Date:
20090522
Docket: T-1794-07
Citation: 2009 FC 508
Ottawa, Ontario, this 22nd day of May
2009
Present: The Honourable Mr. Justice
Pinard
BETWEEN:
CYRIL HILTZ
Applicant
and
HUMAN RESOURCES DEVELOPMENT CANADA
CANADIAN PENSION PLAN DISABILITY
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of two letters, dated May 22 and
September 17, 2007, respectively, wherein the Minister of Human Resources
Development Canada declined to entertain the applicant’s request to reopen her
decision of January 11, 2000 denying the applicant benefits under the Canada
Pension Plan, R.S.C. 1985, c. C-8 (“CPP”). The applicant seeks an order of mandamus
compelling the Minister to reopen her decision, based on new medical evidence.
* * * * * * *
*
[2]
The
applicant, Cyril Hiltz, is representing himself on this application. On March
16, 1996, he suffered a work-related injury that left him unable to continue
working as an equipment operator.
[3]
On
November 16, 1999 he applied for disability benefits under the CPP. In a letter
dated January 11, 2000 (the “2000 Decision”), Human Resources Development
Canada (“HRDC”), on behalf of the Minister, denied his application because his
condition was found not to be “serious and prolonged”, as required by paragraph
42(2)(a), as at the time he applied for benefits he had the ability to
“do some form of work, suitable to [his] condition and limitations, on a
regular basis”. The applicant did not apply for reconsideration, although he
was informed of his right to do so in the letter.
[4]
Following
his injury, the applicant obtained his Certificate in Pharmacy Tech, and worked
as a pharmacy technician for Extra Foods from October 12, 2002 until April 10,
2005, when he left because problems with balance made him unable to stand, as
well as because of chronic pain and nausea.
[5]
Between
August 1996 and April 25, 2005, the applicant made 31 visits to fourteen
different physicians to obtain advice or treatment for a variety of symptoms, including
chronic neck and elbow pain, and episodes of nausea and vertigo. He had a right
bicep tear repaired in May 1998, which eased the pain in his elbow. His
headaches, nausea and photophobia continued, however.
[6]
On
April 21, 2005, Dr. Longridge, an otolaryngologist, was the first to determine
that the applicant’s symptoms of nausea and vertigo were due to damage to his
inner ear, sustained when he injured himself in 1996. In his report, Dr.
Longridge wrote:
This patient’s posturography is characteristically
abnormal for an inner ear balance system dysfunction. Its onset as he started
to mobilize following his accident means that probably in some way there has
been damage to the inner ear as part of the sudden flicking back of his head
with the accident which ruptured his biceps tendon on the right. . . . He is
significantly limited by it. . . .
[7]
On
June 27, 2005, the applicant again applied for disability benefits, and was
again denied. In a letter dated September 20, 2005 (the “2005 Decision”), he was
informed by HRDC that he was ineligible for benefits because, despite having
contributed to the Canada Pension Plan for twenty-five years, he had not, as
required by the CPP, contributed in at least four of the last six years.
[8]
On
October 28, 2005, the applicant requested reconsideration of the 2005 Decision.
In a letter dated November 16, 2005 (the “Reconsideration Decision”), HRDC
confirmed its decision, and informed the applicant of his right to appeal the
decision to the Review Tribunal.
[9]
A
hearing before the Review Tribunal took place on October 4, 2006. In a decision
dated November 24, 2006, the tribunal allowed the appeal. At page 4 of its
decision, it wrote the following:
The Panel, at the outset of the hearing,
advised the Appellant that if he were successful in this application he might
wish to consider making application to the Minister to reopen his application
of 16 November 1999. . . .
At page 12, the tribunal added:
The Panel does wish to note that its
present decision is based, in considerable part, on the report of Dr. Longridge
of 21 April 2005. In the event that application is made to reopen the
application of November 1999 that report might be considered as new facts as
required by subsection 84(2) of the Act.
