Date:
20061110
Docket:
T-1498-05
Citation: 2006 FC 1364
Ottawa, Ontario, this 10th
day of November, 2006
PRESENT: The Honourable Mr. James
Russell
BETWEEN:
ATTORNEY GENERAL
OF CANADA
Applicant
and
WAYNE DALE
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
This is an application under sections 18 and 18.1
of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of a
decision made by the Honourable K.C. Binks, a member of the Pension Appeals
Board (Board) designated under subsection 83(2.1) of the Canada Pension Plan,
R.S.C. 1985, c. C-8 (Plan). The decision in question (Decision) granted the Respondent
leave to appeal a decision of the Review Tribunal. The Review Tribunal had
denied the Respondent’s application to review a decision of the Minister under
subsection 66(4) of the Plan, for lack of jurisdiction. The Applicant is
seeking an Order setting aside the Decision and referring the matter back for reconsideration
by a different member.
BACKGROUND
[2]
The Respondent was involved in a motor vehicle accident in 1972, in
which he suffered a brain injury. According to the medical evidence presented,
he was diagnosed in 1973 by a psychiatrist, Dr. Calverley, with a moderate form
of “Chronic Brain Syndrome” resulting from gross brain damage. The psychiatrist
further concluded that the Respondent was totally disabled insofar as
productive employment was concerned, but believed that progress could still be
made and that it might be possible for him to embark upon some vocational rehabilitation
program.
[3]
Throughout the 1970s, the Respondent was able to pursue some gainful
employment, although the work was intermittent, relatively unskilled, and obtained
primarily in connection with his mother’s employment.
[4]
During this same period, the Respondent submitted two separate
applications for disability benefits under the Plan to Health and Welfare
Canada, now Human Resources and Social Development Canada (Minister).
[5]
The Respondent’s first application was submitted in November, 1973 and
was denied by the Minister in February, 1974. The Respondent was informed of
his right to appeal this decision, but he did not do so.
[6]
The Respondent’s second application for disability benefits was
submitted in December, 1977 and was denied by the Minister in June, 1978. Once
again, the Respondent was informed of his right to appeal this decision, but he
did not do so.
[7]
Throughout the 1980s, the Respondent faced increasing difficulty in
obtaining employment. He had only four years of recorded earnings between 1982
and 1991, after which he ceased employment altogether to care for his young daughter.
[8]
In May, 1998, the Respondent submitted a third application for
disability benefits, which also included an application for disabled
contributor’s child benefit. This application was denied by the Minister in
September, 1998. The Respondent did not appeal this decision.
[9]
In August, 2001, an application was made on the Respondent’s behalf by
the British Columbia Ministry of Human Resources (now the Ministry of Employment
and Income Assistance) for retirement benefits under the Plan. This application
was successful and the Respondent began receiving benefits in December, 2001,
including retroactive payments going back to March, 2001, when he turned 60.
[10]
In March, 2003, the Respondent submitted a fourth application for
disability benefits (also with a second application for disabled contributor’s
child benefits) under the Plan. In this application, the Respondent indicated
that it had been his intention with regards to his 2001 application to request
disability benefits, not retirement benefits. In April, 2003, this fourth
application was denied by the Minister on the ground that, under the Plan, no
one can receive disability and retirement benefits at the same time. The Minister’s
letter further explained that, based on the date of his fourth application, the
earliest the Applicant could be considered to have become disabled under the Plan
was December 2001 and, since this was after he started receiving retirement
benefits, he could not receive disability benefits.
[11]
In August, 2003, the Respondent sent a letter to the Minister asking for
reconsideration of the negative decision on his fourth application.
[12]
A review was conducted and it was determined by the Minister that the fourth
application should be closed and the third application (the 1998 application)
should be re-opened on the basis that an administrative error had been made in
adjudicating the third 1998 application. The authority of the Minister to take
remedial action in situations where “erroneous advice or administrative error”
has occurred is found in subsection 66(4) of the Plan.
[13]
In October, 2003, the Minister informed the Respondent that his 1998
application for disability benefits and disabled contributor’s child benefits
had been accepted. The Minister’s letter further explained that the maximum
amount of retroactivity allowed under the Plan was 15 months so that, based on
the date of his 1998 application, the Respondent was deemed to have been
disabled as of February 1997.
