Date: 20070607
Docket: T-1889-06
Citation: 2007 FC 610
Halifax, Nova
Scotia, June 7, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
SONIA
DESCHAMP
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is an appeal of a decision of the Pensions Appeal Board (PAB) denying the
Minister’s application for leave to appeal a Review Tribunal decision. The PAB
held that it did not have jurisdiction to grant leave because the issues in
question were themselves jurisdictional and could only be considered by the
Federal Court.
[2]
This
judicial review suffered from the absence of counsel for the Respondent. The
issues before the Court were legal and technical, yet Mrs. Deschamp appeared on
her own accompanied by her husband. The Court was advised that Mrs. Deschamp
could not obtain legal aid and that other avenues of legal representation,
particularly Dalhousie Legal Clinic, were unavailable to her because her file
had been closed out. The Court and the Respondent have been left in the
unenviable position of having no meaningful submissions regarding the legal
issues from the Respondent. It is unfortunate, at the very least, that in a
country which is justifiably proud of its legal system, legal representation
was not available to Mrs. Deschamp.
II. BACKGROUND
[3]
Mrs.
Deschamp had two previous applications for CPP disability benefits denied. In
1993 the Minister denied her initial application as well as her request for
reconsideration. Both a Review Tribunal and the PAB dismissed her appeal.
Again, in 1997, the Minister denied both the initial and reconsideration
applications (1997 decision). A Review Tribunal denied her appeal and there was
no proceeding before the PAB.
[4]
In
respect of each application, the Respondent was unable to establish that
disability arose within the qualifying period covered by her contributions.
[5]
Again,
in January 2000, Mrs. Deschamp applied for pension benefits. The Minister
denied her application because she did not meet the contributory requirements.
That decision was confirmed by the Minister on reconsideration.
[6]
The
Respondent appealed this latest decision to a Review Tribunal pursuant to s.
82(1) of the Canada Pension Plan Act (Act) which deals with the
Minister’s 2000 decision. It was the Minister’s position that the Review
Tribunal was bound by the Review Tribunal’s second decision, both as a matter
of statute, s. 84(1) provides that a decision is final and binding, as well as
under the doctrine of res judicata.
[7]
The
Review Tribunal held a hearing on this third application. The Review Tribunal,
without notice to the parties, concluded that there were new facts under s.
84(2) with respect to the previous second application in 1997 which a Review
Tribunal had dismissed. The latest Review Tribunal then went on to review the 1997
decision and found that the Applicant was disabled (a) from the time of her
first PAB hearing to the end of her qualifying period at the end of 1996 and
(b) she was also disabled as of October 1998 for purposes of her third
application.
[8]
By
way of general comment on CPP procedures, a claimant for benefits applies
firstly to the Minister and may, where benefits are denied, ask for a
reconsideration. An unsuccessful party may appeal the Minister’s decision pursuant
to s. 82(1) which reads:
|
82. (1) A party who is dissatisfied with a decision
of the Minister made under section 81 or subsection 84(2), or a person who is
dissatisfied with a decision of the Minister made under subsection 27.1(2) of
the Old Age Security Act, or, subject to the regulations, any person on their
behalf, may appeal the decision to a Review Tribunal in writing within 90
days, or any longer period that the Commissioner of Review Tribunals may,
either before or after the expiration of those 90 days, allow, after the day
on which the party was notified in the prescribed manner of the decision or
the person was notified in writing of the Minister’s decision and of the
reasons for it.
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82. (1) La personne qui se croit lésée par
une décision du ministre rendue en application de l’article 81 ou du
paragraphe 84(2) ou celle qui se croit lésée par une décision du ministre
rendue en application du paragraphe 27.1(2) de la Loi sur la sécurité de la
vieillesse ou, sous réserve des règlements, quiconque de sa part, peut
interjeter appel par écrit auprès d’un tribunal de révision de la décision du
ministre soit dans les quatre-vingt-dix jours suivant le jour où la première
personne est, de la manière prescrite, avisée de cette décision, ou, selon le
cas, suivant le jour où le ministre notifie à la deuxième personne sa
décision et ses motifs, soit dans le délai plus long autorisé par le
commissaire des tribunaux de révision avant ou après l’expiration des
quatre-vingt-dix jours.
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[9]
By
virtue of s. 83(1) of the Act, an unsuccessful party at the Review Tribunal
stage may apply to a single member of the PAB for leave to appeal the decision
to the PAB. This provision covers not only s. 82(1) appeals but also
requests for a new decision based on new facts pursuant to s. 84(2).
