Date: 20070430
Docket: T-227-06
Citation: 2007 FC 460
Ottawa, Ontario, April 30,
2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ROBERT BRUCE
FORFAR
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
One
of the benefits conferred by the Canada Pension Plan is a disability pension,
which is quite different from Workers Compensation or Employment Insurance. The
disability does not have to arise from a work related incident. Rather, it is a
disability which prevents someone from working, whether or not work is
available. Robert Forfar has a grade 12 education and a certificate in welding.
He was laid off in 1989 due to a shortage of work and has not worked since. In
1990, he was severely injured in a motorcycle accident. His physical injuries are
such that he is unable to work as a welder, or otherwise as a manual labourer.
[2]
The
accident gave rise to litigation. He received a settlement and moved from Ontario to Nova Scotia where he
purchased an apartment building. Unfortunately, the venture failed, probably
due, at least in part, because he was physically unable to maintain the
building himself.
[3]
Afterwards,
in 1995, when he was 48, he applied for Canada Pension Plan disability
benefits. Based on his contributions, he is entitled to benefits only if it is
determined that he was disabled within the meaning of the Plan on or before 31
December 1994.
[4]
His
application was denied. The Minister accepted that he was unable to work as a
welder, but determined he could work in a clerical position. Section 42(2) (a)
of the Plan provides that a person is considered to be physically disabled if
“incapable regularly of pursuing any substantially gainful occupation”
(emphasis added). Furthermore, the disability is prolonged only if “likely to
be long continued and of indefinite duration or is likely to result in death”.
[5]
Mr.
Forfar has been trying for eleven years to have that decision set aside.
Counting up applications, reconsiderations, reviews, applications for leave to appeal
and appeals, his claim has been considered at least seven times. He succeeded
once, but that decision was reversed on appeal. The last decision, which is
under judicial review here, was rendered by the Canada Pension Plan Review
Tribunal in December 2005. It decided that no “new facts” were advanced to
alter the original decision rendered in 1996 that he was not disabled within
the meaning of the Plan.
THE SCHEME OF THE PLAN
[6]
The
Plan, fully known as “An Act to establish a comprehensive program of old age
pensions and supplementary benefits in Canada payable to and in respect of
contributors”, and which may be cited as the Canada Pension Plan gives
extensive recourse to a contributor who is dissatisfied with the outcome of his
application.
[7]
The
process begins with an application. Section 60(7) of the Plan dictates that
upon receiving a benefits application, the Minister shall forthwith consider it
and either approve it and determine the amount thereof, or decide that no
benefit is payable.
[8]
The
second step as contemplated by section 81 of the Plan permitted Mr. Forfar to
request the Minister to reconsider. He did. That reconsideration, carried out
by the Appeals and Reconsideration Division of the Income Security Programs of
Human Resources Development Canada, rendered in November 1996, upheld the
original decision.
[9]
The
third step, set out in section 82, is an appeal from the reconsideration
decision to the Canada Pension Plan Review Tribunal. Mr. Forfar availed himself
of that right, but his appeal was unsuccessful.
[10]
The
fourth step comes in two stages. Section 83 provides that if dissatisfied,
either the applicant, or the Minister, may appeal a decision of the Review
Tribunal to the Pension Appeals Board, but only with leave from the chair or
vice-chair thereof. Mr. Forfar sought leave, which was denied in April 1999.
[11]
That
was almost, but not quite, the end of the road.
[12]
Section
84(1) provides that the decision of the Review Tribunal, or Pension Appeals
Board, is final except for judicial review under the Federal Courts Act.
Mr. Forfar did not apply for judicial review of that decision.
[13]
Mr.
Forfar’s recourses were still not exhausted, for section 84(2) goes on to
provide:
|
84.
(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.
[Emphasis
Added]
|
84. (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.
[je
souligne]
|
[14]
In
2001, Mr. Forfar again applied for a disability benefit. Proper procedure
required him to apply to the Review Tribunal on the basis of “new facts”. However,
he applied to Human Resources Development Canada, which treated his application
as a fresh one and denied it because he had “not made any recent contributions
to the Plan”. This was quite true. He appealed that decision to the Review Tribunal. It allowed
his appeal on the grounds that there were “new facts”.
