Toronto, Ontario, March 26, 2007
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
and
ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] Mr. Biagio Barcellona (the “Applicant”) seeks judicial review of the decision dated April 14, 2006, made by the Honourable R.V. Deyell as a member of the Pensions Appeal Board (the “Board”) designated pursuant to subsection 83(2.1) of the Canada Pension Plan, R.S.C. 1985 c. C-8, as amended (the “Act”). In that decision, the Board rejected the Applicant’s Application for Leave to Appeal a decision of the Review Tribunal dated December 21, 2005. In its decision, the Review Tribunal had denied the Applicant’s appeal of a decision denying him disability benefits under the Act.
I. Background
[2] The Applicant applied for disability benefits under the Act on April 26, 2004. In his application, he said that he had been self-employed in the masonry trade and had stopped working in his business as of May 1, 1996 due to back problems and difficulty in breathing.
[3] By letter dated February 2, 2005, the Minister of Human Resources Development Canada (the “Minister”) rejected the Applicant’s application for disability benefits on the grounds that he did not meet the Act’s eligibility criteria for the award of such benefit. It was found that the Applicant had only made valid contributions to the Canada Pension Plan in one of the six preceding years, rather than in the minimum period of four out of the six preceding years.
[4] By letter dated April 11, 2005, the Applicant requested reconsideration of that decision. By letter dated April 26, 2005, the Minister maintained the original decision to refuse the Applicant’s application. That letter repeated the Minister’s conclusion that the Applicant was ineligible for disability benefits because he had only made valid contributions to the Canada Pension Plan in one out of the previous six years. As well, the letter stated that the Applicant was ineligible under the late applicant provision on the grounds that the Canada Pension Plan medical advisor had not found evidence of a severe and prolonged disability beginning in December 1997 and continuing without interruption.
[5] By a letter dated May 2, 2005 addressed to the “Office of the Commissioner of Review Tribunals”, the Applicant appealed the Minister’s decision refusing his application for disability benefits. On May 30, 2005, the Office of the Commissioner of Review Tribunals received a completed “Authorization to Disclose” form from the Applicant. In this form, the Applicant indicated that he would represent himself in his appeal.
[6] The Applicant’s appeal before the Review Tribunal was heard on November 3, 2005. The evidence submitted to the Review Tribunal at the hearing included an explanation of the decision under appeal, the Applicant’s record of earnings, an extract from the “Yellow Pages” referring to his business, a medical report directed to the Workers Compensation Board of Manitoba dated August 27, 1984 and an X-ray report from August 28, 1984.
[7] In a decision dated December 21, 2005, the Review Tribunal dismissed the appeal. The Review Tribunal found that the Applicant had last met the minimum contributory requirements of the Canada Pension Plan in December 1997. It said that the issue before it was to determine whether the Applicant had “a severe and prolonged disability in or before December 1997 and that he remains disabled”. It emphasized that it was limited to determining the Applicant’s employment capability as of December 1997.
[8] The Review Tribunal noted that the Applicant had recurring back pain, which limited but did not remove his ability to continue to work in the masonry trade. It noted that there was no evidence that the Applicant had tried any other type of lighter work or sedentary employment. It concluded that it had no evidence as to an attempt by the Applicant to engage in lighter work in 1997 or at any other time.
[9]
The
Review Tribunal also identified another difficulty with the Applicant’s appeal,
that is the uncertainty of the extent of his work in the summer season of
2000. The Review Tribunal reached the following conclusions:
Based on the medical and oral evidence, the Tribunal is unable to find on a balance of probabilities that the Appellant has shown he was incapable regularly of pursuing any substantially gainful employment in December of 1997. The Tribunal does not find that the Appellant’s condition was severe or prolonged at that time.
[10] In what appears to be a standard form letter with some handwritten notes, dated March 9, 2006, the Applicant requested leave to appeal the decision of the Review Tribunal. He set out the grounds for his request in a separate handwritten attachment as follows:
1. Not knowing what information the appeals board was looking for, I didn’t have the information in front of me, and therefore I was unprepared to give clear and concise answers to them, especially concerning, the year 2000.
2. I feel I am being discriminated against, due to the years I have contributed to the CPP and now that I cannot work due to my condition, I am being denied my right to a disability pension.
[11] Immediately following a typewritten section that requested the name and full address of an agent or representative upon whom service of documents may be made, the Applicant wrote up by hand that “[a]t a later date, I will contact you with the name and address of my representative”.
[12]
By
letter dated May 1, 2006, the Applicant was advised that his Application for Leave
to Appeal had been dismissed by Board member R.V. Deyell, who endorsed the Applicant’s
application as follows:
The Appellant has applied for “leave to appeal” the decision of the Review Tribunal held in Brandon, Manitoba on November 3, 2005.
The Appellant has requested by letter dated March 9, 2006, to have his claim considered by the Board.
The Appellant states he was not properly prepared for the hearing and further that “he is being discriminated against.”
The Appellant has not provided documents or reports to substantiate his request.
The Application is denied.
