Canada Pension Plan (CPP) disability

Decision Information

S. M. v. Minister of Human Resources and Skills Development

Collection Canada Pension Plan (CPP) disability
Decision date 2014-08-28
Neutral citation 2014 SSTAD 214
Reference number CP27286
Division Appeal Division
Decision Appeal dismissed

Decision Content



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Persons in attendance

  • Applicant: S. M.
  • Expert Witness for the Respondent: Micheline Begin
  • Counsel for the Respondent: Sarah Jane Harvey

Decision

[1] The Tribunal dismisses the Application.

Introduction

[2] The Applicant filed applications for Canada Pension Plan (the “CPP”) disability pension as follows:

  1. a) 1st application: July 28, 1993, based on disabling conditions described as lower back and right arm problems and last date of work in July 1990; this application was denied and the Appellant did not appeal this decision;
  2. b) 2nd application: May 22, 1996, based on disabling conditions described as reflex sympathetic dystrophy (RSD) of the right arm and arthritis of the left elbow, last date of work on August 21, 1995, and a statement that he could no longer work as of August 1993; this application was denied initially and on reconsideration; the Appellant appealed and the Review Tribunal (RT) dismissed the appeal finding him not disabled within the meaning of the CPP; his appeal before the Pensions Appeal Board (PAB) was heard on November 5, 1999 and the PAB dismissed the appeal; the Appellant did not seek judicial review;
  3. c) 3rd application: February 18, 2000, based on disabling conditions described as RSD of the right arm, bulged disc, numbness in left leg, arthritis of the left elbow, hearing problems and carpal tunnel syndrome, last date of work in August 1995, and a statement that he could no longer work as of August 1996; this application was denied initially and on reconsideration; the RT dismissed the appeal; the Appellant applied for and was granted leave to appeal; a PAB hearing was held on September 12, 2002, and the PAB dismissed the appeal finding that the Appellant’s application was res judicata.

[3] The Applicant sent a letter to the RT which was received on May 17, 2010 with respect to “new medical information”. It is unclear from Applicant’s file or the Tribunal’s files what “new information” was filed. On August 12, 2010, the Applicant’s letter was acknowledged and he was advised that it would be submitted to the Chairman of the PAB for consideration under section 84(2) of the CPP.

[4] On March 12, 2012, the Applicant brought another new facts application under subsection 84(2) of the CPP (“New Facts Application”). This request was sent to the PAB without specifying to which decision the request applied.

[5] In support of the New Facts Application, the Applicant submitted the following documents:

  1. a) Medical Report of Dr. N. Christians, psychiatrist, dated March 19, 2010;
  2. b) Medical Report of Dr. N. Christians, psychiatrist, dated October 7, 2009; and
  3. c) Medical Report of Dr. N. Christians, psychiatrist, dated May 25, 2007.

[6] This application was heard in person for the reasons given in the Notice of Hearing dated January 16, 2014.

[7] Lengthy written submissions were filed by the Respondent. The Appellant was self-represented and did not provide written submissions or a reply to the Respondent’s.

The law

[8] Pursuant to section 261(1) of the Jobs, Growth and Long-term Prosperity Act of 2012 (JGLTP Act):

261. (1) If no decision has been made before April 1, 2013, in respect of a request made under subsection 84(2) of the Canada Pension Plan, as it read immediately before the coming into force of section 229, it is deemed to be an application made on April 1, 2013 under section 66 of the Department of Human Resources and Skills Development Act and is deemed to relate to a decision made, as the case may be, by

  1. (a) the General Division of the Social Security Tribunal, in the case of a decision made by a Review Tribunal; or
  2. (b) the Appeal Division of the Social Security Tribunal, in the case of a decision made by the Pension Appeals Board.

[9] This application, therefore, is deemed to relate to a decision made by the Appeal Division of the Tribunal.

