Date: 20061110
Docket: T-254-06
Citation: 2006 FC 1366
Ottawa, Ontario, this 10th day of November, 2006
PRESENT: The Honourable Mr. James Russell
BETWEEN:
DOUGLAS JONES
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for judicial review of a decision rendered by the Review Tribunal governing the Canada Pension Plan/Old Age Security (Panel) on November 8, 2005 (Decision), in which the Panel refused to reopen the decision of the Review Tribunal dated September 17, 1996 (the hearing occurred June 10, 1996) on the ground that the Applicant had not provided new facts.
BACKGROUND
[2] The Applicant, Douglas Jones, is a 66-year-old man. He lives with his wife, Marlene Jones, in Aldergrove, British Columbia. He was employed as a tool and die maker by Solkan Enterprises Ltd. His Canada Pension Plan (CPP) contributory period began in January 1966 and ended in 1985.
[3] On May 20, 1987, the Applicant made his first application for CPP disability benefits. It was denied on June 23, 1987 and not appealed.
[4] On December 14, 1994, the Applicant applied a second time for CPP disability benefits. On February 2, 1995, that application was also denied. However, the Applicant appealed to the Minister of Employment and Immigration (Minister).
[5] On December 20, 1995, the Minister denied the Applicant’s appeal on the basis that the Applicant was not considered disabled in December 1989.
[6] The Applicant appealed the Minister’s decision to the Review Tribunal. On June 10, 1996, an oral hearing was held in Surrey, British Columbia. The medical evidence before the Review Tribunal consisted of:
a) A medical report dated December 12, 1994 from Dr. W. Urton, podiatrist;
b) A medical report dated September 29, 1995 from Dr. D. Clunas, the Applicant’s family physician, summarizing his treatment of the Applicant from March 9, 1989 to July 18, 1995; and
c) A medical report dated April 9, 1996 from Dr. Clunas.
[7] By decision dated September 17, 1996, the Review Tribunal dismissed the Applicant’s appeal which it had heard June 10, 1996. The Applicant did not appeal the Review Tribunal’s decision to the Pension Appeals Board.
[8] On July 27, 2001, the Applicant made a third application for CPP disability benefits. In a letter dated July 30, 2001, Human Resources Development Canada (HRDC) denied this application on the ground that the Applicant did not meet the contributory requirements on his current application. The Applicant did not seek a reconsideration of that decision.
[9] On September 17, 2003, the Applicant made a fourth application for CPP disability benefits. In a letter dated January 21, 2004, HRDC denied this application on the ground that the Applicant did not meet the contributory requirements on his current application. The Applicant did not seek reconsideration of that decision.
[10] In May 2005, the Applicant applied to the Office of the Commissioner of Review Tribunals to re-open the September 17, 1996 decision of the Review Tribunal, pursuant to section 84(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (Plan).
[11] The Applicant submitted five new documents with the application to re-open:
1) A medical letter dated May 29, 1987 from Dr. M. O’Brien to Dr. Clunas;
2) Dr. Clunas’s progress notes covering the period between September 23, 1986 to November 25, 2000;
3) A medical letter dated September 9, 2004 from Dr. Morgan, the Applicant’s new family doctor after the retirement of Dr. Clunas;
4) A medical note dated May 6, 2005 from Dr. Morgan; and
5) A letter dated May 13, 2005 from Marlene Jones, the Applicant’s wife, to the Office of the Commissioner of Review Tribunals.
[12] The Panel held an oral hearing on August 18, 2005 in Surrey, British Columbia and received testimony from the Applicant and Marlene Jones.
[13] On November 8, 2005, the Panel dismissed the Applicant’s application for reopening by a two to one majority.
DECISION UNDER REVIEW
[14] The Majority of the Panel (Majority) concluded that the last three documents listed in paragraph 11 above, numbered 3, 4 and 5, came into existence after the hearing and so could not provide information on the Applicant’s condition during the relevant period, which is prior to his minimum qualifying period of December 31, 1989. Although documents 1 and 2 predated the Review Tribunal hearing of June 10, 1996, the Majority found that these documents did not meet the first part of the new facts test because they could have been discovered before the original hearing by the exercise of reasonable diligence.
[15] The Majority also concluded that documents 1 and 2 did not meet the second part of the new facts test. The Majority found that these documents contained information similar to that already before the Review Tribunal. Consequently, the Majority found that these documents, if admitted, would not have a reasonable possibility of leading the previous Review Tribunal to change its original decision. Thus, the Majority dismissed the Applicant’s application to reopen the Review Tribunal’s decision.
[16] The Minority of the Panel (Minority) agreed with the Majority that the last three documents, numbered 3, 4 and 5, came into existence after the hearing and so could not provide information on the Applicant’s condition during the relevant period, which is prior to his minimum qualifying period of December 31, 1989.
