Date: 20080125
Docket: T-645-06
Citation: 2008 FC 96
Ottawa, Ontario, January 25, 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
ROBIN PENTNEY
Respondent
and
THE OFFICE OF THE COMMISSIONER
OF REVIEW TRIBUNALS
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] In this judicial review application, the Attorney General of
Canada, on behalf of the Minister of Human Resources and Social Development
Canada (the Minister) challenges the decision dated March 13, 2007, pursuant to
subsection 82(1) of the Canada Pension Plan (the “CPP”), rendered
ex parte by the Commissioner of Review Tribunals (the Commissioner) extending
the time within which Mr. Robin Pentney (the respondent) may appeal to the
Review Tribunal the May 28, 2003 reconsideration decision of the
Minister refusing Mr. Pentney’s July 2002 application for a disability
payment under the CPP. Absent statutory or regulatory authority, the
ability of the Commissioner to render an ex parte extension of time
decision was not challenged in the Court.
[2] While there have been several decisions by my colleagues beginning
with that of Justice Snider in Canada (Minister of Human Resources
Development v. Gattellaro), 2005 FC 883, reviewing the discretion of a
member of the Pension Appeals Board (PAB) to extend time for seeking leave
to appeal to it, this is the first judicial review of the decision of the Commissioner
to extend time to appeal as of right to the Review Tribunal. The Office of
the Commissioner was established in 1991 by section 82 of the CPP. Its
role is to support the operation of Review Tribunals established under the CPP
to review the Minister’s decisions under section 81 or subsection 84(2) of the CPP
or section 27 of the Old Age Security Act. The Office has a staff of
approximately 100. The Review Tribunal hears approximately 4000 appeals a year
in over 100 locations. 90% of all appeals to the Review Tribunal relate to a
person’s eligibility for a disability pension under the CPP.
[3] Mr. Pentney was self represented in this judicial review. He did,
however, adopt the Commissioner’s position on the legal points raised.
[4] Subsection 82(1) of the CPP provides a party who is dissatisfied
with the reconsideration decision of the Minister made pursuant to
section 81 of the CPP may appeal that decision to a Review Tribunal in
writing within 90 days, or any longer period that the Commissioner of Review
Tribunals may, either before or after the expiration of those 90 days, allow.
As noted above, the Commissioner made his decision ex parte, that is, at
the request of Mr. Pentney but without input from the Minister.
[5] The Commissioner was authorized to intervene in
this application on a limited basis pursuant to the Order of Prothonotary Tabib
dated December 6, 2006. In her endorsement, she said she was satisfied the
interests of justice will be served “by allowing the Office leave to intervene
in these proceedings for the limited purpose of adducing evidence as to the
factors it has considered in reaching the decision under review and which do
not appear from the certified tribunal record and to make representations as to
whether there is a distinction between the Office’s mandate and legislative
scheme and those of other tribunals which requires or justifies that different
or additional criteria or considerations should apply to the exercise of the
Commissioner’s discretion to accept late appeals.” She was of the view the
interest of justice is served by having the facts and circumstances which do
not appear from the certified record of the tribunal put before the Court in an
objective and neutral fashion, and in having before it a structured and
reasoned argument as to why the criteria to be applied in a tribunal’s
discretion to accept late appeals, as set out in Gattellaro, should not
apply or apply differently in the case of the Office. She added:
“To the extent the Gattellaro
criteria apply to the Commissioner’s decision, there would, in my view, be no
public interest or justification to allow the tribunal to speak to the manner
in which it assessed the materials before it, or as to how those materials
would or not meet the criteria developed in Gattellaro and subsequent
case law.” [Emphasis mine.]
She cautioned:
“Indeed, allowing
the tribunal to speak or comment on these issues would contravene the public
policy imperative of preserving the tribunal’s image of impartiality.”
[6] Counsel for the Minister raised a preliminary issue at the start
of the hearing. She argued the Commissioner’s intervention went beyond the
scope of the limited intervention granted by Prothonotory Tabib.
[7] She took particular objection to the Commissioner’s memorandum of
argument where he took a position and argued against the Minister on the collateral
attack issue and the issue of the Commissioner’s obligation to give reasons. I
agreed with the Minister’s position. The matter was resolved by having Mr.
Pentney adopt the Commissioner’s written submissions into his own memorandum.
[8] This judicial review application raises three separate issues:
1)
Whether the Commissioner erred in law in failing to
consider the relevant applicable factors governing the issue of when an
extension of time to appeal may be granted under the CPP. According to
the Minister, the applicable criteria were set out in a series of recent
decisions made by my colleagues commencing as noted with Justice Snider’s
decision in Gattellaro, above, followed in Minister of Human
Resources Development v. Roy, 2005 FC 1456; in Minister of Human
Resources Development v. de Tommaso, 2005 FC 1531; in Minister of Human
Resources v. Eason, 2005 FC 1698; in Minister of Human Resources v.
Dawdey, 2006 FC 429 and in Minister of Human Resources Development v.
Piro, 2006 FC 791. As noted, all of these decisions judicially reviewed
a decision of a member of the Pension Appeals Board (PAB) to extend the time to
seek leave to appeal to the PAB from a decision of the Review Tribunal.
[Emphasis mine.]
2)
Whether
the Commissioner erred in failing to provide reasons for decision or adequate
reasons for his grant of an extension of time;
3)
Was
the granting of an extension of time to appeal to the Review Tribunal the
Minister’s first decision rendered in May 2003 an impermissible collateral
attack on the Minister’s February 6, 2006 decision refusing to
reconsider Mr. Pentney’s second application for a disability payment under the CPP
filed by him in August 2004 and initially denied by the Minister on January 24,
2005 for which Mr. Pentney had not sought reconsideration and where Mr.
Pentney did not seek judicial review of the February 6, 2006 decision. The
Minister submits the Commissioner’s decision to extend time to appeal to the
Review Committee runs counter to the Federal Court of Appeal’s decision in
Minister of Human Resources Development v. Hogervorst, 2007 FCA 41.
[Emphasis mine.]