[10] Prior to April 1, 2013, the CPP provided for reconsideration of a decision on the basis of new facts. Subsection 84(2) of the CPP as it read immediately before April 1, 2013 stated:

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.

[11] In interpreting subsection 84(2) of the CPP, the Federal Court of Appeal has enunciated a two-part test for evidence to be admissible as a “new fact”:

  1. a) It must establish a fact (usually a medical condition in the context of the CPP) that existed at the time of the original hearing but was not discoverable before the original hearing by the exercise of due diligence (the “discoverability test”), and
  2. b) The evidence must reasonably be expected to affect the results of the prior hearing (the “materiality test”).

Canada (Attorney General) v. MacRae, 2008 FCA 82.

[12] This two-part test developed by the Federal Court of Appeal is reproduced in section 66 of the Department of Employment and Social Development Act (the “DESD Act”), formerly the Department of Human Resources and Skills Development Act, when it refers to “new material fact” discoverable through the exercise of “reasonable diligence”.

[13] Section 66 of the DESD Act reads as follows:

  1. 66. (1) The Tribunal may rescind or amend a decision given by it in respect of any particular application if
    1. (a) in the case of a decision relating to the Employment Insurance Act, new facts are presented to the Tribunal or the Tribunal is satisfied that the decision was made without knowledge of, or was based on a mistake as to, some material fact; or
    2. (b) in any other case, a new material fact is presented that could not have been discovered at the time of the hearing with the exercise of reasonable diligence.
  2. (2) An application to rescind or amend a decision must be made within one year after the day on which a decision is communicated to the appellant.
  3. (3) Each person who is the subject of a decision may make only one application to rescind or amend that decision.
  4. (4) A decision is rescinded or amended by the same Division that made it.

[14] Further, in Carepa v. Canada (Minister of Social Development) 2006 FCA 1319, the Federal Court of Appeal decided that an applicant must provide evidence of what steps were taken to find the new evidence, and why it could not have been produced at the time of the hearing.

Issues

[15] Is the New Facts Application barred by statute pursuant to section 261(1) of the JGLTP Act and section 66(2) of the DESD Act?

[16] If it is not statute barred, does the evidence filed in support of the New Facts Application establish “new facts” within the meaning of subsection 66(1)(b) of the DESD Act?

[17] If the Tribunal finds that there are new facts within the meaning of subsection 66(1)(b) of the DESD Act, does the evidence support a determination that the Applicant’s disability was severe and prolonged within the meaning of the CPP as of December 31, 1997 (the Minimum Qualifying Period or MQP) and continuously so thereafter?

Evidence

[18] The Appellant testified. The Respondent had one witness, Dr. Micheline Begin. The parties agreed and the Tribunal is satisfied that Dr. Begin is an expert in general medicine.

[19] Documents were marked as Exhibits as follows:

Exhibit “A” - Appeal Record Exhibit “B” -Résumé of Dr. Begin

Exhibit “C” - Submissions of the Minister, which included copies of two medical reports that were submitted for the first PAB hearing but not in the Appeal Record

Exhibit “D” - pages 218-221 of the DSM-IV-TR (“DSM”).

[20] There was no issue on the following issues, as the parties agreed:

  1. a) that the MQP date is December 31, 1997;
  2. b) that the first PAB decision was rendered on November 15, 1999;
  3. c) that the second PAB decision was rendered on October 31, 2002;
  4. d) that all of the medical reports and applications that the PAB had before it in 1999 and 2002 (and that which was before the RT giving rise to the appeals to the PAB) are on file for the hearing on the New Facts Application; and
  5. e) that the Applicant brought the New Facts Application on: (1) May 17, 2010 according to the Applicant’s PAB file; and/or (2) March 12, 2012 according to the Respondent.

