Date: 20060927
Docket: T-2216-05
Citation: 2006 FC 1148
Halifax, Nova Scotia, September 27,
2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
SUNIL
HANDA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This is an
application for judicial review of a decision of the Pension Appeals Board (the
Board) communicated to the respondent on November 16, 2005, which granted the
respondent leave to appeal a decision of a Review Tribunal dated January 25,
2001. Leave to appeal was granted four years after the time within which to
submit a leave application had lapsed, and after the respondent’s original
leave application file had been closed and then reactivated under a new file
number.
[2]
The applicant seeks
an order setting aside the decision of the Board and referring the matter for
redetermination by a different member of the Board.
Background
[3]
The respondent is 34
years old. He has a grade 12 education from India
and has completed a six-month course in air conditioning at the Northern
Alberta Institute of Technology. He also has some computer training.
[4]
The respondent was
last employed from October 1990 to December 1998 as a bakery labourer. He
suffered a work-related injury which resulted in him having to undergo two
surgeries on his back in April 1996 and May 1999. He ceased working in December
1998 because of poor health related to his back problems.
[5]
The respondent first
applied for disability benefits under the Canada Pension Plan, R.S.C.
1985, c. C-8 (CPP) in September 1999. The Minister of Human Resources
Development (the Minister) refused his application initially and upon
reconsideration. The respondent’s appeal to a Review Tribunal was heard on
December 19, 2000 and dismissed by decision dated January 25, 2001.
[6]
On April 25, 2001,
the respondent applied for leave to appeal the Review Tribunal’s decision to
the Board, citing his ground of appeal as “I am not agree on these decision”.
He did not file any documents in support of his leave application. By letter
dated May 3, 2001, the Board advised the respondent that it could not accept
his application due to a lack of grounds. The respondent was given until June
14, 2001 to provide a more detailed application or a letter outlining the
reasons for the appeal, failing which, it would be considered that he did not
wish to appeal, and the Board would close the file.
[7]
The respondent did
not file further documents in the time allowed. As a result, the Board informed
the Commissioner of the Review Tribunal on July 31, 2001 that as the respondent
had failed to provide a proper application for leave to appeal, the Board was
closing his file.
[8]
In January 2005, the
respondent applied for CPP disability benefits a second time. In April 2005,
the Minister advised the respondent that his application was refused because
the prior decision of the Review Tribunal rejecting his first application was
final and binding. The respondent was advised that his current application
would not be considered unless he had made sufficient additional CPP
contributions since December 2000.
[9]
The respondent
retained a representative, Mr. Seebaran, to assist in the matter. By letter
dated April 22, 2005, Mr. Seebaran requested leave to appeal the Review
Tribunal’s decision of January 25, 2001. The Board wrote back to Mr. Seebaran
on June 10, 2005, advising that the respondent’s file had been closed as he had
not filed a proper application for leave to appeal. The letter ended with this
paragraph:
Should
you wish to proceed further with this application, you must provide this Board
with written reasons stating why you disagree with the decision of the Review
Tribunal. His file will remain closed until such information is received.
[10]
On August 16, 2005,
Mr. Seebaran submitted to the Board a few reports by medical specialists and the
respondent’s family physician from various dates in 2003.
[11]
By letter dated
September 15, 2005, the Board acknowledged receipt of Mr. Seebaran’s
correspondence of April 22, 2005, and August 16, 2005. The Board advised that
the respondent’s appeal was reactivated under a new file number and his
previous file remained closed.
[12]
By letter dated
November 16, 2005, the respondent was notified that a designated member of the
Board had granted him leave to appeal.
[13]
This is the judicial
review of the Board’s decision granting the respondent leave to appeal.
Issues
[14]
The applicant
submitted that the issue is whether the Board had jurisdiction to grant leave
to appeal. This issue can be more specifically framed as follows:
1. Did the Board lack
jurisdiction to grant leave to appeal because:
(a) the Board became functus
officio, having closed its file in July 2001?
(b) in the
alternative, the Board had not granted the respondent an extension of time to
make the leave application and therefore could not entertain the application
for leave to appeal?
Applicant’s Submissions
[15]
The applicant
submitted that the question of jurisdiction is a question of law, reviewable on
a standard of correctness.
[16]
The applicant
submitted that the legislation mandates the information that must be provided
in a leave application and the time within which this application must be made.
