Date: 20061110
Docket: T-1498-05
Citation: 2006 FC 1364
Ottawa, Ontario, this 10th day of November, 2006
PRESENT: The Honourable Mr. James Russell
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
WAYNE DALE
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application under sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of a decision made by the Honourable K.C. Binks, a member of the Pension Appeals Board (Board) designated under subsection 83(2.1) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (Plan). The decision in question (Decision) granted the Respondent leave to appeal a decision of the Review Tribunal. The Review Tribunal had denied the Respondent’s application to review a decision of the Minister under subsection 66(4) of the Plan, for lack of jurisdiction. The Applicant is seeking an Order setting aside the Decision and referring the matter back for reconsideration by a different member.
BACKGROUND
[2] The Respondent was involved in a motor vehicle accident in 1972, in which he suffered a brain injury. According to the medical evidence presented, he was diagnosed in 1973 by a psychiatrist, Dr. Calverley, with a moderate form of “Chronic Brain Syndrome” resulting from gross brain damage. The psychiatrist further concluded that the Respondent was totally disabled insofar as productive employment was concerned, but believed that progress could still be made and that it might be possible for him to embark upon some vocational rehabilitation program.
[3] Throughout the 1970s, the Respondent was able to pursue some gainful employment, although the work was intermittent, relatively unskilled, and obtained primarily in connection with his mother’s employment.
[4] During this same period, the Respondent submitted two separate applications for disability benefits under the Plan to Health and Welfare Canada, now Human Resources and Social Development Canada (Minister).
[5] The Respondent’s first application was submitted in November, 1973 and was denied by the Minister in February, 1974. The Respondent was informed of his right to appeal this decision, but he did not do so.
[6] The Respondent’s second application for disability benefits was submitted in December, 1977 and was denied by the Minister in June, 1978. Once again, the Respondent was informed of his right to appeal this decision, but he did not do so.
[7] Throughout the 1980s, the Respondent faced increasing difficulty in obtaining employment. He had only four years of recorded earnings between 1982 and 1991, after which he ceased employment altogether to care for his young daughter.
[8] In May, 1998, the Respondent submitted a third application for disability benefits, which also included an application for disabled contributor’s child benefit. This application was denied by the Minister in September, 1998. The Respondent did not appeal this decision.
[9] In August, 2001, an application was made on the Respondent’s behalf by the British Columbia Ministry of Human Resources (now the Ministry of Employment and Income Assistance) for retirement benefits under the Plan. This application was successful and the Respondent began receiving benefits in December, 2001, including retroactive payments going back to March, 2001, when he turned 60.
[10] In March, 2003, the Respondent submitted a fourth application for disability benefits (also with a second application for disabled contributor’s child benefits) under the Plan. In this application, the Respondent indicated that it had been his intention with regards to his 2001 application to request disability benefits, not retirement benefits. In April, 2003, this fourth application was denied by the Minister on the ground that, under the Plan, no one can receive disability and retirement benefits at the same time. The Minister’s letter further explained that, based on the date of his fourth application, the earliest the Applicant could be considered to have become disabled under the Plan was December 2001 and, since this was after he started receiving retirement benefits, he could not receive disability benefits.
[11] In August, 2003, the Respondent sent a letter to the Minister asking for reconsideration of the negative decision on his fourth application.
[12] A review was conducted and it was determined by the Minister that the fourth application should be closed and the third application (the 1998 application) should be re-opened on the basis that an administrative error had been made in adjudicating the third 1998 application. The authority of the Minister to take remedial action in situations where “erroneous advice or administrative error” has occurred is found in subsection 66(4) of the Plan.
[13] In October, 2003, the Minister informed the Respondent that his 1998 application for disability benefits and disabled contributor’s child benefits had been accepted. The Minister’s letter further explained that the maximum amount of retroactivity allowed under the Plan was 15 months so that, based on the date of his 1998 application, the Respondent was deemed to have been disabled as of February 1997.
[14] Upon receiving the Minister’s response, the Respondent sent another letter to the Minister, this time requesting a reconsideration of the date of onset, which he claimed should be established based on his first application for disability benefits submitted in 1973. The Minister replied in March, 2004, and informed the Respondent that the decision was being maintained.
