Date: 20080618
Docket: T-614-07
Citation: 2008 FC 764
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
WALTER
SCHNEIDER
Respondent
REASONS FOR
JUDGMENT
HUGHES J.
This is an application made by
the Attorney General on behalf of the Minister of Human Resources and Skills
Development to set aside a decision of the Commissioner of Review Tribunals
dated March 12, 2007 whereby the Respondent, Walter Schneider, was granted an
extension of time under the provisions of Section 82 of the Canada Pension
Plan, R.S.C. 1985, c. C-8 to submit an appeal from a decision of the
Minister, communicated by letter to the Respondent dated, June 16, 2004 to deny
Canada Pension Plan benefits to him. I am dismissing the application without
costs.
The text of the decision whereby
the Commissioner extended the appeal period is as follows:
Thank you for your letter of December 12,
2006 in which you explained the reasons for the delay in submitting your appeal
in writing. Based on the explanations contained in your letter, I am satisfied
that the circumstances warrant that I exercise my discretion under s. 82 of the
Canada Pension Plan and extend the
appeal period.
Specifically, I am relying on the
information contained in your letter that, in June 2004, you had a telephone
discussion with an employee of Human Resources Development Canada and were led to understand
from that conversation that your appeal had been registered by your indicating
verbally to the employee in question that you wished to appeal. It may be that
there was a miscommunication but I am prepared to accept that you legitimately
believed at the time that no further action was required on your part in order
to perfect your appeal.
This appeal will be scheduled for hearing
shortly. You can expect to receive a Notice of Hearing later this Spring.
The Minister argues that the
Decision to grant the extension should be set aside on three grounds:
1.
The
Commissioner failed to consider the criteria for extensions of time as set out
in jurisprudence such as Grewel v. Canada, [1985] 2 F.C. 263 namely:
a.
a
continued intention to pursue the matter
b.
a
reasonable explanation for the delay
c.
demonstration
of an arguable case, and
d.
no
prejudice to the other party.
2.
That had
such criteria been applied, the extension would not have been granted; and
3.
Inadequacy
of reasons.
STANDARD
OF REVIEW
Since the Supreme Court of
Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9
a fresh look at the question of standard of review has been taken. There are
two standards, reasonableness when considering decisions as to factual or mixed
fact and law where the two are not readily separable, and correctness where the
decision deals with matters such as law and jurisdiction. When it comes to
reasonableness, the Court is not to substitute its own view of matters but
instead must ask if the decision reached considered the relevant facts and
reached a defensible conclusion based on those facts.
Here we are dealing with a
decision of the Commission who is empowered under section 82 (1) of the Canada
Pension Plan to allow a longer period than 90 days to submit an appeal from
the Minister respecting certain pension benefits. Such a decision is largely
administrative in nature and, while requiring consideration of criteria such as
those of Grewel supra, the Commissioner must look at the factual
circumstances of each case to make a determination which, as such, is a matter
of mixed fact and law. The determination is one of an administrative nature
such that it should be reviewed on a standard of reasonableness with
substantial deference afforded to the Commissioner.
I am aware of the decision of
my brother Judge, Lemieux J. in Canada (Attorney General) v.
Pentney 2008
FC 96 particularly at paragraphs 26 and 27. I believe that we do not differ. In
law, consideration must be given to criteria such as Grewal but perhaps
with the general caution that the principle object is to do justice, as will be
discussed below and the provision of some reasons must be made. However the
consideration given to the facts and extent of reasons are not matter of law
but of fact or mixed fact and law and are to be dealt with on the basis of
reasonableness. As Snider J. said in Canada (Minister of
Human Resources Development) v. Gaffellero, 2005 FC 883 at
paragraph 4 a decision to extend time is highly discretionary. She was
considering whether to apply patent unreasonableness or unreasonableness
simpliciter. Since Dunsmuir we don’t need to distinguish between the
two.
As Thurlow CJ said in giving
the decision of the Court in Grewal supra at page 5 of the print-out
version, the underlying consideration to bear in mind in an application of this
kind is to do justice between the parties in granting an extension or not.
ANALYSIS
A decision by a tribunal which
is empowered by statute to grant an extension of time is, as stated, highly
discretionary and is intended to do justice between the parties.
It is clear from the decision
at issue here that the Commissioner had before him correspondence from Mr.
Schneider and the recommendations from his staff. The Applicant’s factum filed
in this case suggests that the Minister should have been given an opportunity
to review the material as well and make submissions however the factum
acknowledges and the Minister’s Counsel agrees that the Commissioner may
proceed ex parte and has no obligation to involve the Minister.
It is apparent from the
decision that the Commissioner did not stipulate the four criteria ascribed to Grewal
and that the reasons are not lengthy. It would place an unreasonable burden on
the Commissioner to set out detailed reasons and articulate jurisprudence or
criteria derived from jurisprudence and provide a detailed review as to the
application of all facts to each criteria. The requirements to do so may be different
in contested matters or where the person most likely to be detrimentally
affected is not legally advised or sophisticated. Here, however, the Minister
is not engaged in the controversy at this time and is well advised and legally
sophisticated.
Even if one were to reduce Grewal
to four criteria, which given the reasoning of Thurlow CJ one should not, the
objective being to do justice and not to create a checklist, and apply them to
the facts in the present case it cannot be said that the decision to grant an
extension was unreasonable. The delay of some two years, though somewhat
lengthy, was explained by reason of poor health and miscommunication. The
intention to appeal is evident. The Minister has provided no evidence as to
actual prejudice, only legal argument. In discussion with Counsel for the
Applicant at the oral hearing it appears that the Respondent Mr. Schneider may
have some chance of success, although I do not express whether it is a good or
certain chance, with respect to the pre-December 1997 period, if applicable.
Mr. Schneider is cautioned that he must provide proper evidence and submissions
in this regard at the proper time and place.
Therefore, the decision to
extend the time for appeal was reasonable and should not be set aside. Mr.
Schneider represented himself, with assistance from his wife, and says he
incurred no expenses with regard to this application, therefore no costs will
be awarded.
"Roger T. Hughes"
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