Ottawa, Ontario, November 9, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
and
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Minister of Human Resources Development (the "Applicant") seeks judicial review of the decision made by a member of the Pension Appeals Board designated pursuant to subsection 83(2.1) of the Canada Pension Plan Act, R.S.C. 1985, c. C-8, as amended (the "Act"), on October 22, 2004. In this decision, they granted Mr. de Tommaso (the "Respondent") leave to appeal from a decision of a Review Tribunal approximately seven years after the time limited for bringing an appeal had elapsed.
BACKGROUND
[2] The Applicant is responsible for the administration of pensions and supplementary benefits under the Act. One of the purposes of the Plan is to provide a disability pension to qualified persons.
[3] The Respondent suffered a work-related injury on March 11, 1994. He applied for a disability pension under the Plan by submitting an application on or about September 14, 1994. This application was rejected by letter dated February 26, 1996. In that letter, the Respondent was advised that he was not being granted disability benefits because he did not meet the requirements of the Plan. He was also informed that he could appeal this negative decision.
[4] The Respondent availed of the opportunity to appeal the initial rejection of his claim. A hearing took place before the Review Tribunal on November 18, 1996. In its reasons for decision, delivered on February 17, 1997, the Review Tribunal dismissed the appeal, on the following basis:
The Tribunal determined that the Appellant had not presented sufficient, objective, reliable medical evidence to substantiate the Appellant's disability was "severe and prolonged" within the meaning of the Canada Pension Plan.
[5] The Respondent was sent a copy of the negative decision of the Review Tribunal under cover of a letter dated February 17, 1997. In that letter, the Respondent was advised that he could seek permission to appeal. The letter provides, in part, as follows:
Attached is the decision rendered on your appeal to a Review Tribunal from the decision of the Minister of Employment and Immigration dated February 26, 1996.
Following the hearing held at North York, Ontario on November 18, 1996, the Review Tribunal has dismissed your appeal. The Review Tribunal's decision and the reasons are attached.
A party to this appeal who is dissatisfied with the decision of a Review Tribunal may, within ninety days after the day on which that decision is communicated to him/her or within such longer period as the Chairman or Vice-Chairman of the Pension Appeals Board may either before or after the expiration of those ninety days allow, apply in writing to the Chairman or Vice-Chairman for leave to appeal that decision to the Pension Appeals Board. An application for Leave to Appeal must be made in writing and addressed to:
The Registrar
Pension Appeals Board
P.O. Box 8567
Postal Terminal
Ottawa, Ontario
K1G 3H9
Attached, for your information, is a copy of the Pension Appeals Board Rules and Procedures. Your attention is drawn to Rule 4 in particular.
[6] The Respondent did not do anything until the summer of 2004. By letter dated July 22, 2004, Ms. Maria Priolo of Calcagno Consultants wrote to the Senior Registrar, Pension Appeals Board. Her letter provides as follows:
We are writing on behalf of the above client requesting permission to submit a late leave to Appeal Application to the decision from the Review Tribunal dated February 18th, 1997.
The reason for this delay is that Mr. DeTommaso's former representative had closed office. He did not know where to turn to and subsequently his depression deteriorated that he could not manage his affairs.
We would appreciate you reviewing our request in allowing us to submit a late Leave to Appeal Application to the decision from the Review Tribunal dated February 18th, 1003.
Should you have any further queries or concerns, please do not hesitate to contact our office.
Thank you for your attention to this matter.
[7] Ms. Priolo sent another letter, dated September 20, 2004 which purported to give some additional details about the Respondent's desire to appeal and his ongoing physical condition. The letter reads as follows:
We are writing on behalf of the above client with regards to the denial of the Canada Pension Plan disability at the Review Tribunal held on November 18th, 1996 at Toronto, Ontario.
Both my client and I disagree with the Review Tribunal's decision of February 18th, 1997. We contend that there is more than sufficient objective medical evidence on file which supports that Mr. DeTommaso was disabled from December 1998.
We believe the Review Tribunal failed to properly consider the medical documentation on file. The documentation on file and medicals from his doctors provide ample, objective and reliable findings to substantiate his claim for entitlement to the CPP disability benefits.
Dr. Ratnanather in his report dated March 5th, 2004, outlines Mr. DeTommaso's condition in 1998. Dr. Ratnanather does state his GAF to be "40% or less...and his lack of concentration and poor attention span, resulting from his total preoccupation with his physical symptoms, would posed [sic] a danger to himself and others in a work environment". This report in itself is sufficient to demonstrate the severity of Mr. DeTommaso's mental condition.
