Date: 20061031
Docket: T-539-05
Citation: 2006 FC 1319
Toronto, Ontario, October 31,
2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ILDA
CAREPA
Applicant
and
THE
MINISTER OF SOCIAL DEVELOPMENT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ilda
Carepa seeks judicial review of a decision of a Review Tribunal dismissing her
appeal from a denial of disability benefits under the Canada Pension Plan. Ms.
Carepa says that the Review Tribunal erred in failing to find that a document
relating to her return to work in 1994 amounted to a “new fact” justifying the
quashing of an earlier decision of the Review Tribunal.
[2]
Ms.
Carepa further asserts that the failure of the Minister to produce the 1994
document in proceedings relating to an earlier claim for benefits tainted the
proceedings under review, and resulted in her being denied procedural fairness
in this case.
[3]
For
the reasons that follow, I am not persuaded that the Review Tribunal erred as
alleged by Ms. Carepa, and accordingly, this application will be dismissed.
Background
[4]
In
1994, Ms. Carepa was granted disability benefits under the Canada Pension
Plan. Shortly thereafter, however, she returned to work, and her benefits
ceased. Ms. Carepa continued to work until 1996. There is a factual dispute
as to whether she was laid off in December of 1996 due to lack of work, or left
because her health was such that she could not continue.
[5]
Ms.
Carepa filed a second application for disability benefits in June of 1997.
This application was denied by the Minister, as was a subsequent request for
reconsideration. A Review Tribunal then dismissed Ms. Carepa’s appeal on
November 4, 1998, finding that she was not disabled. This decision was based,
in part, on a questionnaire that was prepared by Ms. Carepa’s former employer
in March of 1998, which indicated that Ms. Carepa’s performance on the job had
been satisfactory up until December of 1996, when she was laid off because of a
shortage of work. The questionnaire also stated that Ms. Carepa’s employer was
not aware that she had a disability.
[6]
Leave
to appeal this decision to the Pension Appeals Board was denied in January of
2000, and Ms. Carepa did not seek judicial review of the Review Tribunal’s
decision.
[7]
In
January of 2002, Ms. Carepa again applied for disability benefits. This
application was also denied by the Minister, as was her request for
reconsideration. Ms. Carepa then appealed to a Review Tribunal, asking that
the Tribunal reconsider and amend its November 4, 1998 decision, on the basis
of “new facts”. The “new facts” identified by Ms. Carepa included additional
medical reports confirming that she had since been diagnosed with fibromyalgia,
as well as a 1997 paper relating to this condition.
[8]
Ms.
Carepa also relied on a document provided to her employer in June of 1994,
indicating that she had returned to work on modified duties, which she also
says amounted to a “new fact”. It is this last document that is in issue on
this application for judicial review.
The Review Tribunal’s
Decision
[9]
In
a January, 2005 decision, the Review Tribunal determined that the last point at
which Ms. Carepa met the contribution requirements which would potentially
entitle her to benefits was on December 31, 1998. This was the last point at
which Ms. Carepa came within the Minimum Qualifying Period (or “MPQ”), having
made contributions to the Plan in four out of the last six years.
[10]
The
Review Tribunal then found that as a result of the principle of res judicata,
it was bound by the Tribunal’s November 4, 1998 decision, which had found that
Ms. Carepa was not disabled. As a result, the question for the Tribunal was
whether Ms. Carepa had demonstrated that she was disabled during the period
between November 4, 1998 and December 31, 1998.
[11]
The
Tribunal found that the medical evidence before it did not establish that there
had been a change in Ms. Carepa’s condition between November 4, 1998 and
December 31, 1998. As a consequence, her appeal with respect to her 2002
application was dismissed.
[12]
The
next question for the Tribunal was whether Ms. Carepa was entitled to
reconsideration of the 1998 Tribunal decision, as a result of the discovery of “new
facts”, within the meaning of subsection 84(2) of the Canada Pension Plan.
