PENSIONS |
Kent v. Canada (Attorney General)
A-582-03
2004 FCA 420, Sharlow J.A.
13/12/04
17 pp.
Judicial review of Pension Appeals Board decision denying disability benefits--Applicant quitting work as nurse in hospital in Halifax on October 10, 1994, due to illness--Applying for disability pension under Canada Pension Plan in August 1995--Minister of Human Resources determining as applicant not meeting severity test in Plan, s. 42(2)(a)(i), not entitled to disability pension both initially and upon reconsideration--Review Tribunal dismissing applicant's appeal from Minister's reconsideration--Applicant denied leave to appeal to Pension Appeals Board--Made second application to Minister on May 31, 2000 but again rejected initially and upon reconsideration--Applicant appealing to Review Tribunal--Meanwhile, applicant submitting application under Plan, s. 84(2) for reconsideration of Review Tribunal's initial decision on basis of new facts on May 23, 2002--Review Tribunal considering medical reports, decision applicant disabled as of October 1994--Minister appealing such decision to Pension Appeals Board--Pension Appeals Board setting aside Review Tribunal's second decision on basis erred in concluding new facts presented-- Board not considering merits of applicant's claim--Board erred in failing to consider merits of applicant's claim--S. 84(2) exception to s. 84(1), stating decision of Minister, Review Tribunal, Pension Appeals Board final, binding--S. 84(2) containing three independent exceptions applying to each of three statutory decision makers under scheme of Act relating to benefits payment--Decision to reconsider prior decision based on new facts must first involve determination new facts exist--If no new facts, prior decision standing; if new facts found to exist, second determination, pension entitlement, must be made on merits, taking into account new facts and existing record--Two decisions conceptually distinct --Pension Appeals Board's jurisdiction limited to appeals of Review Tribunal's decisions on merits--Not having jurisdiction to consider appeal from Review Tribunal's decision no new facts found--Judicial review to Federal Court way to challenge "no new facts" decision--Only statutory decision-making authority Pension Appeals Board has to consider de novo merits of claimant's application--Review Tribunal correct in finding new facts in present case--Medical opinion rendered on September 19, 2000, making for first time formal diagnosis of depression most important "new fact"-- Suggesting applicant's depression possibly making recovery from other conditions difficult--Case law establishing two-step test for determination of new facts: proposed new facts must (i) not have been discoverable with due diligence prior to first hearing; (ii) must be "material"--Under Plan, s. 84(2), materiality test met if proposed new facts may reasonably be expected to affect outcome--Test for determination of new facts should be applied in manner sufficiently flexible to balance Minister's legitimate interest in finality of decisions, need to encourage claimants to present all evidence as soon as possible, and claimants' legitimate interest in having claims assessed fairly on merits--Such considerations requiring broad and generous approach to determination of due diligence, materiality--Some disability claims must be assessed against background of evolving understanding of claimant's condition, treatment, prognosis--In such cases, important "new facts" rule not be applied in unduly rigid manner, depriving claimant of fair assessment of claim on merits--Application allowed--Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 42 (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 12), 84 (as am. idem, s. 45; 1990, c. 8, s. 46).