Facts
[9] Mr. Pentney’s application for an extension of time was made on January
11, 2006 addressed not to the Commissioner as provided in the CPP
but to Human Resources Development Canada (HRDC). Attached to his letter of
January 11, 2006 was the May 28, 2003 letter from HRDC explaining why he was
not eligible for a disability pension. Mr. Pentney invoked the following
grounds justifying the extension:
1) “Although I did not object to your decision of May
28, 2003 (copy enclosed) because I was receiving benefits from Great West
Life (GWL) I wish to do so now because GWL have refused benefits for the last
year and a half. I did not see why CPP should be paying me when I have enhanced
coverage paid out of my own pocket, so I let the issues slide.”;
2)
“Although
I have tried to work for the last year, my efforts have been unsuccessful due
partly to memory and cognitive problems resulting from a hemorrhagic stroke and
the side effects of some of the 10 medications that I must take daily. There
are other factors involved that I cannot include here because whenever I try to
do so, I leave out some of the critical facts, which leads you to the wrong
conclusion. I could include a more generalized letter from my doctor stating
unequivocally that I am unemployable, but I have been advised by one of your
specialists not to do so until you ask for it …”; [Emphasis mine.]
3)
“That
letter, and any other information that you may need, I can obtain from my
doctor, or you may request it yourselves…. That covers condition 3 in your
letter and the nature of degenerative disk disease, brain damage, arthritis,
kidney problems and insulin rejection certainly indicates that my medical
problems are long term and although they may not cause my ultimate demise, they
may very well have me unable to walk. Soon. This covers condition 4. Please
reconsider my claim. There is ample Supreme Court of Canada precedent to
support it.”
[10] Conditions 3 and 4 cited in Mr. Pentney’s January 11, 2006 letter are
contained in the HRDC’s letter of May 28, 2003 ruling, on
reconsideration, the applicant was not eligible for disability benefits … “because
you should be able to work in some type of job that is more suitable to your
level of ability”. Rules 3 and 4 of that letter read:
3. you must have a disability that stops you from doing any type of
work on a regular basis (full-time, part-time or seasonal), not just the work
you usually do, and
4.
you must have a disability that is long term and of unknown duration, or a
disability that is likely to result in death.
[11] The May 28, 2006 letter advised Mr. Pentney: “…
you do not meet the third rule listed above.” and also stated the following:
“I am aware
that you are receiving benefits under a private disability insurance plan. However,
the Canada Pension Plan legislation defines
disability differently from other disability programs. Others may give you
benefits because you can’t do your regular job or you were injured at work.” [Emphasis
mine.]
[12] The letter also advised to Mr. Pentney he had a right
to appeal the Minister’s decision to the Office of the Commissioner of Review
Tribunals and, if he decided to appeal, he must write to them within 90 days of
the date he received the Minister’s letter. The letter also told him: “If
you decide not to appeal this decision, you may wish to re-apply for a
disability benefit later.” [Emphasis mine] and it also said: “Since your
application has been denied, it is your responsibility to inform your private
insurance company of this decision.”
[13] The Commissioner’s intervention
was supported by two affidavits, the principal one being deposed by Philippe
Rabot, the Commissioner of the Canada Pension Plan / Old Age Security Review
Tribunals.
[14] The Commissioner noted
Mr. Pentney’s file with his Office consisted of a few documents in contrast to
the voluminous file which HRDC has on Mr. Pentney’s application for disability
payments. Those documents were: (1) Mr. Pentney’s letter of January 11, 2006; (2)
An undated letter from Mr. Pentney to his Office purporting to
appeal the Minister’s decision refusing to consider his late appeal said to
have been rendered on February 6, 2006; (3) A copy of a recommendation
made to him by a senior official in his Office, Mr. Patrick Iannitti,
Director of Tribunal Operations, dated March 7, 2006 suggesting the
acceptance of Mr. Pentney’s late appeal because of the extenuating
circumstances mentioned in Mr. Pentney’s undated letter the Office received on
March 6, 2006; (4) The Final Report of a Client Satisfaction Survey
commissioned by the Office; (5) The Report of the Standing Committee on Human
Resources Development and the Status of Persons with Disabilities dated June
2003; and (6) The letter dated March 13, 2006 from the Commissioner to the
Edmonton Regional Office of HRDC concerning Mr. Pentney’s section 82 Appeal
advising HRDC: “Attached is a copy of a letter of appeal received
January 12, 2006. I have accepted this letter as a Notice of Appeal to a Review
Tribunal. Please submit to me within 20 days from the receipt of this letter a
copy of the documents required pursuant to Rule 5 of the Review Tribunal
Rules of Procedure.”
[15] In his affidavit, the
Commissioner explained that: “There was some initial confusion about Mr.
Pentney’s January 11, 2006 letter, as it was addressed to the Department as
opposed to the OCRT.” Mr. Pentney’s letter of January 11, 2006 had been
received by his Office on January 12, 2006. I will say more about this confusion
in these reasons when I deal with the collateral attack issue.
[16] In an undated letter to the Commissioner received on March
2, 2006, Mr. Pentney explained again to the Commissioner the
substance of why he should be granted an extension of time. In that letter he
made the following points:
- “The appeal is late because the first time I
applied, I was receiving benefits from Great West Life and I didn’t think
it was right that the insurance companies should be able to collect the CPP
disability benefits, when they had an obligation to provide me with
benefits that I have already paid for. It seemed like they were shirking
their responsibility at the governments expense.”;
- “I was also given some wrong information at that time
that led me to believe that I could not appeal, due to the CPP
contributions rule. At that time I actually had CPP contributions
and was eligible.”;
- “Unfortunately, GWL has denied me benefits later and I
have been without any income for more than a year and a half. I called
a number from the gov’t website to get help with this appeal, and they
advised me that I could appeal the 2003 decision instead of the 2005
decision and possibly get some back payments for the time I have been
without.”; [Emphasis mine.]