[14]
Upon receiving the Minister’s response, the Respondent sent another
letter to the Minister, this time requesting a reconsideration of the date of
onset, which he claimed should be established based on his first application
for disability benefits submitted in 1973. The Minister replied in March, 2004,
and informed the Respondent that the decision was being maintained.
[15]
In June, 2004, the Respondent sent a letter to the Office of the
Commissioner of Review Tribunals, in which he sought to appeal the Minister’s
latest decision. The appeal was heard by the Review Tribunal in Victoria on
March 8, 2005.
[16]
In April, 2005, the Review Tribunal released its decision dismissing the
Respondent’s appeal of the Minister’s decision on the ground that it did not
have jurisdiction to review decisions of the Minister made under subsection
66(4) of the Plan.
[17]
The Review Tribunal also took the time to consider the merits of the
appeal and stated that, even if it had possessed the necessary jurisdiction, it
would have concluded that the Respondent did not meet the relevant statutory
tests at the time of the two pre-1998 applications to be considered eligible to
receive disability benefits under the Plan.
[18]
The Respondent then sought leave to appeal the decision of the Review
Tribunal. On August 3, 2005, a designated member of the Board granted the Respondent’s
application for leave to appeal the decision of the Review Tribunal. This Decision
was communicated to the Respondent by way of a letter and no reasons were provided
for the Decision.
[19]
On September 1, 2005, the Minister applied to this Court for judicial
review of the Decision by the designated member of the Board to grant the
Respondent leave to appeal.
ARGUMENTS
The
Applicant
[20]
The Applicant submits, first, that the designated
member of the Board, in granting leave to appeal, exceeded his jurisdiction. This
is because the Board, like the Review Tribunal, has no jurisdiction to review a
decision of the Minister made under subsection 66(4) of the Plan.
[21]
On the issue of the proper standard of review,
the Applicant submits that, in the absence of jurisdiction to dispose of the
grounds raised by the Respondent, the designated member’s Decision to grant
leave to appeal was an error in law to which the standard of correctness
applies.
[22]
The Applicant then proceeds with an analysis of
the relevant statutory provisions to demonstrate lack of jurisdiction, as was
done by the Review Tribunal in its decision. The Applicant further supports its
argument by reference to several decisions of the Federal Court and Federal
Court of Appeal, including the decision in Pincombe v. Canada (Attorney
General), (1995), 189 N.R. 197. First, according to the Applicant, the
Federal Court in Pincombe determined that the Board has no jurisdiction
to consider a decision taken by the Minister under subsection 66(4) of the
Plan. The Applicant further submits that the jurisprudence of the Federal Court
emphasises that the Court cannot create a right of appeal where none is given
by statute, or by legal or constitutional requirement. Also, neither the Board
nor the Review Tribunal has any equitable jurisdiction. Finally, the Respondent
notes that in Pincombe the Federal Court of Appeal upheld the finding of
a Board that determined that a Review Tribunal (then a Review Commission) has
no jurisdiction to entertain an appeal under subsection 66(4). The Federal
Court of Appeal did recognize that the Federal Court Trial division, as it then
was, could judicially review the decision of the Minister pursuant to section
18.1 of the Federal Courts Act.
[23]
The Respondent further submits that similar
wording in the Old Age Security Act, R.S.C. 1985 c. O-9 has been given
the same interpretation by the Federal Court of Appeal.
The Respondent
[24]
The Respondent, who is self-represented, has not filed any materials
with the Court for this application.
ISSUE FOR CONSIDERATION
[25]
The sole issue for consideration is whether the
designated member of the Board committed a reviewable error in granting the Respondent’s
application for leave to appeal the decision of the Review Tribunal.
PERTINENT LEGISLATION
[26]
The sections from the Canada Pension Plan
that are of particular relevance to this case and can be found in Schedule A to
this Order and Reasons for Order.
STANDARD OF REVIEW
[27]
The proper standard of review to be applied to a decision of the Pension
Appeal Board has been considered by the Federal Court of Appeal on a number of
occasions. In Canada (Minister of Human Resources Development) v.
Skoric, [2000] 3 F.C. 265, 251
N.R. 368 (F.C.A.), Justice Evans applied a pragmatic and functional approach
and concluded that a decision of the Board relating to the application of the
statutory language of the Plan was entitled to little or no
deference. He reasoned as follows at paragraphs 15 to 19:
…
It was more or less common ground
between the parties that the standard of review applicable in this case is at
the correctness end of the spectrum. I agree. A pragmatic or functional
analysis clearly indicates that this is not a situation in which curial
deference is appropriate.
