Date: 20100615
Docket: T-1888-08
Citation: 2010 FC 641
Ottawa, Ontario, June 15, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
LOUISE
LEBLANC
Applicant
and
MINISTER OF HUMAN RESOURCES
AND SKILLS DEVELOPMENT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application for judicial review of a decision of a designated member of
the Pension Appeals Board (the Board) dated October 29, 2008, denying the
applicant’s application for an extension of time and leave to appeal a decision
of the review tribunal of the Canada Pension Plan (CPP), nine months after the
time limitation had elapsed.
[2]
The
applicant requests that this matter be referred back to a differently
constituted panel or member of the Board for redetermination.
Background
[3]
The
applicant had applied for CPP disability benefits several times unsuccessfully,
based on back pain, depression, chronic fatigue and fibromyalgia. In 2006, she
was again denied with the Minister represented by CPP officials, noting that
her limitations were not severe enough to prevent her from employment. A review
tribunal convened in April 2007 to hear the applicant’s appeal. The review
tribunal reviewed the medical evidence as well as the applicant’s own evidence
before concluding that the applicant was not disabled within the meaning of the
CPP. The decision and reasons were issued to the applicant on June 14, 2007.
[4]
Pursuant
to subsection 83(1) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the
Act), the applicant had 90 days or until September 12, 2007, to appeal the
review tribunal’s decision to the Board. On July 20, 2007, the Registrar for the Board
received a letter indicating the applicant’s desire to pursue an appeal. The Registrar
then notified the applicant’s representative of the requirements for a leave
application in a letter dated August 2, 2007. Nothing was heard from the
applicant or her representative until July 10, 2008.
[5]
Now,
nine months beyond the limitation to request leave to appeal, the Registrar
informed the applicant’s representative that he would need to make a separate
request for an extension of time in which to request leave. The applicant’s
representative explained that the delay was caused by his falling ill, but the
Registrar informed him that under Rule 5 of the Board rules of procedure, a
request for an extension of time must be made that fulfills the four criteria
set out by this Court in Canada (Minister of Human Resources Development) v.Gattellaro, 2005 FC
883, [2005] F.C.J. No. 1106 at paragraph 9:
1. A continuing intention to pursue the
application or appeal;
2. The matter discloses an arguable case;
3. There is a reasonable explanation for
the delay; and
4. There is no prejudice to the other
party in allowing the extension.
[6]
On
August 21, 2008 the applicant’s representative responded and addressed the four
Gattellaro criteria. In his decision denying the request for an
extension of time, the designated member of the Board concluded that although
the applicant had demonstrated a continuing intension to appeal and a
reasonable explanation for the delay (criteria 1 and 3), an arguable case had
not been demonstrated. In
addition, the Board was not satisfied that granting the extension would not
prejudice the Minister.
Issue
[7]
The
issue is as follows :
Was the decision of the designated
member reasonable?
Applicant’s Written Submissions
[8]
The
Board’s finding that the matter did not raise an arguable case was
unreasonable. The
applicant had submitted several new medical documents in support of her
application for leave. The documents indicated a deterioration in the
applicant’s conditions. The applicant should only have to show that there is an
argument to be made, not that it would meet with success.
[9]
The
Board based its conclusion that there may be prejudice to the Minister on the
grounds that the memory of witnesses may be diminished after nine months and
the desirability of finality in the proceedings under the CPP. The applicant
asserts that evaluating witness memory is within the discretion of the Board
and should not have been considered in the extension application. Further, the applicant
submits that nine months is not an inordinate amount of time. Besides, the only
witnesses would be the applicant and medical professionals who can refresh
their memory through their notes.
Respondent’s Written Submissions
[10]
There
are no statutory limitations on the scope of discretion conferred on the chair,
vice-chair or designated member of the Board to grant an extension of time. The
conclusion of the Board was reasonable on the evidence before the designated
member says the respondent.
[11]
There
was no arguable case raised. An arguable case requires that some chance of success at law
be established by either raising an issue of law or by raising relevant
significant facts. An arguable case in the context of an application for
disability benefits requires a decision maker to consider the legal criteria
for disability under paragraph 42(2)(a) of the Act. This section requires
the applicant to establish a condition that is both severe and prolonged,
expressed in terms of capacity to work at any substantially gainful employment.
This requires medicial evidence as well as evidence of employment efforts. The medical reports
submitted by the applicant did not address the applicant’s state at the
relevant date of December 2004, nor did they address any treatment or
employment efforts. It was within the designated member’s broad discretion to
conclude that the applicant had not raised an arguable case.
[12]
Prejudice
to the Minister was a relevant factor to consider. Witnesses’ loss of
memory and power of recollection are factors that prejudice. Moreover, the
interests of finality and certainty of decisions of the Board are other
relevant factors. There was no reviewable error in the Board concluding that
prejudice to the Minister could ensue.
