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Reasons and decision
Overview
[1] The Applicant, through his powers of attorney, seeks leave to appeal the General Division’s decision dated November 22, 2016, which dismissed his appeal for greater retroactivity of a survivor’s pension from July 2012 to April 2010. The Applicant sought greater retroactivity on the basis of his alleged incapacity.
Issue
[2] Does the appeal have a reasonable chance of success?
Analysis
[3] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) sets out the grounds of appeal as being limited to the following:
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[4] Before granting leave to appeal, I need to be satisfied that the reasons for appeal fall within the enumerated grounds of appeal under subsection 58(1) of the DESDA and that the appeal has a reasonable chance of success. The Federal Court endorsed this approach in Tracey v. Canada (Attorney General), 2015 FC 1300.
[5] The Applicant submits that the General Division failed to exercise its jurisdiction, in that it failed to consider that he was incapacitated. In particular, the Applicant argues that the General Division failed to consider some of the documentary evidence, including a continuing power of attorney and power of personal care, both granted in July 2005, along with medical records that had been filed in support of an earlier appeal to the Appeal Division. These include notes from X Hospital following the Applicant’s hospitalization in September 2012, as well as client notes reports from X Community Care Access Centre (AD3).
[6] The Applicant’s power of attorney has also recently requested some medical records, including information pertaining to a formal assessment for the period April 2010 to July 2012. However, any new evidence generally is not admissible on an appeal, unless it falls within any of the exceptions, such as whether it addresses any of the grounds of appeal: Tracey, Canada (Attorney General) v. O’Keefe, 2016 FC 503, and Glover v. Canada (Attorney General), 2017 FC 363.
[7] Notwithstanding the Applicant’s submissions that the General Division failed to consider whether he was incapacitated, I find that the member was in fact alert to the issue. At paragraph 15, the member wrote, “In this new appeal, the Tribunal did address the issue of incapacity.” He then proceeded to review the medical evidence on file. Hence, I am unconvinced that the General Division failed to recognize that the issue of incapacity was before it.
[8] However, I note that the General Division referred to only two medical reports, including the family physician’s opinion dated August 16, 2011, and a social worker’s assessment of September 8, 2011. It is unclear whether the hospital records and the X Community Care Access Centre records had been made available to the member. If these additional medical records had been before the General Division, the member did not refer to them when he assessed whether the Applicant was incapacitated. These records may have had some probative value in addressing whether the Applicant had been incapable of forming or expressing an intention to make an application on his own behalf on the day on which the application was actually made. For that reason, I find that there is an arguable case that the additional medical records had not been made available to the General Division and that the member therefore did not consider them.
[9] This is not to suggest that the General Division would have necessarily considered the hospital and Community Care Access Centre records determinative of the Applicant’s incapacity. It might have been necessary also for the General Division to have examined the Applicant’s activities. In Slater v. Canada (Attorney General), 2008 FCA 375, the Federal Court of Appeal stated that it was necessary to look at not only the medical evidence, but the applicant’s relevant activities as well.
[10] I note also that the General Division did not refer to subsections 60(8) to (11) of the Canada Pension Plan. The subsections provide that, if an applicant had been incapable of forming or expressing an intention to make an application on his or her own behalf on the day on which the application was actually made, the application can be deemed to have been made in the month preceding the first month in which the payment of the relevant benefit could have commenced or in the month that the Minister considers the person’s last relevant period of incapacity to have commenced, whichever is later. A decision-maker should indicate what legal test he employs when determining whether an applicant is incapacitated. It is not apparent whether the General Division employed the test set out in subsection 60(8) of the Canada Pension Plan.
[11] The General Division referred to the social worker’s opinion that the Applicant “retain[s] the capacity to make decisions regarding his will and appointing power of attorney” and to the family physician’s opinion that he was “not convinced that the [Applicant] was capable of making informed decisions with regards to his own legal or financial affairs.” The General Division found that the two opinions were contradictory and that it had to determine which opinion was the most reasonable, although it did not set out why it found one opinion more reasonable than the other. Ultimately, the General Division concluded that “there [was] no defining proof of incapacity.” There is an arguable case that the General Division may not have sufficiently explained why it chose one opinion over the other and that it may have failed to examine the Applicant’s relevant activities, in assessing whether he was incapacitated for the purposes of the Canada Pension Plan.
Conclusion
[12] The application for leave to appeal is granted, although this decision of course is not determinative of whether the appeal itself will succeed.
[13] In accordance with subsection 58(5) of the DESDA, the application for leave to appeal hereby becomes the notice of appeal. Within 45 days after the date of this decision, the parties may: (a) file submissions with the Appeal Division; or (b) file a notice with the Appeal Division stating that they have no submissions to file. The parties may make submissions regarding the form the hearing of the appeal should take (e.g. by teleconference, videoconference, in person or on the basis of the parties’ written submissions), together with submissions on the merits of the appeal.