Date: 20050913
Docket: A-277-04
Citation: 2005 FCA 293
CORAM: DÉCARY J.A.
LINDENJ.A.
SEXTON J.A.
BETWEEN:
FREDERICK E. TAYLOR
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on September 13, 2005.)
SEXTON J.A.
[1] This is an application for judicial review of the April 20, 2004 decision of the Pension Appeals Board (the 'Board'). The issue here is whether the Board erred in refusing to rescind or amend its earlier decision based on new facts pursuant to s. 84(2) of the Canada Pension Plan (the 'Plan'). The application is not the first time this matter has been considered.
[2] The applicant's first application for disability benefits was made in 1990 and was denied. It was appealed and on February 10, 1994 the appeal was denied.
[3] In July 1996 the applicant filed a second application for disability benefits. It was denied by the Minister initially and after reconsideration. It was further denied by the Review Tribunal in June of 1998 and leave to appeal to the Board was denied in 1999. The applicant applied to judicially review this decision in the Federal Court, that application was dismissed in May of 2000. In that application the applicant sought to adduce the same report of Dr. Bugeja which he now says contains new facts. The Federal Court rejected the report as "new evidence" because due diligence had not been shown by the applicant in obtaining it.
[4] In August of 2000, the applicant filed his third application for disability benefits and it also was denied both initially and after reconsideration. The applicant appealed the Minister's decision to the Review Tribunal and also sought to reopen the Review Tribunal's earlier decision pursuant to s.84(2) of the Plan.
[5] On April 29, 2002, the review tribunal dismissed the applicant's appeal.
[6] On July 2, 2002, the applicant sought and was granted leave by the Board to appeal the decision of the Review Tribunal.
[7] On January 22, 2004, the applicant's appeal was heard by the Board where the main issue before the Board was whether the same report by Dr. Frank Bugeja dated May 10, 1999, met the test for admission and consideration of "new facts" and if so whether it was material. On April 20, 2004 the Board dismissed the applicant's appeal.
[8] The applicant was under the medical care of Dr. Bugeja from October 1991 to June 1993. The applicant testified before the Board that he did not feel that a report was necessary from Dr. Bugeja because he had reports from other doctors. When he was unsuccessful, he later requested a report from Dr. Bugeja who submitted one dated May 10, 1999 and it is this report which the applicant again alleges constitutes new facts.
[9] The Pension Appeals Board relied on the case of Minister v. Human Resources v. McDonald, 2002 FCA 48, for the proposition that for new facts to be admissible they must not have been previously discoverable with reasonable diligence and they must also be material. The Board found that the facts were previously discoverable and in any event found that the report simply to be "a rehash of all of the evidence already considered by the Board previously".
[10] The applicant submits that the test for admissibility of new facts as articulated in Minister of Human Resources Development v. McDonald where this Court stated that "new facts must not have been previously discoverable with reasonable diligence and must be material", is not settled law. The applicant submits that this statement was obiter dicta and the point was not actually argued in the McDonald case.
[11] We do not agree that the statement quoted in McDonald is obiter dicta or that it is not the proper test to be applied. Furthermore this Court confirmed in Kent v. Canada, 2004 FCA 420, that the test set out in McDonald is applicable.
Materiality and Due Diligence
1. Standard of Review
[12] Materiality and due diligence are questions of mixed fact and law with a heavy emphasis on fact. Discoverability is obviously a question of fact. The standard of review for types of questions such as this is patent unreasonableness and this is accepted by the applicant: see Kent (supra) at paragraph 34; Spears v. Canada, 2004 FCA 193 at paragraph 10.
2. Was the Bugeja Report Previously Discoverable and Was It Material
[13] Because Dr. Bugeja treated the applicant between 1991 and 1993, it cannot be said that his report was not discoverable in August, 2000, the time of the third application. What happened was that the applicant apparently felt it was unnecessary because he had other medical reports. He was entitled to take that position but having taken it and run the risk of not asking for a report from Dr. Bugeja, it cannot be said that these are new facts. They are old facts which simply got put into writing in 1999.
[14] While it appears that the issue of whether this report of Dr. Bugeja constitutes "new facts" is res judicata, the decision of the Federal Court, dated May 26, 2000, never having been appealed, it is not necessary for us to decide this as we are of the view that it was not patently unreasonable for the Pension Appeals Board to hold that the Bugeja report did not constitute "new facts" but was simply a rehash of old evidence previously considered by the Board.
[15] This application will therefore be dismissed without costs.
"J. Edgar Sexton"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-277-04
(APPEAL FROM REASONS FOR JUDGMENT OF THE PENSION APPEALS BOARD DATED APRIL 20, 2004, NO. CP20684)
STYLE OF CAUSE: Frederick E. Taylor v. Minister of Human Resources Development
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: September 13, 2005
REASONS FOR JUDGMENT OF THE COURT: Décary J.A.
Linden J.A.
Sexton J.A.
DELIVERED FROM THE BENCH BY: Sexton J.A.
APPEARANCES:
| John D. Whyte
|
FOR THE APPLICANT
|
| Bahaa I. Sunallah
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| Lakes Straith & Whyte
Barristers & Solicitors
North Vancouver, British Columbia
|
FOR THE APPLICANT
|
| John H. Sims, Q.C.
Deputy Attorney General of Canada
Department of Justice
Ottawa, Ontario
|
FOR THE RESPONDENT
|
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