Date:
20080625
Docket:
A-467-07
Citation:
2008 FCA 223
CORAM: NOËL
J.A.
BLAIS J.A.
EVANS
J.A.
BETWEEN:
SUNIL HANDA
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
EVANS J.A.
[1]
This
is an appeal by Sunil Handa from a decision of the Federal Court (2007 FC 924)
in which Justice Harrington dismissed Mr Handa’s application for judicial review
of a decision by a designated member of the Pension Appeals Board (“PAB”),
dated December 20, 2006. In that decision, the Board refused to extend the time
to permit Mr Handa to apply for leave to appeal a decision of the Review
Tribunal upholding the Minister’s dismissal of Mr Handa’s application for long
term disability benefits under the Canada Pension Plan, R.S.C. 1985, c.
C-8 (“CPP”).
[2]
The
Review Tribunal concluded on the basis of the material before it that Mr Handa
had not established that his disability was “prolonged” and ”severe” within the
meaning of CPP, subsection 42(2).
[3]
A
party wishing to appeal a decision of the Review Tribunal to the PAB must seek
leave to appeal within 90 days of being notified of the decision of the Review
Tribunal, or whatever longer time the PAB’s Chair, Vice-Chair, or a member designated
by them, permits: CPP, subsection 83(1). More than four years elapsed between
the time that the Review Tribunal’s decision was communicated to Mr Handa in
January 2001, and the application for leave to appeal made in April 2005 by Mr
Handa’s representative.
[4]
In
considering Mr Handa’s subsequent request for an extension of time in September
2006, the designated member applied the factors set out in Canada (Minister
of Human Resources Development), v. Gattallero, 2005 FC 883, which
structure the exercise of the PAB’s discretion under subsection 83(1).
[5]
On
the basis of the material before him, the designated member was not satisfied
that Mr Handa had a continuing intention to appeal, or that there was a
reasonable explanation for his lengthy delay. In addition, the designated
member concluded that it would prejudice the Minister to allow the appeal to be
heard, because of the difficulty of preparing an appeal after so long a time,
and because “the memory of witnesses would be diminished and their power of
recollection would be decreased.”
[6]
Accordingly,
Mr Handa’s request was denied.
[7]
The
only issue before Justice Harrington was whether the designated member had
committed a reviewable error in the exercise of the broad discretion under
subsection 83(1) to permit a party to appeal a Review Tribunal decision outside
the normal 90 day limitation period. Applying a pragmatic and functional
analysis, the Applications Judge held that the standard of review was patent
unreasonableness. After carefully reviewing the designated member’s reasons and
decision, he found no reviewable error. Indeed, he concluded that the decision would
also pass the somewhat searching examination called for by the unreasonableness
simpliciter standard.
[8]
Justice
Harrington even considered a new explanation for Mr Handa’s failure to appeal
in time, which had not been put to the designated member, and was therefore not
strictly admissible in the judicial review proceeding. Mr Handa’s original request
to appeal was made in January 2001, but, in a letter dated May 3, 2001, was not
accepted by the PAB, because it did not state any grounds of appeal. In written
representations to the designated member, Mr Handa’s representative said that
Mr Handa had not replied to this letter because he had not understood what was
meant by “grounds”.
[9]
However,
before Justice Harrington, Mr Handa said that his representative’s explanation
was wrong, and that he had not submitted another application for leave to
appeal because he had not received the PAB’s letters, even though they were
correctly addressed to him. Justice Harrington concluded that this new
allegation did not assist Mr Handa because it was not a reasonable explanation
of the delay of more than four years.
[10]
After
Justice Harrington rendered his decision, the Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
2008 SCC 9, tweaked the standard of review analysis. Of relevance to the
present case is that the Court collapsed the two reasonableness standards of
review into one, “reasonableness” (at para. 45), and stated that this is
normally the standard to be applied on a judicial review of the exercise of
statutory discretion by an administrative decision-maker (at para. 53). The
Court instructed reviewing courts when applying this deferential standard to
consider whether a decision is unreasonable by reference to the range of acceptable
choices left to the decision-maker by the legislation, to the reasons for decision,
and to the decision itself: see para. 47.
[11]
Examining
the designated member’s decision in the light of this guidance, I have reached
the same conclusion as Justice Harrington. In the absence of any express
statutory limitations on the scope of the discretion delegated to the Board to
grant an extension of time, it has broad decision-making latitude. In his reasons
for decision, the designated member explains clearly the bases of his refusal
to grant an extension of time by reference to the criteria set out in the
jurisprudence and to the material before him. In short, the decision-making
process does not lack “justification, transparency, and intelligibility” (Dunsmuir,
supra, at para. 47) so as to make the decision unreasonable.
[12]
Nor
is the outcome (that is, the designated member’s refusal to grant an extension
of time) in itself unreasonable.
[13]
For
these reasons, I would dismiss the appeal. The respondent’s request for costs
was abandoned at the hearing and therefore I would award no costs.
____”John
M. Evans”
J.A.
“I agree
Marc Noël J.A.”
“I agree
Pierre Blais J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-467-07
APPEAL FROM A JUDGMENT OF THE HONOURABLE
MR. JUSTICE HARRINGTON DATED SEPTEMBER 17, 2007 DOCKET NO. T-255-07
STYLE OF CAUSE: Sunil
Handa v.
Attorney General of Canada
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: June 23, 2008
REASONS FOR JUDGMENT OF THE
COURT BY: JUSTICE EVANS
CONCURRED IN BY: JUSTICE
NOËL
JUSTICE
BLAIS
DATED: June 25, 2008
APPEARANCES:
|
Mr. Sunil Handa
|
ON
HIS OWN BEHALF
|
|
Mr. Marcus Davies
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
ON
|
FOR THE RESPONDENT
|
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