Docket: T-538-16
Citation:
2017 FC 531
Ottawa, Ontario, May 30, 2017
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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CHERYL FLAIG
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of a
decision by the Appeal Division of the Social Security Tribunal [Appeal
Division], dated February 24, 2016, in which the Appeal Division denied the
Applicant leave to appeal a decision of the General Division of that same
Tribunal [General Division] on the issue of the retroactivity of benefits the
Applicant was otherwise found entitled to receive under the Canada Pension
Plan, RSC, 1985, c C-8, (the CPP).
II.
Background
[2]
The Applicant is a 46 year old widow and
a mother a two young children. Her husband - and father of the two children -
died tragically on July 31, 2007. As result of her husband’s death, she became
eligible to receive survivor benefits under the CPP.
[3]
However, the Applicant only applied for these
benefits in January 2012. Her application was accepted with payments to be
commenced retroactively to February 2011. The Applicant requested the CPP
authorities to reconsider the date of her eligibility so that payments be retroactive
to the date of her husband’s death. She explained that due to the trauma of
that tragic event, she had been unable to manage the paperwork of applying for
these benefits. She added that her situation was further exacerbated in 2009 when
she, her children and her mother were involved in a serious car accident.
[4]
Her request for reconsideration was denied, so
was her subsequent appeal to the General Division. Before the General Division,
the Applicant testified about the difficulties she encountered following her
husband’s death. She stated that she suffers from an attention deficit disorder
and that one of her children, diagnosed with a neurodevelopmental disorder,
requires her care and attention. She explained that she hired a lawyer and an
accountant to close the business she co-owned with her deceased spouse and to
sell their home. She had assumed that either the lawyer or the accountant would
have applied for the benefits on her behalf and only realized in 2011 that she
had to apply herself.
[5]
The Applicant also submitted a report from her family
doctor, Dr. R. Arthur Harpur, stating that she “has had
a great deal of difficulty focusing on matters that needed completion including
those that had an attendant emotional content” and that he believed that
“these factors have been major contributors to her
inability to complete the required documentation of her Canada Pension Plan
Survivor’s Benefits application”.
[6]
The General Division held that the Applicant had
failed to establish, as required by paragraph 60(9) of the CPP, that she
was incapable of forming or expressing an intention to make an application for
survivor benefits before the day her application was actually made. As a
result, it dismissed her appeal.
[7]
The Applicant then sought leave to appeal that
decision to the Appeal Division, claiming that the General Division had erred in
a number of ways, namely, as summarized by the Appeal Division at paragraph 3
of its reasons, by:
a) Violating the doctrine of
legitimate expectations and by failing to observe a principle of natural
justice, in not accepting the Applicant’s physician’s certificate of
incapacity;
b) Failing to observe a principle of
natural justice by failing to give notice to the Applicant that it would follow
Attorney General v. Danielson, 2008 FCA 78. Counsel submits that the General
Division also erred in misinterpreting Danielson as authority to
disregard medical evidence;
c) Following Danielson, as it
is factually distinguishable from the circumstances of the Applicant’s case;
d) Acting beyond its jurisdiction,
by rendering its own medical opinion in the place of the Applicant’s physician’s
opinion, Counsel submits that the General Division was unqualified to make any
findings about the Applicant’s medical condition;
e) Interpreting the incapacity
provisions of the Canada Pension Plan in a restrictive manner;
f) Applying the incorrect onus of
proof. Counsel submits that in concluding that there was insufficient evidence of
incapacity, despite the expert opinion before it, the General Division
effectively required a higher burden of proof. Counsel submits that the only
test that was requested of the Applicant was that she obtain a certificate of
incapacity, and having done so, she met the onus of proof;
g) Improperly weighing the evidence.
Counsel submits that the General Division placed an inordinate amount of weight
on the evidence of the Applicant’s activities. Counsel submits that the
assignment of weight was misplaced, as the General Division should have placed
more weight on the evidence of the medical practitioner, who had access to the
Applicant’s entire medical history. Counsel submits that the General Division
fettered its own discretion by improperly weighing the evidence;
h) In basing its decision on an
erroneous finding of fact that the Applicant had the capacity to form and
express the intention to apply for a survivor’s pension, despite the medical
certificate of incapacity; and
i) In infringing the Applicant’s
equality rights under section 15 of the Canadian Charter of Rights and
Freedoms. Counsel submits that “mothers and their children who survives the
suicide of fathers are disproportional [sic] affected in an adverse manner by
overly restrictive legislation limiting their recovery of survivor’s benefits.
