Date: 20020122
Docket: A-818-00
Neutral citation: 2002 FCA 31
MALONE J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Appellant
and
NORMAN RAFUSE
Respondent
Heard at Montreal, Quebec, January 22, 2002.
Judgment delivered from the Bench at Montreal, Quebec, on January 22, 2002.
REASONS FOR JUDGMENT OF THE COURT: EVANS J.A.
Date: 20020122
Docket: A-818-00
Neutral citation: 2002 FCA 31
CORAM: STONE J.A.
EVANS J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Appellant
and
NORMAN RAFUSE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montreal, Quebec,
on January 22, 2002.)
A. INTRODUCTION
[1] This is an appeal by the Minister of Human Resources Development from an order of a Judge of the Trial Division, dated December 5, 2000, in which she allowed an application for judicial review of a decision by a single member of the Pension Appeals Board refusing to grant leave to Norman Rafuse to appeal a decision of the Review Tribunal.
[2] The issue to be decided on this appeal is whether the Judge erred in law when she not only set aside the Tribunal's decision, but also granted Mr. Rafuse leave to appeal to the Board. While not disputing that the member erred in granting leave to appeal, the Minister submits that, in granting leave, the Judge purported to exercise a power not conferred on the Federal Court on an application for judicial review and thereby, in effect, usurped the fact-finding function that Parliament has entrusted to the Tribunal.
B. THE BACKGROUND
[3] In a decision dated April 16, 1997 the Tribunal had upheld Mr. Rafuse's claim that he was disabled within the meaning of subsection 42(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8, and was thus entitled to a disability pension. However, while Mr. Rafuse maintained that his disability had started in 1991, the Tribunal held that it had not commenced until October 31, 1994, the day when Mr. Rafuse's expert medical witness first examined him.
[4] In seeking leave to appeal the Tribunal's determination of the date of the onset of his disability, Mr. Rafuse pointed to evidence in the record indicating that 1991 was the appropriate date. This is when he had stopped working because of illness.
[5] In its decision to refuse leave to appeal, dated July 15, 1998, the Board member said:
There is no basis for granting leave to Appeal. There is evidence to support the Tribunal's conclusion in respect of the date of onset. It is neither here nor there to contend that the Tribunal might have chosen another date also supportable by evidence. In concluding as it did, it acted lawfully and did not commit a reversible error.
No new evidence capable of challenging the finding was presented on this leave notwithstanding contrary indication.
[6] On the application for judicial review of this decision, the Judge held that the correct test to be applied by the Board on a leave application is whether there is an arguable case which might succeed on appeal. She relied on Martin v. Canada (Minister of Human Resources Development) (1999), 252 N.R. 141 (F.C.A.) for this proposition.
[7] Following the decision in Davies v. Canada (Minister of Human Resources Development) (1999), 177 F.T.R. 88, the Judge also held that the Court should apply a deferential standard when reviewing decisions of the Board on leave applications. Looking at the record before the Board, the Judge concluded that the refusal of leave was unreasonable and that, since the evidence was sufficient to enable Mr. Rafuse to succeed on appeal, she granted him leave to appeal.
C. ANALYSIS
[8] It is common ground between counsel that the Board did not apply the correct test in deciding the leave application and that the decision cannot stand. It was also agreed that, since this matter came before the Judge as an application for judicial review, and not as an appeal, she had no power to substitute her view for that of the Board on the proper disposition of the leave application. This is simply not a remedial power that subsection 18.1(3) of the Federal Court Act, R.S.C. 1985, c. F-7, affords to the Court.
[9] In our opinion, this is a correct view of the law: see, for example, the particularly clear statement to this effect in Xie v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 125, at paragraph 17.
[10] However, counsel for the respondent argues that the Judge's order is justifiable as an exercise of the Court's power under paragraph 18.1(3)(b) of theFederal Court Act to "set aside a decision and refer it back for determination in accordance with such directions as it considers to be appropriate". The argument is that it would have been appropriate for the Judge to have exercised this power in the instant case by directing a verdict, since she had decided that the only decision reasonably open to the Board on the evidence before it was that Mr. Rafuse had satisfied the legal test for the grant of leave to appeal. Hence, since there is no substantive distinction between the Judge's granting leave to appeal, and setting aside the refusal and referring it back with instructions to the Board to grant leave, the Court should dismiss this appeal.
