BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
and
Heard at Ottawa, Ontario, on January 10, 2007.
Judgment delivered at Ottawa, Ontario, on January 15, 2007.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: MALONE J.A.
RYER J.A.
Docket: A-145-06
Citation: 2007 FCA 41
CORAM: LÉTOURNEAU J.A.
MALONE J.A.
RYER J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Appellant
and
JOY HOGERVORST
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal from a judgment of a judge of the Federal Court (judge) whereby he dismissed an application for judicial review of a decision of a member of the Pension Appeals Board (Board) rendered on June 6, 2005.
[2] The member granted the respondent an extension of time and leave to appeal a decision of a Review Tribunal rendered on November 4, 1997. The generous limitation period of ninety (90) days for this appeal had elapsed more than seven years prior to the member’s decision.
[3] There is not the slightest doubt in my mind that this appeal ought to be allowed and that the decision of the member, issued without any supporting reasons at all, cannot be permitted to stand.
[4] Before I state the reasons why this appeal must be allowed, a review of the key facts and procedural incidents is necessary.
FACTS AND PROCEDURE
[5] At the age of 46, the respondent, a registered nurse who represented herself throughout the proceedings, applied for disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (the CPP). This first application was denied both initially and upon reconsideration. The respondent appealed the decision. The Review Tribunal, which dismissed the respondent’s appeal on November 4, 1997, informed her that she could appeal the decision to the Board within ninety (90) days or such longer period as the Chairman or Vice-Chairman of the Board might allow. The respondent did not appeal the decision of the Review Tribunal, which became final and binding under subsection 84(1) of the CPP. I will call this decision of the Review Tribunal the RT-1 decision.
[6] The respondent made a second application for disability benefits in January 2000. The contributory nature of the CPP requires that disability be established within one’s contributory period. In this instance, based on her contributions, the respondent’s contributory period ended on December 31, 1997.
[7] Because the RT-1 decision of November 4, 1997 was final and binding, the respondent, through her second application, could be entitled to disability benefits only if she established that she became disabled between November 5 and December 31, 1997, the day she last satisfied the contributory requirements.
[8] The respondent’s application was denied initially and upon reconsideration by the appellant. An appeal was launched to a Review Tribunal, which dismissed the respondent’s appeal. The Review Tribunal found that there were no new facts with respect to the first decision and that it had not been satisfied that the respondent had a severe and prolonged disability prior to December 31, 1997.
[9] This second Review Tribunal decision (hereafter called RT-2 decision), rendered on October 1, 2001, was not appealed by the respondent and became final and binding.
[10] On November 16, 2001, the respondent made an application pursuant to subsection 84(2) of the CPP to re-open the RT-2 decision. Subsection 84(2) authorizes a Review Tribunal to rescind or amend its prior decision on the basis of new facts.
[11] The respondent’s application under subsection 84(2) was heard on March 6, 2002 by a Review Tribunal. The Tribunal found that the new evidence submitted by the respondent did not meet the test for new facts. Her application was therefore dismissed.
[12] The respondent was granted leave to appeal by the Board from that third decision of a Review Tribunal (RT-3 decision). An objection to the jurisdiction of the Board to hear the appeal was dismissed by the Board. This Court, in December 2004, quashed that decision of the Board and ruled that the Board had no jurisdiction to hear that appeal since there were no new facts. The respondent’s recourse was to seek judicial review of the RT-3 decision made pursuant to subsection 84(2) in the Federal Court.
[13] The respondent did not apply for judicial review of the RT-3 decision. Rather, she applied in March 2005 to a member of the Board for an extension of time and leave to appeal the RT-1 decision rendered on November 4, 1997.
[14] The respondent’s application was made ex parte and allowed by a member of the Board who, as previously mentioned, granted an extension of time and leave to appeal without providing reasons, although more than seven years had elapsed since the RT-1 decision had been rendered.
[15] The appellant unsuccessfully challenged the extension of time and leave decision by way of judicial review in the Federal Court. His application was dismissed by the Federal Court on March 30, 2006.
