Toronto, Ontario, June 21, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
FRANCESCO PIRO
Respondent
[1] This is an application by the Minister of Human Resources Development (the "Minister") for judicial review of a decision of a designated member of the Pension Appeals Board (the "Board") dated March 3, 2005. In that decision, the Respondent ("Mr. Piro") was granted an extension of time to apply for leave to appeal and also leave to appeal a decision of the Review Tribunal made July 8, 1999, almost six years after the time limitation for seeking leave to appeal had elapsed.
[2] The Chronology of Events in this case was as follows:
a. Mr. Piro, a construction worker, was injured in a work-related injury and stopped working on November 11, 1994.
b. Mr. Piro applied for CPP disability benefits in January 1996. He claimed his medical conditions (disc herniation surgery, lower back pain, left leg pain, back spasms, problems with his left toes, right hand carpal tunnel syndrome, right ear hearing loss, dizziness, lupus of the face, and an anxiety problem) prevented him from working.
c. This application was denied by the Minister.
d. On July 7, 1998 a Review Tribunal ("RT") convened to hear Mr. Piro's appeal.
Mr. Piro nor his representative attended. An adjournment was requested because Mr. Piro had health problems that prevented his attendance. The adjournment was granted.
e. The RT heard Mr. Piro's appeal on April 6, 1999. Neither the representative nor
Mr. Piro attended. Its decision, dated July 8, 1999, dismissed the appeal as it found Mr. Piro was capable of working ("First RT Decision").
f. On October 2, 2001, Ms. Oliverio, Mr. Piro's consultant, sent a letter to the Office of the Commissioner of Review Tribunals requesting the First RT decision be reopened on the basis of "new fact" medical evidence.
g. The application to reopen was heard in July 2002. The decision dated July 11, 2002 held the medical evidence did not constitute new facts and denied the application to reopen the July 8, 1999 decision ("Second RT Decision").
h. On July 18, 2002, Ms. Oliverio sent an application to the Board for leave to appeal the Second RT Decision. The appeal was dismissed for lack of jurisdiction in a decision dated November 23, 2004.
i. By letter dated November 26, 2004, Mr. Piro requested an extension of time to seek leave to appeal the First RT Decision. The reasons provided for the delay were a lack of understanding of the procedure, no representation and that he "was in a desperate state in 1999".
j. On March 3, 2005, a Leave Judge on behalf of the Board ("Leave Judge") granted Mr. Piro an extension of time to seek leave to appeal the First RT Decision. This was communicated to Mr. Piro in a letter dated March 15, 2005.
[3] The decision was made ex parte, without submissions from the Minister, and no reasons were provided. The decision as communicated to Mr. Piro in a letter dated March 15, 2005 simply stated:
Further to our letter of February 9, 2005, this is to inform you that a member of this Board has considered Mr. Piro's Application for Leave to Appeal and pursuant to Rule 5 of the Rules of Procedure, the time within which to appeal has been extended until March 3, 2005, and on the same day, this member granted him leave to appeal. He has now appealed the Review Tribunal's decision. A copy of the Notice of Appeal is being sent to the Minister of Social Development. When this Board receives a Reply from the Minister, you will be sent a copy.
STANDARD OF REVIEW
[4] With respect to the standard of review, I agree with Justice Kelen who made the following statement in Canada(Minister of Human Resources Development) v. Hogervorst, 2006 FC 401 at paragraph 8:
A decision of a designated member of the Appeals Board to extend time and to grant leave is discretionary. The Minister submits that the appropriate standard of review to assess the decision of a designated member of the Appeals Board is correctness on questions of law, patent unreasonableness on questions of fact, and reasonableness simpliciter on questions of mixed fact and law. The respondent, who is self-represented, did not make any submissions on to standard of review. With respect to the standard of review the Court agrees with the Minister and will review each issue in accordance with the applicable standard of review.
ISSUE
[5] Did the Leave Judge err in extending the time to apply for leave and in granting leave to appeal the First RT Decision?
