Date: 20070115
Docket: A-145-06
Citation: 2007 FCA 41
CORAM: LÉTOURNEAU
J.A.
MALONE
J.A.
RYER
J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES
DEVELOPMENT
Appellant
and
JOY HOGERVORST
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
This is an
appeal from a judgment of a judge of the Federal Court (judge) whereby he
dismissed an application for judicial review of a decision of a member of the
Pension Appeals Board (Board) rendered on June 6, 2005.
[2]
The member
granted the respondent an extension of time and leave to appeal a decision of a
Review Tribunal rendered on November 4, 1997. The generous limitation period of
ninety (90) days for this appeal had elapsed more than seven years prior to the
member’s decision.
[3]
There is
not the slightest doubt in my mind that this appeal ought to be allowed and
that the decision of the member, issued without any supporting reasons at all,
cannot be permitted to stand.
[4]
Before I
state the reasons why this appeal must be allowed, a review of the key facts
and procedural incidents is necessary.
FACTS AND PROCEDURE
[5]
At the age
of 46, the respondent, a registered nurse who represented herself throughout
the proceedings, applied for disability benefits under the Canada Pension
Plan, R.S.C. 1985, c. C-8 (the CPP). This first application was denied both
initially and upon reconsideration. The respondent appealed the decision. The
Review Tribunal, which dismissed the respondent’s appeal on November 4, 1997,
informed her that she could appeal the decision to the Board within ninety (90)
days or such longer period as the Chairman or Vice-Chairman of the Board might
allow. The respondent did not appeal the decision of the Review Tribunal, which
became final and binding under subsection 84(1) of the CPP. I will call this
decision of the Review Tribunal the RT-1 decision.
[6]
The
respondent made a second application for disability benefits in January 2000.
The contributory nature of the CPP requires that disability be established
within one’s contributory period. In this instance, based on her contributions,
the respondent’s contributory period ended on December 31, 1997.
[7]
Because
the RT-1 decision of November 4, 1997 was final and binding, the respondent,
through her second application, could be entitled to disability benefits only
if she established that she became disabled between November 5 and December 31,
1997, the day she last satisfied the contributory requirements.
[8]
The
respondent’s application was denied initially and upon reconsideration by the
appellant. An appeal was launched to a Review Tribunal, which dismissed the
respondent’s appeal. The Review Tribunal found that there were no new facts
with respect to the first decision and that it had not been satisfied that the
respondent had a severe and prolonged disability prior to December 31, 1997.
[9]
This
second Review Tribunal decision (hereafter called RT-2 decision), rendered on
October 1, 2001, was not appealed by the respondent and became final and
binding.
[10]
On
November 16, 2001, the respondent made an application pursuant to subsection
84(2) of the CPP to re-open the RT-2 decision. Subsection 84(2) authorizes a
Review Tribunal to rescind or amend its prior decision on the basis of new
facts.
[11]
The
respondent’s application under subsection 84(2) was heard on March 6, 2002 by a
Review Tribunal. The Tribunal found that the new evidence submitted by the
respondent did not meet the test for new facts. Her application was therefore
dismissed.
[12]
The
respondent was granted leave to appeal by the Board from that third decision of
a Review Tribunal (RT-3 decision). An objection to the jurisdiction of the
Board to hear the appeal was dismissed by the Board. This Court, in December
2004, quashed that decision of the Board and ruled that the Board had no
jurisdiction to hear that appeal since there were no new facts. The
respondent’s recourse was to seek judicial review of the RT-3 decision made
pursuant to subsection 84(2) in the Federal Court.
[13]
The
respondent did not apply for judicial review of the RT-3 decision. Rather, she
applied in March 2005 to a member of the Board for an extension of time and
leave to appeal the RT-1 decision rendered on November 4, 1997.
[14]
The
respondent’s application was made ex parte and allowed by a member of
the Board who, as previously mentioned, granted an extension of time and leave to
appeal without providing reasons, although more than seven years had elapsed
since the RT-1 decision had been rendered.
[15]
The
appellant unsuccessfully challenged the extension of time and leave decision by
way of judicial review in the Federal Court. His application was dismissed by
the Federal Court on March 30, 2006.
[16]
The
following chart with references to the Appeal Book summarizes the procedural
history of this case leading to this appeal:
|
Date
|
Event
|
Page
|
|
Aug. 1996
|
Respondent
applies for disability benefits. She is refused initially and on
reconsideration.
|
|
|
4 Nov. 1997
|
First Review
Tribunal (“RT-1”) dismisses respondent’s appeal
|
Vol. I, pp.
