Date: 20101130
Docket: A-10-10
Citation: 2010 FCA 324
CORAM: NADON
J.A.
DAWSON J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
JENNIFER WHITNEY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.:
[1] The
applicant, Jennifer Whitney, seeks judicial review of a decision of the Pension
Appeals Board (PAB) allowing an appeal by the respondent (the Crown) from a
decision of the Review
Tribunal (RT)
under the Canada
Pension Plan, R.S.C. 1985, c. C-8 (the Act). For
the reasons that follow, I would dismiss the application.
[2] Ms. Whitney first applied for a CPP disability benefit in March
1998. Her minimum qualifying period (MQP) was December 31,1999. This means that
she had to establish that she was disabled, within the meaning of the Act, on
or before December 31,1999, and continued to be so disabled. Ms. Whitney was
unsuccessful on her initial application and on reconsideration by the Minister.
She appealed to the Office of the Commissioner of Review Tribunals and a
hearing before the RT was conducted on February 22, 2000. There was extensive
medical evidence before the RT, including several reports from her family
physician, Dr. Nichol. The RT determined that Ms. Whitney was not disabled,
within the meaning of the Act, on or before the MQP, December 31, 1999. No
appeal was taken from this decision.
[3] Ms. Whitney applied again for a CPP disability benefit on April 23
2002. The Minister informed her that a decision had already been rendered
regarding her application. Absent new facts that would allow the reopening of
the previous application, her condition could be assessed only from April 2000,
that being the month and year of the RT decision.
[4] On July 2, 2004, Ms. Whitney applied under subsection 84(2) of the Act
to reopen the RT decision. Subsection 84(2) allows for the rescission or
amendment of a previous decision on new facts. She also appealed the Minister’s
reconsideration decision denying her second application. On September 24, 2004,
the RT dismissed her appeal, but determined that the reports from Dr. Nichol,
dated July 3,
2003, and Dr. Taenzer, dated September 2, 2003, qualified as new facts. Based
on the new fact evidence, the RT concluded that Ms. Whitney’s condition “has
never improved” and she was deemed disabled as of the date she stopped working
in April 1997.
[5] The Crown sought and was granted leave to appeal the September 24,
2004 RT decision to the PAB. The PAB granted the Crown’s appeal on the basis
that Ms. Whitney had not established new facts as required under subsection
84(2) of the Act.
[6] The standard of review applicable to a PAB finding with respect to
the existence of new facts under subsection 84(2) of the Act is reasonableness:
Higgins v. Canada (A.G.), 2009 FCA 322, 313 D.L.R. (4th) 13 at
para. 35; Gaudet v. Canada (A.G.), 2010 FCA 59, 403 N.R. 110 at
para. 4.
[7] For evidence to be admissible as a new fact, it must meet a two-part
test. First, it must establish a fact that existed at the time of the original
hearing but was not discoverable before that hearing by the exercise of due
diligence. Second, the evidence must reasonably be expected to affect the
result of the prior hearing: Higgins at para. 8; Gaudet at para.
3.
[8] The PAB accepted that the new reports showed a new and different
diagnosis, but found that these were a result of the passage of time and
retrospective analysis concerning facts that evolved in 2003 rather than facts
that existed at the date of her MQP. The PAB went on to find that the reports
did not contain new facts.
[9] I agree with Ms. Whitney, and Crown counsel conceded at the hearing,
that psychologist Dr. Taenzer’s conclusion that she was incapable of pursuing
employment between April 1998 and March 2000 could not be based on facts that
evolved in 2003 because he did not see her beyond March 2000. However, the PAB
specifically noted that the information must not only have existed at the date
of the MQP, but also that it “should not then have been discoverable at [Ms.
Whitney’s] MQP (or before that time) – using reasonable diligence.” There is
nothing in the record demonstrating that Dr. Taenzer’s report could not have
been discoverable, on or before the MQP, by the exercise of due diligence.
Consequently, the PAB’s conclusion that the report did not constitute new
evidence was not unreasonable.
[10] Regarding Dr. Nichol’s report, his conclusion that Ms. Whitney’s
condition is permanent was based on the fact that her condition had not changed
over a period of time ending in 2003. Again, I agree with Ms. Whitney that he
did not provide a different diagnosis of the underlying medical condition. To
the contrary, he acknowledged that there had been no change. It is true that
Dr. Nichol’s letter of October 13 1998 stated that it “is unlikely that she
will become fit for employment in the near future, that is, the next four to
five years” (Crown record at p. 187). Yet, his later letter of January 8, 1999
(which was before the original RT) said:
[Ms. Whitney] continues to suffer from several medical
conditions,
that make it impossible for her to pursue any
employment. Until
these conditions remit, either spontaneously or through
advances
in medical care, she will remain unfit for employment.
This
recommendation is for an indefinite period because it is
impossible
to predict the timing of any future improvement (Crown
record at
p. 191).
[11] He reiterated the same concern in a letter dated June 17, 1999 and
added that Ms. Whitney “suffers from invisible chronic illnesses and is completely
disabled as a result” (Crown record at p. 206).
[12] In view of the medical information that was before the RT in 2000,
the PAB’s conclusion that Dr. Nichol’s report of July 3, 2003 did not contain
new facts was reasonably open to it. Moreover, although the PAB did not find it
necessary to discuss the second step of the test, it did specifically state
that the information “is not so conclusive that it could reasonably be expected
to affect the result of the prior hearing.” On the record, that finding is also
reasonable.
[13] For these reasons, I would dismiss the application for judicial
review. The Crown did not request costs and I would not award any.
“Carolyn Layden-Stevenson”
“I
agree
M. Nadon J.A.”
“I
agree
Eleanor R. Dawson J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-10-10
STYLE
OF CAUSE: JENNIFER WHITNEY v.
ATTORNEY
GENERAL OF CANADA
PLACE
OF HEARING: Calgary, Alberta
REASONS
FOR JUDGMENT BY: LAYDEN-STEVENSON J.A.
CONCURRED
IN BY: NADON J.A.
DAWSON J.A.
DATED: November 30, 2010
APPEARANCES:
Dallas A. Lommer B.A., LL.B. FOR
THE APPLICANT
Nancy
Luitwieler FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Scott
& Fehr Law Office FOR
THE APPLICANT
Calgary,
Alberta
John
H. Sims, Q.C. FOR
THE RESPONDENT
Deputy
Attorney General of Canada
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