[15] In June, 2004, the Respondent sent a letter to the Office of the Commissioner of Review Tribunals, in which he sought to appeal the Minister’s latest decision. The appeal was heard by the Review Tribunal in Victoria on March 8, 2005.
[16] In April, 2005, the Review Tribunal released its decision dismissing the Respondent’s appeal of the Minister’s decision on the ground that it did not have jurisdiction to review decisions of the Minister made under subsection 66(4) of the Plan.
[17] The Review Tribunal also took the time to consider the merits of the appeal and stated that, even if it had possessed the necessary jurisdiction, it would have concluded that the Respondent did not meet the relevant statutory tests at the time of the two pre-1998 applications to be considered eligible to receive disability benefits under the Plan.
[18] The Respondent then sought leave to appeal the decision of the Review Tribunal. On August 3, 2005, a designated member of the Board granted the Respondent’s application for leave to appeal the decision of the Review Tribunal. This Decision was communicated to the Respondent by way of a letter and no reasons were provided for the Decision.
[19] On September 1, 2005, the Minister applied to this Court for judicial review of the Decision by the designated member of the Board to grant the Respondent leave to appeal.
ARGUMENTS
The Applicant
[20] The Applicant submits, first, that the designated member of the Board, in granting leave to appeal, exceeded his jurisdiction. This is because the Board, like the Review Tribunal, has no jurisdiction to review a decision of the Minister made under subsection 66(4) of the Plan.
[21] On the issue of the proper standard of review, the Applicant submits that, in the absence of jurisdiction to dispose of the grounds raised by the Respondent, the designated member’s Decision to grant leave to appeal was an error in law to which the standard of correctness applies.
[22] The Applicant then proceeds with an analysis of the relevant statutory provisions to demonstrate lack of jurisdiction, as was done by the Review Tribunal in its decision. The Applicant further supports its argument by reference to several decisions of the Federal Court and Federal Court of Appeal, including the decision in Pincombe v. Canada (Attorney General), (1995), 189 N.R. 197. First, according to the Applicant, the Federal Court in Pincombe determined that the Board has no jurisdiction to consider a decision taken by the Minister under subsection 66(4) of the Plan. The Applicant further submits that the jurisprudence of the Federal Court emphasises that the Court cannot create a right of appeal where none is given by statute, or by legal or constitutional requirement. Also, neither the Board nor the Review Tribunal has any equitable jurisdiction. Finally, the Respondent notes that in Pincombe the Federal Court of Appeal upheld the finding of a Board that determined that a Review Tribunal (then a Review Commission) has no jurisdiction to entertain an appeal under subsection 66(4). The Federal Court of Appeal did recognize that the Federal Court Trial division, as it then was, could judicially review the decision of the Minister pursuant to section 18.1 of the Federal Courts Act.
[23] The Respondent further submits that similar wording in the Old Age Security Act, R.S.C. 1985 c. O-9 has been given the same interpretation by the Federal Court of Appeal.
The Respondent
[24] The Respondent, who is self-represented, has not filed any materials with the Court for this application.
ISSUE FOR CONSIDERATION
[25] The sole issue for consideration is whether the designated member of the Board committed a reviewable error in granting the Respondent’s application for leave to appeal the decision of the Review Tribunal.
PERTINENT LEGISLATION
[26] The sections from the Canada Pension Plan that are of particular relevance to this case and can be found in Schedule A to this Order and Reasons for Order.
STANDARD OF REVIEW
[27] The proper standard of review to be applied to a decision of the Pension Appeal Board has been considered by the Federal Court of Appeal on a number of occasions. In Canada (Minister of Human Resources Development) v. Skoric, [2000] 3 F.C. 265, 251 N.R. 368 (F.C.A.), Justice Evans applied a pragmatic and functional approach and concluded that a decision of the Board relating to the application of the statutory language of the Plan was entitled to little or no deference. He reasoned as follows at paragraphs 15 to 19:
…
It was more or less common ground between the parties that the standard of review applicable in this case is at the correctness end of the spectrum. I agree. A pragmatic or functional analysis clearly indicates that this is not a situation in which curial deference is appropriate.
