Date: 20040909
Docket: A-124-04
Citation: 2004 FCA 288
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
FABIAN L. FLEMING
Respondent
Heard at Ottawa, Ontario, on September 1, 2004.
Judgment delivered at Ottawa, Ontario, on September 9, 2004.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
DISSENTING REASONS BY: EVANS J.A.
Date: 20040909
Docket: A-124-04
Citation: 2004 FCA 288
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
FABIAN L. FLEMING
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] The convoluted issue in this application for judicial review is whether a Review Tribunal (the Tribunal), constituted pursuant to section 82 of the Canada Pension Plan (the Plan) to hear an appeal from a decision of the Minister of Human Resources (the Minister) under section 81 of the Plan denying a second application for benefits made by the respondent, has jurisdiction to determine as well, under subsection 84(2) of the Plan, whether a previous decision of the Tribunal which had dismissed an appeal from the decision of the Minister denying the first application should be rescinded or amended on new facts.
[2] In the rather peculiar and confusing circumstances of the case at bar, two applications for benefits by the respondent are at issue. The first application was made on November 5, 1996 and was dismissed by the Minister on March 17, 1997. A request for reconsideration was denied by the Minister on February 4, 1998. The respondent then appealed on May 7, 1998 to the Tribunal, which dismissed the appeal on May 10, 1999. The respondent did not appeal the Tribunal's decision to the Pension Appeals Board (the Board).
[3] It is common ground that the minimum qualifying period of the respondent ended on December 31, 1998 and that the Tribunal's decision of May 10, 1999 was res judicata with respect to this first application for benefits except for the possibility of rescission or amendment on new facts under subsection 84(2).
[4] A second application to the Minister was made on December 6, 2000. It was dismissed on April 20, 2001 and a request for reconsideration was denied on September 25, 2001. In his decision, the Minister, albeit in inept language, informed the respondent that he could no longer review his decision of March 17, 1997, as it was res judicata, that the proper avenue for the respondent was to ask the Tribunal under subsection 84(2) to revise on new facts its earlier decision of May 10, 1999, and that his qualifying period had ended on December 31, 1998.
[5] On January 7, 2002, the respondent appealed the Minister's decision of September 25, 2001, presumably on the only issues giving rise to an appeal from a section 81 decision in the case at bar, i.e. whether the earlier decision of March 17, 1997 was res judicata and whether the finding as to the end of the qualifying period was wrong.
[6] On October 17, 2002, the respondent filed an application "to reopen the decision of the Review Tribunal under subsection 84(2) of the Canada Pension Plan" (A.R., vol. 1, p. 210), that decision of necessity being the Tribunal's May 10, 1999 decision.
[7] In November 2002, a Review Tribunal was constituted under section 82 of the Plan to hear the respondent's appeal from the Minister's decision of September 25, 2001 made under section 81 of the Plan. While the document constituting the Review Tribunal is not in evidence, it appears from the very words of the Tribunal and from those of the Board in the impugned decision (to which I will refer later), that the Tribunal was not constituted for the purpose of dealing with the subsection 84(2) application of October 17, 2002 but was constituted solely for the purpose of dealing with the appeal from the decision of the Minister dated September 25, 2001.
[8] Counsel for the Minister explained to the Court, at the hearing, that the practice of the Commissioner of Review Tribunals is always to constitute two distinct tribunals to deal respectively with section 81 decisions and subsection 84(2) applications. Counsel added that in the case at bar, no tribunal had yet been appointed to deal with the subsection 84(2) application and that should the Minister succeed in the within application for judicial review, he would endeavour to have the Commissioner constitute such a tribunal as expeditiously as possible. In other words, the respondent, should he lose before us, would still get the benefit of a hearing with respect to his subsection 84(2) application.
