Date:
20070502
Docket: A-242-06
Citation: 2007
FCA 178
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
SHARLOW
J.A.
BETWEEN:
MEHDI ATRI
also known as MAZIYAR ATRI
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on May 2,
2007)
EVANS J.A.
[1]
This
is an application for judicial review by Mehdi Atri, also known as Maziyar
Atri, of a decision of the Pension Appeals Board, dated April 17, 2006,
allowing an appeal by the Minister of Social Development from a decision of the
Review Tribunal. The Tribunal had allowed Mr Atri’s appeal from the Minister’s
decision that he was not eligible for a retirement pension because he was not
60 years of age.
[2]
Mr
Atri came to Canada from Iran in 1985 as a
refugee. Like many refugees, Mr Atri arrived without any identity documents
which, he said, he had given to those who had assisted him to travel to Canada.
[3]
The
dispute between Mr Atri and the Minister concerns his date of birth. Mr Atri
says that he was born in Iran on August 20, 1942, and has attained the
age of 60. Relying on Canadian documents in the name of Maziyar Atri (including
a record of landing, an application for permanent residence, a certificate of
Canadian citizenship, a health care card, and a British Columbia identity
card), the Minister says that the applicant was born in 1953 and has therefore
not reached pensionable age.
[4]
The
factual background of this case is confusing, and it is not the function of
this Court on an application for judicial review to attempt to sort it out. On
the record before us, the Court cannot accede to Mr Atri’s request for an order
requiring the Board to find as a fact that he was born on August 20, 1942.
Nonetheless, a short summary is necessary to understand the issue that we must
decide.
[5]
Mr
Atri says that his date of birth according to the Persian calendar is 29,
Mordad 1321, which translates into August 20, 1942 in the Gregorian calendar.
The Board seems to have accepted Mr Atri’s testimony that he had little
knowledge of English, and none of French when he arrived in Canada. He said
that he does not know how the immigration officer entered his date of birth as
September 1, 1953.
[6]
This
date was entered on his visa and record of landing, and application for
permanent residence. He says that on his application for permanent residence he
entered the years of his schooling in Iran to make them consistent
with a date of birth in 1953. Since 2000, Mr Atri has attempted, without
success, to persuade Canadian authorities to amend these documents to show his
date of birth as August 20, 1942.
[7]
Mr
Atri also states that in 1995 he obtained from Iran, through his
sister, a duplicate copy of a re-issued Identification Booklet, with an
original issue date of September 2, 1942. He says that this is a birth
certificate. It is in the name of Mehdi Atri; the applicant’s Canadian documents
are in the name of Maziyar Atri. He also produced an Exemption from Military
Service Booklet, issued in Iran in 1964, showing Mehdi Atri’s year of
birth as 1942.
[8]
In
its reasons, the Board does not refer specifically to these documents, nor
explain why it prefers the immigration documents as proof of Mr Atri’s age. In
our view, Mr Atri is entitled as a matter of fairness to be told by the Board why
it did not accept the Iranian documents as proof of his age, especially since
he says that the Identification Booklet is a birth certificate.
[9]
Birth
certificates are one of the categories of documents on which the Minister must
determine the age and identity of a claimant: Canada Pension Plan
Regulations, C.R.C. c. 385, subsections 47(1) and (3). The Board does not
refer in its reasons to the provisions of section 47.
[10]
We
are all of the view that, by not analysing the conflicting evidence before it,
the Board has failed to discharge its statutory duty to provide adequate
reasons for its decision. On the basis of the reasons given by the Board, we
cannot perform a meaningful judicial review in order to determine whether it
committed any reviewable error in reversing the Review Tribunal.
[11]
Accordingly,
the application for judicial review will be allowed with costs, the decision of
the Board will be set aside and the matter remitted for re-determination by the
Board differently constituted.
"John
M. Evans"
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-242-06
STYLE OF CAUSE: MEHDI ATRI (MAZIYAR ATRI) v. AGC
PLACE OF
HEARING: Vancouver, British Columbia
DATE OF
HEARING: May
2, 2007
REASONS FOR
JUDGMENT BY: LÉTOURNEAU
J.A.
EVANS J.A.
SHARLOW
J.A.
DELIVERED
FROM THE BENCH BY: EVANS
J.A.
DATED: May 2, 2007
APPEARANCES:
Kevin O’Callaghan FOR
THE APPLICANT
Carole Vary FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
|
Fasken Martineau DuMoulin LLP
Vancouver, B.C.
|
FOR THE
APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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