Subsection 84(2) allows the Review Tribunal to amend or rescind a previous
decision where there are new facts.
[13]
In
this regard, the Review Tribunal found that none of the evidence produced by
Ms. Carepa amounted to new facts. In particular, insofar as the 1994 return to
work report was concerned, the Tribunal found that Ms. Carepa could have
testified as to the conditions surrounding her return to work, thereby
providing the same evidence to the Review Tribunal. Moreover, the Tribunal
found that the document could have been available to Ms. Carepa through the
exercise of reasonable diligence.
[14]
In
the absence of any new facts, the Review Tribunal held that there was no basis
for it to reconsider the 1998 decision.
Issues
[15]
Ms.
Carepa’s application for judicial review raises the following issues:
1. The
appropriate standard of review to be applied to the decision of the Review
Tribunal;
2. Whether
the Review Tribunal erred in finding that the 1994 return to work report did
not amount to “new facts”; and
3. Whether
the failure of the Minister to produce the 1994 return to work report in the
1998 Review Tribunal process resulted in Ms. Carepa being denied procedural
fairness in relation to the 2005 process.
Standard of Review
[16]
To
amount to “new facts”, the evidence in question must not have been discoverable
with due diligence prior to the previous hearing, and the facts must be
material: see, for example, Kent v. Canada (Attorney General), [2004]
F.C.J. No. 2083, 2004 FCA 420.
[16]
[17]
As
the Federal Court of Appeal observed in Taylor v. Canada (Minister of Human
Resources Development), [2005] F.C.J. No. 1532, 2005 FCA 293, at ¶12, a
question as to whether evidence was discoverable is a question of fact, and is
reviewable against the standard of patent unreasonableness.
[18]
Materiality
and due diligence are questions of mixed fact and law, with a heavy emphasis on
fact, and are also reviewable against the patent unreasonableness standard: Taylor, above, at ¶12.
[19]
Insofar
as Ms. Carepa’s application raises a question of procedural fairness, the pragmatic
and functional analysis does not apply. Rather, the task for the Court is to
isolate any act or omission relevant to the question of procedural fairness,
and to determine whether the process followed by the Commission satisfied the
level of fairness required in all of the circumstances: see Sketchley v.
Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404.
[20]
That
is, given that questions of procedural fairness are reviewed as questions of
law, no deference is due: the decision-maker has either complied with the
content of the duty of fairness appropriate for the particular circumstances,
or has not: Sketchley, at ¶ 53.
[21]
With
this understanding of the standard of review, I turn now to consider whether
the Review Tribunal erred in finding that the 1994 return to work report did
not amount to “new facts”.
Did
the Review Tribunal Err in Finding that the 1994 Return to Work Report did not
Amount to “New Facts”?
[22]
The
Canada Pension Plan does not define what is meant by “new facts”.
However, as was noted above, the jurisprudence teaches us that there is a two
part test to be applied in determining whether facts relied upon by an
applicant are truly new. That is, the proposed new facts must not have been
discoverable with due diligence prior to the previous hearing, and the facts
must be material.
[23]
Ms.
Carepa submits that the 1994 return to work report was not discoverable prior
to her 1998 Review Tribunal hearing, as a result of the failure of the Plan to
comply with its disclosure obligations.
[24]
More
will be said about Ms. Carepa’s procedural fairness arguments relating to the
non-production of this document further on in this decision. However, she has
not persuaded me that the 1994 return to work report was not discoverable prior
to the 1998 hearing by the exercise of reasonable diligence.
[25]
In
this regard, it bears noting that the document in question is a 1994 report
that had been completed by Ms. Carepa’s personal physician, and that it bears
Ms. Carepa’s own signature. As a consequence, Ms. Carepa had to have been
aware of the existence of the document well before she appeared before the
Review Tribunal in 1998.
[26]
Ms.
