Date: 20030213
Docket: 03-T-8
Neutral Citation: 2003 FCT 162
OTTAWA, ONTARIO, this 13th day of February 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
AVTAR DHALIWAL and
KULWANT DHALIWAL
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
Relief Sought
[1] This is an application for an extension of time to file an application for judicial review regarding a decision rendered November 20, 2000 by a Review Tribunal ("Review Tribunal") constituted under section 82 of the Canada Pension Plan, R.S.C. 1985, c. C-8. The decision of the Review Tribunal was in response to an appeal by the Applicants under subsection 28(1) of the Old Age Security Act, R.S.C. 1985, c. O-9.
[2] By Order of Strayer J.A. dated February 10, 2003 this proceeding, originally commenced in the Appeal Division of the Federal Court of Canada, was transferred to the Trial Division in accordance with rule 49 of the Federal Court Rules, 1998.
The Applicants' Narrative
[3] The Applicants, who are in their late seventies, and one of whom suffers from a serious medical problem, applied for Partial Old Age Pension under the Old Age Security Act in February of 1999.
[4] After a lengthy, tortuous, and, at times contradictory correspondence with various officials, the Applicants were finally informed by letter dated August 6, 2002 from Tina Head, Senior Counsel for the Office of the Commissioner of Review Tribunals, that the decision of the Review Tribunal dated November 20, 2000 was to stand and that "there is nothing that our office can do to change the situation." The decision of the Review Tribunal had concluded, inter alia, that the Applicants "have not satisfied the onus on them to prove on a balance of probabilities that they are residents of Canada for purposes of subparagraph 3(1)(b)(iii) of the [Old Age Security] Act."
[5] The letter of August 6, 2002 from Tina Head referred to earlier correspondence to the Applicants that was "confusing" and "wrong" on entitlement issues. The letter also apologized to the Applicants for adding to "what is already a complicated matter" and suggested that the Applicants might "wish to bring our delay to the attention of the Federal Court in support of a request to extend the time to apply for judicial review of the Review Tribunal's decision."
Applicants' Submission and Grounds
[6] The Applicants' submission for an extension of time to apply to the Federal Court for judicial review of the decision of the Review Tribunal dated November 20, 2000 is based upon the submission that the Applicants satisfy the legal grounds for such an extension as articulated by Strayer, J.A. in Nelson v. Edmonton Institution, [1996] F.C.J. No. 1492.
Respondent's Position
[7] The Respondent points out that various decisions are referred to by the Applicants in this application in addition to the decision of the Review Tribunal of November 20, 2000 that is under consideration, and requests the Court to consider only the evidence relating to the Review Tribunal decision. However, as the Respondent also points out, the other decisions in question do "relate to the effects of the Decision under question ..."
[8] An example of what the Respondent means occurs in a letter dated December 4, 2000 from Human Resources Development Canada to Mr. Avtar Singh Dhaliwal, one of the Applicants, in which the Review Tribunal decision of November 20, 2000 is referred to as the basis for not approving the Old Age Security benefit. Mr. Avtar Singh Dhaliwal is told in the same letter that if he is dissatisfied with the decision dealing with the Old Age Security benefit he can request a reconsideration within 90 days of receipt of the letter provided his request is made in writing and he clearly states the reasons and submits any relevant documentation not already submitted.
[9] It is easy to see from the correspondence that the Applicants, who were not represented by legal counsel and who relied upon procedural advise offered by officials in the various departments they were dealing with, could have become confused about the avenues available to them for having the various decisions reconsidered and reviewed, even though the Respondent is correct that the only decision that is the subject matter in this application is the decision of the Review Tribunal of November 20, 2000.
[10] The Respondent cites the decision in Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (C.A.) and provides a slightly different characterization from the Applicants on the grounds that need to be established by the Applicants on this application. The Respondent says that the Applicants must show "a continuing intention to apply to the Court, a reasonable explanation for the delay, a reasonable case for success of a judicial review, and no prejudice to the respondent." The Respondent takes the position that the Applicants have not satisfied these criteria.
Discussion
[11] Subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7 provides that:
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An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
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Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.
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[12] The decision in Grewal, supra, and its progeny establish that the underlying consideration in an application to extend time is to ensure that justice is done between the parties and that primary regard should be had to the reasons for the delay and whether there is an arguable case for setting aside the decision.
[13] The factors normally considered are set out in Independent Contractors & Business Association v. Canada (Minister of Labour) (1998), 225 N.R. 19 and include: a) an intention formulated within the time limit to take proceedings; b) the existence of an arguable case; c) the cause and actual length of the delay; and d) whether there was prejudice cased by the delay.
[14] In the present case, the Respondent is correct to point out that the Applicants were told on several occasions that the decision of the Review Tribunal was binding and could not be considered except in judicial review to the Federal Court of Canada. These notifications, however, cannot be looked at in isolation and the correspondence as a whole suggests that various decisions made in relation to the Applicants were conflated in the Applicants' minds because, as the Respondent points out, "they relate to the effects of the Decision under question ...." Hence, it is very difficult to separate the confusing and, at times, contradictory advice received by the Applicants on other decisions from the decision that is the subject matter of this application.
[15] The fact that Tina Head, Senior Counsel for the Office of the Commissioner of the Review Tribunals, in her letter of August 6, 2002 to the Applicants, felt compelled to apologize to the Applicants for the confusion and the delays in responding to the Applicants and to suggest that the Applicants might "wish to bring our delay to the attention of the Federal Court in support of a request to extend the time to apply for judicial review of the Review Tribunal's decision," and that she said she was "truly sorry that we have added to what is already a complicated matter," goes a long way to acknowledging the convoluted and confusing process that the Applicants experienced.
[16] Hence, I am convinced that justice between the parties, and the reasons for the delay and the prejudice issues, are all in the Applicants' favour.
[17] More problematic is whether the Applicants have demonstrated an arguable case for setting aside the decision of the Review Tribunal.
[18] In relation to this issue counsel for the Applicants merely asserts that the Review Tribunal erred in law because it "misapplied the test as per the relevant legislation of Old Age Security Act on the definition of residence [sic]" and that it made "erroneous findings of fact based upon irrelevant considerations."
[19] The gist of the Applicants' argument is that the Review Tribunal should have found that the Applicants satisfied the residency requirement under the Old Age Security Act based upon the evidence presented to it. All this amounts to, as the Respondent points out, is that the Applicants believe the Review Tribunal was incorrect in reaching its decision. The Applicants provide no real grounds as to why the Review Tribunal, in making its decision, committed a reviewable error. Mere disagreement with that decision is not enough. Hence, I find that the Applicants have not adduced sufficient grounds to show that, if this application is granted, they have an arguable case to take to the Federal Court for judicial review.
ORDER
THE COURT HEREBY ORDERS THAT: the application for an extension of time is dismissed.
"James Russell"
J.F.C.C.
Ottawa, Ontario
February 13, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 03-T-8
STYLE OF CAUSE: Avtar Dhaliwal et al. v. Attorney General of Canada
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF the Honourable Mr. Justice Russell
DATED: February 13, 2003
WRITTEN SUBMISSIONS OF:
Satnam S. Aujla FOR APPLICANTS
Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Yanko Merchant Law Group FOR APPLICANTS
Calgary, Alberta
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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