Date: 20060503
Docket: A-89-04
Citation: 2006 FCA 156
CORAM: NOËL J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
ANTONIETTA ADAMO
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an application for judicial review of a decision rendered by the Pension Appeals Board ("PAB") on January 16, 2004, in which it allowed the Respondent's preliminary motion to dismiss the Applicant's appeal on the ground that the decision under appeal was res judicata.
Background
[2] The appeal was from a decision of a Review Tribunal which had held that the Applicant was disabled within the meaning of the Canada Pension Plan, R.S.C. 1985, c. C-8 as of July 1994 ("Plan") and was entitled to a pension commencing November 1994.
[3] At issue is whether in so holding the Review Tribunal was acting pursuant to subsection 82(1) or 84(2) of the Plan which provide respectively:
| Appeal to Review Tribunal
82.(1) A party who is dissatisfied with a decision of the Minister made under section 81 or subsection 84(2), or a person who is dissatisfied with a decision of the Minister made under subsection 27.1(2) of the Old Age Security Act, or, subject to the regulations, any person on their behalf, may appeal the decision to a Review Tribunal in writing within 90 days, or any longer period that the Commissioner of Review Tribunals may, either before or after the expiration of those 90 days, allow, after the day on which the party was notified in the prescribed manner of the decision or the person was notified in writing of the Minister's decision and of the reasons for it.
Rescission or amendment of decision
84.(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.
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Appel au tribunal de révision
82.(1) La personne qui se croit lésée par une décision du ministre rendue en application de l'article 81 ou du paragraphe 84(2) ou celle qui se croit lésée par une décision du ministre rendue en application du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse ou, sous réserve des règlements, quiconque de sa part, peut interjeter appel par écrit auprès d'un tribunal de révision de la décision du ministre soit dans les quatre-vingt-dix jours suivant le jour où la première personne est, de la manière prescrite, avisée de cette décision, ou, selon le cas, suivant le jour où le ministre notifie à la deuxième personne sa décision et ses motifs, soit dans le délai plus long autorisé par le commissaire des tribunaux de révision avant ou après l'expiration des quatre-vingt-dix jours.
Annulation ou modification de la décision
84.(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.
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[4] The PAB held that the Review Tribunal rendered its decision pursuant to subsection 82(1), and that, as another Review Tribunal had already determined that the Applicant was not disabled within the meaning of the Plan, the matter was res judicata. The PAB added that inasmuch as the Review Tribunal purported to render its decision on the basis of "new facts" pursuant to subsection 84(2), it was not seized with an application to rescind or amend an earlier decision as contemplated by that provision. The PAB further noted that in any event the Review Tribunal was not presented with any "new facts" within the meaning of subsection 84(2).
[5] Before addressing the issues raised by the application, it is necessary to set out in full the lengthy procedural history which led to the decision under review.
Procedural history
[6] By a first application received by the Respondent on August 5, 1994, the Applicant applied for a disability pension describing her main disabling condition as muscle problems throughout her whole body. The Applicant stated that she was last employed as a janitor and stopped working on December 22, 1993.
[7] By letter dated September 2, 1994, the Applicant was informed she was ineligible to receive a disability pension because the evidence available revealed that she was capable of pursuing some type of gainful occupation. By undated letter, the Applicant's daughter indicated that her mother wished to appeal that decision. By letter dated July 6, 1995, the Applicant was informed that the decision denying the pension had been reconsidered and confirmed.
[8] By letters dated July 28, 1995, and November 15, 1995, the Applicant's daughter informed the Office of the Commissioner of Canada Pension Plan Review Tribunals that the Applicant wished to appeal this decision to a Review Tribunal.
[9] A Review Tribunal was convened on November 15, 1995, at Winnipeg, Manitoba. In its decision dated January 10, 1996, the Review Tribunal held that the Applicant was not disabled within the meaning of the Plan.
[10] The Applicant sought leave to appeal this first decision of the Review Tribunal to the PAB. By letter dated April 3, 1996, she was informed that leave to appeal from this first Review Tribunal decision had been refused.
[11] By a second application received by the Respondent on October 6, 1996, the Applicant applied for a disability pension describing her main disabling condition as painful muscles and joints. The Applicant indicated again that she was last employed as a janitor and stopped working on December 22, 1993.
[12] By letter dated November 15, 1996, the Applicant was informed she was ineligible to receive a disability pension because the evidence revealed that she was capable of pursuing some type of gainful occupation. By letter dated December 2, 1996, the Applicant's daughter indicated that her mother wished to appeal this second Minister's decision to a Review Tribunal. By letter dated May 2, 1997, the Applicant was informed that the second decision denying her a disability pension had been reconsidered and confirmed.