[8]
The Appeal Division dismissed the Applicant’s
leave application as it was not satisfied that her appeal had a reasonable
chance of success, as required by paragraph 58(2) of the Department of
Employment and Social Development Act, SC 2005, c 34, on any of the three
grounds of appeal opened to someone who wishes to challenge a decision of the
General Division, that is (i) a breach of natural justice; (ii) an error of
law; or (iii) an erroneous finding of fact made in a perverse and capricious
manner or without regard for the material before it (see also: Canada (Attorney
General) v O’Keefe, 2016 FC 503, at paras 36-37 [O’Keefe]):
III.
Issue
[9]
The Applicant claims that the Appeal Division
erred on a key fact when it found that the requisite Declaration of Incapacity
had been provided, weighed and considered by the General Division but found
insufficient, in and of itself, to meet the legal test of incapacity. She
specifies that this error occurred through no fault of the Appeal Division but rather
because the Appeal Division was led to believe by counsel for the Respondent
that the Declaration of Incapacity was before the General Division when it was
not. The Applicant contends that this is fatal to the Appeal Division’s
decision.
[10]
This is the sole basis of the Applicant’s challenge
to the Appeal Division’s decision although she seeks a number of declaratory
reliefs in relation to alleged systemic problems in the workings of the Social
Security Tribunal which she finds too long and complex and in need of
simplification. As I indicated to counsel for the Applicant at the hearing, even
assuming it is open to the Court to embark on such a stand-alone operational
review of the functioning of that Tribunal, there are at least three problems
with what the Applicant is seeking in that regard. First, this issue was
raised before neither the Appeal Division nor the General Division and, as
such, falls outside the ambit of the present judicial review application.
Second, given the above, this issue is raised in a complete factual
vacuum with the result that it would be wholly counterintuitive for the Court
to undertake such review.Third, the Applicant has failed to show
that this issue, if resolved in her favor, would be dispositive, in whole or in
part, of her judicial review application.
[11]
It is trite law that the Court’s supervisory
authority under sections 18 and 18.1 of the Federal Courts Act, RSC,
1985, c F-7, is discretionary in nature (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 40). In other
words, this Court, on judicial review, has discretion to grant or withhold
relief, provided of course that discretion is exercised judicially and in
accordance with proper principles. Here, for the reasons I have just outlined, this
is a case where the reliefs sought in connection with the Applicant’s claim
that the process before the Social Security Tribunal of Canada is cumbersome
ought to be withheld. Counsel for the Applicant did not press the issue at the
hearing.
IV.
Analysis
[12]
Paragraph 72(1) of the CPP provides, as a
general rule, that survivor benefits can be paid retroactively up to 11 months
prior to the date the application for the benefits is made. Yet, according to
paragraphs 60(9) and (10) of the CPP, where the Minister responsible for
the CPP [the Minister] is satisfied that the applicant has been
incapable of forming or expressing an intention to apply for the benefits, the
benefits can be paid retroactively to the month preceding the month the
incapacity commenced, provided the period of incapacity is continuous.
[13]
In Canada (Attorney General) v Danielson,
2008 FCA 78 [Danielson], the Federal Court of Appeal agreed with the
approach taken by the then Pension Appeals Board in the matter of Morrison v
The Minister of Human Resources Development (Appeal CP 04182, March 7,
1997). In that case, the Board held that section 60 of the CPP “does not require consideration of the capacity to make,
prepare, process or complete an application for disability benefits, but only
the capacity, quite simply, of forming or expressing an intention to make an
application”. It further held that in determining this issue, both the
medical evidence and “the relevant activities of the
individual concerned between the claimed date of commencement of disability and
the date of application which cast light on the capacity of the person
concerned during that period of so ‘forming and expressing the intent’”
need to be considered (Danielson, at paras 5-6).
[14]
As indicated previously, the General Division,
in accordance with Danielson, considered both the evidence of Dr. Harpur’s
Medical Certificate, dated June 18, 2012, and the relevant activities of the
Applicant during the alleged period of incapacity. The General Division’s main
findings in this respect read as follows:
[35] In his report, Dr. Harpur notes
that the Appellant has attention deficit disorder and that she had a great deal
of difficulty focusing on matters; this was a major contribution in her ability
to complete the documentation to apply. However, the wording of the Act is
that a person must not be able to form the intent or express the intent
to apply. […]
[36] In the Appeal before the Tribunal,
there is no question that the Appellant underwent a very difficult time. She
underwent tragedy and had significant family responsibilities. She had to
rebuild her life. The Tribunal is sympathetic to all of the challenges faced
by the Appellant. However, it must consider that the test before it is not
whether she could fill in the forms; it was whether she could form the intent
and express the intent to apply for the benefit. And the Tribunal must
consider the evidence of her activities from 2007 to 2011 when considering this
test.
