Docket: T-238-11
Citation: 2011 FC 1092
Ottawa, Ontario, September 23,
2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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ANN CARROLL
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Ms.
Ann Carroll has endured chronic pain in her back, hip and pelvis for the past
four years. Her pain is the result of an injury she suffered while working as a
room attendant at a hotel in Richmond, BC. She has not
worked full-time since her injury.
[2]
In
2008, Ms. Carroll applied for a disability pension under the Canada Pension
Plan, RSC 1985, c C-8 [CPP]. The Minister of Human Resources and Skills
Development turned her down. She asked the Minister to reconsider, but the
Minister dismissed her application again.
[3]
Ms.
Carroll then appealed to a Review Tribunal (RT), which accepted that she
experiences chronic pain, but concluded that her condition did not meet the
definition of a disability under the CPP. The CPP states that a disability must
be both severe and prolonged before benefits can be awarded. The evidence
showed that Ms. Carroll’s injury did not meet that test.
[4]
Ms.
Carroll sought leave to appeal the RT’s decision to the Pension Appeal Board
(PAB). The PAB granted her permission to appeal in December 2010.
[5]
However,
the Minister submits that the PAB’s decision granting leave to appeal was
faulty. In particular, the Minister maintains that the PAB committed an error by:
(i) failing to issue a
formal decision on Ms. Carroll’s application for leave to appeal;
(ii) failing to provide
reasons for its decision granting leave;
(iii) failing
to apply the proper test in deciding whether to grant leave to appeal – that
is, whether Ms. Carroll had presented an arguable case that the RT had wrongly
denied her benefits; and
(iv) failing to make a
reasonable decision.
[6]
The
Minister asks me to overturn the PAB’s decision giving Ms. Carroll leave to
appeal, and order it to reconsider that decision. I agree with the Minister
that the PAB’s decision should be overturned. I must, therefore, allow this
application for judicial review and order the PAB to reconsider whether it
should give Ms. Carroll leave to appeal.
[7]
In
my view, the PAB made an error by not recording, or issuing any written reasons
for, its decision granting leave to appeal. As such, it is impossible to tell whether
it applied the correct test. It is unnecessary to consider whether the PAB’s
decision was unreasonable.
II. The PAB’s Duties
[8]
Benefits
claimants cannot automatically appeal a decision of the RT. They must apply to
the PAB for permission to appeal. The PAB must then decide whether there are
sufficient grounds to grant leave to appeal.
[9]
The
PAB has a duty to record, in writing, a decision granting leave to appeal (Canada (Attorney
General) v Montesano, 2011 FC 398, paras 7-8).
[10]
When
the PAB denies leave to appeal, it has a duty to provide written reasons for
its decision (s 83(3) of the CPP – see Annex for enactments cited). Where, as
here, the PAB grants leave to appeal, it may or may not have to provide written
reasons depending on what the applicant has included in her request for leave.
[11]
When
an applicant gives sufficient grounds for her request for leave to appeal, the
PAB does not necessarily have to provide written reasons for granting leave;
the applicant’s request becomes the reasons for the PAB’s decision (Mrak v
Canada (Minister of Human Resources and Social Development), 2007 FC 672).
[12]
On
the other hand, when an applicant does not give adequate grounds for a request
for leave to appeal, the PAB must provide written reasons for granting leave (Montesano,
above, para 6, 8, 10; Canada (Minister of Human Resources Development v Roy,
2005 FC 1456).
[13]
In
that case, the PAB’s reasons must satisfy the various purposes for which
written reasons are required (Vancouver International Airport
Authority v Public Service Alliance of Canada, 2010 FCA
158, para 16). They must be understandable, sufficiently detailed, and provide
a logical basis for the decision.
[14]
The
PAB also has a duty to apply the correct test for granting leave to appeal. The
test is whether the applicant requesting leave has raised an arguable case (Callihoo
v Canada (Attorney
General),
[2000] FCJ No 612 (TD)). An applicant will raise an arguable case if she puts
forward new or additional evidence (not already considered by the RT), raises
an issue not considered by the RT, or can point to an error in the RT’s
decision.
III. Did the PAB Fulfill its
Duties?
[15]
The
PAB informed Ms. Carroll that she had been given permission to appeal the
Review Tribunal’s decision. However, that decision is not recorded anywhere.
The decision-maker’s identity is unknown.
[16]
Further,
Ms. Carroll’s request for leave to appeal did not meet the requirements of Rule
4 of the Pension Appeals Board Rules of Procedure (Benefits), CRC 1978,
c 390 (see Annex). It did not say why the request for leave to appeal should be
granted, and did not put forward any allegations of fact or documentary
evidence on which she intended to rely in the appeal. As a result, the Minister
did not know how he should respond on the appeal. In her letters to the PAB,
Ms. Carroll simply stated that she disagreed with the RT’s decision. This was
not sufficient.
[17]
Accordingly,
since Ms. Carroll did not say why her request for leave to appeal should be
granted, the PAB had a duty to provide written reasons for granting leave. It
provided none.
[18]
Finally,
without reasons, it is impossible to know whether the PAB applied the correct
test in granting leave to appeal, or whether it applied any test at all.
[19]
In
the circumstances, I must conclude that the PAB’s decision granting Ms. Carroll
leave to appeal should be overturned because the PAB did not meet its legal
responsibilities. It did not record its decision in writing, did not provide
any reasons, and did not say what test it applied in granting leave to appeal.
IV. Conclusion and Disposition
[20]
The
PAB did not record its decision, provide any reasons for granting Ms. Carroll
leave to appeal the Review Tribunal’s decision, or indicate what, if any, test
it applied in granting leave. I must, therefore, allow this application for
judicial review and order the PAB to reconsider whether it should give Ms.
Carroll permission to appeal the RT’s decision.
[21]
When
the PAB reconsiders her request for leave to appeal, Ms. Carroll 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 at the appeal.
[22]
There
is no order as to costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is allowed and the Pension Appeal Board is
asked to reconsider whether to grant Ms. Carroll leave to appeal the Review
Tribunal’s decision.
2.
No
order as to costs.
“James
W. O’Reilly”
Annex
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Canada Pension Plan, RSC 1985, c C-8
Where leave refused
83(3) Where leave to appeal is refused,
written reasons must be given by the person who refused the leave.
Pension Appeals Board Rules of
Procedure (Benefits),
CRC 1978, c 390
Application for leave to appeal
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.
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Régime de pensions
du Canada, LRC, 1985, ch C-8
Permission refuse
83(3) La
personne qui refuse l’autorisation d’interjeter appel en donne par écrit les
motifs.
Règles de procédure
de la Commission d’appel des pensions (prestations), CRC 1978, ch 390
Demande
d’autorisation d’interjeter appel
4. L’appel de
la décision d’un tribunal de révision est interjeté par la signification au
président ou au vice président d’une demande d’autorisation d’interjeter
appel, conforme en substance à l’annexe I, qui indique :
a) la date de
la décision du tribunal de révision, le nom de l’endroit où cette décision a
été rendue et la date à laquelle la décision a été transmise à l’appelant;
b) les nom et
prénoms ainsi que l’adresse postale complète de l’appelant;
c) le cas
échéant, le nom et l’adresse postale complète d’un mandataire ou d’un
représentant auquel des documents peuvent être signifiés;
d) les motifs
invoqués pour obtenir l’autorisation d’interjeter appel; et
e) un exposé
des faits allégués, y compris tout renvoi aux dispositions législatives et
constitutionnelles, les motifs que l’appelant entend invoquer ainsi que les
preuves documentaires qu’il entend présenter à l’appui de l’appel.
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