Date: 20110513
Docket:
A-317-10
Citation: 2011 FCA 165
Present: SHARLOW
J.A.
BETWEEN:
GREG MCMEEKIN
Applicant
and
MINISTER OF
HUMAN RESOURCES AND SKILLS DEVELOPMENT
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
Before
me is a motion by applicant
Greg McMeekin, filed April 29, 2011, seeking a number of orders, which I summarize
as follows:
a)
an
order compelling the respondent, the Minister of Human Resources and Skills
Development, to pay costs of $4,000 related to his previous notice of motion;
b)
an
order declaring the Minister to be in default of the order of Justice Trudel
dated April 7, 2011 because, contrary to that order, the Minister’s written
examination questions were not served by April 15, 2011, and compelling the
Minister to pay costs and damages of $40,000 caused by extended delays and
hardship relating to that default;
c)
an
order compelling the Minister to pay the costs of this motion of $6,000;
d)
an
order compelling the Minister to disclose all information about Mr. McMeekin,
including all of his Canada Pension Plan files, all medical files, all
documents presented to Justice Desmarais in relation to the August 13, 2010
order of the Pension Appeals Board, and complete case files;
e)
an
order granting Mr. McMeekin summary judgment in this application because of
unreasonable delay, abuse of process, abuse of privilege and abuse of the Canadian
Charter of Rights and Freedoms;
f)
an
order awarding Mr. McMeekin $500,000 for the hardship brought on by
unreasonable delays and abuse, $4000 for travel and accommodations to file a
response to the Minister’s motion, and $6000 for travel and accommodations to
file this motion;
g)
an
order awarding Mr. McMeekin $10 million damages;
h)
an
order compelling the Minister to introduce legislation to assist deaf people to
receive disability pensions without further determination;
i)
an
order sealing all of Mr. McMeekin’s medical records and documents related to
this proceeding;
j)
an
order requiring Mr. McMeekin to be paid disability benefits retroactive to
February 6, 1996;
k)
an
order compelling the Minister to pay $40,000 in costs for travel and medical
expenses relating to these proceedings from 2003;
l)
if
Mr. McMeekin is required to answer the Minister’s questions despite being
served late, an order that the questions be dealt with at an oral hearing in Edmonton.
[2]
Mr.
McMeekin has asked for an oral hearing of his motions. Unlike the Federal
Court, the Federal Court of Appeal does not schedule specific days for hearing motions.
The usual practice in this Court is to deal with all motions on the basis of
written submissions under Rule 369 of the Federal Courts Rules. The moving
party or a respondent is entitled to request an oral hearing, but such a
request is granted only in cases of urgency or other special circumstances. The
record before me discloses nothing to justify an oral hearing of Mr. McMeekin’s
motions. Therefore, it will be dealt with on the basis of the documents
submitted.
[3]
The
Minister has not filed a responding motion record. Instead, counsel for the
Minister has submitted to the Court a letter dated May 5, 2011 (a copy of which
has apparently been sent to Mr. McMeekin) bearing the caption “Request for
Directions”.
[4]
The
directions sought by the Minister could and should have been brought by motion
and I do not propose to address them, with one exception. The Minister has
asked for the appointment of a case manager. This is the Minister’s second such
request. As outlined in more detail below, Justice Trudel determined only last
month that case management is not required in this case. In my view, nothing
has happened to justify a renewal of the Minister’s request, or a reversal of
Justice Trudel’s decision on that point. The Minister’s request for case
management will be denied.
[5]
The
Minister’s May 5, 2011 letter contains a number of submissions that in effect
are responses to the motions of Mr. McMeekin in his motion record. All of these
could and should have been made in a respondent’s motion record. Despite this
irregularity of form, I will treat the May 5, 2011 letter as the submissions
made by the Minister in response to Mr. McMeekin’s motions. I note that Mr.
McMeekin has done the same, because by letter to the Court dated May 6, 2011,
he has replied to the May 5, 2011 letter.
Background
[6]
In
order to put this matter in context, it is useful to consider some of the
history of this matter. Mr. McMeekin lives in Hay River, NWT. He applied in June of 2006 for a
disability pension under the Canada Pension Plan, on the basis that he
is unable to work because of nerve deafness. His application was denied by the
Minister.
[7]
Mr.
McMeekin appealed the Minister’s decision to the Review Tribunal. According to
the reasons for decision of the Review Tribunal, it was agreed that Mr.
