Toronto, Ontario, October 31, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
THE MINISTER OF SOCIAL DEVELOPMENT
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ilda Carepa seeks judicial review of a decision of a Review Tribunal dismissing her appeal from a denial of disability benefits under the Canada Pension Plan. Ms. Carepa says that the Review Tribunal erred in failing to find that a document relating to her return to work in 1994 amounted to a “new fact” justifying the quashing of an earlier decision of the Review Tribunal.
[2] Ms. Carepa further asserts that the failure of the Minister to produce the 1994 document in proceedings relating to an earlier claim for benefits tainted the proceedings under review, and resulted in her being denied procedural fairness in this case.
[3] For the reasons that follow, I am not persuaded that the Review Tribunal erred as alleged by Ms. Carepa, and accordingly, this application will be dismissed.
Background
[4] In 1994, Ms. Carepa was granted disability benefits under the Canada Pension Plan. Shortly thereafter, however, she returned to work, and her benefits ceased. Ms. Carepa continued to work until 1996. There is a factual dispute as to whether she was laid off in December of 1996 due to lack of work, or left because her health was such that she could not continue.
[5] Ms. Carepa filed a second application for disability benefits in June of 1997. This application was denied by the Minister, as was a subsequent request for reconsideration. A Review Tribunal then dismissed Ms. Carepa’s appeal on November 4, 1998, finding that she was not disabled. This decision was based, in part, on a questionnaire that was prepared by Ms. Carepa’s former employer in March of 1998, which indicated that Ms. Carepa’s performance on the job had been satisfactory up until December of 1996, when she was laid off because of a shortage of work. The questionnaire also stated that Ms. Carepa’s employer was not aware that she had a disability.
[6] Leave to appeal this decision to the Pension Appeals Board was denied in January of 2000, and Ms. Carepa did not seek judicial review of the Review Tribunal’s decision.
[7] In January of 2002, Ms. Carepa again applied for disability benefits. This application was also denied by the Minister, as was her request for reconsideration. Ms. Carepa then appealed to a Review Tribunal, asking that the Tribunal reconsider and amend its November 4, 1998 decision, on the basis of “new facts”. The “new facts” identified by Ms. Carepa included additional medical reports confirming that she had since been diagnosed with fibromyalgia, as well as a 1997 paper relating to this condition.
[8] Ms. Carepa also relied on a document provided to her employer in June of 1994, indicating that she had returned to work on modified duties, which she also says amounted to a “new fact”. It is this last document that is in issue on this application for judicial review.
The Review Tribunal’s Decision
[9] In a January, 2005 decision, the Review Tribunal determined that the last point at which Ms. Carepa met the contribution requirements which would potentially entitle her to benefits was on December 31, 1998. This was the last point at which Ms. Carepa came within the Minimum Qualifying Period (or “MPQ”), having made contributions to the Plan in four out of the last six years.
[10] The Review Tribunal then found that as a result of the principle of res judicata, it was bound by the Tribunal’s November 4, 1998 decision, which had found that Ms. Carepa was not disabled. As a result, the question for the Tribunal was whether Ms. Carepa had demonstrated that she was disabled during the period between November 4, 1998 and December 31, 1998.
[11] The Tribunal found that the medical evidence before it did not establish that there had been a change in Ms. Carepa’s condition between November 4, 1998 and December 31, 1998. As a consequence, her appeal with respect to her 2002 application was dismissed.
[12] The next question for the Tribunal was whether Ms. Carepa was entitled to reconsideration of the 1998 Tribunal decision, as a result of the discovery of “new facts”, within the meaning of subsection 84(2) of the Canada Pension Plan. Subsection 84(2) allows the Review Tribunal to amend or rescind a previous decision where there are new facts.
[13] In this regard, the Review Tribunal found that none of the evidence produced by Ms. Carepa amounted to new facts. In particular, insofar as the 1994 return to work report was concerned, the Tribunal found that Ms. Carepa could have testified as to the conditions surrounding her return to work, thereby providing the same evidence to the Review Tribunal. Moreover, the Tribunal found that the document could have been available to Ms. Carepa through the exercise of reasonable diligence.
[14] In the absence of any new facts, the Review Tribunal held that there was no basis for it to reconsider the 1998 decision.
Issues
[15] Ms. Carepa’s application for judicial review raises the following issues:
1. The appropriate standard of review to be applied to the decision of the Review Tribunal;
2. Whether the Review Tribunal erred in finding that the 1994 return to work report did not amount to “new facts”; and
3. Whether the failure of the Minister to produce the 1994 return to work report in the 1998 Review Tribunal process resulted in Ms. Carepa being denied procedural fairness in relation to the 2005 process.
Standard of Review
[16] To amount to “new facts”, the evidence in question must not have been discoverable with due diligence prior to the previous hearing, and the facts must be material: see, for example, Kent v. Canada (Attorney General), [2004] F.C.J. No. 2083, 2004 FCA 420.
[16]
[17] As the Federal Court of Appeal observed in Taylor v. Canada (Minister of Human Resources Development), [2005] F.C.J. No. 1532, 2005 FCA 293, at ¶12, a question as to whether evidence was discoverable is a question of fact, and is reviewable against the standard of patent unreasonableness.
[18] Materiality and due diligence are questions of mixed fact and law, with a heavy emphasis on fact, and are also reviewable against the patent unreasonableness standard: Taylor, above, at ¶12.
[19] Insofar as Ms. Carepa’s application raises a question of procedural fairness, the pragmatic and functional analysis does not apply. Rather, the task for the Court is to isolate any act or omission relevant to the question of procedural fairness, and to determine whether the process followed by the Commission satisfied the level of fairness required in all of the circumstances: see Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404.
