Date:
20080131
Docket: A-181-07
Citation: 2008 FCA 38
CORAM: LÉTOURNEAU
J.A.
SEXTON
J.A.
PELLETIER
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
BILL JAGPAL
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Issues
[1]
This
application for judicial review raises two questions. First, whether there was
a breach of procedural fairness in not giving the Minister of Human Resources
and Social Development Canada (Minister) the opportunity to be heard on an
application under subsection 84(2) of the Canada Pension Plan, R.S.C.
1985, c. C-8 (Plan) to rescind a decision of the Pension Appeals Board (Board).
[2]
Second,
whether the integrated process envisaged by subsection 84(2) of the Plan can be
split into two hearings, one dealing with the issue of new facts, the other
with the question of whether the new facts warrant a rescinding of the Board’s
earlier decision.
[3]
Before
giving a summary of the facts, I reproduce relevant provisions of the Plan as
well as of the Pension Appeals Board Rules of Procedure (Benefits),
C.R.C. c. 390 (Rules):
The
Plan
|
83. (1) A party or, subject to the regulations,
any person on behalf thereof, or the Minister, if dissatisfied with a
decision of a Review Tribunal made under section 82, other than a decision
made in respect of an appeal referred to in subsection 28(1) of the Old Age
Security Act, or under subsection 84(2), may, within ninety days after the
day on which that decision was communicated to the party or Minister, or
within such longer period as the Chairman or Vice-Chairman of the Pension
Appeals Board may either before or after the expiration of those ninety days
allow, apply in writing to the Chairman or Vice-Chairman for leave to appeal
that decision to the Pension Appeals Board.
(2)
The Chairman or Vice-Chairman of the Pension Appeals Board shall, forthwith
after receiving an application for leave to appeal to the Pension Appeals
Board, either grant or refuse that leave.
(2.1)
The Chairman or Vice-Chairman of the Pension Appeals Board may designate any
member or temporary member of the Pension Appeals Board to exercise the
powers or perform the duties referred to in subsection (1) or (2).
(3)
Where leave to appeal is refused, written reasons must be given by the person
who refused the leave.
(4)
Where leave to appeal is granted, the application for leave to appeal
thereupon becomes the notice of appeal, and shall be deemed to have been
filed at the time the application for leave to appeal was filed.
(5)
…
(6)
An appeal to the Pension Appeals Board shall be heard by either one,
three or five members of the Board, whichever number the Chairman of the
Board directs, and where the appeal is heard by three or five members of the
Board, the decision of the majority is a decision of the Board.
84. (1) …
(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.
|
83. (1) La personne qui se croit lésée par une
décision du tribunal de révision rendue en application de l’article 82 —
autre qu’une décision portant sur l’appel prévu au paragraphe 28(1) de la Loi
sur la sécurité de la vieillesse — ou du paragraphe 84(2), ou, sous réserve
des règlements, quiconque de sa part, de même que le ministre, peuvent
présenter, soit dans les quatre-vingt-dix jours suivant le jour où la
décision du tribunal de révision est transmise à la personne ou au ministre,
soit dans tel délai plus long qu’autorise le président ou le vice-président
de la Commission d’appel des pensions avant ou après l’expiration de ces
quatre-vingt-dix jours, une demande écrite au président ou au vice-président
de la Commission d’appel des pensions, afin d’obtenir la permission
d’interjeter un appel de la décision du tribunal de révision auprès de la
Commission.
(2)
Sans délai suivant la réception d’une demande d’interjeter un appel auprès de
la Commission d’appel des pensions, le président ou le vice-président de la
Commission doit soit accorder, soit refuser cette permission.
(2.1)
Le président ou le vice-président de la Commission d’appel des pensions peut
désigner un membre ou membre suppléant de celle-ci pour l’exercice des
pouvoirs et fonctions visés aux paragraphes (1) ou (2).
(3)
La personne qui refuse l’autorisation d’interjeter appel en donne par écrit
les motifs.
(4)
Dans les cas où l’autorisation d’interjeter appel est accordée, la demande
d’autorisation d’interjeter appel est assimilée à un avis d’appel et celui-ci
est réputé avoir été déposé au moment où la demande d’autorisation a été
déposée.
(5)
[…]
(6)
Les appels interjetés auprès de la Commission d’appel des pensions
sont, selon ce qu’ordonne le président de la Commission, entendus par, soit
un membre, soit trois membres, soit encore cinq membres de la Commission et,
lorsqu’ils le sont par trois ou cinq membres, la décision de la majorité des
membres emporte décision de la Commission.
84. (1) […]
(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.
|
[Emphasis added]
The Rules
|
APPLICATION
3. These Rules apply to appeals brought pursuant
to section 83 of the Act.
DISPOSITION
OF APPLICATIONS
7. An application under section 4 or 5 shall be
disposed of ex parte, unless the Chairman or Vice-Chairman otherwise directs.
|
APPLICATION
3. Les présentes règles régissent les appels
interjetés en vertu de l'article 83 de la Loi.
