Docket: T-780-11
Citation: 2012 FC 52
Ottawa, Ontario, January 16, 2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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BARBARA SARAHAN
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review of a decision of the
Pension Appeal Board (PAB) dated March 29, 2011, which granted the respondent
leave to appeal the decision of the Review Tribunal rendered on November 16,
2010. The dispute concerns benefits conferred under the Canada Pension Plan,
RSC, 1985, c C-8 (CPP).
The Facts
[2]
Ms. Barbara Sarahan (the respondent) was injured in an automobile
accident in 1989 and has suffered from chronic pain ever since. Consequently,
the respondent has not been able to carry on full-time work due to her injuries
and physical limitations.
[3]
The
respondent’s application for CPP disability benefits was denied by the Minister
of Human Resources and Skills Development Canada (the Minister) in a refusal
letter dated August 13, 2008.
[4]
In a letter dated September 3, 2008, the respondent requested a
reconsideration of her application. The reply from the Minister to the
respondent’s reconsideration letter, dated February 4, 2009, also denied the
respondent’s request.
[5]
On February 21, 2009, the respondent drafted a letter seeking to
appeal the Minister’s decision to the Review Tribunal (RT).
[6]
The RT hearing was held on September 23, 2010 in Surrey,
British Columbia, and the respondent was
self-represented. In its decision issued on November 16, 2010, the RT dismissed
the respondent’s appeal and concluded that she had not provided sufficient
evidence demonstrating that her disability was “severe”, as per the terms of
the CPP, at the time of her minimum qualifying period (MQP). In this case, the
respondent’s MQP was found to be December 31, 1996.
[7]
Subsequent to the RT’s decision, the respondent drafted two
letters dated November 20, 2010 and January 20, 2011, respectively.
[8]
On March 29, 2011, a designated member of the PAB granted the
respondent leave to appeal the RT’s decision. The designated member granted the
appeal ex parte. No reasons were given for the appeal and the decision
was not recorded.
[9]
On April 4, 2011, the PAB issued a letter addressed to the
Director, Medical Expertise Division, Human Resources and Skills Development
Canada notifying the parties of the designated
member’s decision to grant leave to appeal to the respondent. Attached to this
letter was the respondent’s “Notice to Appeal” which comprised her letters
dated November 20, 2010 and January 20, 2011.
[10]
The applicant filed an application for judicial review on May 6,
2011.
[11]
It
is noteworthy that the respondent has not filed a Notice of Appearance with the
Court, has provided no written submissions in response to the applicant’s
application for judicial review and has not appeared for the hearing. As well,
the Registry attempted to contact the respondent on numerous occasions but
received no response. It was also confirmed to the Court by the applicant and
the Registry Officer that relevant documents have been filed and served to the
respondent. Consequently, the Court proceeded with the application for judicial
review.
[12]
Following a review of the record and after hearing the
grounds advanced by the applicant, the Court is satisfied that the applicant
has demonstrated good grounds to succeed on this judicial review application.
The Impugned Decision
[13]
The PAB designated member’s decision at issue, dated March 29,
2011, granted the respondent leave to appeal the RT’s decision. The designated
member did not record or provide any reasons in support of its decision.
The Issue
[14]
The issue in this case is whether the Pension Appeal Board erred
in granting leave to appeal to the respondent.
The Legislative Framework
[15]
Several
provisions of the CPP, namely the Canada Pension Plan Regulations, CRC, c 385 (the
Regulations) and the Pension Appeals Board Rules of Procedure
(Benefits),
CRC, c 390 (the
PAB
Rules) are applicable
in the present case. These provisions can be found in the Annex to these
Reasons for Judgment and Judgment.