(emphasis added)
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83. (1) A party or, subject to the regulations, any
person on behalf thereof, or the Minister, if dissatisfied with a decision of
a Review Tribunal made under section 82, other than a decision made in
respect of an appeal referred to in subsection 28(1) of the Old Age Security
Act, or under subsection 84(2), may, within ninety days after the day on
which that decision was communicated to the party or Minister, or within such
longer period as the Chairman or Vice-Chairman of the Pension Appeals Board
may either before or after the expiration of those ninety days allow, apply
in writing to the Chairman or Vice-Chairman for leave to appeal that decision
to the Pension Appeals Board.
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83. (1) La personne qui se croit lésée par
une décision du tribunal de révision rendue en application de l’article 82 —
autre qu’une décision portant sur l’appel prévu au paragraphe 28(1) de la Loi
sur la sécurité de la vieillesse — ou du paragraphe 84(2), ou, sous réserve
des règlements, quiconque de sa part, de même que le ministre, peuvent
présenter, soit dans les quatre-vingt-dix jours suivant le jour où la
décision du tribunal de révision est transmise à la personne ou au ministre,
soit dans tel délai plus long qu’autorise le président ou le vice-président
de la Commission d’appel des pensions avant ou après l’expiration de ces
quatre-vingt-dix jours, une demande écrite au président ou au vice-président
de la Commission d’appel des pensions, afin d’obtenir la permission
d’interjeter un appel de la décision du tribunal de révision auprès de la
Commission.
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[10]
A
Review Tribunal and the PAB have authority to deal with questions of law and
fact in respect of benefit entitlements and quantum thereof under s. 84(1). The
Review Tribunal, the PAB and even the Minister have power under s. 84(2) to
rescind or amend a decision on the grounds of new facts.
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84. (1) A Review
Tribunal and the Pension Appeals Board have authority to determine any
question of law or fact as to
(a) whether any benefit is payable to a person,
(b) the amount of any such benefit,
(c) whether any person is eligible for a division of
unadjusted pensionable earnings,
(d) the amount of that division,
(e) whether any person is eligible for an assignment of a
contributor’s retirement pension, or
(f) the amount of that assignment,
and the decision of a Review Tribunal, except as provided in this Act,
or the decision of the Pension Appeals Board, except for judicial review
under the Federal Courts Act, as the case may be, is final and binding for
all purposes of this Act.
(2) The Minister, a
Review Tribunal or the Pension Appeals Board may, notwithstanding subsection
(1), on new facts, rescind or amend a decision under this Act given by him,
the Tribunal or the Board, as the case may be.
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84. (1) Un
tribunal de révision et la Commission d’appel des pensions ont autorité pour
décider des questions de droit ou de fait concernant :
a) la
question de savoir si une prestation est payable à une personne;
b) le
montant de cette prestation;
c) la
question de savoir si une personne est admissible à un partage des gains non
ajustés ouvrant droit à pension;
d) le
montant de ce partage;
e) la
question de savoir si une personne est admissible à bénéficier de la cession
de la pension de retraite d’un cotisant;
f) le
montant de cette cession.
La décision du tribunal de révision, sauf disposition
contraire de la présente loi, ou celle de la Commission d’appel des pensions,
sauf contrôle judiciaire dont elle peut faire l’objet aux termes de la Loi
sur les Cours fédérales, est définitive et obligatoire pour l’application de
la présente loi.
(2) Indépendamment du paragraphe (1), le ministre, un
tribunal de révision ou la Commission d’appel des pensions peut, en se
fondant sur des faits nouveaux, annuler ou modifier une décision qu’il a
lui-même rendue ou qu’elle a elle-même rendue conformément à la présente loi.
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[11]
The
Minister sought leave to appeal to the PAB from the Review Tribunal’s decision
reopening the Respondent’s claims. The Minister challenged the Review
Tribunal’s decision on three grounds; (1) the failure to give notice of and the
intention to, and the determination to, expand a s. 82(1) appeal in regard to
the third application into a reconsideration under s. 84(2) of the 1997 decision
in respect of the second application; (2) the PAB and the parties were bound by
the 1997 decision as a matter of statute (s. 84(1)) and the principle of res
judicata; and (3) there were no new facts such as to fall within s. 84(2)
in any event.
[12]
The
single member of the PAB concluded that the Minister’s position was that the
Review Tribunal erred in conducting a reconsideration hearing in the absence of
a specific request by the Respondent and that it erred in finding new facts.
The PAB held that these were jurisdictional issues that only the Federal Court
could consider. Therefore, leave was denied.
III. ANALYSIS
[13]
It
is important to bear in mind that what was before the PAB was a request for
leave not a determination of the legal or factual merits of the appeal.
