Date: 20080409
Docket: T-2293-06
Citation: 2008 FC 462
Halifax, Nova Scotia, April 9,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JOHN
STEVEN DECKER
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
On
June 16, 2006, the Canada Pension Plan Review Tribunal (Review Tribunal)
dismissed Mr. Decker’s request to re-open its earlier decision which had denied
him disability benefits under the Canada Pension Plan, R.S.C. 1985, c.
C-8. Mr. Decker had asked the Review Tribunal to re-open its earlier decision
because he submitted that new facts relevant to his medical condition existed.
Mr. Decker brings this application for judicial review of the negative decision
of the Review Tribunal.
[2]
After
Mr. Decker commenced this application for judicial review, the Federal Court of
Appeal issued its reasons in Mazzotta v. Canada (Attorney
General),
(2007), 286 D.L.R. (4th) 163 (F.C.A.). In Mazzotta, the
Court of Appeal reversed an existing line of jurisprudence that had sent
litigants to the Federal Court to judicially review decisions of the Review
Tribunal about whether to rescind or vary earlier decisions on the basis of new
facts. Instead, the Court of Appeal directed that such decisions be appealed
to the Pension Appeals Board. I am bound by the decision of the Court of
Appeal and so, as I explained to the parties, I must dismiss this application
for judicial review.
[3]
Notwithstanding
that the application must be dismissed, I hope that the following observations
will be helpful to Mr. Decker.
PROCEEDURAL MATTER
[4]
Mr.
Decker is a self-represented litigant. He has been assisted in his dealings under
the Canada Pension Plan by his brother. On the basis of the decision of
the Federal Court of Appeal in Scheuneman v. Canada (Attorney
General), [2003] F.C.J. No. 1736 (C.A.) (QL), and the prior authority cited
there by the Court of Appeal, I found the present circumstances to be
sufficiently exceptional so that the interests of justice required allowing Mr.
Decker’s brother to address the Court on his behalf.
THE FACTS
[5]
On
April 11, 1999, Mr. Decker fractured his neck in a trampoline accident. At the
time of the accident, Mr. Decker was 33-years-old and had worked seasonally for
approximately 18 years as a carpenter in the construction industry. While
working, Mr. Decker contributed to the Canada Pension Plan.
[6]
On
May 27, 1999, Mr. Decker applied for disability benefits under the Canada
Pension Plan.
[7]
On
July 8, 1999, the then Minister of Human Resources Development Canada (now the
Minister of Human Resources and Social Development) denied Mr. Decker’s
application. Based on the information in Mr. Decker’s file, the Minister found
that his condition was not “prolonged” and therefore he was ineligible for
disability benefits under the Canada Pension Plan.
[8]
On
October 1, 1999, Mr. Decker submitted a request for reconsideration.
[9]
On
January 10, 2000, the Minister denied Mr. Decker’s request for reconsideration,
noting that he did not meet all of the requirements of the Canada Pension
Plan.
[10]
On
February 21, 2000, Mr. Decker appealed the decision of the Minister to the
Review Tribunal. The appeal was heard on October 4, 2000, but Mr. Decker
failed to attend. On November 7, 2000, after reviewing the available medical
evidence, the Review Tribunal rendered a decision based on the written record
before it. The Review Tribunal concluded that Mr. Decker’s condition did not
meet the definition of disability as set forth in the Canada Pension Plan.
Accordingly, Mr. Decker’s appeal was dismissed. Mr. Decker did not appeal this
decision to the Pension Appeals Board.
[11]
On
March 11, 2002, Mr. Decker made a second application for disability benefits
under the Canada Pension Plan. His application was again denied on
October 22, 2002.
[12]
On
November 13, 2002, Mr. Decker sought reconsideration of the decision. His
request was dismissed. Mr. Decker again appealed to the Review Tribunal but
later sought, and was granted, an adjournment. That appeal remains
outstanding.
