Ottawa, Ontario, June 26, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
TRANSCRIPT OF REASONS
Let the attached edited version of the transcript of my Reasons for Order delivered orally from the bench at Halifax, Nova Scotia, on May 9, 2007, be filed to comply with section 51 of the Federal Court Act.
“ R. L. Barnes ”
Judge
T-1515-06
IN THE FEDERAL COURT OF CANADA
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
and
ALLEN SMALL
Respondent
D E C I S I O N
HELD BEFORE: The Honourable Mr. Justice Barnes
PLACE HEARD: Halifax, Nova Scotia
DATE HEARD: Wednesday, May 9, 2007
APPEARANCES: Mr. Allan T. Matte
Solicitor for the Applicant
Mr. Allen Small
Self-represented
THE REGISTRAR: Mr. Mike Kowalchuk
____________________________________________________________________
Recorded by:
Drake Recording Services Limited
1592 Oxford Street
Halifax, NS B3H 3Z4
Per: Phil Drake, CCR
BARNES, J. (Orally): This is an application for judicial review brought by the Crown from a decision of the Pension Appeals Board -- and hereafter I’m just going to refer to that group as the Board -- by which the Respondent, Allen Small, was granted an extension of time in which to obtain leave to appeal from a decision of a Canada Pension Plan Review Tribunal, and I’ll refer to that group as the Tribunal. These are my reasons delivered orally at Halifax on May 9th, 2006 for allowing the Crown’s application.
It appeared from the record before the Court that Mr. Small’s intended appeal concerned the Tribunal’s determination of his deemed disability date, which was found to be April 2002 with benefits to commence in August 2002.
Mr. Small’s request for an appeal was in the form of a letter received by the Board on January 31st, 2006, which was approximately six weeks beyond the 90-day filing requirement set by s.83(1) of the Canada Pension Plan. That letter offered no explanation for Mr. Small’s failure to meet the 90-day appeal deadline. Mr. Small’s letter was also somewhat unclear as to what decision he was concerned with, and the Board assumed that he wished to appeal the Tribunal decision. Because Mr. Small did not file any material on this application before the Court, it was not until this morning that he advised the Court and the Crown that his intention was to appeal an earlier ministerial decision by which his first application for disability benefits was denied. Apparently, instead of appealing that decision he was advised to bring a fresh application for benefits, which he did. It was in connection with that application that he was ultimately successful before the Tribunal.
Nevertheless, he feels that his disability claim should properly have been assessed as of the date of his first application, a difference of about eight months’ benefits. He said today that that first application was submitted by mailing on time, but it was lost somewhere in transit.
Needless to say, the Board’s decision in this case was based on a wrong assumption. Mr. Small is not challenging the Tribunal’s decision by which his disability claim was accepted, and he understands that the commencement date for benefits as determined on his second application for benefits was correct. He simply wants the Minister to reconsider the decision to deny his first claim and to award benefits as of the date of that earlier application for benefits.
Given that the Board’s decision was based on a wrong assumption, an innocently made assumption, certainly it should be set aside on that basis. I will, however, deal as well with the Crown’s position on the merits of this application because there, too, the Board erred.
In accordance with s. 83(1) of the Canada Pension Plan, the Board did have discretion to grant an extension of time to permit Mr. Small’s appeal to proceed. That decision was rendered by the Board on July 14th, 2006. That decision offered the following reasons for granting an extension to appeal.
“The decision of the Review Tribunal is dated July 27th, 2005 but apparently was not communicated to the Applicant until September 16th, 2005.
The 90-day appeal period would expire approximately December 16th, 2005.
The undated letter of the Applicant, which I shall consider as an Application for an Extension of Time in which to Appeal and Leave to Appeal was received by the Pension Appeals Board on January 31st, 2006, some one and a half months after expiry of the appeal period.
In the Minister of Human Resources Development v. Josephine Gattellaro, Snider, J. states that a member’s decision to grant leave to appeal after the expiry of the 90-day period is “highly discretionary.”
Snider, J. went on to say that, “four criteria must be followed on extension of time applications under s. 83(1). They are:
1) A continuing intention to pursue the application, or appeal;
2) The matter discloses an arguable case;
3) There is a reasonable explanation for the delay; and
4) There is no prejudice to the other party in allowing the extension.
Snider, J. concluded that the Applicant had failed to provide a reasonable explanation for the delay and an absence of prejudice to the Minister.
