[4]
Presently
under review is the May 1, 2008 decision of the Pension Appeals Board (Board) which
denied Ms. Belo-Alves an extension of time to apply to argue leave to appeal RT-2.
Thus, the decision under review presents a bar to Ms. Belo-Alves’ attempt to
gain access to justice at a very preliminary level in the available dispute
resolution process. The standard of review of this decision is reasonableness
as defined by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47 as
follows:
…reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
The question for determination in the present Application is
whether the rejection of the extension request is reasonable. For the reasons
which follow, I find that it is not because it is not defensible on the facts.
[5]
In the
decision under review, I find that the Board correctly applied the standard to
be met in determining an extension request as that stated by Justice Snider in Human
Resources Development v. Gattellaro, 2005 FC 883 (Gattellaro). Four
factual criteria must be met: a continuing intention to pursue the application
or appeal; the matter discloses an arguable case; there is a reasonable
explanation for the delay; and there is no prejudice to the other party in
allowing the extension.
[6]
The
Board’s analysis of whether Ms. Belo-Alves met the four criteria is as follows:
I am not persuaded that she
had a continuing intention to appeal. There is nothing in the material
that mentions any steps taken by the Appellant to pursue an appeal. The
completion of a third application does not demonstrate a continuing intention
to appeal in my mind, rather to the contrary, it strengthens the view that this
was the preferred procedure to follow rather than appeal.
In my view, there is
nothing that provides an explanation for the delay in filing during the
entire period of time between the receipt of the decision of the Review
Tribunal and the filing of this application.
It is necessary on an
application of this nature that the Appellant raise an arguable case without
otherwise assessing the merits of the application.
In Callihoo v. Canada (Attorney General), (2000) FC T-859-99 (Fed. T.D.)
paragraph 22 states:
In the absence of significant
new or additional evidence not considered by the Review Tribunal, an
application for leave may raise an arguable case where the leave decision maker
finds the application raises a question of an error of law, measured by a
standard of correctness, or an error of significant fact that is unreasonable
or perverse in light of the evidence.
I can find nothing in the
material before me,
including the complete file, that persuades me that the Appellant has an
arguable case.
Also, I am not persuaded that
the Minister would not be prejudiced in preparing his response to the appeal,
after the passage of some two years and five months since the expiry of the
appeal period. The memory of witnesses would be diminished and their power of
recollection would be decreased.
It is also desirable that
there be finality to proceedings under the Plan. To grant this
application would not further that objective.
The test for considering a
request for an extension of time is conjunctive: a party seeking an extension
must demonstrate all four criteria. See Clayton v. Canada (The Minister of Citizenship
and Immigration) [2005]
FCJ 1855 (T.D.) (Q.L.) at paragraph 9.
If I should be wrong in the
above conclusions, in addition I would accept the principles of law set out in Jhajj
and Gallant (supra) and conclude that new jurisprudence cannot serve
as a basis to disturb final and binding decisions, such as the decision of the
Review Tribunal rendered April 12, 2005.
[Emphasis added]
(Decision, p. 7-9)
[7]
The criteria
of continuing intention and reasonable explanation are focussed on Ms.
Belo-Alves’ personal conduct. In my opinion, the Board’s analysis does not
exhibit a contextual understanding of Ms. Belo-Alves’ evidence in this respect and,
thus, this failure constitutes a fundamental factual error.
[8]
An
understanding of Ms. Belo-Alves’ life situation is important when attempting to
understand her actions in failing to appeal RT-2. The following sworn evidence
with respect to the foundation of her claim for a pension was before the Board:
I was involved in a motor vehicle
accident on September 22, 1988 in which the vehicle in which I was riding as a
front-seat passenger was hit from behind. In that accident, I was rendered
unconscious but, after several months, I was making a good recovery.
I was involved in a second, and more
serious, motor vehicle accident on May 14, 1989. In this second accident, I
was again riding as a front-seat passenger on the 401 when the vehicle blew a
tire, rolled over, and came to rest in a ditch. I was hospitalized for two
weeks following this accident, the first of which was spent in critical care.
I was 15 weeks pregnant at the time of this second accident.
As a result of the second motor vehicle
accident, I sustained a number of severe injuries including extensive scalp
lacerations in which portions of my skull were exposed, fractured ribs, a
fractured right thumb, soft tissue injuries, small bone dislocations involving
my left foot, and a neck injury. I also underwent several surgeries.
Following my second motor vehicle
accident, I continued to experience pain and limitation. I underwent surgery
for a posterior cervical fusion on April 29, 1991, which was supposed to
achieve a C6-7 fusion to deal with a 25% anterolisthesis of C6-7. I later
discovered that the physician who performed the procedure, Dr. Esses, operated
on the wrong level and, instead, fused C7-T1.