[13]
On
February 3, 2006, Mr. Decker applied to the Review Tribunal seeking to have its
first, November 7, 2000, decision re-opened pursuant to subsection 84(2) of
the Canada Pension Plan. Mr. Decker provided three sets of documents,
which were said to constitute “new facts”. They were:
i.
medical
records from Aberdeen
Hospital, dated from
March 4, 2003, to July 27, 2005, including CT scans, laboratory reports, and
emergency room reports;
ii.
a
report from neurosurgeon Dr. Clarke, dated September 1, 2005; and
iii.
two
reports from neurologist Dr. Kumar, dated March 12, 2002, and September 27,
2002.
[14]
On
May 2, 2006, the Review Tribunal rendered its decision on Mr. Decker’s
application pursuant to subsection 84(2) of the Canada Pension Plan. On
June 16, 2006, the Review Tribunal denied Mr. Decker’s application on the basis
that he had presented no “new facts.” In this regard, the test for the
existence of “new facts” is a two step test. The Review Tribunal apparently
found that the additional information was not discoverable with the exercise of
reasonable diligence. This is the first step of the test. However, the Review
Tribunal found that the information was not material. This is the second step
of the test. Because that latter step was not met, the Review Tribunal denied
Mr. Decker’s application. That decision is the subject of this application for
judicial review.
THE LEGISLATION
[15]
Three
subsections of the Canada Pension Plan are relevant to this application.
[16]
Subsection
84(2) of the Canada Pension Plan allows the Review Tribunal, on new
facts, to rescind or amend a decision that has already been made. As relevant
to this matter, subsection 84(2) states:
84(2) … a Review Tribunal … may, … on
new facts, rescind or amend a decision under this Act given by … the Review
Tribunal ….
[17]
Subsection
83(1) of the Canada Pension Plan deals with appeals to the Pension
Appeals Board. As relevant to this matter, subsection 83(1) provides:
83. (1) A party … if dissatisfied with a
decision of a Review Tribunal made … under subsection 84(2), may, within ninety
days after the day on which that decision was communicated to the party … or
within such longer period as the Chairman or Vice-Chairman of the Pension
Appeals Board may … allow, apply in writing to the Chairman or Vice-Chairman
for leave to appeal that decision to the Pension Appeals Board.
[18]
Subsection
83(11) of the Canada Pension Plan sets out the powers of the Pension
Appeals Board on appeals from decisions of the Review Tribunal. Again, as
relevant to this preceding, subsection 83(11) provides:
83 (11) The Pension Appeals Board may
confirm or vary a decision of a Review Tribunal under … subsection 84(2) and
may take any action in relation thereto that might have been taken by the
Review Tribunal under … subsection 84(2) ….
THE MAZZOTTA DECISION
[19]
The
Court of Appeal in Mazzotta held that the Pension Appeals Board,
pursuant to subsection 83(1) of the Canada Pension Plan, possesses the
power to review a decision rendered by a Review Tribunal pursuant to subsection
84(2). See: Mazzotta at paragraphs 29-32, 34, 43, and 54. In other
words, under the current, and the then existing, legislation, the decision of
the Review Tribunal in this case ought to have been appealed to the Pension
Appeals Board.
[20]
However,
as noted above, prior to the decision in Mazzotta, the Court of Appeal
itself had taken the view that the proper forum for review was this Court. See,
for example, Oliveira v. Canada (Minister of
Human resources Development) (2004) 320 N.R. 168 (F.C.A.). The
decision in Mazzotta was not released until after Mr. Decker had
commenced this application so he cannot be expected to have known that his
recourse lay with the Pension Appeals Board and not the Court. This is
particularly so where the Attorney General did not raise the decision in Mazzotta
in this proceeding, notwithstanding that the decision was rendered before the
Attorney General filed its responding memorandum of fact and law. It was the
Court that asked the parties, by a direction issued the week prior to the
hearing of this application, to address the Mazzotta decision.
[21]
In
response, counsel for the Attorney General submits that the Court has held in
numerous cases that there is a presumption in the law against retroactivity.