[16] The following chart with references to the Appeal Book summarizes the procedural history of this case leading to this appeal:
|
Date
|
Event |
Page |
|
Aug. 1996 |
Respondent applies for disability benefits. She is refused initially and on reconsideration. |
|
|
4 Nov. 1997 |
First Review Tribunal (“RT-1”) dismisses respondent’s appeal |
Vol. I, pp. 164-166 |
|
31 Dec. 1997 |
Respondent’s contributory period ends |
Vol. II, p. 610 |
|
Jan. 2000 |
Respondent makes 2nd application for disability benefits - she is refused initially and on reconsideration |
|
|
2 Oct. 2001 |
Second Review Tribunal (“RT-2”) dismiss respondent’s appeal |
Vol. III, p. 731 |
|
16 Nov. 2001 |
Respondent applies to re-open RT-2 decision on basis of new facts |
|
|
6 Mar. 2002 |
Third Review Tribunal (“RT-3”) decides that respondent does not meet test for new evidence |
Vol II, pp. 462-464 |
|
2 Oct. 2002 |
Member of Pension Appeals Board grants respondent leave to appeal RT-3 decision |
Vol III., p 739 |
|
14 Dec. 2004 |
Federal Court of Appeal quashes PAB decision on basis that PAB has no jurisdiction to hear appeals of “no new facts” decisions |
Book of Authorities, Tab 1 (2004 FCA 433) |
|
6 June 2005 |
Member of PAB grants extension of time and leave to appeal of RT-1. |
Vol. I, p. 34 |
|
30 Mar. 2006 |
Federal Court dismisses appellant’s application for judicial review. |
Vol. I, p. 6 |
ANALYSIS OF THE MEMBER’S AND THE FEDERAL COURT’S DECISIONS
[17] The judicial review proceedings before the Federal Court required that Court to review the legality of the member’s decision to grant an extension of time and leave to appeal the RT-1 decision. On appeal, our role consists in determining whether the Federal Court committed errors in the exercise of its supervisory function. In my respectful view, these are the errors that justify our intervention.
The member’s decision to grant leave to appeal the RT-1 decision amounts to a collateral attack against the RT-2 decision
[18] The RT-1 decision found that the respondent was not disabled for the period ending November 4, 1997. The RT-2 decision came to the same conclusion for the period from November 5 to December 31, 1997. Although they deal with different periods, the RT-1 and RT-2 decisions are necessarily related as they both deal with the issue of the respondent’s disability.
[19] Indeed, a finding of disability for the period ending November 4, 1997 could hardly co-exist with a finding that the respondent is not disabled for the period from November 5, 1997 to December 31, 1997, especially since the RT-2 decision found that there were no new facts with respect to the RT-1 decision. The RT-2 decision is conclusive on the issue of the respondent’s disability for the period up to December 31, 1997. Thus, an appeal against the RT-1 decision collaterally attacks the RT-2 decision that is also final and binding for all purposes of the CPP pursuant to subsection 84(1) of the CPP.
[20] The situation here is analogous to seeking a review of an initial decision without challenging or addressing a subsequent decision reconsidering the same issue and confirming the initial decision. These are two distinct decisions and the second decision must be attacked directly, not collaterally: see Vidéotron Télécom Ltée v. Communications, Energy and Paperworkers Union of Canada, 2005 FCA 90, at paragraph 12.
[21] The judge should not have permitted this collateral attack to go on. This Court ruled in Her Majesty the Queen in the Right of Canada et al. v. Budisukma Puncak Sendirian Berhad et al. (2005), 338 N.R. 2006, 2005 FCA 267, at paragraphs 61 and 62 (Berhad case) that collateral attacks against decisions that are final ought to be precluded in the public interest since such attacks encourage conduct contrary to the statute’s objectives and tend to undermine its effectiveness.
The member’s decision to grant leave to appeal the RT-1 decision could give rise to inconsistent decisions
[22] A finding of disability pursuant to the appeal against the RT-1 decision would be inconsistent with, indeed in opposition to, the RT-2 and RT-3 decisions. As this Court said in the Vidéotron Télécom Ltée case, at paragraph 13, “the state and stability of the law would be ill served if two potentially contradictory decisions were allowed to co-exist”, involving the same parties, on the same issue.
[23] Again, the judge should have intervened and quashed the member’s decision in order to prevent this kind of consequence.
The member’s decision ignores and violates the finality principle with respect to the RT-1, RT-2 and RT-3 decisions
[24] In the Berhad case, supra, at paragraph 60, this Court reiterated the principle that a time-limit for the commencement of challenges to administrative decisions is not whimsical. “It exists in the public interest, in order to bring finality to administrative decisions so as to ensure their effective implementation without delay and to provide security to those who comply with the decision or enforce compliance with it, often at considerable expense”.
[25] In the present instance, this reminder carries even more weight since there were, in addition to the RT-1 decision now being challenged, two subsequent final and binding decisions of Review Tribunals, to the same effect as the RT-1 decision, i.e. the RT-2 and RT-3 decisions.
[26] Furthermore, subsection 84(2) of the CPP provides a relief against an earlier decision when new facts are discovered and submitted to the Review Tribunal. That relief was sought by the respondent and led to the RT-3 decision. As previously mentioned, the final finding of the RT-3 decision was that there were no new facts justifying a reversal of the RT-2 decision. Such finding was consistent with a similar conclusion of the RT-2 decision that there were no new facts since the rendering of the RT-1 decision.