By reason of the short lapse of time between the expiry of the appeal period and receipt of the application, I am prepared to exercise my discretion and find that there was a continuing intention to appeal and no reasons for the delay in filing the appeal are required.
I do not feel the Minister will be prejudiced in preparing her response to the appeal.
Although I have some reservations as to whether the Applicant has an arguable case in respect to the date of onset, for the purposes of this application, I am prepared to find he does.
For the above reasons the Application for an Extension of Time in which to Appeal and Leave to Appeal is granted.”
And that’s the end of the quote from the Board’s decision.
It is very clear that the Board granted the extension in the this case without requiring Mr. Small to provide any evidence to satisfy the four requirements established by the Gattellaro decision.
Although the granting of an extension to appeal is a discretionary remedy, it must still be approached in a principled manner. There is, after all, a legitimate interest in bringing finality to decisions made in the course of these types of disputes.
I accept the Applicant’s submission that the standard of review on issues of law in this case is correctness, to the extent that this case may raise issues of mixed fact in law the standard is reasonableness, and there I rely on Canada (Minister of Human Resources Development) v. Hogervorst, which is at 2006, decision of the Federal Court.
It is apparent from the Board’s decision that it correctly identified the legal test for granting an extension of time to Mr. Small. It is equally obvious that it then ignored the test by granting an extension in the absence of any evidence to establish a continuing intention to appeal, a reasonable explanation for the delay and the absence of prejudice to the Crown. This constitutes a clear error of law for which no deference is owed on judicial review. Even in cases where the delay is of relatively short duration, the Board must have some evidence to satisfy the requirement for granting an extension of time. Here it had none.
It is also insufficient for the Board to simply assume an arguable issue. Here I would draw upon the wisdom of my colleague, Justice Yves de Montigny in the markedly similar case of Attorney General of Canada v. Causey, a 2007 decision of the Federal Court, where he dealt with this issue as follows at paragraph 23, and here I’m quoting from that decision: “Not only did the Board member not identify an arguable ground of appeal but he went so far as to say he doubted whether there was an arguable case. Granting leave to appeal in the absence of proper reasons, especially where the Board member questions whether a case is arguable, is an error of law, whatever standard of review is applied. See Canada v Roy, a 2005 decision of the Federal Court.”
In this situation Mr. Small’s letter to the Board failed to disclose an arguable issue, and of course as I’ve already mentioned he was intending one thing by that letter and the Board assumed another. That failure to disclose an arguable issue might not be fatal, if the Board was in a position to identify such an issue from the record before it. Here, though, the Board expressed a generalized reservation on this issue and identified nothing which would justify the time and expense of an appeal. Without intending to predetermine this issue, I would only observe that the Applicant appears to be correct in saying that the determination of the deemed disability and onset of payment dates are fixed by law and calculated from the date of the application for benefits, and indeed Mr. Small accepted that this morning as being a correct view of the commencement date, at least with respect to his second application.
In that context, it is difficult to identify an arguable basis for varying the Tribunal’s determinations; unless the Board can find such a question, it should not presume the existence of one. To do so is an error of law.
In the result, and for the reasons I’ve given, this application for judicial review is allowed. Given what we’ve learned this morning, it would be pointless to send this back to the Board for a redetermination, because the Board’s decision was based on a false assumption, as I mentioned earlier in these reasons, but this should not preclude Mr. Small from attempting to seek relief, either directly from the department or possibly to the tribunal or back to this Court, to the Federal Court, if he feels that it’s appropriate to attempt to resurrect or to pursue his first application and the relief he was claiming in connection with his first application.
So, Mr. Small you may have some rights here and some opportunities to pursue this, the first application, but essentially what you’re going to have to do is go out and decide how you’re going to do that, and I think the place to start is with the department and see what advice they can give you as to where to take the matter further, if you choose to do so.
So, those are my reasons and thank you, gentlemen.
CERTIFICATE OF COURT TRANSCRIBER
I, Philomena Drake, Court Transcriber, certify that I have transcribed the foregoing and it is a true and accurate transcript of the decision given in this matter, HER MAJESTY THE QUEEN v. ALLEN SMALL, taken by way of electronic recording.
__________________________________________
Philomena Drake
Court Transcriber (Reg. #2006-36)
Halifax, Nova Scotia
Tuesday, May 29, 2007
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1515-06
STYLE OF CAUSE: HER MAJESTY THE QUEEN
- and -
ALLEN SMALL
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
TRANSCRIPT OF REASONS
APPEARANCES:
|
Allan Matte
|
|
|
Allen Small
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|