review of the Minister’s decision was
filed.
[18]
On December 1, 2005, the Applicant requested that the
Respondent reopen its 1998 decision ceasing his disability benefits on the
basis of new facts pursuant to subsection 84(2) of the CPP.
[19]
In his application, the Applicant submitted the following
as new facts:
(a) A
transcript of the Applicant’s day-timer entries indicating the number of hours
he worked per month for the year 1998, and indicating the number of hours he
worked in the years 1999, 2000, and 2001. The applicant also submitted his
handwritten notations concerning his medical condition during those years
(b) Excerpts
from the medical text Neurology in Clinical Practice with regard to
chronic adhesive arachnoiditis, and idiopathic adhesive arachnoiditis, and
(c) The
Respondent’s May 28, 1998 questionnaire originally faxed to the Respondent on
August 25, 1998.
[20]
On January 18, 2006, the Respondent informed the Applicant
that his application to reopen the Decision had been considered and denied. The
Respondent determined that the information submitted by the Applicant did not
constitute new facts for the purposes of subsection 84(2) of the CPP.
[21]
On March 6, 2006, the Applicant brought the within
application for judicial review of the Respondent’s January 18, 2006 decision.
III. Impugned Decision
[22]
In dismissing the application, the Respondent determined
that the entries in the medical text Neurology in Clinical Practice did
not address the Applicant's functional capacity and therefore would not have
impacted the Respondent’s August 1998 decision. The Respondent further noted
that while the information contained in the Applicant’s handwritten notes
concerning events from 1999 to 2001 had not been discoverable in 1998, it could
not be considered material to his functional capacity as of August 1998 and
therefore would not have impacted the Respondent’s decision. The Respondent
informed the Applicant that his handwritten notes containing information
concerning events of 1998 were discoverable at the time of the August 1998
decision, and therefore could not be considered new facts. The Respondent
further noted that the copy of its May 28, 1998 questionnaire, which the
Applicant had faxed to the Respondent in August 1998, had been considered by
the Respondent when the Respondent made its August 1998 decision and therefore
could not be considered to be new facts.
IV. Issue
[23]
The only issue raised in this application is whether the
Minister erred in dismissing the Applicant’s request pursuant to subsection
84(2) of the CPP by reason of his determination that the information submitted
by the Applicant in his request did not constitute new facts.
V. The Law
[24]
Subsection 84(2) of the CPP
provides as follows:
|
(2) The Minister, a Review Tribunal or the Pension
Appeals Board may, notwithstanding subsection (1), on new facts, rescind or
amend a decision under this Act given by him, Tribunal or the Board, as the
case may be.
|
84. (2) Indépendamment du paragraphe (1), le
ministre, un tribunal de révision ou la Commission d’appel des pensions peut,
en se fondant sur des faits nouveaux, annuler ou modifier une décision qu’il
a lui-même rendue ou qu’elle a elle-même rendue conformément à la présente
loi.
|
[25]
Decisions made under the CPP are subject to the appeal
process set out the legislation, which is generally considered binding and
final. Subsection 84(2) of the CPP provides that the Minister, the Review
Tribunal or the Pension Appeals Board may rescind or amend a decision made
under the CPP on the basis of new facts.
[26]
Subsection 84(2) of the CPP has been narrowly interpreted
by the courts. The intrinsic limitation of the provision was acknowledged by
the Federal Court of Appeal in Canada (Minister of Human Resources Development) v. Landry, 2005 FCA 167, at paragraph 7. The provision is applicable in exceptional
circumstances where, despite due diligence, relevant material becomes available
to a current application outside the expiration of the appeal limitation.
[27]
Review of a subsection 84(2) determination engages a two-step
process: first, a determination on whether the information submitted
constitutes new facts; second, a decision on entitlement takes place if there
are new facts. Peplinski v. Canada, [1993] 1 F.C. 222 (T.D.) (QL), at paragraph 11. If there are no new
facts, then the prior decision stands. As will become evident below, I need
only address the first part of this process.
[28]
To be considered new facts for the purposes of subsection
84(2) of CPP, new information must not have been previously discoverable with
reasonable diligence at the time of the original hearing (Canada (Minister
of Human Resources Development) v. MacDonald, [2002] F.C.J. No. 197
(C.A.) (QL)). This implies that the information must have existed at that time.
