Date: 20020410
Docket: T-2191-98
Montréal, Quebec, April 10, 2002
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
DIANE TALBOT VICKERS
Plaintiff
- and -
ATTORNEY GENERAL OF CANADA
Defendant
ORDER
The application for judicial review is allowed without costs. The matter is referred back to the Pension Appeals Board so that a re-determination of the validity of the application for leave to appeal the decision made by the review tribunal on December 17, 1996, may be made by another member of the Board duly appointed pursuant to subsection 83(2.1) of the Canada Pension Plan, R.S.C. 1985, c. C-8, as amended. In considering this application, the latter will take into account in particular the fact that the defendant admits that the review tribunal erred in fact and in law, which vitiates the validity of the decision made, and that he consents to leave to appeal that decision being granted.
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"Luc Martineau"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020410
Docket: T-2191-98
Neutral citation: 2002 FCT 408
BETWEEN:
DIANE TALBOT VICKERS
Plaintiff
- and -
ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER
(Delivered from the bench at Montréal, Quebec
on April 10, 2002)
MARTINEAU J.
[1] The Court has before it an application for judicial review against the refusal by the vice-chairman of the Pension Appeals Board (the "Board") to grant the plaintiff leave to appeal a negative decision by a review tribunal made pursuant to the Canada Pension Plan, R.S.C. 1985, c. C-8, as amended (the "Plan").
[2] Since 1994 the plaintiff has been suffering from fibromyalgia, and this illness prevents her from working. At that time, she made an application to the Minister of Human Resources Development (the "Minister") under the Plan for a "disability" pension. The Minister denied her application. As she was unable to persuade the Minister to change the decision, the plaintiff appealed to a review tribunal (the "tribunal"). The tribunal also dismissed the plaintiff's appeal and found that she was not eligible for a disability pension and that her application was premature. The plaintiff was not satisfied with the tribunal's decision and asked for leave to appeal to the Board. On July 15, 1998, the vice-chairman of the Board, Chilcott J., refused to grant leave to appeal: hence the instant application for judicial review.
[3] The decision by Chilcott J. reads as follows:
The decision of the Review Tribunal is supported by the evidence. The appellant suffers from Fibromyalgia and in certain cases that syndrome can be acute enough to warrant a finding that the appellant is disabled as defined in section 42(2)(a) of the Canada Pension Plan. On the evidence that is not so in the present case.
The Tribunal did not proceed in an erroneous principle, and there is no new evidence that might lead to a successful appeal.
Leave to appeal is refused.
[4] Section 42(2)(a) of the Plan, referred to by Chilcott J., provides:
| 42. (2) For the purposes of this Act,
(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,
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42. (2) Pour l'application de la présente loi:
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| a) une personne n'est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d'une invalidité physique ou mentale grave et prolongée, et pour l'application du présent alinéa :(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and
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(i) une invalidité n'est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice,
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| (ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death . . .
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(ii) une invalidité n'est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès . . .
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[5] In the case at bar, the defendant admitted in this Court that the review tribunal erred in fact and in law, which vitiated the validity of the decision made on December 17, 1996:
[Translation]
After analyzing the record, it appeared to the defendant that the review tribunal, though empowered and having a duty to decide whether a disability pension was payable to the plaintiff, unduly limited the exercise of its decision-making power by finding that the documentary evidence presented by the parties was ambiguous and hence insufficient, and concluding that a determination in fact and in law on the plaintiff's disability was premature.
[6] At the same time, the defendant conceded that the decision by Chilcott J. to refuse to grant leave to appeal was reviewable by this Court:
[Translation]
Although neither the plaintiff nor her counsel thought to argue this ground of appeal, the situation should have been recognized by Chilcott J. on July 15, 1998, and was especially noteworthy in view of the temporal concomitance which must exist and be found to exist between the occurrence of a disability as defined by the Plan and the time when a contributor meets the Plan's requirements as to contributions.
[7] Accordingly, at para. 15 of his memorandum, the defendant said he was [Translation] "prepared to agree pursuant to subsection 18.1(3) of the Federal Court Act to the decision of Chilcott J. being reversed and the matter referred back to the Pension Appeals Board so that a re-determination of the validity of the application for leave to appeal by the plaintiff may be made by another member of the Board duly appointed pursuant to subsection 83(2.1) of the Plan, with directions that the application for leave be granted". However, at the hearing counsel for the defendant indicated that the defendant was no longer requesting the last direction "that the application for leave be granted".
