Ottawa, Ontario, this 23rd day of June, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
- and -
JOSEPHINE GATTELLARO
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] This is an application by the Minister of Human Resources Development (the "Minister") for judicial review of the October 22, 2004 decision by a member of the Pension Appeal Board (the "Board"), designated under s. 83(2.1) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the "CPP"). In his decision, the designated member granted the Respondent an extension of time and leave to appeal a decision of the Review Tribunal approximately seven and a half years after the time limit for doing so had expired. While the Respondent, who was self-represented, filed no materials for this application, she appeared and made oral representations at the hearing.
[2] The sequence of events leading to this application is as follows:
_ The Respondent applied for disability benefits in July 1995.
_ Her application was denied in July 1995, and after reconsideration the denial was confirmed by letter decision dated March 29, 1996.
_ The Respondent appealed the decision to a Review Tribunal who, in reasons dated February 26, 1997, dismissed her appeal. The Review Tribunal concluded that the Respondent was "capable of doing some type of work suited to her disabilities".
_ In letters to the Board dated February 11, 2004 and May 3, 2004, the Respondent requested an extension of time and leave to appeal the Review Tribunal's decision of February 26, 1997.
_ On October 22, 2004, in a Notice of Decision from the Board, the Respondent was advised that, the time within which to appeal was extended and the leave to appeal was granted. No reasons were provided. Further, the decision was taken ex parte, without notice to or submissions from the Minister.
Issues
[3] The Minister alleges that the member designate of the Board erred in granting (a) an extension of time and (b) leave to appeal. In the circumstances of this case, I must agree with the Minister and allow this application on the basis that the member erred in extending the time for bringing the appeal.
Standard of Review
[4] The decision of the designated member to extend time and to grant leave is highly discretionary. The Applicant submits that, in spite of this discretionary nature of the decision, I should apply a standard of review of reasonableness simpliciter (Callihoo v. Canada, [2000] F.C.J. No. 612 (T.D.)). In this case, I do not need to reach a conclusion on the appropriate standard since I am satisfied that, on any standard of review, the decision should not stand.
Analysis
[5] The statutory limitation of the time for bringing an appeal of a decision of the Review Tribunal is set out in s. 83(1) of the CPP which reads as follows:
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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.
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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 sécuritéde 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. |
[6] The procedure for appeals brought pursuant to s. 83 of the CPP is dealt with in Rules 4 and 5 of the Rules of Procedure of the Board (C.R.C. 1978, c. 390, as amended). Read together, these Rules provide that an application for an extension of time within which to apply for leave to appeal a decision of a Review Tribunal shall set out the date of the decision of the Review Tribunal, the place at which the Tribunal's decision was rendered, the date on which the decision was communicated to the appellant, the full name and postal address of the appellant, the name and address of any agent or representative of the appellant on whom service of documents may be made, the grounds upon which the appellant relies to obtain leave to appeal, a statement of the appellant's allegations of fact, reference to any statutory provisions relied on and, reasons the appellant intends to submit and documentary evidence the appellant intends to rely on in support of the appeal. The application should also set out the grounds on which the extension of time is sought.
[7] The intent of Parliament as expressed in s. 83(1) of the CPP is to limit the time period for extending the appeal period to 90 days. While a designated member may extend the time period beyond 90 days, it must be presumed that an extension of time is not a matter of right. If the Board grants extensions automatically - which appears to be the case in this application - the 90-day limit becomes meaningless. The authority to extend the statutory limitation must not, in my view, be exercised arbitrarily or capriciously. The question becomes, under what circumstances should an extension of time be granted? In other words, what factors should be weighed in determining whether to grant an extension of time?
[8] The situation faced by a member of the Board considering a request is analogous to that before a judge of the Federal Court in considering an extension of time for bringing an application for judicial review pursuant to s. 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. That provision of the Federal Courts Act provides that an application for judicial review is to be made within 30 days "or within any further time that a judge of the Federal Court may fix or allow". The wording is almost identical to the relevant provision in the CPP. Also similar to the CPP, there is no statutory duty on a judge to give reasons for a decision to allow an extension of time. Thus, in my view, it is reasonable that the same principles applicable to a judge of the Federal Court ought to be engaged on a decision to extend time made by a member of the Board.
[9] Jurisprudence relied on by the Minister (Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (F.C.A.); Baksa v. Neis (c.o.b. Brookside Transport), [2002] F.C.J. No. 832) has established that the following criteria must be considered and weighed:
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.
[10] They are, in my view, equally applicable to the decision under review. I note that the decision to extend the time period has been made without submissions by the Minister, a party equally affected by the decision to proceed to an appeal. In light of this, it seems even more critical in the interests of justice, that the record demonstrates clearly that all of these factors have been addressed by the decision maker. This is not to say that this Court should intervene lightly in a decision of the designated member of the Board. Provided that the record demonstrates that there was a reasonable evidentiary basis upon which the member could assess the factors, it would not be up to this Court to re-weigh the evidence.
