Date: 20041214
Docket: A-146-04
Citation: 2004 FCA 433
CORAM: DESJARDINS J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
JOY HOGERVORST
Respondent
Heard at Ottawa, Ontario, on December 14, 2004.
Judgment delivered from the Bench at Ottawa, Ontario, on December 14, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS J.A.
Date: 20041214
Docket: A-146-04
Citation: 2004 FCA 433
CORAM: DESJARDINS J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
JOY HOGERVORST
Respondent
REASONS FOR JUDGMENT OF THE COURT
Delivered from the Bench at Ottawa, Ontario, on December 14, 2004
[1] This is an application for judicial review by the Minister of a decision of the Pension Appeals Board (the "Board"). The Board allowed the respondent to appeal the finding of the Review Tribunal that the evidence brought forth by the respondent did not meet the test on "new facts" set out in subsection 84(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the "Plan").
[2] The Minister pleads that the Board was without jurisdiction to allow the appeal of the respondent, considering that a decision of the Review Tribunal under subsection 84(2) of the Plan, that no "new facts" exist, is not a decision which comes under the purview of section 83 of the Plan and therefore not a decision on which the Board can make a pronouncement.
[3] We agree.
[4] In Oliveira v. Canada (Minister of Human Resources Development). 2004 FCA 136, this Court confirmed "well established jurisprudence" that the Board has no jurisdiction to hear an appeal from a refusal by the Review Tribunal to reconsider one of its decision on the ground that the claimant had adduced no "new facts" (see at paragraphs 4 and 6 of the reasons for judgment). This decision was applied in Canada (Minister of Human Resources Development) v. Richard, [2004] F.C.A. No. 1916, Canada (Minister of Human Resources Development) v. Fleming, 2004 FCA 288, and Dianne Marie Kent v. The Attorney General of Canada, 2004 FCA 420. See also Peplinski v. Canada (T.D.) [1993] 1 F.C. 222.
[5] The respondent's only recourse is to seek judicial review in the Federal Court of the Review Tribunal's refusal to reconsider its decision.
[6] The application will be allowed without costs and the decision of the Pension Appeals Board will be set aside.
(s) "Alice Desjardins"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-146-04
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT and JOY HOGERVORST
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: DECEMBER 14, 2004
REASONS FOR JUDGMENT OF THE COURT:
DESJARDINS J.A
CONCURRED IN BY: NADON J.A.
PELLETIER J.A.
APPEARANCES:
Mr. Bahaa I. Sunallah FOR THE APPLICANT
Mrs. Joy Hogervorst ON HER OWN BEHALF
and Mr. Jake Hogervorst
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
Mrs. Joy Hogervorst ON HER OWN BEHALF
and Mr. Jake Hogervorst
Nepean, Ontario