Docket: A-124-17
Citation: 2017 FCA 150
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CORAM:
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WEBB J.A.
NEAR J.A.
RENNIE J.A.
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BETWEEN:
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LINDA CARDIN
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR ORDER
NEAR J.A.
I.
Introduction
[1]
The respondent Crown brings a Rule 369 motion
seeking to strike the applicant Ms. Cardin’s application for judicial review of
a decision of the Social Security Tribunal – Appeal Division (SST-AD), dated
March 7, 2017 (the Decision).
II.
Background
[2]
Ms. Cardin had sought leave to appeal a decision
of the Social Security Tribunal – General Division (SST-GD) which determined
that she was not eligible for CPP disability benefits.
[3]
Pursuant to subsection 56(1) of the Department
of Employment and Social Development Act, S.C. 2005, c.34 (the Act), an
appeal to the SST-AD may only be brought if leave to appeal is granted.
Pursuant to subsection 58(1), the only grounds of appeal are that:
(a) the General Division failed to observe a
principle of natural justice or otherwise acted beyond or refused to exercise
its jurisdiction;
(b) the General Division erred in law in
making its decision, whether or not the error appears on the face of the
record; or
(c) the General Division based its decision
on an erroneous finding of fact that it made in a perverse or capricious manner
or without regard for the material before it.
Pursuant to
subsection 58(2), leave to appeal is refused if the SST-AD is satisfied that
the appeal has no reasonable chance of success.
[4]
In her leave application, Ms. Cardin submitted
that the SST-GD made five errors of law and an erroneous finding of fact. She
also sought to rely on new evidence. On November 22, 2016, the SST-AD allowed leave
to appeal “on all five grounds for which [Ms.
Cardin] claimed the [SST-GD] erred in law” (emphasis added). In its
leave decision, the SST-AD determined that there was no reasonable chance of
success on the ground alleging an erroneous finding of fact and that the SST-AD
cannot consider the new evidence as it was prepared after the hearing before
the SST-GD.
[5]
On appeal, Ms. Cardin argued that the SST-AD was
required to conduct a full appeal on all the evidence that was before the
SST-GD as the SST-AD had determined, at the leave stage, that her appeal had a
reasonable chance of success. The member of the SST-AD (the same member that
rendered the leave decision) disagreed, determining that the leave decision had
“explicitly and purposely restricted the grounds of
appeal” to the five errors of law. The SST-AD ultimately concluded that
Ms. Cardin’s appeal succeeded on the grounds that the SST-GD erred in law. On
March 7, 2017, the SST-AD decided that “the matter
be referred back to the [SST-GD] for a de novo hearing before a different
[SST-GD] member” (emphasis added).
[6]
Ms. Cardin seeks judicial review of the SST-AD’s
analysis of the scope of the appeal and not the final decision granting
the appeal. Ms. Cardin seeks an order that the SST-AD does not have the authority
to limit the scope of the appeal once leave has been granted on any of the
three grounds under subsection 58(1) of the Act.
III.
Motion
[7]
The Crown submits that Ms. Cardin’s application
for judicial review should be dismissed as moot.
A.
Test on a Motion to Strike
[8]
In Canada (National Revenue) v. JP Morgan
Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557, this Court
held that it will only strike a notice of application for judicial review where
it is “so clearly improper as to be bereft of any
possibility of success”. There must be “an
obvious, fatal flaw striking at the root of this Court’s power to entertain the
application”: at para. 47. This high threshold for striking an application
may be met where the application has been rendered moot: Lukács v. Canada
(Transportation Agency), 2016 FCA 227 at para. 6.
B.
Test for Mootness
[9]
The court may decline to decide a case when it
merely raises a hypothetical question that will have no practical effect on the
parties’ rights: Borowski v. Canada (Attorney General), [1989] 1 S.C.R.
342, 57 D.L.R. (4th) 231. Applying the doctrine of mootness involves a two-step
analysis. First, the court must determine whether the concrete controversy
between the parties has disappeared and the issues have become academic. If
yes, the court must then decide whether it should exercise its discretion to
hear the moot case.
C.
Should Ms. Cardin’s application be struck for
mootness?
[10]
In my view, the motion to strike should be
allowed. Whether Ms. Cardin’s appeal was inappropriately limited will have no
bearing on her ultimate entitlement to CPP disability benefits as she has been
granted a hearing de novo before the SST-GD. The issue of whether the
SST-AD had the authority to limit the scope of her appeal is purely academic.
While this issue may recur, I find it would be preferable to determine the
issue in a genuine adversarial context. In light of the referral back to the
SST-GD, the lack of a live controversy between the parties that would affect
Ms. Cardin’s entitlement to benefits, and the academic nature of the relief
sought, I am of the view that the matter is moot and that it would be an
uneconomical use of judicial resources to allow Ms. Cardin’s application for
judicial review to proceed.
IV.
Conclusion
[11]
For these reasons I would allow the respondent’s
motion to strike the application for judicial review and the applicant’s application
for judicial review should be dismissed. In the circumstances, no costs will be
awarded.
"David G. Near"
“I agree.
Wyman W. Webb, J.A.”
“I agree.
Donald J. Rennie, J.A.”
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