[11] In the case before me, I am prepared to assume, without deciding, that the first two criteria have been met. However, I have serious concerns with respect to the last two factors of explanation for the delay and prejudice to the Minister.
[12] On the subject of the reasons for her delay, the Respondent provided very little rationale for bringing her leave application so late. Her reasons, as set out in her initial letter to the Board dated February 8, 2004, were as follows:
Ms. Gattellaro did not act earlier on this due to many difficulties in her life. She was having to cope with her significant depression, her marital problems and raising her young children. And the process for the Pension Appeals Board was not properly communicated to her for her full understanding of the situation.
[13] In a second letter dated May 3, 2004, her reasons changed somewhat - particularly with regard to whether she understood the process of an appeal.
Mrs. Gattellaro was in such a state of depression that she could not take care of her affairs regarding appealing the decision from the Review Tribunal. Her former representative abandoned her case. And Mrs. Gattellaro's husband came across the documentation and persuaded her to pursue her case and that he would provide the support she required.
[14] The Respondent provided no affidavit to support her position on this judicial review. I am left attempting to establish the facts from the Minister's uncontroverted affidavit evidence and from the certified copy of the material before the Board. A review of the record demonstrates that her reasons do not hold up to scrutiny.
1. Young children. The only evidence with respect to her children is that they were born in 1968 and 1970. At the time of the decision in question, they were 29 and 27 years of age and not, as she alleged, "young children".
2. Abandoned by representative. Further, there is no support for her statement that she was "abandoned" by her representative. The record indicates that the person who represented her at the Review Tribunal was still acting as her representative at the time the Notice of Decision of Review Tribunal was sent to both the Respondent and her representative. That Notice clearly spelled out the time limitation for an appeal.
3. Inability because of difficulties. In spite of claimed "difficulties", the Respondent initiated a second application for disability benefits in 1999. The fact that she was able to bring a second application followed by an application for reconsideration and an appeal to the Review Tribunal, all of which were denied, raises a serious question of the truth of her statements that she was unable to act earlier due to her difficulties and depression.
4. Marital Difficulty. While she first described marital difficulties as a reason for delay, in the second letter, her husband was described as providing support in her appeal.
[15] No correspondence is contained in the record indicating that the Board requested clarification of these inconsistencies. A conclusion that the Respondent has provided compelling or sufficient reasons for bringing the leave application seven years after the 90-day time limit of s. 83(1) is, in my view, totally unsupported by the evidence and is patently unreasonable.
[16] With respect to the fourth factor, the record discloses no evidence whatsoever on the question of prejudice to the Minister. It does not appear that prejudice to the Minister was considered by the member. Given that there has been over seven years since the original decision and an even longer time since the Respondent made her initial application for CPP disability benefits, how is the Minister to ensure that an adequate response to the appeal is made? This could make the extension of time very prejudicial to the Minister.
[17] In a more general sense of the concept of prejudice, I am also concerned that allowing appeals, absent compelling reasons, long after the expiry of time leads to a lack of certainty and finality for both the Minister and all parties to the process. It is reasonable to assume that there are many other persons who, having received negative decisions of the Review Tribunal, have not appealed based on the expiry of time. The Respondent should not now be allowed to pursue a remedy that others in her position have not pursued believing that an appeal was not open to them. There is fundamental unfairness in a process that is not applied consistently and with regard to commonly accepted principles.
Conclusion
[18] An application for an extension of time - particularly for seven years beyond the statutory time limit - should not be granted as a matter of right, but should be subjected to a principled approach by the Board. In this case, that was not done. In conclusion, I am of the view that the member erred in extending the time for bringing the appeal and, accordingly, this application for judicial review will be allowed.
[19] The decision under review will be set aside and the matter referred back to the Board for re-determination, having regard to these reasons, by a different member of the Board. In particular, the member designated to consider the application for the extension of time should satisfy himself that:
_ The Respondent demonstrates a continuing intention to pursue the application or appeal;
_ The matter discloses an arguable case;
_ There is a reasonable explanation for the delay; and
_ There is no prejudice to the Minister in allowing the extension.
[20] It is difficult to see how the Board can reach a fair, principled decision on these applications on an ex parte basis; that is, without the submissions from the Minister. In spite of this concern, I recognize that the Board is the master of its own procedures and, therefore, decline to require the Board to implement procedures that would address these shortcomings.
[21] The Minister does not seek costs. In my discretion, I decline to award costs in this application.
ORDER
This Court orders that:
1. The application is allowed and the matter sent back for re-determination by a different member of the Board in accordance with these reasons.
2. There is no order as to costs.
______________________________
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-2164-04
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT
v. JOSEPHINE GATTELLARO
PLACE OF HEARING: Toronto, Ontario.
DATE OF HEARING: June 20, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: June 23, 2005
APPEARANCES BY:
Mr. Adrian Joseph For Applicant
Josephine Gattellaro FOR RESPONDENT
Self represented
SOLICITORS OF RECORD:
Mr. Adrian Joseph FOR APPLICANT
Ottawa, Ontario
Mrs. Josephine Gattellaro FOR RESPONDENT
Whitby, Ontario