Halifax, Nova Scotia, June 7, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
and
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1] This is an appeal of a decision of the Pensions Appeal Board (PAB) denying the Minister’s application for leave to appeal a Review Tribunal decision. The PAB held that it did not have jurisdiction to grant leave because the issues in question were themselves jurisdictional and could only be considered by the Federal Court.
[2] This judicial review suffered from the absence of counsel for the Respondent. The issues before the Court were legal and technical, yet Mrs. Deschamp appeared on her own accompanied by her husband. The Court was advised that Mrs. Deschamp could not obtain legal aid and that other avenues of legal representation, particularly Dalhousie Legal Clinic, were unavailable to her because her file had been closed out. The Court and the Respondent have been left in the unenviable position of having no meaningful submissions regarding the legal issues from the Respondent. It is unfortunate, at the very least, that in a country which is justifiably proud of its legal system, legal representation was not available to Mrs. Deschamp.
II. BACKGROUND
[3] Mrs. Deschamp had two previous applications for CPP disability benefits denied. In 1993 the Minister denied her initial application as well as her request for reconsideration. Both a Review Tribunal and the PAB dismissed her appeal. Again, in 1997, the Minister denied both the initial and reconsideration applications (1997 decision). A Review Tribunal denied her appeal and there was no proceeding before the PAB.
[4] In respect of each application, the Respondent was unable to establish that disability arose within the qualifying period covered by her contributions.
[5] Again, in January 2000, Mrs. Deschamp applied for pension benefits. The Minister denied her application because she did not meet the contributory requirements. That decision was confirmed by the Minister on reconsideration.
[6] The Respondent appealed this latest decision to a Review Tribunal pursuant to s. 82(1) of the Canada Pension Plan Act (Act) which deals with the Minister’s 2000 decision. It was the Minister’s position that the Review Tribunal was bound by the Review Tribunal’s second decision, both as a matter of statute, s. 84(1) provides that a decision is final and binding, as well as under the doctrine of res judicata.
[7] The Review Tribunal held a hearing on this third application. The Review Tribunal, without notice to the parties, concluded that there were new facts under s. 84(2) with respect to the previous second application in 1997 which a Review Tribunal had dismissed. The latest Review Tribunal then went on to review the 1997 decision and found that the Applicant was disabled (a) from the time of her first PAB hearing to the end of her qualifying period at the end of 1996 and (b) she was also disabled as of October 1998 for purposes of her third application.
[8] By way of general comment on CPP procedures, a claimant for benefits applies firstly to the Minister and may, where benefits are denied, ask for a reconsideration. An unsuccessful party may appeal the Minister’s decision pursuant to s. 82(1) which reads:
[9] By virtue of s. 83(1) of the Act, an unsuccessful party at the Review Tribunal stage may apply to a single member of the PAB for leave to appeal the decision to the PAB. This provision covers not only s. 82(1) appeals but also requests for a new decision based on new facts pursuant to s. 84(2). (emphasis added)
[10] A Review Tribunal and the PAB have authority to deal with questions of law and fact in respect of benefit entitlements and quantum thereof under s. 84(1). The Review Tribunal, the PAB and even the Minister have power under s. 84(2) to rescind or amend a decision on the grounds of new facts.
[11] The Minister sought leave to appeal to the PAB from the Review Tribunal’s decision reopening the Respondent’s claims. The Minister challenged the Review Tribunal’s decision on three grounds; (1) the failure to give notice of and the intention to, and the determination to, expand a s. 82(1) appeal in regard to the third application into a reconsideration under s. 84(2) of the 1997 decision in respect of the second application; (2) the PAB and the parties were bound by the 1997 decision as a matter of statute (s. 84(1)) and the principle of res judicata; and (3) there were no new facts such as to fall within s. 84(2) in any event.
[12] The single member of the PAB concluded that the Minister’s position was that the Review Tribunal erred in conducting a reconsideration hearing in the absence of a specific request by the Respondent and that it erred in finding new facts. The PAB held that these were jurisdictional issues that only the Federal Court could consider. Therefore, leave was denied.