[9] I note in passing that some additional confusion results from the numerous references, in the record and in the pleadings, to review tribunals constituted under section 82 and review tribunals constituted under subsection 84(2). There is no such thing, in the Plan, as a review tribunal constituted under subsection 84(2). By virtue of section 2 of the Plan, "Review Tribunal" means a "Review Tribunal established under section 82." It would be more proper, then, to refer to review tribunals constituted for the purpose of dealing with appeals pertaining to section 81 proceedings and to review tribunals constituted for the purpose of dealing with subsection 84(2) applications. As it is clear from the record that the Tribunal in the instant case was constituted for the sole purpose of dealing with the appeal of the Minister's decision made under section 81 of the Plan, it is not necessary for me to decide whether the Commissioner may constitute a single review tribunal to deal with both types of proceedings.
[10] Getting back to the chronology of events, the Tribunal, on January 6, 2003, dismissed the appeal filed with respect to the September 25, 2001 decision, but in words which indicate that it was also, or perhaps instead, dealing with the subsection 84(2) application of October 17, 2002 which was not properly before it. Be that as it may, the end result was that the Tribunal made a finding that there were no new facts.
[11] The respondent sought leave to appeal from the Board. Leave was granted with respect to the following issue: "Does a new test of a disease, not available at a previous time (i.e. prior to the time of an earlier Review Tribunal hearing) constitute new facts?" (A.R., vol. 2, p. 441).
[12] Prior to the hearing of the appeal by the Board, the Minister made a motion to dismiss the appeal for lack of jurisdiction of the Board to hear the appeal. According to the Minister, if the hearing before the Tribunal was with respect to the respondent's second application, res judicata applied as a result of the Minister's decision on the first application (see Canada (Minister of Human Resources Development) v. Macdonald, 2002 FCA 48), the respondent was bound by the latter decision and the Tribunal could not indirectly review it. If, on the other hand, the hearing before the Tribunal was with respect to the subsection 84(2) application to rescind or amend the Tribunal's May 10, 1999 decision, the Board had no jurisdiction to entertain an appeal from the decision of the Tribunal that there were no new facts (see Oliveira v. Canada (Minister of Human Resources Development), 2004 FCA 136).
[13] The Board dismissed the motion. It did not have the benefit of the recent decisions of this Court in Macdonald (supra) and Oliveira (supra). Its reasons cannot be reconciled with these decisions and are clearly wrong. It may well be, as the Board found, that the Tribunal erred in its understanding of the concept of "new facts," but as the Tribunal ended up finding that there were no new facts, the error, if any, is reviewable not by the Board on an appeal but by the Federal Court through judicial review.
[14] I would allow the application for judicial review, set aside the decision of the Board and refer the matter back to the Board for a new determination on the basis that the motion to dismiss the appeal for lack of jurisdiction ought to have been granted.
[15] This order leaves pending the decision of the Tribunal which was not, properly speaking, before us and which, at best, disposes of the appeal filed on January 7, 2002. Counsel for the Minister has informed the Court that the Minister does not intend to rely on it but will, rather, press the Commissioner to constitute another review tribunal to deal expeditiously with the subsection 84(2) application filed on October 17, 2002 which has yet to be properly dealt with.
[16] It goes without saying that the respondent, in the circumstances, should be entitled to his costs in this Court.
"Robert Décary"
J.A.
"I agree.
Gilles Létourneau, J.A."
EVANS J.A. (dissenting)
[17] I have had the advantage of reading the reasons of my colleague, Décary J.A, and gratefully adopt his account of the relevant facts. I append as a schedule to these reasons the text of the relevant statutory provisions. However, with the greatest respect, I have reached a different conclusion, and would dismiss the Minister's application for judicial review.
[18] To send Mr. Fleming back to start afresh before a Review Tribunal to determine whether the evidence that he adduced constitutes "new facts" for the purpose of subsection 84(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8, and, if it does, whether it warrants the rescission of the Tribunal's 2003 decision, seems to me unduly cumbersome. Mr. Fleming has already had a full hearing before and a decision from a Review Tribunal on the "new facts" issue. To return the matter to the level of a Review Tribunal would also open up the prospect of another round of appeals to the Board or of an application for judicial review to the Federal Court, with a right of appeal to this Court. In my view, Mr. Fleming has been the victim of bureaucratic muddle and should be given every opportunity to have the merits of his appeal decided by the Board without further delay, and the unnecessary expenditure of resources.