[15]
The
Minister sought and obtained leave to appeal that decision to the Pension
Appeals Board. The appeal was allowed in July 2005. The Board said:
We agree in the circumstances of this
case that the Review Tribunal acted without jurisdiction to make that
determination; that is, converting an appeal under section 81 to a section
84(2) application. The Motion must therefore be granted.
It appears that through an understandable
ignorance of the law or ill-advised advice, Mr. Forfar made the second
application rather than making an application pursuant to s. 84(2) for a
reconsideration of the first Review Tribunal decision with respect to his first
application. In fairness to him, it was pointed out by counsel for the Minister
and by this Board that it was still open to him to apply for a reconsideration
of the original Review Tribunal decision… pursuant to section 84(2), on the
basis of new fact evidence.
[16]
Whatever
the merits of that decision (this Court regularly dispenses with
irregularities, as per sections 3, 53 and following of the Federal Courts
Rules), no judicial review was sought thereof.
[17]
However,
Mr. Forfar followed the Board’s advice and applied to the Review Tribunal for
reconsideration on “new facts”. Unfortunately for him, the Tribunal which heard
the case was differently constituted from the one which would have granted a
disability pension.
[18]
The
next step in this procedural quagmire is to consider what mechanism was
available to Mr. Forfar to challenge the decision of the Review Board that
there were no new facts. The Plan contemplates an application for leave to the
Pension Appeals Board, and a judicial review of decisions of that Board in
accordance with the Federal Courts Act. Section 28 of that Act provides
that it is the Federal Court of Appeal, not the Federal Court, which reviews
such decisions.
[19]
However,
it has been held by the Federal Court of Appeal that the Pension Appeals Board
cannot consider an appeal from a decision of the Review Tribunal that there
were no “new facts”, as its jurisdiction is limited to appeals on the merits (Kent v. Canada
(Attorney General), 2004 FCA 420, [2004] F.C.J. No. 2083 (QL)).
Consequently, and as explained by Madame Justice Sharlow in Kent, by default
the challenge must be by way of an application to the Federal Court pursuant to
sections 18 and 18.1 of the Federal Courts Act.
[20]
Finally,
Mr. Forfar retained counsel who properly brought an application for judicial
review of the December 2005 decision of the Review Tribunal to this Court.
ISSUES
[21]
My
analysis identifies two issues:
1. The degree of
deference the Court owes the Review Tribunal on its finding that there were no
“new facts”; and
2. The legal
meaning of “new facts” within the scheme of the Canada Pension
Plan.
WHAT ARE NEW FACTS?
[22]
The
Canada Pension Plan does not define “new facts”. Although other statutes do,
there is no need to have recourse to them. As the meaning of new facts is a
question of law, a question on which the Court usually owes no deference to the
tribunal whose decision is under review, it is best to set out the legal
meaning of “new facts” before considering the degree of deference owed to the
Review Tribunal.
[23]
It
is not necessary to go beyond Madame Justice Sharlow’s decision in Kent, above, and
the decisions referred to therein as well as those referred to by the Review
Tribunal itself.
[24]
“New
facts” are not necessarily new events, as correctly determined by the Review
Tribunal. There are “new” if they could not have been discovered by the
exercise of due diligence and presented at the original hearing. However, irrespective
of the sense in which “new” is used, they must be relevant, or material.
[25]
The
Review Tribunal, basing itself on Mian v. Canada (Attorney
General),
2001 FCT 433, was of the view that a “new fact” was material if it established “a
reasonable possibility as opposed to probability that it could lead the Board
to change its original decision…” The Minister, basing himself on Varette v.
Sainsbury, [1928] S.C.R. 72, suggests that a material new fact means a fact
which is practically conclusive and would probably have changed the result of
the original hearing. However, for the purposes of this case, it is not
necessary to determine how persuasive new facts must be.
STANDARD OF REVIEW
[26]
This
leads to the standard of review, or degree of deference, applicable in this
case. The Federal Court of Appeal has determined that where the correct legal test
for new facts has been applied, the standard of review is that of patent
unreasonableness (Canada (Minister of Human Resources Development) v.
Patricio, 2004 FCA 409 and Taylor v. Canada (Minister of
Human Resources Development), 2005 FCA 293). However, again on this
point, it is not necessary to consider the standard in any detail as I am
satisfied that even on the reasonableness simpliciter standard, which
favours Mr. Forfar, there is no basis for disturbing the Review Tribunal’s
decision. A reasonable decision is one which is supported by a tenable
explanation, even if the Court itself would have decided otherwise (Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247).