[17] However, the Minority found that documents 1 and 2 were not discoverable by the Applicant at the time of the original hearing before the Review Tribunal. The Minority found that the Applicant had no knowledge of the existence of the medical letter from Dr. O’Brien (document 1). The Minority also found that the Applicant did not have access to the progress notes of Dr. Clunas (document 2); nor did the Applicant have any knowledge of what Dr. Clunas wrote down in his chart (document 2). Consequently, the Minority found that documents 1 and 2 met the first part of the new facts test.
[18] Also, the Minority concluded that documents 1 and 2 met the second part of the new facts test. The Minority pointed out that Dr. Clunas’s progress notes showed that a diagnosis of diabetic peripheral neuropathy had been made as early as December 4, 1986. As well, the Minority pointed out that the progress notes revealed that the Applicant had been diagnosed as early as December 1986. Further, Dr. O’Brien’s letter shows that he was of the opinion that the Applicant should be eligible for a disability pension if his neuropathy was to continue. Consequently, the Minority found that these two documents would shed some light on the Applicant’s medical condition prior to 1989, the condition for which the original Review Tribunal did not have any significant information at the hearing. Thus, the Minority concluded that, with these new documents, there is a reasonable possibility that the previous Review Tribunal could have changed its original decision.
ISSUES
[19] The following issues are raised by the parties:
a) Did the Majority err in finding that documents 1 and 2 were discoverable before the original hearing by the exercise of reasonable diligence?
b) Did the Majority err in finding that documents 1 and 2 would not show a reasonable possibility that could lead the Review Tribunal to change its original decision?
PERTINENT LEGISLATION
[20] The relevant provisions of the Canada Pension Plan are as follows:
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84. (1) A Review Tribunal and the Pension Appeals Board have authority to determine any question of law or fact as to
(a) whether any benefit is payable to a person,
(b) the amount of any such benefit,
(c) whether any person is eligible for a division of unadjusted pensionable earnings,
(d) the amount of that division,
(e) whether any person is eligible for an assignment of a contributor’s retirement pension, or
(f) the amount of that assignment, and the decision of a Review Tribunal, except as provided in this Act, or the decision of the Pension Appeals Board, except for judicial review under the Federal Courts Act, as the case may be, is final and binding for all purposes of this Act.
(2) The Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding subsection (1), on new facts, rescind or amend a decision under this Act given by him, the Tribunal or the Board, as the case may be.
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84. (1) Un tribunal de révision et la Commission d’appel des pensions ont autorité pour décider des questions de droit ou de fait concernant :
a) la question de savoir si une prestation est payable à une personne;
b) le montant de cette prestation;
c) la question de savoir si une personne est admissible à un partage des gains non ajustés ouvrant droit à pension;
d) le montant de ce partage;
e) la question de savoir si une personne est admissible à bénéficier de la cession de la pension de retraite d’un cotisant;
f) le montant de cette cession. La décision du tribunal de révision, sauf disposition contraire de la présente loi, ou celle de la Commission d’appel des pensions, sauf contrôle judiciaire dont elle peut faire l’objet aux termes de la Loi sur les Cours fédérales, est définitive et obligatoire pour l’application de la présente loi.
2) Indépendamment du paragraphe (1), le ministre, un tribunal de révision ou la Commission d’appel des pensions peut, en se fondant sur des faits nouveaux, annuler ou modifier une décision qu’il a lui-même rendue ou qu’elle a elle-même rendue conformément à la présente loi.
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STANDARD OF REVIEW
[21] The Federal Court of Appeal and this Court have repeatedly held that the appropriate standard of review for decisions of the Review Tribunal under subsection 84(2) of the Plan is patent unreasonableness. In Taylor v. Canada (Minister of Human Resources Development) (2005), 340 N.R. 290, 2005 FCA 293, Justice Sexton held at paragraph 12 that issues of materiality and due diligence are to be considered as questions of mixed fact and law with a heavy emphasis on fact, while discoverability is a question of fact. Justice Sexton concluded that the appropriate standard for both types of questions is patent unreasonableness. See also Arthurs v. Canada (Minister of Social Development), 2006 FC 1107 at paragraph 33, Ezerzer v. Canada (Minister of Human Resources Development), 2006 FC 812 at paragraph 14 and Canada (Minister of Human Resources Development) v. Patricio, 2004 FCA 409 at paragraph 1.
[22] There are two different questions involved in the analysis at issue in this matter. As mentioned above, Justice Sexton has recently considered the nature of these questions in relation to the exact provision at issue and found that materiality raises a question of mixed fact and law, weighted towards fact, and discoverability is an issue of fact. In both cases, the analysis favours deference.