With respect to the contents of a leave application, Rule 4 of the Pension
Appeals Board Rules of Procedure (Benefits), C.R.C. 1978, c. 390 (the Board
Rules) provides that a leave application shall contain the grounds of the
appeal and a statement of allegations of fact, reasons that the party intends
to submit and documentary evidence he intends to rely on in support of the
appeal.
[17]
As for the time
within which the leave application must be made, subsection 83(1) of the CPP
provides that a party may apply for leave to appeal a decision of the Review
Tribunal “within ninety days after the day on which that decision was communicated
to the party or Minister, or within such longer period as the chairman or vice-chairman
of the Pension Appeals Board may either before or after the expiration of those
ninety days allow”. Rule 5 of the Board Rules provides that an
application for an extension of time within which to file a leave application
shall be served on the chairman or vice-chairman and shall set out the
information required in Rule 4 and the grounds on which the extension is
sought.
[18]
The applicant
submitted that the Board was correct in June 2001 when it refused to accept the
respondent’s April 2001 leave application. The application did not contain the
required information or provide any basis upon which the Board could assess
whether the respondent had an arguable case.
[19]
The applicant
submitted that once the Board determined that it would not consider the
respondent’s application and subsequently closed his file, the Board became functus
officio since there is no provision in the CPP for an applicant to
re-apply for leave or for the Board to reconsider a leave application (see Chandler
v. Alberta Association of Architects, [1989] 2 S.C.R. 848 at paragraph
20).
[20]
The applicant
submitted, in the alternative, that if it is determined that the Board was not functus
officio with respect to the issue of leave, the Board had no jurisdiction
to grant leave since no extension of time had been requested or granted with
respect to the April 2005 application. It was submitted that the only leave
application that was before the designated member of the Board was that
submitted by Mr. Seebaran in April 2005, four years after the expiry of the
statutory time limit. The information that was subsequently submitted by Mr.
Seebaran was in support of that application, not the application of April 2001.
The applicant submitted that if a leave application is made after the time
limit for doing so has expired, the applicant must apply for and be granted an
extension of time. It was submitted that a designated member exceeds his
jurisdiction or fails to exercise his jurisdiction if he grants leave to appeal
without also granting an extension of time within which to file a leave
application. For this proposition, the applicant relied on Canada (Minister
of Human Resources Development) v. Penna, 2005 FC 469 at paragraph
10; Canada (Minister of Human Resources Development) v. Eason,
2005 FC 1698 at paragraph 20; and Canada (Minister of Human Resources
Development) v. Dawdy, 2006 FC 429 at paragraph 23.
[21]
For the above
reasons, the applicant submitted that the Board had no jurisdiction to grant
leave, and that its decision to grant leave should be set aside and the matter
remitted to a different designated member for redetermination.
Respondent’s Submissions
[22]
The respondent did
not file any written submissions.
Analysis and Decision
[23]
Issue
1(a)
1. Did the Board lack
jurisdiction to grant leave to appeal because:
(a) the Board
became functus officio, having closed its file in July 2001?
The applicant submitted that
the Board became functus officio when it closed its file and thus, could
not entertain the respondent’s leave application. The applicant referred to
paragraph 20 of the Supreme Court of Canada’s decision in Chandler above:
I do not understand Martland J. to go so
far as to hold that functus officio has no application to administrative
tribunals. Apart from the English practice which is based on a reluctance to
amend or reopen formal judgments, there is a sound policy reason for
recognizing the finality of proceedings before administrative tribunals. As a
general rule, once such a tribunal has reached a final decision in respect to
the matter that is before it in accordance with its enabling statute, that
decision cannot be revisited because the tribunal has changed its mind, made an
error within jurisdiction or because there has been a change of circumstances.
It can only do so if authorized by statute or if there has been a slip or error
within the exceptions enunciated in Paper Machinery Ltd. v. J. O.
Ross Engineering Corp., supra.
[24]
In
order for the doctrine of functus officio to apply, there must have been
a final decision made by the Board. I have reviewed the file material and I
cannot find that a final decision had been made on the leave application. The
Board stated that it would not accept the respondent’s application for leave
and closed the file because the respondent’s leave application was incomplete,
as he had failed to file further materials when requested. The Board assumed
that the respondent was no longer interested in pursuing the leave application.
This does not constitute a final decision on the application for leave. In my
view, the Board has not made a final decision regarding the respondent’s application
for leave to appeal. Therefore, I cannot conclude that the Board has become functus
officio.