With regards to Mr. DeTommaso's physical side, he has had ongoing issues. Attached you will find the following medical reports:
- Ultrasound both shoulders, dated November 22nd, 2001,
- MRI of the cervical spine, dated July 27th, 2002,
- Dr. Schacter, dated October 2nd, 2002,
- Dr. Prutis, dated February 20th, 2003,
- Dr. Prutis, dated May 29th, 2003,
- Dr. Prutis, dated March 18th, 2004.
These additional medical reports give support to Mr. DeTommaso's claim for disability benefits.
Please accept this letter as our application for leave to appeal. Further medical reports will be submitted as soon as they are made available.
Should you have any further queries or concerns, please contact me.
[8] Ultimately, the request for an extension of time to appeal from the decision of the Review Tribunal was submitted to a member of the Pension Appeal Board. The Applicant was not advised of the Respondent's request nor was he provided the opportunity to make submissions. By letter dated October 29, 2004, the Respondent was advised that the time for seeking leave to appeal had been extended and also, that leave to appeal had been granted. The letter provides, in part, as follows:
Further to our letter of September 29, this is to inform you that a member of this Board has considered your Application for Leave to Appeal and pursuant to Rule 5 of the Rules of Procedure, the time within which to appeal has been extended until October 22, 2004, and on the same day, this member granted you leave to appeal. You have now appealed the Review Tribunal's decision. A copy of the Notice of Appeal is being sent to the Minister of Social Development. When this Board receives a Reply from the Minister, you will be sent a copy.
[9] This letter was also sent to the Applicant. This application for judicial review was filed by the Applicant on or about November 30, 2004. The Applicant seeks an order setting aside the decision of the designated member and referring the Respondent's request for an extension of time and for leave to appeal back to a different member.
DISCUSSION AND DISPOSITION
[10] The ability to appeal from a decision of a Review Tribunal is governed by section 83 of the Act. Sub-section 83(1) is relevant and provides as follows:
| 83. (1) A party or, subject to the regulations, any person on behalf thereof, or the Minister, if dissatisfied with a decision of a Review Tribunal made under section 82, other than a decision made in respect of an appeal referred to in subsection 28(1) of the Old Age Security Act, or under subsection 84(2), may, within ninety days after the day on which that decision was communicated to the party or Minister, or within such longer period as the Chairman or Vice-Chairman of the Pension Appeals Board may either before or after the expiration of those ninety days allow, apply in writing to the Chairman or Vice-Chairman for leave to appeal that decision to the Pension Appeals Board. |
|
83. (1) La personne qui se croit lésée par une décision du tribunal de révision rendue en application de l'article 82 - autre qu'une décision portant sur l'appel prévu au paragraphe 28(1) de la Loi sur la sécurité de la vieillesse - ou du paragraphe 84(2), ou, sous réserve des règlements, quiconque de sa part, de même que le ministre, peuvent présenter, soit dans les quatre-vingt-dix jours suivant le jour où la décision du tribunal de révision est transmise à la personne ou au ministre, soit dans tel délai plus long qu'autorise le président ou le vice-président de la Commission d'appel des pensions avant ou après l'expiration de ces quatre-vingt-dix jours, une demande écrite au président ou au vice-président de la Commission d'appel des pensions, afin d'obtenir la permission d'interjeter un appel de la décision du tribunal de révision auprès de la Commission. |
[11] The Pension Appeals Board Rules of Procedure (Benefits), C.R. c. 1978, c. 390, as amended are also relevant. Rules 4, 5 and 7 provide as follows:
| 4. An appeal from a decision of a Review Tribunal shall be commenced by serving on the Chairman or Vice-Chairman an application for leave to appeal, which shall be substantially in the form set out in Schedule I and shall contain (a) the date of the decision of the Review Tribunal, the name of the place at which the decision was rendered and the date on which the decision was communicated to the appellant; (b) the full name and postal address of the appellant; (c) the name of an agent or representative, if any, on whom service of documents may be made, and his full postal address; (d) the grounds upon which the appellant relies to obtain leave to appeal; and (e) a statement of the allegations of fact, including any reference to the statutory provisions and constitutional provisions, reasons the appellant intends to submit and documentary evidence the appellant intends to rely on in support of the appeal. SOR/92-18, s. 2; SOR/96-524, s. 2. 5. An application for an extension of time within which to apply for leave to appeal a decision of a Review Tribunal shall be served on the Chairman or Vice-Chairman and shall set out the information required by paragraphs 4(a) to (e) and the grounds on which the extension is sought. ... 7. An application under section 4 or 5 shall be disposed of ex parte, unless the Chairman or Vice-Chairman otherwise directs. |
