Toronto, Ontario, September 18, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
MINISTER OF SOCIAL DEVELOPMENT
(formerly the Minister of Human
Resources Development Canada)
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application for judicial review of a decision by the Canada Pension Plan Review Tribunal, dated July 9, 2003, which refused to reconsider the Review Tribunal’s decision of August 30, 1999 denying the applicant disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP).
[2] The applicant seeks an order setting aside the decision of the Review Tribunal of July 9, 2003 and referring the matter to a differently constituted panel of the Review Tribunal for reconsideration and with a direction that the merits of the applicant’s claim for CPP disability benefits be heard de novo based on all of the available evidence, including the new facts, or in accordance with such directions as this Court considers to be appropriate.
Background
[3] The applicant is presently 52 years old. She completed up to grade seven education, was married at the age of 15, and had two sons shortly thereafter. She worked periodically while her children were growing up, but her main focus was on raising her children. In 1984, she decided to become a real estate agent. In 1985, she obtained a real estate licence and began working as a real estate agent in Saint John, New Brunswick. She worked at Century 21 Clark and Sleigh Realty for three years, and next at Home Life Realty for about one or two years. She then worked for Century 21 River Valley Realty.
[4] At Century 21 River Valley Realty, she typically worked seven days per week and approximately 12 to 14 hours per day. In 1989 and 1990, she began to suffer from fatigue, lack of energy, memory loss, depression, and pain in various parts of her body. She had frequent colds, asthma and difficulties sleeping, and was diagnosed with irritable bowel syndrome and chronic obstructional pulmonary disease. Her ability to work as a real estate agent gradually decreased as her condition worsened. She also had difficulties with performing household chores and she was unable to enjoy her usual activities such as swimming, dancing, playing with her grandchildren, going for long walks, and volunteering at a hospital. On July 31, 1993, at the age of 39, she ceased working as a real estate agent as she could no longer carry out her work duties.
[5] In 1996, the applicant and her husband moved to British Columbia. In British Columbia, she received care from a family physician, Dr. D.E. Read. He diagnosed her condition as fibromyalgia and referred her to a rheumatologist, Dr. Angela R. How, who confirmed Dr. Read’s diagnosis.
[6] Since she stopped working in 1993, the applicant’s condition has continued to worsen. Her pain has increased and has spread to other parts of her body, particularly her lower back. She requires the use of an electric wheelchair to go outside and a cane or walker to move around the home. She has tried different medications for her condition but none have significantly alleviated her symptoms.
[7] The applicant applied for CPP disability benefits in February 1997 and again in November 1997, describing her main disabling condition as severe asthma, prone to pneumonia, fibromyalgia, chronic pain syndrome, irritable bowel syndrome, and pernicious anemia. Her claim for disability benefits was denied because the respondent was of the view that based on the medical evidence, the applicant was capable of pursuing some type of light work suitable to her condition. This decision was upheld by a disability adjudicator on appeal.
[8] The applicant then appealed to the Review Tribunal. She submitted medical reports from Dr. How confirming the diagnosis of fibromyalgia. She also submitted medical reports from Dr. Read stating that it was his opinion that the applicant’s prognosis for a return to gainful employment was guarded.
[9] After holding an oral hearing on June 23, 1999, the Review Tribunal dismissed the applicant’s appeal in a decision dated August 30, 1999. The Tribunal’s decision stated in part:
The Minister denied Mrs. Arthurs’ November 19, 1997 application finding that she could still perform some type of work, suitable to her condition and limitations, and that her condition was expected to improve, thus finding that the disability did not meet the criteria of “severe” and “prolonged” under the Canada Pension Plan (CPP).
. . .
Mrs. Arthurs has not worked since moving to British Columbia, and has not sought to determine whether she could perform any type of work. She has not sought psychotherapy to assist her in coping with her limitations and functioning within them. There is no question that she has physically disabling conditions, but little objective evidence of the extent to which these conditions make it impossible for her to function in the workplace. It is not enough to show that one has a physical disability to qualify for disability benefits under the CPP; the Applicant must demonstrate with objective evidence that the disability is so severe that it prevents her regularly from performing gainful employment.
