Date: 20050408
Docket: T-1685-04
Citation: 2005 FC 469
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
HELENA PENNA
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons follow the hearing of an application for judicial review of a decision of a member of the Pension Appeals Board (the "Board") designated under subsection 83(2.1) of the Canada Pension Plan (the "Plan"), dated the 27th of July, 2004, whereby the designated member granted the Applicant leave to appeal to the Board approximately 45 months after the time limit for doing so had elapsed. The Respondent filed no material on the application for judicial review and was not represented or present at the hearing.
[2] At the close of the hearing, I advised counsel for the Applicant (the "Minister") that the application for judicial review would be granted. These brief reasons are in support of that result.
[3] Ms. Penna applied for Disability Benefits under the Plan in November of 1998. Her application was denied and, upon reconsideration, the denial was confirmed.
[4] Ms. Penna appealed the decision to deny her disability benefits to the Office of the Commissioner of Canada Pension Plan Review Tribunals. A Review Tribunal was convened on the 15th of December, 1999. The Review Tribunal dismissed Ms. Penna's appeal in a decision issued the 2nd of March, 2000.
[5] Slightly more than 4 years later, Ms. Penna sought leave to appeal to the Board from the decision of the 2nd of March, 2000. Ms. Penna's application for leave was supported by extensive documentation but no application for an extension of time to seek leave was included.
[6] The decision under review consists only of what appears to be the impression of a rubber stamp with the words "Leave to appeal to the Pension Appeals Board is hereby granted...." with space for a date and signature. No reference is made in the decision to a grant of an extension of time to file.
[7] Subsection 83(1) of the Plan reads as follows:
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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. [emphasis added]
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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. [je souligne]
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[8] Rule 5 of the Rules of Procedure of the Pension Appeals Board for Appeals under Section 83 of the Canada Pension Plan, read in conjunction with Rule 4 of the same Rules, provides that an application for an extension of time within which to apply for leave to appeal a decision of a Review Tribunal shall set out the date of the decision of the Review Tribunal, the place at which the Tribunal's decision was rendered, the date on which the decision was communicated to the appellant, the full name and postal address of the appellant, the name and address of any agent or representative of the appellant on whom service of documents may be made, the grounds upon which the appellant relies to obtain leave to appeal, a statement of the appellant's allegations of fact, reference to any statutory provisions relied on and, reasons the appellant intends to submit and documentary evidence the appellant intends to rely on in support of the appeal. The application should also set out the grounds on which the extension of time is sought.
[9] On the application for judicial review, counsel for the Minister urged that the designated member of the Board acted without jurisdiction by granting leave to appeal a decision outside the 90 day period for seeking leave when no application for an extension of time to file had been either made or granted.
[10] I am satisfied that the designated member erred in law, exceeded his jurisdiction or failed to exercise his jurisdiction in granting leave to appeal where no application for an extension of time to seek leave, fully complying with the appropriate Rules had been filed, and no extension of time to file the application for leave had been granted. The decision under review was made without notice to the Minister and thus the Minister could not, at an earlier time, have made representations to the designated member regarding the issue of an extension of time being a condition precedent to the granting of leave.
[11] In the result, this application for judicial review will be allowed. The decision under review will be set aside and the matter will be referred back to the Board for redetermination in the light of these reasons.
[12] Ms. Penna, acting on her own behalf, was at a substantial disadvantage in seeking leave to appeal to the Board. Without professional advice, she had no reason to understand that an application for an extension of time to seek leave was required of her and, even if she had been aware of that requirement, it is doubtful that she would have understood all of the elements required to be addressed in any such application. In the circumstances, the Court urges her to forthwith contact the Pension Appeals Board through its toll free number, 1-888-640-8001, to obtain assistance if indeed she wishes to continue to pursue this matter. In particular, she should seek assistance in ensuring that any application for an extension of time to seek leave to appeal to the Pension Appeals Board is full and complete so that, if and when her application for leave is reconsidered in accordance with this Court's Order, her application for an extension of time can also be fully and appropriately considered.
J.F.C.
Ottawa, Ontario
April 8, 2005
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1685-04
STYLE OF CAUSE: MINISTER HUMAN RESOURCES DEVELOPMENT
v. HELENA PENNA
PLACE OF HEARING: TORONTO
DATE OF HEARING: Monday April 4, 2005
REASONS FOR ORDER: Mr. Justice Frederick E. Gibson
DATED: April 8, 2005
APPEARANCES:
Mr. Bahaa Sunallah FOR PLAINTIFF / APPLICANT
FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Mr. Bahaa Sunallah
Department of Justice
Ottawa, Ontario FOR PLAINTIFF/APPLICANT
Self-Represented FOR DEFENDANT/ RESPONDENT
C.R.C. 1978, c. 390, as amended.
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