McMeekin’s “minimum qualifying period” (MPQ) ended in December of 2002. On that
basis, the Review Tribunal considered the main issue to be whether the evidence
established that, as of December of 2002, it was more likely than not that Mr.
McMeekin had a disability as of that date that met the statutory test of
disability. The Review Tribunal determined that the evidence was not sufficient
to establish the requisite degree of disability as of that time. Therefore, in
a decision dated March 26, 2008, the Review Tribunal dismissed Mr. McMeekin’s
appeal.
[8]
Mr.
McMeekin applied to the Pension Appeals Board for leave to appeal the decision
of the Review Tribunal. Leave was granted by letter dated August 5, 2008. A
hearing of the Pension Appeals Board was convened in Edmonton on September 3, 2009.
[9]
At
that hearing, the Minister filed a motion alleging that Mr. McMeekin had
refused to comply with section 68 of the Canada Pension Plan Regulations,
which requires a claimant for a disability pension to provide information and
submit to a medical examination if requested by the Minister. The Minister was
seeking an order dismissing Mr. McMeekin’s appeal, or alternatively an order
requiring Mr. McMeekin to comply with section 68, and deferring the hearing of
his appeal until he had complied. In response to that motion, Mr. McMeekin
explained the facts from his point of view, alleging among other things that the
Minister had failed to cooperate with Mr. McMeekin when he made himself
available for a medical examination. In any event, Mr. McMeekin ultimately
agreed to submit to a medical examination. The Minister’s motion was granted,
and the hearing of the Pension Appeals Board was adjourned.
[10]
The hearing
of the Pension Appeals Board was rescheduled for September 1, 2010 in Edmonton. However, on August 12,
2010, counsel for the Minister wrote to the Registrar of the Pension Appeals
Board, sending a copy Mr. McMeekin. The letter reads as follows:
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We are
writing to you with respect to the above noted appeal which is scheduled to
proceed to hearing on Wednesday, September 1st, 2010.
Please be
advised that the Minister’s position in this matter is that the Appellant became
disabled within the meaning of the Canada Pension Plan as of December 2002.
Pursuant to paragraph 44(1)(b)(ii) of the CPP the earliest he can be deemed
disabled is March 2005 based on the date of his application for benefits. As
such, and pursuant to section 69 of the Plan he is entitled to benefits
commencing in July 2005.
We
can further advise that the Minister will not be calling any witnesses.
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[11]
This
letter concedes the main point decided by the Review Tribunal against Mr.
McMeekin, i.e., whether he had a severe and prolonged disability as of December
of 2002.
[12]
The August
12, 2010 letter also indicates that Mr. McMeekin’s entitlement to a disability
pension would begin as of July of 2005. The Minister’s position seems to be that,
by virtue of the combined operation of subparagraph 44(1)(b)(ii) and section 69
of the Canada Pension Plan, Mr. McMeekin’s entitlement to retroactive
benefits is limited to the 12 months immediately preceding his application in
June of 2006. Whether this is correct in law is a question that may be
determined in this application.
[13]
On August
20, 2010, apparently in response to the August 12, 2010 letter, Justice
Desmarais, a member of the Pension Appeals Board, issued an order reading as
follows:
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Further to
a letter received August 13, 2010 from Allan Matte, Counsel for the Minister,
it was brought to the Board’s attention that their position in this matter is
that the Appellant became disabled within the meaning of the Canada Pension
Plan (CPP) as of December 2002.
Pursuant to
subparagraph 44(12)(b)(ii) of the CPP the earliest the Appellant can be
deemed disabled is March 2005 based on the date of his application for
benefits and pursuant to section 69 of the CPP he is entitled to benefits
commencing in July of 2005.
There is
no reasonable explanation for any further delay and in the absence of no
[sic] prejudice to the Appellant, I am prepared to find this matter settled
and finalized in favour of the Appellant receiving a disability benefit.
It is also
desirable that there be finality to proceedings under the Canada Pension
Plan. This Board has no further jurisdiction, as the Minister’s Consent to
Judgment offers the Appellant the maximum allowable under section
44(1)(b)(ii).
IT
IS ORDERED in camera that the appeal be granted, and, that the
previously scheduled hearing of this matter be cancelled.
