Date: 20110526
Docket: T-1254-10
Citation: 2011 FC 615
Ottawa, Ontario, May 26,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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MADALENA GRACA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of a designated member of
the Pension Appeals Board (PAB) dated June 24, 2010. The decision granted the
Respondent leave to appeal a decision of a review tribunal dated March 23,
2005, approximately five years after the 90 day time limitation for
requesting an appeal under the Canadian Pension Plan (CPP) had elapsed.
[2]
The
Applicant, the Attorney General of Canada, seeks an Order setting aside the
decision of the member of the PAB and referring the matter back to a different
PAB member. The Respondent filed no submissions for this application, and did
not appear at the hearing.
[3]
Based
on the reasons that follow, this application is allowed.
I. Background
A. Factual
Background
[4]
The
Respondent, Madalena Graca, appealed the Applicant’s decision to deny her
application for disability benefits in February 2005. By decision dated March
23, 2005, a Review Tribunal (RT) dismissed the appeal on the basis that the
Respondent was not disabled within the meaning of disabled under the CPP.
[5]
By
letter dated May 17, 2010, more than five years after her appeal was dismissed,
the Respondent requested an extension of time within which to seek leave to
appeal, and filed an application for leave to appeal the decision of the RT to
the PAB. The Respondent alleged that her representative before the RT had
erroneously advised her that nothing further could be done following the
dismissal of her appeal. Additionally, the Respondent submitted that since her
first language is Portuguese, she was not able to read and understand the RT
decision in order to determine her rights and assess the merits of a further
appeal.
[6]
Leave
was granted by a member of the PAB on June 19, 2010. There was no mention of
an order extending the time within which to seek leave. The PAB later provided
an amended letter to the Medical Expertise Division of Human Resources and
Skills Development Canada (HRSDC) advising that a PAB member had extended the
time within which to appeal until June 19, 2010 and that, the same day, leave had
also been granted. No reasons were provided with the amended letter, nor the
initial decision granting leave.
[7]
The
Applicant now seeks to have this decision set aside on the basis that the PAB
member erred in two respects: 1) in granting leave to appeal under the
particular circumstances of this case and 2) in failing to provide adequate
reasons for the decision to extend the time to appeal.
II. Issues
[8]
The
main issue raised in this application is:
(a) Whether
the designated member of the PAB committed a reviewable error by granting an
extension of time without providing accompanying reasons.
III. Standard
of Review
[9]
Two
issues are involved in the review of a decision of a designated member to grant
leave to appeal: 1) whether the member applied the right test and 2) whether
the member committed a reviewable error in applying the test.
[10]
The
first issue is a question of law, reviewable on the correctness standard (Vincent
v Canada (Attorney
General),
2007 FC 724, 315 FTR 114 at para 26). The second issue attracts the standard
of reasonableness. It is a question of mixed fact and law as the member must
apply the test to the facts. The “arguable case” test requires the member to
determine whether the application for leave to appeal raises an arguable case,
without otherwise assessing the merits of the decision under appeal.
There may be several potential outcomes of this exercise, and as set out in Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Court will not
interfere with a decision that is shown to be justified, transparent and
intelligible and which falls within a range of acceptable outcomes that are
defensible in respect of the facts and law (Samson v Canada (Attorney
General), 2008 FC 461, 166 ACWS (3d) 1001 at para 14; Williams v Canada
(Attorney General), 2010 FC 701 at para 12).
[11]
The
duty to provide adequate reasons is currently considered a matter of procedural
fairness reviewable on the correctness standard (Canada (Attorney
general) v Blondahl, 2009 FC 118, 362 FTR 1 at para 9).
[12]
However,
on any standard of review, the decision issued by the member cannot stand for
the reasons that follow.
IV. Argument
and Analysis
A. Did
the Designated Member Err in Failing to Provide Adequate Reasons for Granting
an Extension of Time?
[13]
The
Attorney General of Canada alleges that the member erred in granting both the
extension of time and the leave to appeal. In the circumstances of this case,
I agree with the Applicant, and will allow this application on the basis that
the member erred by not providing adequate reasons for granting the extension
of time.
[14]
Subsection
83(1) of the CPP sets out the 90 day limit within which an applicant who is
dissatisfied with the decision of a RT may apply, in writing, for leave to
appeal that decision to the PAB. The 90 day limit may be extended by the
Chairman or Vice-Chairman of the PAB either before or after the expiration of
those 90 days.
[15]
The
decision to grant an extension of time is discretionary, and must be explicitly
considered by the member. There is no automatic inference that just because a
member granted leave, he must have also granted an extension of time.
Jurisprudence of this Court holds that it is incumbent upon the member to
support the exercise of discretion with reasons (Canada (Minister of
Human Resources Development) v Roy, 2005 FC 1456, 281 FTR
198 at para 13). I see no reason for me to deviate from this well-established
principle.
[16]
As
cited by the Respondent, Justice Johanne Gauthier considered the issue of
adequacy of reasons with respect to granting an extension of time in Canada (Attorney
general) v Blondahl, above. At paras 15 and 16 she reviewed the
jurisprudence of the Court and stated:
[15] […] It is to be noted that
motions for an extension are often dealt with in brief orders by the Federal
Court and that the Federal Court of Appeal confirmed that there was generally
no need for extensive reasons in such cases. What is important, as noted by the
Federal Court of Appeal in Via Rail Canada Inc. v. Lemonde, [2001] 2
F.C. 25, (2000), 193 D.L.R. (4th) 357 is that a decision that is subject to
judicial review must contain enough to enable the parties to assess their
possible grounds of review and for the Court to exercise its jurisdiction.
[16] This means that, as illustrated
by Jakutavicius, the Commissioner should at minimum adopt the practice
of stating the test it applied by simply referring to a decision in which it is
articulated, such as Pentney. In addition, the Commissioner should state
which of the four factors set out in this test he found to be determinative in
the exercise of his discretion as well as any other case specific factors he
found determinative.[…]
[17]
The
test for granting an extension of time is well-established. The four-pronged
test set out in Canada (Minister of Human Resources Development) v
Gattellaro, 2005 FC 883, 140 ACWS (3d) 576 at para 19 requires the member
to weigh and consider the following criteria:
- 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.
[18]
In
the present matter, the member first erred by allowing leave to appeal without
indicating on the record that he considered the issue of the extension of
time. The subsequent amended order granting leave failed to remedy the
situation. It was completely void of any reasons supporting the decision.
There is no indication of how the test was applied, or if the correct test was even
applied at all. Given the absence of anything to review, it is, as the
Applicant submits, impossible for this Court to assess whether the granting of
the extension and leave to appeal was reasonable.
[19]
Five
years had elapsed since the RT decision was issued. In such circumstances, an
order granting an extension of time ought to have been accompanied by reasons
explaining the member’s exercise of discretion in preference of the
Respondent. The member erred in law. Consequently, the decision must be set
aside
V. Conclusion
[20]
In
consideration of the above conclusions, this application for judicial review is
allowed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed.
“ D.
G. Near ”
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