[37] With these considerations in mind,
the Tribunal notes that while Dr. Harpur wrote that the Appellant had
difficulties to complete the documentation to apply, the test is whether she
could form an intent or express the intent. There is insufficient evidence to
conclude that she could not do so. The Tribunal must consider the fact that
she was able to form the intent and express the intent to make the necessary
and major decisions during that period. She dissolved a business and sold a
house. While she had the assistance of a lawyer, accountant and real
estate guide, it is evidence that she had the capacity to form and express an
intent to take these steps. The Tribunal accepts that the Appellant did not
apply for different benefits during that period for which she was entitled.
However, the threshold for incapacity is more than not being to complete forms or
to make the application, it is simply to form or express the intent to do make
the application.
[15]
The Applicant claims that the General Division’s
decision is fatally flawed because Dr. Harpur’s Declaration of Incapacity,
dated November 13, 2012, was not put before it, a fact that only came to light
in the course of the present judicial review proceedings after she and the
Appeal Division were led to believe that this document was indeed before,
considered and weighed by the General Division. She contends that to the extent
such a Declaration is a prerequisite step to a finding of incapacity, the
General Division could not make such a finding in the absence of that document.
[16]
This results, according to her, in the whole
process being vitiated and justifies, in and of itself, that the Appeal
Division’s decision be set aside as it would be improper to advance arguments
as to the weight given to the Declaration of Incapacity and whether or not that
weight was appropriate in law now that it is apparent that this document was
not in fact considered by the General Division at all. In other words, the
Applicant claims that the factual foundation for those arguments is not present
because of that error and that the matter must therefore be sent back to the
General Division for redetermination on the basis of the proper facts.
[17]
With all due respect, and recognizing the very
difficult times the Applicant had to go – and is without a doubt still going –
through as a result of the tragic loss of her husband, that argument cannot
succeed for a number of reasons.
[18]
First, I do not believe that there is any basis
to the allegation that the Appeal Division was somehow led into thinking that
Dr. Harpur’s Declaration of Incapacity was before - and considered by - the
General Division and that this alleged misrepresentation was instrumental in
the Appeal Division’s decision to dismiss the leave application. The Respondent
does refer to that Declaration in its written submissions to the Appeal
Division by specifying that it was received by the “Respondent”
- meaning the CPP authorities - on November 30, 2012 but it does also
specify that while it did specifically refer to that document in its
submissions to the General Division, it was unable to locate a coded copy of
that document within the General Division’s material in its possession.
[19]
I am satisfied that a fair reading of the
Respondent’s submissions to the Appeal Division tends to show that the message
conveyed by the Respondent was rather that Dr. Harpur’s Declaration of
Incapacity may not have been before the General Division and therefore, not
considered by it. I also agree with the Respondent that these submissions explain
that it was not important that the Declaration of Incapacity may not have been
before the General Division since it provided similar but less detailed
information than that provided in the Medical Certificate signed by Dr. Harpur
a few weeks prior.
[20]
Furthermore, there is nothing in the Appeal
Division’s reasons that supports the Applicant’s contention that its decision
was largely influenced by the fact the Declaration of Incapacity was considered
by the General Division. What is at the heart of the Appeal Division’s decision
is rather that medical opinions, be it in the form required by the CPP
authorities, that is in the form of a Declaration of Incapacity or of a Medical
Certificate, or otherwise, is not conclusive of incapacity within the meaning
of section 60 of the Act since the legal test, as set out in Danielson,
requires the decision-maker to look beyond them at the applicant’s relevant
actions or activities during the alleged period of incapacity. In particular,
the Appeal Division held that providing such Declaration or Certificate does
not, alone, meet that legal test nor does it discharge the burden of proof of
an applicant to prove his or her case or create a legitimate expectation that
such evidence is to be accepted as conclusive of incapacity.
[21]
In sum, nothing in the Appeal Division’s
decision turns on whether the General Division considered Dr. Harpur’s
Declaration of Incapacity and I see no reprehensible conduct on the part of the
Respondent in this respect.
