Docket: A-202-15
Citation:
2016 FCA 158
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CORAM:
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WEBB J.A.
SCOTT J.A.
DE MONTIGNY J.A.
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BETWEEN:
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ROBERT
REINHARDT
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
WEBB J.A.
[1]
In this application for judicial review the
applicant has raised issues of procedural fairness based on his alleged
legitimate expectation that he would receive a copy of the transcript of the
proceedings and the adequacy of the notice of the medical expert called by the Minister
of Employment and Social Development (the Minister). The applicant has also
raised the issue of the reasonableness of the decision of the Social Security Tribunal
(Appeal Division) (the Tribunal).
[2]
The decision under review is the decision of the
Tribunal dated March 3, 2015. The Tribunal was hearing an appeal from the
decision of the Review Tribunal dated December 20, 2011. Before the Tribunal,
the applicant sought to introduce documents as new material facts. The Tribunal
reviewed each document that the applicant submitted and determined that none of
the documents submitted by the applicant constituted new material facts that
could not have been discovered at the time of the earlier hearing with the
exercise of reasonable diligence. As a result, the Tribunal dismissed the
applicant’s appeal from the decision of the Review Tribunal.
[3]
For the reasons that follow, I would dismiss
this application for judicial review.
I.
Background
[4]
The applicant moved to Canada from Germany in
1975 when he was 15 years old. According to his affidavit (paragraph 6), he is “currently illiterate in the English Language and [requires]
assistance from friends to complete and understand documents.” He worked
for different companies as a general labourer and sustained back injuries on
different occasions.
[5]
As a result of his back injuries, the applicant
applied for a disability pension under the Canada Pension Plan, R.S.C.
1985, c. C-8 (CPP). His application for this pension was first made on
June 22, 2006. Over the years the applicant has brought a number of
applications or appeals in relation to his claim that he was disabled, for the
purposes of the CPP, as of the end of his minimum qualifying period,
which was December 31, 2006. He was not successful in obtaining this pension.
[6]
In the decision of the Tribunal that is the
subject of this judicial review, the applicant was asking the Tribunal to
rescind, under section 66 of the Department of Employment and Social
Development Act, S.C. 2005, c. 34 (the DESDA), the decision of the Review
Tribunal dated December 20, 2011. The Review Tribunal had denied the
applicant’s application under subsection 84(2) of the CPP to introduce
new facts.
[7]
Section 66 of the DESDA provides that:
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66 (1) The Tribunal may rescind or
amend a decision given by it in respect of any particular application if
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66 (1)
Le Tribunal peut annuler ou modifier toute décision qu’il a rendue
relativement à une demande particulière :
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(a) in the case of a decision relating to the Employment
Insurance Act, new facts are presented to the Tribunal or the Tribunal is
satisfied that the decision was made without knowledge of, or was based on a
mistake as to, some material fact; or
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a) dans
le cas d’une décision visant la Loi sur l’assurance-emploi, si des
faits nouveaux lui sont présentés ou s’il est convaincu que la décision a été
rendue avant que soit connu un fait essentiel ou a été fondée sur une erreur
relative à un tel fait;
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(b) in any other case, a new material fact is presented
that could not have been discovered at the time of the hearing with the
exercise of reasonable diligence.
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b) dans les autres cas, si des faits nouveaux
et essentiels qui, au moment de l’audience, ne pouvaient être connus malgré
l’exercice d’une diligence raisonnable lui sont présentés.
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[8]
In this case, the applicable paragraph is 66(1)(b)
of the DESDA since the decision under review by the Tribunal was a
decision under the CPP.
[9]
By a letter dated August 20, 2014, the
applicant’s representative was notified that the hearing originally scheduled
for September 5, 2014 was postponed to October 30, 2014. On October 15, 2014
the Minister provided notice that Dr. Baribeau would be testifying as an expert
witness and provided a summary of his testimony on October 20, 2014.
[10]
At the commencement of the hearing on October
30, 2014, the Tribunal Member indicated that the proceedings were being
recorded. At the hearing, the applicant submitted a number of documents as “new material facts”. The Minister also called Dr.