The Tribunal reviewed the evidence in this case as contained in the Hearing Case File and presented at the hearing and found that there was insufficient evidence that Mrs. Arthurs suffered from a disability which was “severe and prolonged” according to the criteria of the CPP when she last met the minimum contributory requirements. Therefore, her appeal was dismissed.
[10] The applicant subsequently applied for reconsideration of the Review Tribunal’s decision under subsection 84(2) of the CPP. She filed further medical reports from Dr. Read (dated September 24, 2002 and January 20, 2003) and Dr. How (dated February 8, 1999) in support of her application. On July 9, 2003, the Review Tribunal dismissed this application. In its reasons, the Review Tribunal stated that the test to reopen a decision given new evidence is that first, the evidence must not have been discoverable before the original hearing by the exercise of reasonable diligence, and second, the evidence, if admitted, would have to be practically conclusive or at least to probably have an important influence on the issue being considered or there must be a reasonable possibility that the evidence could lead the Tribunal to change its original decision. The Review Tribunal stated that it had considered the previous decision of the Tribunal dated August 30, 1999 and the medical reports previously submitted to that Tribunal, in addition to the applicant’s submissions and the updated medical reports, and concluded that there were no new facts that would warrant reconsideration.
[11] On January 30, 2004, the applicant was granted leave to appeal the Review Tribunal’s decision to the Pension Appeals Board. She withdrew her appeal after she was served with a notice of motion seeking a dismissal of her appeal on the basis that the Pension Appeals Board lacked jurisdiction to hear the matter. She is presently before this Court seeking judicial review of the decision of the Review Tribunal of July 9, 2003.
Issue
[12] The issue to be determined is: Did the Review Tribunal err in finding that there were no new facts to warrant reconsideration of the applicant’s claim for CPP disability benefits?
Applicant’s Submissions
[13] The applicant submitted that issues concerning the materiality of evidence and due diligence are questions of mixed fact and law with a heavy emphasis on fact. Discoverability is a question of fact. Thus, it was submitted that the appropriate standard of review to apply to a Review Tribunal’s subsection 84(2) new fact analysis is patent unreasonableness (see Taylor v. Canada (Minister of Human Resources Development), 2005 FCA 293 at paragraph 12).
[14] The applicant submitted that in Kent v. Canada (Attorney General), 2004 FCA 420 at paragraphs 33 to 34, the Federal Court of Appeal outlined a two-step test for determining whether there are new facts:
First, the proposed new facts must not have been discoverable, with due diligence, prior to the first hearing. Second, the proposed new facts must be “material”: Canada (Minister of Human Resources Development) v. Macdonald, [2002] F.C.J. No. 197, 2002 FCA 48.
[15] The Federal Court of Appeal in Kent stated that evidence is material if it is practically conclusive, in that it could reasonably be expected to affect the result of the prior hearing.
[16] The applicant submitted that the test for new facts should be applied in a sufficiently flexible manner so as to balance the Minister’s interest in the finality of decisions and the need to encourage claimants to present all their evidence at the earliest reasonable opportunity, against the legitimate interest of claimants, who are usually self-represented, in having their claims assessed fairly on the merits (see Kent, above, at paragraph 35).
[17] The applicant submitted that the appropriate standard in reviewing the assessment of evidence by a Review Tribunal in a section 42 severe and prolonged disability analysis is patent unreasonableness (see Spears v. Canada (Attorney General), 2004 FCA 193 at paragraph 10).
[18] The applicant submitted that to be entitled to CPP disability benefits the claimant must: (1) meet the contributory requirements, (2) be disabled within the meaning of the CPP when the contributory requirements are met; and (3) be so disabled continuously and indefinitely (see CPP, subsection 42(2), paragraph 44(1)(b) and subsection 44(2)).