First, there is no privative
clause restricting the scope of judicial review. Subsection 84(1) of the Plan
provides that, “except for judicial review under the Federal Court Act”,
the Board’s decisions are “final and binding for all purposes of this Act”.
Since this provision expressly exempts judicial review from its scope, the
effect of the finality clause can only be to restrict the jurisdiction that the
Board would otherwise have had to reconsider its decisions pursuant to Chandler
v. Alberta Association of Architects, [1989] 2 S.C.R. 848.
However, subsection 84(2) expressly permits the Board to reconsider its
decisions “on new facts”.
Second, the Board has no broad
regulatory responsibilities, but performs only the adjudicative function of
hearing appeals from the Review Tribunal: subsection 83(1) [as am. by S.C.
1995, c. 33, s. 36]. Third, the Chair, Vice-Chair and other members of the
Board must be judges of the Federal Court or of specified section 96 [Constitution
Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982,
1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1)
[R.S.C., 1985, Appendix II, No. 5]] courts: subsection 83(5); retired judges of
these courts are eligible to be appointed as additional “temporary members”:
subsection 83(5.1). Fourth, the questions in dispute in this case involve the
interpretation of the Board’s enabling statute and have an application beyond
the facts of this dispute. Fifth, the subject-matter of the dispute is the
adjudication of an individual’s legal rights.
On the other hand, a
consideration pointing to curial deference is the fact that Parliament probably
entrusted appellate functions to an administrative tribunal, the Pension Appeals
Board, rather than to the Federal Court, to take advantage of the benefits of
economical and expeditious decision-making, and more accessible process,
normally offered by tribunals.
In my view, the balance of the
factors in the pragmatic or functional mix favours affording little deference
to the Board’s interpretation of its constitutive legislation, especially in
the absence of any evidence in the record indicating that members of the Board
acquire considerable expertise in the Canada Pension Plan as a result of
the volume of appeals that they hear and decide.
[28]
In Villani v. Canada (Attorney General), [2002] 1 F.C.
130, 2001 FCA 248, Justice Isaac followed the same reasoning and concluded, at
paragraph 22, that the standard of review on questions of law (such as
statutory interpretation) was that of correctness.
[29]
There has also been some jurisprudence of the Federal Court on the
proper standard of review for a decision of the Board refusing leave to appeal.
Most recently, in Canada (Minister of Human Resources Development) v.
Lewis, 2006 FC 322, Justice O’Keefe stated at paragraph 14 that the
question of whether the Board applied the right test in deciding whether to
grant leave to appeal is a question of law, so that correctness is the proper
review standard.
[30]
In Canada (Minister of Human Resources Development) v.
Hogervorst, 2006 FC 401, Justice Kelen stated at paragraph 9 that a
decision of a designated member of the Board to extend time and to grant leave
is discretionary. Justice Kelen also concluded that the appropriate standard of
review to assess the decision of a designated member of the Board is
correctness on questions of law, patent unreasonableness on questions of fact,
and reasonableness on questions of mixed fact and law.
[31]
As I characterize the issue under consideration in this case as one of
jurisdiction, I believe it is a question of law which must be reviewed under a
standard of correctness.
ANALYSIS
Considerations for Granting Leave to Appeal to the Board
[32]
As the Plan does not set out any criteria for
determining leave applications under section 83, the Court must rely on the
relevant jurisprudence for guidance. In Callihoo v. Canada (Attorney
General) (2000), 190 F.T.R. 114, Justice MacKay stated at paragraph 15:
On the basis of this recent
jurisprudence, in my view the review of a decision concerning an application
for leave to appeal to the PAB involves two issues,
1. whether the decision maker
has applied the right test - that is, whether the application raises an
arguable case without otherwise assessing the merits of the application, and
2. whether the decision maker
has erred in law or in appreciation of the facts in determining whether an
arguable case is raised. If new evidence is adduced with the application, if
the application raises an issue of law or of relevant significant facts not
appropriately considered by the Review Tribunal in its decision, an arguable
issue is raised for consideration and it warrants the grant of leave.
[33]
This approach has been followed in subsequent cases; most recently in Lewis.