[19] I agree with counsel for the Minister that the basis of the Review Tribunal's 2003 decision is not altogether clear. The Tribunal may have meant either that the evidence adduced by Mr. Fleming did not constitute "new facts" which would permit it to reopen the Tribunal's 1999 decision under subsection 84(2), or that there were "new facts" but they were insufficient to establish that Mr. Fleming was eligible for long term disability benefit. The Tribunal's reasons are frankly ambiguous. This is a matter to which I return later in these reasons.
[20] I also agree with counsel for the Minister that the procedural history of the handling of Mr. Fleming's application to the Minister in the year 2000 for a reconsideration of his claim for long term disability benefit on the ground of "new facts" is awash with confusion at all levels of administrative decision-making. After receiving the Minister's decision-letter of September 25, 2001, it is quite understandable that Mr. Fleming would have formed the erroneous impression that he could appeal to a Review Tribunal the Minister's conclusion that there were no "new facts" warranting a favourable decision.
[21] However, I do not agree with counsel's submission that the Pension Appeals Board should have granted the Minister's motion to dismiss the appeal on the ground that, since the Review Tribunal from which Mr. Fleming appealed to the Board was constituted to hear an appeal, and the "new facts" issue was only relevant to an application to reconsider the Tribunal's decision of 1999, the Review Tribunal was without jurisdiction to consider the "new facts" issue in its decision of 2003.
[22] It is true that, although the document constituting the Review Tribunal was not before the Court, the Tribunal states at the start of its reasons that it was constituted under section 82 of the Act to hear the appeal of Mr. Fleming from the Minister's decision of September 25, 2001, dismissing his application for benefits in 2000. It is also common ground that only two issues were strictly relevant to that appeal. First, whether the 1999 decision of the Review Tribunal, which dismissed Mr. Fleming's appeal from the Minister's 1996 decision that he was not eligible for long term disability benefit precluded the Minister from making a decision on the merits of the application made by Mr. Fleming in 2000. Counsel agreed that an appeal on this ground was bound to fail because the doctrine of res judicata applied to Mr. Fleming's 2000 application to the Minister. A second issue was whether Mr. Fleming's minimum qualifying period ended in December 1998, an issue not apparently raised by Mr. Fleming before the Tribunal.
[23] Further, because of the existence of the 1999 Tribunal decision, it was not open to the Minister in 2000 to rescind her 1996 decision on the ground of "new facts". Hence, the Tribunal erred in law in our case if, in its 2003 decision, it thought that the "new facts" issue arose under the section 82 appeal of the decision by the Minister under section 81 that Mr. Fleming was not eligible for long term benefit, rather than on an application under subsection 84(2) for a reconsideration of the 1999 Tribunal decision. "New facts" can arise as an issue on an appeal to a Review Tribunal from the Minister if the Minister has been asked to rescind or vary her own decision pursuant to subsection in 84(2) and has decided that there are new facts, but that they do not warrant rescission of the earlier decision (Peplinski v. Canada, [1992] 1 F.C. 222 (T.D.)), and a Review Tribunal had not decided an appeal from the Minister's earlier decision. But this is not, of course, our case.
[24] However, in my opinion, it is not open to the Minister on the facts before us to insist now that the Review Tribunal should only have considered the appeal and, in particular, whether Mr. Fleming's application to the Minister in 2000 for long term disability benefit was res judicata or that an error had been made with respect to the minimum qualifying period. It is clear that whether there were "new facts" justifying a change to the 1999 decision was always presented to the Tribunal by the Minister as the primary issue in the case, and was the basis on which the Tribunal proceeded.
[25] Thus, in "HRDC Explanation of the Decision under Appeal to the Review Tribunal", dated June 4, 2002, (Applicant's Record, vol I, p. 46) it is said:
The issue in this case is whether there are any "new facts" which could
cause the Review Tribunal to change its decision of February 23, 1999.