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[14]
On
September 10, 2010, Mr. McMeekin filed an application for judicial review of
this order, seeking numerous remedies, including an order entitling him to a
disability pension for a further retroactive period. Mr. McMeekin alleges among
other things that the procedure followed by Justice Desmarais in allowing his
appeal in secret, without giving him an opportunity to be heard, was a denial
of procedural fairness. As I understand Mr. McMeekin’s position, he would have
made submissions, if allowed to do so, on the appropriate period for
retroactive disability benefits, and he would have sought other relief from the
Minister.
[15]
Mr.
McMeekin has apparently served the Minister with an affidavit in support of his
application for judicial review, as he was required to do. The Minister wishes to
cross-examine Mr. McMeekin on his affidavit.
[16]
On
March 3, 2011, the Minister moved for an order extending the time for serving
written examination questions, compelling Mr. McMeekin to answer the questions,
and dismissing this proceeding, Mr. McMeekin responded by submitting a response
and counter motion. The Crown, alleging a number of deficiencies in Mr.
McMeekin’s material, sent a letter to the Court requesting directions and the
appointment of a case manager.
[17]
The
questions that the Minister originally wished to have Mr. McMeekin answer were
included in the motion record. They are as follows:
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1.
Your name is Greg
McMeekin?
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2.
You reside at
[address]?
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3.
You commenced the
proceedings in Federal Court of Appeal A-317-10?
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4.
You swore the
affidavit entitled “Affidavit of Greg McMeekin” dated October 8, 2010?
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5.
Do you agree that
in paragraph 2 of your affidavit you allege that a private in camera meeting
took place between Allan Matte, Counsel for HRSDC and Justice Robert C.
Desmarais on August 20, 2010?
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6.
Are you aware that
Allan Matte swears in his affidavit at paragraph 15 that no such meeting took
place between himself and Justice Desmarais?
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7.
Do you agree that
you have provided no evidence to substantiate your allegation that such
meeting took place between Allan Matte and Justice Desmarais?
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8.
In paragraph 2 of
your affidavit you allege that Justice Desmarais “upon request from Allan
Matte” handed down the August 20, 2010 order (at Exhibit A, p. 5-6 of Allan
Matte’s Affidavit)?
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9.
Do you agree that
the letter from Mr. Matte to the Pension Appeals Board, dated August 12, 2010
(Exhibit A, p. 238 of Allan Matte’s Affidavit), indicated the Minister’s
change in position with respect to your application for CPP Disability
benefits, namely, that the Minister considered you disabled within the
meaning of the CPP as of December 2002?
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10.
Do you agree that
the letter from Mr. Matte to the Pension Appeals Board, dated August 12, 2010
(Exhibit A, p. 238 of Allan Matte’s Affidavit), also indicated that the
Minister would be calling no witnesses at the upcoming hearing?
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11.
Do you agree that
Mr. Matte’s letter to the Pension Appeals Board, dated August 12, 2010
(Exhibit A, p. 238 of Allan Matte’s Affidavit), is therefore indicative of
his presumption that the PAB hearing would be going ahead as scheduled, as he
indicated that the Minister would be calling no witnesses at the upcoming
hearing?
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12.
Do you agree that
the letter from Mr. Matte to the Pension Appeals Board, dated August 12, 2010
(Exhibit A, p. 238 of Allan Matte’s Affidavit) did not request an Order from
the Pension Appeals Board?
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13.
Do you agree that
you have provided no evidence to substantiate your allegation that Justice
Desmarais’ Order was requested by Mr. Matte?
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14.
Do you agree that
Mr. Matte’s letter to the Pension Appeals Board dated August 12, 2010
(Exhibit A, p. 238 of Allan Matte’s Affidavit) did not disclose that a
settlement offer had been made to you?
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15.
Do you agree that it
was you who disclosed to the Pension Appeals Board that a settlement offer
had been made to you by the Minister?
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16.
Do you agree that
it was you who disclosed to the Pension Appeals Board that you rejected the
Minister’s settlement offer?
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17.
Do you agree that
you disclosed to the Pension Appeals Board in a letter dated December 23,
2009 (Exhibit A of Trevor Bark’s affidavit and Exhibit E of the Applicant’s
Affidavit) that a settlement offer had been made to you by the Minister and
that you rejected it?
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18.
Do you agree that
you disclosed to the Pension Appeals Board in a letter dated February 26,
2010 (Exhibit B of Trevor Bark’s affidavit) that a settlement offer had been
made to you by the Minister and that you rejected it?
