PENSIONS |
Van de Wetering v. Canada (Attorney General)
T-1225-02
2003 FCT 588, Gibson J.
13/5/03
8 pp.
Practice--Judicial review of member of Pension Appeals Board's (PAB) decision dated April 2, 2002 denying applicant's application for leave to appeal from Review Tribunal's decision dated June 29, 2001--Member decided leave to appeal not warranted as found no error in method or amount of calculation of combined retirement and survivor's benefit--Issue whether or not decision maker erred in reviewable manner in failing to address issue of whether applicant entitled to have 48 months between April 1996 and March 2000 excluded from contributory period for purposes of calculation of retirement benefit in accordance with Canada Pension Plan (CPP), s. 49(c), because of disability during that period--Application allowed--Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114 (F.C.T.D.); Lima v. Minister of Human Resources Development Canada, 2001 FCT 86 (T.D.), applied--Decision maker failed to address issue, identified in Callihoo, of whether applied herein raised arguable case in relation to calculation of contributory period --Facts herein same as in Lima where PAB member failed to address or consider question of arguable case, and application for judicial review allowed--Since applicant raised issue of disability and impact on calculation of contributory period, incumbent on officials and tribunals concerned with administration of CPP to arrive at determination as to whether applicant in fact disabled in manner impacting on calculation of contributory period--Matter referred back to PAB for reconsideration; incumbent on PAB member reconsidering matter to address issue of impact of alleged disability on applicant's contributory period--Canada Pension Plan, R.S.C., 1985, c. C-8, s. 49(c) (as am. by R.S.C., 1985, (2nd Supp.), c. 30, s. 17).