[21] The Applicant sent a letter to the RT which was received on May 17, 2010 with respect to “new medical information”. The Applicant was not able to provide a full copy of this new medical information and there was no full copy otherwise available to the Tribunal. On August 12, 2010, the Applicant’s letter was acknowledged and he was advised that it would be submitted to the Chairman of the PAB for consideration under section 84(2) of the CPP.

[22] The Applicant followed up with a letter, received by the PAB on March 12, 2012, which stated “I have applied for Canada Pension under new evidence” and “I wish to proceed with my application.” The Applicant put forward three medical reports dated May 25, 2007, October 7, 2009, and March 19, 2010 as alleged new material facts. The PAB acknowledged receipt on July 19, 2012 and stated these documents would be submitted to the Chairman of the PAB for consideration under section 84(2) of the CPP. Because there is no full copy of the May 2010 application, it is not possible to determine whether it is the same as the March 2012 application. The March 2012 documentation is complete, and it is the New Facts Application that is the subject of this appeal.

[23] The Applicant testified that these three documents show that it can take many years to realize that there is depression or post-traumatic stress disorder (PTSD) and that these conditions develop and are diagnosed over time. He stated that it was only after seeing Dr. Christians that he was diagnosed with depression but that his depression goes back to the early 1990s and that he attempted suicide in 1996. He saw his family doctor, Dr. McGuire, in 1994, and described symptoms of anger and fatigue along with pain since 1973. His memory issues have existed since 1998.

[24] Further, the Applicant is of the view that there was a problem with his previous doctors in that they were general practitioners and not trained to diagnose depression or PTSD. This was why he was only diagnosed in 2006, when he saw Dr. Christians, a psychiatrist. He also stated that he was not sent to a psychiatrist before this.

[25] Dr. Begin testified that she reviewed all of the documentation on file: the 32 (thirty-two) documents before the PAB and the 3 (three) medical reports of Dr. Christians, in addition to the Appeal Record in this matter. Dr. Begin also referred to the DSM, and the pages describing PTSD were marked as Exhibit “D”.

[26] Dr. Begin stated that PTSD was discoverable in the 1990s and that it was a known medical condition at that time. A family doctor would be able to pick up on symptoms such as trouble sleeping and having outbursts. A chronic pain specialist, such as Dr. Pollett who the Applicant saw in 1999, would also have been able to pick up on symptoms of PTSD or depression.

[27] Dr. Begin testified on each of the reports of Dr. Christians as follows:

  1. a) May 2007: This report is on a CPP Medical Report Form. Dr. Christians had known the Applicant for a little more than one year and stated “has been depressed for years”. However, Dr. Begin did not see anything else to support this and presumes that this was brought forward by the patient. The term “Budo- reaction disorder” is used in the report, and Dr. Begin explained that this term relates to a tragedy in Africa, in the Budo region, which caused an acute stress reaction in people who were involved but had survived; she stated “it was more or less a PTSD”. Dr. Begin concludes that this term used for the Applicant means that he had an acute stress disorder. i.e. PTSD. In terms of medication, the Applicant was taking medications for depression, mood and pain. He had been in psychotherapy in the previous year. The medical prognosis is stated as “poor” and “unable to work open labour market”.
  2. b) October 2009: This is in response to a letter from Veteran’s Affairs Canada of October 2008. It states that since January 2006, Dr. Christians has been seeing the Applicant on a regular basis, every month or two for about three years. His GAF is noted as 50-60 and the cause of his depression is discussed. This letter concluded “both traumatic events psychological/sexual abuse as well as physical injuries are major contributing factors to his Major Depressive Disorder” and “Veteran’s Affairs should cover the cost of his treatment for his physical disorders as well as his continued treatment of psychiatric condition.”
  3. c) March 2010: This is a letter to a “Medical Adjudicator” and attaches the October 2009 letter to Veteran’s Affairs. It concludes “I stand by my report of May 2007.”