[16]
By
way of a brief summary, the Supreme Court of Canada provided the following
explanation of the CPP regime in the case of Granovsky v
Canada (Minister of Employment and Immigration), 2000 SCC
28, [2000] 1 S.C.R. 703, at para 9: “The CPP was designed to
provide social insurance for Canadians who experience a loss of earnings owing
to retirement, disability, or the death of a wage-earning spouse or parent. It
is not a social welfare scheme. It is a contributory plan in which Parliament
has defined both the benefits and the terms of entitlement, including the level
and duration of an applicant’s financial contribution.”
[17]
According
to subsection 42(2) of the CPP, a person will only be
considered to be disabled if it is determined that this person has a “severe
and prolonged mental or physical disability”.
The Applicant’s Arguments
[18]
The applicant submits that the PAB erred in granting the
respondent leave to appeal the decision of the RT as it failed to provide
reasons and record the decision. The applicant further alleges that the
respondent did not raise an arguable case, provide any new or additional
evidence or allege any error of law or fact in her “Notice of Appeal” –
effectively her letters of November 20, 2010 and January 20, 2011.
Analysis
[19]
It
is important to note by way of a preliminary observation that the PAB Rules do
not provide for an appeal of the decision to grant leave to appeal. Nevertheless,
in the case of Canada (Attorney General) v Landry, 2008 FC 810, 334 FTR 157, at paras 20 and
21, Justice Blanchard set down the principle that such a decision could be
judicially reviewed in the Federal Court of Canada.
A.
Standard of Review
[20]
The applicant advances that the review of a decision of a
designated member to grant leave to appeal involves two issues: 1) whether the
correct test was applied (that of an arguable case), and 2) whether a legal or
factual error was committed in determining whether an arguable case was raised
(see Callihoo v Canada (Attorney General), [2000] FCJ
No 612, 190 FTR 114, at para 15 [Callihoo];
Mebrahtu v Canada (Attorney General), 2010 FC 920, [2010] FCJ No 1137,
at para 8 [Mebrahtu]; and Canada (Attorney General) v Zakaria, 2011 FC 136, [2011]
FCJ No 189, at para 14 [Zakaria]). The established case law has
held that the issue of whether the designated member applied the proper test in
granting leave is a question of law that is reviewable against the standard of
correctness. The second issue, whether a legal or factual error was committed
in determining whether an arguable case was raised, is reviewable against the
standard of reasonableness. Moreover, with regard to the issue of the duty to
provide a recorded decision with written reasons, this duty raises a question of
procedural fairness that is reviewable on the correctness standard (Canada
(Attorney General) v Graca, 2011 FC 615, [2011] FCJ No 762, at para 11; Canada
(Attorney general) v Blondahl, 2009 FC 118, 362 FTR 1, at para 9).
B. Is a recorded
decision and written reasons required for a grant of leave to appeal where the
application for leave is deficient with respect to the mandatory requirements
set out in Rule 4 of the PAB Rules?
[21]
The Court notes that the issue of the designated member’s duty to
record its decision and its duty to provide written reasons are closely linked.
Thus, the Court will address these issues together.
[22]
The
Court notes that the letter dated April 4, 2011 issued by the PAB notifying the
parties of the designated member’s decision of March 29, 2011 does not
constitute the designated member’s decision. Rather, the letter of April 4,
2011 simply mentions the decision made by an unnamed designated member of the
PAB. The actual decision is not included in the documents pursuant to Rule 318
of the Federal Courts Rules or in the applicant’s submissions.
[23]
As
well, the Court accepts the applicant’s arguments that the respondent’s “Notice
of Appeal” – effectively her letters of November 20, 2010 and January 20, 2011
– do not meet the requirements of Rule 4 of the PAB Rules as no new evidence was adduced with the application nor was any
error of law or of significant fact identified. Essentially, the Court
observes that the respondent’s letter of November 20, 2011 merely restates her
physical discomfort associated with her injuries and mentions her disagreement
with the RT’s decision. The Court notes that no new evidence or documents were
attached to this letter. Moreover, the respondent’s letter of January 20, 2011
relays her frustrations with the process and reaffirms her position that she
has a permanent disability. Again, the Court notes that no new evidence or
documents were included with this letter. The Court also recalls that the RT
initially dismissed the respondent’s claim as it was determined that she had not provided sufficient evidence demonstrating that
her disability was “severe”, as per the terms of subsection 42(2) of the CPP.
