Halifax, Nova Scotia, September 27, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application for judicial review of a decision of the Pension Appeals Board (the Board) communicated to the respondent on November 16, 2005, which granted the respondent leave to appeal a decision of a Review Tribunal dated January 25, 2001. Leave to appeal was granted four years after the time within which to submit a leave application had lapsed, and after the respondent’s original leave application file had been closed and then reactivated under a new file number.
[2] The applicant seeks an order setting aside the decision of the Board and referring the matter for redetermination by a different member of the Board.
Background
[3] The respondent is 34 years old. He has a grade 12 education from India and has completed a six-month course in air conditioning at the Northern Alberta Institute of Technology. He also has some computer training.
[4] The respondent was last employed from October 1990 to December 1998 as a bakery labourer. He suffered a work-related injury which resulted in him having to undergo two surgeries on his back in April 1996 and May 1999. He ceased working in December 1998 because of poor health related to his back problems.
[5] The respondent first applied for disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP) in September 1999. The Minister of Human Resources Development (the Minister) refused his application initially and upon reconsideration. The respondent’s appeal to a Review Tribunal was heard on December 19, 2000 and dismissed by decision dated January 25, 2001.
[6] On April 25, 2001, the respondent applied for leave to appeal the Review Tribunal’s decision to the Board, citing his ground of appeal as “I am not agree on these decision”. He did not file any documents in support of his leave application. By letter dated May 3, 2001, the Board advised the respondent that it could not accept his application due to a lack of grounds. The respondent was given until June 14, 2001 to provide a more detailed application or a letter outlining the reasons for the appeal, failing which, it would be considered that he did not wish to appeal, and the Board would close the file.
[7] The respondent did not file further documents in the time allowed. As a result, the Board informed the Commissioner of the Review Tribunal on July 31, 2001 that as the respondent had failed to provide a proper application for leave to appeal, the Board was closing his file.
[8] In January 2005, the respondent applied for CPP disability benefits a second time. In April 2005, the Minister advised the respondent that his application was refused because the prior decision of the Review Tribunal rejecting his first application was final and binding. The respondent was advised that his current application would not be considered unless he had made sufficient additional CPP contributions since December 2000.
[9] The respondent retained a representative, Mr. Seebaran, to assist in the matter. By letter dated April 22, 2005, Mr. Seebaran requested leave to appeal the Review Tribunal’s decision of January 25, 2001. The Board wrote back to Mr. Seebaran on June 10, 2005, advising that the respondent’s file had been closed as he had not filed a proper application for leave to appeal. The letter ended with this paragraph:
Should you wish to proceed further with this application, you must provide this Board with written reasons stating why you disagree with the decision of the Review Tribunal. His file will remain closed until such information is received.
[10] On August 16, 2005, Mr. Seebaran submitted to the Board a few reports by medical specialists and the respondent’s family physician from various dates in 2003.
[11] By letter dated September 15, 2005, the Board acknowledged receipt of Mr. Seebaran’s correspondence of April 22, 2005, and August 16, 2005. The Board advised that the respondent’s appeal was reactivated under a new file number and his previous file remained closed.
[12] By letter dated November 16, 2005, the respondent was notified that a designated member of the Board had granted him leave to appeal.
[13] This is the judicial review of the Board’s decision granting the respondent leave to appeal.
Issues
[14] The applicant submitted that the issue is whether the Board had jurisdiction to grant leave to appeal. This issue can be more specifically framed as follows:
1. Did the Board lack jurisdiction to grant leave to appeal because:
(a) the Board became functus officio, having closed its file in July 2001?
(b) in the alternative, the Board had not granted the respondent an extension of time to make the leave application and therefore could not entertain the application for leave to appeal?
Applicant’s Submissions
[15] The applicant submitted that the question of jurisdiction is a question of law, reviewable on a standard of correctness.
