OTTAWA, Ontario, April 4th, 2006
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
DEVELOPMENT
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review by the Minister of Human Resources Development for judicial review of the decision dated May 30, 2005 of a member of the Pension Appeals Board (the Board), designated under s. 83(2.1) of the Canada Pension Plan, R.S.C. 1985, c. C-8) (the Act). The Notice of Leave is dated June 9, 2005. In this decision the designated member granted Mr. Dawdy (the Respondent) leave to appeal a decision of the Review Tribunal to the Pension Appeals Board approximately ten months after the time limit for doing so had expired.
[2] The hearing of this matter was set down to be heard in Toronto on the 28th day of March, 2006 at 9:30 a.m.
[3] Upon opening of Court, the Respondent was not present.
[4] The Court was told by the Court Registrar that on or about the 23rd day of March, 2006, she had spoken to the respondent and told him the date, time and place of the hearing. The Respondent asked the Registrar what would happen if he failed to appear for the hearing.
[5] In that the Respondent did not say he would not appear for the hearing, the Court recessed for 15 minutes to wait to see if the Respondent would appear. He did not and the Court proceeded to hear the Applicant.
[6] The Respondent failed to file any documents or make any meaningful written submissions.
[7] I have read all of the documents found in the file and heard the oral submissions of the Applicant and I am satisfied that the application for judicial review should be allowed and the decision dated May 30, 2005 of a member of the Pension Appeals Board must be set aside.
[8] The present matter arises out of ongoing efforts by Mr. Dawdy to receive Canada Pension Plan (CPP) disability benefits. Mr. Dawdy first applied for CPP disability benefits in March, 1999. This first application for disability benefits was denied both initially and upon reconsideration by the Review Tribunal. Mr. Dawdy did not seek leave to appeal the Review Tribunal decision to the Pension Appeals Board and, although he was told at the time of the denial he had 90 days to appeal this decision, he did not appeal.
[9] On November 1, 2002, Mr. Dawdy again applied for CPP disability benefits. This application was also denied initially, upon reconsideration, and at the Review Tribunal which heard Mr. Dawdy's appeal on April 7, 2004. The Review Tribunal sent Mr. Dawdy a copy of its decision dated May 10, 2004 along with a Notice of Decision dated May 11, 2004.
[10] Mr. Dawdy did not appeal the Review Tribunal decision to the Pension Appeals Board within the 90-day statutory limit. Instead, he sent an undated letter to the Chairman of the Board, which was received May 3, 2005 seeking leave to appeal the May 11, 2004 Review Tribunal decision. In the letter Mr. Dawdy states, "... I did not no (sic) it could be appealed again. Manulife Financial has asked me to appeal my case again." (Note that it is as a result of a request by Manulife Financial to the Respondent that the late appeal is being pursued).
[11] By letter dated June 9, 2005, a designated member granted leave on May 30, 2005. The Applicant presently asks for judicial review of this decision to grant leave.
[12] The Minister submits that the designated member erred in law by granting late leave without first determining whether Mr. Dawdy had met the test for an extension of time (Canada (Minister of Human Resources Development) v. Penna, [2005] F.C.J. No. 580 (F.C.) (QL) [Penna]). Second, the Applicant submits the designated member erred by failing to consider the accepted criteria for determining when to grant late leave applications (Human Resources Development v. Josephine Gattellaro, [2005] F.C.J. No. 1106 (T.D.) (QL) [Gattellaro]). Third, the Applicant submits that the designated member erred in granting leave to appeal in the absence of any sound reasons for doing so.
[13] The Applicant submits that there is no appeal as of right to the Board from a decision of the Review Tribunal. An applicant must apply in writing to the Chairman or Vice-Chairman of the Board within 90 days from the date that the applicant receives a Review Tribunal decision (Canada Pension Plan, R.S.C. 1985, c. C-8, s. 83(1)). Upon written request, the Chairman, Vice-Chairman or designated member of the Board may extend the time within which the applicant may seek leave.