First, there is no privative clause restricting the scope of judicial review. Subsection 84(1) of the Plan provides that, “except for judicial review under the Federal Court Act”, the Board’s decisions are “final and binding for all purposes of this Act”. Since this provision expressly exempts judicial review from its scope, the effect of the finality clause can only be to restrict the jurisdiction that the Board would otherwise have had to reconsider its decisions pursuant to Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848. However, subsection 84(2) expressly permits the Board to reconsider its decisions “on new facts”.
Second, the Board has no broad regulatory responsibilities, but performs only the adjudicative function of hearing appeals from the Review Tribunal: subsection 83(1) [as am. by S.C. 1995, c. 33, s. 36]. Third, the Chair, Vice-Chair and other members of the Board must be judges of the Federal Court or of specified section 96 [Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] courts: subsection 83(5); retired judges of these courts are eligible to be appointed as additional “temporary members”: subsection 83(5.1). Fourth, the questions in dispute in this case involve the interpretation of the Board’s enabling statute and have an application beyond the facts of this dispute. Fifth, the subject-matter of the dispute is the adjudication of an individual’s legal rights.
On the other hand, a consideration pointing to curial deference is the fact that Parliament probably entrusted appellate functions to an administrative tribunal, the Pension Appeals Board, rather than to the Federal Court, to take advantage of the benefits of economical and expeditious decision-making, and more accessible process, normally offered by tribunals.
In my view, the balance of the factors in the pragmatic or functional mix favours affording little deference to the Board’s interpretation of its constitutive legislation, especially in the absence of any evidence in the record indicating that members of the Board acquire considerable expertise in the Canada Pension Plan as a result of the volume of appeals that they hear and decide.
[28] In Villani v. Canada (Attorney General), [2002] 1 F.C. 130, 2001 FCA 248, Justice Isaac followed the same reasoning and concluded, at paragraph 22, that the standard of review on questions of law (such as statutory interpretation) was that of correctness.
[29] There has also been some jurisprudence of the Federal Court on the proper standard of review for a decision of the Board refusing leave to appeal. Most recently, in Canada (Minister of Human Resources Development) v. Lewis, 2006 FC 322, Justice O’Keefe stated at paragraph 14 that the question of whether the Board applied the right test in deciding whether to grant leave to appeal is a question of law, so that correctness is the proper review standard.
[30] In Canada (Minister of Human Resources Development) v. Hogervorst, 2006 FC 401, Justice Kelen stated at paragraph 9 that a decision of a designated member of the Board to extend time and to grant leave is discretionary. Justice Kelen also concluded that the appropriate standard of review to assess the decision of a designated member of the Board is correctness on questions of law, patent unreasonableness on questions of fact, and reasonableness on questions of mixed fact and law.
[31] As I characterize the issue under consideration in this case as one of jurisdiction, I believe it is a question of law which must be reviewed under a standard of correctness.
ANALYSIS
Considerations for Granting Leave to Appeal to the Board
[32] As the Plan does not set out any criteria for determining leave applications under section 83, the Court must rely on the relevant jurisprudence for guidance. In Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114, Justice MacKay stated at paragraph 15:
On the basis of this recent jurisprudence, in my view the review of a decision concerning an application for leave to appeal to the PAB involves two issues,
1. whether the decision maker has applied the right test - that is, whether the application raises an arguable case without otherwise assessing the merits of the application, and
2. whether the decision maker has erred in law or in appreciation of the facts in determining whether an arguable case is raised. If new evidence is adduced with the application, if the application raises an issue of law or of relevant significant facts not appropriately considered by the Review Tribunal in its decision, an arguable issue is raised for consideration and it warrants the grant of leave.
[33] This approach has been followed in subsequent cases; most recently in Lewis.
[34] In the case before me, there are no reasons given for the Decision. While subsection 83(3) of the Plan requires that “[w]here leave to appeal is refused, written reasons must be given by the person who refused the leave,” no such requirement is found in the Plan for providing written reasons when leave is granted.
[35] That being said, since the standard of review is one of correctness where no judicial deference is required, it is my view that the Court can simply determine whether the Board was correct to grant leave.