[25]
Issue
1(b)
1. Did the Board lack
jurisdiction to grant leave to appeal because:
(b) in the
alternative, the Board had not granted the respondent an extension of time to
make the leave application and therefore could not entertain the application
for leave to appeal?
A
party may seek leave to appeal outside the 90-day time limit prescribed by
subsection 83(1) of the CPP, provided that he applies for and is granted an
extension of time to do so. Subsection 83(1) of the CPP states as follows:
83.
(1) A party or, subject to the regulations, any person on behalf thereof, or
the Minister, if dissatisfied with a decision of a Review Tribunal made under
section 82, other than a decision made in respect of an appeal referred to in
subsection 28(1) of the Old Age Security Act, or under subsection 84(2),
may, within ninety days after the day on which that decision was communicated
to the party or Minister, or within such longer period as the Chairman or
Vice-Chairman of the Pension Appeals Board may either before or after the
expiration of those ninety days allow, apply in writing to the Chairman or
Vice-Chairman for leave to appeal that decision to the Pension Appeals Board.
[26]
The
Federal Court has held that the Board errs in law, exceeds its jurisdiction or
fails to exercise its jurisdiction, if it allows an application for leave to
appeal outside the statutory time limit, where no application for an extension
of time to seek leave has been filed, in accordance with the Board Rules,
and no extension of time to file the application for leave has been granted by
the Board (see Canada (Minister of Human Resources Development) v. Penna,
2005 FC 469 at paragraph 10). Moreover, the granting of an extension of time
cannot be inferred from the Board’s decision. This means that even if the party
seeking leave makes a request for an extension of time, the Board will have
committed a reviewable error if it proceeds to grant leave without explicitly
considering and granting the request for an extension of time (see Canada
(Minister of Human Resources Development) v. Eason, 2005 FC 1698 at
paragraph 20).
[27]
In
the present case, it is clear that the respondent neither applied for nor was
granted an extension of time to file his leave to appeal when he requested
leave to appeal in April 2005. There is no evidence in the record to show that
the Board turned its mind to an extension of time to file the April 2005 leave
to appeal application. Consequently, the applicant submits that the Board was
without jurisdiction to grant leave.
[28]
The
applicant’s argument assumes there were two applications for leave to appeal;
one in April 2001 and another in April 2005. I agree, as the Board stated that
it had closed the April 2001 file and that it remained closed, while the
respondent’s April 2005 appeal request was reactivated under a new file. I have
also considered the representations made by the respondent’s representative.
[29]
Applying
the law in Penna, above, I conclude that the Board erred in law,
exceeded its jurisdiction or failed to exercise its jurisdiction in granting
leave to appeal, in respect of the respondent’s leave application that was made
four years after the statutory time period had lapsed, and for which no
extension of time to seek leave had been filed and no extension of time had
been granted. I therefore find that this judicial application is allowed and that
the matter should be remitted to a different member of the Board for
redetermination.
[30]
It
would seem to me that should the respondent wish to continue with his appeal,
he should forthwith submit to the Board, a request for an extension of time
within which to file a leave application in accordance with Rule 5 of the Board
Rules. I have assumed that the Board considered the respondent’s
application for leave to appeal to be in proper form since it granted leave to
appeal on what was filed.
JUDGMENT
[31]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is remitted to a different member of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Section 83 of the Canada Pension Plan, R.S.C.
1985, c. C-8 provides that a party may apply to the Board for leave to appeal a
decision of the Review Tribunal. The provision sets out the following:
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83. (1) A
party or, subject to the regulations, any person on behalf thereof, or the
Minister, if dissatisfied with a decision of a Review Tribunal made under
section 82, other than a decision made in respect of an appeal referred to in
subsection 28(1) of the Old Age Security Act, or under subsection 84(2), may,
within ninety days after the day on which that decision was communicated to
the party or Minister, or within such longer period as the Chairman or
Vice-Chairman of the Pension Appeals Board may either before or after the
expiration of those ninety days allow, apply in writing to the Chairman or
Vice-Chairman for leave to appeal that decision to the Pension Appeals Board.
(2) The
Chairman or Vice-Chairman of the Pension Appeals Board shall, forthwith after
receiving an application for leave to appeal to the Pension Appeals Board,
either grant or refuse that leave.
(2.1) The
Chairman or Vice-Chairman of the Pension Appeals Board may designate any
member or temporary member of the Pension Appeals Board to exercise the
powers or perform the duties referred to in subsection (1) or (2).
(3) Where
leave to appeal is refused, written reasons must be given by the person who
refused the leave.