Further, to be considered new facts, the information must also be material. The
Federal Court of Appeal in Leskiw v. Canada (Attorney General), 2003 FCA 345, at paragraph 5
of its reasons for decision held that, to be material, the new evidence must be
“practically conclusive”. The Federal Court of Appeal in BC Tel v. Seabird
Island Indian Band (C.A.), 2002 FCA 288, [2003] 1 F.C. 475, elaborated on
this test by finding that new evidence has been held to be practically
conclusive if it could reasonably be expected to affect the result of the prior
hearing.
[29]
I agree with the Respondent that the new facts test
requires that the Applicant prove on a balance of probabilities that the new
evidence, which existed at the time of the original hearing, could not have
been discovered with reasonable diligence and that, had it been made available
to the decision maker, it could not reasonably be expected to have affected the
result of the prior hearing.
VI. Analysis
[30]
In applying the new facts test, as articulated above, to
the documents submitted by the Applicant, I find that the information does not
meet the criteria for new facts. Below, I consider each document in turn.
[31]
The first document submitted as new facts consists of the
transcription of the Applicant’s “day timer”, which includes information
detailing the number of hours worked by the Applicant on a monthly basis for
the years 1998 through 2001, and handwritten notations concerning his medical
condition during this time. The entries made prior to the August 27, 1998
decision said to be prepared by the Applicant were in his possession. These
entries were the creation of the Applicant and the information contained
therein was clearly known and therefore discoverable prior to the August, 27,
1998 decision. As a consequence, they do not constitute new facts under
subsection 84(2) of the CPP. I come to the same conclusion with respect to the
“day timer” entries made subsequent to August 27, 1998. While these entries
were not in existence at that time and therefore not discoverable, they are of
little assistance in addressing the Applicant’s capacity to engage in
substantially gainful employment as of May 1998. This is so because this
information could not have been available to the Minister since it did not
exist at the time of the decision. In the result, the information cannot be
said to be material, that is to say “practically conclusive” with respect to
the issue of whether the Applicant remained disabled within the meaning of the
CPP on or after April 30, 1998.
[32]
The second document tendered as new facts is an excerpt
from a medical text Neurology in Clinical Practice. The excerpt does not
address the Applicant’s capacity to work as of August 27, 1998. The information
is not material to the issue which was the subject of the August 27, 1998
decision and is therefore not new facts evidence.
[33]
The final document tendered by the Applicant as new facts
is the 1998 completed questionnaire. The document was before the Respondent
when the August 27, 1998 decision was rendered. It is clearly not new facts
evidence.
[34]
In my view, the Respondent was correct in finding that none
of the evidence tendered by the Applicant as new facts evidence meets the new
facts tests. In the result, the Minister did not err in dismissing the
Applicant’s subsection 84(2) application on that basis.
[35]
The Respondent contends that the applicable standard of
review of a decision on eligibility for disability or a determination of new
facts under subsection 84(2) of the CPP is that of patent unreasonableness. The
authorities cited by the Respondent in support of this position are decisions
of the Federal Court of Appeal which pre-date Attorney General of Canada v. Sketchley, 2005 FCA 404. In Sketchley, the Court
of Appeal held that it was necessary to conduct a pragmatic and functional
analysis with respect to the particular questions at issue in order to
ascertain the applicable standard of review. Here, the issue involves applying
the new facts test to the documents tendered by the Applicant. The issue
involves a question of mixed fact and law. It is unnecessary to determine the
applicable standard in the circumstances since I find that, on any standard of
review, the Court’s intervention is not warranted. The Respondent correctly
decided that the tendered documents do not constitute new facts for the purpose
of the Applicant’s subsection 84(2) application.
VII. Conclusion
[36]
For the above reasons, the within application for judicial
review will be dismissed with costs.
ORDER
THIS COURT
ORDERS that:
The
application for judicial review of the January 18, 2006,
decision of the Minister of Human Resources and Social Development Canada, not
to reopen the 1998 decision to terminate the Applicant’s disability pension is
dismissed, with costs.
"Edmond P. Blanchard"
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