Analysis and Decision
Legislative Framework
[13]
The
90 day time limit within which appeals to the Board must be made is
encapsulated in subsection 83(1) of the Act.
[14]
The
Pension Appeals Board Rules of Procedure (Benefits), C.R.C., c. 390 (the
PAB Rules of Procedure) explain the documentation required for both seeking
leave to appeal and seeking an extension of time to seek leave:
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.
Standard of Review
[15]
This
Court has previously ruled and the parties agree, that the appropriate standard
of review for a decision of a designated member of the Board regarding a
request for an extension of time is reasonableness (see Handa v. Canada
(Attorney General), 2008 FCA 223, [2008] F.C.J. No. 1137 at paragraphs 10
to 12).
[16]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
[2008] S.C.J. No. 9 (QL) at paragraph 47, the Supreme Court of Canada explained
the reasonableness standard is concerned mostly with the existence of
justification, transparency and intelligibility in the decision making process,
but is also concerned with whether the decision falls within the range of
possible, acceptable outcomes.
Nature of the Decision
[17]
There
are no statutory limitations on the scope of discretion conferred on the chair,
vice-chair or designated member of the Board by subsection 83(1) of the Act, to
grant an extension of time (see Handa above, at paragraph 11).
[18]
In Gattellaro
above, at paragraph 4, Madam Justice Snider explained that a decision under
subsection 83(1) is highly discretionary. At paragraph 7, she also
held:
7 The intent of Parliament as
expressed in s. 83(1) of the CPP is to limit the time period for extending the
appeal period to 90 days. While a designated member may extend the time period
beyond 90 days, it must be presumed that an extension of time is not a matter
of right….
[19]
Despite
the highly discretionary nature of this decision which confers a benefit and
does not determine a right, the jurisprudence has imposed the following list of
criteria which must be considered and weighed:
1. A continuing intention to pursue the
application or appeal;
2. The matter discloses an arguable case;
3. There is a reasonable explanation for
the delay; and
4. There is no prejudice to the other
party in allowing the extension.
[Gattellaro
above, at paragraph 9]
[20] The Gattellaro
factors are mandatory considerations to ensure decision makers do not exercise
the discretion in an arbitrary or capricious way. The factors, however, do not
constitute a legal test conferring a right to an extension for some. A decision
maker need only consider the factors before coming to his or her own
conclusion. In some cases, a decision maker may determine that one factor, or
even an additional factor, outweigh all others. That would be within the
decision maker’s discretion.
[21] The jurisprudence of
this Court has come to regard the Gattellaro above factors as a legal
test which must be met by any applicant seeking an extension (see
Belo-Alves v. Canada (Minister of Social Development), 2009 FC 413,
[2009] F.C.J. No. 523 (QL) and Canada v. Small, 2007 FC 678, [2007]
F.C.J. No. 915 (QL) at paragraph 22). I would respectfully disagree. Decisions
under subsection 83(1) take place within the administrative regime, not the
judiciary, and operate under an unqualified statutory grant of discretion (see Handa
above). A legal test would turn an unstructured discretionary decision into a
determination of mixed fact and law, contrary to Parliament’s intention.
[22] Nevertheless, I
acknowledge that the Board has adopted the Gattellaro factors. By
requesting that applications for an extension of time include submissions which
address each factor, the Board undertakes to adjudicate such applications in
accordance with those factors.
[23] In the present case,
when the Board received a proper submission from the applicant, it concluded
that the applicant had failed to demonstrate an arguable case or that prejudice
would not result to the Minister and based its denial on those factors. I now turn to
those factors.
The Existence of an Arguable Case
[24] The Federal
Court of Appeal has held that an arguable case in the context of a request for
an extension of time requires that some reasonable chance of success at law be
established (see Canada (Minister of Human Resources Development) v.
Hogervorst, 2007 FCA 41, [2007] F.C.J. No. 37 (QL) at paragraph 37).
[25] In Callihoo
v. Canada (Attorney General), [2000] F.C.J. No. 612 (QL) at paragraph 22,
Mr. Justice MacKay stated:
In
the absence of significant new or additional evidence not considered by the
Review Tribunal, an application for leave may raise an arguable case where the
leave decision maker finds the application raises a question of an error of
law, measured by a standard of correctness, or an error of significant fact
that is unreasonable or perverse in light of the evidence. The decision maker
here found no such error is raised by the application for leave. That decision
on the leave application does not contain an error that would be a basis for
the Court to intervene.
Thus, one of the ways to establish an arguable
case is to present significant new or additional evidence that was not before
the review tribunal.
[26] There were three new
medical reports before the Pension Appeals Board that were not before the
review tribunal.