[10]
Pursuant
to paragraph 42(2)(b) of the CPP, the applicant was deemed by the Review
Tribunal disabled as of fifteen months prior to his application, namely March
2004. Because of the statutory four-month waiting period, the applicant
therefore could receive disability payments only as of July 2004.
[11]
Following
the Review Tribunal decision, the applicant wrote to HRDC, requesting
reconsideration of its 2000 Decision based on new facts, namely, Dr.
Longridge’s report. In a letter dated May 22, 2007, HRDC informed the applicant
that the Reconsideration Decision was “final” to the department; consequently,
as of that date his first (1999) application was “closed” and the Minister no
longer had the authority to review the 1999 application under subsection 84(2)
of the CPP.
[12]
In
a further letter dated September 17, 2007, the HRDC, now HRSD (Human Resources
and Social Development) clarified that the letter of May 2007 was a courtesy
letter informing the applicant that it was without authority to reconsider his
1999 application, and that it did not constitute a decision subject to judicial
review.
[13]
It
is this letter (and its predecessor) that appears to be subject matter of the
present review.
* * * * * * *
*
[14]
This
matter raises the following issues:
1. Does the letter from the
Minister, dated September 17, 2007 and/or the Minister’s previous letter of May
22, 2007, constitute a “decision” within the meaning of section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, such that it can be subject to judicial
review by this Court?
2. Was the Minister correct in
determining that there is no jurisdiction to entertain the applicant’s request
to reopen the decision denying his first application for benefits?
3. Was the applicant denied
procedural fairness because he was not advised that the failure to pursue the
appeal of the decision on the first application would preclude the reopening of
such decision once a decision is made on the second application?
[15]
Each
one of these issues must be analyzed on a standard of correctness. Indeed, the
first issue concerns the jurisdiction of this Court, and whether the letter or
letters identified by the applicant are properly “decisions” that may be
reviewed under subsection 18.1 of the Federal Courts Act. The second
issue addresses the Minister’s statements about her jurisdiction under the CPP,
based on the application of res judicata or a related principle of
“finality”. Neither of these issues is within the expertise of the
decision-maker; the Court is therefore entitled to undertake a separate
analysis and to come to its own conclusions, based on the facts and the law (Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, at paragraphs 29, 30, 36, and 50). The third
issue addresses procedural fairness, and therefore also calls for review on a
standard of correctness.
* * * * * * *
*
[16]
The
following provisions of the CPP are relevant to the present review:
|
42. (1) …
(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,
(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
(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; and
[…]
|
42.
(1) …
(2)
Pour l’application de la présente loi :
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)
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,
(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;
[…]
|
|
84.
(1) A Review Tribunal
and the Pension Appeals Board have authority to determine any question of law
or fact as to
(a) whether any benefit is
payable to a person,
(b) the amount of any such
benefit,
(c) whether any person is
eligible for a division of unadjusted pensionable earnings,
(d) the amount of that division,
(e) whether any person is
eligible for an assignment of a contributor’s retirement pension, or
(f) the amount of that
assignment,
and the
decision of a Review Tribunal, except as provided in this Act, or the
decision of the Pension Appeals Board, except for judicial review under the Federal
Courts Act, as the case may be, is final and binding for all purposes of
this Act.
(2)
The Minister, a Review Tribunal or the Pension Appeals Board may,
notwithstanding subsection (1), on new facts, rescind or amend a decision
under this Act given by him, the Tribunal or the Board, as the case may be.
|
84. (1) Un tribunal de révision et la
Commission d’appel des pensions ont autorité pour décider des questions de
droit ou de fait concernant :
a) la question de savoir si une prestation est payable à une
personne;
b) le montant de cette prestation;
c) la question de savoir si une personne est admissible à un
partage des gains non ajustés ouvrant droit à pension;
d) le montant de ce partage;
e) la question de savoir si une personne est admissible à
bénéficier de la cession de la pension de retraite d’un cotisant;
f) le montant de cette cession.
La décision du tribunal
de révision, sauf disposition contraire de la présente loi, ou celle de la
Commission d’appel des pensions, sauf contrôle judiciaire dont elle peut
faire l’objet aux termes de la Loi sur les Cours fédérales, est définitive et
obligatoire pour l’application de la présente loi.