[14] The Applicant submits that when reviewing a late application for leave to appeal to the Board, the designated member must first determine whether the applicant made the necessary application for an extension of time within which to seek leave to appeal (Penna, above). The Applicant argues that Mr. Dawdy failed to request an extension of time for the filing of his leave to appeal. The Applicant submits that an extension of time is a precondition for granting leave outside the 90-day time period, and that the designated member erred by granting leave without formally determining whether to extend time.
[15] Even if the Respondent had made a proper application for an extension of time, the Applicant submits that the designated member erred by failing to consider the accepted criteria for determining when to grant late leave applications. According to Gattellaro, above, at paragraphs 9-10, in order to be granted an extension the applicant must show the following four factors:
1) a continuing intention to pursue the application
2) the matter discloses an arguable case
3) there is no prejudice to the respondent in allowing the extension
4) there is a reasonable explanation for the delay
[16] The Applicant submits that these factors were not considered by the designated member, which is a reviewable error. The Applicant recognizes that the decision to extend time limits is discretionary; however, it is argued the discretion must be exercised in accordance with the established legal test found in Gattellaro, above. The Applicant notes that these factors were recently confirmed by the Federal Court (Minister of Human Resources and Development v. Tony L. Roy, [2005] FC 1456 at para. 9 [Roy]). Both Roy, above, and Canada (CSIS) v. Green, [1993] F.C.J. No. 1369 at para. 3, hold that a judicial officer must support the exercise of discretion with reasons. It is argued that there do not appear to have been reasons provided in this case.
[17] It is also argued that the Respondent failed to meet the requirements enumerated in Gattellaro, above. It is argued that Mr. Dawdy failed to provide evidence of a continued intention to pursue the appeal commencing within the time period to do so, evidence that he could make an arguable case for disability benefits, evidence that the granting of a nine-month extension to appeal would not prejudice the Minister, and a reasonable explanation for the delay.
[18] The Applicant also submits that the delay in making an application for leave to appeal the Review Tribunal decision is prejudicial to the Minister. It is argued that Parliament did not intend to give parties the right to apply for leave to appeal whenever they choose, and that designated members must be required to justify their decisions to extend the time in which applicants may apply for leave to appeal.
[19] Assuming the designated member properly granted the extension, which the Applicant denies, the designated member must then also determine whether to grant leave to appeal. The Applicant submits that Mr. Dawdy had to satisfy the Court that there was an arguable ground upon which his proposed appeal might succeed. The Applicant reminds the Court that none of the medical reports prove that Mr. Dawdy was disabled within the meaning of the CPP, and that Mr. Dawdy therefore has not made an arguable case that he was disabled as of December 2000. The Minister therefore submits that the designated member erred in fact and law in determining that Mr. Dawdy had established an arguable case.
[20] The Respondent is a self-represented litigant who failed to appear for the hearing. He wrote the Court by handwritten letter dated July 16, 2005 to state that he would be opposing the Notice of Application. The Applicant consented to an extension for filing the Respondent's affidavit. The Respondent wrote to the Court to state that he would send his affidavit, but none appears to have been filed. The Applicant filed a Consent for Extension of time to file the Respondent's Record as a courtesy to Mr. Dawdy. The Respondent's Record was due on December 12, 2005.
[21] The Court received a handwritten letter from the Respondent on December 9, 2005. The letter was addressed "To the Chairman of the Board". In this letter the Respondent wrote that his physical condition remains unchanged. He explained that he still suffers daily pain and takes medication as required. He requested that the Chairman reconsider his case.
[22] The Respondent has experienced difficulty in navigating through the legal proceedings brought by the Applicant. The letter dated December 9, 2005 indicates that the Respondent does not fully understand that a Court proceeding has been commenced to overturn the decision of a designated member that would allow the Respondent's CPP decision to be heard. The Court has not been provided with any Memorandum of Argument from the Respondent.
[23] It is clear from the wording of subsection 83(1) of the Act that an applicant who does not apply for leave to appeal a decision to the Pension Appeals Board within the 90-day period must first be granted a discretionary extension of time to seek leave. Rules 4 and 5 of the Pension Appeals Board Rules of Procedure (Benefits) C.R.C. (the Rules) outline the required information that must be present in an application for leave and requires that the applicant state grounds on which an extension is sought. In his request to appeal his case Mr. Dawdy wrote that "it has been over 90 days since my Tribunal which I did not no (sic) it could be appealed again". It is clear that the Respondent was aware that the 90-day period had expired. In his letter he provided grounds for bringing forward his appeal, some of which could be considered grounds for seeking an extension. However, Mr. Dawdy did not explicitly request an extension of time for bringing his leave application.
