Docket: A-138-16
Citation:
2017 FCA 59
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CORAM:
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NOËL C.J.
WEBB J.A.
WOODS J.A.
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BETWEEN:
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NAM CHAU TANG
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
WOODS J.A.
[1]
In this application, Nam Chau Tang seeks
judicial review of a decision of the Social Security Tribunal – Appeal Division
(Appeal Division) issued on February 29, 2016.
[2]
At the hearing, the Court raised a preliminary
matter concerning the style of cause in the application which named the Appeal Division
as the respondent. The appropriate respondent in an application such as this is
the Attorney General of Canada, and the Court accordingly ordered that the
style of cause be amended to reflect this. The relevant provisions in Rule 303
of the Federal Courts Rules, SOR/98-106 are reproduced below:
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Respondents
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Défendeurs
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303 (1) Subject to
subsection (2), an applicant shall name as a respondent every person
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303 (1) Sous réserve du paragraphe (2), le
demandeur désigne à titre de défendeur :
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(a) directly affected by the order sought in the application,
other than a tribunal in respect of which the application is brought; or
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a) toute
personne directement touchée par l’ordonnance recherchée, autre que l’office
fédéral visé par la demande;
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…
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[…]
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Application
for judicial review
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Défendeurs — demande de contrôle judiciaire
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(2) Where in an application for
judicial review there are no persons that can be named under subsection (1),
the applicant shall name the Attorney General of Canada as a respondent.
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(2) Dans une demande de contrôle
judiciaire, si aucun défendeur n’est désigné en application du paragraphe
(1), le demandeur désigne le procureur général du Canada à ce titre.
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…
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[…]
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[3]
Turning to the main issue, on December 14, 2010
Mr. Tang applied for disability benefits under the Canada Pension Plan,
R.S.C. 1985, c-8. The benefits were denied, and the matter came before the
Review Tribunal which decided that Mr. Tang did not qualify because he had not
established that he had a “severe and prolonged
disability” at the minimum qualifying period.
[4]
Mr. Tang sought leave to appeal this decision to
the Appeal Division. In a decision dated April 28, 2014, the leave application
was denied on the basis that the appeal had no reasonable chance of success. In
particular, the Appeal Division concluded that Mr. Tang had failed to
adequately raise any relevant grounds of appeal. The grounds of appeal are set
out in subsection 58(1) of the Department of Employment and Social
Development Act, S.C. 2005, c. 34 (Act), except that the reference to the
General Division is considered to be a reference to the Review Tribunal in
these circumstances. The provision is reproduced below.
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Grounds of appeal
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Moyens d’appel
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58 (1) The only grounds of
appeal are that
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58 (1) Les seuls moyens d’appel sont les
suivants :
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(a) the General Division failed to observe a principle of
natural justice or otherwise acted beyond or refused to exercise its
jurisdiction;
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a) la
division générale n’a pas observé un principe de justice naturelle ou a
autrement excédé ou refusé d’exercer sa compétence;
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(b) the General Division erred in law in making its decision,
whether or not the error appears on the face of the record; or
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b) elle
a rendu une décision entachée d’une erreur de droit, que l’erreur ressorte ou
non à la lecture du dossier;
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(c) the General Division based its decision on an erroneous
finding of fact that it made in a perverse or capricious manner or without
regard for the material before it.
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c) elle
a fondé sa décision sur une conclusion de fait erronée, tirée de façon
abusive ou arbitraire ou sans tenir compte des éléments portés à sa
connaissance.
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…
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[…]
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[5]
On July 9, 2015, Mr. Tang applied to the Appeal Division
to have the leave decision rescinded or amended. This procedure, which is
provided for in section 66 of the Act, requires that the applicant provide a new
material fact. The relevant provisions are set out below:
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Amendment of
decision
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Modification de la décision
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66 (1) The Tribunal may rescind or amend a decision given by it in
respect of any particular application if
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66 (1) Le Tribunal peut annuler ou modifier toute décision qu’il a
rendue relativement à une demande particulière :
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…
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[…]
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(b) in any other case, a
new material fact is presented that could not have been discovered at the
time of the hearing with the exercise of reasonable diligence.
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b) dans les autres cas, si des faits
nouveaux et essentiels qui, au moment de l’audience, ne pouvaient être connus
malgré l’exercice d’une diligence raisonnable lui sont présentés.
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Time limit
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Délai
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(2) An application to rescind or amend a decision must be made
within one year after the day on which a decision is communicated to the
appellant.
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(2) La
demande d’annulation ou de modification doit être présentée au plus tard un
an après la date où l’appelant reçoit communication de la décision.
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…
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[…]
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[6]
The Appeal Division dismissed the rescission or
amendment application in a decision dated February 29, 2016. This is the
subject of this application for judicial review.
[7]
In order for this Court to allow the
application, the Appeal Division must have made a reviewable error in refusing
to rescind or amend the earlier leave decision. I am of the view that there is
no such reviewable error.
[8]
The Appeal Division rejected the application for
rescission or amendment, in part, because Mr. Tang did not submit the
application within the one year required time period provided for in subsection
66(2) of the Act. The Appeal Division found that Mr. Tang submitted his
application more than two months late. This conclusion was reasonable and it
did not give rise to a reviewable error.
[9]
The Appeal Division also rejected the
application on the basis that Mr. Tang had not satisfied the requirement to provide
a new material fact as required by paragraph 66(1)(b) of the Act. There
is also no reviewable error in this conclusion because it was a reasonable
conclusion to make. In particular, the Appeal Division noted that Mr. Tang had
provided new opinions which were prepared long after December 31, 2010, which
was the minimum qualifying period. It was reasonable for the Appeal Division to
conclude that a new material fact had not been provided.
[10]
In essence, Mr. Tang is seeking a determination
of the severity of his disability as it currently exists rather than as it
existed at the minimum qualifying period. This is not a proper basis to appeal
the denial of disability benefits which were applied for in 2010.
[11]
For these reasons, I would dismiss the
application for judicial review. The respondent has not sought costs and none
will be ordered.
“Judith M. Woods”
“I agree
Marc Noël Chief
Justice”
“I agree
Wyman W. Webb
J.A.
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