[27]
The
Review Tribunal noted that there were six pieces of purported new evidence. It
rejected three of the documents outright for reasons with which I agree.
[28]
It
then considered a “new” doctor’s report issued after the first hearing, but was
of the view that no “new facts” were contained therein. This is to be
contrasted with the Kent case, where the new
fact was a medical opinion which formally diagnosed the applicant with mental
illness for the first time. While the condition may have been present in 1994,
the relevant date in that case, it could not have been diagnosed at that time
for various reasons. The Tribunal’s view in this case that the new report was
merely a rehash of old facts was not unreasonable.
[29]
The
Tribunal then accepted as new a report of a Dr. Cameron issued in 1994 to the
effect that Mr. Forfar would not be able to return to a job which involved
repetitive bending and heavy lifting. It thought Mr. Forfar may have had trouble
obtaining this report because he had moved from Ontario to Nova Scotia. However it was
of the view that it was not material in that there was no further substantive
medical information therein. Indeed, the Review Tribunal may have been overly
generous on the first part of the test as Mr. Forfar had specifically mentioned
Dr. Cameron in his original application. Again the decision was not
unreasonable.
[30]
The
last item accepted as new was a transcript of high school marks issued in 1988.
Again the Tribunal was generous in that it held that such transcript might have
been difficult for Mr. Forfar to discover in preparation for the original
hearing, but again in its view there were no new material facts therein. Mr.
Forfar, who was still unrepresented by counsel at that point, argued that a
review of his transcript indicated that he would not be able to obtain a white
collar job. The Review Tribunal concluded there was no reasonable possibility
that this report card could have led the original Tribunal to change its
original decision. Again this decision was reasonable.
[31]
Mr.
Forfar argues that these decisions in the aggregate fly in the face of Kent,
above, and the decision of Chief Justice Isaac in Villani v. Canada (Attorney
General),
[2002] 1 F.C. 130 (C.A.). There should be a “real world” approach when it comes
to considering the severity of a disability. Mr. Forfar does not live in an
abstract and theoretical world, but in one peopled by real employers who are
required to face up to the realities of commercial enterprise. Can it be
envisaged that any employer would even remotely consider engaging Mr. Forfar?
[32]
There
is nothing unworldly about the decision of the Review Tribunal which is under
consideration here. It was grounded in the circumstances of Mr. Forfar’s
particular disability. The fact is, and always was, that Mr. Forfar had a grade
12 education. Review Tribunal’s view that his high school transcript was not a material
“new fact” which could have led to the possibility that his disability did not
prevent him from carrying out clerical work was not unreasonable.
[33]
Counsel
argues that Mr. Forfar was unsophisticated, while the Minister was represented
by professionals who process these matters as a career – “a most unequal
contest”. He suggested that in the result Mr. Forfar was denied the right to a
fair hearing:
Does not procedural fairness occur when
from day one of any such application the uneducated, untrained, inexperienced,
applicant, who, by definition, is likely suffering significant malady(ies), is
overwhelmed by inability to pay his living expenses, essentially, is so
panicked and stressed by his need to survive, his seeming inability to survive,
must be expected to put his best effort before the Tribunal/Court, etc. In
fact, he is like a young deer caught in a car’s headlights, guided in a
ramshackle, and unstable fashion, if at all, likely by the agents who oppose
him, or a Board which must remain objective.
[34]
Despite
this eloquence, the fact remains that Mr. Forfar, unaided by counsel, worked
his way through all the recourses available to him, except one. He did not seek
a judicial review from the Federal Court of Appeal of the decision of the
Pension Appeals Board which reversed the Review Tribunal’s decision, allowing
his disability pension. I am not sitting in review of that decision, and, in
any event, Parliament has not given me such jurisdiction. There is no basis for
an unfairness complaint. There is not one law for the represented, and another
for those who are not.
[35]
However,
when all is said and done, although I must dismiss Mr. Forfar’s application, I
do not think it appropriate to award costs.
ORDER
THIS COURT
ORDERS that the application for judicial review of the decision of the
Review Tribunal,
Canada Pension
Plan, dated 22 December 2005, is dismissed. Each party shall bear its own
costs.
“Sean Harrington”
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