164-166
|
|
31 Dec. 1997
|
Respondent’s
contributory period ends
|
Vol. II, p. 610
|
|
Jan. 2000
|
Respondent makes 2nd application for
disability benefits - she is refused initially and on reconsideration
|
|
|
2 Oct. 2001
|
Second Review
Tribunal (“RT-2”) dismiss respondent’s appeal
|
Vol. III, p. 731
|
|
16 Nov. 2001
|
Respondent
applies to re-open RT-2 decision on basis of new facts
|
|
|
6 Mar. 2002
|
Third Review
Tribunal (“RT-3”) decides that respondent does not meet test for new evidence
|
Vol II, pp.
462-464
|
|
2 Oct. 2002
|
Member of Pension
Appeals Board grants respondent leave to appeal RT-3 decision
|
Vol III., p 739
|
|
14 Dec. 2004
|
Federal Court of
Appeal quashes PAB decision on basis that PAB has no jurisdiction to hear
appeals of “no new facts” decisions
|
Book of
Authorities, Tab 1 (2004 FCA 433)
|
|
6 June 2005
|
Member of PAB
grants extension of time and leave to appeal of RT-1.
|
Vol. I, p. 34
|
|
30 Mar. 2006
|
Federal Court
dismisses appellant’s application for judicial review.
|
Vol. I, p. 6
|
ANALYSIS
OF THE MEMBER’S AND THE FEDERAL COURT’S DECISIONS
[17]
The
judicial review proceedings before the Federal Court required that Court to
review the legality of the member’s decision to grant an extension of time and
leave to appeal the RT-1 decision. On appeal, our role consists in determining
whether the Federal Court committed errors in the exercise of its supervisory
function. In my respectful view, these are the errors that justify our
intervention.
The
member’s decision to grant leave to appeal the RT-1 decision amounts to a
collateral attack against the RT-2 decision
[18]
The RT-1
decision found that the respondent was not disabled for the period ending
November 4, 1997. The RT-2 decision came to the same conclusion for the period
from November 5 to December 31, 1997. Although they deal with different
periods, the RT-1 and RT-2 decisions are necessarily related as they both deal
with the issue of the respondent’s disability.
[19]
Indeed, a
finding of disability for the period ending November 4, 1997 could hardly co-exist
with a finding that the respondent is not disabled for the period from November
5, 1997 to December 31, 1997, especially since the RT-2 decision found that
there were no new facts with respect to the RT-1 decision. The RT-2 decision is
conclusive on the issue of the respondent’s disability for the period up to
December 31, 1997. Thus, an appeal against the RT-1 decision collaterally
attacks the RT-2 decision that is also final and binding for all purposes of
the CPP pursuant to subsection 84(1) of the CPP.
[20]
The
situation here is analogous to seeking a review of an initial decision without
challenging or addressing a subsequent decision reconsidering the same issue
and confirming the initial decision. These are two distinct decisions and the
second decision must be attacked directly, not collaterally: see Vidéotron
Télécom Ltée v. Communications, Energy and Paperworkers Union of Canada, 2005 FCA 90, at paragraph
12.
[21]
The judge
should not have permitted this collateral attack to go on. This Court ruled in Her
Majesty the Queen in the Right of Canada et al. v. Budisukma Puncak Sendirian
Berhad et al. (2005), 338 N.R. 2006, 2005 FCA 267, at paragraphs 61 and 62
(Berhad case) that collateral attacks against decisions that are final ought
to be precluded in the public interest since such attacks encourage conduct
contrary to the statute’s objectives and tend to undermine its effectiveness.
The
member’s decision to grant leave to appeal the RT-1 decision could give rise to
inconsistent decisions
[22]
A finding
of disability pursuant to the appeal against the RT-1 decision would be
inconsistent with, indeed in opposition to, the RT-2 and RT-3 decisions. As
this Court said in the Vidéotron Télécom Ltée case, at paragraph 13,
“the state and stability of the law would be ill served if two potentially
contradictory decisions were allowed to co-exist”, involving the same parties,
on the same issue.
[23]
Again, the
judge should have intervened and quashed the member’s decision in order to
prevent this kind of consequence.
The
member’s decision ignores and violates the finality principle with respect to
the RT-1, RT-2 and RT-3 decisions
[24]
In the Berhad
case, supra, at paragraph 60, this Court reiterated the principle that a
time-limit for the commencement of challenges to administrative decisions is
not whimsical. “It exists in the public interest, in order to bring finality to
administrative decisions so as to ensure their effective implementation without
delay and to provide security to those who comply with the decision or enforce
compliance with it, often at considerable expense”.
[25]
In the
present instance, this reminder carries even more weight since there were, in
addition to the RT-1 decision now being challenged, two subsequent final and
binding decisions of Review Tribunals, to the same effect as the RT-1 decision,
i.e. the RT-2 and RT-3 decisions.