[28] The Applicant asked Dr. Begin many questions. A brief summary of this part of the testimony follows. Anger is more present in PTSD than in depression, but it does not automatically mean anything. Anger does not need further investigation unless it is a real problem for the patient or a security issue. “Passive-aggressive” is not automatically associated with PTSD; it could be “just anger” or a personality trait. If a patient presented with chronic pain and anger, Dr. Begin would see this as being fed up with the pain and would deal with this by managing the pain. Clinical notes of doctors, family doctors and specialists, usually mention things like anger and fatigue. Regardless, Dr. Begin specified that she was not saying that Dr. Christians did not give the Applicant the proper diagnosis. What Dr. Begin is contesting is the statement “patient has been depressed for years”; Dr. Christians does not put forward the basis on which he states this opinion; he has seen the Applicant since January 2006 and he can diagnosis and treat from that point; however, Dr. Begin does not understand how he can say what happened before he saw the Applicant without stating on what basis he made those conclusions.

[29] The Tribunal also had the opportunity to ask questions. Dr. Begin explained that a family physician can identify symptoms of depression and PTSD, this does not require a psychiatrist. Both these conditions have been in the DSM, current and previous versions. PTSD usually comes with recurrent thoughts or dreams that cause distress. The medical community was diagnosing PTSD in 1999; the same with depression. It would not have been necessary in 1999 to see a psychiatrist to investigate these disorders. A family doctor could have diagnosed, started medication, referred the patient to counselling or group support and treated the patient in this manner; if there was a continued concern or medications needed to be changed, there could be a referral to a psychiatrist. In Dr. Begin’s opinion, if the Applicant had been suffering from depression or PTSD in 1999, then she would expect to see reports of symptoms in the period 1997 to 1999 and symptoms would have been noted in at least clinical notes of the Applicant’s doctors; however, these kinds of symptoms were not in their clinical notes or their reports.

Submissions

[30] The Applicant submitted that:

  1. a) The evidence of Dr. Begin and her answers were not medical answers. In particular, she answered using the words “I think” which the Applicant submitted meant that she did not know. Also, she is not a psychiatrist and refers to her “little book” (the DSM); and
  2. b) That the reports of Dr. Christians are new facts and show that he qualifies for a disability pension.

[31] The Respondent submitted that:

  1. a) The New Facts Application is statute barred;
  2. b) In the alternative, the evidence submitted in support of the New Facts Application does not establish new facts, in particular because they do not meet the discoverability and materiality criteria; and
  3. c) In the further alternative, if any of the submitted evidence establishes the existence of new facts, they do not support a determination that the Applicant’s disability was severe and prolonged as of December 31, 1997.

Analysis

New Facts Application - Time Limitation

[32] The New Facts Application was a request under section 84(2) of the CPP, at the time it was filed on March 12, 2012. Subsection 261(1) of the JGLTP Act provides that where an application under 84(2) of the CPP has not been decided before April 1, 2013, it is deemed to be an application made on April 1, 2013 under section 66 of the DESD Act.

[33] Subsection 66(2) of the DESD Act provides that a new facts application must be made within one year after a decision is communicated. Subsection 66(3) imposes a limit of one application per person in relation to a decision.

[34] The New Facts Application did not specify whether it related to the November 1999 PAB decision or the 2002 PAB decision. The 2002 PAB decision upheld the RT decision dismissing the third application on the basis that the issue had already been determined by the PAB in its 1999 decision, i.e. on the principle of res judicata. The PAB held in its 1999 decision that the Applicant did not have a severe and prolonged disability on or before December 31, 1997. The 1999 PAB decision was communicated to the Applicant on November 15, 1999. The 2002 PAB decision was communicated to the Applicant on October 31, 2002.

[35] The New Facts Application made on March 12, 2012 was not made within one year after the day on which either PAB decision was communicated to the Applicant. In the case of the 1999 decision, more than twelve (12) years had passed, and in the case of the 2002 decision, nine and a half (9½) years had passed. By applying section 261(1) of the JGLTP Act, the deemed date of application is April 1, 2013, which adds one year to the time line. (The application made in May 2010, similarly, was not made within one year, and, if the specifics could have been determined, the Respondent may have argued that the March 2012 application was barred by subsection 66(3) of the DESD Act.)