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4. L'appel de la décision d'un tribunal de révision est interjeté par la signification au président ou au vice-président d'une demande d'autorisation d'interjeter appel, conforme en substance à l'annexe I, qui indique : a) la date de la décision du tribunal de révision, le nom de l'endroit où cette décision a été rendue et la date à laquelle la décision a été transmise à l'appelant; b) les nom et prénoms ainsi que l'adresse postale complète de l'appelant; c) le cas échéant, le nom et l'adresse postale complète d'un mandataire ou d'un représentant auquel des documents peuvent être signifiés; d) les motifs invoqués pour obtenir l'autorisation d'interjeter appel; et e) un exposé des faits allégués, y compris tout renvoi aux dispositions législatives et constitutionnelles, les motifs que l'appelant entend invoquer ainsi que les preuves documentaires qu'il entend présenter à l'appui de l'appel. 5. La demande de prorogation du délai imparti pour demander l'autorisation d'interjeter appel de la décision d'un tribunal de révision est signifiée au président ou au vice-président et contient les renseignements visés aux alinéas 4a) à e) et un exposé des motifs sur lesquels elle est fondée. ... 7. Il est statué ex parte sur les demandes visées aux articles 4 ou 5, à moins que le président ou le vice-président n'en décide autrement. |
[12] The principal argument advanced by the Applicant is that the designated member failed to apply the appropriate test in deciding against the extension of time sought by the Respondent to present his application for leave to appeal more than seven years after the time for doing so had expired.
[13] According to the Act, an application for leave to appeal is to be made ninety days after a decision has been made by the Review Tribunal. At the same time, subsection 83(1) of the Act allows for an application to be made, either before or after the expiration of the ninety-day period, for an extension of time.
[14] The Rules provide that in making an application for an extension of time, an applicant has to establish the following:
1. a continuing intention to pursue the appeal;
2. that the leave application disclose an arguable case for appeal;
3. that there is a reasonable explanation given for the delay;
4. and that there will be no resulting prejudice to the opposing party if the extension is allowed.
[15] These factors were recently considered by Justice Snider in Canada (Minister of Human Resources Development) and Gattellaro, [2005] F.C.J. No. 1106 and by Justice Dawson in Canada(Minister of Human Resources Development) and Roy, [2005] F.C. 1456.
[16] Having considered the record in the present case, the Applicant's application record and arguments, and the oral submissions made by the Respondent at the hearing since he did not file a responding application record, I conclude that this application should be allowed.
[17] There is no evidence that this Respondent had a continuing intention to pursue an appeal. On the contrary, there is evidence to suggest that he made another application for a disability pension which has not yet been decided.
[18] On the basis of the letters submitted on behalf of the Respondent in July and September 2004, and having regard to the dates of the medical reports referenced in the letter of September 24, 2004, I conclude that the Respondent has not shown that he has an arguable case in relation to the decision of the Review Tribunal that he seeks to appeal. The medical reports were prepared after the Review Tribunal made its decision.
[19] I am satisfied, as well, that the Respondent has not provided a reasonable explanation for the delay in seeking an extension of time to request leave to appeal.
[20] Finally, I agree with the Applicant that there will be prejudice if the extension of time and leave to appeal are granted. There has been a lengthy and significant passage of time since the Review Tribunal heard the initial case. The hearing before the Appeal Board would be a "new hearing" and the Applicant will be prejudiced if she has to proceed with such a hearing at this late date.
[21] For these reasons, the application will be granted and the decision of the designated member in granting an extension of time to seek leave to appeal and to appeal, is quashed. The matter is remitted for re-determination by a different member of the Board in accordance with these reasons. No costs were sought by the Applicant and none are awarded.
ORDER
The application for judicial review is granted and the decision of the designated member of the Pension Appeals Board, dated October 22, 2004 is quashed and the matter is remitted for re-determination by a different member of the Board in accordance with these reasons, no order as to costs.
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2165-04
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT
and
LIBERO DE TOMMASO
PLACE OF HEARING: Toronto, Ontario
PLACE OF HEARING: October 31, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Heneghan
DATED: November 9, 2005
APPEARANCES BY:
Adrian Joseph FOR THE APPLICANT
Libero de Tommaso RESPONDENT - ON HIS OWN BEHALF
SOLICITORS OF RECORD:
JOHN H. SIMS, Q.C.
Deputy Attorney General
of Canada FOR THE APPLICANT