- “Would you please allow me to appeal late for the 2003
decision, due to these extenuating circumstances, to allow me the
additional benefits? At least I have saved the government several years of
expense.” [Emphasis mine.];
- “Although I have tried to work until last summer, my
efforts have been unsuccessful due partly to memory and cognitive problems
and the side effects of some of the 10 medications that I must take
daily.”; and
- Mr. Pentney made reference to his doctor’s name and
phone number, repeated his medical condition and stated that conditions 3
and 4 of the department’s letter had been satisfied.
[17] In his affidavit, the Commissioner deposed as to the
reasons why on March 7, 2006 Mr. Iannitti recommended in writing the
Commissioner exercise his discretion to accept the late appeal, on the basis of
the extenuating circumstances described by Mr. Pentney in the undated letter as
well as his January 11, 2006 letter. These reasons were:
a. “Mr. Pentney’s memory and cognitive difficulties he said he experiences
due to the effects of his stroke and the significant number of medications he
is required to consume daily”;
b. “Mr. Pentney’s involvement with two complex disability benefit
institutions, being his private insurer and the CPP Administration”; and
c. “Mr. Pentney’s argument that he was given incorrect information from the
Department as to his eligibility for the disability benefit based on his CPP
contribution.”
The
Commissioner accepted the recommendation.
[18] At paragraph 29 of his affidavit, the Commissioner deposed:
“In addition to the
extenuating circumstances identified by Mr. Iannitti, I also considered the
decision of Canada (Minister of Human Resources Development) v. Gattellaro,
2005 FC 883 which sets out the four factors that should be considered by
the Pension Appeals Board when determining whether to grant an extension
of time and leave to appeal a decision of a Review Tribunal when that request
is made outside of the statutory 90 day appeal period. The factors are as
follows:
(a) A continued
intention to pursue the application or appeal;
(b) The matter
discloses an arguable case;
(c) There is a
reasonable explanation for the delay; and
(d) There is no
prejudice to the other party in allowing the extension.”
[19] In paragraph 30 of his affidavit, the Commissioner said
he mentions in his affidavit the context of the Gattellaro decision “because
it was important to appreciate the distinction between appeals to the Review
Tribunal and appeals to the Pension Appeals Board, both procedurally and
substantively.” [Emphasis mine.]
[20] First, he says at paragraph 31 of his affidavit: “Not
only is the OCRT managing a higher volume of appeals than is the Pension
Appeals Board, but being the first administrative tribunal encountered by
appellants in this multi-leveled appeal system, the OCRT is dealing with
appellants in very different circumstances than is the Pension Appeals Board”.
[Emphasis mine.]
[21] Then, at paragraph 32, he writes:
“In conjunction with,
and in addition to, the Gattellaro considerations, there are also contextual
factors specific to the Review Tribunal level of appeal that are not
transparent from the record and which may not be readily apparent to the
Applicant and the Respondent in this proceeding.” [Emphasis mine.]
[22] In the next paragraph he identifies what those
considerations are:
(a) an
imbalance of resources, in most instances, between the two parties to an appeal
filed with the OCRT;
(b) the
challenge faced by many appellants in having to put their minds to appeal
procedures while coping with a physical and/or mental disability;
(c) the
confusion and misunderstanding that may result from the multiplicity and
complexity of the
benefit schemes with which disability claimants must contend,
particularly with
respect to eligibility requirements;
(d) the struggle
faced by many appellants in understanding the Minister’s reason(s) for
denying a claim on
reconsideration;
(e) the
literacy, educational, and economic resource barriers that may hinder a timely
appeal;
(f) the number
of individuals who hesitate to appeal because they doubt a Review
Tribunal will change
the Minister’s decision; and
(g) the high
rate of successful appeals.
[23] He deposes the evidentiary basis in support of these
additional considerations is found in the Client’s Satisfaction Survey and the
Standing Committee of the House of Commons Report previously referred to.
[24] The Commissioner states the number of late appeal
requests he receives and considers is not insignificant. Statistics generated
for fiscal 2004-2005 indicate that his Office received approximately 4,240
appeals, of which 316 were received after the 90 day period of appeal had
expired. For fiscal 2005-2006, the Office received approximately 4,533 appeals,
of which 298 were received after the 90 day appeal period had expired.
Statistics indicate, also, for fiscal 2005-2006, nearly 20% of all requests for
late appeals were made more than one year after the 90 day period had expired,
and almost half of the 20% were made more than two years after the 90 day
period had expired.
[25] The Commissioner concludes in his affidavit by
writing at paragraph 35:
“In view of
these contextual factors, I have attempted to balance fairness and efficiency
considerations in the exercise of my statutory discretion, including a
realistic appreciation for the unequal resources of the parties to the appeal
and mindful not to impose inappropriate procedural obligations on either
party.” [Emphasis mine.]
Analysis
(a) Standard
of Review
[26] The issues in this judicial review center on legal
and not on factual points. As noted, they are whether the Commissioner
considered the proper factors in the exercise of his discretion to extended
time for an appeal to the Review Tribunal; whether and to what extent the
Commissioner must provide written reasons for extending time to appeal to the
Review Tribunal and whether the Commissioner’s decision represents a collateral
attack on the Minister’s refusal of Mr. Pentney’s second disability
application.
[27] These are legal points for which the Court does not owe
the Commissioner deference; his expertise is not engaged. This Court is not
dealing with the merits of his decision but whether his has exercised his
discretion by taking into account relevant considerations. The functional and
pragmatic analysis points to the standard of review of correctness. This is
what the Minister argues and the Commissioner does not disagree. I agree. The
Commissioner has to be correct.
(b) Discussion
and Conclusions
Issue No. 1: The proper factors for consideration on an extension of time
[28] In her memorandum of fact and law, counsel for the
Commissioner wrote on this point at paragraph 38:
The Commissioner has
adopted a principled approach to the exercise of his discretion on late appeal
requests that includes an assessment of the information available to him in
the context of the factors identified in Canada (Minister
of Human Resources Development) v. Gattellaro, 2005 FC
883. However, the application of the factors contained in Gattellaro
must be informed by contextual factors relevant to the Review Tribunal level of
appeal. [Emphasis mine.]
