Docket: T-1827-15
Citation:
2016 FC 503
Ottawa, Ontario, May 4, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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ROBERT O'KEEFE
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application by the Crown for judicial
review of a decision of the Social Security Tribunal-Appeal Division [SST-AD]
granting the Respondent leave to appeal a decision of the SST-General Division
[SST-GD] under section 58 of the Department of Employment and Social Development
Act, SC 2005, c 34 [DESDA].
I.
Background
[2]
Mr. Robert O’Keefe [the Respondent] began
receiving Canada Pension Plan, RSC 1985, c C-8 [CPP] retirement
benefits in June 2012 at the age of 60. From May until August 24 of 2012, he
worked as a seasonal labourer for an auto salvage company.
[3]
From September 2012 onwards, the Respondent has
received regular Employment Insurance benefits.
[4]
On November 13, 2012, the Respondent was
admitted to hospital due to shortness of breath and swelling in his lower
extremities, which had commenced approximately one week prior. He has since
been diagnosed with congestive heart failure.
[5]
The Respondent applied for CPP disability
benefits, indicating that he ceased working due to congestive heart conditions.
The Department of Employment and Social Development Canada denied his
application initially and also upon reconsideration on the basis that under the
CPP a person in receipt of a retirement pension can only cancel it in
favour of a disability pension if the claimant is deemed to be disabled before
the month in which the retirement pension became payable, referred to as the Minimum
Qualifying Period [MQP] (CPP, sections 42(2), 44, 66.1(1.1)).
“Disability” is defined as a physical or mental disability that is “severe” (i.e.
incapable regularly of pursuing any substantial gainful occupation) and
“prolonged” (i.e. the disability is likely to be long term and of indefinite
duration or is likely to result in death) (CPP, subsection 42(2)(a)).
[6]
Accordingly, the Respondent must have established
a severe and prolonged disability prior to May 31, 2012 (the Respondent’s MQP).
The initial and reconsideration decisions found that the information failed to
show the Respondent was prevented from doing some type of work since May 2012
due to disability: he worked until August 2012, collected regular Employment
Insurance benefits, and only first developed symptoms and received treatment
for congestive heart failure in November 2012.
[7]
The Respondent appealed to the SST-GD. His
application was initially incomplete, and upon completion, was late. On October
30, 2014, the Respondent provided written explanation as to why he should be
granted an extension.
[8]
On July 31, 2015, the SST-GD denied the
Respondent’s request for an extension of time. The SST-GD assessed the four
factors to consider in granting an extension of time to file an appeal as set
out in Canada (Minister of Human Resources Development) v Gattellaro,
2005 FC 883. Three of the four factors – intention to pursue an appeal,
reasonable explanation for the delay, and no prejudice to the other party in
extending the time to appeal – favoured the Respondent. Nevertheless, the
SST-GD found that the determinative factor precluding any success upon appeal
was the lack of an arguable case. As the Respondent’s disability commenced
after he began receiving his early retirement pension, the SST-GD found he is
not eligible to receive a disability pension.
[9]
The Respondent sought leave to appeal this
decision.
[10]
On September 28, 2015, the SST-AD granted the
Respondent leave to appeal to the SST-AD, finding that the appeal fell within
one of the grounds of appeal set out in section 58 of the DESDA and that
it may have a reasonable chance of success.
[11]
First, the SST-AD found that the Respondent’s
argument that the SST-GD erred in not considering his 2012 pension contributions
disclosed no ground of appeal. The SST-GD did not err in not specifically
addressing his contributions in 2011 or 2012, as the Respondent was in receipt
of a CPP retirement pension when he applied for a disability pension.
[12]
Second, the SST-AD concluded that the SST-GD
correctly found that the Respondent’s appeal was filed late. Although the
Respondent filed an appeal on March 3, 2014, the application was not complete
until May 29, 2014 – over 90 days following the communication of the SST-GD
Decision to the Respondent on January 16, 2014.
[13]
Third, the SST-AD determined that the SST-GD
correctly articulated the applicable law for granting an extension of time to
file the complete Notice of Appeal. In finding that the Respondent had a
continuing intention to appeal, a reasonable explanation for the delay and that
the opposing party would not be prejudiced if the matter were to proceed, the
SST-GD made no error.
[14]
However, the SST-AD held the SST-GD “may” have
erred in law in concluding that the Respondent failed to present an arguable
case on the basis that he did not commence treatment for his condition until
after he began receiving the retirement pension, which demonstrated his
capacity to work at the relevant time. The SST-AD cites Stanziano v Minister
of Human Resources Development, November 26, 2002, CP17926 (PAB) as
standing for the principle that a disability pension claimant working after the
MQP does not automatically preclude their entitlement to a disability pension.