ANALYSIS
[6] The principles for determining whether an extension of time should be granted were set out in Canada(Minister of Human Resources Development) v. Gattellaro, 2005 FC 883. There are four factors to be considered:
1. 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 Minister in allowing the extension
[7] However, Gattellaro, supra was issued on June 23, 2005 and this decision was made on March 3, 2005. Thus, the judge could not have applied the exact directions from the case. However, Gatellaero, supra was not a groundbreaking case: it merely stated concisely the factors that one would expect a decision maker under these circumstances to take into account before granting leave to extend the period for seeking leave to appeal.
[8] In this case the Applicant, through his consultant Connie Oliverio, alleged the following:
To support our request for the 90 day limitation, we ask that you consider the following factors which explains the reasons why Mr. Piro did not file his Leave to Appeal in time.
· At the time of the initial Review Tribunal's Hearing, you will note that Mr. Piro did not attend the Hearing and this is indicated in the actual decision. Therefore, the decision of July 8, 1999 was rendered in Mr. Piro's absence.
· Mr. Piro did not understand the procedure as he has a language barrier and also that he did not have a representative. Moreover, he was in a desperate state in 1999 as this was the period during which he had significant difficulties coping with all the stressors including his failed back surgery, his progressive psychiatric condition both of which contributed significantly to his marriage breakdown.
This caused a severe reaction and as a result, it was not until
October 2, 2001 that he had retained the services of this Consulting Firm.
[9] A review of the record shows that these points cannot be sustained.
[10] Mr. Piro was represented throughout by his consultant, Ms. Oliverio, and she was copied on all correspondence from the Board.
[11] Mr. Piro's original hearing was adjourned at his request, and although he and his representative had been advised of the new date, neither chose to appear.
[12] Mr. Piro did understand the procedure as he asked, via his consultant, for an adjournment.
[13] Mr. Piro's language skills are perfectly sufficient. He testified in court today without difficulty. Both the Board and his own doctor commented positively on his language skills.
[14] His doctor's certificate dated Aug 19, 1999 indicated
This patient was born in Italy and was the youngest in a sibline [sic] of three brothers and three sisters. One of the sisters is deceased. He did not remember when his father died but his mother died in 1986. There is no family history of psychiatric problems. He reports that he had a good childhood and was close to his family members. He came to Canada when he was 17 and he has a grade 7 education. He has worked in the construction field. He married when he was 19 and reports that the relationship is going well, although his wife sometimes gets frustrated with his on-going symptoms.
[Tribunal Record page D15]
[15] It may well be that there were still valid reasons to grant the extension, but they certainly are not ascertainable from the application dated November 26, 2004. Unfortunately, no reasons were given by the Board.
[16] It is always preferable to have reasons and the absence of reasons can be fatal. As Justice Teitelbaum held in Canada(Minister of Human Resources Development) v. Dawdy, 2006 FC 429 at paragraph 26:
I agree with the Applicant that even if the designated member was able to consider granting an extension of time, that discretionary decision was improperly exercised. The designated member did not provide any reasons for granting leave. I agree with Justice Eleanor Dawson's conclusion in Roy, above, at paragraph 13, that while there is no statutory requirement under s. 83 of the Act to provide reasons where leave is granted, the designated member must support this discretionary decision with reasons. The failure to give reasons is therefore a reviewable error in this case.
[17] There may be circumstances where the absence of reasons is not fatal as the reason for granting leave can be ascertained from the application and the tribunal record (see Hogervorst, supra).
[18] However, this is not such a case. The application makes four allegations, none of which are borne out by the record. In light of that fact, and given the absence of reasons, the decision to grant the extension of time to seek leave and the granting of leave is patently unreasonable and cannot stand.
[19] Upon review of the record I am also unable to find any evidence to satisfy the four criteria established by Gatellaro, supra.
[20] Accordingly, this application will be allowed.
ORDER
THIS COURT ORDERS that the decision of March 3, 2005 is set aside. The matter is referred back to the Pensions Appeals Board for reconsideration by another member.
"Konrad W. von Finckenstein"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-697-05
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT
APPLICANT
and
FRANCESCO PIRO
RESPONDENT
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2006
REASONS FOR : von Finckenstein J.
APPEARANCES:
Ms. Florence Clancy
Mr. Francesco Piro / Mr. Chris Topple (Agent of Respondent)
FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE APPLICANT
Chris Topple
Oshawa, Ontario FOR THE RESPONDENT