Date: 20070803
Docket: T-1492-06
Citation: 2007 FC 821
Vancouver, British Columbia, August 3,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LEANNA
KAPITANCHUK (STEWART)
Applicant
and
MINISTER
OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, a self-represented litigant, seeks judicial review of a decision by
a Review Tribunal under the “new facts” provisions of s. 84(2) of the Canada
Pension Plan (Act).
II. FACTUAL
BACKGROUND
[2]
The
Applicant applied for CPP disability pension in 1993 after she shattered her L5
vertebrae in a May 1991 accident. The Minister denied her request initially and
upon reconsideration on June 30, 1993 and July 7, 1994 respectively.
[3]
The
Applicant then appealed to a Review Tribunal. That Tribunal granted her a long
adjournment because of conflicting expert evidence on her ability to work. The
adjournment was permitted to allow her to undergo further testing and physical
and vocational rehabilitation. Her complaint was that she could not sit at a
secretarial position for more than 10 minutes (she was a trained legal
secretary), stand for more than five minutes or walk without pain. She also had
problems speaking, remembering or concentrating.
[4]
One
of the letters which the Applicant relied upon was that of Dr. Bailey in which
he described her symptoms and expressed the hope that she might be able to
engage in part-time work.
[5]
The
Applicant’s medical evidence was consistent with respect to her complaints
including her headaches, pains and sleep problems.
[6]
At
the time of the hearing, the Applicant had seen a Dr. Kertesz but his report
was not available.
[7]
On
January 7, 1997, a Review Tribunal determined that Ms. Kapitanchuk was not
disabled as of that date. The Tribunal, having considered Dr. Bailey’s report,
concluded that Ms. Kapitanchuk was not disabled. Her request for leave to
appeal was refused by the Pension Appeals Board (PAB). No further appeals or
judicial reviews were filed.
[8]
In
December 2000, the Applicant applied to reopen the Tribunal decision pursuant
to s. 84(2) of the Act which allows a Tribunal to rescind or amend their
previous decision on new facts. Section 84(2) reads:
|
84. (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.
|
84. (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.
|
[9]
The
new evidence relied upon included the Dr. Kertesz report of November 26, 1996
and a new report from Dr. Bailey.
[10]
On
April 18, 2000, the Review Tribunal dismissed the application to reopen. It
found the evidence, even if new, not to be material. The PAB denied the appeal
of this second decision on the basis that the PAB lacked jurisdiction to
consider the Tribunal decision where there were no new facts under the s. 84(2)
criterion.
[11]
In
July 2006 Justice Campbell granted an extension of time to seek judicial review
of the April 2000 Review Tribunal decision.
[12]
The
second Review Tribunal decision came to the following key conclusions:
·
that
the new evidence test under s. 84(2) requires that the evidence must not have
been discoverable before the original hearing by the exercise of reasonable
diligence and that the evidence would have to be practically conclusive
or at least would probably have had an important influence on the decision;
·
that
the Dr. Kertesz 1997 report was not produced at the hearing but was available
from the Applicant’s lawyer; and
·
that
the Kertesz report (to the extent it is even admissible) and that of Dr. Bailey
were not conclusive and would not have had an important influence on the
decision.
III. ANALYSIS
[13]
The
standard of review on the facts is patent unreasonableness (see Canada (Minister of
Human Resources Development) v. Patricio, 2004 FCA 409. However,
the standard of review on whether the new facts fit with s. 84(2) is a question
of mixed law and fact for which the standard is usually reasonableness simpliciter.
The legal interpretation of s. 84(2) is an issue of law for which correctness
is the applicable standard.
[14]
With
respect to the scope of s. 84, it is clear that pursuant to s. 84(1), a Review
Tribunal decision is final and binding. Section 84(2) operates as an exception
to this provision and to the usual principle of functus officio.
[15]
Justice
Blanchard in Vaillancourt v. Canada (Ministry of
Human Resources), 2007 FC 663 has summarized the state of the law in respect
of s. 84(2) and its application. I adopt his reasoning, particularly the
following:
25. Decisions made under
the CPP are subject to the appeal process set out the legislation, which is
generally considered binding and final. Subsection 84(2) of the CPP provides
that the Minister, the Review Tribunal or the Pension Appeals Board may rescind
or amend a decision made under the CPP on the basis of new facts.