[16] The applicant submitted that the legislation mandates the information that must be provided in a leave application and the time within which this application must be made. With respect to the contents of a leave application, Rule 4 of the Pension Appeals Board Rules of Procedure (Benefits), C.R.C. 1978, c. 390 (the Board Rules) provides that a leave application shall contain the grounds of the appeal and a statement of allegations of fact, reasons that the party intends to submit and documentary evidence he intends to rely on in support of the appeal.
[17] As for the time within which the leave application must be made, subsection 83(1) of the CPP provides that a party may apply for leave to appeal a decision of the Review Tribunal “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”. Rule 5 of the Board Rules provides that an application for an extension of time within which to file a leave application shall be served on the chairman or vice-chairman and shall set out the information required in Rule 4 and the grounds on which the extension is sought.
[18] The applicant submitted that the Board was correct in June 2001 when it refused to accept the respondent’s April 2001 leave application. The application did not contain the required information or provide any basis upon which the Board could assess whether the respondent had an arguable case.
[19] The applicant submitted that once the Board determined that it would not consider the respondent’s application and subsequently closed his file, the Board became functus officio since there is no provision in the CPP for an applicant to re-apply for leave or for the Board to reconsider a leave application (see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 at paragraph 20).
[20] The applicant submitted, in the alternative, that if it is determined that the Board was not functus officio with respect to the issue of leave, the Board had no jurisdiction to grant leave since no extension of time had been requested or granted with respect to the April 2005 application. It was submitted that the only leave application that was before the designated member of the Board was that submitted by Mr. Seebaran in April 2005, four years after the expiry of the statutory time limit. The information that was subsequently submitted by Mr. Seebaran was in support of that application, not the application of April 2001. The applicant submitted that if a leave application is made after the time limit for doing so has expired, the applicant must apply for and be granted an extension of time. It was submitted that a designated member exceeds his jurisdiction or fails to exercise his jurisdiction if he grants leave to appeal without also granting an extension of time within which to file a leave application. For this proposition, the applicant relied on Canada (Minister of Human Resources Development) v. Penna, 2005 FC 469 at paragraph 10; Canada (Minister of Human Resources Development) v. Eason, 2005 FC 1698 at paragraph 20; and Canada (Minister of Human Resources Development) v. Dawdy, 2006 FC 429 at paragraph 23.
[21] For the above reasons, the applicant submitted that the Board had no jurisdiction to grant leave, and that its decision to grant leave should be set aside and the matter remitted to a different designated member for redetermination.
Respondent’s Submissions
[22] The respondent did not file any written submissions.
Analysis and Decision
1. Did the Board lack jurisdiction to grant leave to appeal because:
(a) the Board became functus officio, having closed its file in July 2001?
The applicant submitted that the Board became functus officio when it closed its file and thus, could not entertain the respondent’s leave application. The applicant referred to paragraph 20 of the Supreme Court of Canada’s decision in Chandler above:
I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.
[24] In order for the doctrine of functus officio to apply, there must have been a final decision made by the Board. I have reviewed the file material and I cannot find that a final decision had been made on the leave application. The Board stated that it would not accept the respondent’s application for leave and closed the file because the respondent’s leave application was incomplete, as he had failed to file further materials when requested. The Board assumed that the respondent was no longer interested in pursuing the leave application. This does not constitute a final decision on the application for leave. In my view, the Board has not made a final decision regarding the respondent’s application for leave to appeal. Therefore, I cannot conclude that the Board has become functus officio.
[25] Issue 1(b)
1. Did the Board lack jurisdiction to grant leave to appeal because:
(b) in the alternative, the Board had not granted the respondent an extension of time to make the leave application and therefore could not entertain the application for leave to appeal?
A party may seek leave to appeal outside the 90-day time limit prescribed by subsection 83(1) of the CPP, provided that he applies for and is granted an extension of time to do so. Subsection 83(1) of the CPP states 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.
