Docket:
T-86-11
Citation:
2011 FC 823
Toronto, Ontario, July
5, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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ATTORNEY GENERAL
OF CANADA
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Applicant
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and
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PIOTR SKRZYPEK
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Mr.
Skrzypek suffers from some disability, of that there can be no doubt. The
issue, however, is whether he is entitled to a disability pension pursuant to
the Canada Pension Plan.
He
is eligible to apply for a pension based on the contributions he had made to
the Plan. Because of the timing of his contributions, his minimum qualifying
period ended on 31 December 2003. To receive the pension, he must show that
his disability existed on or prior to that date and continuously thereafter.
Section 42(2) of the Plan provides that a person shall be considered to be
disabled only if he or she has a severe and prolonged mental or physical
disability. A disability is “severe” if the person is incapable regularly of
pursing any substantially gainful employment (Villani v Canada (Attorney
General), 2001 FCA 248, 275 NR 324, at paragraph 50; and Klabouch v
Canada (Minister of Social Development), 2008 FCA 33, 372 NR 385, at
paragraphs 14-17).
[2]
Mr.
Skrzypek’s application was first dismissed on the grounds that he did not have
a severe and prolonged physical disability as of 31 December 2003. The Plan
sets out a series of reconsiderations and appeals available to a person
dissatisfied with an initial decision such as this one.
[3]
Under
section 81, the Minister was called upon to reconsider the initial decision. He
confirmed it.
[4]
Unsatisfied
with that reconsideration, Mr. Skrzypek then appealed to the Review Tribunal in
accordance with section 82. The Tribunal also ruled against him.
[5]
The
next step is an appeal to the Pension Appeals Board. The appeal is not of right.
Leave must be obtained from the chairman, the vice-chairman, or a designated
member of the Board. Section 83(3) provides that where leave to appeal is
refused, written reasons must be given. The Act does not specify that written
reasons need be given when leave is granted. In this case, as is fairly usual,
the application for leave was made ex parte and leave was granted
without prior notice to the Minister by the designated member.. No reasons were
given. This is a judicial review of that decision.
ISSUES
[6]
The
Attorney General, on behalf of the Minister, raises a number of issues. The
primary issue in this case, in my opinion, is that the required procedure was
not respected. Section 4 of the Pension Appeals Board Rules of Procedures
(Benefits) (“PAB Rules”) provides, among other things, that an
application for leave to appeal from a decision of a Review Tribunal must set
out the grounds upon which the appellant relies to obtain leave to appeal, a
statement of the allegations of fact, the reasons intended to be submitted, and
the documentary evidence intended to be relied upon in support of the appeal.
[7]
In
this case, the 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:
It remains our position that Mr. Skrzypek
continues to suffer from a severe and prolonged disability rendering him
regularly incapable of pursuing any substantially gainful occupation.
[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.
[9]
The
Attorney General also submitted that the decision was not “recorded” in that
all that was received was a letter from the Board. No written decision has ever
been provided, and it was only later that the name of the designated member was
furnished. He relies upon the recent decision of Canada (Attorney
General) v Montesano, 2011 FC 398; [2011] FCJ No 510. Since I am
granting the application for judicial review on other grounds, it is not
necessary for me to consider this point.
DISPOSITION
[10]
I
shall grant the application for judicial review, without costs, and refer the
matter back to the same designated member of the Pension Appeals Board for
reconsideration. The member may or may not invoke rule 9 of the PAB Rules
as he sees fit, but if not, and if leave to appeal is again granted, reasons
must be provided.
ANALYSIS
[11]
The
standard of review was well-established by Mr. Justice Mackay in Callihoo
v Canada (Attorney General) (2000), 190 FTR 114, [2000] FCJ No 612 (QL),
at paragraph 15:
On the basis of this recent jurisprudence, in
my view the review of a decision concerning an application for leave to appeal
to the PAB involves two issues,
1.
whether
the decision maker has applied the right test - that is, whether the
application raises an arguable case without otherwise assessing the merits of
the application, and
2.
whether
the decision maker has erred in law or in appreciation of the facts in
determining whether an arguable case is raised. If new evidence is adduced with
the application, if the application raises an issue of law or of relevant
significant facts not appropriately considered by the Review Tribunal in its
decision, an arguable issue is raised for consideration and it warrants the
grant of leave.
[12]
As
I stated in McDonald v Canada (Minister of Human
Resources and Skills Development), 2009 FC 1074, [2009] F.C.J. No. 1330, at
paragraph 6:
The first part of the analysis, a determination as to whether the
decision maker has applied the right test, is a matter of characterization and
is to be reviewed on a correctness standard. The second, at least as an
appreciation of the facts is concerned, is reviewed on a reasonableness
standard (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[13]
In
this case, no new evidence was adduced; indeed there was no requirement that
new evidence be adduced. As no reasons were given, it falls upon the Court to
determine whether Mr. Skrzypek’s application for leave to the Pension Appeals
Board raised an arguable case.
