Date: 20100301
Docket: T-50-08
Citation: 2010 FC 236
Ottawa, Ontario, March 1,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
DONALD MACTAVISH,
BY HIS ESTATE TRUSTEE
ALEXANDRA MACTAVISH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Mr.
Donald MacTavish was seriously injured in a car accident in May 1997. Damage to
his spine was temporarily alleviated through surgery but, by the spring of
1998, it was clear that he could not return to work at the Windsor Star.
[2]
In
December 1997, Mr. MacTavish applied to the Minister for disability benefits
under the Canada Pension Plan (CPP). A year later, he was turned down. The
Minister found Mr. MacTavish ineligible because he could still perform light
work. Mr. MacTavish provided further information, but was turned down again in
October 1999 for the same reason.
[3]
Over
the years, Mr. MacTavish’s condition worsened considerably. He thought about
making a fresh application for benefits, but never did. However, in the spring
of 2007, he asked for a reconsideration of his application and supplied further
medical evidence. Before he received an answer, Mr. MacTavish died. A negative
decision on his request for reconsideration arrived in July 2007. Mr.
MacTavish’s widow, Alexandra, then took up the matter. She asked again for a
reconsideration and filed more evidence. The Minister’s delegate rendered
another negative decision on December 12, 2007, on the ground that the request
for reconsideration was made well past the usual 90-day statutory time limit
and there was no justification for extending it in the circumstances. It is
that decision that is the subject of this application for judicial review.
[4]
As
Mr. MacTavish’s estate trustee, Mrs. MacTavish asks me to overturn the decision
refusing to extend the time-frame for reconsidering the denial of benefits.
However, I can find no basis for doing so and must, therefore, dismiss this
application for judicial review.
[5]
The
sole question before me is whether the refusal to reconsider was reasonable.
II. Analysis
1. The
decision
[6]
The
decision refusing to extend the time period for reconsideration was made by a
delegate of the Minister of Human Resources and Social Development. She found
that there were no exceptional or extenuating circumstances preventing Mr.
MacTavish from making a timely request for reconsideration. Similarly, there
was no evidence that Mr. MacTavish had an ongoing intention to seek
reconsideration of his benefits claim. He had been given information about how
and when to do so, but did not act until 8 years after the original decision.
He was also told about the alternate recourse available to him – to apply for a
review based on new facts – which is a remedy Mrs. MacTavish is pursuing in parallel
with this application.
2. Was the
decision reasonable?
[7]
The
parties agree that there are four general factors that are relevant to a
decision whether to extend the normal 90-day period:
(i) Was there a
continuing intention to pursue the reconsideration?
(ii) Does the
applicant have an arguable case?
(iii) Is there a
reasonable explanation for the delay?
(iv) Would the Minister be
prejudiced by the extension?
[8]
The
parties also agree that the overarching purpose that these factors are meant to
serve is to ensure that justice is done between the parties (Canada (Attorney
General)
v. Blondahl, 2009 FC 118). Accordingly, the factors must be applied
flexibly. It may not be necessary to analyze all of them in a given case.
[9]
Mrs.
MacTavish argues that the delegate failed to mention that the case supporting
her late husband’s claim was more than arguable – it was virtually conclusive.
Further, the delegate did not point to any prejudice that would be caused to
the Minister by extending the time for reconsidering Mr. MacTavish’s claim. In
addition, while Mr. MacTavish did not request a reconsideration between 1999
and 2007, he was obviously still interested in trying to persuade officials to
grant his claim. He inquired about submitting a fresh application and continued
to compile medical evidence in support of it. Finally, Mrs. MacTavish urges me
to note that her late husband was dealing with serious, ongoing health issues
during the years after his accident. He was taking a variety of powerful pain
medications. He was not in a condition to focus on realizing the CPP benefits
he was due.
[10]
I
cannot find the delegate’s decision unreasonable. I accept that Mr. MacTavish
was in poor health and great pain for many years. However, as the delegate
noted, this does not, in itself, suggest that he was unable to make a timely
request for reconsideration. He may well have been planning to try again to
obtain a positive decision, but it appears he was contemplating either a fresh
application or a review based on new facts, or possibly both, not necessarily a
request for reconsideration.
[11]
True,
the delegate does not make any reference to the merits of Mr. MacTavish’s
claim. But her failure to do so does not in itself render her decision
unreasonable, particularly given the force of her conclusions on the other
factors.
[12]
It
is also true that the delegate does not refer specifically refer to any prejudice
to the Minister. Again, this in itself does not make her decision unreasonable.
An eight-year delay, on its face, can be assumed to be prejudicial. Further, it
is for the applicant to show an absence of prejudice, which has not been done
here.
III. Conclusion and Disposition
[13]
Overall,
therefore, I cannot conclude that the delegate’s decision was unreasonable and
I must dismiss this application for judicial review.
JUDGMENT
THIS COURT’S JUDGMENT IS
that :
1. The style of
cause in the notice of application in Court File Number T-50-08 is amended by
substituting the Attorney General of Canada in place of the Minister of Human
Resources and Social Development as the respondent.
2. The
application for judicial review is dismissed.
“James
W. O’Reilly”