[27] In Belo-Alves v. Canada (Minister of Social
Development),
[2009] F.C.J. No. 523, Mr. Justice Campbell stated at paragraph 11:
With
respect to the issue of arguable case, the argument placed before the Board by
Counsel for Ms. Belo-Alves has two components: an evidentiary argument that new
evidence exists within the medical evidence produced by Ms. Belo-Alves
(Affidavit of Kathleen Gates, August 12, 2008, Vol. 1, p. 76, para. 15); and a
legal argument that an improper test for new facts was applied in RT-2
(Affidavit of Kathleen Gates, August 12, 2008, Vol. 1, pp. 77 - 79, paras. 19
-- 26). On the evidentiary point, what more can she say, and what more is
necessary to say to meet this criterion? In my opinion, it is not possible to
evaluate the quality of such evidence on an extension application; I find that
it is enough to show that there is an argument with evidence to substantiate it
to meet this particular factor. This Ms. Belo-Alves did do. With respect to the
legal argument, in my opinion it has a reasonable chance of success. As a
result, I find that the Board's "nothing" evidentiary finding on this
factor is unsupportable.
[28] The report of Dr. W.
J. Reynolds dated April 3, 2008 states in part:
She
had to stop work in 2003 because of her symptom severity (i.e. her degree of
pain and fatigue as well as her difficulties with concentration). She lives in
a one-floor home, but has difficulties doing chores in her home because of her
symptom severity. Her symptoms have gradually intensified over the last few
years.
On
examination, she is a 45-year-old lady whose general assessment was fairly
unremarkable. Blood pressure 140/95. She has mild generalized osteoarthritis
involving the small joints in her hands. All of her tender points were painful.
Grip strength is 30% of normal, consistent with her degree of pain.
I
agree with the diagnosis of fibromyalgia. Ms. Leblanc has had experiences in the
past that may have conditioned her to have more severe and intense symptoms.
She is experiencing a significant severity of symptoms and of course, has a
significant disability.
[29] Dr. Reynolds’ report
of April 21, 2008 states:
Ms.
LeBlanc was seen in consultation on April 3, 2008. She has the disorder of
fibromyalgia and has had this since about 1985. Her pain was precipitated by
work activities and incidents.
She
has characteristic widespread pain and severe myofascial pains particularly
severe with repetitive activities and prolonged postures. She also has the
characteristic nonrestorative sleep pattern seen in this disorder and this
causes significant fatigue and difficulty with concentration. All of her tender
points are painful.
Ms.
LeBlanc has not been able to work since 2003 due to the intensity of her pain
and fatigue and also her difficulty with concentration. She has a significant
disability.
[30] Dr. Reynolds’ report
dated May 17, 2008 stated in part as follows:
As
you know, she has the disorder of fibromyalgia and has had her symptoms of
fibromyalgia since about 1985. Prior to that, she had experienced knee pain
since childhood. She had accidents as a child (i.e. a fall on the ice on one
occasion, striking her head). She has lived with knee pain until it became
widespread in 1985. She has worked since the age of 16 in various capacities,
but had to stop in 2003 because of the increasing intensity of her symptoms,
specifically her degree of pain, her fatigue, and her difficulties with
concentration. She is limited in doing any repetitive activities, and limited
in prolonged sitting and prolonged standing activities.
[31] I am of the view that
this new medical evidence is clearly sufficient to ground an argument that an
arguable case is disclosed. It was unreasonable for the Board to determine that
there was nothing which could demonstrate that there was an arguable case. The
designated member did not give even the most basic explanation for why the new
medical documents submitted did not raise an arguable case.
Prejudice to the Minister
[32] The Board found that
the Minister would be prejudiced in preparing her response to the appeal due to
the passage of nine months. The Board stated that witnesses’ memory would be
diminished and that their power of recollection would decrease. The Board was
also concerned that there be finality to proceedings under the Canada Pension
Plan. I would note that the witnesses in this case will likely be the applicant
and her medical witnesses. In my opinion, a nine month delay would not effect
the applicant’s memory with respect to her medical condition as I believe a
person is quite capable of remembering her medical condition. As to the medical
witnesses, they would have notes and reports on which they could rely. In my
view, the Board’s determination that there was prejudice to the Minister falls
outside the range of possible acceptable outcomes and was unreasonable.
[33] As a result of my
finding, the application for judicial review is allowed and the matter is
referred back to a differently constituted panel or member of the Pension
Appeals Board for redetermination.
[34] The applicant shall
have her costs of the application.
JUDGMENT
[35] IT IS ORDERED that:
1. The application for
judicial review is allowed and the matter is referred back to a differently
constituted panel or member of the Pension Appeals Board for redetermination.
2. The applicant shall have
her costs of the application.
“John A.
O’Keefe”
ANNEX
Relevant Statutory Provisions
Canada Pension Plan, R.S.C. 1985, c. C-8
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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.
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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.
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