(2)
Indépendamment du paragraphe (1), le ministre, un tribunal de révision ou la
Commission d’appel des pensions peut, en se fondant sur des faits nouveaux,
annuler ou modifier une décision qu’il a lui-même rendue ou qu’elle a
elle-même rendue conformément à la présente loi.
|
* * * * * * * *
[17]
Assuming,
with respect to the first issue, that the Minister’s letters constitute a
“decision” that can be subject to judicial review by this Court, I am of the
view that the second and third issues must be decided in favour of the
respondent, for the following reasons.
[18]
With
respect to the second issue, the respondent argues that the Minister was
without jurisdiction to entertain the applicant’s request to reopen her 2000
Decision because the matter has been finally determined by the Review Tribunal in
its decision of November 2006. At paragraph 35 of its submissions, the
respondent writes:
… the Applicant in the present case is
asking the Minister to reopen a decision and reconsider whether or not he was
disabled when he last qualified for benefits, namely, in December of 1998.
However, this issue has been subsequently determined by a Review Tribunal which
found him to be disabled at the relevant time and granted him benefits. The
Applicant, if dissatisfied, should have attacked this decision directly by
requesting a reconsideration and not collaterally by requesting a reopening of
this decision after a subsequent decision was made on a subsequent application.
To allow the Minister discretion to reopen the first application could give
rise to inconsistent decisions. It also violates the principle of finality.
[19]
The
respondent relies on the Federal Court of Appeal’s decision in Minister of
Human Resources Development v. Hogervorst, 2007 FC 41 (“Hogervorst”),
as well as this Court’s decisions in Kabatoff v. Minister of Human Resources
and Development, 2007 FC 820 (“Kabatoff”) and Dillon v. Attorney
General, 2007 FC 900 (“Dillon”), to argue that the applicant’s
attempt to have the Minister’s reopen its earlier decision amounts to a
collateral attack on its earlier ruling, based on the Review Tribunal’s
decision. I agree.
[20]
Although
the facts in those three cases are somewhat different to the case at hand, the
same principles apply. While in Hogervorst the applicant was seeking to
appeal a previous decision rather than reopen a decision under subsection 84(2)
of the CPP, in both cases there is a subsequent decision which is final and
binding on all of the parties. As stated in Hogervorst, these decisions
should be attacked directly and not collaterally. To allow such an attack to
proceed violates the principle of finality and leaves open the possibility for
inconsistent decisions.
[21]
In
Kabatoff, Justice James W. O’Reilly, relying on Hogervorst,
stated the following at paragraph 7:
I
agree with Mr. Kabatoff that the statute does not explicitly state that the
Minister cannot reconsider a decision if the Review Tribunal has dealt with the
same issue. However, I agree with the Minister that a sensible reading of the
legislation leads to that result. Further, I am persuaded that the Federal
Court of Appeal has recently determined that the statute should be read in the
manner suggested by the Minister …
[22]
In
the subsequent decision of Dillon, Justice Simon Noël, also relying on Hogervorst,
expressed the following:
[19] The
applicant argues that under subsection 84(2) of the CPP, the Minister has the
discretion to rescind or vary a prior decision based on new facts even if the
Review Tribunal is seized with the same question. I agree with the respondent
that this argument cannot succeed because it amounts to a collateral attack on
a final decision taken in January 1998. …
[…]
… Moreover, there is no authority to order
the Minister to reopen any decision relating to the applicant’s first
application since the Minister has subsequently given a final decision on the
applicant’s second application, which the applicant has appealed to the Review
Tribunal. Consequently, the Minister is functus officio with respect to
the first application. The decision is res judicata. …
[23]
As
in Dillon, there is here a subsequent final and binding decision of the
Review Tribunal on the applicant’s second application which is binding on the
parties. In order to succeed, the applicant must demonstrate that the Minister
has the authority to reopen her decision on the first application pursuant to
subsection 84(2) of the CPP even though a subsequent final and binding decision
has been made on the issue of disability by the Review Tribunal. The case law
is clear that no such authority exists.
