Docket: 16-T-19
Citation:
2016 FC 878
Ottawa, Ontario, July 27, 2016
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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GORDON J.
MCCANN
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Applicant (Moving Party)
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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ORDER AND REASONS
[1]
The Applicant is seeking an extension of time to
file an application for judicial review of a decision of the Appeal Division of
the Social Security Tribunal of Canada [the Appeal Division], dated December
15, 2015. The decision denied the Applicant leave to appeal the decision of the
General Division of the said Tribunal [the General Division], dated May 28,
2015, in which his application for a Disability Pension [DP Application] under
the Canada Pension Plan, RSC, 1985 c C-8 [CPP] was refused.
[2]
The Appeal Division concluded that the
Applicant’s appeal of the decision of the General Division had no reasonable
chance of success. The General Division had previously found that the Applicant
had failed to establish, on a balance of probabilities, that he had a severe
and prolonged disability, within the meaning of the CPP, on or before December
31, 2011, which was his Minimum Qualifying Period for a Disability Pension. In
particular, the General Division found that the Applicant had work capacity at
that date and continued to work at substantially gainful employment until he
retired in January 2014.
[3]
The Applicant, who is representing
himself, attempted, with the assistance of the Member of Parliament of his home
constituency, to file his Notice of Application for Judicial Review of
the Appeal Division decision on January 25, 2016. Pursuant to a Direction
issued by the Court on February 1st, 2016, the said Notice of
Application was not accepted for filing on the ground that it was received
outside the 30-day period contemplated in section 18.1 of the Federal Courts
Act, RSC, 1985, c. F-7. On May 31, 2016, the Applicant filed his notice of
motion for extension of time. The Applicant blames the confusing wording of the
covering letter of the Appeal Division’s decision, the government’s mailing
procedure as well as the divergent information he received from staff of the
Canada Pension Plan directorate for missing the prescribed deadline.
[4]
As is well established, in order to succeed with
his motion for an extension of time, the Applicant must establish that (i) he
had a continuing intention to pursue the underlying judicial review proceeding;
(ii) his position in this proceeding has some merit; (iii) no prejudice to the
Respondent arises from the delay; and (iv) a reasonable explanation for the
delay exists (Canada (Attorney General) v Hennelly, 167 FTR 158, 89 ACWS
(3d) 376 [Hennelly]).
[5]
The Respondent contends that even if the Court
is satisfied that the Applicant has shown a continuous intention to pursue his
judicial review application, that there is a reasonable explanation for the
delay and that no prejudice would result to the Respondent if the
extension of time is granted, granting an extension of time in this case
would not serve the interests of justice since the Applicant’s underlying
judicial review application has no merit, and therefore, no chance of success.
[6]
The Respondent claims in this regard that
although it has been held that the underlying consideration for the
four-pronged test for extension of time is that justice be done between the
parties and that, as a result, an extension of time may be granted even if one
of the four factors of the test set out in Hennelly is not met, there is
jurisprudential support for refusing to allow an extension of time on the sole
basis of a lack of an arguable case (see: Maqsood v Canada (Attorney
General), 2011 FCA 309, at paras 12-14 [Maqsood]). However, the Respondent
recognizes that, ultimately, the weight to be assigned to each of the four
factors of the test will vary in each case, in accordance with a flexible and
contextual approach (Canada (Attorney General) v Blondahl, 2009
FC 118, at para 12, 362 FTR 1).
[7]
The relevant facts of this case can be
summarized as follows. The DP Application was submitted on November 10, 2011 when
the Applicant reached the age of 60. In the DP Application materials, the
Applicant indicated that he continued to work 8 hours per day, 5 days a week,
at a salary of $29.00 per hour. In January 2012, he began receiving early CPP
Retirement Benefits. On February 16, 2012, the DP Application was rejected by
the CPP directorate on the basis that the Applicant was found not to have a
disability that is both severe and prolonged as defined under the CPP since he
was still working in December 2011, which is the latest date he could be deemed
disabled as he began receiving early retirement benefits as of January 2012. Upon
reconsideration, this decision was confirmed on July 20, 2012.