[29] She observed Gattellaro, above, concerned an
extension of time to file a notice of leave to appeal to the PAB and states
there are “notable differences between appeals to the Review Tribunal
and appeals to the PAB, both procedurally and substantively making the
following points:
- There is a right to appeal to the Review Tribunal
whereas to appeal to the PAB leave to appeal must be granted by a member
of the PAB, normally a superior court judge;
- There is a marked difference in the Rules of Procedure
governing these two bodies. Unlike the PAB hearings before the Review
Tribunal are informal held in private at a location convenient to the
parties;
- Unlike the PAB, the Review Tribunal does not have
elaborate rules of procedure for notices of motion, consolidation and joinder,
discovery of documents, subpoenas or evidence. Informality and convenience
are the hallmarks of Review Tribunal procedure;
- The PAB rules of procedure specify the information
which must be provided in support of an application for an extension of
time including the Review Tribunal file, decision and reasons for
decision. The Review Tribunal rules of procedure do not speak to such
requirements;
- In 2004-05 and 2005-06 the PAB’s workload was 24.6%
and 15.5% of that of the Review Tribunal;
- The Review Tribunal is the first tribunal dealing with
appellants. The PAB hears appeals from decisions of the Review Tribunal.
Individuals are in different circumstances when before these two bodies.
[30] As noted, in addition to the Gattellaro factors, the Commissioner
when deciding to extend time says he looks at factors specific to the Review
Tribunal context. These additional factors are set out in paragraph 22 of these
reasons.
[31] Reference has already been made to the Federal Court
of Appeal’s recent decision in Hogervorst,
above, in connection with the collateral attack issue. Justice Létourneau who
wrote the reasons for the Federal Court of Appeal in that case touched upon the
proper principles to be applied on a motion to extend time. He wrote the
following at paragraphs 32 and 33 of that case:
[32] There is no dispute as to what
the correct legal test is on a motion for an extension of time to file an
application for leave to appeal: see Marshall v. Canada, 2002 FCA 172; Neis
v. Baksa, 2002 FCA 230. What is required is that
a)
there was and is a
continuing intention on the part of the party presenting the motion to pursue
the appeal;
b) the
subject matter of the appeal discloses an arguable case;
c) there
is a reasonable explanation for the defaulting party’s delay; and
d) there
is no prejudice to the other party in allowing the extension.
[33] This test is not in
contradiction with the statement of this Court made more than twenty (20) years
ago in Grewal v. Canada (Min. of Employment and Immigration), [1985] 2
F.C. 263 that the underlying consideration in an application to extend time is
to ensure that justice is done between the parties. The above stated
four-pronged test is a means of ensuring the fulfillment of the underlying
consideration. It ensues that an extension of time can still be granted even if
one of the criteria is not satisfied: see Grewal v. Canada, supra, at pages 278-279.
[32] It
is interesting to note that Justice Snider in setting out the four part test
also referred to Grewal, above, and Baksa, above, which had been
relied upon by the Minister. Justice Snider was of the view that those cases
were equally applicable to the decision under review before her which concerned
a decision by a member of the PAB to grant the respondent an extension of time
and leave to appeal from a decision of the Review Tribunal.
[33] The
Grewal case concerned an application to extend time to commence a
judicial review proceeding from a decision of an administrative tribunal (the
Immigration Appeal Board). The Baksa case involved an application to extend time to
commence a judicial review proceeding from a labor adjudicator’s decision. The Marshall case concerned a
different issue, namely, an extension of time to file a memorandum of fact and
law.
[34] The
message I take from Justice Létourneau’s decision in Hogervorst is that the test in Grewal is a flexible
one which must be geared to ensure that justice is done between the parties.
[35] This
flexibility includes assigning an appropriate weight to each factor depending
upon the circumstances, the granting of leave even though one of the four
standard criteria are not present and the requirement of a fifth factor that is
the facts of the particular case. Chief Justice Thurlow, in Grewal,
above, cautioned it would be wrong to lay down the rules which fetter a
discretionary power which Parliament has not fettered.
[36] In the case of Harold Leighton et al v. Her
Majesty the Queen in Right of Canada et al, 2007 FC 553, I had an
opportunity to review the recent jurisprudence in the Federal Court of Appeal
on the proper principles surrounding applications for extension of time to
commence judicial review proceedings in this Court. [Emphasis mine.]
[37] I wrote the following at paragraphs 33 and 34 of that
decision:
[33]
To grant or refuse a request for an extension of time to launch a
judicial review application is a matter of discretion which must be exercised
on proper principles. Those principles are well known with the Federal
Court of Appeal’s decision in Grewal v. Canada (Minister
of Employment and Immigration) [1985] 2 F.C. 263, being the
seminal case.
[34] From Grewal, above,
and other decisions of the Federal Court of Appeal, the task at hand is as
follows:
• A number
of considerations or factors must be taken into account in the exercise of the
discretion;
• These
factors include: (1) a continuing intention to bring the application, (2) any
prejudice to the parties opposite, (3) a reasonable explanation for the delay,
(4) whether the application has merit i.e., discloses an arguable case
(hereinafter the four-prong test) and (5) all other relevant factors
particular to the case [emphasis mine], see James Richardson International
Ltd. v. Canada [2006] FCA 180 at paragraphs 33 to 35;
• As
explained in Jakutavicius v. Canada (Attorney General) [2004]
FCA 289, these factors or consideration are not rules that fetter the discretionary
power of the Court. Once the relevant consideration or factors are
selected, sufficient weight must be given to each of those factors or
considerations;
• The
weight to be given to each of the factors or considerations will vary with the
circumstance of each case (Stanfield v. Canada, 2005 FCA
107);
•
The underlying consideration in an application to extend time is to ensure
that justice is done between the parties. The usual consideration in
the standard four-prong test of continuing intention, an arguable case, a
reasonable explanation for the delay and prejudice to another party is a
means of ensuring the fulfilment of the underlying consideration of ensuring
that justice is done between the parties. An extension of time can be
granted even if one of the standard criteria is not satisfied (Minister
of Human Resources Development v. Hogervorst, 2007 FCA 41;
and
• The
factors in the test are not conjunctive (Grewal, above, at pages 11 and
13).