[13] By letter dated May 16, 1997, the Applicant's representative informed the Office of the Commissioner of Canada Pension Plan Review Tribunals that the Applicant wished to appeal this second Minister's reconsideration decision to a Review Tribunal.
[14] A second Review Tribunal was convened on January 13, 1998, at Winnipeg, Manitoba. In its decision dated March 10, 1998, the second Review Tribunal, once again, held that the Applicant was not disabled within the meaning of the Plan.
[15] The Applicant once again sought leave to appeal the second Review Tribunal decision to the PAB. By letter dated March 1, 1999, the Applicant was informed that leave to appeal this second Review Tribunal decision had been refused.
[16] By a third application received by the Respondent on May 3, 1999, the Applicant once more applied for a disability pension. The Applicant again reiterated that she was last employed as a janitor and had stopped working on December 22, 1993.
[17] By letter dated January 15, 2000, the Applicant was informed she was ineligible to receive a disability pension and was reminded of the previous decisions of the Review Tribunal and the PAB. By letters dated January 19, 2000, and April 16, 2000, the Applicant's daughter indicated that her mother wished to appeal the third Minister's decision. By letter dated June 7, 2000, the Applicant was informed that the decision denying her a disability pension had been reconsidered and confirmed.
[18] By letter dated August 16, 2000, the Applicant's daughter informed the Office of the Commissioner of Canada Pension Plan Review Tribunals that her mother wished to appeal this third Minister's reconsideration decision to a Review Tribunal. A third Review Tribunal was convened and in a decision dated December 21, 2001, the third Review Tribunal concluded that the Applicant was disabled within the meaning of the Plan and entitled to her pension.
[19] The concluding portion of the decision reads as follows:
The Panel finds that the Appellant has suffered from a prolonged disability since 1992. This is based on the medical report of Dr. Wilfred Albi, dated July 28, 1994, found at pages 40 to 42 of the first Hearing Case File. This prolonged disability became a severe disability as defined by the CPP in July 1994.
The Panel makes its finding based upon a combination of a medical report of Dr. Albi which is in evidence and which was in evidence before the first Review Tribunal, plus the oral evidence of the Appellant, Antonietta Adamo, which was not given during the first hearing and the evidence of Dominica Adamo which also was not provided during the first hearing.
The Pension is granted with the date of disability of July 1994 with the pension to commence in November 1994.
[20] The Respondent sought leave to appeal the third Review Tribunal decision to the PAB. Leave was granted and at the beginning of the hearing of the appeal, the Respondent brought a preliminary motion for an order setting aside the third Review Tribunal decision on the basis that the matter had been finally decided by the second review decision and was res judicata.
[21] In allowing the motion, the PAB noted that an application based on new facts pursuant to subsection 84(2) is different from an appeal pursuant to subsection 82(1). The PAB acknowledged that the Review Tribunal attempted to invoke both provisions by alluding to new facts. However it concluded that this avenue was not open to it:
[5] A number of reasons preclude the validity of this approach. First the appeal before the Review Tribunal was pursuant to Section 82. Mrs. Adamo was appealing the decision of "reconsideration" of the Minister, the second level of appeal, and the Review Tribunal in its judgment specifically refers to Section 82 as the basis for its being so constituted. Section 84(2) was not the section under which Mrs. Adamo applied.
[6] The procedural irregularities are formidable, incontrovertible and inescapable. An application under Section 84(2) to a Review Tribunal can only be from a prior Review Tribunal decision specifically. As stated above, the appeal was taken from the Minister's decision of reconsideration on the application, not from the Review Tribunal's first or indeed second decision, but expressly, the appeal was not grounded on "new facts". These must be specifically relied upon as the basis for amending or rescinding a prior decision of the Review Tribunal. Finally, Mrs. Adamo must adduce specific evidence to support the newness of the facts, i.e., that the "new facts" were not previously discoverable with reasonable diligence and were material.
[22] The PAB went on to find that subsection 84(2) could not be invoked to support the decision of the third Review Tribunal. As the second Review Tribunal had already concluded that the Applicant was not disabled, a decision later confirmed by the PAB, the matter was res judicata, and the third Review Tribunal had no basis for intervention.
[23] The Applicant has now brought this application to this Court and is seeking that the decision of the PAB issued on January 16, 2004, be judicially reviewed.
Position of the parties
[24] The Applicant concedes that absent "new facts", her status has been finally determined. However she argues that the doctrine of res judicata did not prevent the third Review Tribunal from revisiting, pursuant to subsection 84(2), the decision rendered by the second Review Tribunal on January 10, 1996. According to the Applicant, this is what the Review Tribunal did in this instance.
