Date: 19980216
Docket: 98-A-1
OTTAWA, Tuesday, February 17, 1998.
PRESENT: THE HONOURABLE MR. JUSTICE STONE
BETWEEN:
SALVATORE GRAMAGLIA,
APPELLANT,
- and -
CANADA PENSION-PLAN PENSION APPEAL BOARD VICECHAIRMAN RUTHERFORD, J.
RESPONDENT,
REASONS FOR ORDER
STONE J.A.
[1] This is a motion pursuant to Rule 324 to extend the time for bringing an application for judicial review of a decision of the Vice-Chairman of the Pension Appeals Board declining to grant the applicant leave to appeal a decision of a Review Tribunal.
[2] The motion although entitled in this Court was filed in the Trial Division and was initially assigned file number T-32-98. That file was subsequently closed for the reasons explained in one
Page: 2
of the respondent's supporting affidavits:
1. On February 4, 1998, 1 tried to file a motion to change the name of the Respondents, on behalf of the Attorney General. The registrar informed me that file T-32-98 no longer existed and that the motion could not be filed.
2. The registrar made inquiries and informed that someone from the registrar's office had closed file T-32-98 and had transferred the documents in file 98-A-1.
[3] The respondent now moves to amend the style of cause and, more significantly, to have
the motion for an extension of time dismissed on the ground that it is not within the jurisdiction
of this Court under paragraph 28(1)(d) of the Federal Court Act:
28. The Court of Appeal has jurisdiction to hear and deterniine applications for judicial review made in respect of any of the following federal boards, commissions or other tribunals:
(d) the Pension Appeals Board established by the CanadaPension Plan;
[4] The jurisdiction of the Vice-Chairman with respect to leave is bestowed by subsection
83(1) of the Canada Pension Plan, R.S.C. 1985, c. C-8, as amended.'
t
That subsection reads:
(1) A spouse, former spouse, estate, applicant, beneficiary or beneficiary's spouse 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 is communicated to the spouse, former spouse, estate, applicant, beneficiary, beneficiary's spouse, person 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.
Page: 3
[5] I am satisfied that the motion to extend time is not within the jurisdiction that is conferred
on this Court by that paragraph. That is apparent from the decision of this Court in Martin v.
The Minister of Human Resources Development (Court File No. A-120-97, November 24, 1997),
where Pratte J.A. stated for the Court:
The decision sought to be reviewed is not a decision of the Board but a decision of its vice-chairman made in the exercise of a jurisdiction which, by statute, is not conferred on the Board but on its chairman and vice-chairman who, unlike the Board, are not among the tribunals listed in section 28 of the Federal Court Act. It follows that this application should have been commenced in the Trial Division.
[6] This matter will be transferred to the Trial Division where it may be pursued by the applicant in the usual way. The respondent's motion to amend the style of cause is not within the jurisdiction of this Court. It must be dismissed but without prejudice to the respondent bringing it in the Trial Division.
A. J. Stone 11
v
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: 98-A-1
STYLE OF CAUSE: Salvatore Gramaglia v. Canada Pension Plan et al.
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES.
REASONS FOR ORDER BY: Stone J.A.
DATED: Tuesday, February 17, 1998
WRITTEN REPRESENTATIONS BY:
Salvatore Gramaglia the Applicant, on his own behalf
Michel Mathieu for the Respondents
SOLICITORS OF RECORD:
Legal Services
Human Resources Development
Vanier, Ontario for the Respondents