[11] Regrettably, we are not able to accept this argument. On our analysis, the Board erred in law when it asked itself whether there was evidence to support the Tribunal's conclusion and, finding that there was no new evidence capable of challenging it, it refused leave. In so ruling, the Board to our mind applied a more stringent test than that mandated in law and trespasses on matters that should be decided by the Board when it hears the appeal on its merits.
[12] The application to the facts of the correct legal test, namely whether Mr. Rafuse has established that on the evidence before the Board there is an arguable case which might succeed on appeal, is largely a question of fact. The determination of factual questions is within the exclusive jurisdiction of the Board and at the core of its expertise. In this case, because it misdirected itself in law on the test for deciding leave applications, the Board is yet to make the essentially factual determination required of it.
[13] On an application for judicial review, the role of the Court with respect to a tribunal's findings of fact is strictly circumscribed. In the absence of an error of law in a tribunal's fact-finding process, or a breach of the duty of fairness, the Court may only quash a decision of a federal tribunal for factual error if the finding was perverse or capricious or made without regard to the material before the tribunal: Federal Court Act, paragraph 18.1(4)(d). Hence, if, as a result of an error of law, a tribunal has omitted to make a relevant finding of fact, including a factual inference, the matter should normally be returned to the tribunal to enable it to complete its work. Accordingly, in our opinion, the Judge would have erred in law if, having set aside the decision of the Board, she had remitted the matter with a direction that the Board grant Mr. Rafuse leave to appeal.
[14] While the directions that the Court may issue when setting aside a tribunal's decision include directions in the nature of a directed verdict, this is an exceptional power that should be exercised only in the clearest of circumstances: Xie, supra, at paragraph 18. Such will rarely be the case when the issue in dispute is essentially factual in nature (Ali v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 73 (T.D.)), particularly when, as here, the tribunal has not made the relevant finding.
[15] In the course of oral argument counsel for Mr. Rafuse drew our attention to some more recent cases concerning the judicial review of dispositions by the Pension Appeals Board of leave applications. However, in none of these did the Court issue directions of the kind that counsel urged upon us in this case.
[16] We noted earlier in these reasons that we had reached our decision with regret. This is because ten years have elapsed since Mr. Rafuse first made his claim for a disability pension. To the extent that the decision-making process in this administrative scheme has been designed to produce expeditious and final determinations of pension entitlements, the system seems seriously to have malfunctioned in this case.
[17] Nonetheless, in our view it is important to respect the large degree of autonomy that Parliament has granted to the Board on questions of fact, even though the effect of our decision may be to cause further delay by giving the party disappointed with the Board's disposition of the leave application an opportunity to challenge it. In order to minimise delay, we would hope that, when the leave application is returned to the Board for redetermination, it will be dealt with at the earliest opportunity.
D. CONCLUSIONS
[18] For these reasons, the appeal will be allowed, without costs. The Judge's order will be varied so as to remove the grant of leave for Mr. Rafuse to appeal to the Pension Appeals Board. The matter will be remitted to another member of the Pension Appeals Board duly designated under subsection 83(2.1) of the Plan to determine in accordance with these reasons whether Mr. Rafuse should be granted leave to appeal the decision of the Review Tribunal that his disability did not commence until 1994.
"John M. Evans"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: A-818-00
STYLE OF CAUSE: Minister of Human Resources Development
Appellant
and
Norman Rafuse
Respondent
DATE OF HEARING: JANUARY 22, 2002.
PLACE OF HEARING: MONTREAL, QUEBEC
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
DATED: JANUARY 22, 2002
DELIVERED FROM THE BENCH AT MONTREAL, QUEBEC ON JANUARY 22, 2002.
APPEARANCES BY:
Mr. Stewart Herbert For the Appellant
Mr. Alexander Paradissis For the Respondent
SOLICITORS OF RECORD:
Morris Rosenberg For the Appellant
Deputy Attorney General of Canada
Vanier, Ontario
Mr. Alexander Paradissis For the Respondent
Montreal, Quebec
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20020122
Docket: A-818-00
BETWEEN:
MINISTER OF HUMAN RESOURCES
DEVELOPMENT
Appellant
and
NORMAN RAFUSE
Respondent
REASONS FOR JUDGMENT OF THE COURT