Date: 20090105
Docket: T-856-07
Citation: 2009 FC 2
Ottawa, Ontario, January 5,
2009
PRESENT: THE CHIEF JUSTICE
BETWEEN:
FERENC
SABO
Applicant
and
MINISTER
OF HUMAN RESOURCES AND SOCIAL DEVELOPMENT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] In 1987, the
respondent Minister of Human Resources and Social Development (the Minister),
denied the applicant’s application for disability benefits under the Canada
Pension Plan (the Plan). The application was related principally to a back
injury. The applicant did not ask for reconsideration of the Minister’s
negative decision, although he was advised that he could do so.
[2] In 1995, the
applicant’s second application for disability benefits was denied. The Minister
confirmed his refusal in response to the applicant’s request for
reconsideration.
[3] In 1997, the Review
Tribunal concluded that the applicant was not disabled within the meaning of
the Plan and dismissed his appeal from the Minister’s refusal of his second
application. The applicant was represented by counsel and his appeal was
supported with the testimony of his wife and doctor and substantial documentary
evidence. Leave to appeal this decision was refused.
[4] In 2002, the Minister
refused the applicant’s third application for disability benefits. In response
to the applicant’s request for reconsideration, the Minister confirmed his
refusal of this third application. In 2004, some eighteen months later, the
Review Tribunal dismissed the applicant’s appeal of the Minister’s third
denial. The same panel also found that there were no “new facts”, as asserted
by the applicant, and dismissed his application to reopen the earlier Review
Tribunal’s 1997 negative decision.
[5] In September 2004,
the applicant sought the exercise of ministerial discretion to extend the time
for filing his request for reconsideration of the first refusal in 1987.
Between 2004 and 2006, some four responses to the applicant stated that the
Minister had no statutory authority to undertake a review of his refusal of the
first application for disability benefits. The responses relied principally on
the binding nature of the Review Tribunal’s determination in 1997 that the
applicant was not disabled within the meaning of the legislation.
[6] This application for
judicial review seeks mandamus relief forcing the Minister to make “a
decision” concerning his discretion to grant an extension of time to reconsider
the first ministerial refusal in 1987.
[7] In my opinion, the
decision of the Federal Court of Appeal in Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41, supports the Minister’s arguments for the dismissal of this
proceeding.
[8] First, any decision
to grant the extension of time sought by the applicant would be characterized
as a collateral attack against the Review Tribunal decision in 1997: Hogervorst,
¶¶ 21 and 42. Second, if the extension were granted, a favourable reconsideration
of the 1987 refusal would lead to inconsistent decisions: Hogervost, ¶
22. Third, a favourable decision now would violate the principle of finality concerning
the various negative decisions that have intervened since 1987: Hogervorst,
¶¶27 and 42. Finally, even if the statutory authority to do so existed, an
extension of some seventeen years would be characterized as an improper
exercise of discretion by the Minister: Hogervost, ¶ 30. See also: Dillon
v. Canada (Attorney General), 2007 FC 900, ¶ 24; and Kabatoff v. Canada (Minister of Human Resources and Development),
2007 FC 820, ¶¶ 7 and 8.
[9] Hogervost provides
ample support for the Minister’s earlier responses that the Review Tribunal’s
determination in 1997 was binding and that it removed any statutory authority or
jurisdiction to consider the application for an extension of time. The absence
of any legal duty to act is fatal to the mandamus relief being sought by
the applicant.
[10] In Villani v. Canada (Attorney General), 2001 FCA 248, a more liberal, “real world” approach to the assessment of
a disability was approved. For the applicant, the Villani test is “a
new question” which should be put to the Minister in the context of his
unchanged medical record. Even if the applicant had raised this issue in his
written submissions, it is one that I reject in principle as it would require
retroactive application of caselaw to earlier final decisions.
[11] In any event, in the
particular circumstances of this case, the impact of Villani on the
applicant’s situation was considered by the Review Tribunal in 2004:
The
Tribunal felt that there was and that there are no new facts nothwithstanding
the Villani decision to persuade this Tribunal that the previous
decision should be reopened under Section 84(2) of the legislation.
[12] Accordingly, this
application for judicial review must be dismissed. As I indicated during the
hearing, I was not inclined to award costs if the applicant did not succeed in
this proceeding.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application for judicial review is dismissed.
2.
There
will be no order as to costs.
“Allan
Lutfy”
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