[38] Counsel for the Attorney General argues the
Commissioner had to take into account the principled approach set out in Gattellaro,
above, which involves a consideration of the standard four-part test of (1) a
continuing intention to bring the Court proceeding; (2) any prejudice to the
parties opposite; (3) a reasonable explanation for the delay; and, (4) whether
the application has merit.
[39] Counsel for the Attorney General suggests the
four-part test contains the exclusive factors to be considered and all four
factors must be met i.e. they are conjunctive.
[40] I
find the Attorney General’s argument reflects an inflexibility which the recent
jurisprudence has discarded in the interest of justice. Clearly, the Federal
Court of Appeal’s jurisprudence indicates that the standard four-prong test is
not exclusive. A decision maker on an application for an extension of time must
consider all other factors relevant to a particular case and assign appropriate
weight to each. This suggests a contextualized approach to such an application.
Moreover, as noted, the weight to be accorded to each factor will vary in the
circumstances. My appreciation of the Commissioner’s affidavit is that he has
embraced, as his counsel did before me, the flexible and contextual approach espoused
by the Federal Court Appeal as applied to the particular circumstances of
appeals to the Review Tribunal as contrasted to those, in the different context
of the PAB, which is the final internal review process in disability claim.
[41] I
conclude on this point by finding that the standard four part test stated in Gattellaro,
above, albeit concerned with an extension of time to obtain leave to appeal to
the PAB, are equally relevant but not exclusive considerations which must be
taken into account when the Commissioner decides on an application to extend
time to appeal to the Review Tribunal a reconsideration decision by the
Minister denying disability benefits under the CPP or the Old Age
Security Act.
[42] As
I see it, the essence of the jurisprudence is that the standard four part test
is relevant to all instances in which an extension of time to commence a
proceeding is at stake whether it be the commencement of a proceeding in this
Court or before an administrative tribunal. As I see it, the distinguishing
factors advanced by counsel for the Commissioner as between the Review Tribunal
and the PAB are not sufficient to lead me to conclude that the standard four
part test is not appropriate to the Commissioner’s extension of time decisions
on late appeals.
[43] The
differentiating factors mentioned by the Commissioner and his counsel can be
accommodated by the Commissioner in the weight to be assigned to each element
of the standard four part test with an arguable case and prejudice to the other
side being the major elements as well as taking into account factors relevant
to the particular case.
[44] In
this context, the Commissioner enumerated additional considerations or
additional factors which are specific to the Review Tribunal process. I agree
with counsel for the Attorney General these factors are too general and not
sufficiently individualized to qualify as stand alone factors which could be
invoked, on their own by the Commissioner to justify the grant of leave.
[45] This
is not to say that, in a particular case, depending upon the evidence before
the Commissioner, one or more of them may not be of some relevance. Whether
they are will depend upon the facts of a particular case. This is where the residual
factor mentioned in Grewal, above, comes into play. The point is that if
the Commissioner is to take into account any additional factors, he must say
so.
[46] Finally,
counsel for the Attorney General argued that while the Commissioner stated in
his affidavit he applied the Gattellaro test, there is no evidence in
the record that he did. This argument will be considered in the context of the
next issue.
[47] On
the basis of the above, this Court’s intervention is not warranted in
connection with issue no. 1.
Issue
No. 2: The duty to provide reasons which are adequate
[48] Counsel for the Minister argues the Commissioner
breached the duty of fairness by providing no reasons for his decision to
extend time. While it is true when he wrote to the Minister on March 13, 2006
to inform him of his decision to extend time, the Commissioner did not provide
the Minister with the reasons why he was extending time, the record shows that
on March 7, 2007, Mr. Iannitti had recommended to
him in writing he should extend time for three reasons which have previously
been described in these reasons. The record shows the Commissioner accepted
that recommendation on March 10, 2006.
[49] Counsel for the Commissioner argued the Commissioner,
being an administrative tribunal making a preliminary decision which did not
decide the merits of Mr. Pentney’s case should not be burdened with the
requirement to provide reasons for decision relying on Justice Ross’ decision in
West Fraser Timber Co. v. Thomson, 2001 BCSC 1139 sustained in the
British Columbia Court of Appeal reported at 2002 BCCA 455.
[50] Counsel for the Commissioner also refers to the
Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at paragraphs 35
through 44 where Justice L’Heureux-Dubé (on behalf of the Supreme Court of
Canada), discussed the requirements emphasizing that at paragraph 43 where she
wrote:
43
In my opinion, it
is now appropriate to recognize that, in certain circumstances, the duty of
procedural fairness will require the provision of a written explanation for a
decision. The strong
arguments demonstrating the advantages of written reasons suggest that, in
cases such as this where the decision has important significance for the
individual, when there is a statutory right of appeal, or in other
circumstances, some form of reasons should be required. This requirement has
been developing in the common law elsewhere. The circumstances of the case
at bar, in my opinion, constitute one of the situations where reasons are necessary.
The profound importance of an H & C decision to those affected, as with
those at issue in Orlowski, Cunningham, and Doody, militates in favour of a
requirement that reasons be provided. It would be unfair for a person subject
to a decision such as this one which is so critical to their future not to be
told why the result was reached. [Emphasis mine.]
[51] What Justice L’Heureux-Dubé wrote in the foregoing
paragraph militates in favour of the argument that the Minister should know why
the Commissioner extended time and, on the other hand, why an applicant for an
extension of time was refused that extension. In either case, they should be
told why the result was reached.
[52] I conclude the Commissioner had an obligation to
provide reasons for extending the time to appeal to the Review Tribunal a
decision rendered in May 2003. The length of time, in itself, calls for an
explanation why an extension of time was granted in the circumstances of this
case. Hogervorst is authority
for this proposition (see paragraphs 30 and 31). I cite other relevant
authority in favour of reasons in the context of the CPP.