[36] The result of applying subsection 66(2) of the DESD Act is that the New Facts Application may not be made and, therefore, is statute barred. It was properly brought in March 2012, no administrative objections had been raised, and it was awaiting consideration and decision by the PAB until end the end of March 2013. On April 1, 2013, the New Facts Application was statute barred. While this is a harsh consequence to the coming into force of new legislation, it is a clear one.

[37] Before April 1, 2013, section 84(2) of the CPP placed no time limit on when a new facts application could be brought or any restriction on the number of section 84(2) applications which could be filed. When the Applicant filed the applications on May 17, 2010 and March 12, 2012, they were treated as properly brought under section 84(2), and the Applicant had the right to have them proceed and for decisions to be made. This would likely have been done by oral hearing and written decision of the PAB.

[38] An endorsement was made by the Chairman of the PAB on February 14, 2013, which stated “In the circumstances, the request for reconsideration will have to become part of the file-load to the SST, as it will not be possible to hold a hearing before our mandate ends next month.” This endorsement was communicated to the Applicant by letter dated March 6, 2013.

[39] By April 1, 2013, the Applicant’s two section 84(2) applications had been with the PAB for nearly three years, in the case of the first, and over a year, in the case of the second. The Applicant did what he could do to advance these applications. The PAB advised they were with the Chairman for consideration. Then, Parliament enacted new provisions (in new Acts) which applied retrospectively and removed existing rights. The result is plainly unfair to the Applicant in these circumstances.

[40] In Tabingo v. Minister of Citizenship and Immigration, 2013 FC 377, the Federal Court stated, in paragraphs 22 and 23, that legislation may not be interpreted in a manner that removes existing rights or entitlements unless Parliament’s intention to do so is clear. If the plain and obvious meaning of the legislation requires that it be retrospective and interfere with vested rights, it is valid, regardless of any perceived unfairness.

Time Limitation and the “Special Circumstances Doctrine”

[41] The Court of Appeal for Ontario, in Green v. CIBC, 2014 ONCA 344 (the “Green v. CIBC Trilogy”) heard three appeals together. The subject of these appeals was an application for leave to add certain causes of action and a limitation period which, the defendants submitted by motions to strike, rendered these applications time-barred. In one case, the motions court judge dismissed the application as time-barred: Green v. CIBC, 2012 ONSC 3637. In the second case, a different motions court judge made the grant of leave nunc pro tunc: Silver v. IMAX, 2012 ONSC 4881. In the third case, a third motions court judge refused to strike the claim as statute-barred by applying the doctrine of special circumstances: Millwright Regional Council of Ontario Pension Trust Fund (Trustees of) v. Celestica Inc. (2012), 113 O.R. 264 (“Celestica”). The Supreme Court of Canada very recently granted leave to appeal the Green v. CIBC Trilogy of cases: 2014 CarswellOnt 10791, 10792, 10793, 10794, 10797, and 10798.

[42] The doctrine of special circumstances has its origin in the English case of Weldon v. Neal (1887), 19 Q.B.D. 394 (C.A.), Lord Esher M.R. The leading Canadian case of Basarsky v. Quinlan [1972] S.C.R. 380, adopted the doctrine of special circumstances and allowed the addition of plaintiffs after the expiry of the limitation period. The Ontario Court of Appeal in Meady v. Greyhound Canada Transportation Corp. (2008), 90 O.R. (3d) 774 described this doctrine as “the common law doctrine of special circumstances.” Although the doctrine does not provide general authority to extend a limitation period (Greyhound, supra), it has been applied to amend pleadings to add parties or new causes of action after expiry of a limitation period where the claim ought to have been added to the original pleading. Examples are Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 56 O.R. (3d) 768 (CA), Thoman v. Fleury (1996), 28 O.R. (3d) 398 (CA), and Swain Estate v. Lake of the Woods District Hospital (1992), 9 O.R. (3d) 74 (CA).