[19] The applicant submitted that the test for disability involves an aspect of employability, with a consideration of the real-world context of commercial realities and the particular circumstances of the claimant, such as age, education level, language proficiency and past work and life experience (see Villani v. Canada (Attorney General), 2001 FCA 248, [2002] 1 F.C. 130 at paragraphs 44 to 50). It was submitted that after the applicant’s claim for disability benefits was denied, she tried to return to work. She tried babysitting her grandchildren but was too physically exhausted to perform that task. She also applied, unsuccessfully, for jobs at McDonalds and Wal-Mart. She submitted that she does not believe any employer would hire her because she has to disclose that she has been diagnosed with fibromyalgia.
[20] The applicant submitted that in light of the evidence of the functional limitations caused by her condition, and considering her age, limited grade seven level education, and limited work experience, it was patently unreasonable for the Review Tribunal to conclude that the new evidence did not meet the requirement for reconsidering whether she suffered from a severe and prolonged disability as defined in the CPP. It was further submitted that the Review Tribunal’s decision was patently unreasonable because the new evidence indicated that the applicant’s condition had not improved, contrary to the respondent’s assumption when it denied her claim for CPP disability benefits by decision dated August 30, 1999.
[21] The applicant submitted that the fact that she has continued to suffer from fibromyalgia without improvement and has been unable to return to any gainful occupation, years after the diagnoses were first made by Dr. Read and Dr. How, constitutes a new fact. The applicant submitted that the new evidence was not discoverable with due diligence prior to the Review Tribunal’s first hearing, and that the new evidence is material as it could reasonably have been expected to affect the result of the prior hearing. It was submitted that as Kent, above, made clear, some disability claims, such as those based on physical and mental conditions that are not well understood by medical practitioners, must be assessed against the background of an evolving understanding of a claimant’s condition, treatment and prognosis. The applicant submitted that fibromyalgia by its nature cannot be proven to be disabling by objective findings. Only the applicant’s improvement or lack thereof over the passage of time could prove whether her condition was a severe and prolonged disability at the time her claim was initially denied by the respondent.
[22] For the foregoing reasons, the applicant submitted that the Review Tribunal’s decision not to reopen her claim for disability benefits cannot stand.
Respondent’s Submissions
[23] The respondent submitted that because the CPP is a contributory scheme, disability must have commenced within the period covered by one’s contributions, that is, within one’s minimum qualifying period (MQP). Based on her earnings, the applicant’s MQP ended on December 31, 1997. It was submitted that since the date of the Review Tribunal’s hearing was after the applicant’s MQP and was final and binding on all parties pursuant to subsection 84(1) of the CPP, the applicant cannot be found to be disabled on a subsequent application unless she makes additional contributions to the plan.
[24] The respondent submitted that it is not the role of doctors to determine whether the applicant has a disability within the meaning of the CPP. It is the task of the Review Tribunal to assess the evidence and determine whether the impairment amounts to a disability (see Canada (Minister of Human Resources Development) v. Angheloni, 2003 FCA 140 at paragraphs 36 to 44).
[25] The respondent submitted that it is the capacity to work and not the diagnosis or the disease description that determines the severity of the disability under the CPP. Disability is not based upon the applicant’s incapacity to perform her usual job, but rather, any substantially gainful occupation (see Canada (Minister of Human Resources Development) v. Scott, 2003 FCA 34 at paragraph 7). It was submitted that to establish a disability, medical evidence is required, as well as evidence of employment efforts and possibilities (see Villani v. Canada (Attorney General), 2001 FCA 248 at paragraph 50). It was submitted that labour market conditions are irrelevant to the analysis as to whether the individual can be employed in a substantially gainful occupation (see Canada (Minister of Human Resources Development) v. Rice, 2002 FCA 47 at paragraph 12).
[26] The respondent submitted that a Review Tribunal’s decision becomes final and binding if no appeal has been taken to the Pension Appeals Board (see subsection 84(1) of the CPP). An exception to this rule applies if there are new facts within the meaning of subsection 84(2), in which case the Review Tribunal may revisit the prior decision. It was submitted that the Pension Appeals Board has held that the power to reopen a prior decision is to be exercised only in the most exceptional circumstances (see MacIsaac v. The Minister of Employment and Immigration) (15 November 1994), Appeal CP 2938 at pages 9 to 10 (Pension Appeals Board) in the respondent’s record, volume II, tab B-15).