And, in the "Case Submission to the Review Tribunal", it was argued on behalf of the Minister that the Tribunal should dismiss the appeal because the medical evidence did not establish that Mr. Fleming was disabled in December 1998, when he last met the minimum qualifying period: Applicant's Record, vol. I, p. 49.
[26] It is also important that Mr. Fleming had both initiated an appeal in January 2002 and, on October 17, 2002, made an application to the Office of the Commissioner of Review Tribunals for a reconsideration under subsection 84(2). Indeed, the Minister brought this latter fact to the attention of the Tribunal in "Additional Comments to the HRDC Explanation of the Decision Under Appeal", dated October 29, 2002: Applicant's Record, vol. I, p. 56.
[27] This document notes that the Commissioner of Review Tribunals had recently advised HRDC that Mr. Fleming had requested a reconsideration of the 1999 Tribunal decision and had indicated that he was providing evidence of "new facts". It also says that, since the Tribunal had dismissed Mr. Fleming's appeal in 1999, subsequent applications to the Minister were covered by the principle of res judicata and "the decision can only be changed by the body that made the decision". After commenting adversely on the probative value of additional evidence adduced by Mr. Fleming, the document concludes that, in light of the submissions made on the additional evidence and for the reasons given by the Tribunal in 1999, Mr. Fleming remained ineligible for long term disability benefit and his appeal should be dismissed.
[28] In these circumstances, it makes no sense to me for the Minister now to deny that the Tribunal was competent to deal with the "new facts" issue. This was the issue put before the Tribunal by the parties, whether or not it or they fully appreciated the significance of the distinction between an appeal and a reconsideration, and which issues were relevant to each.
[29] Further, the communication from the Commissioner, passed on to the Tribunal in the Minister's "Additional Comments", can reasonably be construed as an invitation to the Tribunal to dispose of the only live issue in the case, namely a disposition of Mr. Fleming's recent subsection 84(2) application by determining whether his evidence constituted "new facts" and, if so, warranted a decision that he was entitled to long term disability benefit. There is no suggestion in the documents submitted to the Tribunal that it could not consider these issues, with a view to possibly rescinding the 1999 decision. It is not surprising, therefore, that this is precisely what the Tribunal did.
[30] In my opinion, the only question left is whether the Pension Appeals Board erred in law in failing to allow the Minister's motion on the ground that, in its 2003 decision, the Review Tribunal dismissed the subsection 84(2) application by concluding that Mr. Fleming's evidence did not amount to "new facts" that were susceptible of affecting the 1999 decision. If this had been the basis of the Tribunal's decision, the Board should have dismissed the appeal for lack of jurisdiction: Oliveira v. Canada (Minister of Human Resources Development), 2004 FCA 136.
[31] However, counsel for Mr. Fleming submits that, properly construed, the Tribunal's reasons should be read as indicating that the Tribunal dismissed the appeal on the ground that, although the additional evidence adduced by Mr. Fleming constituted "new facts", it was insufficient to warrant a finding that he was eligible for long term disability benefit. Accordingly, the Tribunal did not rescind the 1999 decision. On this interpretation of the Tribunal's decision, it is conceded that an appeal lay from it to the Board.
[32] Given the confusion that has surrounded this case at all stages and the concession by counsel for the Minister that the Tribunal's reasons are ambiguous on whether there were no "new facts" or the "new facts" were insufficient to warrant rescission of the 1999 decision, I am not prepared to conclude that the Board committed an error of law when it dismissed the Minister's motion to strike the appeal for lack of jurisdiction. Since the Board's interpretation of the Tribunal's reasons for decision was reasonably open to it, I would give Mr. Fleming the benefit of any doubt and permit him to argue the merits of his appeal before the Board.