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19.
Do you agree that
you disclosed to the Pension Appeals Board in an undated letter entitled
“Letter of Response to Mr. Stevenson’s December 15, 2009 offer” (Exhibit A of
Trevor Bark’s Affidavit and Exhibit E of the Applicant’s Affidavit) that a
settlement offer had been made to you by the Minister and that you rejected
it?
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20.
Do you agree that
in your affidavit you question Justice Desmarais’ ability to remain impartial
and independent?
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21.
Do you agree that
in your affidavit you allege that Justice Desmaris is biased?
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22.
Do you agree that
you have presented no evidence to substantiate the allegations in your
affidavit against Justice Desmarais?
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23.
Do you agree that
the Pension Appeals Board has no jurisdiction to award you monetary damages?
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24.
Do you agree that
the Pension Appeals Board has no jurisdiction to award you interest on monies
claimed by you?
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25.
Do you agree that
the Pension Appeals Board has no jurisdiction to award you reimbursement for
medical costs?
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26.
Do you agree that
the Pension Appeals Board has no jurisdiction to award you retroactive benefit
payments back to the date you were born?
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27.
Do you agree that
the Pension Appeals Board has no jurisdiction to order a review by the Law
Society of Upper Canada?
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28.
Do you agree that
the Pension Appeals Board has no jurisdiction to order a review by the Canadian
Judicial Council?
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29.
Do you agree that
the Pension Appeals Board has no jurisdiction to order an amendment to the Canada
Pension Plan?
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30.
Do you agree that
you did not raise a challenge under the Canadian Charter of Rights and
Freedoms before the Pension Appeals Board?
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31.
Do you agree that
as an applicant for CPP Disability benefits, you have the onus to present any
medical records you would like to be considered by the decision maker?
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32.
Do you agree that
there is no obligation on the Minister to arrange for an independent medical
examination (IME)?
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33.
Do you agree that
the Order of Justice Desmarais dated August 20, 2010 (at Exhibit A, p. 5-6 of
Allan Matte’s Affidavit) means that you have been awarded CPP Disability
benefits?
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34.
Do you agree that
the Order of Justice Desmarais dated August 20, 2010 (at Exhibit A, p. 5-6 of
Allan Matte’s Affidavit) awards you the maximum retroactive payment
permissible under the CPP?
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35.
Do you agree that
the Pension Appeals Board had no jurisdiction to award you anything further?
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[18]
The
motions and cross motions were dealt with by Justice Trudel on April 7, 2011. She
concluded that the Minister acted reasonably in requiring answers to these
questions although she suggested, without requiring, that questions 6, 7, 9 to
14, 22 to 32 and 35 be removed as argumentative or relating to questions of
law.
[19]
By order
dated April 7, 2011, Justice Trudel required the Minister to serve Mr. McMeekin
again with its list of questions before April 15, 2011, and required Mr.
McMeekin to serve and file his affidavit responding to the questions no later
than May 16, 2011, failing which his application could be dismissed without
further delay. Mr. McMeekin’s motion and counter motion were dismissed, and the
Minister’s request for case management was also dismissed. Justice Trudel
provided the parties with a memorandum explaining her order.
The present motions of Mr. McMeekin
[20]
Mr.
McMeekin alleges in his notice of motion that the Minister failed to serve its
list of questions by April 15, 2011. In his affidavit, he says that he did not
receive them before April 20, 2011. However, he does not deny that he received
them and I infer that he has received them.
[21]
The
Minister’s letter of May 5, 2011 says that the list of questions was amended in
accordance with Justice Trudel’s suggestions. Appended to the Minister’s letter
is a copy of the affidavit of Kathleen Gates sworn May 3, 2011, stating that
the questions were given to Canada Post for priority delivery on April 8, 2011
(which was a Friday) and that according to the tracking records of the postal
authorities, they were delivered to Mr. McMeekin at his address in Hay River on
April 15, 2011 (the following Friday).
[22]
According
to Rule 140, the Minister was entitled to serve the questions on Mr. McMeekin
in one of a number of ways. One permissible way was to send it by mail to Mr.
McMeekin’s address for service pursuant to Rule 140(1)(b). That is the
method chosen by the Minister. It was not mailed by ordinary mail or registered
mail, but by priority post. There is no rule stipulating an effective date of
service for documents sent by priority post. However, as a practical matter, it
is reasonable to infer that something sent by priority post and actually
delivered on April 15, 2011 would have been received by the addressee on that
date, or at least within the 10 days stipulated by Rule 141(1) for the
effective date of service by ordinary mail. I infer, therefore, that Mr.