[27] The respondent submitted that while discoverability and materiality may in the context of the CPP require a broad and generous approach, subsection 84(2) ought not to be used as an alternative to an appeal (see Canada (Minister of Human Resources Development) v. Landry, 2005 FCA 167). In the present application, the applicant did not appeal the initial decision of the Review Tribunal, but in February 2003, three and a half years after the Tribunal’s decision, she applied to reopen the prior decision on new facts.
[28] The respondent submitted that the new facts test requires the applicant to prove on a balance of probabilities that the new evidence could not have been discoverable with reasonable diligence and that if it had been made available to the first Review Tribunal, it would be practically conclusive, meaning that it could probably change the result (see Varette v. Sainsbury (1927), [1928] S.C.R. 72 and 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 at paragraphs 59 to 62). The respondent noted that in Kent v. Canada (Attorney General), 2004 FCA 420, Justice Sharlow stated that the practically conclusive test may be met if the proposed new facts may reasonably be expected to affect the outcome. However, the respondent submitted that the preferred test for “practically conclusive” is whether the new evidence would have probably changed the result at trial (see Sagaz, above).
[29] The respondent submitted that Dr. Read’s letter of September 24, 2002 does not meet the new facts test as it reiterates the opinion expressed in his previous reports that were considered by the Review Tribunal before it rendered its decision dated August 30, 1999.
[30] In his addendum report dated January 20, 2003, Dr. Read stated that although there are few objective clinical signs, it was his opinion that the applicant’s disability is severe and prolonged. The respondent submitted that since the source of this evidence comes from the applicant, it cannot be said that Dr. Read’s observations contain new facts with respect to her condition in December 1997.
[31] The respondent submitted that the applicant has provided no explanation as to why the report of Dr. How dated February 8, 1999 was not discoverable, since it predates the Review Tribunal hearing, or why it is material, since it postdates the applicant’s MQP. In any event, the respondent submitted that the same information contained in that report is repeated in a letter from Dr. How dated March 9, 1999, which was previously before the Review Tribunal.
[32] The respondent submitted that it was not patently unreasonable for the Review Tribunal to determine that the reports of Dr. Read and Dr. How were not new facts.
Analysis and Decision
Standard of Review
[33] The Review Tribunal’s decision pursuant to subsection 84(2) of the CPP on whether to reconsider an earlier decision, given new facts, is reviewable on a standard of patent unreasonableness (see Taylor v. Canada (Minister of Human Resources Development), 2005 FCA 293 at paragraph 12).
[34] Issue
Did the Review Tribunal err in finding that there were no new facts to warrant
reconsideration of the applicant’s claim for CPP disability benefits?
To be eligible for disability benefits under the CPP, the claimant must be disabled within the meaning of the CPP and must have made valid contributions to the CPP for a MQP before becoming disabled.
[35] Subsection 42(2) of the CPP provides that an individual is disabled if he or she has a mental or physical disability that is both severe and prolonged. The definition of a severe and prolonged disability is set out in paragraph 42(2)(a), as follows:
(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and
(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; . . .
[36] On August 30, 1999, the Review Tribunal decided that the evidence did not demonstrate, at the time the applicant last met her MQP on December 31, 1997, that the applicant suffered from a disability that was so severe that it prevented her from performing gainful employment. The applicant applied for reconsideration under subsection 84(2) of the CPP, and on July 9, 2003, the Review Tribunal refused the application as the applicant had not submitted any evidence that would constitute new facts.
[37] In Kent v. Canada (Attorney General), 2004 FCA 420 at paragraphs 33 to 36, Madame Justice Sharlow for the Federal Court of Appeal reviewed the test for determining whether there are new facts to justify reconsideration of a prior decision on a disability pension claim:
[33] The jurisprudence of this Court has established a two step test for the determination of whether there are new facts. First, the proposed new facts must not have been discoverable, with due diligence, prior to the first hearing. Second, the proposed new facts must be “material”: Canada (Minister of Human Resources Development) v. Macdonald, 2002 FCA 48.