[24]
With
respect to the third issue, the applicant argues that he was denied procedural
fairness because he should have been advised of the consequences of filing his
second application, in which case he may have opted instead to challenge the
denial of his first application.
[25]
As
noted by the respondent, when the applicant reapplied in June of 2005, he had
been working as a pharmacy technician since 2002, having stopped work only
recently in April of 2005. Most importantly, he indicated in his application
that he considered himself no longer able to work as of April 2005. His
decision to reapply is therefore entirely reasonable in the circumstances. It
was not until the Review Tribunal suggested he ask the Minister to reopen the
decision of the Minister of his fist application that the issue was raised. The
applicant had the right to file a second application whereas he could have
sought a reopening of the first. The Minister quite properly responded to his
request to adjudicate his subsequent application. Indeed, in Dillon, supra,
Justice Noël wrote:
[21] In Mr.
Dillon’s case, he is asking the Minister to reconsider a 1998 decision even
though he did not appeal it and the Review Tribunal has subsequently disposed
of the same issue as a follow-up to a second application. The applicant, as is
his right filed this second application in 2004, whereas he could have filed a
request to reopen the 1998 decision to cancel the benefits. The applicant made
a decision to file a second application. By doing so, he chose the procedural
avenue to be followed. The respondent reacted to this request. The Minister
rendered a decision initially refusing this second application, then after the
request was made to reconsider, the Minister granted the benefits
retroactively. This decision was appealed to the Review Tribunal on the grounds
that the Minister should rescind the 1998 decision and make the payments
retroactive to December 1997. The Review Tribunal refused.
[…]
[25] Finally,
Mr. Dillon knew the law particularly after having consulted with the
representatives of the CPP and having dealt with them since 1988. This Court
has recognized that in administrative law, everybody knows the law and is
presumed to understand it. In Dorey v. Canada (Customs and Revenue Agency), [2003] F.C.J. No. 1575, 2003
FC 1241, Madame Justice Elizabeth Heneghan stated at paragraph 22:
… It is well-established that persons are
deemed to have knowledge of the law. In Pirotte v. Canada (Unemployment
Insurance Commission), [1977] 1 F.C. 314, a case involving a claim for
unemployment insurance benefits, the Court of Appeal said as follows at page
317:
… It is a fundamental principle that
ignorance of law does not excuse failure to comply with a statutory provision.
(Mihm v. Minister of Manpower and Immigration, [1970] S.C.R. 348 at p.
353.) The principle is sometimes criticized as implying an unreasonable
imputation of knowledge but it has long been recognized as essential to the
maintenance and operation of the legal order. (See also: Zündel v. Canada (Canadian Human Rights
Commission)
(re Canadian Jewish Congress), [1999] F.C.J. No. 392 at paragraph 17; McGill
v. Canada (Minister of National Revenue
– M.N.R.),
[1985] F.C.J. No. 806 (F.C.A.).)
[26]
Finally,
it is true that the Review Tribunal raised the issue of new facts and in
essence suggested to the applicant that he should apply to the Minister to
reopen his previous application pursuant to subsection 84(2) of the CPP, which
the applicant did. However, because the Review Tribunal had, at the same time,
rendered a final and binding decision on the second application, there was no
jurisdiction to consider the applicant’s request.
[27]
In
spite of all the sympathy I have for the applicant, given the particular
circumstances of this case, I must conclude that the Minister was correct to
advise the applicant as she did in her two letters dated May 22 and September
17, 2007, respectively. The application for judicial review is, therefore,
dismissed. However, as requested by the respondent herself, there is no award
of costs.
JUDGMENT
The application for judicial
review of the two letters dated May 22 and September 7, 2007, respectively,
wherein the Minister of Human Resources and Development Canada declined to
entertain the applicant’s request to reopen her decision of January 11, 2000,
denying the applicant benefits under the Canada Pension Plan, R.S.C.
1985, c. C-8, is dismissed, without costs.
“Yvon
Pinard”
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