Leading and Persuasive Decisions - alt

Persuasive decisions are decisions that have been identified by a division head (the Deputy Chairperson of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division or the Immigration Appeal Division) as being of persuasive value in developing the jurisprudence of a particular division. These decisions are well written, provide clear, complete and concise reasons with respect to the particular element that is considered to have persuasive value, and consider all of the relevant issues in a case. Accordingly, members are encouraged to rely upon persuasive decisions in the interests of consistency and effective decision-making. This consistency also helps parties and counsel prepare for proceedings before the IRB, and may encourage early resolution without a hearing, where appropriate.

The use of persuasive decisions enables the IRB to move toward a consistent application of the law in a transparent manner. Their designation promotes efficiency in the hearing and reasons writing process by making use of quality work done by colleagues.

Decision makers are not required to explain their decision not to apply a persuasive decision.

Decision Summaries

1999-744

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The panel set out its view of what would constitute a credible medical report: The facts or history are accurate and complete, that is, they are the same facts that are apparent from the other evidence. The conclusion makes sense in that it flows logically from the facts. The expert provides a reasonable explanation of how he or she has drawn the conclusion from the facts. In addition, the opinion, when presented as evidence, should be accompanied by a description of the expert's qualifications and any correspondence or communication by which the opinion was elicited.

2002-005

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The appellant was returning to his ship, which was in dry-dock. There was freezing rain at the time. He went up the gang-plank and slipped and fell to the deck below. The Board ruled that his injuries were not pensionable. It found that the fall and any resulting disability did not arise out of the Appellant's military service as he had been drinking and did not exercise due care. More specifically, the available evidence makes it clear that the weather, the appellant's inebriation, his repeated refusal of assistance to board the ship and his lack of care in failing to ensure his footing was secure on an icy surface were the factors which caused his accidental fall.

2002-170

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While section 39 of the Pension Act requires that an effective date for pension payment be based on the date an application was first made, by necessary implication this could only occur where the first contact initiated an application process which was properly followed through by the applicant and resulted in a completed and “duly made” application for the award in question. The applicant must respect the Minister's requirements for making an application, in order to rely on the date of first contact under Article 39 of the Pension Policy Manual. In this case, the appellant's 2000 application, upon which his claim was later accepted, did not vary factually from his 1997 application. There was sufficient information on the 1997 application form to draw an inference that the 1997 application was duly made. That, together with the fact that the Department appeared to have treated the 1997 application form as a duly made application, led the panel to conclude that the 1997 application form was the first duly made application for the claimed condition. Given that the evidence indicated the Minister`s staff had not exercised its discretion in a manner consistent with the Pension Act and its own policies in declaring the 1997 application “withdrawn”, it would not be fair to take the later application as the proper effective date.