III. ANALYSIS
[13] It is important to bear in mind that what was before the PAB was a request for leave not a determination of the legal or factual merits of the appeal. Generally leave is granted where there is some threshold of “reasonable arguability”; that the applicant for leave raises an arguable case (see Callihoo v. Canada (Attorney General), [2000] F.C.J. No. 612 (QL)). One would have thought that on this minimum threshold, the jurisdictional issues would have met that criterion. The PAB erred in not restricting the inquiry to this limited scope, apparently under the view that it was precluded from granting leave because it had no jurisdiction.
[14] With the greatest respect to the PAB member, it is my conclusion that the decision is not consistent with the current state of the law as to the PAB’s jurisdiction.
[15] The issues before the Court are issues of law since they are questions of jurisdiction. This Court is not required to make any factual finding. As such, the standard of review is correctness.
[16] It is noteworthy that in the cases cited in the decision upon which the PAB comment, reference to the recent decision is Adamo v. Canada (Minister of Human Resources Development), 2006 FCA 156, is missing. In the Adamo case, the Federal Court of Appeal determined that a Review Tribunal could transform an s. 82(1) appeal into a s. 84(2) proceeding to rescind a decision even though an applicant had not requested such relief. However, this jurisdiction to proceed under s. 84(2) was subject not only to the “new facts” criterion stipulated in the provision but to the requirement of proper advance notice that this is the manner in which the Review Tribunal intends to proceed.
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.
[17] The Minister specifically put the procedural issues in play in its leave application. The issues in Adamo also included that of res judicata, an issue on which leave to the PAB was also granted. Therefore the issues raised by the Minister were issues to be determined by the PAB.
[18] The PAB’s decision was focused particularly on the issue of whether the finding of “new facts” was a matter over which the PAB could have jurisdiction.
[19] In Oliveira v. Canada (Minister of Human Resources Development), [2004] F.C.J. No. 588 (C.A.) (QL), the Court found that where there is a determination that there are no new facts, the PAB has no jurisdiction because there was no “decision” that could be the subject of a s. 83(1) appeal. Therefore, the only avenue of relief is the Federal Court.
[20] In Kent v. Canada (Attorney General), 2004 FCA 420, Justice Sharlow recognized the reality of what occurs in the case of a finding of “new facts” – that there is a decision on the merits which the PAB can deal with. Justice Sharlow recognized that, to be consistent with Oliveira, judicial review in the Federal Court might be available where there is a finding of “new facts” but that the Court might decline to hear the matter due to the availability of an alternate remedy before the PAB.
30. Theoretically, the Minister could have commenced a separate proceeding, an application for judicial review in the Federal Court, to challenge the determination of the Review Tribunal that there were new facts. However, as the Review Tribunal went on to determine Ms. Kent's claim on the merits, the Federal Court might well have declined jurisdiction because the right of the Minister to seek leave to appeal the decision on the merits to the Pension Appeals Board would be an adequate alternative remedy: Fast v. Canada (Minister of Citizenship and Immigration) (2001), 288 N.R. 8, (2001) 41 Admin. L.R. (3d) 200 (F.C.A.); Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. If the Review Tribunal was wrong to find that Ms. Kent is entitled to a disability pension, it does not matter whether they did so on the basis of new facts. But if the Review Tribunal was correct in finding that Ms. Kent is entitled to a disability pension, it would seem unreasonable to deprive Ms. Kent of that entitlement on the rather narrow technical ground that the Review Tribunal should not have admitted the new facts that, in the result, established her entitlement.
[21] Therefore, the Court of Appeal has recognized the jurisdiction of the PAB in circumstance of a positive “new fact” finding – which is the circumstances in this case.
[22] Therefore, the PAB had jurisdiction over this issue as it did over the other grounds raised by the Minister.
IV. CONCLUSION
[23] For these reasons, the PAB erred when it declined to exercise jurisdiction to grant leave.
[24] The PAB decision will be quashed, and the matter of leave remitted to a new member of the PAB for decision. This judicial review is granted without costs, as suggested by the Minister’s counsel. The Minister’s counsel also acknowledged that if the Court found in the Minister’s favour, Mrs. Deschamp still had the right under s. 84(2) to make a separate application to rescind the 1997 decision.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the PAB decision is quashed, and the matter of leave remitted to a new member of the PAB for decision. This application for judicial review is granted without costs.
“Michael L. Phelan”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1889-06
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v SONIA DESCHAMP
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
REASONS FOR JUDGMENT OF THE COURT BY: Phelan J.
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada |
FOR THE APPLICANT
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On her own behalf |
FOR THE RESPONDENT
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