Period of incapacity must be continuous period

Claimant’s nephew applied for guaranteed income supplement (GIS) benefits on her behalf for 2009 to 2013, and payment was approved as of 11 months before application. On reconsideration, Minister of Employment and Social Development agreed to use date five months before application as deemed date of application because claimant lacked capacity to form intention to apply for GIS benefits due to dementia in April 2012. Social Security Tribunal-General Division dismissed claimant's estate’s appeal and confirmed that claimant lacked capacity to form intention to apply for GIS benefits as of April 2012. Social Security Tribunal-Appeal Division dismissed estate’s appeal. Estate brought application for judicial review. Application dismissed. Incidents upon which estate sought to establish earlier incapacity occurred sporadically with intervals of months in between. It was not clear that claimant was incapacitated from 2008 to early 2012. Claimant was able to look after herself for six weeks in early 2012. Period of incapacity must be continuous period, pursuant to s. 28.1(1) of Old Age Security Act. It was not easy to ascertain exact date on which person with dementia commenced to be incapacitated for continuous period. There was no basis to find that Appeal Division’s decision was unreasonable.

Leung (Estate) v. Canada (Attorney General) (2019), 2019 CarswellNat 2741, 2019 FCA 180, Wyman W. Webb J.A., D.G. Near J.A., and J.B. Laskin J.A. (F.C.A.).

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