Docket: A-305-16
Citation:
2017 FCA 99
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CORAM:
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PELLETIER J.A.
WEBB J.A.
NEAR J.A.
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BETWEEN:
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MOHSEN
GHOLIPOUR
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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
NEAR J.A.
[1]
The applicant, Mohsen Gholipour, unsuccessfully
applied for disability benefits under the Canada Pension Plan, R.S.C.
1985, c. C-8 (CPP). The General Division of the Social Security Tribunal of
Canada (the General Division) dismissed the applicant’s appeal from this denial
of benefits in 2014. The applicant then sought leave to appeal the General
Division’s decision, which was denied by the Appeal Division of the Social
Security Tribunal of Canada (the Appeal Division) in 2015. The applicant
applied to rescind or amend the Appeal Division’s leave decision, which the
Appeal Division refused on August 11, 2016. This is an application for judicial
review of the Appeal Division’s refusal to rescind or amend the earlier leave
decision.
[2]
Pursuant to paragraph 66(1)(b) of the Department
of Employment and Social Development Act, S.C. 2005, c. 34 (the Act), the
Appeal Division may rescind or amend one of its own previous decisions if “a new material fact is presented that could not have been
discovered at the time of the hearing with the exercise of reasonable
diligence.”
[3]
The applicant submits that the Appeal Division
correctly articulated this test but erred in law in applying it to the
additional evidence that he had presented, which included an affidavit of the
applicant’s daughter, Karen Gholipour, detailing observations of the
applicant’s physical and psychological condition, and a letter from the
applicant’s family physician, Dr. Saeedi.
[4]
The Tribunal’s findings of fact and
interpretation of the Act are reviewable on the standard of reasonableness (Reinhardt
v. Canada (Attorney General), 2016 FCA 158 at para. 15, 484 N.R. 67 [Reinhardt];
Atkinson v. Canada (Attorney General), 2014 FCA 187, [2015] 3 F.C.R.
461).
[5]
To succeed in his application, the applicant
must establish that the Appeal Division’s decision refusing to rescind or amend
the earlier leave decision was unreasonable. In my view, the applicant has been
unable to do so.
[6]
Despite the Appeal Division’s apparent confusion
with respect to the import of the dates on which the documents were prepared,
it is my view that it was not unreasonable for the Appeal Division to determine
that the applicant’s additional evidence did not present a new material fact.
The only additional evidence submitted by the applicant were the affidavits of
his daughter, Karen Gholipour, and the family physician, Dr. Saeedi. Karen
Gholipour’s evidence only addressed the applicant’s condition as of 2015 and
did not relate to his condition as of his minimum qualifying period (MQP),
December 31, 2005, the date on which the applicant had to establish that he
suffered from a severe and prolonged disability. The letter of Dr. Saeedi,
dated April 27, 2016, was virtually identical to an earlier report that he had
prepared, dated August 15, 2010. The General Division had considered Dr.
Saeedi’s earlier report in 2014 when it decided that the applicant was not
entitled to CPP benefits as of the MQP. Therefore, in my view, the Appeal Division
reasonably refused to rescind or amend its earlier leave decision as the
applicant had failed to satisfy the test set out in paragraph 66(1)(b)
of the Act (see Reinhardt at paras. 28-29; Tang v. Canada, 2017
FCA 59 at paras. 9-10).
[7]
As an alternative to allowing the application
for judicial review of the Appeal Division’s refusal to rescind or amend the
earlier leave decision, the applicant requests an extension of time to file an
application for judicial review of the actual leave decision made by the Appeal
Division in 2015. In my view, the applicant’s request is not properly before
this Court. A request for an extension of time to judicially review the Appeal
Division’s leave decision must be brought before the Federal Court. This Court
does not have jurisdiction to hear applications for judicial review of
decisions made under section 58 of the Act, which includes leave decisions made
by the Appeal Division. As such, this Court only has the authority to hear an appeal
of an application for judicial review of a leave decision made by the Appeal
Division.
[8]
The applicant also asks that, should this Court
refuse to hear his request for an extension of time, his request be transferred
to the Federal Court. I would decline to do so. Requests for extensions of time
are properly made in a separate motion rather than by way of an
alternative remedy in an application for judicial review (Rhéaume v. Canada
(Attorney General), 2009 FC 1273 at para. 52, 362 F.T.R. 49, aff’d 2010 FCA
355). Rule 49 in the Federal Courts Rules, SOR/98-106 provides that this
Court may order that a proceeding be transferred to the Federal Court.
The Rules have been interpreted such that a motion is not considered a
proceeding (Vaughan v. Canada, (2000) 184 F.T.R. 197 at para. 23; Rule
2, Definitions). This Court previously rejected the argument that motions for
extensions of time commence a proceeding:
The appellant’s application for judicial
review is initiated by the filing of a notice of application, which is the
originating document. If a notice of application has not been filed within the
time provided in the Act, then an extension of time must be obtained. The
motion seeking an extension of time does not initiate the application for
judicial review. If granted, it allows the applicant to file his notice of
application; if refused, there is no application for judicial review.
(Nanavaty v. Canada (Public Safety and
Emergency Preparedness), 2008 FCA 323, at para. 12)
[9]
For the foregoing reasons, I would dismiss the
application for judicial review. As the respondent does not seek costs, none
will be awarded.
"David G. Near"
“I agree
J.D. Denis Pelletier J.A.”
“I agree
Wyman W. Webb
J.A.”
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