[53] Justice Dawson in Roy,
above, again dealing with a situation where an extension of time had been
granted to the PAB at paragraph 13 of her decision held that while there is no
statutory requirement to provide reasons “where a full discretionary power has
been conferred upon a judicial officer and where there is nothing on the face
of the record that suggests the judicial exercise of the discretion, it is
incumbent upon the judicial officer to support the exercise of discretion with
reasons.
[54] Moreover, as stated by Justice Snider in Gattellaro,
above, where an extension of time is made ex parte without submission
from the Minister “it seems more critical that the record demonstrates that
all of these factors have been addressed by the decision maker”.
[55] In the circumstances of this case, I am satisfied the
Commissioner gave reasons for decision. Whether those reasons are adequate is a
separate question.
[56] The record before me, on this point, is similar to
the one endorsed in Baker, above. In this case, the reasons are found in
Mr. Iannitti’s written reasons for recommending to the
Commissioner he extend time. In Baker, above, Justice L’Heureux- Dubé
held the reasons requirement was fulfilled in the notes of the immigration
officer. She stated at paragraph 44:
“Accepting documents, such as these notes as sufficient reasons is part of the
flexibility that is necessary … when courts evaluate the requirements of the
duty of fairness with recognition of the day-to-day realities of administrative
agencies and the many ways in which the values underlying the principles of
procedural fairness can be assured. It upholds the principle that individuals
are entitled to fair procedures and open decision-making, but recognizes that
in the administrative context, this transparency may take place in various
ways.”
[57] In my view
the operational realities of the Office of the Commissioner mandate the approach
suggested in Baker holding that the recommendations of these
officials constitute the Commissioner’s reasons, if accepted. This principle
has been recognized in the case of other high volume decision makers such as
the Canadian Human Rights Commission where investigations are numerous, carried
out by staff investigators who make recommendations to the Commission whether
to dismiss or accept a complaint.
[58] The next question is whether the reasons, as
reflected in the record, show that they were adequate.
[59] On this point, Justice Sexton, in Via Rail Canada
Ltd. v. National Transportation Agency and Jean Lemonde, (Respondents),
[2001] 2 F.C. 25 (C.A.) at paragraphs 21 and 22 wrote:
21 The
duty to give reasons is only fulfilled if the reasons provided are adequate.
What constitutes adequate reasons is a matter to be determined in light of the
particular circumstances of each case. However, as a general rule, adequate
reasons are those that serve the functions for which the duty to provide them was
imposed. In the words of my learned colleague Evans J.A., "[a]ny attempt
to formulate a standard of adequacy that must be met before a tribunal can be
said to have discharged its duty to give reasons must [page36] ultimately
reflect the purposes served by a duty to give reasons."7
22 The obligation to
provide adequate reasons is not satisfied by merely reciting the submissions
and evidence of the parties and stating a conclusion.8 Rather,
the decision maker must set out its findings of fact and the principal evidence
upon which those findings were based.9 The
reasons must address the major points in issue. The reasoning process followed
by the decision maker must be set out10 and must
reflect consideration of the main relevant factors.
[60] In the case at hand, the purpose for requiring
reasons which are adequate is in order to assess whether the Commissioner had regard
to all relevant considerations when deciding to extend the time. This issue, in
this case, is to be examined by reference to the recommendations made by Mr.
Iannitti supplemented by reference to any relevant documentation in the record
which would shed light on the consideration of those relevant factors.
[61] On the face of the record, Mr. Iannitti’s written
recommendations do not evidence a consideration of all of the relevant factors
which must be considered and weighed for the grant of an extension of time by
the Commissioner. Moreover, a review of the documentary record, such as Mr.
Pentney’s request for an extension of time, show, from an evidentiary point of
view, that documentation does not support a consideration of all relevant
factors.
[62] This is so with respect to Mr. Pentney’s continuing
intention to appeal the Minister’s decision where a contrary intention is
expressed – he had opted for payments from GWL and, if they had continued,
would not have applied to the CPP. A reasonable explanation for the
delay suffers from the same infirmities.
[63] In terms of arguable case and prejudice to the
Minister we are left to speculate on what that arguable case or the prejudice
may be, albeit, Mr. Pentney states in his request documents that he tried to
work and has medical evidence which he did not provide to show that his
condition, as at December 31, 2004
(the minimum contributory period), satisfies the test of disability for the
purposes of obtaining disability payments under the CPP.
[64] Some of the reasons provided by Mr. Iannitti might
qualify as appropriate additional contextual factors in Mr. Pentney’s
particular case but they are not clearly identified as such in Mr. Iannitti’s
recommendations nor in the documentary record.
[65] I conclude by finding that the record before me fails
to disclose adequate reasons for the grant of an extension of time and this
failure warrants this Court’s intervention. Based on this record, this Court
cannot exercise its supervisory jurisdiction to determine whether the Commissioner
properly exercised his discretion to extend time on the basis of Mr. Iannitti’s
recommendation on the evidentiary record.
Issue no. 3 – Does the extension of time
in this case constitute an impermissible collateral attack on a previous final
decision of the Minister?
[66] This issue requires a consideration of the Federal
Court of Appeal’s decision in Hogervorst, above.
[67] The relevant facts of that case are:
1)
On June 6, 2005, a member of the PAB extended time and
leave to appeal to the PAB a decision of the Review Tribunal rendered seven
years earlier on November 4, 1997 (hereafter referred to as RT-1).
2)
By decision RT-1, the
Review Tribunal dismissed the respondent’s appeal from the Minister’s
reconsideration decision she was not eligible for disability payments under the
CPP. The Review Tribunal informed her she could seek leave to appeal
RT-1 within 90 days or such longer period as the Chairman or Vice-Chairman of
the PAB might allow. The respondent did not appeal RT-1 which became final
and binding under subsection 84(1) of the CPP which provides that a
Review Tribunal or the PAB has the authority to determine any questions of fact
and law 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” subject to subsection 84(2) which
provides that: “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 mine.]
3)
Because RT-1 was
final and binding, Joy Hogervorst could be entitled to disability benefits only
if she established she became disabled between November 5 and December 31,
1997, the day she last satisfied the contributory requirements.