[8]
In November 2012, the Applicant appealed the
rejection of his DP Application to the Office of the Commissioner of Review
Tribunal. His appeal, which was heard by the newly created General Division,
was dismissed on May 28, 2015. In response to a request for additional
information from the General Division, the Applicant had previously indicated
that his last working day was January 31, 2014. As indicated previously, the
General Division found that the Applicant could not be considered to be
disabled on the ground that he continued to work at a “substantially
gainful occupation” in 2012 and 2013, which is two years after the
latest date on which he could be found to have become disabled under CPP rules.
[9]
On July 28, 2015, the Applicant sought leave to
appeal the General Division decision to the Appeal Division. He claimed that the
General Division failed to address the prolonged nature of his disability and had
the General Division done so, it would have concluded that his disability was
also severe. He contended that his medical history showed that his disability
was prolonged and it could only be so if it was also severe. The Applicant
also submitted new medical records showing that his condition is changing for
the worst each and every day. Finally, the Applicant contended that by
improperly adjudicating the severe and prolonged aspects of his disability and
by not recognizing the seriousness of his medical issues, the General Division
failed to observe the principles of natural justice.
[10]
As indicated at the outset of these Reasons, the
Appeal Division rejected the Applicant’s Leave Application on the ground that
it had no reasonable chance of success. In particular, the Appeal Division
found that the General Division neither erred in law nor breached the
principles of natural justice by not considering the prolonged nature of the
disability since the test for disability is a two-part test. If
an applicant does not meet one aspect of the test, which requires that the
disability be both severe and prolonged, then he or she will not meet
the disability conditions under the CPP. It also found that it was not an
error on the part of the General Division not to recognize that the Applicant’s
disability is deteriorating over time as the General Division was required to
determine whether the Applicant could be found disabled by the minimum
qualifying period of December 31, 2011, making it therefore irrelevant to
determine whether the Applicant’s disability has since deteriorated.
[11]
The issue to be determined in this case is
whether the Applicant’s judicial review application against the Appeal Division
decision is bound to fail and whether, as a result, the requested extension of
time should, for that sole reason, be dismissed even if the Court otherwise accepts,
as the Respondent does, that the Applicant has shown a continuous intention to
pursue his judicial review proceeding, that there is a reasonable explanation
for the delay and that no prejudice would result to the Respondent if the
extension of time is granted.
[12]
According to section 58 of the Department of
Employment and Social Development Act, SC 2005, c 34, leave to appeal decisions
from the General Division may only be granted where an appellant satisfies the
Appeal Division that his or her appeal has a “reasonable
chance of success” on one of the three grounds of appeal identified in
that provision, that is: (i) a breach of natural justice; (ii) an error of law;
or (iii) an erroneous finding of fact made in a perverse and capricious manner
or without regard for the material before it (see also: Canada (Attorney
General) v O’Keefe, 2016 FC 503, at paras 36-37 [O’Keefe]; Belo-Alves
v Canada (Attorney General), 2014 FC 1100, at paras 71-73).
[13]
This provision of the Department of
Employment and Social Development Act, as well as the provisions of the CPP
to which I will refer later in these Reasons, are reproduced in the Annex to
this Order.
[14]
Decisions of the Appeal Division to grant or
deny leave to appeal are in turn reviewable by this Court against the standard
of reasonableness (O’Keefe, at para 17). This means that such decisions
are owed substantial deference and the Court will only interfere with them if
they fall outside the range of possible, acceptable outcomes in respect of the
law and the facts (Dunsmuir v New Brunswick, 2008 SCC 9, at para 47,
[2008] 1 S.C.R. 190[Dunsmuir]).
[15]
Therefore, in order to conclude that the
Applicant’s underlying judicial review proceeding raises an arguable case, I
must be satisfied that there is some merit in claiming that the Appeal Division
decision denying leave to appeal the General Division decision is
unreasonable. Unfortunately for the Applicant, I am not satisfied, for the
following reasons, that this is the case.
