Date:
20090120
Dockets: A-329-08
A-372-08
Citation: 2009 FCA 14
CORAM: DESJARDINS J.A.
BLAIS J.A.
RYER J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES
AND SOCIAL DEVELOPMENT CANADA
Appellant
and
MARLENE
LAYDEN
Respondent
Heard at Ottawa,
Ontario, on January 20,
2009.
Judgment delivered from the Bench at Ottawa, Ontario, on January 20, 2009.
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS
J.A.
Date:
20090120
Dockets: A-329-08
A-372-08
Citation:
2009 FCA 14
CORAM: DESJARDINS
J.A.
BLAIS
J.A.
RYER
J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES
AND SOCIAL DEVELOPMENT CANADA
Appellant
and
MARLENE
LAYDEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on January 20, 2009)
DESJARDINS
J.A.
[1]
These
two appeals have been consolidated by order of Sexton J.A. These reasons for
judgment shall therefore be filed in both A-329-08 and A-372-08.
[2]
Appeal
A-329-08 is an appeal of a decision of an applications judge (Mactavish J.),
[2008] F.C.J. No. 783, allowing the respondent’s application for judicial
review of the decision of a member of the Pension Appeals Board, who granted the
Minister leave to appeal a decision of the Review Tribunal granting the
respondent’s disability pension.
[3]
At
issue in this appeal is whether the applications judge erred in her
articulation of the duty of disclosure required in an ex parte
application for leave to appeal to the Pension Appeals Board (rule 7 of the Pension
Appeals Board Rules of Procedure (Benefits)) (C.R.C., c. 390).
[4]
At
issue in appeal A-372-08, being an order by Mactavish J. dated Jan 26, 2008 is
whether the Court should intervene in the applications judge’s discretionary
order as to costs.
[5]
The
Minister has conceded that appeal A-329-08 should be dismissed because of two
factual misrepresentations that were correctly found by the applications judge
to have been made in the application for leave.
[6]
In determining that this
appeal should be disposed of on the basis of these factual errors, we
specifically take no position as to the correctness of the observations of the
applications judge with respect to the extent of the duty of disclosure upon
any party – the Crown or the individual claiming benefits or other rights under
the Canada Pension Plan, R.S. 1985, c. C-8 – who seeks leave to appeal
from a decision of the Review Tribunal.
[7]
The determination of
this issue is not necessary for the disposition of this appeal, as it was
similarly unnecessary for the disposition of the application before the
applications judge. In short, this is an issue that is best left for
determination in another case at some future time.
[8]
With respect to the
matter of costs, given that there was material non-disclosure on two factual
matters, we find that the order of costs should not be disturbed.
[9]
The
respondent requests that this Court decide the application for leave to appeal
on the basis of the record before it, rather than having the matter referred back
to the Chairman or Vice-Chairman or a designated member of the Pension Appeals
Board.
[10]
On
an application for judicial review, the reviewing court can only exceptionally decide
a case on the merits. In Wiebe Door Services Ltd. V. Canada (Minister of
National Revenue – M.N.R.) [1986] 3 F.C. 553 at paragraph 19, MacGuigan
J. for the Court wrote that:
This Court cannot on a section 28
application engage in an examination of the evidence as such, unless a particular result is
so inevitable on the facts that any other conclusion would be perverse.
[11]
This
case was later
followed by Robertson J. for the Court in 872538 Ontario Inc. v. Canada (Minister of
National Revenue) [1994] F.C.J. No. 235 at paragraph 3.
[12]
Where
an application is successful, the matter must then be referred back to the deciding
authority with a direction (see paragraph 18.1(3)(b) of the Federal Courts
Act R.S.C. 1985, c. F-7) (see also Jada
Fishing Co. Ltd. and Evco Fishing Ltd. and The Minister of Fisheries and
Oceans and The Pacific Region Licence Appeal Board – Groundfish Panel, 2002
FCA 103).
[13]
In
the case at bar, the record does not allow for one conclusion which would be inevitable
on the facts.
[14]
For
these reasons, both appeals will be dismissed with costs.
"Alice
Desjardins"
“I
agree.
Pierre Blais J.A.”
“I
agree.
C. Michael Ryer J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-329-08
A-372-08
STYLE OF CAUSE: MINISTER
OF HUMAN RESOURCES AND SOCIAL DEVELOPMENT CANADA
and
MARLENE
LAYDEN
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 20, 2009
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS J.A.
BLAIS J.A.
RYER
J.A.
DELIVERED FROM THE BENCH BY: DESJARDINS J.A
APPEARANCES:
|
Dale L. Noseworthy
|
FOR THE APPELLANT
|
|
Loreen
Irvine
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE
APPELLANT
|
|
Howard Ryan
Kelford Knott & Dixon
Smiths Falls, Ontario
|
FOR THE
RESPONDENT
|
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