[36] It is the contention of the Applicant that there is, in fact, no arguable case to be made because there is no jurisdiction for the Review Tribunal or the Board to consider the application on its merits. This creates a situation similar to that found in Canada (Minister of Human Resources Development) v. Fleming (2004), 325 N.R. 305, 2004 FCA 288, where the Review Tribunal refused to grant an appeal on the ground that it was bound by the decision in an earlier application on account of res judicata. Res judicata also bound the Board, so that the Federal Court of Appeal found that the Board erred in law in granting leave to appeal, since the appeal was bound to fail.
Lack of Jurisdiction of the Board and the Review Tribunal
[37] Subsection 83(1) of the Plan provides that a party dissatisfied with a decision of the Review Tribunal made under section 82 of the Plan, may apply in writing to the Board for leave to appeal the Decision.
[38] Sub-sections 82(1) and 82(11) of the Plan set out the jurisdiction of the Review Tribunal to hear appeals from decisions of the Minister that are made pursuant to section 81 or subsection 84(2) of the Plan.
[39] Subsection 84(2) deals with the ability of the Minister, the Review Tribunal or the Board to rescind orders based on new facts. This section does not apply in this case. Section 81 deals with the appeals that are made to the Minister under sections 55, 55.1, 55.2, 55.3, 60, 65.1 and 70.1 of the Plan.
[40] The Review Tribunal concluded that it lacked jurisdiction to consider the appeal in this case because it was an appeal of a decision of the Minister that was not made under any of the above-mentioned sections of the Plan. Rather, this decision was made under subsection 66(4) of the Plan, which allows the Minister to take such remedial action as the Minister deems appropriate in situations where the Minister is satisfied that a person has been denied a benefit due to an administrative error on the part of the department or as the result of erroneous advice.
[41] Besides the basic rules of statutory interpretation, the decision in Pincombe v. Canada (Attorney General) (1995), 189 N.R. 197 is also of assistance in the present case. In Pincombe, the Federal Court of Appeal concluded at paragraph 5 that the Board was correct in setting aside the decision of the Review Committee (now Review Tribunal) and restoring the Minister's decision, on the ground that neither the Committee nor the Board had jurisdiction to entertain appeals from the Minister's decision under subsection 65(4) (now 66(4)), or to interfere with the discretion the Minister has exercised under that subsection.
[42] The Federal Court went on to state in Pincombe at paragraph 5 that, since no right of appeal for decisions made pursuant to subsection 65(4) (now 66(4)) was provided in sections 81 to 86 of the Plan, a right of appeal could not be created as it is well settled that such a right must be expressly given by statute. This approach was later followed by the Federal Court of Appeal in Canada (Minister of Human Resources Development) v. Tucker (2003), 308 N.R. 189, 2003 FCA 278.
[43] It should be noted, however, that the Federal Court of Appeal in Pincombe at paragraph 6 did allow that such a decision of the Minister would not be entirely immune from review; such a review would take the form of judicial review pursuant to section 18.1 of the Federal Court Act.
[44] Based on the above, I must conclude that the designated member of the Board did commit a reviewable error by granting leave to appeal the decision of the Review Tribunal. Since neither the Review Tribunal nor the Board has jurisdiction to entertain an appeal of a decision of the Minister under subsection 66(4), there is no possibility for the Respondent to have presented an arguable case to be granted leave to appeal.
[45] Having looked at the legalities of this matter, and having heard from Mr. Dale himself at the hearing, the Court recognizes the intensely human and compassionate considerations that lie behind these proceedings. Strictly speaking, of course, they are not matters that the Court can address in an application that raises only narrow jurisdictional points of law. All the Court can do is to wish Mr. Dale well in his endeavours and to trust that those who deal with him under the Plan do so in the spirit of fairness and compassion that his situation requires. This is not to suggest that he has not been so dealt with to date; there is no evidence before me in this regard. But Mr. Dale strikes me as a most honourable individual, genuinely concerned to support those who supported him in his time of need, and deserving of any assistance in this regard that the Plan allows him.