[34] Whether a fact was discoverable with due diligence is a question of fact. The question of materiality is a question of mixed fact and law, in the sense that it requires a provisional assessment of the importance of the proposed new facts to the merits of the claim for the disability pension. The decision of the Pension Appeals Board in Suvajac v. Minister of Human Resources Development (Appeal CP 20069, June 17, 2002) adopts the test from Dormuth v. Untereiner, [1964] S.C.R. 122, that new evidence must be practically conclusive. That test is not as stringent as it may appear. New evidence has been held to be practically conclusive if it could reasonably be expected to affect the result of the prior hearing: BC Tel v. Seabird Island Indian Band (C.A.), [2003] 1 F.C. 475. Thus, for the purposes of subsection 84(2) of the Canada Pension Plan, the materiality test is met if the proposed new facts may reasonably be expected to affect the outcome.
[35] In the context of an application to reconsider a decision relating to entitlement to benefits under the Canada Pension Plan, the test for the determination of new facts should be applied in a manner that is sufficiently flexible to balance, on the one hand, the Minister’s legitimate interest in the finality of decisions and the need to encourage claimants to put all their cards on the table at the earliest reasonable opportunity, and on the other hand, the legitimate interest of claimants, who are usually self-represented, in having their claims assessed fairly, on the merits. In my view, these considerations generally require a broad and generous approach to the determination of due diligence and materiality. This is consistent with the words of Isaac C.J. at paragraph 27 of Villani (cited above):
[27] In Canada, courts have been especially careful to apply a liberal construction to so-called “social legislation”. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 36, the Supreme Court emphasized that benefits-conferring legislation ought to be interpreted in a broad and generous manner and that any doubt arising from the language of such legislation ought to be resolved in favour of the claimant.
[36] For most disabling conditions, it is reasonable to expect the claimant to present a complete picture of his or her disability at the time of the first application, or on a first appeal to the Review Tribunal or the Pension Appeals Board. However, there are some disability claims, such as those based on physical and mental conditions that are not well understood by medical practitioners, that must be assessed against the background of an evolving understanding of a claimant’s condition, treatment and prognosis. It is especially important in such cases to ensure that the new facts rule is not applied in an unduly rigid manner, depriving a claimant of a fair assessment of the claim on the merits.
[38] Justice Sharlow allowed Ms. Kent’s application for judicial review because there was a new medical opinion that made a formal diagnosis of depression for the first time. The medical opinion suggested that it may be the depression that made it difficult for Ms. Kent to recover from her other conditions. Justice Sharlow found that this medical evidence satisfied the test for new facts.
[39] In support of her application for reconsideration, the applicant submitted letters from Dr. Read dated September 24, 2002 and January 20, 2003. She also submitted a letter from Dr. How dated February 8, 1999. The question that must be determined is whether this further evidence satisfies the requirements of the test for new facts under subsection 84(2) of the CPP.
[40] The respondent submitted that the report of Dr. How dated February 8, 1999 did not meet the discoverability requirement because it predates the hearing of the Review Tribunal which was held on June 23, 1999. I agree with the respondent and therefore, the report of Dr. How dated February 8, 1999 does not meet the test for new facts.
[41] As noted, Dr. Read submitted two letters. The new letters show that the applicant’s condition has not improved but has worsened. She has not worked since 1993 and is unable to obtain employment at McDonald’s or Wal-Mart. On page 3 of the September 24, 2002 report, Dr. Read stated in part as follows:
Due to her medical condition, this patient has been unable to be employed and pursue a substantially gainful occupation. Historically, this patient has been unable to work since approximately 1993 and in my opinion, has a prolonged medical disability relating to her fibromyalgia diagnosis which is considered severe. Given the duration of this patient’s symptoms and the severity experienced, this has been a long term illness and is expected to continue for the foreseeable future. It is possible that in future there will be some remission in symptoms but there is no way to predict this.
And in his January 20, 2003 addendum report, he stated at page 1:
In terms of the duration of symptoms experienced by this patient, they predated her first visit to me in May of 1996 and I note that in July of 1996 I placed her on a trial of Flexeril (a muscle relaxant) for management of a suspected diagnosis of fibromyalgia. Certainly therefore this patient’s symptoms covered the period from December 1997 to the present.
