LORETTA BECK Applicant v. ATTORNEY GENERAL OF CANADA, 2012 FCA 310

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20121123 Docket: A-56-12 Citation: 2012 FCA 310 CORAM: NOËL J.A. MAINVILLE J.A. WEBB J.A. BETWEEN: LORETTA BECK Applicant and ATTORNEY GENERAL OF CANADA Respondent Heard at Halifax, Nova Scotia, on November 20, 2012. Judgment delivered at Ottawa, Ontario, on November 23, 2012. REASONS FOR JUDGMENT BY: WEBB J.A. CONCURRED IN BY: NOËL J.A. MAINVILLE J.A. Date: 20121123 Docket: A-56-12 Citation: 2012 FCA 310 CORAM: NOËL J.A. MAINVILLE J.A. WEBB J.A. BETWEEN:

LORETTA BECK Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT WEBB J.A. [1] This is an application by Loretta Beck (the applicant) for judicial review of the decision of the Pension Appeals Board (thePAB) dated January 12, 2012 (CP27186). The PAB held that the evidence before it did not support a finding that, on (or prior to)December 31, 2000 (the end of her minimum qualifying period (MQP)), the applicant was suffering from a severe and prolongedphysical disability and was unable to pursue any substantially gainful employment.

Therefore the applicant was not disabled for thepurposes of the Canada Pension Plan, R.S.C. 1985, c. C-8, (the CPP). [2] At the hearing before us the applicant requested leave to submit additional documents. The Crown opposed this request. InPublic School Boards' Association of Alberta v. Alberta (Attorney General), 2000 SCC 2 the Supreme Court of Canada noted that: 6 The traditional test for the admission of fresh evidence on appeal was stated by this Court in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, at p. 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, (SCC), [1964]S.C.R. 484.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [3] The new evidence relates to attempts by the applicant to correct her medical records and her various medical problems.However, none of the new documents assist the applicant in establishing that she was suffering from a severe and prolonged physicaldisability and was unable to pursue any substantially gainful employment as of December 31, 2000.

There is simply nothing in the newevidence (when taken with the evidence before the PAB) that could reasonably be expected to have affected the result and therefore thenew evidence is not admissible. [4] The PAB thoroughly reviewed her medical history (most of which was for the period after December 31, 2000) andconcluded that there was “no objective medical evidence that she was disabled any time prior to the end of her MQP to the extent shewas incapable of pursuing any substantially gainful employment to bring her within [subsection] 42(2) of the CPP” (paragraph 19 of thereasons issued by the PAB).

The applicant has not demonstrated that the PAB made any reviewable error in making this finding. [5] As a result the appeal will be dismissed, without costs. “Wyman W. Webb”

J.A. “I agree Marc Noël J.A.” “I agree Robert M. Mainville J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-56-12 STYLE OF CAUSE: LORETTA BECK V. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Halifax, Nova Scotia DATE OF HEARING: November 20, 2012 REASONS FOR JUDGMENT BY: WEBB J.A. CONCURRED IN BY: NOËL J.A. MAINVILLE J.A. DATED: November 23, 2012 APPEARANCES :

Loretta Beck FOR THE APPLICANT (ON HER OWN BEHALF) Jennifer Hockey FOR THE RESPONDENT SOLICITORS OF RECORD : N/A FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada FOR THE RESPONDENT