[8] The only question raised by the instant application for judicial review, therefore, is whether this Court should exercise its discretion and refer the matter back to the Board so that one of its members may dispose of it in accordance with its directions or whether this Court, as the plaintiff requests, may declare the latter disabled pursuant to paragraph 42(2)(a) of the Plan and find that a disability pension is payable to her.
[9] In the case at bar, this Court's powers on submission of an application for judicial review are set out in subsection 18.1(3) of the Federal Court Act, which reads as follows:
| 18.1(3) On an application for judicial review, the Trial Division may
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18.1(3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut :
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| (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
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a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable;
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| (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
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b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
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[10] Subsections (1) to (3) of s. 83 of the Plan are relevant here:
| 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.
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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.
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| (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.
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(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.
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| (2.1) The Chairman or Vice-Chairman of the Pension Appeals Board may designate any member or temporary member of the Pension Appeals Board to exercise the powers or perform the duties referred to in subsection (1) or (2).
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(2.1) Le président ou le vice-président de la Commission d'appel des pensions peut désigner un membre ou membre suppléant de celle-ci pour l'exercice des pouvoirs et fonctions visés aux paragraphes (1) ou (2).
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| (3) Where leave to appeal is refused, written reasons must be given by the person who refused the leave.
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(3) La personne qui refuse l'autorisation d'interjeter appel en donne par écrit les motifs.
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[11] In accordance with the ruling in Thibaudeau v. M.N.R., [1994] 2 F.C. 189, at 224, a court hearing an application for judicial review cannot exercise more powers than the federal board, commission or other tribunal could have exercised. In the case at bar, the vice-chairman of the Board could have granted or denied leave to appeal under subsection 83(2) of the Plan. Accordingly, the Court here cannot grant the plaintiff a disability pension and can only reverse the Board's decision and refer the matter back for re-determination.
[12] I consider that the direction that the application for leave be granted, requested by the defendant and withdrawn at the hearing, exceeds the Court's jurisdiction in an application for judicial review.
[13] In Paproski v. Canada (Minister of Human Resources Development), [2000] F.C.J. No. 859, the facts of which were similar to the case at bar, the Court concluded that it did not have jurisdiction to make an order granting leave to appeal to the Board.
[14] Further, in Rafuse v. Canada (Pension Appeals Board), [2000] F.C.J. No. 2032, Tremblay-Lamer J. allowed the application for judicial review, quashed the decision of the judge and authorized the plaintiff to appeal to the Board. However, the Federal Court of Appeal (2002 FCA 31) reversed Tremblay-Lamer J.'s decision on this point and stated:
... in our opinion, the Judge would have erred in law if, having set aside the decision of the Board, she had remitted the matter with a direction that the Board grant Mr. Rafuse leave to appeal.
[15] In quashing the decision in question and referring the matter back to the Board for re-determination of the validity of the application for leave to appeal by the plaintiff to be made by another member of the Board duly appointed pursuant to subsection 83(2.1) of the Plan, I undoubtedly have the power, and I feel it is proper here, to prescribe that the application be considered taking into account in particular the fact that the defendant has acknowledged that the review tribunal erred in fact and in law, which vitiates the validity of the decision made on December 17, 1996, and that the defendant consents to leave to appeal the decision being granted. That being so, I can only urge the Board to process this application as quickly as possible, in view of the lengthy delays which have elapsed in the matter.
[16] Exercising my discretion under Rule 400, after hearing counsel on the point and considering the relevant factors in the case at bar, I feel that this is a case in which no costs should be awarded to either party.
[17] For these reasons, the application for judicial review is allowed without costs.
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"Luc Martineau"
Judge
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Montréal, Quebec
April 10, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020410
Docket: T-2191-98
Between:
DIANE TALBOT VICKERS
Plaintiff
and
ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-2191-98
STYLE OF CAUSE: DIANE TALBOT VICKERS
Plaintiff
and
ATTORNEY GENERAL OF CANADA
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 10, 2002
REASONS FOR ORDER BY: MARTINEAU J.
DATED: April 10, 2002
APPEARANCES:
Pierre A. Cloutier FOR THE PLAINTIFF
Katia Bustros FOR THE DEFENDANT
SOLICITORS OF RECORD:
Cloutier, Larkin FOR THE PLAINTIFF
Sherbrooke, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Vanier, Ontario
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