Generally leave is granted where there is some threshold of “reasonable
arguability”; that the applicant for leave raises an arguable case (see Callihoo
v. Canada (Attorney
General),
[2000] F.C.J. No. 612 (QL)). One would have thought that on this minimum
threshold, the jurisdictional issues would have met that criterion. The PAB
erred in not restricting the inquiry to this limited scope, apparently under
the view that it was precluded from granting leave because it had no
jurisdiction.
[14]
With
the greatest respect to the PAB member, it is my conclusion that the decision
is not consistent with the current state of the law as to the PAB’s
jurisdiction.
[15]
The
issues before the Court are issues of law since they are questions of
jurisdiction. This Court is not required to make any factual finding. As such,
the standard of review is correctness.
[16]
It
is noteworthy that in the cases cited in the decision upon which the PAB
comment, reference to the recent decision is Adamo v. Canada (Minister of
Human Resources Development), 2006 FCA 156, is missing. In the Adamo
case, the Federal Court of Appeal determined that a Review Tribunal could
transform an s. 82(1) appeal into a s. 84(2) proceeding to rescind a decision
even though an applicant had not requested such relief. However, this
jurisdiction to proceed under s. 84(2) was subject not only to the “new facts”
criterion stipulated in the provision but to the requirement of proper advance
notice that this is the manner in which the Review Tribunal intends to proceed.
36. However, before
disposing of the matter on this basis, it was incumbent upon the Review
Tribunal to advise the parties that it was considering the grant of a remedy
pursuant to subsection 84(2) and to invite submissions as to whether this
remedy was available. It could not dispose of the matter pursuant to subsection
84(2) without giving the parties the occasion to be heard on the issues which
arise under that provision.
[17]
The
Minister specifically put the procedural issues in play in its leave application.
The issues in Adamo also included that of res judicata, an
issue on which leave to the PAB was also granted. Therefore the issues raised
by the Minister were issues to be determined by the PAB.
[18]
The
PAB’s decision was focused particularly on the issue of whether the finding of
“new facts” was a matter over which the PAB could have jurisdiction.
[19]
In
Oliveira v. Canada (Minister of Human
Resources Development), [2004] F.C.J. No. 588 (C.A.) (QL), the Court
found that where there is a determination that there are no new facts, the PAB
has no jurisdiction because there was no “decision” that could be the subject
of a s. 83(1) appeal. Therefore, the only avenue of relief is the Federal
Court.
[20]
In
Kent v. Canada
(Attorney General), 2004 FCA 420, Justice Sharlow recognized the
reality of what occurs in the case of a finding of “new facts” – that there is
a decision on the merits which the PAB can deal with. Justice Sharlow
recognized that, to be consistent with Oliveira, judicial review in the
Federal Court might be available where there is a finding of “new facts” but
that the Court might decline to hear the matter due to the availability of an
alternate remedy before the PAB.
30. Theoretically, the
Minister could have commenced a separate proceeding, an application for
judicial review in the Federal Court, to challenge the determination of the
Review Tribunal that there were new facts. However, as the Review Tribunal went
on to determine Ms. Kent's claim on the merits, the Federal Court might well
have declined jurisdiction because the right of the Minister to seek leave to
appeal the decision on the merits to the Pension Appeals Board would be an
adequate alternative remedy: Fast v. Canada (Minister of Citizenship and
Immigration) (2001), 288 N.R. 8, (2001) 41 Admin. L.R. (3d) 200 (F.C.A.); Canadian
Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. If the Review
Tribunal was wrong to find that Ms. Kent is entitled to a disability pension,
it does not matter whether they did so on the basis of new facts. But if the
Review Tribunal was correct in finding that Ms. Kent is entitled to a
disability pension, it would seem unreasonable to deprive Ms. Kent of that
entitlement on the rather narrow technical ground that the Review Tribunal
should not have admitted the new facts that, in the result, established her
entitlement.
[21]
Therefore,
the Court of Appeal has recognized the jurisdiction of the PAB in circumstance
of a positive “new fact” finding – which is the circumstances in this case.
[22]
Therefore,
the PAB had jurisdiction over this issue as it did over the other grounds
raised by the Minister.
IV. CONCLUSION
[23]
For
these reasons, the PAB erred when it declined to exercise jurisdiction to grant
leave.
[24]
The
PAB decision will be quashed, and the matter of leave remitted to a new member
of the PAB for decision. This judicial review is granted without costs, as
suggested by the Minister’s counsel. The Minister’s counsel also acknowledged
that if the Court found in the Minister’s favour, Mrs. Deschamp still had the
right under s. 84(2) to make a separate application to rescind the 1997
decision.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the PAB
decision is quashed, and the matter of leave remitted to a new member of the
PAB for decision. This application for judicial review is granted without
costs.
“Michael L. Phelan”
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