II. Submissions
i) The
Applicant
[13] The Applicant first refers to the applicable test to be considered by the Board in ruling upon an application for leave to appeal. Relying on the decisions in Kerth v. Canada (Minister of Human Resources Development) (1999), 173 F.T.R. 102 and Martin v. Canada (Minister of Human Resources Development) (1999), 252 N.R. 141 (F.C.T.D.), he submits that the decision whether to grant leave to appeal is “a first and lower hurdle for the Applicant to meet” as compared to the burden borne upon a hearing of an appeal on the merit. Specifically, the Applicant argues that the test to be used by the Board is whether the Applicant has raised an arguable case, relying on the decision in Canada (Minister of Human Resources Development) v. Lewis, 2006 FC 322.
[14] The Applicant further submits that the Board member erred in failing to provide a deadline before which he had to name his representative. Alternatively, he argues that the Board’s failure to grant him additional time to name a representative and/or to file additional material constitutes a breach of procedural fairness. He argues that the failure to provide a deadline is particularly relevant because he had indicated in his application for leave that he did not know what information was required by the Appeals Board when he appeared before the Review Tribunal. He also suggests that it was “especially relevant” that he receive the assistance of a representative to present his case because he had difficulty with the English language.
[15] He submits that had he been allowed to name a representative, that representative may have allowed him to present an arguable case and that any new evidence submitted would have been admissible because the proceeding before the Appeals Board is a de novo hearing.
ii) The
Respondent
[16] The Respondent first refers to the statutory framework governing applications for leave to review a decision by a Board member. The Respondent also refers to subsections (d) and (e) of Rule 4 of the Pension Appeals Board Rules of Procedure (Benefits) C.R.C. 1978 c. 390, as amended (the “Rules”).
[17] The Respondent agrees with the Applicant that the test for determining if leave should be granted under section 83 of the Act is whether an arguable case has been presented.
[18] The Respondent then addresses the standard of review and relies on the decision in Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114, where Justice MacKay stated that a review of a Board decision regarding an application for leave to appeal a decision of a member of the Board involved two issues, that is whether the decision maker applied the right test and second, whether the decision maker erred in law or in appreciation of the facts in determining whether an arguable case was raised.
[19] Further, the Respondent refers to the pragmatic and functional analysis conducted in Davies v. Canada (Minister of Human Resources Development) (1999), 177 F.T.R. 88, to determine the appropriate standard upon which to review a Board decision to deny an application for leave to appeal. In that decision, Justice Teitelbaum carried out a pragmatic and functional analysis and concluded that the question was a fact intensive question of mixed fact and law, subject to a “middle to lower level of deference”.
[20] The Respondent argues that in the present case, the Board member applied the correct test and correctly concluded that no arguable case was raised, having regard to the evidence that was submitted by the Applicant before the Review Tribunal.
[21] As to the alleged breach of procedural fairness, the Respondent argues that no such breach occurred. The Applicant was afforded sufficient time within which to name a representative if he wished to do so. Further, the Respondent notes that the Applicant is raising the issue of language difficulties for the first time at this stage. He argues that the Applicant submitted his application in English, that he operated his business in English and that he had not demonstrated a lack of understanding of that language.
III. Discussion and Disposition
[22]
An
appeal from a decision of a Review Tribunal is governed by section 83 of the
Act. Subsection 83(1) is relevant and provides as follows:
|
83. (1) A party 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 was communicated to the party 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. |
83. (1) La personne qui se croit lésée par une décision du tribunal de révision rendue en application de l’article 82 — autre qu’une décision portant sur l’appel prévu au paragraphe 28(1) de la Loi sur la sécurité de la vieillesse — ou du paragraphe 84(2), ou, sous réserve des règlements, quiconque de sa part, de même que le ministre, peuvent présenter, soit dans les quatre-vingt-dix jours suivant le jour où la décision du tribunal de révision est transmise à la personne ou au ministre, soit dans tel délai plus long qu’autorise le président ou le vice-président de la Commission d’appel des pensions avant ou après l’expiration de ces quatre-vingt-dix jours, une demande écrite au président ou au vice-président de la Commission d’appel des pensions, afin d’obtenir la permission d’interjeter un appel de la décision du tribunal de révision auprès de la Commission. |
[23]
The
Rules are also relevant. Rules 4 and 7 provide as follows:
|
4. An appeal from a decision of a Review Tribunal shall be commenced by serving on the Chairman or Vice-Chairman an application for leave to appeal, which shall be substantially in the form set out in Schedule I and shall contain
(a) the date of the decision of the Review Tribunal, the name of the place at which the decision was rendered and the date on which the decision was communicated to the appellant;
(b) the full name and postal address of the appellant;
(c) the name of an agent or representative, if any, on whom service of documents may be made, and his full postal address;
(d) the grounds upon which the appellant relies to obtain leave to appeal; and
(e) a statement of the allegations of fact, including any reference to the statutory provisions and constitutional provisions, reasons the appellant intends to submit and documentary evidence the appellant intends to rely on in support of the appeal. SOR/92-18, s. 2; SOR/96-524, s. 2.
