Date: 19990421
Dockets: T-459-98 and T-1440-98
BETWEEN:
SANDE LAZAR
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA,
HUMAN RESOURCES DEVELOPMENT CANADA,
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondents
REASONS FOR ORDER
EVANS J.:
| A. Introduction |
[1] In 1987 Sande Lazar was awarded a long-term disability pension under the Canada Pension Plan. In 1995 she was advised by Human Resources Development Canada, the government department responsible for administering the part of the Canada Pension Plan relevant to this litigation, that it was reviewing her file to ensure that she was still eligible to receive disability benefits.
[2] This review appears to have been triggered by information received by Human Resources from Revenue Canada to the effect that since 1989 Ms. Lazar had been reporting on her tax returns income from several sources. Human Resources asked Ms. Lazar to provide further information about this income, and in particular whether it was derived from employment. Her pension payments were stopped pending the completion of the review.
[3] In February 1998 Ms. Lazar received another letter from Human Resources, this time notifying her that the review of her file was complete and, on the basis of the information that it contained, it had been determined that she had ceased to be eligible for disability benefits in 1989 shortly after she commenced the employment from which she derived her non-pension income.
[4] When she was awarded her disability pension Ms. Lazar had undertaken to inform Human Resources if she resumed work: she had not honoured that undertaking. The decision letter stated that, in view of her employment in the period 1989-1995, Ms. Lazar could no longer be said to be suffering from a "severe and prolonged" disability that prevented her from working. Accordingly, she was no longer eligible under the Canada Pension Plan for long-term disability benefits.
[5] Finally, the letter advised her that she was liable to repay nearly all the pension payments that she had received while no longer suffering from a qualifying disability. The overpayments amounted to something in excess of $50,000.
[6] Ms. Lazar"s counsel, Mr. Galati, wrote on her behalf to Human Resources challenging the Minister"s jurisdiction to rescind the decision that she was entitled to a disability pension. He indicated that she would pursue whatever statutory appeals were available to her, and that an application for judicial review would be made to this Court challenging both the validity of the Minister"s decision, and the Minister"s determination that she was liable to repay most of the pension payments that she had received.
[7] In June 1998 an officer of the Disability and Reconsideration Division, Appeals Unit, Human Resources, wrote to Ms. Lazar to advise her that her file had been reconsidered. The result of the reconsideration was to affirm the initial decision: Ms. Lazar"s condition had not prevented her from working since 1989 and she was therefore no longer disabled within the meaning of the Canada Pension Plan .
[8] Mr. Galati filed two applications for judicial review. One challenged the decision that Ms. Lazar was no longer eligible to receive long-term disability benefits, and the second challenged the ministerial reconsideration of this decision. Since the legal issues raised by these applications are substantially similar, at the hearing I ordered that they be joined. The reasons that I shall give for my order are applicable to both.
| B. The issues |
[9] Mr. Galati advanced statutory and constitutional grounds for impugning the decisions. While he indicated that the substantive correctness of the Minister"s decision that Ms. Lazar"s employment disqualified her from continuing to receive a disability pension was open to challenge, the focus of his attack in this proceeding was on the legality of the decision-making process.
[10] Thus, Mr. Galati maintained that, contrary to the position adopted by the Minister, subsection 60(7) of the Canada Pension Plan did not authorize the Minister to determine that a person to whom a pension had been awarded was no longer eligible to receive it. Rather, the relevant provision was subsection 84(2), which explicitly authorizes the Minister "on new facts" to "rescind or amend a decision under this Act".
[11] The significance of this issue would appear to be that, if the Minister may make a decision under subsection 60(7) that a person is no longer suffering from a qualifying disability, then a claimant may request a reconsideration of that decision by the Minister: paragraph 81(1)(b). An appeal lies from that reconsideration to two independent appellate tribunals, first to the Review Tribunal (subsection 82(1)), and from there to the Pension Appeals Board (subsection 83(1)). On the other hand, an appeal from a decision taken under subsection 84(2) lies directly to the Review Tribunal and from there to the Pension Appeals Board. There is no intermediate ministerial reconsideration.
[12] The potential importance of this for a person who has been found by Human Resources to be no longer eligible, is that the additional step of the ministerial reconsideration to which subsection 60(7) decisions are subject inevitably delays the individual"s gaining access to a determination of her or his rights by an adjudicative tribunal that is independent of the Minister. Moreover, Mr. Galati argued, if the relevant provision is subsection 84(2) pension payments would continue until the Review Tribunal held that the person was no longer entitled to a pension.
