BARNES, J.
(Orally): This is an application for judicial review brought by the Crown
from a decision of the Pension Appeals Board -- and hereafter I’m just going to
refer to that group as the Board -- by which the Respondent, Allen Small, was
granted an extension of time in which to obtain leave to appeal from a decision
of a Canada Pension Plan Review Tribunal, and I’ll refer to that group as the
Tribunal. These are my reasons delivered orally at Halifax
on May 9th, 2006 for allowing the Crown’s application.
It appeared from
the record before the Court that Mr. Small’s intended appeal concerned the
Tribunal’s determination of his deemed disability date, which was found to be
April 2002 with benefits to commence in August 2002.
Mr. Small’s
request for an appeal was in the form of a letter received by the Board on
January 31st, 2006, which was approximately six weeks beyond the 90-day
filing requirement set by s.83(1) of the Canada Pension Plan. That letter offered
no explanation for Mr. Small’s failure to meet the 90-day appeal deadline. Mr.
Small’s letter was also somewhat unclear as to what decision he was concerned
with, and the Board assumed that he wished to appeal the Tribunal decision.
Because Mr. Small did not file any material on this application before the
Court, it was not until this morning that he advised the Court and the Crown
that his intention was to appeal an earlier ministerial decision by which his
first application for disability benefits was denied. Apparently, instead of
appealing that decision he was advised to bring a fresh application for
benefits, which he did. It was in connection with that application that he was
ultimately successful before the Tribunal.
Nevertheless,
he feels that his disability claim should properly have been assessed as of the
date of his first application, a difference of about eight months’ benefits.
He said today that that first application was submitted by mailing on time, but
it was lost somewhere in transit.
Needless
to say, the Board’s decision in this case was based on a wrong assumption. Mr.
Small is not challenging the Tribunal’s decision by which his disability claim
was accepted, and he understands that the commencement date for benefits as
determined on his second application for benefits was correct. He simply wants
the Minister to reconsider the decision to deny his first claim and to award
benefits as of the date of that earlier application for benefits.
Given that the
Board’s decision was based on a wrong assumption, an innocently made
assumption, certainly it should be set aside on that basis. I will, however,
deal as well with the Crown’s position on the merits of this application
because there, too, the Board erred.
In accordance with
s. 83(1) of the Canada Pension Plan, the Board did have discretion to grant an
extension of time to permit Mr. Small’s appeal to proceed. That decision was
rendered by the Board on July 14th, 2006. That decision offered the
following reasons for granting an extension to appeal.
“The decision of
the Review Tribunal is dated July 27th, 2005 but apparently was not
communicated to the Applicant until September 16th, 2005.
The 90-day appeal
period would expire approximately December 16th, 2005.
The undated letter
of the Applicant, which I shall consider as an Application for an Extension of
Time in which to Appeal and Leave to Appeal was received by the Pension Appeals
Board on January 31st, 2006, some one and a half months after expiry
of the appeal period.
In the Minister
of Human Resources Development v. Josephine Gattellaro, Snider, J. states
that a member’s decision to grant leave to appeal after the expiry of the
90-day period is “highly discretionary.”
Snider, J. went on
to say that, “four criteria must be followed on extension of time applications
under s. 83(1). They are:
1) A continuing intention to pursue
the
application, or appeal;
2) The matter discloses an arguable case;
3) There is a reasonable explanation for the
delay; and
4) There is no prejudice to the other party in
allowing the extension.
Snider,
J. concluded that the Applicant had failed to provide a reasonable explanation
for the delay and an absence of prejudice to the Minister.
By
reason of the short lapse of time between the expiry of the appeal period and
receipt of the application, I am prepared to exercise my discretion and find
that there was a continuing intention to appeal and no reasons for the delay in
filing the appeal are required.
I do
not feel the Minister will be prejudiced in preparing her response to the
appeal.
Although
I have some reservations as to whether the Applicant has an arguable case in
respect to the date of onset, for the purposes of this application, I am
prepared to find he does.
For
the above reasons the Application for an Extension of Time in which to Appeal
and Leave to Appeal is granted.”