[22]
Second, there is no basis to the Applicant’s
claim that a Declaration of Incapacity is a prerequisite step for the General
Division to make a finding of incapacity under section 60 of the Act. Such
Declaration is a requirement of the CPP authorities, not the Social
Security Tribunal or the Act for that matter. It is purely administrative. It
is one of a number of factors that is considered in order to determine whether a
CPP beneficiary lacks capacity. Again, the legal test is that medical
evidence is not conclusive of incapacity as it is open to the decision-maker to
measure that evidence against the relevant actions or activities of that person
during the alleged period of incapacity. Therefore, a Declaration of Incapacity
is just one factor in such an analysis, not the determinative factor.
[23]
Third, this is not a case where the General
Division ignored or disregarded the medical evidence that was before it. The
General Division did consider Dr. Harpur’s Medical Certificate of July 2012
which provided a more detailed account of the Applicant’s condition than did
the subsequent Declaration of Incapacity which is essentially a one-page page
form filled out by Dr. Harpur. As the Appeal Division indicated, it
appears that the General Division accepted Dr. Harpur’s evidence but being
mindful that the Applicant had been able, during the alleged period of
incapacity, to make major decisions, found it insufficient to conclude to a
lack of capacity within the meaning of section 60.
[24]
I agree with the Respondent’s submission that in
such context, the fact that Dr. Harpur’s Declaration of Incapacity might not
have been before the General Division is inconsequential since the information
contained in that Declaration was, for all intents and purposes, already before
the General Division and was considered by it.
[25]
In order to receive the survivor benefits from
the date of her husband’s death to the date she actually filed her application
in 2012, the Applicant needed to show that during this entire period, she was
continuously incapable of “forming or expressing an
intention to make an application” as opposed to making, preparing
processing or completing such application (Danielson, at paras 5-6). The
General Division found that the Applicant had failed to meet that threshold as
there was evidence that during that period of time, she had been able to make
important decisions such hiring a real estate agent to sell her home, a lawyer
to make an insurance claim on her behalf and both a lawyer and an accountant to
close the family business. Her leave application before the Appeal Division was
dismissed as the Appeal Division was satisfied that the Applicant’s appeal has
no reasonable chance of success.
[26]
Decisions of the Appeal Division to grant or
deny leave to appeal are reviewable by this Court against the standard of
reasonableness (O’Keefe, at para 17). This means that such decisions are
owed substantial deference and that the Court will only interfere with them if
they fall outside the range of possible, acceptable outcomes in respect of the
law and the facts (Dunsmuir v New Brunswick, 2008 SCC 9, at para 47,
[2008] 1 S.C.R. 190 [Dunsmuir]).
[27]
The Appeal Division’s decision in this case is detailed,
thorough and well-reasoned and I see no basis to interfere with it. But most
importantly, I see no reason to intervene on the basis that Dr. Harpur’s
Declaration of Incapacity might not have been before the General Division,
something the Appeal Division was made aware of by the Respondent and which, as
I said before, is inconsequential in the circumstances of this case.
[28]
I note that in support of her judicial review
application, the Applicant provided an affidavit from her father showing how
instrumental he was in supporting her in all the major decisions she had to
make in the wake of her husband’s death. In light of the position she has put
forward before the Court, which essentially revolves around the Declaration of
Incapacity not being before the General Division and the alleged
misrepresentations made by the Respondent in that regard, the relevancy of that
evidence in such context is somewhat blurred. But even if it was not, this
evidence would be inadmissible as it was not before the General Division. As it
is well settled now, save for a few exceptions which are not applicable here, the evidentiary record before this Court on
judicial review is restricted to the evidentiary record that was before the administrative
decision-maker. In other words, evidence that was not before the decision-maker
and that goes to the merits of the matter before it is not admissible in an
application for judicial review in this Court (Association of Universities
and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22,
at para 19).
[29]
The Applicant’s judicial review application will
therefore be dismissed. The Respondent is seeking its costs whereas the
Applicant is seeking leave to make submissions on this issue. Leave is granted.
The Applicant is given a week from the date of theses Reasons to serve and file
her submissions. The Respondent is given a week from the date the Applicant’s
submissions are served to it to file and serve its response. The parties’
submissions on costs are to be provided in the form of a letter not exceeding
two pages. In the spirit of the Court’s Notice to the Parties and the
Profession issued on April 30, 2010, the parties are invited to make every
reasonable effort to agree on the disposition and/or quantum of costs.
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