ORDER
THIS COURT ORDERS THAT:
- The Application is allowed and the Decision of the Honourable K.C. Binks of the Pension Appeals Board granting the Respondent leave to appeal the decision of the Review Tribunal that denied the Respondent’s application to review the decision of the Minister under subsection 66(4) of the Plan is quashed and set aside.
“James
Russell”
Judge
Schedule A
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66. (4) Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of this Act, any person has been denied
(a) a benefit, or portion thereof, to which that person would have been entitled under this Act,
(b) a division of unadjusted pensionable earnings under section 55 or 55.1, or
(c) an assignment of a retirement pension under section 65.1,
the Minister shall take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in under this Act had the erroneous advice not been given or the administrative error not been made
…
81. (1) Where
(a) a spouse, former spouse, common-law partner, former common-law partner or estate is dissatisfied with any decision made under section 55, 55.1, 55.2 or 55.3,
(b) an applicant is dissatisfied with any decision made under section 60,
(c) a beneficiary is dissatisfied with any determination as to the amount of a benefit payable to the beneficiary or as to the beneficiary’s eligibility to receive a benefit,
(d) a beneficiary or the beneficiary’s spouse or common-law partner is dissatisfied with any decision made under section 65.1, or
(e) a person who made a request under section 70.1, a child of that person or, in relation to that child, a person or agency referred to in section 75 is dissatisfied with any decision made under section 70.1,
the dissatisfied party or, subject to the regulations, any person on behalf thereof may, within ninety days after the day on which the dissatisfied party was notified in the prescribed manner of the decision or determination, or within such longer period as the Minister may either before or after the expiration of those ninety days allow, make a request to the Minister in the prescribed form and manner for a reconsideration of that decision or determination.
(2) The Minister shall forthwith reconsider any decision or determination referred to in subsection (1) and may confirm or vary it, and may approve payment of a benefit, determine the amount of a benefit or determine that no benefit is payable, and shall thereupon in writing notify the party who made the request under subsection (1) of the Minister’s decision and of the reasons therefor.
82. (1) A party who is dissatisfied with a decision of the Minister made under section 81 or subsection 84(2), or a person who is dissatisfied with a decision of the Minister made under subsection 27.1(2) of the Old Age Security Act, or, subject to the regulations, any person on their behalf, may appeal the decision to a Review Tribunal in writing within 90 days, or any longer period that the Commissioner of Review Tribunals may, either before or after the expiration of those 90 days, allow, after the day on which the party was notified in the prescribed manner of the decision or the person was notified in writing of the Minister’s decision and of the reasons for it.
[…]
(11) A Review Tribunal may confirm or vary a decision of the Minister made under section 81 or subsection 84(2) or under subsection 27.1(2) of the Old Age Security Act and may take any action in relation to any of those decisions that might have been taken by the Minister under that section or either of those subsections, and the Commissioner of Review Tribunals shall thereupon notify the Minister and the other parties to the appeal of the Review Tribunal’s decision and of the reasons for its decision.
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.
[…]
(11) The Pension Appeals Board may confirm or vary a decision of a Review Tribunal under section 82 or subsection 84(2) and may take any action in relation thereto that might have been taken by the Review Tribunal under section 82 or subsection 84(2), and shall thereupon notify in writing the parties to the appeal of its decision and of its reasons therefor.
84. (2) The Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding subsection (1), on new facts, rescind or amend a decision under this Act given by him, the Tribunal or the Board, as the case may be.
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66. (4) Dans le cas où le ministre est convaincu qu’un avis erroné ou une erreur administrative survenus dans le cadre de l’application de la présente loi a eu pour résultat que soit refusé à cette personne, selon le cas :
a) en tout ou en partie, une prestation à laquelle elle aurait eu droit en vertu de la présente loi,
b) le partage des gains non ajustés ouvrant droit à pension en application de l’article 55 ou 55.1,
c) la cession d’une pension de retraite conformément à l’article 65.1,
le ministre prend les mesures correctives qu’il estime indiquées pour placer la personne en question dans la situation où cette dernière se retrouverait sous l’autorité de la présente loi s’il n’y avait pas eu avis erroné ou erreur administrative.