[20] That is, given that questions of procedural fairness are reviewed as questions of law, no deference is due: the decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has not: Sketchley, at ¶ 53.
[21] With this understanding of the standard of review, I turn now to consider whether the Review Tribunal erred in finding that the 1994 return to work report did not amount to “new facts”.
Did the Review Tribunal Err in Finding that the 1994 Return to Work Report did not Amount to “New Facts”?
[22] The Canada Pension Plan does not define what is meant by “new facts”. However, as was noted above, the jurisprudence teaches us that there is a two part test to be applied in determining whether facts relied upon by an applicant are truly new. That is, the proposed new facts must not have been discoverable with due diligence prior to the previous hearing, and the facts must be material.
[23] Ms. Carepa submits that the 1994 return to work report was not discoverable prior to her 1998 Review Tribunal hearing, as a result of the failure of the Plan to comply with its disclosure obligations.
[24] More will be said about Ms. Carepa’s procedural fairness arguments relating to the non-production of this document further on in this decision. However, she has not persuaded me that the 1994 return to work report was not discoverable prior to the 1998 hearing by the exercise of reasonable diligence.
[25] In this regard, it bears noting that the document in question is a 1994 report that had been completed by Ms. Carepa’s personal physician, and that it bears Ms. Carepa’s own signature. As a consequence, Ms. Carepa had to have been aware of the existence of the document well before she appeared before the Review Tribunal in 1998.
[26] Ms. Carepa has not provided an affidavit in support of her application for judicial review, and there is no evidence as to what, if any, steps she may have taken to locate the document, nor is there any explanation as to why the document could not have been provided by her in the context of the 1998 Review Tribunal proceedings.
[27] Moreover, as the Review Tribunal noted, Ms. Carepa was in attendance at the 1998 hearing, and was in a position to provide direct evidence as to the nature and extent of her job responsibilities in the period between her return to work in June of 1994 and the termination of her employment in December of 1996.
[28] In all of the circumstances, Ms. Carepa has failed to demonstrate that the Review Tribunal’s finding that the 1994 return to work report failed to amount to “new facts” was unreasonable, much less patently so.
[29] In the absence of new facts, subsection 84(2) of the Plan was not engaged, and, subject to Ms. Carepa’s procedural fairness argument which will be addressed below, there was thus no basis on which to revisit the 1998 Review Tribunal decision.
Did the Failure of the Plan to Produce the 1994 Report Result in a Denial of Procedural Fairness?
[30] Ms. Carepa submits that Rule 5 of the Review Tribunal Rules of Procedure requires the disclosure of all of the material in an applicant’s Canada Pension Plan file that is relevant to the decision under review. For some reason, however, the 1994 return to work report was evidently not disclosed to Ms. Carepa by the Plan in the context of her 1998 Review Tribunal hearing.
[31] According to Ms. Carepa, the 1994 report demonstrates that she returned to work on modified duties. In contrast, the 1998 questionnaire completed by her former employer made no mention of this point, and asserted that the employer was not even aware of any disability on the part of Ms. Carepa.
[32] Moreover, the questionnaire suggested that there had been no disability-related problems with Ms. Carepa’s performance prior to the termination of her employment, and that she had not had significant disability-related absences from work.
[33] This selective disclosure by the Plan resulted, Ms. Carepa says, in her having been treated unfairly in the course of her 1998 hearing, and contributed to the Review Tribunal’s finding that she was not disabled.
[34] Ms. Carepa further submits that to the extent that the findings of the Review Tribunal in 2005 flowed from those made in the context of the 1998 Review Tribunal decision, this later decision was tainted by the earlier unfairness, and should be set aside.
[35] It should be noted at the outset that the 1994 return to work report related to Ms. Carepa’s 1994 application for benefits, and that her 1998 hearing related to her second application for benefits. As a result, it is not clear that there was in fact any obligation on the part of the Plan to disclose the report in the context of the 1998 Review Tribunal proceedings.
[36] It should also be observed that this application for judicial review relates solely to the 2005 Review Tribunal decision. Although Ms. Carepa was denied leave to appeal the 1998 Review Tribunal decision to the Pension Appeal Board, she did not seek judicial review of that decision in the Federal Court, where it would have been open to her to advance her arguments relating to the fairness of the 1998 Review Tribunal process.
[37] Whatever Ms. Carepa’s concerns may be with respect to the fairness of the 1998 process, there is nothing in the record to suggest that there was any unfairness in the 2005 Review Tribunal process.
[38] In the absence of “new facts” that would engage the reconsideration jurisdiction created by subsection 84(2) of the Plan, the principle of res judicata applies to decisions of the Review Tribunal: Canada (Minister of Human Resources Development) v. MacDonald, [2002] F.C.J. No. 197, 2002 FCA 48.
[39] Moreover, in the absence of any unfairness in the 2005 Review Tribunal process, Ms. Carepa cannot now go back and try to mount what is essentially a collateral and untimely attack on the 1998 Review Tribunal decision, which has now become final as a result of her failure to seek judicial review of that decision.
Conclusion
[40] For these reasons, Ms. Carepa’s application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-539-05
STYLE OF CAUSE: ILDA CAREPA v.
THE MINISTER OF SOCIAL DEVELOPMENT
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 30, 2006
APPEARANCES:
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Mr. Leo J. Dillon
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Ms. Tania Nolet
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SOLICITORS OF RECORD:
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Leo J. Dillon Barrister & Solicitor Toronto, Ontario
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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