[27] The challenge to the RT-1 decision, if allowed to proceed, can lead to an intolerable and prejudicial situation, both from the perspective of public interest and fairness to the appellant. The judge erred in not recognizing and giving effect to the principle of finality in these circumstances.
The member’s decision to grant an extension of time to apply for leave to appeal and leave against the RT-1 decision was an improper exercise of discretion
[28] In my respectful view, the grant by the member of an extension of time to file an application for leave to appeal and leave against the RT-1 decision was an improper exercise of discretion.
[29] There was a debate before the judge as to whether the member was under a statutory duty to provide reasons when he granted the extension of time and leave. This misses the point and totally ignores the facts and circumstances of this case.
[30] First, the granting, without any explanation or justification whatsoever, of an extension of time and leave to challenge a final decision more than seven years after it was rendered can only give rise to a reasonable inference that the discretion was, if not arbitrarily, at least improperly exercised, especially when two more binding and final decisions to the same effect on the same issue, between the same litigants, remain effective and unchallenged.
[31] Furthermore, in such circumstances, it imposes upon the judge sitting in judicial review the duty to scrupulously review the member’s decision and provide adequate reasons. This, the judge undertook to do, but he misapplied the legal test governing the issue.
[32] There is no dispute as to what the correct legal test is on a motion for an extension of time to file an application for leave to appeal: see Marshall v. Canada, 2002 FCA 172; Neis v. Baksa, 2002 FCA 230. What is required is that
a) there was and is a continuing intention on the part of the party presenting the motion to pursue the appeal;
b) the subject matter of the appeal discloses an arguable case;
c) there is a reasonable explanation for the defaulting party’s delay; and
d) there is no prejudice to the other party in allowing the extension.
[33] This test is not in contradiction with the statement of this Court made more than twenty (20) years ago in Grewal v. Canada (Min. of Employment and Immigration), [1985] 2 F.C. 263 that the underlying consideration in an application to extend time is to ensure that justice is done between the parties. The above stated four-pronged test is a means of ensuring the fulfillment of the underlying consideration. It ensues that an extension of time can still be granted even if one of the criteria is not satisfied: see Grewal v. Canada, supra, at pages 278-279.
a) The continuing intention to appeal the RT-1 decision
[34] In the present instance, the new application for benefits made in January 2000, which led to the RT-2 decision, and the review of that decision in November 2001, ending in the RT-3 decision, together with the more than seven-year delay before seeking an extension of time to appeal the RT-1 decision, are compelling evidence that the respondent had no intention, let alone a continuing intention, to appeal the RT-1 decision within the 90 day appeal period and any reasonable time thereafter.
[35] A finding by either the member or the judge that the respondent had a continuing intention to appeal the RT-1 decision is nothing less than unreasonable in the circumstances. The fact that the respondent was self-represented does not justify a departure from the legal principles applicable. Only chaos can result when decisions are made ad personam rather than according to the rule of law. As our colleague Pelletier J.A. wrote in Wagg v. Canada, 2003 FCA 303, at paragraph 25:
[25] Putting the matter another way, litigants who choose to represent themselves must accept the consequences of their choice: Thus, while the Court will take into account the lack of experience and training of the litigant, that litigant must also realize that, implicit in the decision to act as his or her own counsel is the willingness to accept the consequences that may flow from such lack of experience or training (Lieb v. Smith, [1994] N.J. No. 199).
b) The existence of an arguable case
[36] On the issue of whether there is an arguable case, the judge wrote the following at paragraph 17 of his decision:
[17] The record before the Court demonstrates that the respondent has a strong prima facie case that she is disabled with a severe and prolonged physical disability which makes her incapable of regularly pursuing any substantial gainful occupation and that this disability is likely to be of an indefinite duration. See subsection 42(2) of the CPP attached. This is a finding of fact.
[37] With due respect, I believe the judge addressed the issue from a wrong perspective. The question is whether the respondent has, at law, an arguable case. To put it in other words, has the respondent, legally, a reasonable chance of success? At best, this is a mixed question of fact and law.
[38] I cannot see how it can be said that the respondent has an arguable case when both the RT-2 and RT-3 decisions, that are final and binding, have found that the respondent was not disabled for the period up to December 31, 1997 and that there were no new facts since the rendering of the
RT-1 decision.
c) A reasonable explanation for the delay
[39] The respondent has provided no explanation for the twenty-seven month period of inactivity between the RT-1 decision (November 4, 1997) and her second application for benefits (January 2000). The five-year period that followed was consumed by procedures that were initiated by the respondent. Although there is an explanation for that second period of time, that explanation is of little help in justifying the inactivity with respect to the RT-1 decision. In fact, the explanation shows that the respondent, at the relevant time, was not interested in pursuing an appeal of the RT-1 decision since she had opted for other recourses that turned out to be unsuccessful. The lack of success of these other recourses cannot justify the additional delay of five years before appealing the RT-1 decision.
d) The prejudice to the other party
[40] The judge came to the conclusion that there was no evidence on the record that the appellant would be prejudiced if the extension of time was allowed. Of course, there would be no such evidence since the application for the extension of time and leave to appeal proceeded ex parte and the appellant was not heard on the issue. Needless to say that the burden was on the respondent to show that no prejudice would result to the appellant. The judge does not appear to have considered the issue of prejudice from that perspective.