The Attorney General submits that Mr. Decker sought the appropriate remedy at
the time and that the Mazzotta decision cannot serve as a basis to
return the matter to the Pension Appeals Board for leave to appeal. I
respectfully disagree.
[22]
In
support of her submission, counsel for the Attorney General relies upon the
decision of Jhajj v. Canada (Minister of Employment
and Immigration), [1995] 2 F.C. 369 (T.D.).
[23]
In
Jhajj, the applicant was found not to be a Convention refugee. The
applicant sought leave to commence an application for judicial review of that
decision. The Court denied the leave application. The applicant then sought
to have the Court reconsider its decision on the basis that the Federal Court
of Appeal had released a relevant decision one week after the application for
leave was dismissed. While the Court acknowledged that, had the decision of
the Court of Appeal been decided (and brought to its attention) prior to the
dismissal of the leave application, it may have reached a different conclusion,
the Court nonetheless decided not to reconsider its earlier decision refusing
leave. The Court held that to permit reconsideration of a final decision on
the basis of subsequently decided jurisprudence would introduce unacceptable
uncertainty into the law and offend the general principle of res judicata.
[24]
With
respect, the decision in Jhajj has no application in this case. Unlike
in Jhajj, the Court has not made a final decision on this application
for judicial review and so res judicata is not a relevant
consideration. The decision in Mazzotta cannot be described as
“subsequent jurisprudence” that would have the retroactive effect of disturbing
a previous decision of the Court.
[25]
The
Attorney General is effectively advocating that the Court on judicial review
should ignore jurisprudence arising after the date that the impugned
administrative decision was made. To cite one obvious example, if the
interpretation of the Attorney General is accepted, the Court would not be
permitted to apply the decision of the Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
2008 SCC 8, in this case because, in doing so, the Court would be giving that
decision retrospective effect. This is not a proper interpretation of the
decision in Jhajj.
[26]
While
the Attorney General also relies on paragraph 22 of the decision in Gallant
v. Roman Catholic Episcopal Corp., (2001), 200 D.L.R. (4th)
643 (Nfld. C.A.), that excerpt does not appear to support his position.
Paragraph 22 reads:
There is no reason to vary from the long
established principle respecting restatements of the common law. When a court
overrules an earlier statement of the law, unless its application is limited by
that court, the law as restated applies to all cases subsequently coming
before the courts even though the cause of action might have arisen before the
restatement. [emphasis added]
[27]
By
analogy to judicial review, the law as restated applies to all cases
subsequently coming before the courts even though the decision subject to
review may have been made before the restatement. The Attorney General appears
to suggest that the phrase “all cases subsequently coming before the courts”
refers to cases initiated after the restatement. In my view, that phrase
actually refers to all cases heard and decided after the restatement.
Otherwise, the incorrect statement of the law would continue to apply to all
cases initiated but not yet heard and decided by the court. This cannot be the
case.
[28]
To
the extent that the Attorney General suggests that the “proper remedy” for Mr.
Decker at the time of the Review Tribunal’s decision was to file an application
for judicial review in this Court, it is worth noting that subsection 83(1) of
the Canada Pension Plan, which also existed at the time of the Review Tribunal’s
decision, expressly provided that the “proper remedy” from a decision under
subsection 84(2) of the Canada Pension Plan was an appeal to the Pension
Appeals Board. The Court of Appeal in Mazzotta corrected the
misapprehension that had existed about this provision.
[29]
The
Court of Appeal’s decision in Mazzotta impacts upon the decision of the
Review Tribunal in this case in a second manner. In Mazzotta, the Court
of Appeal affirmed that the proper legal test for establishing whether new
facts are material, so as to fall within subsection 84(2) of the Canada
Pension Plan, is whether “the proposed new facts may reasonably be expected
to affect the outcome” of the initial decision. See: Mazzotta at
paragraph 37. At paragraphs 9 and 44 of its reasons, the Court of Appeal found
that, in the case before it, the Pension Appeals Board had correctly found that
the Review Tribunal applied the wrong test for materiality. The incorrect test
applied by the Review Tribunal in that case was whether “there was a reasonable
possibility as opposed to probability that [the new evidence] could lead the
Tribunal to change its original decision.”