[34]
In the case before me, there are no reasons given for the Decision.
While subsection 83(3) of the Plan requires that “[w]here leave to appeal is
refused, written reasons must be given by the person who refused the leave,” no
such requirement is found in the Plan for providing written reasons when leave
is granted.
[35]
That being said, since the standard of review is one of correctness
where no judicial deference is required, it is my view that the Court can
simply determine whether the Board was correct to grant leave.
[36]
It is the contention of the Applicant that there is, in fact, no
arguable case to be made because there is no jurisdiction for the Review
Tribunal or the Board to consider the application on its merits. This creates a
situation similar to that found in Canada (Minister of Human Resources
Development) v. Fleming (2004), 325 N.R. 305, 2004 FCA 288, where the
Review Tribunal refused to grant an appeal on the ground that it was bound by
the decision in an earlier application on account of res judicata. Res
judicata also bound the Board, so that the Federal Court of Appeal found
that the Board erred in law in granting leave to appeal, since the appeal was
bound to fail.
Lack of Jurisdiction of the Board and the Review Tribunal
[37]
Subsection 83(1) of the Plan provides that a
party dissatisfied with a decision of the Review Tribunal made under section 82
of the Plan, may apply in writing to the Board for leave to appeal the Decision.
[38]
Sub-sections 82(1) and 82(11) of the Plan set out the
jurisdiction of the Review Tribunal to hear appeals from decisions of the
Minister that are made pursuant to section 81 or subsection 84(2) of the
Plan.
[39]
Subsection 84(2) deals with the ability of the Minister, the Review
Tribunal or the Board to rescind orders based on new facts. This section does
not apply in this case. Section 81 deals with the appeals that are made to the
Minister under sections 55, 55.1, 55.2, 55.3, 60, 65.1 and 70.1 of the Plan.
[40]
The Review Tribunal concluded that it lacked jurisdiction to
consider the appeal in this case because it was an appeal of a decision of the
Minister that was not made under any of the above-mentioned sections of the Plan.
Rather, this decision was made under subsection 66(4) of the Plan, which allows
the Minister to take such remedial action as the Minister
deems appropriate in situations where the Minister is satisfied that a person
has been denied a benefit due to an administrative error on the part of the
department or as the result of erroneous advice.
[41]
Besides the basic rules of statutory
interpretation, the decision in Pincombe v. Canada (Attorney General) (1995), 189 N.R. 197
is also of assistance in the present case. In Pincombe, the
Federal Court of Appeal concluded at paragraph 5 that the Board was correct in
setting aside the decision of the Review Committee (now Review Tribunal) and
restoring the Minister's decision, on the ground that neither the Committee nor
the Board had jurisdiction to entertain appeals from the Minister's decision
under subsection 65(4) (now 66(4)), or to interfere with the discretion the
Minister has exercised under that subsection.
[42]
The Federal Court went on to state in Pincombe at
paragraph 5 that, since no right of appeal for decisions made pursuant to
subsection 65(4) (now 66(4)) was provided in sections 81 to 86 of the Plan, a
right of appeal could not be created as it is well settled that such a right
must be expressly given by statute. This approach was later followed by
the Federal Court of Appeal in Canada (Minister of Human Resources
Development) v. Tucker (2003), 308 N.R. 189, 2003 FCA 278.
[43]
It should be noted, however, that the Federal Court of Appeal in Pincombe
at paragraph 6 did allow that such a decision of the Minister would not be entirely
immune from review; such a review would take the form of judicial review
pursuant to section 18.1 of the Federal Court Act.
[44]
Based on the above, I must conclude that the designated member of
the Board did commit a reviewable error by granting leave to appeal the
decision of the Review Tribunal. Since neither the Review Tribunal nor the
Board has jurisdiction to entertain an appeal of a decision of the Minister
under subsection 66(4), there is no possibility for the Respondent to have
presented an arguable case to be granted leave to appeal.
[45]
Having looked at the legalities of this matter, and having heard
from Mr. Dale himself at the hearing, the Court recognizes the intensely human
and compassionate considerations that lie behind these proceedings. Strictly
speaking, of course, they are not matters that the Court can address in an
application that raises only narrow jurisdictional points of law. All the Court
can do is to wish Mr. Dale well in his endeavours and to trust that those who
deal with him under the Plan do so in the spirit of fairness and compassion
that his situation requires. This is not to suggest that he has not been so
dealt with to date; there is no evidence before me in this regard. But Mr. Dale
strikes me as a most honourable individual, genuinely concerned to support
those who supported him in his time of need, and deserving of any assistance in
this regard that the Plan allows him.
