Date: 20061115
Docket: A-571-05
Citation: 2006 FCA 375
CORAM: LINDEN J.A.
NOËL
J.A.
EVANS
J.A.
BETWEEN:
DIANNE MARIE KENT
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Halifax, Nova
Scotia,
on November 15, 2006.)
EVANS J.A.
[1]
This is an
application for judicial review by Dianne Marie Kent to set aside a decision of
the Pension Appeals Board, dated October 12, 2005, granting an appeal by the
Minister of Social Development and denying Ms Kent a disability pension. The
Board concluded that Ms Kent had not adduced sufficient evidence to establish
that, on or before December 31, 1997 (her minimum qualifying period), she was
suffering from a severe and prolonged mental or physical disability within the
meaning of paragraph 4(2)(a) of the Canada Pension Plan, R.S.C. 1985, c.
C-8.
[2]
We are not
satisfied that, in so concluding, the Board made any reviewable error. In
particular, it cannot be said that, on the evidence before it, the Board based
its decision on a finding of fact that was patently unreasonable. Similarly,
the Board’s conclusion that Ms Kent had failed to adduce sufficient evidence to
establish that she was disabled within the meaning of the Plan was not
patently unreasonable.
[3]
Ms Kent
also alleged in her oral presentation to us that she had been denied a fair
hearing by the Board, whose members, she said, had not treated her
respectfully. However, she did not allege procedural unfairness by the Board in
her notice of application for judicial review, nor in her memorandum of fact
and law. It is too late to raise this allegation for the first time at the
hearing of the application for judicial review.
[4]
We note
that Ms Kent’s claim for a disability pension has a long history. She first
applied to the Minister in 1995, having stopped work as a nurse in 1994. In
January 1996, a Review Tribunal dismissed Ms Kent’s appeal from the Minister’s
refusal of her application for a pension, on the ground that she had adduced
insufficient evidence that her medical condition was “severe”. The Board
refused leave to Ms Kent to appeal this decision.
[5]
In May
2002, Ms Kent applied to the Tribunal under subsection 84(2) of the Plan to
reconsider its decision. On the basis of additional medical evidence put before
the Tribunal, it changed its decision and, on August 22, 2002, decided that she
was entitled to a disability pension. The Board granted leave to the Minister
leave to appeal from this decision.
[6]
Without
considering the merits of the Tribunal’s reconsideration decision, the Board
allowed the appeal on October 28, 2003. It held that the Tribunal had erred in
finding that the additional evidence adduced before the Tribunal constituted
“new facts” within the meaning of subsection 84(2) of the Plan. As an
exception to the principle that adjudicative decisions under the Plan
are final and render the matter res judicata, a decision-maker may reconsider
its original decision under subsection 84(2) if there are “new facts”, as
defined in the jurisprudence.
[7]
On an
application for judicial review to this Court, the Board’s decision was set
aside: Kent v. Canada (Attorney General (2004), 248 D.L.R. (4th)
12, 2004 FCA 420. The Court held that, on an appeal of a reconsideration
decision by the Tribunal, the Board could not set aside the decision of the
Tribunal simply because it disagreed with the Tribunal’s finding that there
were “new facts” which enabled it to reconsider its original decision. Rather,
the Board is obliged to determine de novo the merits of an appeal, on
the basis of all the available evidence, including the facts accepted by the
Tribunal as “new facts”. The Court remitted the matter for redetermination on
this basis by a differently constituted Board: para. 37.
[8]
We are
satisfied that in the instant case the Board complied with the Court’s
direction and decided Ms Kent’s appeal on its merits. Thus, the Board stated (at
para. 41 of its reasons):
There were no “new facts” presented to
this Board and, therefore, the Board’s jurisdiction as provided by
subsection 83(11) of the Plan is to consider the Review Tribunal
decision of August 22, 2002 incorporating the “new facts” as found by it [i.e.
the Tribunal], as well as the totality of the circumstances and come to its own
conclusion as to whether the respondent was disabled within the meaning of the Plan
on or before December 1997.
[9]
Immediately
before reasons for judgment were given from the Bench, counsel for the Minister
rose to request the Court to reconsider the principle articulated in Kent, and other cases. Namely, without ruling
on the merits, the Board may not dispose of an appeal from a reconsideration
decision by the Tribunal, on the sole ground that the Tribunal erred in its
determination of whether additional evidence put to it constituted “new facts”
so as to engage its jurisdiction to reconsider an earlier decision.
[10]
We decline
to enter into this inquiry. Counsel had not laid the ground for this submission
in her memorandum of fact and law. Apart from a comment that the effect of Kent
and other similar decisions is to delay the final adjudication of
disability pension claims, counsel did not seek to explain why the Court should
depart from the principle in Miller v. Canada (Attorney General) (2002),
220 D.L.R. (4th) 149, 2002 FCA 370, that the Court normally follows
its previous decisions.
[11]
For these
reasons, Ms Kent’s application for judicial review will be dismissed. Costs
were not requested and are not awarded.
"John
M. Evans"
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