[26]
Furthermore,
subsection 84(2) of the CPP provides a relief against an earlier decision when
new facts are discovered and submitted to the Review Tribunal. That relief was
sought by the respondent and led to the RT-3 decision. As previously mentioned,
the final finding of the RT-3 decision was that there were no new facts justifying
a reversal of the RT-2 decision. Such finding was consistent with a similar conclusion
of the RT-2 decision that there were no new facts since the rendering of the
RT-1 decision.
[27]
The
challenge to the RT-1 decision, if allowed to proceed, can lead to an
intolerable and prejudicial situation, both from the perspective of public
interest and fairness to the appellant. The judge erred in not recognizing and
giving effect to the principle of finality in these circumstances.
The
member’s decision to grant an extension of time to apply for leave to appeal and
leave against the RT-1 decision was an improper exercise of discretion
[28]
In my
respectful view, the grant by the member of an extension of time to file an
application for leave to appeal and leave against the RT-1 decision was an
improper exercise of discretion.
[29]
There was
a debate before the judge as to whether the member was under a statutory duty
to provide reasons when he granted the extension of time and leave. This misses
the point and totally ignores the facts and circumstances of this case.
[30]
First, the
granting, without any explanation or justification whatsoever, of an extension
of time and leave to challenge a final decision more than seven years after it
was rendered can only give rise to a reasonable inference that the discretion
was, if not arbitrarily, at least improperly exercised, especially when two
more binding and final decisions to the same effect on the same issue, between
the same litigants, remain effective and unchallenged.
[31]
Furthermore,
in such circumstances, it imposes upon the judge sitting in judicial review the
duty to scrupulously review the member’s decision and provide adequate reasons.
This, the judge undertook to do, but he misapplied the legal test governing the
issue.
[32]
There is
no dispute as to what the correct legal test is on a motion for an extension of
time to file an application for leave to appeal: see Marshall v. Canada,
2002 FCA 172; Neis v. Baksa, 2002 FCA 230. What is required is that
a) there
was and is a continuing intention on the part of the party presenting the
motion to pursue the appeal;
b) the subject matter of the appeal discloses an
arguable case;
c) there is a reasonable explanation for the
defaulting party’s delay; and
d) there is no prejudice to the other party in
allowing the extension.
[33]
This test
is not in contradiction with the statement of this Court made more than twenty
(20) years ago in Grewal v. Canada (Min. of Employment and Immigration), [1985] 2 F.C. 263 that the
underlying consideration in an application to extend time is to ensure that
justice is done between the parties. The above stated four-pronged test is a
means of ensuring the fulfillment of the underlying consideration. It ensues
that an extension of time can still be granted even if one of the criteria is
not satisfied: see Grewal v. Canada, supra, at pages 278-279.
a) The continuing intention to appeal the RT-1 decision
[34]
In the
present instance, the new application for benefits made in January 2000, which
led to the RT-2 decision, and the review of that decision in November 2001,
ending in the RT-3 decision, together with the more than seven-year delay
before seeking an extension of time to appeal the RT-1 decision, are compelling
evidence that the respondent had no intention, let alone a continuing
intention, to appeal the RT-1 decision within the 90 day appeal period and any
reasonable time thereafter.
[35]
A finding
by either the member or the judge that the respondent had a continuing
intention to appeal the RT-1 decision is nothing less than unreasonable in the
circumstances. The fact that the respondent was self-represented does not
justify a departure from the legal principles applicable. Only chaos can result
when decisions are made ad personam rather than according to the rule of
law. As our colleague Pelletier J.A. wrote in Wagg v. Canada, 2003 FCA
303, at paragraph 25:
[25] Putting the
matter another way, litigants who choose to represent themselves must accept
the consequences of their choice: Thus, while the Court will take into account
the lack of experience and training of the litigant, that litigant must also
realize that, implicit in the decision to act as his or her own counsel is the
willingness to accept the consequences that may flow from such lack of
experience or training (Lieb v. Smith, [1994] N.J. No. 199).
b) The existence of an arguable case
[36]
On the
issue of whether there is an arguable case, the judge wrote the following at
paragraph 17 of his decision:
[17] The record before
the Court demonstrates that the respondent has a strong prima facie case
that she is disabled with a severe and prolonged physical disability which
makes her incapable of regularly pursuing any substantial gainful occupation
and that this disability is likely to be of an indefinite duration. See
subsection 42(2) of the CPP attached. This is a finding of fact.
[37]
With due
respect, I believe the judge addressed the issue from a wrong perspective. The
question is whether the respondent has, at law, an arguable case. To put it in
other words, has the respondent, legally, a reasonable chance of success? At
best, this is a mixed question of fact and law.
