Date: 20030109
Docket: T-2137-99
Neutral citation: 2003 FCT 12
OTTAWA, ONTARIO, THIS 9th DAY OF JANUARY 2003
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
BRIAN C. BRADLEY
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion in writing under Rule 369 of the Federal Court Rules, 1998 (the "Rules"), SOR/98-106, by the applicant, seeking an order that the Veterans Review and Appeal Board (the "Board") is in contempt of Court, and seeking other remedies.
[2] In order to understand the context of said motion and its actual purpose, some background information is necessary.
[3] On March 22, 1996, the applicant applied for a disability pension under the Pension Act, R.S.C. 1985, c. P-6, on the basis of disabilities resulting from injuries incurred in an incident on the HMCS Qu'Appelle on July 14, 1990.
[4] On February 4, 1997, the Department of Veterans Affairs Canada rejected the application and appeals to the Entitlement Review Panel and to the Board were similarly rejected on May 8, 1997, and December 3, 1997 respectively.
[5] The applicant then sought judicial review of the decision of the Board. On January 27, 1999, the Court set aside the Board's decision and referred the matter back for rehearing as well as redetermination by a differently constituted panel.
[6] A new panel of the Board reconsidered and rejected the applicant's claim on May 18, 1999.
[7] The applicant submitted an additional medical report as well as a few decisions in other cases, with his request that the Board reconsider its decision.
[8] On November 25, 1999, the Board refused to do so.
[9] The applicant then sought judicial review of this new decision of the Board. On July 13, 2001, the Court again set aside the Board's decision and referred the matter back for rehearing and redetermination by a differently constituted panel of the Board.
[10] A new hearing was held on August 14, 2002.
[11] Alleging that "subsequent to a hearing in matters of this nature, it is normal to expect a decision from the Board within 30 days of a hearing", the applicant filed on October 25, 2002, the present motion for contempt of Court, stating that the delay since August 14, 2002, "is currently beyond both the standard aforementioned period of 30 days and, as well, beyond the 60 day period that the Board has imposed upon itself".
[12] The motion was contested by the respondent.
[13] It is useful that I now refer to applicable Court Rules pertaining to contempt orders or related orders.
[14] Rules 466 to 472 establish a code governing contempt of Court. Subject to Rule 467, a person who "disobeys a process or order of the Court" (Rule 466(b)) is guilty of contempt of Court. The Rules contemplate a two-stage procedure. The first stage is the motion for a show cause order requiring the person alleged to be in contempt to appear to answer the allegations of contempt. A show cause order may be made if the Court is satisfied that there is a prima facie case that contempt has been committed (Rule 467(3)). The second stage is the contempt hearing itself. This is analogous to the trial of a criminal offence. The alleged contempt must be proven "beyond a reasonable doubt" (Rule 469). Evidence at the hearing shall be oral and the person alleged to be in contempt may not be compelled to testify (Rule 470).
[15] Moreover, where a person does not comply with an order to perform an act, without prejudice to the Court's powers to punish for contempt, Rule 431 permits the Court to direct that "the required act be performed by the person by whom the order was obtained or by another person appointed by the Court". Generally, Rule 53(2) also provides that "[w]here these Rules provide that the Court may make an order of a specified nature, the Court may make any other order that it considers just".
[16] Finally, Rule 2 mentions that "person" includes a tribunal, an unincorporated association and a partnership and that "tribunal" has the same meaning as "federal board, commission or other tribunal" in the Federal Court Act, R.S.C. 1985, c. F-7, as amended (the "Act").
[17] On November 21, 2002, the matter came before me. No decision had yet been rendered by the Board. I decided to adjourn the motion and to hold it in abeyance until January 6, 2003. In the meantime, I urged the Board to render its decision.
