Date: 20070808
Docket: T-1657-06
Citation: 2007 FC 820
Ottawa, Ontario, August 8, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
JOHN
KABATOFF
Applicant
and
THE MINISTER OF HUMAN
RESOURCES
AND SOCIAL DEVELOPMENT
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. John Kabatoff was injured in May 1993 while working as a roofer. He
has been trying since 1995 to obtain disability benefits under the Canada
Pension Plan. His most recent attempt, in April 2006, involved a request to the
Minister of Human Resources and Social Development to reconsider, on the basis
of new facts, a 1996 decision denying him benefits. In August 2006, an official
wrote to Mr. Kabatoff on the Minister’s behalf explaining that the 1996 decision
could not be reconsidered given that a final and binding decision of a Review
Tribunal dealing with the same issue had been rendered in 2004. However, the
official suggested that Mr. Kabatoff could request the Review Tribunal to
reconsider its decision.
[2]
Mr. Kabatoff asks me to order the Minister to reconsider the 1996
decision. However, I can find no error in the Minister’s decision not to do so,
and must, therefore, dismiss this application for judicial review.
I.
Issue
[3]
Did the Minister err in concluding that he could not reconsider his
earlier decision denying Mr. Kabatoff benefits?
[4]
The Minister also argued that the response from the Minister’s
representative was not amenable to judicial review because it was merely a
courtesy letter, not a decision. Assuming, without deciding, that the letter
amounted to a decision, I have addressed the legal issue raised by Mr.
Kabatoff.
II. Analysis
[5]
Under the Canada Pension Plan, R.S.C. 1985, c. C-8, decisions of
the Minister can be appealed to a Review Tribunal and then, with leave, to the
Pension Appeals Board. The statute provides that decisions of the Review
Tribunal and the Pension Appeals Board are “final and binding” (s. 84(1)), with
two exceptions. First, those decisions can be the subject of judicial review
in the Federal Court. Second, the Minister, the Review Tribunal or the Pension
Appeals Board may, on the basis of new facts, rescind or amend a decision he or
it previously made (s. 84(2)) (statutory provisions are set out in an Annex).
[6]
Mr. Kabatoff argues that the legislation permits the Minister to
reconsider an earlier decision even if the Review Tribunal has also addressed
the same issue. The statute does not say, he argues, that the Minister has no
jurisdiction to reconsider an issue that has also been before the Review
Tribunal.
[7]
I agree with Mr. Kabatoff that the statute does not explicitly state
that the Minister cannot reconsider a decision if the Review Tribunal has dealt
with the same issue. However, I agree with the Minister that a sensible reading
of the legislation leads to that result. Further, I am persuaded that the
Federal Court of Appeal has recently determined that the statute should be read
in the manner suggested by the Minister: Canada (Minister of Human
Resources Development) v. Hogervorst, 2007 FCA 41, [2007] F.C.J. No.
37 (C.A.) (QL). There, Justice Gilles Létourneau held that the Canada
Pension Plan should be read so as to disallow collateral attacks on
decisions, reduce the possibility of conflicting decisions, and give due
respect to the principle of finality. In circumstances similar to those in Mr.
Kabatoff’s case, Justice Létourneau concluded that a person could not, in 2005,
appeal a 1997 decision of the Review Tribunal when, in 2001, the Review
Tribunal had concluded that the person was not disabled during the relevant
period of time. The 2001 decision was “final and binding” according to s. 84(1)
and could not be displaced by an appeal of an earlier decision.
[8]
In Mr. Kabatoff’s case, he is asking the Minister to reconsider a 1996 decision
even though the Review Tribunal, in 2004, concluded that he was not disabled.
It is true that, in 1996, the Minister could not have considered whether Mr.
Kabatoff was disabled as of December 31, 1997, the last day on which he was
eligible for benefits, while the Review Tribunal was able to make that
determination in 2004. Mr. Kabatoff argues, therefore, that his application
does not involve a collateral attack on the Review Tribunal’s decision and raises
no risk of inconsistency because the two decision-makers were dealing with two
different time frames. The same argument was raised and rejected in Hogervorst.
As Justice Létourneau stated: “Indeed, a finding of disability for the period
ending November 4, 1997 could hardly co-exist with a finding that the
respondent is not disabled for the period from November 5, 1997 to December 31,
1997” (at para. 19). Here, a finding that Mr. Kabatoff was disabled in April
1996 could hardly co-exist with a finding that he was not disabled in December
1997. It must be remembered that a disability is a condition that is “severe
and prolonged” and renders the person incapable of regularly pursuing any
gainful occupation for a long and indefinite period of time (s. 42(2)(a)).
[9]
Therefore, in these circumstances, the Minister was correct in
determining that he could not review his 1996 decision, given that the Review
Tribunal had issued a final and binding decision on the same issue in 2004.
However, Mr. Kabatoff can ask the Review Tribunal to reconsider its 2004
decision, given that s. 84(2) permits the Tribunal to “rescind or amend a
decision under this Act given by … the Tribunal” when there are new facts.
JUDGMENT
THIS COURT’S
JUDGMENT IS THAT:
1.
The
application for judicial review is dismissed.
2.
There
is no order as to costs.
“James
W.O’Reilly”
Annex “A”
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Canada Pension Plan, R.S.C. 1985, c. C-8
When
person deemed disabled
42(2) For the purposes of this Act,
(a) a person
shall be considered to be disabled only if he is determined in prescribed
manner to have a severe and prolonged mental or physical disability, and for
the purposes of this paragraph,
(i) a disability is severe only if by reason thereof
the person in respect of whom the determination is made is incapable
regularly of pursuing any substantially gainful occupation, and
(ii) a disability is prolonged only if it is determined
in prescribed manner that the disability is likely to be long continued and
of indefinite duration or is likely to result in death;
Authority
to determine questions of law and fact
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.
Rescission
or amendment of decision
(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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Régime
de pensions du Canada,
L.R.C. 1985, ch. C-8
Personne déclarée invalide
42(2) Pour l’application de la présente loi :
a) une
personne n’est considérée comme invalide que si elle est déclarée, de la
manière prescrite, atteinte d’une invalidité physique ou mentale grave et prolongée,
et pour l’application du présent alinéa :
(i) une invalidité n’est grave que si elle rend la
personne à laquelle se rapporte la déclaration régulièrement incapable de
détenir une occupation véritablement rémunératrice,
(ii) une invalidité n’est prolongée que si elle est
déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une
période longue, continue et indéfinie ou devoir entraîner vraisemblablement
le décès;
Décision sur les questions de droit et de
fait
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.
Annulation ou modification de la décision
(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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