[33] I note that the member of the Board who allowed Mr. Fleming's application for leave to appeal gave as his "reasons" the fact that, in his opinion, the question of whether "a new test of a disease not available at a previous time (i.e. prior to the time of the earlier Review Tribunal hearing) constitutes new facts" "must be decided". However, I assume that, whatever its normal practice, if the Board concludes that there are "new facts", in the circumstances of this case it will also determine the merits of the matter by deciding on the evidence before it whether the Review Tribunal ought to have rescinded or amended its 1999 decision. I would urge that, in view of the delays already occasioned, the hearing before the Board of Mr. Fleming's appeal should be scheduled at the earliest convenient date.
[34] For these reasons, I would dismiss the Minister's application for judicial review with costs.
"John M. Evans"
J.A.
SCHEDULE
Canada Pension Plan, R.S.C. 1985, c. C-8, as amended
| 82. (1) A party who is dissatisfied with a decision of the Minister made under section 81 or subsection 84(2), or a person who is dissatisfied with a decision of the Minister made under subsection 27.1(2) of the Old Age Security Act, or, subject to the regulations, any person on their behalf, may appeal the decision to a Review Tribunal in writing within 90 days, or any longer period that the Commissioner of Review Tribunals may, either before or after the expiration of those 90 days, allow, after the day on which the party was notified in the prescribed manner of the decision or the person was notified in writing of the Minister's decision and of the reasons for it.
(2) A Review Tribunal shall be constituted in accordance with this section.
...
(8) An appeal to a Review Tribunal shall be heard at such place in Canada as is fixed by the Commissioner, having regard to the convenience of the appellant, the Minister, and any other person added as a party to the appeal pursuant to subsection (10).
...
(11) A Review Tribunal may confirm or vary a decision of the Minister made under section 81 or subsection 84(2) or under subsection 27.1(2) of the Old Age Security Act and may take any action in relation to any of those decisions that might have been taken by the Minister under that section or either of those subsections, and the Commissioner of Review Tribunals shall thereupon notify the Minister and the other parties to the appeal of the Review Tribunal's decision and of the reasons for its decision.
...
83. (1) A party or, subject to the regulations, any person on behalf thereof, or the Minister, if dissatisfied with a decision of a Review Tribunal made under section 82, other than a decision made in respect of an appeal referred to in subsection 28(1) of the Old Age Security Act, or under subsection 84(2), may, within ninety days after the day on which that decision was communicated to the party or Minister, or within such longer period as the Chairman or Vice-Chairman of the Pension Appeals Board may either before or after the expiration of those ninety days allow, apply in writing to the Chairman or Vice-Chairman for leave to appeal that decision to the Pension Appeals Board.
(2) The Chairman or Vice-Chairman of the Pension Appeals Board shall, forthwith after receiving an application for leave to appeal to the Pension Appeals Board, either grant or refuse that leave.
... (4) Where leave to appeal is granted, the application for leave to appeal thereupon becomes the notice of appeal, and shall be deemed to have been filed at the time the application for leave to appeal was filed.
...
(11) The Pension Appeals Board may confirm or vary a decision of a Review Tribunal under section 82 or subsection 84(2) and may take any action in relation thereto that might have been taken by the Review Tribunal under section 82 or subsection 84(2), and shall thereupon notify in writing the parties to the appeal of its decision and of its reasons therefor.
84. (1) A Review Tribunal and the Pension Appeals Board have authority to determine any question of law or fact as to
(a) whether any benefit is payable to a person,
...
and the decision of a Review Tribunal, except as provided in this Act, or the decision of the Pension Appeals Board, except for judicial review under the Federal Courts Act, as the case may be, is final and binding for all purposes of this Act.
(2) The Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding subsection (1), on new facts, rescind or amend a decision under this Act given by him, the Tribunal or the Board, as the case may be.
