Docket: T-1684-10
Citation: 2011 FC 1387
Ottawa, Ontario, November 29,
2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
SHERRY LAVIN
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to section 18.1 of the Federal Courts Act,
RSC 1985, c F-7 for judicial review of a decision of the Pensions Appeals Board
(the Board) dated September 15, 2010, wherein the applicant’s application for
an extension of time within which to commence an appeal was refused. This
conclusion was based on the Board’s finding that the applicant had failed to
satisfy the test for considering a request for an extension of time.
[2]
The applicant requests that this Court set aside the Board’s
decision and remit the matter with directions to a differently constituted
panel of the Pension Appeals Board.
Background
[3]
The
applicant, Sherry Lavin, was employed as a receptionist and bookkeeper from
1996 to 2005. In 2005, the applicant stopped working for medical reasons. She
currently suffers from cognitive impairment, depression and other medical
illnesses.
[4]
On
February 26, 2007, the applicant applied for disability pension under the Canada
Pension Plan (CPP). Her application was denied because she did not fully
meet the requirements of the CPP. After reconsideration, she was again denied
for failing to meet the definition of disability under paragraph 42(2)(a) of
the CPP.
[5]
On
March 3, 2008, the applicant filed an appeal to the Office of the Commissioner
of Review Tribunals (the tribunal). A hearing was convened to hear the appeal
in May 2009. On July 2, 2009, the tribunal communicated its decision to the
applicant and the applicant acknowledged receipt of it later in the same month.
In its decision, the tribunal found that the applicant met the contributory
requirement until December 31, 2006; the minimum quantifying period (MQP).
However, the tribunal found that the applicant had not shown, on a balance of
probabilities, that she suffered from a severe disability as defined under
paragraph 42(2)(a) of the CPP. The appeal was therefore dismissed.
[6]
Pursuant
to subsection 83(1) of the CPP, the applicant had 90 days, or until September
30, 2009, to appeal the tribunal’s decision to the Board.
[7]
On
June 9, 2010, the applicant filed an extension of time, leave to appeal and
notice of appeal of the tribunal’s decision. In this application, the applicant
explained that she had been in extremely poor health since receiving the tribunal’s
decision. Although she intended to appeal the decision as soon as possible, her
illnesses precluded her from coping with her case and from seeking legal
counsel. She therefore had to rely on her husband who also suffered from
illnesses. When her husband tried to retain legal counsel for the applicant, he
was allegedly unable to find anyone willing to take on an appeal to the Board.
The applicant finally retained counsel after being referred to the Lawyer
Referral Service of the Law Society of Upper Canada.
[8]
In
response to the applicant’s application, the Board advised her that more
information would be required as the application had been received after the 90
day period. In response, the applicant submitted a sworn affidavit and a letter
from her doctor dated July 26, 2010, stating that he had changed his mind from
his previous assessment about the applicant’s ability to work.
Board’s Decision
[9]
In
its decision, the Board referred to the finding in Canada (Minister of Human
Resources Development) v Gattellaro, 2005 FC 883, [2005] FCJ No 1106 that a
Board’s decision to grant leave to appeal after the expiry of a 90 day period
is “highly discretionary” (at paragraph 4). The Board also noted the factors
that must be followed on extension of time applications under subsection 83(1)
of the CPP (Gattellaro above, at paragraph 9):
1. A continuing intention to
pursue the application or appeal;
2. The matter discloses an
arguable case;
3. There is a reasonable
explanation for the delay; and
4. There is no prejudice to
the other party in allowing the extension.
[10]
Based
on the evidence before it, the Board accepted that factors 1 and 3 were
satisfied in this case.
[11]
The
Board conceded that it had some reservations on whether factor 4 was satisfied
as it believed that the memory of witnesses would be diminished and their power
of recollection decreased after eleven months had passed since the tribunal’s
hearing. Further, the Board stated that it had no knowledge of whether the
Minister’s files on this matter remained in existence, as stated in the
applicant’s affidavit.