[16]
First, apart from simply stating that he
disagrees with the Respondent’s submissions that his underlying judicial review
application has no chance of succeeding and that he wishes to continue and
prove his case, the Applicant has not put forward any grounds that suggest that
the said application is well-founded and warrants the intervention of this
Court. A review of the Applicant’s motion material shows that he applied
himself at providing a reasonable explanation for the delay in filing his
judicial review application and in establishing a continued intention of pursuing
this proceeding. However, there is nothing in this material addressing what is
wrong with the decision rendered by the Appeal Division. This, in and
of itself, would be sufficient to conclude that the Applicant has failed to
establish, as a condition for granting the extension of time he is seeking,
that his case has some merit (Laurendeau v Canada (Attorney General),
2003 FCA 445, at para 4; Dompierre v Daubois – Company, 2010 FCA 10, at
para 3).
[17]
Second, upon review of the entire record before
me, I am in any event satisfied that the Applicant’s underlying judicial review
application has no chance of succeeding on the merits. Under subsection
42(2)(a) of the CPP, “Disability” is defined as
a physical or mental disability that is “severe”
(i.e. the person in respect of whom the determination is made “is incapable regularly of pursuing any substantially gainful
occupation”) and “prolonged” (i.e. the
disability “is likely to be long continued and of
indefinite duration or is likely to result in death”). Accordingly, in
order to be admissible to a Disability Pension under the CPP, the Applicant had
to establish that he suffered from a disability that was both “severe” and “prolonged”
within the meaning of subsection 42(2)(a) on or prior to December 31, 2011.
[18]
Why on or prior to that date? Because, according
to subsections 44(1) and 66.1(1) of the CPP, a person in receipt of a
Retirement Pension, as was the case of the Applicant as of January 2012, is not
entitled to a Disability Pension and in order for that person to cancel a
Retirement Pension in favour of a Disability Pension, he or she must be deemed
to be disabled before the month in which the Retirement Pension became payable.
This time period is also referred to as the Minimum Qualifying Period. In the
present case, that period was December 2011.
[19]
The undisputed evidence before the General
Division and before the Appeal Division is that on or prior to December 31,
2011, the Applicant was working 40 hours a week at a pay rate of $29 per hour
and that he continued to work in 2012 and 2013 where he recorded the maximum
Unadjusted Pensionable Earnings for these two years, being $50,100 and $51,100
respectively, before retiring in January 2014. Although the General Division
recognized that the Applicant benefited from a number of occupational
accommodations due to his physical limitations (according to the record, the
Applicant suffers from knee replacements’ related debilitating pain as well as
arthritis in both ankles and hands and had to battle prostate cancer), it
found, based on that evidence, that the Applicant’s disability, as of December
31, 2011, was not “severe” within the meaning of
paragraph 42(2)(a) of the CPP since the Applicant was engaged, then and for the
next two years, in substantially gainful employment.
[20]
The Appeal Division saw no reason to interfere
with this finding and I see nothing arguably unreasonable with that decision as
the arguments that formed the basis of the Leave Application submitted by the
Applicant before the Appeal Division are unsustainable both in law and in fact.
[21]
On one hand, a person is entitled to a
Disability Pension under the CPP if that person’s disability is deemed to be
both “severe” and “prolonged.”
Although related, these are two distinct features of the concept of “disability,” as defined by the CPP. A disability may
be “severe” but temporary, which will not
trigger the right to a Disability Pension. Conversely, a disability may be “prolonged” but not “severe”
if the person in respect of whom the determination is made is otherwise,
despite his or her limitations, regularly capable of pursuing any substantial
gainful occupation, which, again, will not trigger the right to a Disability
Pension.
[22]
As noted by the Appeal Division, the Federal
Court of Appeal, in Klabouch v Canada (Social Development), 2008 FCA 33
[Klabouch], held that these two features of the CPP’s definition of “disability” are cumulative, “so
that if an applicant does not meet one or the other [condition], his
application for a disability pension under the [CPP] fails” (Klabouch,
at para 10). As a result, the fact of concentrating on one feature of the test
and of not making any findings regarding the other, as did the General Division
in the present case, does not constitute an error (Klabouch, at para
10). Therefore, the Applicant’s argument that the Appeal Division should have
granted leave on the basis of the failure of the General Division to consider
the “prolonged” part of the disability test,
since evidence of a “prolonged” disability is
necessarily evidence of a “severe” disability,
is bound to fail. As a result, I am satisfied that the Appeal Division’s
finding that this argument had no reasonable chance of success raises no
arguable issue on judicial review as it has no merit in respect of the law and
the facts.