…
81. (1) Dans les cas où :
a) un époux ou conjoint de fait, un ex-époux ou ancien conjoint de fait ou leurs ayants droit ne sont pas satisfaits d’une décision rendue en application de l’article 55, 55.1, 55.2 ou 55.3,
b) un requérant n’est pas satisfait d’une décision rendue en application de l’article 60,
c) un bénéficiaire n’est pas satisfait d’un arrêt concernant le montant d’une prestation qui lui est payable ou son admissibilité à recevoir une telle prestation,
d) un bénéficiaire ou son époux ou conjoint de fait n’est pas satisfait d’une décision rendue en application de l’article 65.1,
e) la personne qui a présenté une demande en application de l'article 70.1, l'enfant de celle-ci ou, relativement à cet enfant, la personne ou l'organisme visé à l'article 75 n'est pas satisfait de la décision rendue au titre de l'article 70.1,
ceux-ci peuvent, ou, sous réserve des règlements, quiconque de leur part, peut, dans les quatre-vingt-dix jours suivant le jour où ils sont, de la manière prescrite, avisés de la décision ou de l’arrêt, ou dans tel délai plus long qu’autorise le ministre avant ou après l’expiration de ces quatre-vingt-dix jours, demander par écrit à celui-ci, selon les modalités prescrites, de réviser la décision ou l’arrêt.
(2) Le ministre reconsidère sur-le-champ toute décision ou tout arrêt visé au paragraphe (1) et il peut confirmer ou modifier cette décision ou arrêt; il peut approuver le paiement d’une prestation et en fixer le montant, de même qu’il peut arrêter qu’aucune prestation n’est payable et il doit dès lors aviser par écrit de sa décision motivée la personne qui a présenté la demande en vertu du paragraphe (1).
82. (1) La personne qui se croit lésée par une décision du ministre rendue en application de l’article 81 ou du paragraphe 84(2) ou celle qui se croit lésée par une décision du ministre rendue en application du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse ou, sous réserve des règlements, quiconque de sa part, peut interjeter appel par écrit auprès d’un tribunal de révision de la décision du ministre soit dans les quatre-vingt-dix jours suivant le jour où la première personne est, de la manière prescrite, avisée de cette décision, ou, selon le cas, suivant le jour où le ministre notifie à la deuxième personne sa décision et ses motifs, soit dans le délai plus long autorisé par le commissaire des tribunaux de révision avant ou après l’expiration des quatre-vingt-dix jours.
[…]
(11) Un tribunal de révision peut confirmer ou modifier une décision du ministre prise en vertu de l’article 81 ou du paragraphe 84(2) ou en vertu du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse et il peut, à cet égard, prendre toute mesure que le ministre aurait pu prendre en application de ces dispositions; le commissaire des tribunaux de révision doit aussitôt donner un avis écrit de la décision du tribunal et des motifs la justifiant au ministre ainsi qu’aux parties à l’appel.
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.
(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.
[…]
(11) La Commission d’appel des pensions peut confirmer ou modifier une décision d’un tribunal de révision prise en vertu de l’article 82 ou du paragraphe 84(2) et elle peut, à cet égard, prendre toute mesure que le tribunal de révision aurait pu prendre en application de ces dispositions et en outre, elle doit aussitôt donner un avis écrit de sa décision et des motifs la justifiant à toutes les parties à cet appel.
84. (2) Indépendamment du paragraphe (1), le ministre, un tribunal de révision ou la Commission d’appel des pensions peut, en se fondant sur des faits nouveaux, annuler ou modifier une décision qu’il a lui-même rendue ou qu’elle a elle-même rendue conformément à la présente loi. |
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1498-05
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v.
WAYNE DALE
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: September 13, 2006
REASONS FOR ORDER
AND ORDER: RUSSELL J.
DATED: November 10, 2006
APPEARANCES:
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Stuart Herbert |
FOR THE APPLICANT |
|
Wayne Dale |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada FOR RESPONDENT Department of Justice Ontario Regional Office Toronto, Ontario |
FOR THE APPLICANT |
|
No solicitor of record (self-represented)
|
FOR THE RESPONDENT |