[12]
However,
the Board’s main concern pertained to factor 2. The Board held that the proper
test for leave to appeal was whether the application raised an arguable case
without otherwise assessing the application’s merits. The Board cited Callihoo
v Canada (Attorney General), 190 FTR 114, [2000] FCJ No 612 for guidance on
when an application for leave may raise an arguable case where there is a lack
of significant new or additional evidence. It noted that although the
applicant’s doctor had appeared to change his opinion from November 2007 to
July 2010, the MQP was December 31, 2006, and the tribunal had properly focused
on the applicant’s condition at that time. The Board therefore found that there
was nothing before it to allow it to find that the applicant had an arguable
case in accordance with the principles outlined in Callihoo above, at
paragraph 22.
[13]
In
conclusion, the Board held that the test for considering a request for an
extension of time is conjunctive. Therefore, as the applicant had failed to demonstrate
all four of the above listed factors, the Board refused the application for an extension
of time to appeal.
Issues
[14]
The
applicant submits the following point at issue:
1. It is submitted that the
Board erred in its consideration of the factors for granting an extension of
time pursuant to subsection 83(1) of the CPP.
[15]
I
would rephrase the issues as follows:
1. What is the appropriate
standard of review?
2. Did the Board err in
denying the applicant’s request for an extension of time to seek leave to
appeal?
Applicant’s Written Submissions
[16]
The
applicant submits that the standard of review for the Board on issues of law is
correctness, and on other issues is reasonableness.
[17]
The
applicant submits that the Board failed to appreciate that its decision must be
reasonable on the facts of the case when it emphasized the discretionary aspect
of deciding an application for an extension of time.
[18]
The
applicant also submits that the Board made errors in its assessment of the
applicant’s arguable case (i.e., factor 2 discussed above). Contrary to legal
principles developed in the jurisprudence, the applicant submits that the
Board’s decision did not show that it considered the very low threshold for the
test for an arguable case in an application for an extension of time. The
applicant submits that the Board failed to note the tribunal’s lack of
consideration on whether a person is practically or theoretically employable in
accordance with subparagraph 42(2)(a)(i) of the CPP. In addition, the applicant
submits that the Board failed to properly consider the new and significant 2010
medical evidence, namely, that the improvement the applicant’s doctor had
originally thought would occur after the treatment of aneurysms did not
actually transpire. The applicant submits that these failings separately and
together meet the very low threshold of an arguable case.
[19]
In
summary, the applicant submits that the Board failed to give sufficient weight
to all the relevant considerations, and thereby erred in its decision.
Respondent’s Written Submissions
[20]
The
respondent submits that judicial review of discretionary decisions refusing an
extension of time involves two issues that are reviewable on different
standards: the question of whether the correct test was applied is reviewable
on the standard of correctness, whereas the Board’s application of the test is
reviewable on the standard of reasonableness.
[21]
The
respondent cites extensive jurisprudence in support of its submission that the
applicant did not meet the necessary burden of demonstrating to the tribunal
that she was suffering from a severe and prolonged disability prior to the end
of the MQP and continuously thereafter.
[22]
The
respondent also provides a broad overview of the statutory scheme governing
extensions of time and leaves to appeal. The respondent submits that there are
no statutory limitations on the scope of discretion delegated to a Board on a
determination of an extension of time application.
[23]
The
respondent submits that the Board identified the correct test for determining
an extension of time application. However, it submits that the Board erred in
its finding that the test for an extension of time is conjunctive.
Nevertheless, the respondent submits that the Board reasonably refused the
application on the basis that the applicant had failed to demonstrate that she
had an arguable case.
[24]
The
respondent submits that an arguable case requires that some reasonable chance
of success at law be established. This may be accomplished by raising an issue
of law or of relevant facts not appropriately considered by the tribunal in its
decision, or significant new information. In this case, the respondent submits
that the Board properly applied the test for arguable case and gave a
reasonable explanation for not accepting the 2010 medical evidence. The
respondent also refers to jurisprudence which it submits provides that new
medical evidence dated post-MQP does not raise an arguable case.