7. An application under section 4 or 5 shall be disposed of ex parte, unless the Chairman or Vice-Chairman otherwise directs. SOR/92-18, s. 3. |
4. L'appel de la décision d'un tribunal de révision est interjeté par la signification au président ou au vice-président d'une demande d'autorisation d'interjeter appel, conforme en substance à l'annexe I, qui indique :
a) la date de la décision du tribunal de révision, le nom de l'endroit où cette décision a été rendue et la date à laquelle la décision a été transmise à l'appelant;
b) les nom et prénoms ainsi que l'adresse postale complète de l'appelant;
c) le cas échéant, le nom et l'adresse postale complète d'un mandataire ou d'un représentant auquel des documents peuvent être signifiés;
d) les motifs invoqués pour obtenir l'autorisation d'interjeter appel; et
e) un exposé des faits allégués, y compris tout renvoi aux dispositions législatives et constitutionnelles, les motifs que l'appelant entend invoquer ainsi que les preuves documentaires qu'il entend présenter à l'appui de l'appel. DORS/92-18, art. 2; DORS/96-524, art. 2.
7. Il est statué ex parte sur les demandes visées aux articles 4 ou 5, à moins que le président ou le vice-président n'en décide autrement. DORS/92-18, art. 3.
|
[24] The principal argument advanced here by the Applicant is that the Board erred by failing to grant him time within which to appoint a representative relevant to his Application for Leave to Appeal. The alternate argument advanced relates to a breach of procedural fairness, resulting from the dismissal of the Application for Leave to Appeal without giving the Applicant an opportunity to submit further material.
[25] Although the Applicant attempts to cast his first argument in terms of an error of law, in my opinion the alleged error relates to a question of procedural fairness. Questions relating to breaches of procedural fairness are not subject to a pragmatic and functional analysis but are reviewable on a standard of correctness.
[26] In the present case, the Applicant provided minimum grounds to support his request for leave in his handwritten submissions dated March 6, 2006. Rule 4 (d) and (e) reproduced above, clearly states that a person seeking leave must set forth the grounds upon which he bases his request for leave, together with a statement of the allegations of fact, the reason for his appeal and the documentary evidence upon which he intends to rely in support of the appeal. The Applicant did not satisfy these requirements.
[27] He also failed to comply with the requirement to give the name of his representative set out in Rule 4(c), if he intended to rely upon a representative in pursuing the Application for Leave to Appeal and ultimately, an Appeal.
[28] The designated member, in my opinion, committed no breach of procedural fairness in dismissing the Application for Leave, upon the basis of the material that was submitted.
[29] The second question is whether the decision dismissing the Application for Leave to Appeal meets the standard set out in Calihoo. In that decision, Justice MacKay said the following at para. 15:
[15] On the basis of this recent jurisprudence, in my view the review of a decision concerning an application for leave to appeal to the PAB involves two issues,
1. whether the decision maker has applied the right test – that is, whether the application raises an arguable case without otherwise assessing the merits of the application, and
2. whether the decision maker has erred in law or in appreciation of the facts in determining whether an arguable case is raised. If new evidence is adduced with the application, if the application raises an issue of law or of relevant significant facts not appropriately considered by the Review Tribunal in its decision, an arguable issue is raised for consideration and it warrants the grant of leave.
[30]
I
am satisfied that in the circumstances of this case, the Board member was aware
of the right test and he applied it. I repeat again his disposition of the
Application for Leave to Appeal:
The Appellant has applied for “leave to appeal” the decision of the Review Tribunal held in Brandon, Manitoba on November 3, 2005.
The Appellant has requested by letter dated March 9, 2006, to have his claim considered by the Board.
The Appellant states he was not properly prepared for the hearing and further that “he is being discriminated against.”
The Appellant has not provided documents or reports to substantiate his request.
The Application is denied.
[31] The first part of the test requires the Board to decide if an applicant has raised an arguable case. This means that an applicant bears the burden of setting forth grounds for an appeal. It is not necessary for the Board to use the words “no arguable case” in disposing of an application for leave to appeal; see Lima v. Canada (Minister of Human Resources Development), [2001] F.C.J. No. 220 (T.D.) (Q.L.).
[32]
In
the present case, the Applicant presented general allegations with no
supporting documents or new evidence. I am satisfied that the Board reasonably
concluded that no arguable case was disclosed for the purpose of an appeal. It
follows that there was no error in the application of the test.
[33] It follows that this Application for Judicial Review is dismissed. In the exercise of my discretion, there will be no order as to costs, notwithstanding the Respondent’s request for same.
ORDER
THIS COURT ORDERS that
1. The Application for Judicial Review is dismissed.
2. No order as to costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-987-06
STYLE OF CAUSE: BIAGIO BARCELLONA v. ATTORNEY GENERAL
OF CANADA
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 20, 2007
APPEARANCES:
Brian R. Mayes FOR THE APPLICANT
Carole Vary FOR THE RESPONDENT
SOLICITORS OF RECORD:
The Law Office of Carroll Mayes FOR THE APPLICANT
Brandon, Manitoba
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General
Ottawa, Ontario