Date:
20080221
Docket:
A-527-06
Citation:
2008 FCA 69
CORAM: DESJARDINS
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
ROMAIN
RICHARD
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Fredericton, New
Brunswick, on February 21, 2008)
TRUDEL
J.A.
[1]
This is an
application for judicial review of a decision of the Pension Appeals Board
(PAB) dated October 17, 2006. The PAB upheld a decision of the Review Tribunal
(RT) of July 28, 2004, which found the respondent disabled within the meaning
of the Canada Pension Plan, R.S.C. 1985, c. C-8, (CPP) as of May 1998.
[2]
Pursuant
to subsection 84(2) of the CPP, the RT was considering the respondent’s
application to reopen a prior decision dated August 21, 2000 (2000 decision).
Background
[3]
Mr.
Richard, the respondent, first applied for CPP disability benefits in July
1999. His request was denied initially and upon reconsideration by the Minister
of Human Resources and Development (minister). The RT dismissed his appeal by
its 2000 decision.
[4]
On May 23,
2002, the respondent applied a second time for CPP disability benefits.
[5]
Once
again, the minister denied his request initially (July 2002), and upon
reconsideration (December 2002). The respondent appealed the decision to the RT.
[6]
On March
23, 2004, pending the determination of a date for the hearing, the respondent
made his subsection 84(2) application to the RT to rescind or amend the 2000
decision on the basis of “new facts”.
[7]
This is
the application which lead the RT, on July 28, 2004, to decide that the
respondent was “deemed disabled, for payment purposes, as of May 1998 … [and
that] such disability continued, without interruption, until the date of his
second application” (RT 2004 decision, p. 7). As stated previously, the PAB
upheld the decision. Hence the present application for judicial review.
The applicant’s submissions
[8]
The applicant
submits that the decision of the PAB is patently unreasonable. The grounds of
appeal transpire from the proposed issues to be determined: (applicant’s
memorandum, at paragraph 61)
a. the application to reopen the
initial RT decision dated August 21, 2000 on the basis of “new facts” under
section 84(2) was a collateral attack on the Minister’s decision in the second
application and therefore improper;
b. the reasons provided by the
PAB in its decision of October 17, 2006 are inadequate and therefore not reviewable;
c. the evidence filed by the
Respondent in support of his application to reopen the initial RT decision was
inadequate to meet the test for new facts:
i.
firstly,
whether the proposed “new facts” were discoverable, i.e. that the new facts
were not known to the Respondent at the time of or prior to the hearing before
the RT and that the new facts could not, with due diligence, have been
discovered sooner; and
ii.
Secondly,
where they were material, i.e. that the new facts could reasonably be expected
to change the outcome of the initial decision by the RT; and
d. In the event that the
materials were “new facts”, whether the prior decision ought to be rescinded or
amended on the basis of these new facts; …
[9]
The
respondent has made no submissions.
New
facts and prior evidence
[10]
In his
request to reopen the 2000 decision, the respondent refers the RT to two
documents dated July 21, 2003 as constituting “new facts”: an AP spine bone
density report and a left femur bone density report (applicant’s record, Vol.
1, pages 293-299).
[11]
At
paragraph 2 of its decision, the PAB frames its task in an appeal from a
decision under section 84(2). It states:
[2] … the Board must
consider the facts on which the Tribunal’s decision was originally based (in
this case,…[the 2000 decision]) and the evidence that it admitted as “new
facts” before ruling on the merits of the application.
[12]
The PAB
goes on saying:
[3] In
order to consider and find the evidence as “new facts,” the evidence sought to
be introduced must meet a two-part test: (1) the evidence must not have been
discoverable before the original hearing by the exercise of reasonable
diligence; and (2) there must be a reasonable possibility, as opposed to
probability, that the evidence, if admitted, could lead the Review Tribunal to
change its original decision.
[13]
Regarding
Dr. Quintal’s report of 2001, the PAB notes that “it was not in existence to be
discovered in 2000”, ignoring the fact that it must have been “in existence to
be discovered” at the time of the second application in May 2002 (at paragraph
4).
[14]
Throughout
its decision, the PAB cites from previous reports signed by Dr. Quintal and
found in the respondent’s record (paragraphs 4-7).