Baribeau as an expert witness in relation to the question of whether the
applicant was suffering from a severe and prolonged disability. The Tribunal
noted at paragraph 10 that “[d]espite the hearing going
over the time allotted, it proved impossible to complete the hearing as
scheduled.” It was decided that the parties would make their written
submissions on the medical evidence at a later date.
[11]
At some point, the Tribunal Member indicated
that the transcript would be made available to the parties. However, due to a
malfunction, no transcript was available. The member did, however, provide her
notes in relation to the testimony of the medical expert (although she did not
get his name correct). Following the submissions from the applicant and the
Minister, the representative for the applicant asked for and was granted an
extension of time to prepare reply submissions. Despite being granted an
extension of time, the reply submissions were not submitted within this extended
period of time.
[12]
In its reasons, the Tribunal first reviewed each
document that was submitted and determined that none of the documents that were
submitted would qualify as a “new material fact”
for the purposes of paragraph 66(1)(b) of the DESDA. As a result,
the Tribunal dismissed the appeal without examining the evidence of Dr.
Baribeau.
II.
Issues
[13]
The applicant has raised the following issues:
a)
Did the Tribunal breach its duty of procedural
fairness by not supplying the applicant with a copy of the transcript from the
hearing?
b)
Did the Tribunal breach its duty of procedural
fairness by allowing Dr. Baribeau to testify?
c)
Was the decision of the Tribunal that none of
the documents satisfied the test as set out in paragraph 66(1)(b) of the DESDA
unreasonable?
III.
Standard of Review
[14]
The standard of review for questions of
procedural fairness is correctness, with some deference to the particular
tribunal (Forest Ethics Advocacy Association v. Canada (National Energy
Board), 2014 FCA 245, [2015] 4 F.C.R. 75, at paragraph 81).
[15]
The standard of review for any findings of fact
by the Tribunal and for the interpretation of the DESDA by the Tribunal
is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paragraph 51 and Atkinson v. Canada (Attorney General),
2014 FCA 187, [2015] 3 F.C.R. 461).
IV.
Analysis
A.
Failure to Provide the Transcript
[16]
The applicant submits that he had a legitimate
expectation that he would receive a copy of the transcript from the hearing
before the Tribunal and the failure to do so resulted in a breach of procedural
fairness by the Tribunal. I do not agree with the applicant.
[17]
The applicant submitted two affidavits as part
of this application for judicial review. One affidavit was that of the
applicant and the other of Ronald Jones, his representative at the hearing
before the Tribunal.
[18]
In the applicant’s affidavit, he stated as
follows:
32. Adjudicator Ross started the
hearing by introducing herself and she explained that she would be recording
the hearing and explained that she would have a transcript prepared.
[19]
Ronald Jones, in his affidavit, described this
opening statement as follows:
38. Adjudicator Ross started the
hearing by introducing herself and she explained that she would be recording
the hearing because she explained that she wanted a transcript to prepare her
decision.
[20]
In this particular case, the applicant is
submitting that he is illiterate in English and that he relies on others to
explain documents to him. There was no indication in the applicant’s memorandum
of fact and law that the applicant’s representative has any difficulty in
understanding documents or statements that were being made in English.
[21]
As a result, in my view, the affidavit of the
representative (which also provides more details) would be a more accurate
indication of what took place at the hearing. This would also be consistent
with the fact that both individuals indicate that the statements of the
Tribunal member were made at the beginning of the hearing. There was no
indication, at that time, that anyone expected the hearing to last longer than
the one day. Therefore, the only expectation at the beginning of the hearing
was that the hearing was being recorded for the sole benefit of the Tribunal
member. There would not have been any legitimate expectation at that time that
any transcript would have been provided to any party.
[22]
It should also be noted that the only
submissions that were to be made following the completion of the one day
hearing were the submissions on the medical evidence. As noted above, the
Tribunal member made her decision without examining the medical evidence. As a
result, there can be no breach of any duty of procedural fairness in failing to
provide a transcript that would only have been used in relation to submissions
to be made on evidence which was not relevant to the decision of the Tribunal.
[23]
Therefore, in my view, there was no breach of
procedural fairness as a result of the failure to provide a transcript of the
hearing.