After this surgery on my neck, I
continued to experience neck pain and limitation. When it was discovered that
my neck was fused at the wrong level, I retained Mr. Ken Gerry of the law firm
Malach & Fidler to represent me in a claim against Dr. Esses, the surgeon
who performed the surgery.
Since at least 1991, I have dealt with
several difficulties including severe neck pain and limitation, depression and
anxiety, cognitive impairments, posttraumatic stress disorder, widespread pain,
fibromyalgia, insomnia, and sleep apnea.
I have attempted a number of different
treatment programs including physiotherapy, psychotherapy, acupuncture,
prescription medication, work hardening, and surgery. I am still unable to
work, and I have been unable to work since my second motor vehicle accident.
(Affidavit of Guida Belo-Alves, December
3, 2007, contained in Affidavit of Kathleen Gates, August 12, 2008, Vol. 1, pp.
53 – 54, paras. 3 - 9)
Regardless of whether this evidence is capable of supporting
Ms. Belo-Alves’ ultimate claim for a pension, it is very relevant background to
understanding her failure to meet the statutory time limit.
[9]
With
respect to the factor of continuing intention, it is very obvious that, on the
evidence before the Board, Ms. Belo-Alves has never given up on her pursuit of
a disability pension; indeed in 2003 and 2007 she made applications to keep her
pension quest alive. This latter attempt is cited by the Board as a preference
which proves a lack of intention in fostering an appeal of RT-2. I find the
evidence runs contrary to this conclusion.
[10]
In the
present case, against the background described, the Board had Ms. Belo-Alves’
evidence explaining poverty, fear, continuing poor health, and serious life
burdens as the reasons she did not take up the judicial review option:
I did not seek a judicial review of the
second Review Tribunal’s decision to dismiss the new facts claim because I
could not afford to hire a lawyer to act on my behalf. Without a lawyer, I did
not feel that I would be able to represent myself at the Federal Court of
Canada as I did not know how to process the paper work or even how to conduct
myself in that Court. I was fatigued from various medical conditions from
which I suffer, and I did not feel capable of proceeding any further. My
15-year-old daughter had also testified at the second Review Tribunal hearing,
a process she found incredibly stressful; she actually attempted suicide
shortly thereafter. Finally, I was also trying to care for a small child.
(Affidavit of Guida Belo-Alves, December
3, 2007, contained in Affidavit of Kathleen Gates, August 12, 2008, Vol. 1, p.
55, para. 16)
I find there is ample evidence contained in this statement
that is capable of meeting the tests of continuing intention and reasonable
explanation for delay. In view of this evidence, I find that the Board’s
conclusion that there is “nothing” on the record to meet these criteria is
unsupportable.
[11]
With
respect to the issue of arguable case, the argument placed before the Board by
Counsel for Ms. Belo-Alves has two components: an evidentiary argument that new
evidence exists within the medical evidence produced by Ms. Belo-Alves
(Affidavit of Kathleen Gates, August 12, 2008, Vol. 1, p. 76, para. 15); and a
legal argument that an improper test for new facts was applied in RT-2
(Affidavit of Kathleen Gates, August 12, 2008, Vol. 1, pp. 77 - 79, paras. 19 –
26). On the evidentiary point, what more can she say, and what more is
necessary to say to meet this criterion? In my opinion, it is not possible to
evaluate the quality of such evidence on an extension application; I find that
it is enough to show that there is an argument with evidence to substantiate it
to meet this particular factor. This Ms. Belo-Alves did do. With respect to the
legal argument, in my opinion it has a reasonable chance of success. As a
result, I find that the Board’s “nothing” evidentiary finding on this factor is
unsupportable.
[12]
With
respect to the Board’s finding of prejudice to the Minister, it is important to
keep in mind that Ms. Belo-Alves only requested an extension of time for a
chance to apply for leave to appeal. The “new fact” evidence and legal argument
on the record is in document form, and it would be the basis upon which the
Pension Appeals Board would decide whether to grant or deny leave to appeal. In
the decision under review, the Board supported the finding of prejudice by
concluding on factors which would be in play on the leave to appeal application
itself. In my opinion, these factors are matters only within the discretion of
the Pension Appeals Board on the leave application, and, as a result, I find
that the Board was in error to apply them on the extension application.
[13]
With
respect to the Board’s failsafe statement that if it wrongly applied all the
factual Gattellaro criteria, a legal res judicata bar to
reconsideration nevertheless exists which produces the same outcome, I find
that this is not for the Board to decide on the extension application; it is a
question that would be properly before the Pension Appeals Board on leave if the
extension is granted.
[14]
As a
result of the foregoing analysis, I find that the Board’s decision is
unreasonable.
ORDER
Accordingly, I set aside the
decision under review and refer the matter back to a differently constituted
panel for redetermination.
I award costs of the present
Application to Ms. Belo-Alves in the sum of $1,500 payable forthwith.
“Douglas R. Campbell”
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