[18] The order issued at that occasion reads in part as follows:
UPON considering that subsections 8(2) and (4) of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the "VRAB Act"), provide that "[t]he Chairperson is the chief executive officer of the Board and has supervision over and direction of the work of the Board including the allocation of work among its members, the conduct of its work, the management of its internal affairs and the duties of its staff", and that "[i]f the Chairperson is absent or unable to act or the office of Chairperson is vacant, the Deputy Chairperson shall act as Chairperson";
UPON considering that subsection 27(1) of the VRAB Act provides that "[a]n appeal shall be heard, determined and dealt with by an appeal panel consisting of not fewer than three members designated by the Chairperson";
UPON considering that section 40 of the VRAB Act provides that "[a]ll proceedings before the Board shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit";
UPON considering that the Board has not yet rendered a new decision pursuant to the Court's order, although apparently, a new hearing was held on August 14, 2002;
UPON considering that nowhere in the respondent's motion record is there an explanation for the 13 month delay in rehearing this case, nor is there an explanation for the current delay in providing a decision subsequent to their last hearing of August 14, 2002;
UPON considering that as the initial application was submitted more than six and some half years ago, although a three month delay to render a decision after a hearing is not in itself unreasonable, when added up to the 13 month delay in rehearing the case, such inexplicable delay raises serious concerns;
UPON considering that the refusal or failure to comply with an order of the Court may constitute a contempt of Court and may lead to the issuance of an order to show cause under Rule 467 of the Rules where there is a prima facie case that contempt has been committed;
UPON considering that Rule 53(2) of the Rules provides that "[w]here these Rules provide that the Court may make an order of a specified nature, the Court may make any other order that it considers just";
THIS COURT ORDERS THAT:
1. The motion presented by the applicant is adjourned and held in abeyance until January 6, 2003. In the meantime, the Court urges the Board to render its decision;
2. Upon reception by the respondent's counsel of the present order, same shall be served personally on the Chairperson, or in his absence on the Deputy Chairperson of the Board, and within ten (10) days of the present order, the respondent's counsel shall file with the Court proof of service of said order on the Chairperson or in his absence on the Deputy Chairperson of the Board;
3. The Chairperson, or in his absence the Deputy Chairperson of the Board, shall ensure that a copy of the present order is personally remitted to each member of the panel of the Board that has been designated to rehear the matter pursuant to the order dated July 13, 2001, annexed as Appendix "A";
4. The respondent's counsel shall confirm in writing to the Court, on or before January 6, 2003, whether the Board has rendered its decision; and
5. Any additional representation or evidence by a party shall be submitted to the Court on or before January 6, 2003. A copy of same will be sent to the other party within the same delay.
[19] Pursuant to the above order, by letter dated December 20, 2002, the respondent's counsel, who has "verified this matter [today] with Ms. Jean Dixon, of Charlottetown, P.E.I., who is counsel for the Board", informed the Court "that the Veterans Review and Appeal Board has rendered a decision in the Applicant's file, which decision was dated 16 December, 2002".
[20] I have considered the respondent's request that the Court reject the applicant's motion because the matter is now moot, as well as the applicant's representations and request for further remedies.
[21] I note that the applicant is unhappy with the latest Board's decision. Among a number of grievances reproached to the Board, the issue of "structural bias" is raised. The applicant states that "[a]s the Board has failed to provide a just decision in any of their six decisions in this case, not only is it evident that every member of the Board should be replaced along with their managing and/or supervising officers, but all of their decisions over the past 7 to 10 years should be reviewed by an independent body and / or tribunal".
[22] I have now decided to dismiss the applicant's motion for a show cause order and other remedies without prejudice to the applicant's right to make a judicial review application against the decision rendered by the Board on December 16, 2002.
[23] Considering the Board has rendered a decision on December 16, 2002, the applicant's motion for a show cause order is moot.
[24] The applicant's request for the appointment of an independent body and for other remedies is also denied. Such remedies may be obtained only on an application for judicial review made under sections 18 and 18.1 of the Act. At present, no such application has been made. Accordingly, any claim made by the applicant against the decision rendered by the Board on December 16, 2002, cannot be received.
[25] This leaves the issue of costs. In the circumstances, where the motion has been contested, in the exercise of my discretion, I award costs in favour of the applicant. Accordingly, costs in the amount of $500.00 will be awarded to the applicant in lieu of any assessed costs.
ORDER
THIS COURT ORDERS THAT :
1. The applicant's motion for a show cause order and other remedies is dismissed without prejudice to the applicant's right to make a judicial review application against the decision rendered by the Board on December 16, 2002;
2. Costs are awarded to the applicant in the amount of $500.00 in lieu of any assessed costs.
Judge