[43] Perrell, J. stated in Celestica: “if the special circumstances can be fairly employed in circumstances where a genuinely different cause of action is being added by amendment to the plaintiff’s pleading, then, a fortiori, it should be employed in circumstances where the defendant is confronting a claim that he or she expected to confront if leave were granted”, para [119]. While I am not bound by this statement, I agree with the reasoning.

[44] Here, the Respondent expected to confront the New Facts Application. Two applications had been filed each more than a year prior to the coming into force of the provisions that rendered these applications time-barred, and both had been accepted by the PAB as properly brought and referred to the Chairman for consideration.

[45] While Parliament enacted new provisions and new legislation which are the subject of this appeal, it is presumed that the legislature does not change the common law unless it does so explicitly. I have been referred to nothing that states that Parliament has changed or precluded the application of common law doctrines by this Tribunal.

[46] As such, this Tribunal has the jurisdiction to consider and apply common law doctrines. I have considered the special circumstances doctrine and, as to the conditions for granting relief after the expiry of the limitation period, this is a discretionary matter where the facts of the individual case are the most important consideration in the exercise of the discretion: Deaville v. Boegeman (1984), 48 O.R. (2d) 725 (CA).

[47] I have considered the facts in this application, and I find that the doctrine potentially applies to applications time-barred by subsection 66(2) of the DESD Act.

[48] Many Canadian court cases have applied or refused to apply the special circumstances doctrine, and it is not a formulaic doctrine but rather must adapt to the factual circumstances: Celestica, supra. para. [135] . Some of the factors to consider are:

  1. a) Whether the defendant knew or anticipated that the plaintiff’s claims would be coming;
  2. b) Whether the defendant had lost evidence or in some way diminished its ability to defend itself;
  3. c) The extent to which the newly arriving claim has the same factual footprint as the claim already before the court; and
  4. d) Whether the plaintiff was diligent in giving notice in prosecuting his/her claim, and whether the defendant was unaware of the claim and compromised in making full answer and defense.

[49] I find that the special circumstances doctrine can be applied in the specific circumstances of the New Facts Application for the following reasons:

  1. a) The Applicant made applications in May 2010 and March 2012, the Respondent was aware of these applications when they were brought, and the PAB acknowledged and accepted that each application was properly brought under section 84(2) of the CPP;
  2. b) The factual footprint was clear and known, and two PAB decisions had been issued (1999 and 2002) after extensive analysis of comprehensive materials and vive voce testimony. Thirty-two documents were before the PAB, and the Respondent was in possession of all of them throughout the piece. Only three new medical reports were added by the New Facts Application, and they were known, at the latest, in March 2012.
  3. c) The Applicant did what he was able to do in order to advance these applications. He was advised that they were being considered by the Chairman of the PAB in 2010 and in 2012, in other words, he was in “wait mode”;
  4. d) The applications were not considered and decided by the PAB before April 1, 2013. In fact, no hearing had been scheduled and no notice of hearing (of any kind) was issued in respect of either application. This was due to no fault of the Applicant;
  5. e) The Applicant was advised in March 2013 that “the request for reconsideration will have to become part of the file-load to the SST, as it will not be possible to hold a hearing before our mandate ends next month ”; and
  6. f) There was nothing that the Applicant could do to prevent the time-bar to his applications as of April 1, 2013, nor was he advised that the applications would be time-barred from one day to the next. Indeed, the Applicant was not aware that the Respondent would argue that the New Facts Application was time-barred until the end of December 2013.

[50] In my opinion, this is an appropriate case to apply the special circumstances doctrine, and I will now turn to an analysis of the “new facts” advanced by the Applicant.