And at page 2:
As stated in my previous report to you, this patient’s disability certainly is severe and prolonged, extending over many years and of significant severity precluding gainful employment. Given the duration of this patient’s symptoms, I feel it is unlikely that she will be able to return to work in the future. . . .
[42] Certainly, neither evidence relating to lack of improvement in the applicant’s condition nor evidence of the applicant’s inability to obtain work was available prior to the previous hearing. Therefore, the first part of the new facts test has been satisfied for these facts.
[43] The second part of the new facts test states that new facts must be material to the outcome of the claim. The issue of materiality is a question of mixed fact and law, as it requires a provisional assessment of the importance of the proposed new facts to the merits of the claim for disability benefits.
[44] In Kent, (see above) the Federal Court of Appeal acknowledged that certain disabling conditions are difficult to evaluate in the context of a disability claim. In applying this jurisprudence to the new evidence under consideration, I am of the view that the new facts are material.
[45] I agree with the applicant that her condition of fibromyalgia is difficult to prove by objective findings. Therefore, the test for new facts should be applied less rigidly in order to fairly assess her disability claim.
[46] The applicant submitted that the facts relating to her condition’s lack of improvement, and her inability to obtain work, satisfied the materiality requirement of the test for new facts. I agree with the applicant that these facts are material, as they could reasonably have affected the Review Tribunal’s prior decision.
[47] In its prior decision, the Review Tribunal found that there was insufficient evidence that the applicant suffered from a disability which was severe, prolonged, and precluded her from becoming employed. It is clear from this finding that new evidence confirming the applicant’s inability to work, and her condition’s lack of improvement, would be material to her claim.
[48] Upon review of its prior decision, the Review Tribunal found that the applicant’s new evidence regarding her condition and employment status did not constitute new facts. I am of the view that the Review Tribunal’s decision that this evidence did not meet the test for new facts was patently unreasonable.
[49] As noted above, the new evidence found in Dr. Read’s letters of September 24, 2002, and January 20, 2003, meets the discoverability requirement of the new facts test. In my opinion, the applicant’s new evidence is also material in that it is important to the merits of her claim. It is possible that the Review Tribunal’s prior decision could have been different had it been provided with evidence that the applicant’s condition would not improve over time, and that she would remain unable to obtain employment. I therefore find that the new evidence meets both requirements of the test for new facts.
[50] The Review Tribunal thus committed a patently unreasonable error in finding that there were no new facts warranting the reconsideration of the applicant’s claim for CPP disability benefits.
JUDGMENT
IT IS ADJUDGED that the application for judicial review is allowed and the matter is referred back to the Review Tribunal for redetermination.
ANNEX
The relevant provisions of the Canada Pension Plan, R.S.C. 1985, c. C-8 are as follows:
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42. . . .
(2) For the purposes of this Act,
(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,
(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and
(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and
(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
44. (1) Subject to this Part,
(a) a retirement pension shall be paid to a contributor who has reached sixty years of age;
(b) a disability pension shall be paid to a contributor who has not reached sixty-five years of age, to whom no retirement pension is payable, who is disabled and who
(i) has made contributions for not less than the minimum qualifying period,
(ii) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if an application for a disability pension had been received before the contributor’s application for a disability pension was actually received, or
(iii) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if a division of unadjusted pensionable earnings that was made under section 55 or 55.1 had not been made;
(iv) [Repealed, 1997, c. 40, s. 69]
(c) a death benefit shall be paid to the estate of a deceased contributor who has made contributions for not less than the minimum qualifying period;
(d) subject to subsection (1.1), a survivor’s pension shall be paid to the survivor of a deceased contributor who has made contributions for not less than the minimum qualifying period, if the survivor
(i) has reached sixty-five years of age, or
(ii) in the case of a survivor who has not reached sixty-five years of age,
(A) had at the time of the death of the contributor reached thirty-five years of age,
(B) was at the time of the death of the contributor a survivor with dependent children, or
(C) is disabled;
(e) a disabled contributor’s child’s benefit shall be paid to each child of a disabled contributor who
(i) has made contributions for not less than the minimum qualifying period,
(ii) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if an application for a disability pension had been received before the contributor’s application for a disability pension was actually received, or
(iii) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if a division of unadjusted pensionable earnings that was made under section 55 or 55.1, had not been made; and
(iv) [Repealed, 1997, c. 40, s. 69]
(f) an orphan’s benefit shall be paid to each orphan of a deceased contributor who has made contributions for not less than the minimum qualifying period.
