Date: 20120203
Docket: A-228-11
Citation: 2012 FCA 39
CORAM: PELLETIER J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
DARLENE TAKER
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Halifax, Nova
Scotia, on January 30, 2012.
Judgment delivered at Ottawa,
Ontario, on February
3, 2012.
REASONS FOR JUDGMENT BY:
DAWSON J.A.
CONCURRED
IN BY:
PELLETIER J.A.
STRATAS J.A.
Date: 20120203
Docket: A-228-11
Citation: 2012 FCA 39
CORAM: PELLETIER
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
DARLENE TAKER
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1]
Darlene Taker, the appellant, applied for
disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8
(Plan). After her initial application was denied, she reapplied for benefits.
Ms. Taker’s second application was initially denied and then denied again upon
reconsideration. Ms. Taker then appealed this denial to the Office of the
Commissioner of Review Tribunals (OCRT).
[2]
Before the Review Tribunal Ms. Taker argued
that, as at her minimum qualifying period, she suffered from chronic pain,
fibromyalgia, and a combination of both physical and psychiatric ailments of
sufficient severity as to be disabled within the requirements of the Plan
(appeal book page 418). The Review Tribunal heard Ms. Taker’s appeal on March
6, 2001, and dismissed the appeal (March 6, 2001 decision). No application for
leave to appeal this decision was made.
[3]
On December 22, 2008, Ms. Taker advised the OCRT
that, pursuant to subsection 84(2) of the Plan, she wished to reopen the March
6, 2001 decision on the basis of new facts not available at the time of the
hearing. A Review Tribunal was convened to hear Ms. Taker’s application to reopen.
The Review Tribunal dismissed the application on June 14, 2010. Ms. Taker
then submitted an application for leave to appeal the June 14, 2010, decision
to the Pension Appeals Board (Board).
[4]
On September 28, 2010, a designated member of
the Board refused the application for leave to appeal the decision of the
Review Tribunal.
[5]
Ms. Taker then brought an application for
judicial review in the Federal Court in respect of the decision of the
designated member of the Board refusing leave to appeal.
[6]
In reasons cited as 2011 FC 561, a judge of the
Federal Court dismissed the application for judicial review. This is an appeal
from that decision of the Federal Court.
[7]
In oral argument before us Ms. Taker reviewed
the extensive medical evidence tendered before the Board. She conceded that as
of March 6, 2001, she had been diagnosed with fibromyalgia. However, she
pointed out that it was not until 2004 that Dr. Ouellette diagnosed her as
suffering from “secondary Fibromyalgia Syndrome” (appeal book pages 68-70). Ms. Taker
submitted that the diagnosis in 2004 of secondary fibromyalgia was a new
fact which justified reopening the March 6, 2001 decision, and that neither the
designated member of the Board nor the judge of the Federal Court gave
sufficient consideration or weight to this new fact.
[8]
Subsection 84(2) of the Plan is an exceptional
provision which allows a decision of a Review Tribunal to be rescinded or
amended “on new facts.” The test to establish the existence of a new fact is
stringent and well-established in the jurisprudence. The new fact must not have
been previously discoverable with reasonable diligence and the new fact must be
material. The requirement that the fact be material means that it must be
relevant to an applicant’s ability to work as at the minimum qualifying period.
In Ms. Taker’s case any new fact must be related to her ability to work as of
December 31, 1998.
[9]
As explained below, I have not been persuaded
that the diagnosis of secondary fibromyalgia in 2004 was a new fact that would
permit the March 6, 2001 decision to be reopened.
[10]
Ms. Taker acknowledges that while primary and
secondary fibromyalgia have different causes, their symptoms are identical. Because
the 2004 diagnosis did not change Ms. Taker’s symptoms it did not impact
upon Ms. Taker’s capacity to work as at the minimum qualifying period.
[11]
It follows that the 2004 diagnosis could not
affect the March 6, 2001 decision and so was not material. As such the 2004
diagnosis is not a new fact that would warrant reopening the March 6, 2001
decision.
[12]
For these reasons, I would dismiss the appeal.
In the circumstances I would not award costs against Ms. Taker.
“Eleanor R.
Dawson”
“I agree.
J.D. Denis Pelletier J.A.”
“I agree.
David Stratas J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-228-11
STYLE OF CAUSE: DARLENE TAKER v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: January 30, 2012
REASONS FOR JUDGMENT BY: Dawson J.A.
CONCURRED
IN BY: Pelletier J.A.
Stratas
J.A.
DATED: February 3, 2012
APPEARANCES:
|
Ms. Darlene Taker
Self-represented
|
FOR
THE APPELLANT
|
|
Mr. Martin Kreuser
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Ms. Darlene Taker
Self-represented
|
FOR
THE APPELLANT
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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