[38]
I cannot
see how it can be said that the respondent has an arguable case when both the
RT-2 and RT-3 decisions, that are final and binding, have found that the
respondent was not disabled for the period up to December 31, 1997 and that
there were no new facts since the rendering of the
RT-1 decision.
c) A reasonable explanation for the delay
[39]
The
respondent has provided no explanation for the twenty-seven month period of inactivity
between the RT-1 decision (November 4, 1997) and her second application for
benefits (January 2000). The five-year period that followed was consumed by
procedures that were initiated by the respondent. Although there is an
explanation for that second period of time, that explanation is of little help
in justifying the inactivity with respect to the RT-1 decision. In fact, the
explanation shows that the respondent, at the relevant time, was not interested
in pursuing an appeal of the RT-1 decision since she had opted for other
recourses that turned out to be unsuccessful. The lack of success of these
other recourses cannot justify the additional delay of five years before
appealing the RT-1 decision.
d) The prejudice to the other party
[40]
The judge
came to the conclusion that there was no evidence on the record that the
appellant would be prejudiced if the extension of time was allowed. Of course,
there would be no such evidence since the application for the extension of time
and leave to appeal proceeded ex parte and the appellant was not heard
on the issue. Needless to say that the burden was on the respondent to show
that no prejudice would result to the appellant. The judge does not appear to
have considered the issue of prejudice from that perspective.
[41]
I agree
with Heneghan J. in Canada (Minister of Human Resources
Development) v. de Tommaso,
2005 FC 1531, at paragraph 20 where leave to appeal had been granted
approximately seven years after the time-limit had elapsed, that a new hearing
before the Board after such a lengthy and significant passage of time will, in
all likelihood, prejudice the appellant.
[42]
In
addition, the appellant, like the public and other parties to a litigation, has
an interest in the finality and certainty of decisions: see Canada (Minister of Human Resources
Development v. Gattellaro,
2005 FC 883 (F.C.). Uncertainty and prejudice to the appellant, and to the
public interest as well, are inevitable if collateral attacks are permitted on
the RT-2 and RT-3 decisions by allowing an appeal of the RT-1 decision to
proceed.
Whether the judge overstepped the
boundaries of judicial review
[43]
The
appellant submits in his memorandum of fact and law that the judge had come to
the conclusion that the respondent was disabled and that that conclusion
appeared to have influenced his decision to dismiss the appellant’s application
for judicial review. He submits a number of excerpts from the transcript of the
proceedings in support of his contention.
[44]
I need not
address this issue in view of the conclusion that I have reached on the other
grounds of appeal. I will, however, say this: I agree with the appellant that
the role of the judge was not to determine, or give a personal opinion as to,
the disability of the respondent.
[45]
The judge
felt under an obligation “to look after” self-represented litigants: see
Transcript of proceedings, appeal book, vol. III, tab 10, at page 906. Some of
the comments that he made, however, went beyond assistance to an unrepresented
litigant and were misplaced in the context of the proceedings that were before
him.
Whether the member of the Board erred in
hearing ex parte the application for leave
[46]
Rule 7 of
the Pension Appeals Board Rules of Procedure (Benefits) expressly states
that an application for leave to appeal “shall be disposed of ex parte
unless the Chairman or Vice-Chairman directs otherwise”. The appellant
recognizes that the member of the Board had the statutory authority to proceed
as he did.
[47]
However,
that being said, I would have thought that the whole process could have been
guided by some common sense. More than seven years had elapsed since the
rendering of the RT-1 decision that the respondent wanted to challenge. At all
times, the appellant was a party to all the proceedings instituted by the respondent.
In these unusual circumstances, the member of the Board should have sought a
direction from either the Chairman or the Vice-Chairman as to the
appropriateness of seeking submissions from the appellant in response to the
respondent’s application. This would have ensured fairness to the appellant and
increased the likelihood of a more enlightened decision as well as promoted the
credibility of the Board itself.
CONCLUSION
[48]
For these
reasons, I would allow the appeal and set aside the decision of the Federal
Court rendered on March 30, 2006. Proceeding to render the judgment that should
have been rendered, I would allow the appellant’s application for judicial
review and quash the decision of a member of the Board, dated June 6, 2005,
granting the respondent an extension of time and leave to appeal a decision of
a Review Tribunal rendered on November 4, 1997. Since there is no point in
sending the matter back for a new determination, I would dismiss the
respondent’s application for an extension of time and for leave to appeal: see Mobil
Oil v. Office des Hydrocarbures, [1994] S.C.R. 202, at page 228; Yassine
v. Canada (Minister of Employment and
Immigration,
[1994] F.C.JU. No. 949 (C.A.F.), at paragraph 9; Cartier v. Canada (Procureur général), [2002] A.C.F. no
1386, at paragraphs 31 to 33; Vézina v. Procureur général du Canada
(Ministre du Revenu national), 2003 CAF 67, at paragraph 7.
[49]
As the
appellant did not seek costs in this Court and in the Federal Court, I would
issue no order as to costs.
“Gilles
Létourneau”
“I
agree
B.
Malone J.A.”
“I
agree
C. Michael Ryer J.A.”
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