. . .
(2) For the purposes of paragraphs (1)(b) and (e),
(a) a contributor shall be considered to have made contributions for not less than the minimum qualifying period only if the contributor has made contributions on earnings that are not less than the basic exemption of that contributor, calculated without regard to subsection 20(2),
(i) for at least four of the last six calendar years included either wholly or partly in the contributor’s contributory period or, where there are fewer than six calendar years included either wholly or partly in the contributor’s contributory period, for at least four years, or
(ii) for each year after the month of cessation of the contributor’s previous disability benefit; and
(b) the contributory period of a contributor shall be the period
(i) commencing January 1, 1966 or when he reaches eighteen years of age, whichever is the later, and
(ii) ending with the month in which he is determined to have become disabled for the purpose of paragraph (1)(b), but excluding
(iii) any month that was excluded from the contributor’s contributory period under this Act or under a provincial pension plan by reason of disability, and (iv) in relation to any benefits payable under this Act for any month after December, 1977, any month for which the contributor was a family allowance recipient in a year for which the contributor’s unadjusted pensionable earnings are less than the basic exemption of the contributor for the year, calculated without regard to subsection 20(2).
84. (1) A Review Tribunal and the Pension Appeals Board have authority to determine any question of law or fact as to
(a) whether any benefit is payable to a person,
(b) the amount of any such benefit,
(c) whether any person is eligible for a division of unadjusted pensionable earnings,
(d) the amount of that division,
(e) whether any person is eligible for an assignment of a contributor’s retirement pension, or
(f) the amount of that assignment,
and the decision of a Review Tribunal, except as provided in this Act, or the decision of the Pension Appeals Board, except for judicial review under the Federal Courts Act, as the case may be, is final and binding for all purposes of this Act.
(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, the Tribunal or the Board, as the case may be.
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42. . . .
(2) Pour l’application de la présente loi:
a) une personne n’est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d’une invalidité physique ou mentale grave et prolongée, et pour l’application du présent alinéa:
(i) une invalidité n’est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice,
(ii) une invalidité n’est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès;
b) une personne est réputée être devenue ou avoir cessé d’être invalide à la date qui est déterminée, de la manière prescrite, être celle où elle est devenue ou a cessé d’être, selon le cas, invalide, mais en aucun cas une personne n’est réputée être devenue invalide à une date antérieure de plus de quinze mois à la date de la présentation d’une demande à l’égard de laquelle la détermination a été établie.
44. (1) Sous réserve des autres dispositions de la présente partie:
a) une pension de retraite doit être payée à un cotisant qui a atteint l’âge de soixante ans;
b) une pension d’invalidité doit être payée à un cotisant qui n’a pas atteint l’âge de soixante-cinq ans, à qui aucune pension de retraite n’est payable, qui est invalide et qui:
(i) soit a versé des cotisations pendant au moins la période minimale d’admissibilité,
(ii) soit est un cotisant à qui une pension d’invalidité aurait été payable au moment où il est réputé être devenu invalide, si une demande de pension d’invalidité avait été reçue avant le moment où elle l’a effectivement été,
(iii) soit est un cotisant à qui une pension d’invalidité aurait été payable au moment où il est réputé être devenu invalide, si un partage des gains non ajustés ouvrant droit à pension n’avait pas été effectué en application des articles 55 et 55.1;
(iv) [Abrogé, 1997, ch. 40, art. 69]
c) une prestation de décès doit être payée à la succession d’un cotisant qui a versé des contributions pendant au moins la période minimale d’admissibilité;
d) sous réserve du paragraphe (1.1), une pension de survivant doit être payée à la personne qui a la qualité de survivant d’un cotisant qui a versé des cotisations pendant au moins la période minimale d’admissibilité, si le survivant:
(i) soit a atteint l’âge de soixante-cinq ans,
(ii) soit, dans le cas d’un survivant qui n’a pas atteint l’âge de soixante-cinq ans:
(A) ou bien avait au moment du décès du cotisant atteint l’âge de trente-cinq ans,
(B) ou bien était au moment du décès du cotisant un survivant avec enfant à charge,
(C) ou bien est invalide;
e) une prestation d’enfant de cotisant invalide doit être payée à chaque enfant d’un cotisant invalide qui:
(i) soit a versé des cotisations pendant au moins la période minimale d’admissibilité,
(ii) soit est un cotisant à qui une pension d’invalidité aurait été payable au moment où il est réputé être devenu invalide, si une demande de pension d’invalidité avait été reçue avant le moment où elle l’a effectivement été,
(iii) soit est un cotisant à qui une pension d’invalidité aurait été payable au moment où il est réputé être devenu invalide, si un partage des gains non ajustés ouvrant droit à pension n’avait pas été effectué en application des articles 55 et 55.1;
(iv) [Abrogé, 1997, ch. 40, art. 69]
f) une prestation d’orphelin doit être payée à chaque orphelin d’un cotisant qui a versé des cotisations pendant au moins la période minimale d’admissibilité.
. . .
(2) Pour l’application des alinéas (1)b) et e):
a) un cotisant n’est réputé avoir versé des cotisations pendant au moins la période minimale d’admissibilité que s’il a versé des cotisations sur des gains qui sont au moins égaux à son exemption de base, compte non tenu du paragraphe 20(2), selon le cas:
(i) soit, pendant au moins quatre des six dernières années civiles comprises, en tout ou en partie, dans sa période cotisable, soit, lorsqu’il y a moins de six années civiles entièrement ou partiellement comprises dans sa période cotisable, pendant au moins quatre années,
(ii) pour chaque année subséquente au mois de la cessation de la pension d’invalidité;
b) la période cotisable d’un cotisant est la période qui:
(i) commence le 1er janvier 1966 ou au moment où il atteint l’âge de dix-huit ans, en choisissant celle de ces deux dates qui est postérieure à l’autre,
(ii) se termine avec le mois au cours duquel il est déclaré invalide dans le cadre de l’alinéa (1)b), mais ne comprend pas:
(iii) un mois qui, en raison d’une invalidité, a été exclu de la période cotisable de ce cotisant conformément à la présente loi ou à un régime provincial de pensions, (iv) en ce qui concerne une prestation payable en application de la présente loi à l’égard d’un mois postérieur à décembre 1977, un mois relativement auquel il était bénéficiaire d’une allocation familiale dans une année à l’égard de laquelle ses gains non ajustés ouvrant droit à pension étaient inférieurs à son exemption de base pour l’année, compte non tenu du paragraphe 20(2).
84. (1) Un tribunal de révision et la Commission d’appel des pensions ont autorité pour décider des questions de droit ou de fait concernant:
a) la question de savoir si une prestation est payable à une personne;
b) le montant de cette prestation;
c) la question de savoir si une personne est admissible à un partage des gains non ajustés ouvrant droit à pension;
d) le montant de ce partage;
e) la question de savoir si une personne est admissible à bénéficier de la cession de la pension de retraite d’un cotisant;
f) le montant de cette cession. La décision du tribunal de révision, sauf disposition contraire de la présente loi, ou celle de la Commission d’appel des pensions, sauf contrôle judiciaire dont elle peut faire l’objet aux termes de la Loi sur les Cours fédérales, est définitive et obligatoire pour l’application de la présente loi.
(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.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-216-06
STYLE OF CAUSE: JUDITH ARTHURS
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MINISTER OF SOCIAL DEVELOPMENT
(formerly the Minister of Human
Resources Development Canada)
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 23, 2006
REASONS FOR JUDGMENT: O’KEEFE J.
APPEARANCES:
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Ivar Lee
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Tania Nolet
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SOLICITORS OF RECORD:
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Payne Edmonds LLP Vancouver, British Columbia
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John H. Sims, Q.C. Deputy Attorney General of Canada
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