ARGUMENTS
The Applicant
Issue 1
[23] The Applicant submits that documents 1 and 2 were not discoverable prior to the hearing on June 10, 1996 by the exercise of reasonable diligence. He says the Majority erred by making the assumption that he would have been aware of the progress reports of Dr. Clunas and the medical letter of Dr. O’Brien due to the fact that his wife, Marlene Jones, was a registered nurse. He submits that there is no evidence that his wife knew there were documents in Dr. Clunas’s medical file that would be helpful to his appeal.
[24] The Applicant submits that the Majority also erred in concluding that that he could have accessed the progress notes of Dr. O’Brien at any time prior to the original hearing. He says there is no evidence to support this conclusion of the Majority. As well, the Applicant submits that there is no evidence that Dr. Clunas offered to make his progress notes available to the Applicant.
[25] The Applicant submits that the Majority erred in finding that he chose not to access the progress notes of Dr. Clunas. He says there is no evidence that Dr. Clunas would have provided such access even if he had requested it.
[26] The Applicant also submits that the Majority erred in finding that if he was able to retrieve the progress notes of Dr. Clunas from Dr. Morgan, then his wife was capable of retrieving the progress notes from Dr. Clunas prior to the original hearing. He says that there is no evidence that his wife retrieved, or could have retrieved, the progress notes of Dr. Clunas from Dr. Morgan. He points out that Dr. Morgan found the medical letter of Dr. O’Brien while searching Dr. Clunas’s old medical files in 2004.
[27] Finally, the Applicant submits that the Majority erred in finding that if he had accessed Dr. Clunas’s records he would have discovered the medical letter of Dr. O’Brien. The Applicant points out that he did not have access to Dr. Clunas’s records in 1996. Consequently, the Applicant submits that he could not have discovered the medical letter of Dr. O’ Brien.
Issue 2
[28] The Applicant argues that the Majority erred in finding that there is no reasonable possibility that documents 1 and 2 would lead the Review Tribunal to change its original decision. He says that although the Review Tribunal was well aware that he has diabetic complications in general, the Review Tribunal dismissed the appeal because it found there was insufficient expert medical evidence regarding his condition in December 1989.
[29] As well, the Applicant submits that if the Review Tribunal had asked him questions related to signs and symptoms of his illness during the hearing in 1996, his answers would have been related to what the signs and symptoms of his illness were like in 1996, not what his condition was like in December 1989.
[30] Also the Applicant submits that Dr. Clunas’s medical report dated September 29, 1995 provided information about subsequent years, but it failed to provide pertinent detail regarding December 1989 and earlier. On the other hand, Dr. Clunas’s progress notes from September 1986 provide substantial information regarding the Applicant’s medical condition in the period up to December 1989.
[31] Further, the Applicant points out that the consultation record dated September 26, 1986 of Dr. O’Brien, which was attached to document 1 and treated as part of document 1, is the earliest medical evidence of his diabetes and the development of diabetic peripheral neuropathy.
[32] Consequently, the Applicant submits that the Majority erred in finding that there is no reasonable possibility that documents 1 and 2 could change the Review Tribunal’s original decision.
The Respondent
Issue 1
[33] The Respondent submits that documents 1 and 2 were discoverable by the Applicant prior to the original hearing. If Dr. Morgan was able to obtain both the progress notes of Dr. Clunas and the medical letter of Dr. O’Brien by simply requesting them, then the Applicant could have obtained these documents by simply requesting them too. As well, the Respondent submits that Marlene Jones testified in front of the Panel that she assisted the Applicant with his illness and his physicians’ visits. Consequently, the Respondent submits that these documents were discoverable with the exercise of due diligence. Thus, the Applicant cannot meet the first part of the new facts test.
Issue 2
[34] The Respondent submits that there is no reasonable possibility that documents 1 and 2 could lead the Review Tribunal to change its original decision. The evidence before the Review Tribunal and the Panel were essentially the same, including the same diagnoses and the same treatment.
ANALYSIS
[35] The issue before the Court in this application is whether the Majority of the Panel committed a reviewable error when they concluded that Dr. O’Brien’s letter of May 29, 1987 and Dr. Clunas’s progress notes covering the period from September 23, 1986 to November 25, 2000 were not “new facts” within the meaning of section 84(2) of the Plan.
[36] General guidance on the new facts rule was recently provided by the Federal Court of Appeal in Kent v. Canada (Attorney General) (2004), 248 D.L.R. (4th) 12, 2004 FCA 420, where Justice Sharlow, on behalf of a unanimous Court, had the following to say at paragraphs 33-36:
The jurisprudence of this Court has established a two step test for the determination of whether there are new facts. First, the proposed new facts must not have been discoverable, with due diligence, prior to the first hearing. Second, the proposed new facts must be “material”: Canada (Minister of Human Resources Development) v. Macdonald, [2002] F.C.J. No. 197, 2002 FCA 48.