[24]
The Court further observes that the applicant has provided a comprehensive
and useful analysis of the applicable legislation and the established case law
on this question. The Court acknowledges that pursuant to subsection 83(3) of
the CPP, a designated member is mandated to provide written reasons where leave
is denied. Nevertheless, the Court agrees with the applicant that the vast
majority of the case law supports the conclusion that the designated member
should have recorded the discretionary decision and provided reasons where the
application for leave to appeal is deficient. Though the applicant provided
reference to numerous pertinent cases, the Court will focus its analysis on a
limited number of them.
[25]
Firstly,
the Court finds that the present situation is similar to the case of Canada
(Attorney General) v Montesano, 2011 FC 398, [2011] FCJ No 510, para 10,
where Justice Hughes concluded that decisions of PAB designated members should
be recorded despite the fact that Rule 7 of the PAB Rules allows for ex
parte decisions. The Court adopts Justice Hughes’ reasoning in the case of Montesano
with respect to the importance of recording decisions:
[10] In the present case, Mr. Montesano
did not even provide the material required by Rule 4, supra, in support
of his application for leave to appeal. If the Board excused him from doing so
this should be made of record. It was not. There is nothing on the record other
than the letter from the Registrar referred to above, to show what the
decision, if any, was to grant leave. There is nothing on the record to show
what, if anything, was considered in making the decision. It seems that there
may have been an unrecorded decision made by an unknown person on no basis
whatsoever.
[26]
The case of Canada
(Attorney General) v Skrzypek, 2011 FC 823, [2011] FCJ No
1026 [Skrzypek], involved an individual who also
suffered from a disability. However, his disability was not found to be “severe
and prolonged” and the RT determined that he was not entitled to a disability
pension under the CPP. In this case, the PAB designated member granted the
individual’s application for leave to appeal ex parte and no reasons
were given. It is also important to note that the individual’s application for
leave to appeal was “simply accompanied by a letter restating the
ailments with which Mr. Skrzypek had been diagnosed and a general
dissatisfaction with the decision” (para 7). In his decision, Justice
Harrington stated the following at paras 8 and 22:
[8] Since
the application for leave to appeal was seriously defective, it was submitted
that the designated member should have either invoked rule 9 of the PAB
Rules and called upon Mr. Skrzypek to produce information required for the
purpose of determining the leave, or else given reasons as to why leave was
granted. I agree with the Attorney General's submissions. Without such reasons,
one can only speculate as to whether the designated member was aware of the
legal test to be applied on applications for leave and whether his assessment
of the record in applying that test was reasonable.
[22] As
Mr. Justice Pelletier stated, speaking for the Court of Appeal, in North v.
West Region Child & Family Services Inc., 2007 FCA 96, 362 N.R. 83
(F.C.A.), at paragraphs 3 and 4:
[3] The
obligation to give reasons is a requirement of procedural fairness. The basis
of the obligation was set out by the Supreme Court in R. v. Sheppard,
2002 SCC 26, [2002] 1 S.C.R. 869, a decision which, though made in the criminal
context, is equally applicable to the administrative law context. In this case,
the obligation to give reasons is found in the statute.
[4] If the
decision-maker does not provide reasons which set out his findings and the
basis upon which they are made, there is no substrate for the application of
the standard of review.