4)
She made a second
application for disability benefits in January 2000. Her application was denied
by the Minister initially and upon reconsideration. She appealed to the Review
Tribunal which dismissed her appeal on October 1, 2001 (hereafter RT-2) on the
grounds there were no new facts with respect to RT-1 and it was not satisfied that
she had a severe and prolonged disability prior to December 31, 1997. RT-2
was not appealed to the PAB and became final and binding. [Emphasis mine.]
5)
On November 16, 2001,
she made an application pursuant to subsection 84(2) of the CCP to
reopen RT-2. Subsection 84(2) authorizes a Review Tribunal to rescind or amend its
prior decision on the basis of new facts. On March 6, 2002, the Review Tribunal
found that the new evidence submitted by Joy Hogervorst did not meet the test
for new facts and consequently that application was dismissed (hereafter as
RT-3).
6)
Joy Hogervorst was
granted leave to appeal RT-3 to the PAB who dismissed her appeal on
jurisdictional grounds that the Board had no authority to hear the appeal since
there were no new facts. Her recourse was to seek judicial review which she
did not do. Rather, she applied in March 2007 to a member of the PAB for an
extension of time and leave to appeal RT-1. As noted, a member of the PAB
granted an extension of time and leave to appeal without providing written
reasons although more than seven years had elapsed since RT-1 had been
rendered. [Emphasis mine.]
7)
The Minister
unsuccessfully challenged the extension of time and leave decision by way of
judicial review to the Federal Court. The Minister’s application was dismissed
on March 30, 2006. The Minister appealed to the Federal Court of Appeal who
allowed the appeal.
[68] The Federal Court of Appeal allowed the appeal on
the basis the member’s decision to grant leave to appeal RT-1 amounted to a
collateral attack against RT-2. [Emphasis mine.] Both of these decisions
had concluded Joy Hogervorst was not disabled in the case of RT-1 for the
period ended November 4, 1997 and for RT-2 during the one month period between
November 4, 1997 and December 31, 1997. Justice Létourneau found that RT-2 was
conclusive on the issue of her disability for the period up to December 31,
1997 and “thus, an appeal against RT-1 collaterally attacks RT-2 that is also
final and binding for all purposes of the CPP pursuant to subsection
84(1) of the CPP.”
[69] Justice Létourneau stated: “The situation here is
analogous to seeking a review of an initial decision without challenging or
addressing a subsequent decision reconsidering the same issue and confirming
the initial decision. These are two distinct decisions and the second decision
must be attacked directly, not collaterally.” He was of the view the
applications Judge at the Federal Court should not have permitted the
collateral attack to go on citing Berhad et al, 2005 FCA 267 at
paragraphs 61 and 62: “that collateral attacks against decisions that are final
ought to be precluded in the public interest since such attacks encourage
conduct contrary to the statute’s objectives and tend to undermine its
effectiveness.”
[70] Moreover, Justice Létourneau held a finding of
disability, pursuant to the appeal against RT-1, would be inconsistent with,
and in opposition to RT-2 and RT-3 and cited the Federal Court of Appeal’s
decision in Vidéotron Télécom Ltée., 2005 FCA 90 at paragraph 13 for the
proposition: “The
state and stability of the law would be ill served if two potentially
contradictory decisions were allowed to exist, involving the same parties, on
the same issue.”
[Emphasis mine.] He again stated the applications judge should have intervened
and quashed the member’s decision in order to prevent this kind of consequence.
[71] Citing
once again the Berhad case at paragraph 60, he stated: “this Court reiterated
the principle that a time/limit for the commencement of challenges to
administrative decisions is not whimsical and that it exists in the public
interest, in order to bring finality to administrative decisions so as to
ensure their effective implementation without delay and to provide security to
those who comply with the decision or enforce compliance with it, often at
considerable expense.” He concluded the challenge to RT-1, if allowed to
proceed, “can lead to an intolerable and prejudicial situation, both from the
perspective of the public interest and fairness to the appellant” and found the
applications judge erred in not recognizing and giving the effect to the
principle of finality in the circumstances.
[72] Applying the rationale of Hogervorst to the
case before me, counsel for the Attorney General submits that, by granting
leave to challenge the Minister’s May 28, 2003 decision, the Commissioner has
allowed Mr. Pentney to collaterally attack the January 24, 2005 decision of the
Minister denying his second application for disability benefits. Counsel for
the Attorney General argues Mr. Pentney did not seek a reconsideration of the
Minister’s decision within ninety days and states his late request to appeal
the Minister’s decision was refused by the Minister on February 6, 2006. Mr.
Pentney did not seek judicial review of the Minister’s decision refusing his
request to appeal this second Minister’s decision. She argues in the absence of
such an application for judicial review of the February 6, 2006 refusal to
consider his late request for reconsideration, the Minister’s decision became
final and binding citing the Federal Court of Appeal’s decision in Pincombe
v. Canada (Attorney General), [1995] F.C.J. No. 1320 (C.A.).
[73] Mr. Pentney relies upon the Commissioner’s written
argument on this point. The Commissioner acknowledged Mr. Pentney’s second
application for a disability payment under the CPP was denied by the
Minister by letter dated January 24, 2005 and that this denial was not
reconsidered at Mr. Pentney’s request pursuant to subsection 81(2) of the CPP.
[74] Furthermore, the Commissioner acknowledged there was
some initial confusion about the intended recipient of Mr. Pentney’s January
11, 2006 letter due to the fact he had inadvertently addressed his letter to
HRDC as opposed to OCRT. The Commissioner states at paragraph 19 of his written
memorandum: “The confusion surrounding Mr. Pentney’s January 11, 2006 letter
was eventually resolved, and his letter was recognized as a request by him for
a late appeal of the May 28, 2003 reconsideration decision.”
[75] At paragraph 48 of his written memorandum, the
Commissioner accepts Mr. Pentney did not make an application for judicial
review of HRDC’s decision to refuse his late request for a reconsideration of
his second application and that HRDC’s decision became final and conclusive.