[26] The Federal Court has held that the Board errs in law, exceeds its jurisdiction or fails to exercise its jurisdiction, if it allows an application for leave to appeal outside the statutory time limit, where no application for an extension of time to seek leave has been filed, in accordance with the Board Rules, and no extension of time to file the application for leave has been granted by the Board (see Canada (Minister of Human Resources Development) v. Penna, 2005 FC 469 at paragraph 10). Moreover, the granting of an extension of time cannot be inferred from the Board’s decision. This means that even if the party seeking leave makes a request for an extension of time, the Board will have committed a reviewable error if it proceeds to grant leave without explicitly considering and granting the request for an extension of time (see Canada (Minister of Human Resources Development) v. Eason, 2005 FC 1698 at paragraph 20).
[27] In the present case, it is clear that the respondent neither applied for nor was granted an extension of time to file his leave to appeal when he requested leave to appeal in April 2005. There is no evidence in the record to show that the Board turned its mind to an extension of time to file the April 2005 leave to appeal application. Consequently, the applicant submits that the Board was without jurisdiction to grant leave.
[28] The applicant’s argument assumes there were two applications for leave to appeal; one in April 2001 and another in April 2005. I agree, as the Board stated that it had closed the April 2001 file and that it remained closed, while the respondent’s April 2005 appeal request was reactivated under a new file. I have also considered the representations made by the respondent’s representative.
[29] Applying the law in Penna, above, I conclude that the Board erred in law, exceeded its jurisdiction or failed to exercise its jurisdiction in granting leave to appeal, in respect of the respondent’s leave application that was made four years after the statutory time period had lapsed, and for which no extension of time to seek leave had been filed and no extension of time had been granted. I therefore find that this judicial application is allowed and that the matter should be remitted to a different member of the Board for redetermination.
[30] It would seem to me that should the respondent wish to continue with his appeal, he should forthwith submit to the Board, a request for an extension of time within which to file a leave application in accordance with Rule 5 of the Board Rules. I have assumed that the Board considered the respondent’s application for leave to appeal to be in proper form since it granted leave to appeal on what was filed.
JUDGMENT
[31] IT IS ORDERED that the application for judicial review is allowed and the matter is remitted to a different member of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
Section 83 of the Canada Pension Plan, R.S.C. 1985, c. C-8 provides that a party may apply to the Board for leave to appeal a decision of the Review Tribunal. The provision sets out the following:
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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.
(2) The Chairman or Vice-Chairman of the Pension Appeals Board shall, forthwith after receiving an application for leave to appeal to the Pension Appeals Board, either grant or refuse that leave.
(2.1) The Chairman or Vice-Chairman of the Pension Appeals Board may designate any member or temporary member of the Pension Appeals Board to exercise the powers or perform the duties referred to in subsection (1) or (2).
(3) Where leave to appeal is refused, written reasons must be given by the person who refused the leave.
(4) Where leave to appeal is granted, the application for leave to appeal thereupon becomes the notice of appeal, and shall be deemed to have been filed at the time the application for leave to appeal was filed.
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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. Décision du président ou du vice-président (2) Sans délai suivant la réception d’une demande d’interjeter un appel auprès de la Commission d’appel des pensions, le président ou le vice-président de la Commission doit soit accorder, soit refuser cette permission.
(2.1) Le président ou le vice-président de la Commission d’appel des pensions peut désigner un membre ou membre suppléant de celle-ci pour l’exercice des pouvoirs et fonctions visés aux paragraphes (1) ou (2).
(3) La personne qui refuse l’autorisation d’interjeter appel en donne par écrit les motifs.
(4) Dans les cas où l’autorisation d’interjeter appel est accordée, la demande d’autorisation d’interjeter appel est assimilée à un avis d’appel et celui-ci est réputé avoir été déposé au moment où la demande d’autorisation a été déposée.
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The relevant rules of the Pension Appeals Board Rules of Procedure (Benefits), C.R.C. 1978, c. 390 are set out below:
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2216-05
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
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SUNIL HANDA
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: July 19, 2006
APPEARANCES:
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Florence Clancy
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Sunil Handa Self-Represented
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada
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Sunil Handa Edmonton, Alberta
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