[41] I agree with Heneghan J. in Canada (Minister of Human Resources Development) v. de Tommaso, 2005 FC 1531, at paragraph 20 where leave to appeal had been granted approximately seven years after the time-limit had elapsed, that a new hearing before the Board after such a lengthy and significant passage of time will, in all likelihood, prejudice the appellant.
[42] In addition, the appellant, like the public and other parties to a litigation, has an interest in the finality and certainty of decisions: see Canada (Minister of Human Resources Development v. Gattellaro, 2005 FC 883 (F.C.). Uncertainty and prejudice to the appellant, and to the public interest as well, are inevitable if collateral attacks are permitted on the RT-2 and RT-3 decisions by allowing an appeal of the RT-1 decision to proceed.
Whether the judge overstepped the boundaries of judicial review
[43] The appellant submits in his memorandum of fact and law that the judge had come to the conclusion that the respondent was disabled and that that conclusion appeared to have influenced his decision to dismiss the appellant’s application for judicial review. He submits a number of excerpts from the transcript of the proceedings in support of his contention.
[44] I need not address this issue in view of the conclusion that I have reached on the other grounds of appeal. I will, however, say this: I agree with the appellant that the role of the judge was not to determine, or give a personal opinion as to, the disability of the respondent.
[45] The judge felt under an obligation “to look after” self-represented litigants: see Transcript of proceedings, appeal book, vol. III, tab 10, at page 906. Some of the comments that he made, however, went beyond assistance to an unrepresented litigant and were misplaced in the context of the proceedings that were before him.
Whether the member of the Board erred in hearing ex parte the application for leave
[46] Rule 7 of the Pension Appeals Board Rules of Procedure (Benefits) expressly states that an application for leave to appeal “shall be disposed of ex parte unless the Chairman or Vice-Chairman directs otherwise”. The appellant recognizes that the member of the Board had the statutory authority to proceed as he did.
[47] However, that being said, I would have thought that the whole process could have been guided by some common sense. More than seven years had elapsed since the rendering of the RT-1 decision that the respondent wanted to challenge. At all times, the appellant was a party to all the proceedings instituted by the respondent. In these unusual circumstances, the member of the Board should have sought a direction from either the Chairman or the Vice-Chairman as to the appropriateness of seeking submissions from the appellant in response to the respondent’s application. This would have ensured fairness to the appellant and increased the likelihood of a more enlightened decision as well as promoted the credibility of the Board itself.
CONCLUSION
[48] For these reasons, I would allow the appeal and set aside the decision of the Federal Court rendered on March 30, 2006. Proceeding to render the judgment that should have been rendered, I would allow the appellant’s application for judicial review and quash the decision of a member of the Board, dated June 6, 2005, granting the respondent an extension of time and leave to appeal a decision of a Review Tribunal rendered on November 4, 1997. Since there is no point in sending the matter back for a new determination, I would dismiss the respondent’s application for an extension of time and for leave to appeal: see Mobil Oil v. Office des Hydrocarbures, [1994] S.C.R. 202, at page 228; Yassine v. Canada (Minister of Employment and Immigration, [1994] F.C.JU. No. 949 (C.A.F.), at paragraph 9; Cartier v. Canada (Procureur général), [2002] A.C.F. no 1386, at paragraphs 31 to 33; Vézina v. Procureur général du Canada (Ministre du Revenu national), 2003 CAF 67, at paragraph 7.
[49] As the appellant did not seek costs in this Court and in the Federal Court, I would issue no order as to costs.
“I agree
B. Malone J.A.”
“I agree
C. Michael Ryer J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-145-06
APPEAL FROM A JUDGMENT OF THE FEDERAL COURT DATED MARCH 30, 2006, FILE NO. T-1205-05
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES
DEVELOPMENT v. JOY HOGERVORST
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 10, 2007
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: MALONE J.A.
RYER J.A.
APPEARANCES:
|
FOR THE APPELLANT
|
|
|
ON HER OWN BEHALF
|
SOLICITORS OF RECORD:
|
Department of Justice Ottawa, Ontario |
FOR THE APPELLANT
|