[76] At paragraph 46 of his written memorandum, the
Commissioner wrote:
“The intervener
acknowledges that Mr. Pentney’s second application for CPP disability
benefits may be affected by the Department’s refusal to accept his late request
for reconsideration. However, the intervener submits that even if this
decision is found to be final and conclusive, it does not preclude Mr. Pentney
from being entitled to appeal the Minister’s denial of the CPP
disability benefit on another prior, or subsequent application. [Emphasis
mine.]
[77] Counsel for the Commissioner argues the law is well
settled that a denial of a disability application by the Department, providing
there is no appeal to a Review Tribunal, will not prevent a person from being
entitled to the disability benefit on a subsequent application. The
Commissioner states, in this regard, it has been held that the principle of res
judicata does not apply to decisions of the Minister or decisions of the
Minister’s officials as these decisions are administrative rather than
judicial, relying on two PAB decisions. The Commissioner further argues by
allowing an unlimited number of applications for CPP disability pension,
the Commissioner’s decision in respect to Mr. Pentney’s late appeal on his
first application is entirely consistent with the jurisprudence and the
structure and the purpose of the legislation.
[78] The Commissioner argues Hogervorst, above, is
distinguishable on his facts. There, the applicant for disability payments had
the benefit of two Review Tribunal hearings which were full de novo
hearings which resulted in final decisions on the merits. The Commissioner
acknowledges that, barring an appeal to the Pension Appeals Board, a decision
of the Review Tribunal is final and binding but submits that in this case there
have been no decisions of the Review Tribunal and that, in fact, Mr. Pentney
has not yet had the opportunity to have his case heard once by a Review
Tribunal, let alone three times.
[79] On the facts of this case, it is clear Mr. Pentney
did not appeal to the Review Tribunal within the 90 day time limit prescribed
under subsection 82(1) of the CPP the Minister’s reconsideration
decision of May 23, 2003 denying him a disability payment requested in his
first application for a disability payment dated April 15, 2003.
[80] He was specifically advised in the May 23, 2003
decision he had an appeal as of right to the Office of the Commissioner of
Review Tribunals provided he do so within 90 days. He was also told in that letter
decision that if he decided not to appeal he “may wish to re-apply for a
disability benefit later”. He did not appeal nor did he re-apply until August
12, 2004 when he made his second disability application to HRDC.
[81] The reason he did not do so seems clear. He was
receiving and continued for some time to receive disability payments from his
private insurer GWL. From the record, it would appear he made his second
application for disability payments after GWL terminated its disability payments
to him.
[82] The record is also clear Mr. Pentney did not seek
reconsideration from the Minister when he was advised on January 24, 2005 the
Minister had initially denied his second application. Pursuant to section 81 of
the CPP, he had 90 days to do so. He was advised that if decided not to
request a reconsideration he “may wish to re-apply for a disability benefit
later”.
[83] Rather than re-applying for a disability payment, he
waited until January 11, 2006 to then ask the Commissioner “I would like to
appeal (late) your denial of my request for CPP disability benefits of April
15, 2003.
[84] Why he did so appears from his undated letter to the
Commissioner received by the Commissioner’s office on March 2, 2006 where he
writes that he has been without any income for a year and a half; he called the
government website “to get help with this appeal and they advised me that I
could appeal the 2003 decision instead of the 2005 decision and possibly get
some back payments for the time I have been without.” Referring to the February
6, 2006 decision made by an HRDC official, Mr. Pentney continued informing the
Commissioner: “As you can see from my file, when I tried to do this, they just
denied this appeal as it was more than 90 days old.”
[85] In parenthesis, HRDC’s February 6, 2006 letter to Mr.
Pentney was a denial to reconsider the Minister’s January 24, 2005
decision which, as will be recalled was the Minister’s initial denial of this
second application for disability payment dated August 12, 2006.
[86] In his undated letter to the Commissioner, Mr.
Pentney pleaded: “Would you please allow me to appeal late for the 2003
decision, due to these extenuating circumstances, to allow me the additional
benefits? At least I have saved the government several years of expense.”
[87] I have reviewed Justice Létourneau’s decision in Hogervorst,
above, in which he made extensive reference to the Federal Court of Appeal’s
decision in Berhad v. Canada, 2005 FCA 267 where he emphasized finality
principle writing a paragraph 60 as follows:
[60] In my
view, the most important reason why a shipowner who is aggrieved by the result
of a ship safety inspection ought to exhaust the statutory remedies before
asserting a tort claim is the public interest in the finality of inspection
decisions. The importance of that public interest is reflected in the
relatively short time limits for the commencement of challenges to
administrative decisions - within 30 days from the date on which the decision
is communicated, or such further time as the Court may allow on a motion for an
extension of time. That time limit is not whimsical. It exists in the public
interest, in order to bring finality to administrative decisions so as to
ensure their effective implementation without delay and to provide security to
those who comply with the decision or enforce compliance with it, often at
considerable expense. In this case, the decision of the Chairman was not
challenged until, a year and a half after it was made, the respondents filed
their claim for damages.
[88] On the facts of this case, I would hold that both the
principle against collateral attacks and the principle of finality of an
administrative decision have been breached affecting the integrity of the
scheme mandated by the CPP.
[89] In these circumstances, Mr. Pentney should not be
allowed to impair the Minister’s denial of his second application for
disability payments via an extension of time through a grant of leave to extend
time to challenge the denial of his first application of disability payments.
[90] Mr. Pentney has a remedy. He can re-apply for
disability benefits. He may also invoke subsection 66(4) of the CPP for
the reasons mentioned in his affidavit.
[91] In the circumstances, there is no point to sending the
matter back to the Commissioner for a new determination on whether an extension
of time should be granted to challenge the May 23, 2003 decision denying him
disability benefits. See Hogervorst, above at paragraph 48. The Attorney
General did not seek costs against Mr. Pentney and none are awarded.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that this judicial
review application is allowed. The Commissioner’s decision to extend time to
appeal to the Review Tribunal the Minister’s May 28, 2003 decision is quashed.
No costs are awarded.
“François
Lemieux”
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