New Facts Application - Discoverability and Materiality

[51] The Applicant must prove on a balance of probabilities that the documents he has put forward meet the test for new material facts.

[52] According to subsection 66(1)(b) of the DESD Act, the Tribunal may rescind or amend a decision given by it in respect of CPP disability if a new material fact is presented that could not have been discovered at the time of the hearing with the exercise of reasonable diligence. This is often referred to as the “discoverability test”.

[53] Discoverability implies that the evidence existed at the time of the original hearing. Otherwise, any evidence arising after the original hearing could routinely be found not to be discoverable.

[54] In addition, the new material fact must reasonably be expected to affect the result of the prior hearing. This is often referred to as the “materiality test”.

[55] In the present case, a new material fact is a fact that existed in November 1999 but that could not have been discovered at that time by the Applicant with the exercise of reasonable diligence. It must also be a fact that could reasonably be expected to establish his disability, at or prior to his MQP of December 31, 1997.

[56] The three reports of Dr. Christians are dated after November 1999. However, the Applicant seeks to rely on them to show that he suffered from depression and/or PTSD at or prior to his MQP. He relies on Dr. Christians’ letters to assert that “has been depressed for many years” means he was depressed and/or had PTSD at or before the MQP although he was only diagnosed in 2006. In other words, the Applicant’s position is that the depression and/or PTSD existed prior to the end of 1997 but could not have been discovered in, or before, November 1999. His explanation on why these conditions could not be discovered was that the doctors he saw at that time were not knowledgeable about depression or PTSD, that he had not been referred to a psychiatrist, and that PTSD was not a well-known condition at that time. The Applicant testified that he reported symptoms to his family doctor as early as 1994 and well prior to the end of 1997.

[57] Dr. Begin testified that PTSD was discoverable in 1999 and so was depression. She also testified that a family doctor could have identified symptoms of depression or PTSD in 1999 and could have started treatment without the need to refer a patient to a psychiatrist. As to the Applicant having reported symptoms of anger and fatigue to his family doctor, Dr. Begin did not see these symptoms mentioned in the clinical notes or reports. In any event, these symptoms and a clinical note stating that the Applicant was passive-aggressive in the period prior to the end of 1997, could have been symptoms of PTSD but were not automatic associations, as there could be other reasons for these symptoms. That said, she did not challenge Dr. Christians’ diagnosis from 2006 forward; she did question how he could state that the Applicant had been depressed for years before he met the Applicant. Dr. Begin testified that had the Applicant been suffering from depression or PTSD in 1999, she would expect to see reports of symptoms in at least clinical notes of the Applicant’s doctors over a period of time prior to 1999.

[58] The Applicant asked the Tribunal to disregard Dr. Begin’s evidence on the basis that she is not a psychiatrist and she answered using the words “I think”. However, I was satisfied with Dr. Begin’s qualifications and found her to be knowledgeable, helpful and unbiased. Using the words “I think” was appropriate; she was giving expert opinion evidence, and framing her statements in this manner was acceptable.

[59] The Applicant has not demonstrated on a balance of probabilities that he had depression and/or PTSD at or prior to his MQP and that this was not discoverable in or before November 1999.

[60] The Applicant has also not demonstrated that having depression and/or PTSD at or prior to his MQP would reasonably be expected to affect the outcome of his appeal in 1999. It is the capacity to work and not the diagnosis of the disease that determines whether the disability is severe (Klabouch v. Canada (Minister of Social Development), 2008 FCA 33).

[61] As such, I find that the evidence submitted in support of the New Facts Application does not establish new facts, in particular because they do not meet the discoverability and materiality criteria.

Severe and Prolonged

[62] Since I have decided that the New Facts Application does not establish the existence of new facts, I need not decide whether the Applicant’s disability was severe and prolonged as of the MQP.

Conclusion

[63] The application is dismissed.

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