26. Subsection 84(2) of the
CPP has been narrowly interpreted by the courts. The intrinsic limitation of
the provision was acknowledged by the Federal Court of Appeal in Canada
(Minister of Human Resources Development) v. Landry, [2005] F.C.J. No. 778,
2005 FCA 167, at paragraph 7. The provision is applicable in exceptional
circumstances where, despite due diligence, relevant material becomes available
to a current application outside the expiration of the appeal limitation.
27. Review
of a subsection 84(2) determination engages a two-step process: first, a
determination on whether the information submitted constitutes new facts;
second, a decision on entitlement takes place if there are new facts. Peplinski
v. Canada, [1993] 1 F.C. 222 (T.D.) (QL), at paragraph 11. If there are no
new facts, then the prior decision stands. As will become evident below, I need
only address the first part of this process.
28. To
be considered new facts for the purposes of subsection 84(2) of CPP, new
information must not have been previously discoverable with reasonable
diligence at the time of the original hearing (Canada (Minister of Human
Resources Development) v. MacDonald, [2002] F.C.J. No. 197 (C.A.) (QL)).
This implies that the information must have existed at that time. Further, to
be considered new facts, the information must also be material. The Federal
Court of Appeal in Leskiw v. Canada (Attorney General),
[2003] F.C.J. No. 1374, 2003 FCA 345, at paragraph 5 of its reasons for
decision held that, to be material, the new evidence must be "practically
conclusive". The Federal Court of Appeal in BC Tel v. Seabird Island
Indian Band (C.A.), 2002 FCA 288, [2003] 1 F.C. 475, elaborated on this
test by finding that new evidence has been held to be practically conclusive if
it could reasonably be expected to affect the result of the prior hearing.
[16]
The
Federal Court of Appeal concluded in Taylor v. Canada (Minister of
Human Resources Development), 2005 FCA 293 that a question of whether a
fact was discoverable is one of fact and governed by the standard of patent
unreasonableness. The Review Tribunal’s finding that the Dr. Kertesz report,
being in the hands of the Applicant’s counsel, was discoverable and hence not
new, is one of fact for which there is no grounds to overturn.
[17]
As
to the other reports, in particular Dr. Bailey’s report, the Review Tribunal
concluded that the reports were not material in that they would not have
changed the result. This conclusion was based on the fact that the reports
refer largely to the same symptoms as previously existed.
[18]
The
Review Tribunal articulated the correct legal test as set forth in Dormuth
v. Untereiner, [1964] S.C.R. 122; 671122 Ontario Ltd. v. Sagaz
Industries Canada Inc., [2001] 2 S.C.R. 983; and Kent v. Canada (Attorney
General), 2004 FCA 420.
[19]
The
application of the test of whether the evidence may reasonably be expected to
affect the outcome, while potentially one of mixed law and fact, in these
circumstances, is one principally of fact. The Tribunal asked itself whether
this information would likely have affected their conclusion, a conclusion
about which the Tribunal is most expert. I find nothing unreasonable, much less
patently unreasonable, in its conclusion.
[20]
Most
particularly, Dr. Bailey’s second report, heavily relied upon by the Applicant,
outlines only what symptoms the Applicant reports. The report does not express
an opinion as to the Applicant’s ability to work. It was reasonable to conclude
that this evidence was not material.
[21]
The
Applicant is in the process of again attempting to obtain a pension and had
attempted to again re-open the first Review Tribunal decision. She also, so the
Respondent says, has the right to show that she was disabled between January 8,
1997 (post the first Review Tribunal decision) and December 31, 1997 (the end
of her contribution period). Whatever the merits may be and the legitimacy of
the Respondent’s concerns for collateral attacks (see Canada (Minister of
Human Resources Development) v. Hogervorst, 2007 FCA 41, these are
not matters for this Court on this judicial review.
[22]
For
these reasons, this application for judicial review will be dismissed with
costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed with costs.
“Michael
L. Phelan”
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