(4) Where
leave to appeal is granted, the application for leave to appeal thereupon
becomes the notice of appeal, and shall be deemed to have been filed at the
time the application for leave to appeal was filed.
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83. (1) La
personne qui se croit lésée par une décision du tribunal de révision rendue
en application de l’article 82 — autre qu’une décision portant sur l’appel
prévu au paragraphe 28(1) de la Loi sur la sécurité de la vieillesse — ou du
paragraphe 84(2), ou, sous réserve des règlements, quiconque de sa part, de
même que le ministre, peuvent présenter, soit dans les quatre-vingt-dix jours
suivant le jour où la décision du tribunal de révision est transmise à la
personne ou au ministre, soit dans tel délai plus long qu’autorise le
président ou le vice-président de la Commission d’appel des pensions avant ou
après l’expiration de ces quatre-vingt-dix jours, une demande écrite au
président ou au vice-président de la Commission d’appel des pensions, afin
d’obtenir la permission d’interjeter un appel de la décision du tribunal de
révision auprès de la Commission.
Décision du
président ou du vice-président
(2) Sans délai
suivant la réception d’une demande d’interjeter un appel auprès de la
Commission d’appel des pensions, le président ou le vice-président de la
Commission doit soit accorder, soit refuser cette permission.
(2.1)
Le président ou le vice-président de la Commission d’appel des pensions peut
désigner un membre ou membre suppléant de celle-ci pour l’exercice des
pouvoirs et fonctions visés aux paragraphes (1) ou (2).
(3)
La personne qui refuse l’autorisation d’interjeter appel en donne par écrit
les motifs.
(4)
Dans les cas où l’autorisation d’interjeter appel est accordée, la demande
d’autorisation d’interjeter appel est assimilée à un avis d’appel et celui-ci
est réputé avoir été déposé au moment où la demande d’autorisation a été
déposée.
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The relevant rules of the Pension
Appeals Board Rules of Procedure (Benefits), C.R.C. 1978, c. 390 are set
out below:
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4. An appeal from a decision of a Review Tribunal shall be
commenced by serving on the Chairman or Vice-Chairman an application for
leave to appeal, which shall be substantially in the form set out in Schedule
I and shall contain
(a) the date of the decision of the Review Tribunal, the
name of the place at which the decision was rendered and the date on which
the decision was communicated to the appellant;
(b) the full name and postal address of the appellant;
(c) the name of an agent or representative, if any, on
whom service of documents may be made, and his full postal address;
(d) the grounds upon which the appellant relies to obtain
leave to appeal; and
(e) a statement of the allegations of fact, including any
reference to the statutory provisions and constitutional provisions, reasons
the appellant intends to submit and documentary evidence the appellant
intends to rely on in support of the appeal.
5. An application for an extension of time within which to
apply for leave to appeal a decision of a Review Tribunal shall be served on
the Chairman or Vice-Chairman and shall set out the information required by
paragraphs 4(a) to (e) and the grounds on which the extension is sought.
7. An application under section 4 or 5 shall be disposed
of ex parte, unless the Chairman or Vice-Chairman otherwise directs.
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4. L'appel de la décision d'un tribunal
de révision est interjeté par la signification au président ou au
vice-président d'une demande d'autorisation d'interjeter appel, conforme en
substance à l'annexe I, qui indique:
a) la date de la décision du tribunal de révision, le nom
de l'endroit où cette décision a été rendue et la date à laquelle la décision
a été transmise à l'appelant;
b) les nom et prénoms ainsi que l'adresse postale complète
de l'appelant;
c) le cas échéant, le nom et l'adresse postale complète
d'un mandataire ou d'un représentant auquel des documents peuvent être
signifiés;
d) les motifs invoqués pour obtenir l'autorisation
d'interjeter appel; et
e) un exposé des faits allégués, y
compris tout renvoi aux dispositions législatives et constitutionnelles, les
motifs que l'appelant entend invoquer ainsi que les preuves documentaires
qu'il entend présenter à l'appui de l'appel.
5. La demande de prorogation du délai
imparti pour demander l'autorisation d'interjeter appel de la décision d'un
tribunal de révision est signifiée au président ou au vice-président et
contient les renseignements visés aux alinéas 4a) à e) et un exposé des
motifs sur lesquels elle est fondée.
7. Il est statué ex
parte sur les demandes visées aux articles 4 ou 5, à moins que le président
ou le vice-président n'en décide autrement.
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