[25] The Applicant submits that the PAB misconstrued subsection 84(2) when it held that this provision did not allow the Review Tribunal to reconsider the earlier decision of the second Review Tribunal in the circumstances of this case.
[26] The Applicant further submits that the evidence presented before the Review Tribunal did constitute "new facts" within the meaning of subsection 84(2) since the medical reports do identify for the first time interstitial cystitis as the cause of her disability. The PAB's conclusion that no "new facts" were presented is contrary to the record.
[27] The Minister for his part submits that the PAB came to the correct conclusion as to both subsection 84(2) and the question of new facts. He relies essentially on the reasons given by the PAB in support of its conclusions.
Analysis and Decision
[28] In order to be entitled to a pension, the Applicant had to establish that she was disabled within the meaning of the Plan at a time when she last met the contributory requirements. Based on her contributions, the Applicant met the contributory requirements until December 31, 1997, that date marking the end of the period generally referred to as the minimum qualifying period.
[29] Since the second Review Tribunal decision was rendered after December 31, 1997, further to a hearing held on January 13, 1998, and since the PAB declined to grant leave to appeal from that decision, it follows that the Applicant was finally held not to be disabled within the meaning of the Plan at the close of her minimum qualifying period. The Applicant cannot overcome this state of affairs unless she extends her minimum qualifying period by making further contributions to the Plan, which of course would require her to rejoin the work force.
[30] Absent this, the only way in which the Applicant can qualify for a pension is by successfully appealing the decision of the Minister on her third application or by convincing the Review Tribunal to rescind or amend its last decision on the basis of new facts. According to the Applicant, this is the relief which the Review Tribunal chose to grant in this instance.
[31] It is difficult to identify with certainty the provision under which the third Review Tribunal rendered its decision. The reasons begin with a statement that the Review Tribunal is convened pursuant to section 82 to hear an appeal from the decision of the Minister of Human Resources Development Canada dated June 7, 2000. However, this does not in itself foreclose the Review Tribunal from assuming jurisdiction under subsection 84(2) since, as was noted in Canada (Minister of Human Resources Development) v. Fleming, 2004 FCA 288 at para. 9, a Review Tribunal can only be constituted pursuant to section 82 (see the definition of "Review Tribunal" in subsection 2(1) of the Plan).
[32] In the course of the hearing, the third Review Tribunal ruled that it was open to it to reconsider the decision of the first Review Tribunal. The reasons describe the ruling which it made as follows:
[...] The Tribunal ruled that this Panel had the authority to rehear and reconsider the decision of the Review Tribunal dated November 15, 1995.
[33] According to the Applicant, this ruling coupled with the Review Tribunal's express reliance on new evidence at the conclusion of its reasons makes it clear that it was acting pursuant to subsection 84(2).
[34] In my view, the fact that subsection 84(2) was not invoked by the Applicant did not prevent the Review Tribunal from proceeding under that provision if indeed it was presented with new facts which were capable of shedding a different light on its earlier decision. In this instance, the Review Tribunal appeared to be of the view that it had before it new facts which warranted that the original decision be reconsidered (Peplinski v. Canada (1993), I.F.C. 222 (TD) at para. 11, aff'd Oliveira v. Canada (MHRD), 2004 FCA 136).
[35] I do not believe that much turns on the fact that the third Review Tribunal referred to the first Review Tribunal rather than to the second. The first decision covered the period running from the time when the Applicant first alleged to be disabled to November 15, 1995, the date on which the hearing before the first Review Tribunal was held. The second Review Tribunal decision covered the full qualifying period, that is up to December 31, 1997 when the Applicant last met the contributory requirements. What is important is that the third Review Tribunal obviously believed that it had before it evidence which was not available to either the first or second Review Tribunal.
[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. However, the question whether there are new facts would have been better left to the Review Tribunal to decide in the first instance with the benefit of the submissions of the parties.
[38] In so holding, I acknowledge that the PAB did conclude in the alternative that there were no new facts. However, it did so summarily, and no mention is made of the new medical report which was filed before the third Review Tribunal.
[39] I would therefore allow the application, but only for the purpose of setting aside the decision of the Review Tribunal and sending the matter back so that the Review Tribunal may determine, upon proper notice being given to the parties, whether there are new facts within the meaning of subsection 84(2), and if so, whether the decision of the Review Tribunal dated March 10, 1998, should be amended or rescinded. Given that the Applicant is entitled to proceed under subsection 84(2) at any time based on new facts, it will be open to the Review Tribunal to consider any alleged new fact which the Applicant wishes to present.
[40] Given the result, the parties will assume their respective costs. Judgment will be issued accordingly.
"Marc Noël"
" I agree
K. Sharlow J.A."
"I agree
B. Malone"
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