[13] In the alternative, Mr. Galati submitted that the statutory scheme effectively deprived a person in the position of Ms. Lazar of the benefit of an independent and impartial determination of her statutory right to receive the disability pension to which she had been found to be entitled. He relied on the common law duty of fairness and section 7 of the Canadian Charter of Rights and Freedoms to support this contention.
[14] In addition to taking issue with the arguments that I have outlined above, counsel for the Minister, Mr. Roussy, submitted that the application for judicial review was premature. He argued that the Court should exercise its discretion not to decide the issues raised by Ms. Lazar in this proceeding since she has an adequate alternative remedy available to her: the statutory rights of appeal to the Review Tribunal and to the Pension Appeals Board. Decisions of the Board are reviewable in the Federal Court of Appeal: Federal Court Act, R.S.C. 1985, c. F-7 [as amended], paragraph 28(1)(d).
| C. Analysis |
[15] I shall deal first with the question of whether the application for judicial review should be dismissed for prematurity. If it should, then it would be unnecessary, and inappropriate, for me to address the grounds on which the applicant has attacked the validity of the Minister"s decision and his reconsideration of it.
[16] Mr. Galati made two submissions on this issue. First, he said, an appeal to the Review Tribunal from the ministerial reconsideration was no longer a remedy that was available to Ms. Lazar. This is because a notice of appeal must be filed within 90 days from the date that she was notified of the result of the reconsideration: subsection 82(1) of the Canada Pension Plan. The limitation period expired in September 1998, and no notice of appeal has been filed. Consequently, the statutory right of appeal is no longer an alternative remedy that Ms. Lazar can pursue.
[17] I do not find this argument to be persuasive. First, subsection 82(1) confers on the Commissioner of Review Tribunals a discretion to permit a person to file a notice of appeal outside the normal 90 day limitation period. The applicant in this case has not requested the Commissioner to exercise the discretion in her favour.
[18] Second, the fact that an applicant is out of time to exercise a statutory right of appeal to an administrative tribunal or, for that matter, to a court, does not necessarily render the remedy inadequate: Adams v. British Columbia (Workers" Compensation Board) (1989), 42 BCLR (2d) 228 (B.C.C.A.). It would surely be anomalous if, by the simple expedient of failing to appeal in time, an applicant were able to avoid having to use a statutory right of appeal before invoking the Court"s supervisory jurisdiction.
[19] Mr. Galati"s second submission was that there is no appeal to the statutory tribunals from the liability to repay overpayments to which an individual was never entitled. This is a matter that can be dealt with only in this Court. Accordingly, the existence of the statutory right of appeal should not be regarded as an adequate alternative remedy to the application for judicial review.
[20] Mr. Galati may be technically correct in his submission that neither the Review Tribunal nor the Pension Appeals Board has jurisdiction to set aside the applicant"s indebtedness to the Crown, even if they found that Ms. Lazar had never ceased to be eligible to receive a long-term disability pension. However, it seems to me quite fanciful to imagine that Human Resources would attempt to collect a sum that a claimant was held on appeal to have been legally entitled to receive. Indeed, Mr. Roussy stated that no steps had been taken by Human Resources to attempt to collect the debt owed by Ms. Lazar, and that none would be taken pending the completion of all appeal and judicial review proceedings in this matter.
[21] Accordingly, I do not regard this limit on the jurisdiction of the statutory tribunals as sufficient to render the rights of appeal inadequate alternative remedies to the applications for judicial review that are before me.
[22] When Parliament creates statutory remedies and institutions designed specifically to provide redress to persons aggrieved by administrative action taken pursuant to a particular scheme, the Court should not lightly intervene before those statutory remedies have been exhausted. Considerations of efficiency, expeditiousness and institutional expertise and capacity will normally militate in favour of judicial restraint.
[23] Thus, the issue of statutory interpretation raised by Mr. Galati falls squarely within the specialized jurisdiction of the tribunals, and so judicial review will not generally be appropriate until the Review Tribunal and the Pension Appeals Board have had an opportunity to consider the question.
[24] It also seems clear that the statutory jurisdiction of the Review Tribunal and the Pension Appeals Board "to determine any question of law" relating to whether a benefit is payable (subsection 84(1)) is broad enough to enable them to hear and decide Charter challenges to the validity of the enabling legislation, or any questions of common law relating to the procedural fairness of the decision-making process, that are relevant to an appellant"s entitlement to a pension.
[25] The fact-finding capacity of the appellate tribunals, and their experience with the administration of this complex statutory scheme, are likely to assist in ensuring that there is an informed resolution of the constitutional question raised by the applicant, regardless of whether the matter ultimately ends up before the Court.
| D. Conclusion |
[26] For these reasons the applications for judicial review are dismissed.
OTTAWA, ONTARIO John M. Evans
April 21, 1999. J.F.C.C.