[15]
The SST-AD granted leave to appeal, concluding
that “this may have been an error of law in the General
Division decision”, which is a ground of appeal that may have a
reasonable chance of success on appeal under subsection 58(1)(b) of the DESDA.
II.
Issues
[16]
The issues are:
A.
Is the judicial review premature?
B.
Is the SST-AD Decision granting leave to appeal
reasonable?
III.
Standard of Review
[17]
The applicable standard of review when reviewing
the SST-AD’s decision to grant or deny leave to appeal is reasonableness, with
substantial deference to the SST-AD (Canada (Attorney General) v Hines,
2016 FC 112 at para 28 [Hines]; Canada (Attorney General) v Hoffman,
2015 FC 1348 at paras 26, 27 [Hoffman]; Tracey v Canada (Attorney
General), 2015 FC 1300 at para 17 [Tracey]).
IV.
Analysis
[18]
The relevant provisions of the governing
legislation are attached as Annex A.
[19]
For the reasons that follow, I am allowing this
application.
A.
Is the judicial review premature?
[20]
The Respondent made no submissions with respect
to this application. However, counsel for the Applicant brought the issue of
prematurity to the Court’s attention.
[21]
The Applicant submits that this Court’s review
of the SST-AD’s Decision is final, is not interlocutory and therefore is not
premature. Should I find otherwise, the Applicant argues the Court nevertheless
ought to exercise its discretion and hear the application.
[22]
The issue arises from several Federal Court
judgments that previously characterized decisions granting leave made by the Pension
Appeals Board [PAB], the predecessor to the SST-AD, as interlocutory, or as
having “the look and feel of an interlocutory decision”
(see Layden v Canada (Minister of Human Resources and Social Development),
2008 FC 619 at paras 24-26; Mrak v Canada (Minister of Human Resources &
Skills Development), 2007 FC 672 at para 36; Canada (Attorney General) v
Landry, 2008 FC 810 at para 21; McDonald v Canada (Minister of Human
Resources and Skills Development), 2009 FC 1074 at para 16). In these cases
the Court nonetheless typically assumed jurisdiction to judicially review
decisions of a designated member of the PAB granting or refusing leave.
[23]
The general rule is that “absent exceptional circumstances, courts should not
interfere with ongoing administrative processes until after they are completed,
or until the available, effective remedies are exhausted” and that “very few circumstances qualify as ‘exceptional’ and the
threshold for exceptionality is high” (Canada (Border Services
Agency) v CB Powell Ltd, 2010 FCA 61 at paras 30-33).
[24]
However, I find that a purposive and contextual
analysis of the statutory scheme governing the appeal process under the DESDA
indicates the decision granting leave in this instance is final, as it is
determinative and dispositive of rights of the parties.
[25]
The finality of the decision is codified in
section 68 of the DESDA:
[t]he decision of the Tribunal on any
application made under this Act is final and, except for judicial review under
the Federal Courts Act, is not subject to appeal to or review by any
court.
[26]
The DESDA does not give statutory
authority to the SST-AD to appeal or to review its own final and binding
decisions regarding leave, nor is any other appeal mechanism provided. Upon
granting or refusing leave, the SST-AD is functus officio with respect
to their decision under section 58 of the DESDA.
[27]
Further, subsection 28(g) of the Federal
Courts Act, RSC 1985, c F-7 [the Act], grants the Federal Court of Appeal
authority over decisions made by the SST-AD, yet the Act expressly excludes
decisions made under sections 57(2) (granting an extension to apply for leave)
and 58 (governing grounds of appeal and the granting of leave), among others.
Under subsection 18(1)(b) and section 26 of the Act, the Federal Court is
granted exclusive original jurisdiction over decisions of federal boards,
commissions or tribunals, which includes those decisions of the SST-AD
expressly excluded under section 28. In my view, a purposive construction of
the relevant provisions mandates intervention of the Federal Court by way of
judicial review.
[28]
Moreover, the legislative scheme governing the
SST-AD is distinguishable from the former PAB scheme and the cases decided
under it which viewed such decisions as interlocutory. Under sections 55 to 58
of the DESDA, the test for obtaining leave to appeal and the nature of
the appeal has changed. Unlike an appeal before the former PAB, which was de
novo, an appeal to the SST-AD does not allow for new evidence and is
limited to the three grounds of appeal listed in section 58. Also, under
subsection 58(5), once leave is granted, the application for leave becomes the
notice of appeal. Further, the SST-AD’s leave decision demarcates the issues on
appeal that have a reasonable chance of success (Belo-Alves v Canada
(Attorney General), 2014 FC 1100 at paras 71-73).