Carepa has not provided an affidavit in support of her application for judicial
review, and there is no evidence as to what, if any, steps she may have taken
to locate the document, nor is there any explanation as to why the document
could not have been provided by her in the context of the 1998 Review Tribunal
proceedings.
[27]
Moreover,
as the Review Tribunal noted, Ms. Carepa was in attendance at the 1998 hearing,
and was in a position to provide direct evidence as to the nature and extent of
her job responsibilities in the period between her return to work in June of
1994 and the termination of her employment in December of 1996.
[28]
In
all of the circumstances, Ms. Carepa has failed to demonstrate that the Review
Tribunal’s finding that the 1994 return to work report failed to amount to “new
facts” was unreasonable, much less patently so.
[29]
In
the absence of new facts, subsection 84(2) of the Plan was not engaged, and,
subject to Ms. Carepa’s procedural fairness argument which will be addressed
below, there was thus no basis on which to revisit the 1998 Review Tribunal
decision.
Did
the Failure of the Plan to Produce the 1994 Report Result in a Denial of
Procedural Fairness?
[30]
Ms.
Carepa submits that Rule 5 of the Review Tribunal Rules of Procedure requires
the disclosure of all of the material in an applicant’s Canada Pension Plan
file that is relevant to the decision under review. For some reason, however,
the 1994 return to work report was evidently not disclosed to Ms. Carepa by the
Plan in the context of her 1998 Review Tribunal hearing.
[31]
According
to Ms. Carepa, the 1994 report demonstrates that she returned to work on modified
duties. In contrast, the 1998 questionnaire completed by her former employer
made no mention of this point, and asserted that the employer was not even
aware of any disability on the part of Ms. Carepa.
[32]
Moreover,
the questionnaire suggested that there had been no disability-related problems
with Ms. Carepa’s performance prior to the termination of her employment, and
that she had not had significant disability-related absences from work.
[33]
This
selective disclosure by the Plan resulted, Ms. Carepa says, in her having been
treated unfairly in the course of her 1998 hearing, and contributed to the
Review Tribunal’s finding that she was not disabled.
[34]
Ms.
Carepa further submits that to the extent that the findings of the Review
Tribunal in 2005 flowed from those made in the context of the 1998 Review
Tribunal decision, this later decision was tainted by the earlier unfairness,
and should be set aside.
[35]
It
should be noted at the outset that the 1994 return to work report related to
Ms. Carepa’s 1994 application for benefits, and that her 1998 hearing related
to her second application for benefits. As a result, it is not clear that
there was in fact any obligation on the part of the Plan to disclose the report
in the context of the 1998 Review Tribunal proceedings.
[36]
It
should also be observed that this application for judicial review relates
solely to the 2005 Review Tribunal decision. Although Ms. Carepa was denied
leave to appeal the 1998 Review Tribunal decision to the Pension Appeal Board,
she did not seek judicial review of that decision in the Federal Court, where
it would have been open to her to advance her arguments relating to the
fairness of the 1998 Review Tribunal process.
[37]
Whatever
Ms. Carepa’s concerns may be with respect to the fairness of the 1998 process,
there is nothing in the record to suggest that there was any unfairness in the
2005 Review Tribunal process.
[38]
In
the absence of “new facts” that would engage the reconsideration jurisdiction
created by subsection 84(2) of the Plan, the principle of res judicata
applies to decisions of the Review Tribunal: Canada (Minister of Human
Resources Development) v. MacDonald, [2002] F.C.J. No. 197, 2002 FCA 48.
[39]
Moreover,
in the absence of any unfairness in the 2005 Review Tribunal process, Ms.
Carepa cannot now go back and try to mount what is essentially a collateral and
untimely attack on the 1998 Review Tribunal decision, which has now become
final as a result of her failure to seek judicial review of that decision.
Conclusion
[40]
For
these reasons, Ms. Carepa’s application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application for judicial review is
dismissed.
“Anne
Mactavish”
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