Whether a fact was discoverable with due diligence is a question of fact. The question of materiality is a question of mixed fact and law, in the sense that it requires a provisional assessment of the importance of the proposed new facts to the merits of the claim for the disability pension. The decision of the Pension Appeals Board in Suvajac v. Minister of Human Resources Development (Appeal CP 20069, June 17, 2002) adopts the test from Dormuth v. Untereiner, [1964] S.C.R. 122, that new evidence must be practically conclusive. That test is not as stringent as it may appear. New evidence has been held to be practically conclusive if it could reasonably be expected to affect the result of the prior hearing: BC Tel v. Seabird Island Indian Band (C.A.), [2003] 1 F.C. 475. Thus, for the purposes of subsection 84(2) of the Canada Pension Plan, the materiality test is met if the proposed new facts may reasonably be expected to affect the outcome.
In the context of an application to reconsider a decision relating to entitlement to benefits under the Canada Pension Plan, the test for the determination of new facts should be applied in a manner that is sufficiently flexible to balance, on the one hand, the Minister’s legitimate interest in the finality of decisions and the need to encourage claimants to put all their cards on the table at the earliest reasonable opportunity, and on the other hand, the legitimate interest of claimants, who are usually self-represented, in having their claims assessed fairly, on the merits. In my view, these considerations generally require a broad and generous approach to the determination of due diligence and materiality. This is consistent with the words of Isaac C.J. at paragraph 27 of Villani (cited above):
[27] In Canada, courts have been especially careful to apply a liberal construction to so-called “social legislation”. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 36, the Supreme Court emphasized that benefits-conferring legislation ought to be interpreted in a broad and generous manner and that any doubt arising from the language of such legislation ought to be resolved in favour of the claimant.
For most disabling conditions, it is reasonable to expect the claimant to present a complete picture of his or her disability at the time of the first application, or on a first appeal to the Review Tribunal or the Pension Appeals Board. However, there are some disability claims, such as those based on physical and mental conditions that are not well understood by medical practitioners, that must be assessed against the background of an evolving understanding of a claimant’s condition, treatment and prognosis. It is especially important in such cases to ensure that the new facts rule is not applied in an unduly rigid manner, depriving a claimant of a fair assessment of the claim on the merits.
[37] There is some disagreement between the parties concerning the applicable standard of review in this case. However, having reviewed the Decision carefully against the facts, I am of the view that this application must be allowed even if a standard of patent unreasonableness, or the standard set out in section 18.1(4)(d) of the Federal Courts Act R.S.C. 1985, c. F-7 is applied to both steps of the new facts test.
[38] As regards the issues of discoverability and due diligence, I am in agreement with the Applicant and with Madame Marie-Claude Bélanger-Richard, who chaired the Panel and rendered a dissent judgment. The conclusions of the Majority of the Panel that documents designated 1 and 2 in the materials are not “new facts” because the Applicant could reasonably have discovered them prior to the original hearing are based entirely upon speculations, and findings and presumptions of fact that had no support in the evidence and were patently unreasonable. The details are set out in the Applicant’s materials and there is no need for me to recite them in full here. Essentially, there was no reason for the Applicant to believe that the medical report that Dr. Clunas rendered to the original panel was incomplete, or that the Applicant could have accessed the materials in question through the exercise of due diligence.
[39] As regards materiality and the second part of the new facts test, I agree with the Applicant that a review of the original panel’s decision shows that it found “there is simply not sufficient objective medical information on file to confirm that the Appellant was disabled within the meaning of the legislation in December, 1989 as is required.” In my view, Madame Bélanger-Richard, in her dissent judgment, provided the correct interpretation on the materiality of documents 1 and 2, and it was patently unreasonable for the Majority to conclude otherwise. There is a reasonable possibility that document 1 and 2 could lead the review tribunal to change the original decision. Once again, the reasons why this is so are set out in the Applicant’s materials in some detail and I adopt the Applicant’s reasoning and conclusions in this regard.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is allowed. The Decision is set aside. The Applicant’s application for a disability pension is referred back to a differently constituted panel of the Review Tribunal for a new hearing with a direction that the merits of the Applicant’s application be heard de novo based on all the available evidence, including the new facts set out in documents 1 and 2 as identified in the Applicant’s materials filed with this application for judicial review.
2. The parties are at liberty to address the Court on the issue of costs.
“James Russell”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: DOUGLAS JONES v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: SEPTEMBER 7, 2006
APPEARANCES:
William J. Andrews FOR APPLICANT
Stephen Bertrand FOR RESPONDENT
SOLICITORS OF RECORD:
William J. Andrews
Barrister and Solicitor FOR APPLICANT
North Vancouver, British Columbia
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Ontario Regional Office
Ottawa, Ontario