[24]
Counsel for the applicant at the hearing of this
appeal also argued that the absence of a transcript made it impossible for the
applicant to pursue any arguments of bias. Bias is a matter that should not be
proposed lightly and is a matter that should only be pursued in cases where
there is evidence of such. Speculating on whether or not a transcript might have
revealed bias is not a basis to find any breach of procedural fairness for
failing to provide a transcript.
B.
Expert Testimony
[25]
With respect to the testimony of Dr. Baribeau,
as noted by the Tribunal member, the threshold test under paragraph 66(1)(b)
of the DESDA is whether the applicant has introduced any new material
facts that could not have been discovered before the hearing in question with
the exercise of reasonable diligence. Failing to do so would result in no basis
upon which a prior decision could be rescinded or amended. Having found that
none of the documents produced by the applicant constituted new material facts for
the purposes of paragraph 66(1)(b) of the DESDA, the appeal was
dismissed without examining the evidence of Dr. Baribeau. Since the medical
evidence of Dr. Baribeau was not relevant in reaching the determination to
dismiss the appeal, it is a moot point whether he should or should not have
been allowed to testify.
C.
Reasonable Diligence
[26]
With respect to the merits of the decision, the documents
that the applicant was submitting as new material facts can be divided into two
categories – those documents that did not exist before the earlier hearing and
those documents that did exist prior to the earlier hearing.
[27]
With respect to the documents that did not exist
at the time of the earlier hearing, the applicant notes, in his written
submissions, that “there are circumstances where
medical evidence post-hearing can be admitted as new facts, where a condition
existed at the time of the hearing but was not diagnosed” (paragraph 58).
In particular, one of these documents is a report from Dr. Ferguson dated March
18, 2008, which is more than one year after the end of his minimum qualifying
period, which ended on December 31, 2006. In that report, Dr. Ferguson notes
that the applicant is using a cane but there is no indication of when the
applicant started to use a cane. In paragraph 8 of his affidavit, the applicant
states he started using a cane in 2008.
[28]
In my view, the applicant has failed to
establish why it was unreasonable to conclude that this medical report,
prepared in 2008, would not be material in relation to a determination of
whether the applicant was suffering from a severe and prolonged disability as
of December 31, 2006.
[29]
Similarly, the applicant has failed to establish
that the Tribunal was unreasonable in concluding that the other documents that
did not exist as of the earlier hearing date were not material.
[30]
With respect to the documents that did exist
prior to the earlier hearing, the applicant’s argument is that in determining “reasonable diligence” for the purposes of paragraph
66(1)(b) of the DESDA, the personal characteristics of the
individual should have been taken into account. In the applicant’s submissions,
he argued that he would have had to receive a document in order to have a
friend review it for him and that his illiteracy prevented him from seeking out
the additional documents before his earlier hearings.
[31]
The determination of whether the applicant has
established that a particular document “could not have
been discovered at the time of the hearing with the exercise of reasonable
diligence” is a question of mixed fact and law. In paragraph 27 of the
Tribunal’s reasons, the Tribunal addressed the illiteracy of the applicant. The
Tribunal concluded with the finding that:
it is reasonable to infer that at all
relevant times, the Appellant was aware he would have to make a case to the CPP
and that this would involve providing evidence of his disability, including his
medical and/or prescription history if he wished to persuade the Respondent of
his eligibility for a CPP disability pension.
[32]
The Tribunal found that the applicant’s
illiteracy did not prevent him from being aware that he would have to make his
case and that he would have to produce evidence. The applicant has not shown
why this finding was unreasonable. As a result, the applicant was in the same
position as any other litigant who must determine, prior to a hearing, what
documents should be produced to establish his or her case and who must exercise
reasonable diligence to locate these documents.
[33]
As noted, the Tribunal reviewed each document
that was submitted by the applicant and provided an explanation of why each one
failed to meet the test as set out in paragraph 66(1)(b) of the DESDA.
The onus was on the applicant to establish that the decision of the Tribunal
was unreasonable. In my view, the applicant failed to establish that the
decision of the Tribunal in relation to any particular document was
unreasonable.
V.
Conclusion
[34]
As a result, I would dismiss the application for
judicial review, without costs.
"Wyman W. Webb"
“I agree.
A.F. Scott J.A.”
“I agree.
Yves de Montigny J.A.”
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