McMeekin was effectively served on Friday, April 15, 2011, or if not, then no
later than Monday, April 18, 2011.
[23]
This
leaves it uncertain as to whether or not Mr. McMeekin was served within the
time stipulated by the order of Justice Trudel. However, even if he did not
receive the questions by April 15, 2011, the stipulated date, he probably
received them no later than 3 days after that date. I acknowledge Mr.
McMeekin’s consistent complaints about the many years of delay that followed
his initial 2006 application for a disability pension, but there is no evidence
that Mr. McMeekin would have been prejudiced by a few days delay in receiving
the questions that the Minister is entitled to have answered.
[24]
In
the circumstances, I will extend the time within which Mr. McMeekin must serve
and file his affidavit in response to the Minister’s questions. His original
deadline was May 16, 2011. I will extend it to May 31, 2011. I will also
stipulate that if Mr. McMeekin fails to meet this new deadline, his application
may be dismissed without further notice.
[25]
In
my view Mr. McMeekin has not justified any further relief in connection with
the service of the Minister’s questions, or any of the other orders he is
seeking. In particular, I see no need to require that the questions be answered
at an oral hearing in Edmonton. Mr. McMeekin has
demonstrated his ability to communicate in writing, and to prepare, serve and
file an affidavit.
[26]
That
is sufficient to dispose of Mr. McMeekin’s motions, but I have some additional
observations.
[27]
First,
contrary to Mr. McMeekin’s apparent understanding, this Court has no jurisdiction,
in the context of an application for judicial review of a decision of the Pension
Appeals Board, to compel the Minister to pay damages or to introduce
legislative amendments. It would be counter productive for Mr. McMeekin to reassert
such claims in this proceeding.
[28]
Second,
this Court has no jurisdiction to require the payment of retroactive disability
benefits except in accordance with the Canada Pension Plan. Nor does
this Court have the jurisdiction to order the payment of retroactive disability
payments as compensation for alleged wrongful behaviour on the part of the Minister,
Ministerial officials, or counsel for the Minister. Again, it would be counter
productive for Mr. McMeekin to reassert such claims in this proceeding.
[29]
Third,
Mr. McMeekin’s various claims for costs, including the costs of travel in
connection with these proceedings, are matters that are best dealt with at the
conclusion of these judicial proceedings, and not in the context of pre-hearing
motions. Costs generally are a matter within the discretion of the panel
hearing the application, and are governed by specific provisions in the Federal
Courts Rules including Tariff B, which would result in an award of costs
considerably less than Mr. McMeekin is now claiming. Mr. McMeekin will be
entitled to ask for costs in accordance with the Federal Courts Rules,
and will likely be awarded costs if his application is successful. However he
should be aware that the Minister is also entitled to claim costs, and may be
awarded costs if this application is dismissed.
[30]
Fourth,
it is not clear whether this Court has the jurisdiction in this proceeding for
an order requiring the production of documents not already on the record, or an
order sealing records in the possession of the Minister. Even if such relief is
legally possible, it would be an extraordinary remedy that cannot be justified
on the basis of the material submitted by Mr. McMeekin.
[31]
Fifth,
it appears that Mr. McMeekin has to date been travelling from Hay River to Edmonton to file documents in
this matter. However, he may be incurring travel costs unnecessarily. The
Registry in Edmonton will accept documents
for filing when delivered by courier or mail.
[32]
Finally,
I note that Mr. McMeekin alleges in the affidavit included in his motion record
that the Minister or counsel for the Minister acted improperly in influencing
Justice Trudel to make her order of April 7, 2011. That allegation is unsupported
by any evidence on the record. Mr. McMeekin is advised that it is considered an
abuse of the Court’s process to make unsubstantiated allegations of improper
behaviour in connection with Court proceedings. Such an abuse of process could
result in the dismissal of this application.
Summary of conclusions
[33]
For
the reasons stated above, the motions of Mr. McMeekin will be dismissed. Mr. McMeekin
will be ordered to serve and file his affidavit of responses to the Minister’s
questions by May 31, 2011, failing which this application may be dismissed
without further notice. The Minister’s request for case management will be
denied.
“K.
Sharlow”
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