RÈGLEMENT
DES DEMANDES
7. Il est statué ex parte sur les demandes
visées aux articles 4 ou 5, à moins que le président ou le vice-président
n'en décide autrement.
|
[4]
It is not necessary
to reproduce sections 4 and 5. Suffice it to say that section 5 of the Rules
deals with requests for extension of time to seek leave to appeal a decision of
a Review Tribunal. Section 4 refers to applications for leave to appeal to the
Board under section 83 of the Plan.
The Facts and the applicant’s submissions
[5]
In a decision dated
November 29, 2006, a member of the Board ruled that the respondent had
submitted new facts under subsection 84(2) of the Plan. In his view, these
facts were sufficient to make an arguable case to re-open a previous decision of
the Board, dated February 22, 2005, by which the Board had dismissed the
respondent’s appeal from a decision of a Review Tribunal. The Board’s decision
was confirmed by our Court in January 2006: see Jagpal v. Attorney General
of Canada, 2006 FCA 26.
[6]
The applicant
challenges, by way of judicial review pursuant to section 28 of the Federal
Courts Act, the member’s decision. The member dealt ex parte with
the respondent’s application pursuant to subsection 84(2). The applicant
complains of a breach of procedural fairness. He submits that he was deprived
of the opportunity to make submissions, present evidence or be heard in
response to the respondent’s application.
[7]
The applicant also
contends that the member could not treat a subsection 84(2) application as if
it were an application for leave to appeal and decide it ex parte.
Whether
the impugned decision is a decision of the Board or a decision of a member of
the Board
[8]
It is not clear if
the decision under attack before us is a decision of the Board or a decision of
a member of the Board. The decision itself, signed by a member of the Board,
provides no indication one way or the other.
[9]
We obtain no
assistance from the Rules since there are no Rules governing subsection 84(2)
applications. As it appears from Rule 3, the Rules, including ex parte
hearings, apply only to appeals to the Board pursuant to section 83 of the
Plan.
[10]
The record before us
does not indicate whether this is a new practice established by the Board or
whether the process followed in this case is an isolated incident.
[11]
We have no indication
as to the statutory basis, if any, upon which the member of the Board proceeded
as he did.
[12]
The question is not
purely theoretical. If the decision rendered was a decision of a member of the
Board as opposed to a decision of the Board, then we are without jurisdiction
to entertain the applicant’s application for judicial review. Such application
must be brought before the Federal Court of Canada pursuant to section 18.1 of
the Federal Courts Act.
[13]
Moreover, if this
decision on the issue of new facts is a decision of a single member of the
Board as opposed to a decision of the Board, the question is whether the Board
is bound by that decision when it is called upon to determine whether these new
facts justify a rescission of the decision.
[14]
As I read subsection
84(2), it is clear to me that the jurisdiction to rescind or amend a Board’s
decision is conferred upon the Board itself, not upon a member of the Board.
[15]
In MacIsaac v. The
Minister of Employment and Immigration, Appeal CP 2938, August 12, 1994, at
page 10, the Board expressed the view that subsection 84(2) applications “would
have to be made to the Board that heard the matter in the first instance”.
While this may not always be possible, it is certainly a sound and efficient
practice. It is one that this Court follows on a motion, pursuant to Rule
399(2) of the Federal Courts Rules, to set aside a decision that it has
rendered.
[16]
In conclusion, I can
only assume that the Board complied with the Plan and that the November 29,
2006 decision by the member was a decision by the Board which is subject to
judicial review by this Court.
Whether there was a breach of procedural fairness
[17]
On February 1, 2006,
the respondent wrote to “whom it may concern” at “Social Development Canada”:
see respondent’s record, at pages 2 and 3. The letter was handwritten. The
respondent indicated in it that he was in possession of new facts and that he
wanted a reconsideration of his claim under subsection 84(2) of the Plan.
[18]
In the material that
he sent to the Minister on February 1, 2006, the respondent also included a new
application for the disability benefit. This created confusion. A
representative of the Minister contacted the respondent by phone in June 2006
to clarify the latter’s intentions.
[19]
The respondent
confirmed that his intention was to seek a rescission of the Board’s earlier
decision pursuant to subsection 84(2). Of course, the Minister could not grant
the remedy sought by the respondent. However, in order to assist the respondent
who was self-represented, the Minister’s representative told the respondent
that he would forward to the Board the respondent’s letter of February 1, 2006
along with the material that the respondent was to fax him in the coming days: see
respondent’s record, exhibit A attached to the affidavit of Jennifer Allan.
[20]
The Minister sent the
material to the Board and waited for a subsection 84(2) application in due form
to be served on him and filed with the Board.
[21]
The first and only
news that the Minister received from the Board was that it had processed the
respondent’s demand and concluded that it was satisfied that there were
“sufficient new facts to make an arguable case to re-open the decision of the
Board”.
[22]
The Minister was
never informed that the Board was going to make a determination as to the legal
character of the facts submitted by the respondent on the basis of the letter
received. Nor was the Minister given the opportunity to make submissions in
this respect: see applicant’s record, volume 1, at page 8, paragraph 12 of the
affidavit of Wendy Lystiuk.
