Date: 20110228
Docket: A-337-10
Citation: 2011 FCA
75
CORAM: EVANS J.A.
DAWSON J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
PAUL
ANDREWS
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Vancouver,
British Columbia, on February 28, 2011.
Judgment delivered from the Bench at Vancouver, British Columbia, on February 28, 2011.
REASONS
FOR JUDGMENT OF THE COURT BY: LAYDEN-STEVENSON
J.A.
Date: 20110228
Docket: A-337-10
Citation: 2011 FCA 75
CORAM: EVANS
J.A.
DAWSON J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
PAUL ANDREWS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on February 28, 2011)
LAYDEN-STEVENSON
J.A.
[1]
Mr.
Andrews seeks judicial review of a decision of the Pension Appeals Board (PAB)
dated August 26, 2010. We are of the view that his application must be
dismissed.
[2]
Mr.
Andrews has a lengthy history in relation to his claim for disability benefits
under section 42 of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the
Act). He initially applied for benefits in April, 1997. After a number of
hearings and appeals, on October 3, 2003, a third Review Tribunal granted him
disability benefits. In accordance with the provisions of the Act, the date of
his deemed disability was January, 1996. Mr. Andrews did not appeal that
decision. However, he did dispute the calculation of his benefits.
[3]
Upon the
request of Mr. Andrews, the Minister reconsidered the quantification and
concluded that the pension was properly calculated. Mr. Andrews unsuccessfully
appealed the Minster’s reconsideration to a Review Tribunal. On March 1, 2006,
the PAB dismissed an appeal from the Review Tribunal’s decision. In so doing,
the PAB determined: (1) the late application provision under subsection 44(1)
did not apply to Mr. Andrews; (2) the deduction provisions of sections 48 and
56 did not apply to him; and (3) the incapacity provisions contained in section
60 did not apply to him either. On December 15, 2006, this Court dismissed an
application for judicial review of the PAB decision. The Supreme Court denied
leave to appeal on February 9, 2007.
[4]
Mr.
Andrews continued to forward correspondence, which can be described
benevolently as confusing, to the PAB. Eventually, a hearing before the PAB was
held on December 10, 2009. In a decision dated August 26, 2010, the PAB
identified three issues that appeared to arise from Mr. Andrews’ various
communications: (1) a constitutional issue; (2) a request for discovery; and
(3) a request to re-open the matter based on new facts. The PAB dismissed all
of the “applications”. It is this PAB decision that is the subject of the
application for judicial review before us.
[5]
It is
evident that Mr. Andrews continues to be dissatisfied with the amount of his
disability benefits and believes that his payments should be retroactive to
1979 (the time of his first injury), or at least to 1993, when he last worked.
In our view, his most recent “application” to the PAB is but another attempt to
revisit the quantum of his benefit. As previously noted, all avenues of appeal
with respect to that issue have been exhausted.
[6]
The PAB
concluded that the nature of the proposed constitutional issue was not
specified and remained unclear, even at the hearing. In any event, Mr. Andrews
conceded that he had not served a notice of constitutional question under rule
10.2(1) of the Rules of Procedure of the Pension Appeals Board (the Rules) and
section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7. Consequently,
the PAB declined to address the constitutional “application”. It did not err in
so doing.
[7]
Regarding
the issue of new facts, subsection 84(2) of the Act permits an applicant to
apply to re-open a previous decision based on new facts. Mr. Andrews did not
allege in his written submissions that the PAB erred in dismissing his new
facts application. It would be difficult for him to do so since he admitted at
the hearing before the PAB that he did not have any new facts to present.
Although he suggested on the hearing of this application that two documents did
constitute new evidence, those documents do not meet the threshold of new facts
as the concept is understood in law.
[8]
Finally,
with respect to his application for discovery under rule 15 of the Rules, the
PAB found that the request appeared to be based on the hope that Mr. Andrews
could “find someone in the Ministry that would say that he was disabled before
the date of his deemed disability.” The PAB went on to explain that even if he
were to be given such a right, he would not be able to find anyone with the
requisite statutory authority to conclude that he was disabled before the date
determined by the Review Tribunal. In the end, the PAB denied the request
describing it as a “fishing expedition in a pond containing no fish.” We agree
with that observation.
[9]
For these
reasons, the application for judicial review will be dismissed.
“Carolyn
Layden-Stevenson”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-337-10
STYLE OF CAUSE: PAUL
ANDREWS v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Vancouver,
British Columbia
DATE OF HEARING: February 28, 2011
REASONS FOR JUDGMENT EVANS J.A.
OF THE COURT BY: DAWSON J.A.
LAYDEN-STEVENSON J.A.
DELIVERED FROM THE BENCH BY: LAYDEN-STEVENSON J.A.
APPEARANCES:
|
Paul Andrews
|
FOR
THE APPLICANT
(self-represented)
|
|
Nancy Luitwieler
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
N/A
|
FOR THE APPLICANT
(self-represented)
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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