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CPP III

. Blue v. Canada (Attorney General)

In Blue v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered an interesting case where the General Division of the Social Security Tribunal granted a CPP-D applicant's request for a retroactive start date (here over 10 years retroactive). The Appeal Division of the Social Security Tribunal reversed that, and a further appeal by the applicant was allowed at the Federal Court of Appeal:
[36] It is the responsibility of the General Division of the Social Security Tribunal to assess the facts, and then, taking the relevant legal principles into account, to determine on the basis of its findings whether the test for disability – or, as in this case, the test for incapacity – has been met: Hillier v. Canada (Attorney General), 2020 FCA 11, 315 A.C.W.S. (3d) 408 at para. 2.

[37] The powers of the Appeal Division are more restricted. In accordance with subsection 58(1) of the Department of Employment and Social Development Act, S.C. 2005, c. 34, the Appeal Division may only intervene in a decision of the General Division in one of three situations:
(1) Where the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(2) Where it erred in law in making its decision; or
(3) Where it based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.
[38] In this case, the Appeal Division found that the General Division had erred in law by applying the wrong legal test for incapacity. I do not agree. It was the Appeal Division that erred by interpreting this Court’s decision in Sedrak to mean that an individual who has the capacity to carry out some activities necessarily has the capacity to form or express the intention to apply for disability benefits.

[39] It is true that in Sedrak, this Court stated that "“[t]he capacity to form the intention to apply for benefits is not different in kind from the capacity to form an intention with respect to other choices which present themselves to an applicant”": at para. 3. It does not however follow from this that the ability of an individual to carry out certain activities necessarily means that they have the capacity to form or express an intention to apply for disability benefits.

[40] This was made clear in Canada (Attorney General) v. Danielson, 2008 FCA 78, 165 A.C.W.S. (3d) 560 at para. 7. There, this Court stated that "“the activities of a claimant during [the relevant] period may be relevant to cast light on his or her continuous incapacity to form or express the requisite intention and ought to be considered”" [my emphasis].

[41] It is implicit in the Court’s use of the phrase "“may be relevant”" in Danielson that while some activities will be relevant to the question of capacity in certain cases, others will not. Indeed, the Court went on in Danielson to say that the Board had to consider "“whether these events at the time they occurred evidenced a capacity to form or express an intention to make an application for benefits”", above at para. 11. This analytical framework was subsequently adopted by this Court in Canada (Attorney General) v. Kirkland, 2008 FCA 144, 167 A.C.W.S. (3d) 417.

[42] From this, it appears that the test for incapacity for the purposes of subsection 60(9) of the Canada Pension Plan involves consideration of the following matters, at a minimum:
(1) The applicant’s evidence with respect to the nature and extent of his or her physical and/or mental limitations;
(2) Any medical, psychological or other evidence adduced by an applicant in support of their claim of incapacity;
(3) Evidence of other activities in which an applicant may have been engaged during the relevant period; and
(4) The extent to which these other activities cast light on the capacity of the applicant to form or express an intention to apply for disability benefits during that period.
[43] The General Division considered this last question at paragraphs 20 to 26 of its decision. After assessing the extent to which Ms. Blue’s ability to carry out normal life activities was indicative of her capacity to form or express an intention to apply for disability benefits in the years between 2004 and 2016, the General Division concluded that Ms. Blue had established that it was more likely than not that she lacked the capacity to do so.

[44] Based on the error noted earlier, the Appeal Division concluded its analysis after the third step. It simply assumed that because Ms. Blue had the capacity to carry out certain life activities, it necessarily followed that she had the requisite capacity to form or express an intention to apply for disability benefits. The Appeal Division did not consider whether Ms. Blue’s ability to carry out activities such as paying her bills or raising her daughter was in fact indicative of her capacity to formulate or express the intent to apply for a disability pension.

[45] Before concluding, it must be noted that this is a most unusual case. In many cases, the ability of an individual to carry on ordinary life activities may well be indicative of their capacity to formulate or express the intent to apply for a disability pension. However, in this case, Ms. Blue’s disability, while severe, is narrowly focussed, with both her trauma and her mental health issues arising out of or relating to engagement with hospitals, the medical profession and persons in authority.

[46] The General Division carefully considered the nature and focus of Ms. Blue’s disability, concluding that it precluded her from formulating or expressing the intent to apply for a disability pension during the relevant period. The General Division did not err in coming to this conclusion, particularly in light of Dr. Benn’s evidence with respect to the specific focus and paralyzing nature of Ms. Blue’s fears.



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