Pedwerbeski v. Canada (Human Resources Development), docket 99-T-24

     Date: 19990730

     Docket: 99-T-24

Ottawa, Ontario, this 30^th day of July, 1999

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

     NICK PEDWERBESKI

     Applicant

     - and -

     HUMAN RESOURCES DEVELOPMENT CANADA

     Respondent

     REASONS FOR ORDER and ORDER

[1]      Mr. Pedwerbeski applied for a Pension under the Canada Pension Plan. He was refused. He appealed to the Review Tribunal. He was refused again. He then brought his problem to the attention of the Pension Appeals Board but he was refused leave. After receiving advice, he brought a Notice of Motion in the Federal Court of Appeal seeking an extension of time to appeal the refusal of leave to that body. By endorsement, Décary J.A. pointed out that the proper forum was the Trial Division and ordered that the application be transferred to the Trial Division and "heard and decided as if it had been commenced there".

[2]      Mr. Pedwerbeski has two problems. He is out of time for bringing an appeal. This is a problem which could be remedied. His other problem is that there is no right of appeal from a decision refusing leave. The powers of the Pension Appeals Board as they appear in s. 83(11) of the Canada Pension Plan Act R.S.C., 1985 c. C-8, do not include the right to grant leave after it has been refused by the Chairman or Vice Chairman. This problem is more difficult to fix. It is not helpful to give Mr. Pedwerbeski an extension of time to exercise a remedy which he does not have.

[3]      The only remedy which would be available to Mr. Pedwerbeski is an application for judicial review pursuant to s. 18.1 of the Federal Court, Act R.S.C. 1985 c. F-7. However, to say that the remedy is available to Mr. Pedwerbeski does not mean that it would give him what he seeks. The decision he is challenging is a decision as to leave to appeal. It will be very difficult for Mr. Pedwerbeski to persuade a judge hearing an application for judicial review that the decision maker committed one of the types of errors set out in s. 18.1(4) of the Federal Court Act.

[4]      However, Mr. Pedwerbeski is entitled to his day in Court. Since an application for judicial review must be brought within 30 days of the making of the order being challenged, Mr. Pedwerbeski will also require an extension of time to bring such an application. Rule 3 stipulates that the Rules shall be interpreted and applied so as to secure the just, and most expeditious, and least expensive determination of every proceeding on its merits. Rule 57 provides that an originating document shall not be set aside only on the ground that a different originating document should have been used. In the spirit of that Rule, I will treat this application as an application for an extension of time for the bringing of an application for judicial review. I will allow the modified application and allow Mr. Pedwerbeski 30 days from the date of this order to serve and file his Notice of Application.

[5]      However, Mr. Pedwerbeski should understand that he will have to comply with all other time limits provided in the Rules. I would suggest that he seek a professional opinion as to his chances of success. The fact that he has leave to bring his Notice of Application should not be taken as a sign of encouragement that he should do so. But if he is determined to proceed, he shall have the opportunity to do so.

     O R D E R

     Judge