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82. (1) La personne qui se croit lésée par une décision du ministre rendue en application de l'article 81 ou du paragraphe 84(2) ou celle qui se croit lésée par une décision du ministre rendue en application du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse ou, sous réserve des règlements, quiconque de sa part, peut interjeter appel par écrit auprès d'un tribunal de révision de la décision du ministre soit dans les quatre-vingt-dix jours suivant le jour où la première personne est, de la manière prescrite, avisée de cette décision, ou, selon le cas, suivant le jour où le ministre notifie à la deuxième personne sa décision et ses motifs, soit dans le délai plus long autorisé par le commissaire des tribunaux de révision avant ou après l'expiration des quatre-vingt-dix jours.
(2) Un tribunal de révision est constitué conformément au présent article.
[...]
(8) Un appel auprès d'un tribunal de révision est entendu à l'endroit du Canada que fixe le commissaire, compte tenu de ce qui convient à l'appelant, au ministre et aux mis en cause en application du paragraphe (10).
[...]
(11) Un tribunal de révision peut confirmer ou modifier une décision du ministre prise en vertu de l'article 81 ou du paragraphe 84(2) ou en vertu du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse et il peut, à cet égard, prendre toute mesure que le ministre aurait pu prendre en application de ces dispositions; le commissaire des tribunaux de révision doit aussitôt donner un avis écrit de la décision du tribunal et des motifs la justifiant au ministre ainsi qu'aux parties à l'appel.
[...]
83. (1) La personne qui se croit lésée par une décision du tribunal de révision rendue en application de l'article 82 - autre qu'une décision portant sur l'appel prévu au paragraphe 28(1) de la Loi sur la sécurité de la vieillesse - ou du paragraphe 84(2), ou, sous réserve des règlements, quiconque de sa part, de même que le ministre, peuvent présenter, soit dans les quatre-vingt-dix jours suivant le jour où la décision du tribunal de révision est transmise à la personne ou au ministre, soit dans tel délai plus long qu'autorise le président ou le vice-président de la Commission d'appel des pensions avant ou après l'expiration de ces quatre-vingt-dix jours, une demande écrite au président ou au vice-président de la Commission d'appel des pensions, afin d'obtenir la permission d'interjeter un appel de la décision du tribunal de révision auprès de la Commission.
(2) Sans délai suivant la réception d'une demande d'interjeter un appel auprès de la Commission d'appel des pensions, le président ou le vice-président de la Commission doit soit accorder, soit refuser cette permission.
[...] (4) Dans les cas où l'autorisation d'interjeter appel est accordée, la demande d'autorisation d'interjeter appel est assimilée à un avis d'appel et celui-ci est réputé avoir été déposé au moment où la demande d'autorisation a été déposée.
[...]
(11) La Commission d'appel des pensions peut confirmer ou modifier une décision d'un tribunal de révision prise en vertu de l'article 82 ou du paragraphe 84(2) et elle peut, à cet égard, prendre toute mesure que le tribunal de révision aurait pu prendre en application de ces dispositions et en outre, elle doit aussitôt donner un avis écrit de sa décision et des motifs la justifiant à toutes les parties à cet appel.
84. (1) Un tribunal de révision et la Commission d'appel des pensions ont autorité pour décider des questions de droit ou de fait concernant_:
a) la question de savoir si une prestation est payable à une personne;
[...]
La décision du tribunal de révision, sauf disposition contraire de la présente loi, ou celle de la Commission d'appel des pensions, sauf contrôle judiciaire dont elle peut faire l'objet aux termes de la Loi sur les Cours fédérales, est définitive et obligatoire pour l'application de la présente loi.
(2) Indépendamment du paragraphe (1), le ministre, un tribunal de révision ou la Commission d'appel des pensions peut, en se fondant sur des faits nouveaux, annuler ou modifier une décision qu'il a lui-même rendue ou qu'elle a elle-même rendue conformément à la présente loi.
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FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-124-04
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT v. FABIEN L. FLEMING
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: SEPTEMBER 1, 2004
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
DISSENTING REASONS BY: EVANS J.A.
APPEARANCES:
Mr. Michel Mathieu FOR THE APPLICANT
Ms. Mary T. Collins FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR THE APPLICANT
Lanark, Leeds & Grenville Legal Clinic FOR THE RESPONDENT
Perth, Ontario
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