[25]
The
respondent further submits that the Board is entitled to comment on the merits
of an application in deciding whether it discloses an arguable case. The Board
therefore did not err in commenting on the 2010 medical evidence in explaining
its finding on the question of arguable case.
[26]
Finally,
the respondent submits that no error of law or of significant fact was evident
in the Tribunal’s decision.
Analysis and Decision
[27]
Issue
1
What is the appropriate standard
of review?
Where previous jurisprudence has
determined the standard of review applicable to a particular issue before the
court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[28]
There
are two issues involved in the review of a Board’s decision to grant leave to
appeal: whether the right test was applied, and whether the Board committed a
reviewable error in applying that test (see Canada (Attorney General) v
Graca, 2011 FC 615, [2011] FCJ No 762 at paragraph 9; and Samson v
Canada (Attorney General), 2008 FC 461, [2008] FCJ No 588 at paragraph 14).
[29]
The
first issue is a question of law and is therefore reviewable on the correctness
standard (see Vincent v Canada (Attorney General), 2007 FC 724, 315 FTR
114 at paragraph 26; Graca above, at paragraph 10; and Canada
(Attorney General) v Landry, 2008 FC 810, [2008] FCJ No 1034 at paragraph
17).
[30]
The
second issue requires the Board to apply the test to the facts and is therefore
a question of mixed fact and law that is reviewable on the reasonableness
standard (see Handa v Canada (Attorney General), 2008 FCA 223, [2008]
FCJ No 1137 at paragraphs 7 and 11; Leblanc v Canada (Minister of Human
Resources and Skills Development), 2010 FC 641, [2010] FCJ No 784 at
paragraph 15; Graca above, at paragraph 10; and Landry above, at
paragraph 18).
[31]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] SCJ No 12 at paragraph 59). As the Supreme Court held in Khosa
above, “it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence” (at paragraph 59).
[32]
Issue
2
Did the Board
err in denying the applicant’s request for an extension of time to seek leave
to appeal?
Under subsection 83(1) of the CPP, a
Board has broad discretion to permit a party to appeal a tribunal’s decision
outside the normal 90 day limitation period (see Gattellaro above, at
paragraph 4; and Handa above, at paragraph 7). However, this decision
only confers a benefit – it is not a matter of right (see Gattellaro
above, at paragraph 7).
[33]
The
exercise of the Board’s discretion under subsection 83(1) of the CPP is
structured by the factors set out in Gattellaro above, at paragraph 9:
1. A continuing intention to
pursue the application or appeal;
2. The matter discloses an
arguable case;
3. There is a reasonable
explanation for the delay; and
4. There is no prejudice to
the other party in allowing the extension.
[34]
The
Board must weigh and consider these factors in making its decision (see Graca
above, at paragraph 17). The record should clearly demonstrate that all of
these factors have been addressed by the decision maker (see Gattellaro above, at paragraph 10). However, an
extension may be granted even if one of the factors mentioned in this test is
not satisfied (see Canada (Attorney General) v Blondahl, 2009 FC 118,
[2009] FCJ No 178 at paragraph 18; and Canada (Minister of Human Resources
Development) v Hogervorst, 2007 FCA 41, [2007] FCJ No 37 at paragraph 33).
[35]
At
the hearing before me, the parties agreed that the only factor in issue was
whether the matter disclosed an arguable case. As well, whether or not the four
factors were conjunctive was not in issue before me.