[29]
The DESDA makes clear that Parliament
intended that the SST-AD only hear appeals properly falling within a ground of
appeal and that have a reasonable chance of success. The DESDA does not
grant the SST-AD broad discretion in deciding leave, and should the SST-AD
grant leave to appeal in other than the instances outlined in section 58, they
have improperly stepped beyond the delegated authority provided them by their
governing statute.
[30]
While I understand the concern that judicial
intervention in an administrative process is undesirable for a variety of
reasons – including fragmentation of the administrative process, increased cost
and delay, and potential mootness because of the tribunal’s ruling on another
aspect of the proceedings – none of those factors are of concern in the present
circumstances.
[31]
Concerns over fragmentation of the process are negated
by the fact that the leave to appeal requirement in sections 55 to 58 of the DESDA
is a discernible step in the appeal process that results in a final decision.
[32]
Moreover, to refuse to hear this application on
the basis of non-interference would not decrease cost and delay, but would
actually run contrary to principles of efficiency and judicial economy. The
undisputed facts of this case, and the very fact that an extension of time and
a full hearing of the merits of the appeal would not result in a different
outcome, justifies the Court’s intervention at this juncture. The same
arguments would be heard at the SST-AD and then again upon subsequent judicial
review, wasting both time and resources on an appeal that cannot succeed on
these facts, as discussed below.
[33]
This Court has exercised its jurisdiction to
judicially review decisions of the SST-AD granting leave to appeal (Hoffman,
above; Hines, above), and has also reviewed decisions denying leave in
this context (Tracey, above; Bellefeuille v Canada (Attorney General),
2014 FC 963 at paras 11, 12). Concerns over premature interference by the Court
with the expertise and delegated authority of the SST-AD in making leave
decisions applies equally to review of decisions denying leave, which are
reviewable.
[34]
Without a judicial review mechanism, any
opportunity to challenge decisions granting leave would be lost, and those
decisions would be immune to judicial oversight. In a case such as this one,
where the appeal has no chance of success, and where the SST-AD’s decision
granting leave was not only unfounded in the facts before it, but unjustified
according to section 58 the DESDA, judicial oversight is both warranted
and important to serve as guidance for future leave decisions to be made in accordance
with the legislation.
B.
Is the SST-AD Decision granting leave to appeal
reasonable?
[35]
Though I am sympathetic to the Respondent’s
medical diagnosis, I agree with the Applicant that on the facts before the
SST-AD, the Decision it came to is unreasonable.
[36]
Leave to appeal a decision of the SST-GD may be
granted only where a claimant satisfies the SST-AD that their appeal has a “reasonable chance of success” on one of the three
grounds of appeal identified in subsection 58(1) of the DESDA: (a) a
breach of natural justice; (b) an error of law; or (c) an erroneous finding of
fact made in a perverse and capricious manner or without regard for the material
before it. No other grounds of appeal may be considered (Belo-Alves, above,
at paras 71-73).
[37]
Subsection 58(2) provides that “leave to appeal is refused if the SST-AD is satisfied that
the appeal has no reasonable chance of success.”
[38]
An individual in receipt of a retirement pension
may only cancel it in favour of a disability pension if they are deemed
disabled before their MQP (CPP, sections 42(2), 44, 66.1(1.1)). There is
simply no evidence in the record before the SST-AD that the Respondent had a
severe and prolonged mental or physical disability before the month in which he
began to receive CPP retirement benefits that made him incapable
regularly of pursuing any substantially gainful occupation. The medical reports
on file demonstrate that the Respondent developed symptoms related to his
medical condition in November 2012, and that he presented with symptoms of
congestive heart failure in November 2013. These dates fall after his effective
retirement date, and he is thus statutorily barred from receiving a disability
pension in these circumstances.
[39]
The Decision is also unreasonable given that the
case upon which the SST-AD relied in granting leave clearly requires that the
claimant be disabled prior to the MQP. Again, there is no evidence of that in
this case.
[40]
In determining that the Respondent’s application
for leave might have a reasonable chance of success, the SST-AD must
correspondingly have concluded there was evidence of the Respondent’s
disability arising prior to expiry of his MQP. The SST-AD Decision provides no
explanation as to what basis it had for believing a disability existed, nor did
it identify any evidence of disability prior to the MQP in reaching its
decision. The evidence shows the Respondent’s medical condition first arose in
November 2012, and the Respondent has not alleged otherwise.
[41]
The SST-AD’s Decision falls outside the range of
acceptable, possible outcomes in light of the facts and the law, and its
reasons for granting leave to appeal on the basis that the appeal may have a reasonable
chance of success (i.e. that there was some evidence suggesting the Respondent
was disabled as defined by subsection 42(2) of the CPP prior to his MQP
of May 31, 2012), lack the transparency, intelligibility and justification
required to meet the reasonableness standard.
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