And
that’s the end of the quote from the Board’s decision.
It
is very clear that the Board granted the extension in the this case without
requiring Mr. Small to provide any evidence to satisfy the four requirements
established by the Gattellaro decision.
Although
the granting of an extension to appeal is a discretionary remedy, it must still
be approached in a principled manner. There is, after all, a legitimate
interest in bringing finality to decisions made in the course of these types of
disputes.
I
accept the Applicant’s submission that the standard of review on issues of law
in this case is correctness, to the extent that this case may raise issues of
mixed fact in law the standard is reasonableness, and there I rely on Canada
(Minister of Human Resources Development) v. Hogervorst, which is at 2006,
decision of the Federal Court.
It
is apparent from the Board’s decision that it correctly identified the legal
test for granting an extension of time to Mr. Small. It is equally obvious
that it then ignored the test by granting an extension in the absence of any
evidence to establish a continuing intention to appeal, a reasonable
explanation for the delay and the absence of prejudice to the Crown. This
constitutes a clear error of law for which no deference is owed on judicial review.
Even in cases where the delay is of relatively short duration, the Board must
have some evidence to satisfy the requirement for granting an extension of
time. Here it had none.
It
is also insufficient for the Board to simply assume an arguable issue. Here I
would draw upon the wisdom of my colleague, Justice Yves de Montigny in the
markedly similar case of Attorney General of Canada v. Causey, a 2007
decision of the Federal Court, where he dealt with this issue as follows at
paragraph 23, and here I’m quoting from that decision: “Not only did the Board
member not identify an arguable ground of appeal but he went so far as to say
he doubted whether there was an arguable case. Granting leave to appeal in the
absence of proper reasons, especially where the Board member questions whether
a case is arguable, is an error of law, whatever standard of review is
applied. See Canada v Roy, a 2005
decision of the Federal Court.”
In
this situation Mr. Small’s letter to the Board failed to disclose an arguable
issue, and of course as I’ve already mentioned he was intending one thing by
that letter and the Board assumed another. That failure to disclose an
arguable issue might not be fatal, if the Board was in a position to identify
such an issue from the record before it. Here, though, the Board expressed a
generalized reservation on this issue and identified nothing which would
justify the time and expense of an appeal. Without intending to predetermine
this issue, I would only observe that the Applicant appears to be correct in
saying that the determination of the deemed disability and onset of payment
dates are fixed by law and calculated from the date of the application for
benefits, and indeed Mr. Small accepted that this morning as being a correct view
of the commencement date, at least with respect to his second application.
In
that context, it is difficult to identify an arguable basis for varying the
Tribunal’s determinations; unless the Board can find such a question, it should
not presume the existence of one. To do so is an error of law.
In
the result, and for the reasons I’ve given, this application for judicial
review is allowed. Given what we’ve learned this morning, it would be
pointless to send this back to the Board for a redetermination, because the
Board’s decision was based on a false assumption, as I mentioned earlier in
these reasons, but this should not preclude Mr. Small from attempting to seek
relief, either directly from the department or possibly to the tribunal or back
to this Court, to the Federal Court, if he feels that it’s appropriate to
attempt to resurrect or to pursue his first application and the relief he was
claiming in connection with his first application.
So,
Mr. Small you may have some rights here and some opportunities to pursue this,
the first application, but essentially what you’re going to have to do is go
out and decide how you’re going to do that, and I think the place to start is
with the department and see what advice they can give you as to where to take
the matter further, if you choose to do so.
So,
those are my reasons and thank you, gentlemen.
CERTIFICATE OF COURT
TRANSCRIBER
I, Philomena
Drake, Court Transcriber, certify that I have transcribed the foregoing and it
is a true and accurate transcript of the decision given in this matter, HER
MAJESTY THE QUEEN v. ALLEN SMALL, taken by way of electronic
recording.
__________________________________________
Philomena
Drake
Court Transcriber
(Reg. #2006-36)
Halifax, Nova Scotia
Tuesday, May 29, 2007
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