Date: 20110518
Docket: A-427-10
Citation: 2011 FCA 169
CORAM: SEXTON
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
GUIDA BELO ALVES
Applicant
and
THE MINISTER OF HUMAN
RESOURCES AND SOCIAL DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
This
is an application for judicial review of a decision of the Pension Appeals
Board dated September 16, 2010 (file no. CP 26558).
[2]
Before
the Board, the applicant requested that, under subsection 84(2) of the Canada
Pension Plan, R.S.C. 1985, c. C-8, the Board re-open and re-consider an
earlier decision, dated February 25, 1999, because of the presence of alleged
new facts. In its earlier decision, the Board denied the applicant disability
benefits.
[3]
The
applicant alleged that six documents disclosed significant new facts that
warranted the re-opening and re-consideration of the earlier decision. The
Board found that there were no such new facts. Therefore, it declined to
re-open and re-consider its earlier decision denying the applicant disability
benefits.
[4]
In
declining to re-open and re-consider its earlier decision, the Board identified
the proper legal test to be applied to “new facts” applications under
subsection 84(2) of the Plan. Under this legal test, applicants must show two
things:
(1)
Non-discoverability. The information
must not have been discoverable, with reasonable diligence, at the time of the
earlier matter.
(2)
Materiality. The
information must be material in the sense that it could reasonably be expected
to have affected the outcome of the earlier matter.
(See Gaudet
v. Canada (Attorney General), 2010 FCA 59 at paragraph 3; Kent v. Canada (Attorney
General),
2004 FCA 420 at paragraph 34.)
[5]
In
detailed reasons, the Board examined each of the six documents that the
applicant said contained non-discoverable, material new facts. The Board
assessed whether the facts in those documents met the requirements of
non-discoverability and materiality. In each case, it found to the contrary. In
its view, the facts in the six documents could have been brought forward in the
earlier matter, or could not reasonably be expected to have affected the
outcome of the earlier matter, or both. Therefore, the Board declined to
re-open and re-consider its earlier decision.
[6]
In
this Court, at the outset of the hearing, the applicant provided us with two
binders of material collected from the evidentiary record. We have reviewed
that, along with the entire record, and, of course, the parties’ written
memoranda of fact and law.
[7]
In cases such as this, the Supreme Court of Canada has told us that
we cannot step into the shoes of the Board and make different findings of fact.
Nor can we reach different conclusions and impose our conclusions over those
that the Board has made. Rather, our role is a restricted one: we have the power
only to review – not redo – the Board’s decision.
[8]
The Supreme Court tells us that in reviewing the decision, we are
to ask ourselves this question: did the Board’s decision fall within a range of
possible, acceptable outcomes which are defensible on the facts and the law?
(See Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, 2008 SCC 9 at paragraph 47). Specifically, in this case, we
are to ask whether, based on the evidence in this case, the law in subsection
84(2) of the Plan and this Court’s legal decisions, mentioned above, the Board
could have made the legal findings, the factual findings, and the conclusions
that it did.
[9]
We conclude that the Board did make legal findings that are consistent
with subsection 84(2) of the Plan and this Court’s earlier decisions. It made
factual findings that were open to it, based on the evidence before it. Finally,
it applied its legal findings to its factual findings and reached conclusions
that were within the range of reasonable outcomes available to it. Therefore,
there are no grounds to interfere with the Board’s decision.
[10]
We have no doubt that the applicant has suffered greatly and has
experienced great misfortune. Our decision is not meant to minimize that in any
way. It is just that, as explained above, our role is limited by law. We can
only apply the law as written by Parliament and the earlier legal decisions
that are binding on us. These do not allow us to give relief in these
circumstances.
[11]
Accordingly,
we shall dismiss the application for judicial review. The respondent has not
asked for its costs, and so none shall be awarded.
"David
Stratas"
“I
agree
J. Edgar Sexton J.A.”
“I
agree
Eleanor R. Dawson J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-427-10
APPLICATION FOR JUDICIAL REVIEW FROM A DECISION
OF THE PENSION APPEALS BOARD DATED SEPTEMBER 17, 2010
STYLE OF CAUSE: Guida
Belo Alves v. The Minister of Human Resources and Social Development
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: May 10, 2011
REASONS FOR JUDGMENT BY: Stratas J.A.
CONCURRED IN BY: Sexton J.A.
Dawson J.A.
DATED: May 18, 2011
APPEARANCES:
|
Guida Belo Alves
|
ON HER OWN BEHALF
|
|
Linda Lafond
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
|
|
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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