ORDER
THIS COURT
ORDERS THAT:
- The Application is
allowed and the Decision of the Honourable K.C. Binks of the Pension
Appeals Board granting the Respondent leave to appeal the decision of the
Review Tribunal that denied the Respondent’s application to review the
decision of the Minister under subsection 66(4) of the Plan is quashed and
set aside.
“James
Russell”
Judge
Schedule A
|
66. (4) Where the Minister is satisfied that, as a
result of erroneous advice or administrative error in the administration of
this Act, any person has been denied
(a) a
benefit, or portion thereof, to which that person would have been entitled
under this Act,
(b) a
division of unadjusted pensionable earnings under section 55 or 55.1, or
(c) an
assignment of a retirement pension under section 65.1,
the
Minister shall take such remedial action as the Minister considers
appropriate to place the person in the position that the person would be in
under this Act had the erroneous advice not been given or the administrative
error not been made
…
81. (1) Where
(a) a
spouse, former spouse, common-law partner, former common-law partner or
estate is dissatisfied with any decision made under section 55, 55.1, 55.2 or
55.3,
(b) an
applicant is dissatisfied with any decision made under section 60,
(c) a
beneficiary is dissatisfied with any determination as to the amount of a
benefit payable to the beneficiary or as to the beneficiary’s eligibility to
receive a benefit,
(d) a
beneficiary or the beneficiary’s spouse or common-law partner is dissatisfied
with any decision made under section 65.1, or
(e) a
person who made a request under section 70.1, a child of that person or, in
relation to that child, a person or agency referred to in section 75 is
dissatisfied with any decision made under section 70.1,
the
dissatisfied party or, subject to the regulations, any person on behalf
thereof may, within ninety days after the day on which the dissatisfied party
was notified in the prescribed manner of the decision or determination, or
within such longer period as the Minister may either before or after the
expiration of those ninety days allow, make a request to the Minister in the
prescribed form and manner for a reconsideration of that decision or
determination.
(2)
The Minister shall forthwith reconsider any decision or determination
referred to in subsection (1) and may confirm or vary it, and may approve
payment of a benefit, determine the amount of a benefit or determine that no
benefit is payable, and shall thereupon in writing notify the party who made
the request under subsection (1) of the Minister’s decision and of the
reasons therefor.
82. (1) A party who is dissatisfied with a
decision of the Minister made under section 81 or subsection 84(2), or a
person who is dissatisfied with a decision of the Minister made under
subsection 27.1(2) of the Old Age Security Act, or, subject to the
regulations, any person on their behalf, may appeal the decision to a Review
Tribunal in writing within 90 days, or any longer period that the
Commissioner of Review Tribunals may, either before or after the expiration
of those 90 days, allow, after the day on which the party was notified in the
prescribed manner of the decision or the person was notified in writing of
the Minister’s decision and of the reasons for it.
[…]
(11)
A Review Tribunal may confirm or vary a decision of the Minister made under
section 81 or subsection 84(2) or under subsection 27.1(2) of the Old Age
Security Act and may take any action in relation to any of those
decisions that might have been taken by the Minister under that section or
either of those subsections, and the Commissioner of Review Tribunals shall
thereupon notify the Minister and the other parties to the appeal of the
Review Tribunal’s decision and of the reasons for its decision.
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.
[…]
(11) The Pension Appeals Board may confirm or vary a
decision of a Review Tribunal under section 82 or subsection 84(2) and may
take any action in relation thereto that might have been taken by the Review
Tribunal under section 82 or subsection 84(2), and shall thereupon notify in
writing the parties to the appeal of its decision and of its reasons
therefor.
