Date: 20050915
Docket: A-581-04
Citation: 2005 FCA 294
LINDEN J.A.
SEXTON J.A.
BETWEEN:
CORNELIUS QUIRING
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia, on September 12, 2005.
Judgment delivered at Vancouver, British Columbia, on September 15, 2005.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LINDEN J.A.
SEXTON J.A.
Date: 20050915
Docket: A-581-04
Citation: 2005 FCA 294
CORAM: DÉCARY J.A.
LINDEN J.A.
SEXTON J.A.
BETWEEN:
CORNELIUS QUIRING
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] The applicant is seeking to review a decision of the Pension Appeals Board (the Board) which determined that he was out of time to cancel his retirement pension in favour of a disability benefit.
[2] The Canada Pension Plan (the Plan) provides for the cancellation of a retirement pension in favour of a disability benefit provided the pensioner is under 65 years of age, met the contributory requirement for a disability benefit and is deemed to have become disabled before the month the retirement pension became payable (sections 66.1, 70(3) and 44(6)(b) of the Plan). The Plan also stipulates that in no case shall a person be deemed to have become disabled earlier than fifteen months before the time the application is made (paragraphs 42(2)(b) of the Plan). Only the third requirement of the test is at issue in these proceedings.
[3] The applicant's pension became payable the month following his sixtieth birthday, that is, February 2001. He filed his application for disability benefits on July 25, 2002. Based on an application date of July 2002, the earliest deemed date of disability is April 2001, which is after the retirement pension commenced in February 2001.
[4] The only way the applicant can succeed is if he were able to satisfy the Minister, under subsection 60(9) of the Plan, that he had been incapable of forming or expressing an intention to make an application before the day on which the application was actually made.
[5] The Board found, at paragraph 10 of its reasons, that the applicant "was far from incapacitated" during the relevant period. That finding is amply supported by the evidence and can simply not be interfered with by a court of appeal, whatever standard of review is applied.
[6] Despite the sympathy I feel for the applicant's case, the application cannot but be dismissed. The respondent was gracious enough not to seek costs.
[7] I would therefore dismiss the application, without costs.
"Robert Décary"
J.A.
"I agree.
A.M. Linden, J.A."
"I agree.
J. Edgar Sexton, J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
(APPEAL FROM REASONS FOR JUDGMENT OF THE PENSION APPEALS BOARD DATED SEPTEMBER 22, 2004, NO. CP22111)
STYLE OF CAUSE: Cornelius Quiring v. The Attorney General of Canada
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: September 12, 2005
REASONS FOR JUDGMENT BY: Décary J.A.
Sexton J.A.
APPEARANCES:
|
Cornelius Quiring |
THE APPLICANT on his own behalf
|
|
Bahaa I. Sunallah |
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Cornelius Quiring Keremeos, British Columbia |
THE APPLICANT on his own behalf
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Ottawa, Ontario |
FOR THE RESPONDENT
|