Date: 20100907
Docket: T-1732-09
Citation: 2010 FC 877
Ottawa, Ontario, September 7,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
ANGELIKI
PANOPOULOS
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Minister of Human
Resources and Skills Development Canada (the Minister), dated September 23,
2009, in which the Minister refused to reconsider an earlier decision because
the request for reconsideration came outside of the 90 day time period
established by the Canada Pension Plan, R.S., 1985, c. C-8 (the Plan)
for such requests.
[2]
For
the reasons set out below the application is dismissed.
I. Background
[3]
The
Applicant was injured in two car accidents, in 1996 and 2000. Following these
accidents, the Applicant suffered physical and psychological injuries and was
treated by both physicians and psychiatrists. After the 2000 accident, the
Applicant made an unsuccessful application for disability benefits. The
Applicant applied for retirement benefits under the Plan and began to
receive benefits in November 2006.
[4]
In
September 2008, the Applicant applied to have her retirement benefits converted
to a disability benefit. This was denied in a letter dated October 20, 2008. The
reason for the denial was that a person cannot apply for a Canadian Pension
Plan disability benefit 15 months or more after receiving a Canadian Pension
Plan retirement pension and that the Applicant was outside of the 15 month
window. Following this, the letter stated (emphasis in the original):
If you disagree with our
decision
You may ask us to reconsider our decision
if you notify us in writing within 90 days. The 90 period begins on the
date that you receive this letter.
If you have any questions
If you have any questions, you may call
us free of charge from Canada or the United States. You may also write to us.
Our address and telephone numbers are shown below.
[5]
Included
with the letter was a two page pamphlet entitled “Canada Pension Plan (CPP)
Disability, How to Ask CPP to Reconsider its Decision”.
[6]
On
July 29, 2009, the Applicant retained counsel who then asked for a
reconsideration of the October 20, 2008 decision. In making the request, the
Applicant’s Counsel wrote:
Please be advised the writer
has just been retained by the above-noted.
Ms. Panopoulos has advised the writer
that a decision was rendered on October 20th, 2008 denying her Application for
Canada Pension Plan Disability Benefits.
We fully acknowledge that we are out of
time with respect to the 90 days pursuant to the said decision.
Notwithstanding same we are forwarding this letter to request if a
reconsideration could be made at this time.
[7]
On
September 23, 2009, the Applicant was informed by letter that her request for
reconsideration was not accepted as the date the request was received was more
than the 90 day time period permitted. The letter also states that should the
Applicant wish to be considered for a Canada Pension Plan disability benefit in
the future, she will need to complete a new application.
II. The
Statutory Framework
[8]
The
Ministerial discretion to grant an extension of time is set out in section
81(1) of the Plan. Under section 81(1), an applicant who is dissatisfied
with the Minister’s initial decision has 90 days from the date they
receive notice of the decision to request the Minister to reconsider. The
Minister may
allow for a longer period to make a request for reconsideration. The relevant
portion of section 81(1) is set out as such:
|
Appeal to Minister
81. (1) Where
[…]
the dissatisfied party or, subject to
the regulations, any person on behalf thereof may, within ninety days after
the day on which the dissatisfied party was notified in the prescribed manner
of the decision or determination, or within such longer period as the
Minister may either before or after the expiration of those ninety days
allow, make a request to the Minister in the prescribed form and manner for a
reconsideration of that decision or determination.
|
Appel au ministre
81. (1) Dans les cas où :
[…]
ceux-ci peuvent, ou, sous réserve des
règlements, quiconque de leur part, peut, dans les quatre-vingt-dix jours
suivant le jour où ils sont, de la manière prescrite, avisés de la décision
ou de l’arrêt, ou dans tel délai plus long qu’autorise le ministre avant ou
après l’expiration de ces quatre-vingt-dix jours, demander par écrit à
celui-ci, selon les modalités prescrites, de réviser la décision ou l’arrêt.
|
III. Issues
[9]
The
Applicant states that the Respondent erred by not granting her the
reconsideration and breached the rules of natural justice.