[15]
Regarding
the 2003 bone density reports, the PAB writes that “they were not in existence
at the date of the original hearing … in June 2000 … although somewhat similar
to previous bone density report” (at paragraphs 4 and 17).
[16]
Finally,
the PAB finds that the respondent “has clearly proven, on a balance of
probabilities, by overwhelming evidence and in particular the medical evidence,
that he was disabled … in May 1998” (at paragraph 18).
Analysis
[17]
To
succeed, the applicant must show that the PAB’s decision is patently
unreasonable (Taylor v. Canada (Minister of Human Resources Development),
2005 FCA 293; Osborne v. Canada (Attorney General), 2005 FCA 412;
Canada (Minister of Human Resources Development) v. Patricio,
2004 FCA 409; Canada (Minister of Human Resources Development) v. Wade,
2001 FCA 286).
[18]
The RT had
to determine first if the two documents could be admitted as new facts because
(1) they establish the existence of a condition which was in existence at the
time of the original hearing but could not have been discovered with the
exercise of reasonable diligence and; (2) this evidence may reasonably be
expected to affect the outcome (Mazzotta v. Canada (Attorney General),
2007 FCA 297 at paragraph 54; Canada (Minister of Human Resources
Development v. McDonald), 2002 FCA 48 at paragraph 2; Leskiw
v. Canada (Attorney General), 2003 FCA 345, at paragraph 5; Kent
v. Canada (Attorney General), 2004 FCA 420 at paragraph 34).
[19]
Once it
was determined that those two reports qualified as “new facts”, the RT had to
determine if, combined with the documents that were before it on August 21,
2000, the respondent was disabled within the meaning of the CPP as of May 1998.
[20]
The RT did
not proceed this way. In its decision, it referred to the entire file of Mr.
Richard, and treated as “new facts” not only the documents which were introduced
as such by the respondent, but two other documents that were reviewed during
the second application. It appears as though the RT collapsed two proceedings
in one and heard, at the same time, the section 84(2) application and the
appeal on the second application. Yet, it is clear from the decision of the RT
that it understood its mandate to be restricted to a subsection 84(2) review:
“This is an application, under Subsection 84(2) of the Canada Pension Plan,
to reopen the Review Tribunal decision dated August 21, 2000” (Applicant’s
Record, Vol 1, Tab 3-P at p.81). [I underline]
[21]
By
upholding the RT decision and its particular review process of the respondent’s
application, the PAB committed a patently unreasonable error warranting this
Court’s intervention.
[22]
As noted,
the RT, in the course of this confused process, treated as “new facts” evidence
which had been tendered by the respondent in the course of his second
application and which was now before the RT as result of his appeal against the
minister’s second decision. In my view, “new facts” within the meaning of
subsection 84(2) cannot include facts that are before the RT by way of an
appeal pursuant to 82(1).
[23]
This
leaves the 2003 bone density reports as the only documents which could qualify
as “new facts”. The question whether the RT would have considered these
reports, looked upon independently, as “new facts”, is unclear. This is
particularly so since the RT did not single out the 2003 reports in its reasons
as it immediately embarked on the examination of evidence submitted by the
respondent in the course of his second application, application which was not,
at the time, before the RT.
[24]
In the
circumstances, it is best to leave this matter to be determined by the RT in
the first instance.
Costs
and Conclusions
[25]
The
applicant seeks his costs. Considering that the PAB’s decision goes well
beyond the allegations of the respondent’s section 84(2) application, and that
numerous grounds of appeal bear on the RT’s review process, we feel that it would
be unfair to award the costs against the respondent.
[26]
Therefore,
the application for judicial review will be allowed without costs and the
decision of the Pension Appeals Board, dated October 17, 2006, will be set
aside. The matter will be referred back to the Pension Appeals Board with the
direction to send it back to a differently constituted Review Tribunal for a redetermination
of the respondent’s application to reopen the Review Tribunal decision, dated
August 21, 2000 on the basis of the alleged “new facts”, described as an AP
spine bone density report and a left femur bone density report, both dated July
21, 2003.
"Johanne
Trudel"
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