[23]
On the other hand, there is no arguable error
either in respect of the General Division’s finding that the Applicant’s
disability is not “severe” given that the
Applicant was engaged, at the Minimum Qualifying Period of December 2011 and in
the subsequent two years, in substantially gainful employment. In Atkinson
v Canada (Attorney General), 2014 FCA 187 [Atkinson], the Federal
Court of Appeal reminded that in order to constitute a severe disability within
the meaning of paragraph 42(2)(a) of the CPP, an individual needs to regularly
be incapable of pursuing a substantial gainful occupation, which requires the
individual to be “incapable of pursuing with consistent
frequency any truly remunerative occupation” (Atkinson, at para
37). In that case, earnings of $43,000 to $45,000 between 2009 and 2012 were
considered “substantially gainful occupation”,
which prevented the appellant, Ms Atkinson, to be considered disabled under the
CPP despite her “significant physical limitations”
(Atkinson, at para 3-4). Here, I agree with the Respondent that the
Applicant’s earnings in 2011, 2012 and 2013 belie any argument that he became
disabled on or prior to December 2011. In other words, it was reasonably open
to the Appeal Division to choose not to interfere with this finding of the
General Division. Therefore, I am satisfied that this aspect of the Appeal
Division’s decision raises no arguable issue on judicial review as, again, it
has no merit in respect of the law and the facts.
[24]
Finally, the Applicant insisted in his Leave
Application before the Appeal Division that there is evidence that his
condition has been deteriorating each and every day since he first applied for
a Disability Pension. This may be so. However, and how unfortunate that is, I
find that it was reasonably open to the Appeal Division to find that this
evidence is not relevant to what the General Division was required to
determine, which is whether the Applicant could be found disabled, within the
meaning of the CPP, by his Minimum Qualifying Period of December 31, 2011. In
fact, I find that this was the only conclusion the Appeal Division could draw
in the present circumstances since the Applicant’s physical and mental
condition, on or before that date, were the only considerations the General
Division was required to take into account for the purposes of the DP
Application. Again, the Appeal Division decision on that point does not raise,
in my view, an arguable issue on judicial review.
[25]
Although I am sympathetic to the Applicant’s
situation, I find, as did the Federal Court of Appeal in Maqsood, that
despite being satisfied that there is a reasonable explanation for the delay in
filing the judicial review application, that the Applicant has shown a
continued intention to pursue it and that the Respondent would not suffer
prejudice from that delay, this is a case where an extension of time is not
warranted as there is no basis upon which the said application might succeed.
For me, this is the overriding Hennelly factor in the circumstances of
this case.
[26]
I am fully aware that the Applicant is
representing himself and that this may have affected the way his arguments were
articulated throughout this process, including in the present proceedings.
However, the law is the same for all and does not vary depending on whether a
litigant chooses to be represented or to represent himself or herself (Kalevar
v Liberal Party of Canada, 2001 FCT 1261, 110 ACWS (3d) 236, at
para 24; Cortirta v Missinnipi Airways, 2012 FC 1262, at
para 13, aff’d 2013 FCA 280). The Applicant had a test to meet and,
unfortunately for him, he failed on the most important factor, that of the
merit of his claim against the decision of the Appeal Decision. His motion for
an extension of time will therefore be dismissed.
[27]
Lastly, on a technical note, the Respondent claims
that the style of cause shall be amended to substitute the Attorney General of
Canada as Respondent. The Applicant, in materials he filed with the Court on
July 18, 2016, in the form of a motion record, seeks the same amendment as he
recognizes that “Canada Disability Pension” is
not a proper way to name the respondent in this case. The style of cause will
be changed accordingly.
[28]
The Respondent is not seeking costs. None will
be awarded.
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