[14]
In
McDonald, above, it was the Minister who sought leave to appeal the
decision of a Review Tribunal. In that case, rule 4 had been scrupulously
followed in that detailed submissions were presented to the designated member
supporting the application for leave. As in this case, leave was granted
without reasons being provided. It was Mr. McDonald who sought judicial review
of that decision.
[15]
The
issue in that case, as in this, was whether on the record an arguable case was
raised. Guided by the Minister’s notice of application for leave, I was able to
work my way through the record and conclude that an arguable case had indeed been
raised in that case. As noted by Mr. Justice Lemieux in Mrak v Canada
(Minister of Human Resources and Social Development), 2007 FC 672, 314 FTR
142, another case in which no reasons had been given for the granting of leave,
at paragraph 29, where leave is granted without reasons, the application for
leave itself may stand in the place of the absent reasons:
While Justice Deyell did not provide written reasons for his grant
of leave, I hold, for the purposes of this judicial review application, the
Minister’s identification of arguable issues in his ex parte written
application for leave to appeal are deemed to be the reasons for the grant of
leave. In my view, such a finding is warranted by the very terms of
section 83 of the Act which, as noted, provides where leave is granted
the application for leave to appeal becomes the notice of appeal.
[16]
In
this case, Mr. Skrzypek’s application for leave did not follow rule 4 and did
not identify any issues or grounds of appeal. The question then is whether I
should embark on a review of the record which includes doctor reports, body
bone scans, electro-diagnostic reports, MRI lumbar spine diagnostics, abdominal
ultrasounds, and so on. Frankly, 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.
[17]
I
could possibly justify the decision to grant leave by putting words into the
designated member’s mouth. There may well have been a difference of opinion as
to the weight of certain evidence, and this would give rise to an arguable case
for an appeal, which would be heard on a de novo basis.
[18]
This
observation arises from paragraphs 30 and 31 of the Review Tribunal decision
which read as follows:
[30] The Review Tribunal had the
opportunity to observe and hear the Appellant. The Review Tribunal found that
he suffered and continued to suffer to a varying degree from the medical
problems described. Notwithstanding, the Review Tribunal did not accept that
his physical problems were severe or prolonged on or before the date of his MQP
and continuously thereafter. The Review Tribunal accepted that the Appellant
believed that he was unable to work at any substantially gainful job on or
before the date of his MQP; however, the Review Tribunal did not agree. The
Appellant suffered to some degree from medical problems referred to above and
likely still does, as revealed by his testimony and the medical evidence
summarized above. His medical problems, on a balance of probabilities, did not
render him incapable regularly or pursuing any substantially gainful occupation
on or before the date of his MQP, December 31, 2003 and continuously
thereafter. He was employed in 2004, 2005 and 2006.
[31] In summary, the Review Tribunal
questioned the severity of the Appellant’s complaints which he said precluded
him from working on or before the date of his MQP. The Appellant must
establish, on a balance of probabilities, that his medical problems were severe
and prolonged on or before the date of his MQP and likely thereafter. The
cumulative consideration of information demonstrated that the problems caused
by the Appellant’s medical conditions were not severe and prolonged as is
required.
[19]
However,
if the designated member did indeed think that the Review Tribunal erred in
assessing the evidence, then it was up to him to say so. There may possibly be
cases in which the Court is able to make such an assessment, as was done in Canada
(Attorney General) v St-Louis, 2011 FC 492, [2011] F.C.J. No. 611, currently under
appeal, but this is not one of them.
[20]
Based
on the record before me, absent reasons as to why leave was granted (which, as
stated above, may simply be an endorsement of the rule 4 application), I am
left without any guidance whatsoever. Although Mr. Justice Létourneau was
speaking of the role of a an appeal court, I believe his remarks in Remo Imports
Ltd v Jaguar Cars Limited, 2007 FCA 258, 367 NR 177, apply equally to
judicial review:
[20] I should add that, as an American appellate judge once
said, judges are not ferrets: cited in Dow Agrosciences Canada Inc. v.
Philom Bios Inc., 2007 ABCA 122, at paragraph 53. It cannot be expected
that appeal judges will embark on a search of the record to find pieces of
evidence which could support or particularize broad allegations made by a party
to the appeal.
[21]
As
it stands, there were no reasons given why leave was granted. Although it
might seem incongruous to speak of procedural fairness when a self-represented,
unemployed labourer, who needs his son to act as an interpreter, is pitted
against the might and power of the state, fair is fair.
[22]
As
Mr. Justice Pelletier stated, speaking for the Court of Appeal, in North v
West Region Child and Family Services Inc., 2007 FCA 96, 362 NR 83, 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.
[23]
Consequently,
in my opinion, the right thing to do is to refer the matter back to the same
designated member who granted leave.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is granted, without costs.
2.
The
matter is referred back to designated member, the Honourable K.C. Binks, of the
Pension Appeals Board, for a re-determination in accordance with the reasons
given.
“Sean Harrington”
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