IV. Standard
of Review
[10]
The
issue in this case is one of mixed fact and law and will be reviewed on a
standard of reasonableness (see Dunsmuir v. New Brunswick, 2008 SCC 9;
[2008] 1 S.C.R. 190, and Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1
S.C.R. 339). I come to this conclusion after considering the fact that
decisions with regard to extensions of time are final and binding, except for
judicial review; that the statutory scheme provides that the Minister’s ability
to grant an extension of time is discretionary; that this is an issue of,
primarily, mixed fact and law, and that a similar provision under section 82 of
the Plan was determined to be reviewable under the standard of
reasonableness (see Canada (Attorney General) v. Schneider, 2008 FC 764;
[2008] F.C.J. No. 1176 and Canada (Attorney General) v. Blondahl, [2009]
F.C.J. No. 178; 2009 FC 118).
[11]
As
set out in Dunsmuir and Khosa, reasonableness requires the
existence of justification, transparency, and intelligibility in the
decision-making process. It is also concerned with whether the decision falls
within a range of acceptable outcomes that are defensible in respect of the
facts and law.
[12]
Any
breach of natural justice is considered under the standard of correctness.
V. Discussion
A. The
Decision
[13]
The
Applicant alleges that the Respondent erred in not reconsidering the original
decision dated October 20, 2008. The Applicant states that had she been aware
of the provision that she could apply for Canada Pension disability benefits if
she was disabled prior to her application for retirement benefits, the
Applicant would have retained a solicitor to make an application for the
October 20, 2008 decision and request the solicitor to request a reconsideration
of that decision.
[14]
Therefore,
she states that she ought to have been informed by Human Resources Development
Canada on October 20, 2008 that she could still apply for disability benefits
on the basis that she was disabled prior to her application for retirement
benefits.
[15]
However,
the Decision at issue in this matter is the refusal to extend the 90 day period
in which the Applicant could have made a request for reconsideration. The
reason for the refusal was that the request for reconsideration was made, by
admission, outside of the 90 day period. The Applicant was expressly informed
of this 90 day period in the October 20, 2008 letter.
[16]
The
Decision was reasonable.
B.
Natural
Justice
[17]
The
Applicant stated that by refusing to grant her the reconsideration requested in
the July 29, 2009 letter, the Respondent offended the rules of natural
justice. The Applicant did not provide further argument on this issue.
[18]
In
cases involving natural justice, the underlying question to be asked and
answered is: did the tribunal on the facts of the particular case act fairly
toward the person claiming to be aggrieved (Blencoe v. British
Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; 2000
SCC 44 at paragraph 105). Therefore, I must determine if Human Resources
Development Canada acted fairly toward the Applicant. The answer is yes.
[19]
In
this case, the Applicant had been diagnosed with a psychological condition that
could affect her ability to deal with pressing issues such as a specific period
of time. According to her evidence, she also has a low level of education and
limited English.
[20]
The
Applicant did not have assistance with her September 9, 2008 application for
disability benefits or the October 20, 2008 rejection letter until she retained
current counsel. However, the Applicant had engaged in several Canada Pension
Plan disability benefits applications and appeals prior to September 2008. The
Applicant had been assisted on several of these applications and/or appeals by
a consultant, a family member, or other counsel. While the Applicant may not
have been happy with the services provided to her by these people, their
engagement demonstrates that the Applicant felt she required assistance with
the processes.
[21]
The
Applicant had her September 9, 2008 application considered and was informed of
the negative decision in the October 20, 2008 letter. The letter clearly set
out that she could ask for reconsideration within 90 days, and attached a
pamphlet on how to do so. The Applicant, despite having had assistance with
other applications and appeals in the past, did not seek assistance with this
letter until approximately 10 months later.
[22]
The
Applicant’s request for reconsideration was made outside of the 90 day period
expressly stated. In the letter to request reconsideration, the Applicant’s
solicitor agreed that they were outside of the 90 day window, but did not state
any reason for the late request beyond the fact that the solicitor had just
been retained.
[23]
The
fact that in the October 20, 2008 letter, Human Resources Development Canada
did not inform her that she could still apply for disability benefits on the
basis that she was disabled prior to her application for retirement benefits
does not render the September 23, 2009 decision unfair.
[24]
As
I have found that the Decision was reasonable and there was no violation of the
principles of natural justice it is not necessary to consider the remedies
sought by the Applicant.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application is dismissed without costs.
“ D.
G. Near ”
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