[36]
With
respect to arguable case, Mr. Justice W. Andrew MacKay of this Court stated in Callihoo
above, at paragraph 22:
In
the absence of significant new or additional evidence not considered by the
Review Tribunal, an application for leave may raise an arguable case where the
leave decision maker finds the application raises a question of an error of
law, measured by a standard of correctness, or an error of significant fact
that is unreasonable or perverse in light of the evidence. …
[37]
The
new medical reports provided by the applicant read in part as follows:
April
28, 2009
To
whom it may concern,
Regarding:
Sherry
Lavin
14
SILKWOOD CRES
MISSISSAUGA, ON L6X 4L1 CANADA
Date
of Birth: 08/03/1960
Sherry
has ongoing severe cognitive difficulties, making it hard for her to be
employable. She is very lucky from a medical point of view, but for all
intensive purposes I think she is unemployable, primarily due to the cognitive
issue which I had hoped would have improved over time.
Dr.
Michael Kates, MD
And:
Dr.
Michael Kates
101
Queensway West, 7th Floor Mississauga,
ON L6B 2P7
To
whom it may concern,
REGARDING:
Sherry
Lavin
14
Silkwood Cres
Mississauga, On
L6X
4L1 Canada
Date
of Birth: 08/03/1960
July
26th 2010
Since
my report in 2007, Sherry Lavin has continued to have cognitive difficulties,
specifically short-term memory impairment. She continues to be monitored for
hypertension. Dr. Izukawa and Dr. Rosso see her at least annually. Most
recently, Dr. Sawa last spring suggested she needs to have carpal tunnel
surgery. For the time being, no further progression of her intracranial
aneurysms have occurred. Despite difficulties losing weight, her blood pressure
is monitored regularly.
Basically
I felt there were events in Sherry’s life back in 2007 including her
depression, that once resolved, I felt would allow her an opportunity to seek
employment on at least a part-time basis. Over the last few years her
depression has resolved but her cognitive impairment has not improved. Sherry
used to enjoy her clerical work, but now is afraid of doing the same work due
to the imminent mistakes that would result from cognitive issues. I have
changed my mind about her ability to function in a work situation because I do
not think the mistakes that would result from such cognitive issues would be
tolerable to anybody she worked for. I do not feel it would be fair for her to
face such situations. She will most likely experience further depression,
embarrassment, and possibly irreparable damage to be put in situations where
she would surely fail. If one could protect her and prevent such mental
anguish, I would once again be more supportive of her ability to work.
Thank
you for the opportunity to support Sherry. I wish her continued good health.
She is a very lucky person who has endured life threatening illness.
Sincerely
Michael
Kates, M.D., C.C.F.P.
[38]
The
Board dealt with the new medical evidence in paragraph 17 of the decision:
I
am aware that Dr. Kates appears to change his opinion in the letter dated July
26, 2010 from that contained in the letter dated November 2, 2007. However, the
minimum qualifying period (MQP) is December 31, 2006, and the Review Tribunal
was focused on the applicant’s condition at that time, and properly so.
[39]
The
applicant submits that Dr. Kates, in his letter of July 26, 2010, is now saying
that the depression and other events in the applicant’s life were not the cause
of the applicant’s problems, as he originally thought, as they have now
improved yet the applicant still has the cognitive difficulties which he had
expected to improve but did not upon the improvement of the other problems.
[40]
In
my view, this conclusion could impact on any finding of the applicant’s medical
condition at the date of the applicant’s MQP. The fact that Dr. Kates appears
to be saying that he was wrong in his 2007 medical letter with respect to the
effect of and the extent of the applicant’s cognitive difficulties should have
been addressed by the Board. In my view, this evidence could effect the
decision as to whether or not an arguable issue existed.
[41]
For
the above reasons, I believe that the decision of the Board is unreasonable and
must be set aside. The matter should be referred to another panel of the Board
for redetermination.
[42]
The
applicant has asked for her costs of the application and the respondent submits
that no costs should be awarded or that each party should bear their own costs.
From the material before me, I cannot see any reason to deny the applicant her
costs of the application. The applicant shall have her costs of the
application.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The application for
judicial review is allowed and the matter is referred to a different panel of
the Board for redetermination.
