BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
Heard at Halifax, Nova Scotia, on November 15, 2006.
Judgment delivered from the Bench at Halifax, Nova Scotia, on November 15, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Docket: A-571-05
Citation: 2006 FCA 375
CORAM: LINDEN J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
DIANNE MARIE KENT
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Halifax, Nova Scotia, on November 15, 2006.)
[1] This is an application for judicial review by Dianne Marie Kent to set aside a decision of the Pension Appeals Board, dated October 12, 2005, granting an appeal by the Minister of Social Development and denying Ms Kent a disability pension. The Board concluded that Ms Kent had not adduced sufficient evidence to establish that, on or before December 31, 1997 (her minimum qualifying period), she was suffering from a severe and prolonged mental or physical disability within the meaning of paragraph 4(2)(a) of the Canada Pension Plan, R.S.C. 1985, c. C-8.
[2] We are not satisfied that, in so concluding, the Board made any reviewable error. In particular, it cannot be said that, on the evidence before it, the Board based its decision on a finding of fact that was patently unreasonable. Similarly, the Board’s conclusion that Ms Kent had failed to adduce sufficient evidence to establish that she was disabled within the meaning of the Plan was not patently unreasonable.
[3] Ms Kent also alleged in her oral presentation to us that she had been denied a fair hearing by the Board, whose members, she said, had not treated her respectfully. However, she did not allege procedural unfairness by the Board in her notice of application for judicial review, nor in her memorandum of fact and law. It is too late to raise this allegation for the first time at the hearing of the application for judicial review.
[4] We note that Ms Kent’s claim for a disability pension has a long history. She first applied to the Minister in 1995, having stopped work as a nurse in 1994. In January 1996, a Review Tribunal dismissed Ms Kent’s appeal from the Minister’s refusal of her application for a pension, on the ground that she had adduced insufficient evidence that her medical condition was “severe”. The Board refused leave to Ms Kent to appeal this decision.
[5] In May 2002, Ms Kent applied to the Tribunal under subsection 84(2) of the Plan to reconsider its decision. On the basis of additional medical evidence put before the Tribunal, it changed its decision and, on August 22, 2002, decided that she was entitled to a disability pension. The Board granted leave to the Minister leave to appeal from this decision.
[6] Without considering the merits of the Tribunal’s reconsideration decision, the Board allowed the appeal on October 28, 2003. It held that the Tribunal had erred in finding that the additional evidence adduced before the Tribunal constituted “new facts” within the meaning of subsection 84(2) of the Plan. As an exception to the principle that adjudicative decisions under the Plan are final and render the matter res judicata, a decision-maker may reconsider its original decision under subsection 84(2) if there are “new facts”, as defined in the jurisprudence.
[7] On an application for judicial review to this Court, the Board’s decision was set aside: Kent v. Canada (Attorney General (2004), 248 D.L.R. (4th) 12, 2004 FCA 420. The Court held that, on an appeal of a reconsideration decision by the Tribunal, the Board could not set aside the decision of the Tribunal simply because it disagreed with the Tribunal’s finding that there were “new facts” which enabled it to reconsider its original decision. Rather, the Board is obliged to determine de novo the merits of an appeal, on the basis of all the available evidence, including the facts accepted by the Tribunal as “new facts”. The Court remitted the matter for redetermination on this basis by a differently constituted Board: para. 37.
[8] We are satisfied that in the instant case the Board complied with the Court’s direction and decided Ms Kent’s appeal on its merits. Thus, the Board stated (at para. 41 of its reasons):
There were no “new facts” presented to this Board and, therefore, the Board’s jurisdiction as provided by subsection 83(11) of the Plan is to consider the Review Tribunal decision of August 22, 2002 incorporating the “new facts” as found by it [i.e. the Tribunal], as well as the totality of the circumstances and come to its own conclusion as to whether the respondent was disabled within the meaning of the Plan on or before December 1997.
[9] Immediately before reasons for judgment were given from the Bench, counsel for the Minister rose to request the Court to reconsider the principle articulated in Kent, and other cases. Namely, without ruling on the merits, the Board may not dispose of an appeal from a reconsideration decision by the Tribunal, on the sole ground that the Tribunal erred in its determination of whether additional evidence put to it constituted “new facts” so as to engage its jurisdiction to reconsider an earlier decision.
[10] We decline to enter into this inquiry. Counsel had not laid the ground for this submission in her memorandum of fact and law. Apart from a comment that the effect of Kent and other similar decisions is to delay the final adjudication of disability pension claims, counsel did not seek to explain why the Court should depart from the principle in Miller v. Canada (Attorney General) (2002), 220 D.L.R. (4th) 149, 2002 FCA 370, that the Court normally follows its previous decisions.
[11] For these reasons, Ms Kent’s application for judicial review will be dismissed. Costs were not requested and are not awarded.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-571-05
STYLE OF CAUSE: Dianne Marie Kent v. The Attorney General of Canada
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: November 15, 2006
REASONS FOR JUDGMENT OF THE COURT BY: Linden J.A.
Noël J.A.
Evans J.A.
DELIVERED FROM THE BENCH BY: Evans J.A.
APPEARANCES:
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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FOR THE RESPONDENT
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