[27]
Moreover, in the case of Canada (Attorney General) v Graca,
2011 FC 615, [2011] FCJ No 762, which involved a judicial review of an
extension of time and a leave to appeal, the Court found that the designated
member erred by not providing adequate reasons. Specifically, the Court gave
the following reasoning at paras 15 and 18:
[15] The decision to
grant an extension of time is discretionary, and must be explicitly considered
by the member. There is no automatic inference that just because a member
granted leave, he must have also granted an extension of time. Jurisprudence of
this Court holds that it is incumbent upon the member to support the exercise
of discretion with reasons (Canada (Minister of Human Resources Development)
v Roy, 2005 FC 1456, 281 FTR 198 at
para 13). I see no reason for me to deviate from this well-established
principle.
[18] In the present
matter, the member first erred by allowing leave to appeal without indicating
on the record that he considered the issue of the extension of time. The
subsequent amended order granting leave failed to remedy the situation. It was
completely void of any reasons supporting the decision. There is no indication
of how the test was applied, or if the correct test was even applied at all.
Given the absence of anything to review, it is, as the Applicant submits,
impossible for this Court to assess whether the granting of the extension and
leave to appeal was reasonable.
[28]
More recently, in the case of Canada
(Attorney General) v Carroll, 2011 FC 1092, [2011]
FCJ No 1348, Justice O'Reilly overturned the leave to appeal under review as he
concluded that the PAB had not met its legal
responsibilities of recording its decision in writing, providing reasons and
indicating what test it applied in granting leave to appeal (see para 19).
[29]
The Court also finds it useful to refer to the case of Mrak
v Canada (Minister of Human Resources & Skills Development),
2007 FC 672, 314 FTR 142 [Mrak], where Justice Lemieux held that
pursuant to the terms of section 83 of the CPP, when no reasons are given by
the PAB designated member in granting leave to appeal, the reasons are deemed
to be the reasons written in the application for leave to appeal (the Notice of
Appeal). In the present case, the Court notes that this approach would be
entirely justified when the application for leave to appeal (the Notice of Appeal)
is complete and comprises the requirements outlined in Rule 4 of the PAB Rules.
However, in the case at bar, as previously mentioned, the respondent’s letters
of November 20, 2010 and January 20, 2011 do not include the requirements of
Rule 4 of the PAB Rules, specifically in light of the fact that the RT
dismissed the respondent’s claim for lack of sufficient evidence.
[30]
In sum, and in light of the established case law, the Court finds
that, in accordance with the principles of procedural fairness, the designated
member had the duty to provide reasons when making discretionary decision and also
had the duty to record it. The failure to provide reasons constitutes an error
in law and constitutes sufficient grounds to grant the present application for
judicial review (Canada (Attorney
General) v Causey, 2007 FC 422, 311 FTR 278, at para 23).
[31]
In the circumstances, there is no need for the Court to address
the remaining issues raised by the applicant at this time in light of the
absence of any reasons explaining the designated member’s analysis (see Carroll,
above). Indeed, the Court cannot guess, infer or speculate which test,
if any, the designated member applied in granting leave or its grounds for
concluding that the application for leave to appeal raised an arguable case. The
Court is left without any guidance as to the designated member’s reasoning. As
Justice Harrington eloquently stated in Skrzypek, above, at para 16, in the absence of reasons provided by the designated
member “[t]he question then is whether I should embark on a review of the
record […] [f]rankly, I am not in position to make any assessment, and indeed
if I were to do so, I would be usurping the function of the designated member
of the Pension Appeals Board, a person who should be an expert in these
matters.”
[32]
For these reasons, the Court concludes that the
application for judicial review will be granted.
[33]
Finally, when the PAB reconsiders Ms. Sarahan’s
request for leave to appeal, she should be given an opportunity to say why she
disagrees with the RT’s decision, and to put forward any new or additional
evidence (not already considered by the RT) on which she intends to rely on
appeal.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The application for judicial review is allowed and the
decision of the designated member of the Pension Appeals Board, dated March 29,
2011, is hereby set aside.
2.
The Pension Appeal Board is asked to reconsider
whether to grant Ms. Sarahan’s leave to appeal the Review Tribunal’s decision.
3.
No order as to costs.
“Richard
Boivin”
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