[24] The present case is similar to that of Penna, above, where the Applicant similarly did not understand that an application for an extension of time was required of her. In that case the designated member granted leave to appeal where no application for extension of time to seek leave was presented. Justice Frederick Gibson held at paragraphs 10-11 that:
I am satisfied that the designated member erred in law, exceeded his jurisdiction or failed to exercise his jurisdiction in granting leave to appeal where no application for an extension of time to seek leave, fully complying with the appropriate Rules had been filed, and no extension of time to file the application for leave had been granted. The decision under review was made without notice to the Minister and thus the Minister could not, at an earlier time, have made representations to the designated member regarding the issue of an extension of time being a condition precedent to the granting of leave.
In the result, this application for judicial review will be allowed.
[25] I believe that the reasoning in Penna, above, applies with equal force to the present situation and is determinative of this case. The designated member's decision should be set aside for granting leave when Mr. Dawdy did not apply for an extension of time.
[26] I agree with the Applicant that even if the designated member was able to consider granting an extension of time, that discretionary decision was improperly exercised. The designated member did not provide any reasons for granting leave. I agree with Justice Eleanor Dawson's conclusion in Roy, above, at paragraph 13, that while there is no statutory requirement under s. 83 of the Act to provide reasons where leave is granted, the designated member must support this discretionary decision with reasons. The failure to give reasons is therefore a reviewable error in this case.
[27] The decisions in Gattellaro, above, and Roy, above, both accept that there are four criteria to be considered and weighed by the designated member in determining whether to grant an extension. These criteria were not applied. It follows that the Board erred by failing to apply the correct criteria.
[28] These criteria can be applied to the present matter as follows:
1. Mr. Dawdy's main reason for pursuing the appeal appears to be that his insurer has asked him to pursue it, although he claims that his experience has not changed.
2. There was no suggestion of the existence of an arguable case. While Mr. Dawdy's condition persists, there is nothing on the record to suggest that the Board would treat Mr. Dawdy's present condition any differently than it did when it found that Mr. Dawdy was not eligible for CPP.
3. The only explanation for the delay was that Mr. Dawdy claimed he did not know that the Review Tribunal decision could be appealed. This is consistent with the fact that Mr. Dawdy did not appeal his first negative Review Tribunal decision to the Pension Appeals Board.
4. In this case the delay of approximately ten months could arguably be considered prejudice to the Minister.
[29] These factors provide little grounds upon which an extension could be granted. Even assuming that an extension of time to apply for leave could properly be granted on the facts of this case, there are no reasons provided for why leave was granted.
[30] In sum, the designated member erred in law, exceeded his jurisdiction or failed to exercise his jurisdiction in granting leave to appeal when Mr. Dawdy had not applied for an extention to seek leave, and no extention of time to file the application for leave had been granted. The designated member also erred by failing to provide adequate reasons for exercising his discretion in this case and by failing to consider the appropriate criteria for exercising discretion to grant an extension of time.
JUDGMENT
The application for judicial review is allowed and the decision of the designated member of the Pension Appeals Board, dated May 30, 2005, is hereby set aside.
The matter is remitted for redetermination by a different member of the Board in accordance with my Reasons for Judgment.
No costs are awarded.
"Max M. Teitelbaum"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1168-05
STYLE OF CAUSE: Minister of Human Resources Development v.
Craig Dawdy
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 28, 2006
REASONS FOR JUDGMENT: TEITELBAUM J.
APPEARANCES:
| Stephan Bertrand for Stuart Herbert (613) 946-9617
|
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| No one appeared
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SOLICITORS OF RECORD:
| John H. Sims, Q.C. Deputy Attorney General of Canada
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| Craig Dawdy (self-represented) 63973 Wellandport Road, R.R. #1 Wellandport, Otnario L0R 2J0
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