[23]
In order to come to
the conclusion that the facts submitted by the respondent were new facts, the
Board had to decide that the facts were not discoverable, with due diligence,
prior to the first hearing. In addition, the Board had to rule that these facts
were material, that is to say, that they may reasonably be expected to affect
the outcome of the case.
[24]
These were the events
surrounding the decision of the Board. I will now address the allegation of a
breach of procedural fairness.
[25]
The respondent’s
application pursuant to subsection 84(2) was a demand to re-open and rescind a
final and binding decision of the Board, which had been affirmed by this Court:
see Jagpal v. Attorney General of Canada, supra.
[26]
The applicant was at
all times a party to all the proceedings instituted by the respondent to obtain
a disability pension. Surely, procedural fairness required that the applicant
be given an opportunity to be heard on an issue as serious as the rescission of
a final decision.
[27]
Subsection 84(2)
provides for an exceptional recourse. It makes an exception to the finality
principle which characterizes judicial or quasi-judicial decisions. The
provision ought to be interpreted in a manner which ensures procedural fairness
to the parties who were either bound by, or entitled to rely upon, the final
decision now under a new attack.
[28]
In Adamo v. Canada (Minister of Human Resources
Development), 2006 FCA
156, a Review Tribunal proceeded to rescind an earlier decision on the basis
that there were new facts, without informing the parties of its intention to do
so. Writing for a unanimous Court, Noël J.A. wrote at paragraphs 36 and 37:
36. However, before disposing of the matter
on this basis, it was incumbent upon the Review Tribunal to advise the parties
that it was considering the grant of a remedy pursuant to subsection 84(2) and
to invite submissions as to whether this remedy was available. It could not
dispose of the matter pursuant to subsection 84(2) without giving the parties
the occasion to be heard on the issues which arise under that provision.
37. Having regard to this failure by the
Review Tribunal to allow the parties to be heard, the PAB correctly held that
the decision could not stand.
[29]
In the public
interest, the Government is responsible for the implementation of final and binding
decisions rendered by the Board. It has a legitimate expectation of being heard
on new proceedings challenging the finality of earlier decisions rendered
pursuant to proceedings to which it was a party. As this Court said in Canada
(Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41, at
paragraph 47, in addition to ensuring fairness, hearing the applicant would
increase the likelihood of a more enlightened decision as well as promote the
credibility of the Board itself.
[30]
In an earlier
decision, the Board asserted that the remedy provided by subsection 84(2) is
discretionary and that the discretion should be exercised in favour of
re-opening a hearing only in the most exceptional circumstances: see MacIsaac
v. The Minister of Employment and Immigration, supra. At the very
least, this is an indication that the Board sees, as it should, a subsection
84(2) application as a serious matter. I am astonished that an application to
rescind a final and binding decision could be decided, as it was in this case,
without the Government, which represents the public interest in these
proceedings and manages the public purse, being given the opportunity to oppose
and be heard.
[31]
The failure of the
Board to inform the applicant and invite submissions from him on the
respondent’s application to rescind a Board’s decision pursuant to subsection
84(2) of the Plan resulted in a breach of procedural fairness.
Whether
the Board could split the integrated process envisaged by subsection 84(2) into
two hearings
[32]
On a subsection 84(2)
application, the Board is required to determine two issues: whether there are
new facts submitted by the person who brings the application, and whether these
new facts are of sufficient force to justify rescinding or amending the earlier
decision.
[33]
These two issues are
inextricably linked and decided on the basis of the same evidence. Usually,
they are decided at the same time by the same panel of the Board. This makes
sense in terms of efficiency as well as fairness to the parties who do not have
to attend two hearings. I am at a loss here to understand why the hearing of
the subsection 84(2) application was split into two hearings: the one under
review at which the Board decided the issue of “new facts”, and the other,
still to come, at which the Board will decide whether the new facts justify
rescinding the earlier decision.
[34]
I should stress that
the determination of whether the facts now submitted amount to new facts within
the meaning of subsection 84(2) is not a mere formality or, as counsel for the
respondent put it, a mere threshold. It is a key issue upon which the
jurisdiction of the Board to rescind its earlier decision depends. If no new
facts are found, the decision cannot be rescinded.
[35]
In addition to a loss
of efficiency, the split of the process entails undesirable consequences. There
is, first, the possibility of inconsistent decisions if, at the second stage of
the process, the Board is not bound by the earlier determination that the
proffered evidence is evidence of new facts.
[36]
Second, the
bifurcation of the process is conducive to unwarranted delays prejudicial to a
disability claimant. This case is a vivid example of that since the
determination by the Board of the second issue, i.e. whether the decision
should be rescinded and the claimant entitled to benefits, was suspended while
the decision on “new facts” was challenged before this Court.
[37]
For these reasons, I
would allow the application for judicial review, set aside the decision of the
Board dated November 29, 2006 and refer the matter back to the Board for a new
hearing of the respondent’s application pursuant to subsection 84(2) of the
Plan, to be held by a differently constituted panel in accordance with these
reasons for judgment. No order as to costs was sought by the applicant.
“Gilles
Létourneau”
“I
agree
J.
Edgar Sexton J.A.”
“I
agree
J.D.
Denis Pelletier J.A.”
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