[30]
In
the present case, the Review Tribunal, in assessing the documents provided by
Mr. Decker, applied the following test for materiality:
However, the Review Tribunal finds that
the additional material filed … [does] not meet the materiality test in this
matter. There are no new facts proposed in any of these reports that may reasonably
be expected to affect the outcome of the case, and do not create a
reasonable possibility that it could lead the Review Tribunal to change its
original Decision. These reports are not material, even taking a broad and
generous view of materiality. [emphasis added]
[31]
The
foregoing excerpt from the reasons of the Review Tribunal indicates, in my
view, that there was confusion as to the applicable legal test. The Review
Tribunal concluded that the materials could not “reasonably be expected to
affect the outcome of the case” – a correct application of the test for
materiality – and also that the materials did not create “a reasonable
possibility that it could lead the Review Tribunal to change its original
Decision” – an incorrect statement of the test for materiality. As stated
above, the Federal Court of Appeal in Mazzotta was unconvinced that the
related qualifier “reasonable”, when applied to the word “possibility”, was
sufficient “to lift the test out of the realm of possibility.” See: Mazzotta
at paragraph 44. In this case, it is difficult to be certain that the Review
Tribunal was guided by the correct legal test of materiality when it assessed
the materials that Mr. Decker had presented. That, however, is no longer an
issue for this Court to determine.
MR. DECKER’S CURRENT SITUATION
[32]
Almost
two years have passed since the decision of the Review Tribunal was made. Mr.
Decker is now out of time to appeal the decision of the Review Tribunal to the
Pensions Appeals Board.
[33]
Mr.
Decker is, however, entitled under subsection 83(1) of the Canada Pension
Plan to apply for an extension of time to bring an application for leave to
appeal. In view of all of the circumstances set out in these reasons, I am
confident that the Attorney General would give serious consideration to
consenting to an extension of time.
[34]
However,
the Attorney General might well oppose the merits of the leave application.
The new information Mr. Decker seeks to rely upon may not be material. Just
because the Review Tribunal may have blurred the proper test at law, this does
not mean that the same conclusion would not be reached if the correct test was
applied. This is because it is not easy to establish new facts that were not
reasonably discoverable but may reasonably be expected to affect the outcome of
the case. Mr. Decker will also have to deal with jurisprudence such as Vaillancourt
v. Canada (Minister of Human Resources) [2007] F.C.J. No. 905
(QL) which, at paragraph 28, suggests that Mr. Decker must not only show that
the information he wishes to rely upon would not have been previously
discoverable with reasonable diligence, but he must also show that the new
information was in existence at the time of the original hearing.
[35]
Alternatively,
Mr. Decker might choose to pursue his outstanding appeal to the Review Tribunal
in respect of his second application for disability benefits. The Attorney
General has not suggested that there is any impediment to so proceeding.
[36]
These
are not easy issues. I strongly urge Mr. Decker to seek legal advice from a
lawyer knowledgeable about this area of law about which option should be
pursued. This is not to suggest that Mr. Decker and his brother can not
advocate his case before pension authorities. Rather, it is meant to encourage
them to seek professional advice about what is their best course of conduct.
CONCLUSION
[37]
For
these reasons, a judgement must issue dismissing the application for judicial
review on the ground that the proper remedy was to appeal the decision of the
Review Tribunal to the Pension Appeals Board.
[38]
In
the circumstances, very appropriately in my view, the Attorney General did not
seek costs. No costs will be awarded.
[39]
Counsel
for the Attorney General is thanked for the professional manner in which she
provided advice about the Canada Pension Plan process to Mr. Decker and
his brother.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The application for
judicial review is dismissed without costs.
“Eleanor
R. Dawson”
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