Docket: A-50-16
Citation:
2016 FCA 276
|
CORAM:
|
DAWSON J.A.
NEAR J.A.
WOODS J.A.
|
|
BETWEEN:
|
|
PHILIP METTE
|
|
Applicant
|
|
and
|
|
THE ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
REASONS FOR JUDGMENT
DAWSON J.A.
[1]
The applicant, Philip Mette, unsuccessfully
applied for a disability pension under the Canada Pension Plan, R.S.C.,
1985, c. C-8. The applicant’s appeal from the denial of benefits was dismissed
in 2004 by a Review Tribunal. In 2012, the applicant applied to have the
decision of the Review Tribunal rescinded or amended pursuant to subsection
84(2) of the Canada Pension Plan on the basis of evidence said to
constitute new evidence.
[2]
The General Division of the Social Security
Tribunal of Canada dismissed the applicant’s application on the basis that any
such application could not be made more than one year after the decision of the
Review Tribunal was communicated to the applicant. The General Division also
concluded that what was said to be new evidence did not meet the legal criteria
for new evidence. They were not new material facts that could reasonably be
expected to have affected the outcome reached by the Review Tribunal.
[3]
The applicant was given leave to appeal from the
General Division to the Appeal Division. The Appeal Division dismissed the
appeal (Appeal No. AD-14-427). While the Appeal Division was persuaded that the
General Division erred in law when it decided that the applicant’s claim was
statute-barred, the Appeal Division went on to find that the General Division
did not err when it determined that the applicant had not presented “new facts”. This is an application for judicial
review of the decision of the Appeal Division.
[4]
On this application the applicant seeks an order
setting aside the decision of the Appeal Division and an order remitting the
new evidence to a proper decision-maker for redetermination.
[5]
The applicant submits that the decision of the
Appeal Division is reviewable on the standard of reasonableness. I agree.
[6]
At this point it is important to explain what
review on the standard of reasonableness means.
[7]
Section 68 of the Department of Employment
and Social Development Act, S.C. 2005, c. 34 (Act) provides that a decision
of the Social Security Tribunal is “final and, except
for judicial review under the Federal Courts Act, is not subject to appeal to
or review by any court.”
[8]
By limiting review to judicial review by this
Court, Parliament has chosen to confer on the Tribunal the power to find the
facts, interpret the Act and associated legislation, decide the outcome of
claims and award any relief. We cannot hear cases anew, we can only judicially
review decisions of the Tribunal.
[9]
The Supreme Court of Canada requires that we
afford tribunals substantial leeway. As the Supreme Court explained in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes.
In judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
(emphasis added)
[10]
With respect to the application of the
reasonableness standard to the decision of the Appeal Division, the Appeal
Division found that the General Division had correctly set out the legal test
as to what constitutes “new facts” under the Canada
Pension Plan, that the General Division clearly and accurately set out both
the evidence that was presented to the Review Tribunal and the evidence
asserted to constitute new facts and that the General Division did not err with
respect to its assessment of the evidence asserted to constitute new facts.
[11]
On the application record before the Appeal
Division the applicant has not demonstrated any error in these findings that
would justify intervention by this Court. Put another way, the decision of the
Appeal Division is justified, transparent and intelligible and it falls within
the range of possible, acceptable outcomes that may be defended on the basis of
the facts and the law.
[12]
To the extent the applicant argues that the
Appeal Division erred at paragraph 37 of its reasons by stating that Dr.
Hamilton’s further report “speculated” about his
condition existing at the Minimum Qualifying Period, the Appeal Division went
on to find that the report was not properly admissible before it. The Appeal
Division, as it correctly noted at paragraph 38 of its reasons, could only
consider the evidence that was before the General Division.
[13]
One final comment is directed to the submission
of the Attorney General about the Appeal Division’s decision not to grant leave
to appeal on the issue of whether the General Division erred in finding that
the evidence presented did not meet the test for new evidence. The Attorney
General argues that the Appeal Division then erred by considering this ground
of appeal when it dealt with the appeal on the merits and that, in any event,
this finding rendered the appeal to the Appeal Division moot.
[14]
The Appeal Division interpreted subsection 58(2)
of the Act to permit it to consider all of the grounds raised because the order
granting leave was not specifically restricted to the grounds that were found
to have a reasonable chance of success. The decision simply stated that “[l]eave to appeal to the Appeal Division of the Social
Security Tribunal is granted.”
[15]
In oral argument the Attorney General relied
upon subsection 58(2) of the Act to argue that the Appeal Division was required
to deny leave on any ground it found to be without merit. However, subsection
58(2) provides that leave to appeal “is refused if the
Appeal Division is satisfied that the appeal has no reasonable chance of
success.” The provision does not require that individual grounds of
appeal be dismissed. Indeed, individual grounds may be so inter-related that it
is impracticable to parse the grounds so that an arguable ground of appeal may
suffice to justify granting leave.
[16]
The Attorney General has not shown the Appeal
Division’s interpretation of its home statute to be unreasonable. In my view
the interpretation falls within the range of possible, acceptable outcomes
defensible in both fact and law.
[17]
This said, I agree that it is unusual for a
decision-maker to grant leave to appeal a legal point, in this case whether the
application to reopen on the ground of new evidence was statute-barred, in
circumstances where the decision-maker was satisfied that there was no merit in
the facts that give rise to the legal point. The finding on the leave
application that there was no merit in the argument that the General Division
erred in finding that the applicant had not presented new facts doomed the
appeal to fail. The legal argument that the application to reopen on the basis
of new facts was not time-barred had no merit because it was not supported by
an evidentiary foundation.
[18]
For these reasons, I would dismiss the application
for judicial review. As the respondent does not seek costs I would not award costs.
“Eleanor R. Dawson”
“I agree
D.G. Near J.A.”
“I agree
Judith M. Woods
J.A.”
Email this Content