Date: 20040329
Docket: A-381-03
Citation: 2004 FCA 136
CORAM: DÉCARY J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
MARIA OLIVEIRA
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Heard at Toronto, Ontario, on March 29, 2004.
Judgment delivered from the Bench at Toronto, Ontario, on March 29, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20040329
Docket: A-381-03
Citation: 2004 FCA 136
CORAM: DÉCARY J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
MARIA OLIVEIRA
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario, on March 29, 2004)
EVANS J.A.
[1] This is an application by Maria Oliveira to set aside a decision of the Pension Appeals Board dated May 2, 2003. The Board held that it had no jurisdiction to entertain Ms. Oliveira's appeal under subsection 83(1) of the Canada Pension Plan, R.S.C. c. C-8, from a ruling by the Review Tribunal that her evidence did not constitute "new facts" for the purpose of subsection 84(2) of the Plan. Since there were no "new facts", the Tribunal could not consider whether to rescind or amend its earlier decision that Ms. Oliveira was not entitled to a disability pension. Accordingly, as the Tribunal had not reached the merits of Ms. Oliveira's claim for a pension, it had not rendered a "decision" that could be the subject of an appeal under subsection 83(1).
[2] Subsection 84(2) provides as follows:
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84. (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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84. (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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[3] We are all of the view that the application must be dismissed. Counsel concedes that the Tribunal dismissed Ms. Oliveira's request for a reconsideration on the ground that there were no "new facts". Hence, the Tribunal did not proceed to the stage of reconsidering whether, on the whole of the evidence, Ms. Oliveira was entitled to a disability pension.
[4] In our opinion, the reasoning in Peplinski v. Canada, [1993] 1 F.C. 222 (T.D.) is equally applicable to the jurisdiction of the Board under subsection 83(1) to hear appeals from decisions by the Tribunal. Indeed, except for one case to which counsel for the Attorney General drew our attention, the Board has consistently relied on Peplinski as authority for the proposition that it has no jurisdiction to hear an appeal from a refusal by the Tribunal to reconsider one of its decisions because the claimant had adduced no "new facts".
[5] In Canada (Minister of Human Resources Development) v. MacDonald, 2002 FCA 48, a decision rendered from the Bench, this Court seems to have assumed that an appeal lies to the Tribunal, and then to the Board, from a refusal by the Minister to reconsider a decision because there were no "new facts". However, the jurisdiction of the Tribunal to entertain appeals on this issue was apparently not raised before either the Board, or the Court. Peplinski is certainly not mentioned in their reasons.
[6] In these circumstances, we do not accept that the Court in MacDonald intended to depart from the law as it was established by Peplinski. While there may well be something to be said for interpreting the statutory provisions in the manner urged by counsel for Ms. Oliveira, we see no sufficient reason for overturning well established jurisprudence.
[7] If, as we have concluded, Ms. Oliveira has no right of appeal to the Board, her remedy is to make an application to the Federal Court for judicial review of the Tribunal's refusal to reopen its decision because there were no "new facts".
[8] For these reasons, the application for judicial review will be dismissed. The Attorney General did not seek costs and none will be awarded.
"John M. Evans"
J.A.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: A-381-03
STYLE OF CAUSE: MARIA OLIVEIRA v. MHRD
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 29, 2004
REASONS FOR JUDGMENT
OF THE COURT: (DÉCARY, EVANS AND PELLETIER JJ.A.)
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES BY:
Carl Symondson FOR THE APPLICANT
Tania Nolet FOR THE RESPONDENT
SOLICITORS OF RECORD:
Carl Symondson
Waterloo Region Community Legal
Kitchener, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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