84. (2) The Minister, a Review Tribunal or the
Pension Appeals Board may, notwithstanding subsection (1), on new facts,
rescind or amend a decision under this Act given by him, the Tribunal or the
Board, as the case may be.
|
66. (4)
Dans le cas où le ministre est convaincu qu’un avis erroné ou une erreur
administrative survenus dans le cadre de l’application de la présente loi a
eu pour résultat que soit refusé à cette personne, selon le cas :
a) en tout ou en partie, une
prestation à laquelle elle aurait eu droit en vertu de la présente loi,
b) le partage des gains non ajustés
ouvrant droit à pension en application de l’article 55 ou 55.1,
c) la cession d’une pension de
retraite conformément à l’article 65.1,
le ministre prend les mesures correctives qu’il estime indiquées
pour placer la personne en question dans la situation où cette dernière se
retrouverait sous l’autorité de la présente loi s’il n’y avait pas eu avis
erroné ou erreur administrative.
…
81. (1)
Dans les cas où :
a) un époux ou conjoint de fait, un
ex-époux ou ancien conjoint de fait ou leurs ayants droit ne sont pas
satisfaits d’une décision rendue en application de l’article 55, 55.1, 55.2
ou 55.3,
b) un requérant n’est pas satisfait
d’une décision rendue en application de l’article 60,
c) un bénéficiaire n’est pas satisfait
d’un arrêt concernant le montant d’une prestation qui lui est payable ou son
admissibilité à recevoir une telle prestation,
d) un bénéficiaire ou son époux ou
conjoint de fait n’est pas satisfait d’une décision rendue en application de
l’article 65.1,
e) la personne qui a présenté une
demande en application de l'article 70.1, l'enfant de celle-ci ou,
relativement à cet enfant, la personne ou l'organisme visé à l'article 75
n'est pas satisfait de la décision rendue au titre de l'article 70.1,
ceux-ci
peuvent, ou, sous réserve des règlements, quiconque de leur part, peut, dans
les quatre-vingt-dix jours suivant le jour où ils sont, de la manière
prescrite, avisés de la décision ou de l’arrêt, ou dans tel délai plus long
qu’autorise le ministre avant ou après l’expiration de ces quatre-vingt-dix
jours, demander par écrit à celui-ci, selon les modalités prescrites, de
réviser la décision ou l’arrêt.
(2) Le ministre reconsidère sur-le-champ toute décision ou tout
arrêt visé au paragraphe (1) et il peut confirmer ou modifier cette décision
ou arrêt; il peut approuver le paiement d’une prestation et en fixer le
montant, de même qu’il peut arrêter qu’aucune prestation n’est payable et il
doit dès lors aviser par écrit de sa décision motivée la personne qui a présenté
la demande en vertu du paragraphe (1).
82. (1)
La personne qui se croit lésée par une décision du ministre rendue en
application de l’article 81 ou du paragraphe 84(2) ou celle qui se croit
lésée par une décision du ministre rendue en application du paragraphe
27.1(2) de la Loi sur la sécurité de la vieillesse ou, sous réserve
des règlements, quiconque de sa part, peut interjeter appel par écrit auprès
d’un tribunal de révision de la décision du ministre soit dans les
quatre-vingt-dix jours suivant le jour où la première personne est, de la
manière prescrite, avisée de cette décision, ou, selon le cas, suivant le
jour où le ministre notifie à la deuxième personne sa décision et ses motifs,
soit dans le délai plus long autorisé par le commissaire des tribunaux de
révision avant ou après l’expiration des quatre-vingt-dix jours.
[…]
(11) Un tribunal de révision peut confirmer ou modifier une
décision du ministre prise en vertu de l’article 81 ou du paragraphe 84(2) ou
en vertu du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse
et il peut, à cet égard, prendre toute mesure que le ministre aurait pu
prendre en application de ces dispositions; le commissaire des tribunaux de
révision doit aussitôt donner un avis écrit de la décision du tribunal et des
motifs la justifiant au ministre ainsi qu’aux parties à l’appel.
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.
(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.
[…]
(11) La Commission d’appel des pensions peut confirmer ou modifier
une décision d’un tribunal de révision prise en vertu de l’article 82 ou du
paragraphe 84(2) et elle peut, à cet égard, prendre toute mesure que le
tribunal de révision aurait pu prendre en application de ces dispositions et
en outre, elle doit aussitôt donner un avis écrit de sa décision et des
motifs la justifiant à toutes les parties à cet appel.
84. (2) Indépendamment du paragraphe (1), le ministre, un tribunal de
révision ou la Commission d’appel des pensions peut, en se fondant sur des
faits nouveaux, annuler ou modifier une décision qu’il a lui-même rendue ou
qu’elle a elle-même rendue conformément à la présente loi.
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