2. The applicant shall
have her costs of the application.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Federal Courts Act,
RSC 1985, c F-7
|
18.1.(1) An
application for judicial review may be made by the Attorney General of Canada
or by anyone directly affected by the matter in respect of which relief is
sought.
. . .
(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
(a) acted
without jurisdiction, acted beyond its jurisdiction or refused to exercise
its jurisdiction;
(b) failed
to observe a principle of natural justice, procedural fairness or other
procedure that it was required by law to observe;
(c) erred
in law in making a decision or an order, whether or not the error appears on
the face of the record;
(d) based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
(e) acted,
or failed to act, by reason of fraud or perjured evidence; or
(f) acted
in any other way that was contrary to law.
|
18.1.(1) Une
demande de contrôle judiciaire peut être présentée par le procureur général
du Canada ou par quiconque est directement touché par l’objet de la demande.
. .
.
(4) Les
mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le cas :
a) a
agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b) n’a
pas observé un principe de justice naturelle ou d’équité procédurale ou toute
autre procédure qu’il était légalement tenu de respecter;
c) a
rendu une décision ou une ordonnance entachée d’une erreur de droit, que
celle-ci soit manifeste ou non au vu du dossier;
d) a
rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
e) a
agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
f) a
agi de toute autre façon contraire à la loi.
|
Canada
Pension Plan,
RSC 1985, c C-8
|
(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; and
(b) a
person is deemed to have become or to have ceased to be disabled at the time
that is determined in the prescribed manner to be the time when the person
became or ceased to be, as the case may be, disabled, but in no case shall a
person — including a contributor referred to in subparagraph 44(1)(b)(ii) —
be deemed to have become disabled earlier than fifteen months before the time
of the making of any application in respect of which the determination is
made.
44. (1) Subject
to this Part,
. . .
(b) a
disability pension shall be paid to a contributor who has not reached
sixty-five years of age, to whom no retirement pension is payable, who is
disabled and who
(i) has
made contributions for not less than the minimum qualifying period,
. . .
(2) For
the purposes of paragraphs (1)(b) and (e),
(a) a
contributor shall be considered to have made contributions for not less than
the minimum qualifying period only if the contributor has made contributions
on earnings that are not less than the basic exemption of that contributor,
calculated without regard to subsection 20(2),
(i) for
at least four of the last six calendar years included either wholly or partly
in the contributor’s contributory period or, where there are fewer than six
calendar years included either wholly or partly in the contributor’s
contributory period, for at least four years,
. . .
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.
|
(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;
b) une
personne est réputée être devenue ou avoir cessé d’être invalide à la date
qui est déterminée, de la manière prescrite, être celle où elle est devenue
ou a cessé d’être, selon le cas, invalide, mais en aucun cas une personne —
notamment le cotisant visé au sous-alinéa 44(1)b)(ii) — n’est réputée être
devenue invalide à une date antérieure de plus de quinze mois à la date de la
présentation d’une demande à l’égard de laquelle la détermination a été
faite.
44. (1) Sous
réserve des autres dispositions de la présente partie :
. .
.
b) une
pension d’invalidité doit être payée à un cotisant qui n’a pas atteint l’âge
de soixante-cinq ans, à qui aucune pension de retraite n’est payable, qui est
invalide et qui :
(i) soit
a versé des cotisations pendant au moins la période minimale d’admissibilité,
. .
.
(2) Pour
l’application des alinéas (1)b) et e) :
a) un
cotisant n’est réputé avoir versé des cotisations pendant au moins la période
minimale d’admissibilité que s’il a versé des cotisations sur des gains qui
sont au moins égaux à son exemption de base, compte non tenu du paragraphe
20(2), selon le cas :
(i) soit,
pendant au moins quatre des six dernières années civiles comprises, en tout
ou en partie, dans sa période cotisable, soit, lorsqu’il y a moins de six
années civiles entièrement ou partiellement comprises dans sa période
cotisable, pendant au moins quatre années, . . .
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.
|
Email this Content